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Campaigntrack Victoria Pty Ltd v Chief Executive, Department of Justice and Attorney-General

 

[2016] QCA 37

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37

PARTIES:

CAMPAIGNTRACK VICTORIA PTY LTD
ACN 143 538 112
(applicant/appellant)
v
THE CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(first respondent)
GALACOAST PTY LTD (IN LIQUIDATION)
ACN 053 364 435
(second respondent)
GARY WILLIAM GANNON
(third respondent)

FILE NOS:

Appeal No 5714 of 2015

QCAT Appeal No 362 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2015] QCATA 61

DELIVERED ON:

26 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2015

JUDGES:

Margaret McMurdo P and Applegarth and Henry JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Leave to appeal granted.

2.Allow the appeal.

3.Set aside the orders made by the Appeal Tribunal on 6 May 2015.

4.Return the matter to the Tribunal for reconsideration, and to:

(a)declare the claim had been made within the required time;

(b)declare the “Claim out of time notice” dated 19 September 2012 to be of no effect;

(c)direct the Chief Executive to continue to process the claim and to expedite possible settlement of it and in the event the claim remains unresolved, to refer the unresolved claim to the Tribunal for determination;

(d)make appropriate orders for the joinder of respondents and for the hearing of the claim in the event it does not settle;

(e)make a precautionary finding that, in the event the Tribunal had concluded that the claim was out of time, then the Tribunal would have extended pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to 15 October 2012 the time for Campaigntrack to file an application for an extension of time; and

5.If no submissions on costs in accordance with paragraph 52(4) of Practice Direction No 3 of 2013 are made within 14 days of the delivery of the Court’s judgment, then it be further ordered:

“The first respondent pay the applicant/appellant’s costs of and incidental to the application for leave to appeal dated 5 June 2015 and the appeal.”

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – POWERS – EXTENSION OF TIME – where a claim was lodged against the claim fund under the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) – where dispute whether the claim was made within time – where Tribunal allows extension of the 14 day period referred to in s 473(5)(b) of PAMDA – whether Tribunal has power to extend the period pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Property Agents and Motor Dealers Act 2000 (Qld), s 450(b), s 470, s 472(2), s 472A, s 473(5), s 473(5)(b), s 474, s 475, s 476, s 477, s 511, s 511(1)(a)(i)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6(7), s 7, s 7(2), s 28(3)(d), s 61, s 153

Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General [2014] QCAT 703, related

Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd & Ors [2015] QCATA 61, related

Queensland Building and Construction Commission v Watkins [2014] QCA 172, cited

The Chief Executive, Department of Justice and Attorney-General v Crampton Automotive Pty Ltd t/as Toowoomba Holden & Ors [2014] QCATA 20, cited

Watkins v Queensland Building Services Authority [2013] QCAT 535, cited

COUNSEL:

C L Hughes QC, with B Le Plastrier, for the applicant

J M Horton QC, with A Marinac, for the first respondent

No appearance for the second respondent

C A Schneider for the third respondent

SOLICITORS:

McLean & Associates for the applicant

Crown Law for the first respondent

No appearance for the second respondent

Ramsden Lawyers for the third respondent

  1. MARGARET McMURDO P:  I agree with Applegarth J’s reasons and proposed orders.
  2. APPLEGARTH J:  The question of law in this matter is whether the Queensland Civil and Administrative Tribunal (QCAT) has power to extend the 14 day period referred to in s 473(5)(b) of the now repealed Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA).

Background

  1. Chapter 12, Part 3 of PAMDA establishes a claim fund and provides for the making of claims against the fund.  Section 450(b) of PAMDA states that QCAT has jurisdiction “to hear and decide claims, other than minor claims, against the fund”.  A minor claim is a claim of not more than $10,000.[1]
  2. Various sections of Chapter 14 provide for the making of claims and how they are dealt with.  Section 473 governs claims other than a claim for loss because of, or arising out of, a marketeering contravention in relation to the purchase of a non-investment residential property.  It applies to the claim made by the applicant, Campaigntrack.  Section 473(5) provides:

“(5)If the claim is not made within the time allowed under section 472, the chief executive must give the person a notice in the approved form stating that–

(a)the claim is out of time; and

(b)the person may apply to the tribunal, within 14 days after being given the notice, for an extension of time within which to make the claim.”

The time allowed under s 472(2) is the earlier of the following:

(a)one year after the person becomes aware that the person has suffered financial loss because of the happening of an event mentioned in s 470(1);

(b)three years after the happening of the event that caused the person’s financial loss.

  1. Claims against the fund are processed by the first respondent (“the Chief Executive”) and the Chief Executive determines minor claims.  As part of his or her function in processing claims, the Chief Executive may form the view that the claim was not made within the time allowed under s 472.  If a claim has not been made within the time allowed under s 472 then the Chief Executive must give the “Claim out of time notice” referred to in s 473(5).  Significantly, the power to give such a notice depends on the claim in fact being out of time, not simply on the Chief Executive’s belief that this is the case.
  2. A claimant who receives an out of time notice may choose to do a number of things.  If it accepts the view of the Chief Executive, it may seek an extension of time under s 511 of PAMDA.  That section allows QCAT to extend the time within which to file the claim if the Tribunal is satisfied that:

(a)the application to extend time is made “within the time mentioned in the notice given under s 473(5)(b)”;[2] and

(b)it is appropriate to extend time having regard to a number of stated matters.[3]

  1. If, however, a claimant contests the assertion that the claim was made out of time, it may ask the Tribunal to decide that issue as part of the Tribunal’s function of hearing and determining claims in the Tribunal’s original jurisdiction.  A claimant pursuing that course might seek as an alternative, and out of an abundance of caution, an extension of time under s 511 in the event the Tribunal concludes that the claim was not made within the time allowed under s 472.
  2. Campaigntrack arranges advertisements for real estate agents in the print media.  The second respondent, Galacoast Pty Ltd, operated two real estate agencies on the Gold Coast, and the third respondent, Mr Gannon, was the principal of those agencies and a director of Galacoast.  Campaigntrack booked and paid for advertisements to be placed for Galacoast.  Galacoast went into receivership, owing money to Campaigntrack.  Campaigntrack made a claim against the fund dated 22 December 2011.  The Chief Executive received the claim on 3 January 2012 and some nine months later communicated the view that it had been lodged outside of the time allowed under the Act.  That view turned on when Campaigntrack became aware of its financial loss, whereas s 472(2)(a) makes it clear that the one year period runs from the time the person becomes aware that the person has suffered financial loss because of the happening of an event mentioned in s 470(1).  In any event, the Chief Executive purported to issue Campaigntrack with a “Claim out of time” notice under s 473(5) of PAMDA.  The notice was dated 19 September 2012 and stated that Campaigntrack “may apply” for an extension of time, but that such application “must be made within 14 days of receiving” the notice.
  3. Campaigntrack contested the Chief Executive’s view about its claim being out of time.  In order to contest the time limit issue it filed an application to “review” the Chief Executive’s decision with the Tribunal on 15 October 2012.  This was the form of its application, which was filed more than 14 days after it received the notice from the Chief Executive.[4]
  4. The substance of Campaigntrack’s application was to have the Tribunal hear and determine its claim, and, in doing so, to reject the Chief Executive’s view that Campaigntrack had failed to make its claim in time.  It sought an order that its claim had been made in accordance with s 472 of PAMDA.  The application sought, in the alternative, an order for an extension of time.

The decision of the Tribunal

  1. After considering a number of procedural questions, the Tribunal Member turned to the substantive issue of whether the claim was brought within time.  He analysed the relevant evidence and the submissions of Campaigntrack and of the Chief Executive about the date Campaigntrack became aware that it suffered financial loss because of the breaches of the trust accounting obligations imposed by the Act.  The Tribunal concluded that the claim was filed well within the 12 month period provided for by the Act.[5]  As a result, an extension of time was not required because the Tribunal found that the claim “was brought within time”.[6]  Although Campaigntrack’s application to the Tribunal was brought on a form for an “application to review a decision” and sought a review of the Chief Executive’s decision that the claim had been made outside the time limitation provided for in s 472, the application sought, in the alternative to a review of the decision, an order extending the time within which Campaigntrack was permitted to file its application.  The Tribunal, following an earlier decision of a judicial member in the matter of The Chief Executive, Department of Justice and Attorney-General v Crampton Automotive Pty Ltd t/as Toowoomba Holden & Ors,[7] concluded that the Chief Executive’s decision was not a reviewable decision, and that the proper course was to refer the claim back to the Chief Executive for the purposes of processing pursuant to ss 474 to 477 of the Act.
  2. Although the Tribunal Member did not consider that an extension of time was required, he decided to make an order pursuant to s 61 of the QCAT Act extending the time limit for Campaigntrack to file an application pursuant to s 473(5)(b) of PAMDA to 15 October 2012.  He added Galacoast and Mr Gannon as respondents to the application by Campaigntrack to extend the time within which it had to file the claim and also ordered that the claim be referred back to the Chief Executive for the purposes of ss 474 to 477 of PAMDA.
  3. Section 61(1) of the QCAT Act provides that the Tribunal may, by order:

“(b)extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or

(c)waive compliance with another procedural requirement under this Act, an enabling Act or the rules.”

Section 61(2) provides that an extension or waiver may be given under s 61(1) even if the time for complying with the relevant requirement has passed.

  1. The first order of the Tribunal was made pursuant to s 61 of the QCAT Act, and was based upon the Tribunal’s analysis of relevant provisions and authorities about whether the Tribunal could extend the 14 day period in s 473(5) of PAMDA under s 61 of the QCAT Act.  The Tribunal Member considered that s 61 might allow a claimant to apply to extend that time.  There was no inconsistency between the relevant provisions and no prohibition against the Tribunal doing so.
  2. In my view, having found that the claim was not out of time, the Tribunal Member should have adopted a different procedural course, and treated the application to the Tribunal as one which engaged its original jurisdiction to hear and determine claims, other than minor claims, against the fund.  The Tribunal found that the claim had been made within time after a contested hearing into that issue.  This meant:
  1. The Chief Executive had no power under s 473(5) to issue the purported “Claim out of time notice”.
  1. The notice was ineffective, the 14 day period stated in it did not begin to run and no occasion arose to hear an application under s 511 to extend time for an out of time claim.
  1. The Chief Executive, having received a claim that was within time, should have processed it and, if the claim had not settled,[8] the unresolved claim should have been formally referred to the Tribunal for determination.
  1. A possible argument that the Tribunal did not have original jurisdiction because the Chief Executive had yet to formally refer the claim to it has little attraction.  It would be odd if the Tribunal was deprived of jurisdiction because of an error on the part of the Chief Executive which resulted in a failure to refer a claim to the Tribunal when it should have been.  The alternative course of requiring a claimant to pursue in the Supreme Court possible judicial review of the Chief Executive’s decision, or declaratory orders in a court in relation to a dispute over the time issue would be expensive and unattractive in the context of legislation which assumes that the Tribunal, rather than a court, will hear and determine claims.  The legislation seemingly envisages that the Tribunal, in exercising the jurisdiction conferred upon it to hear claims, may decide whether time limits were observed by a claimant.  The legislation seeks to promote administrative efficiency by stating “responsibility for claims, other than minor claims, against the fund rests with the tribunal”.[9]  If the Tribunal, in discharging that responsibility, decides that a claim was made in time, it should act accordingly.
  2. The most appropriate course for the Tribunal Member to have adopted in the circumstances was to:
  1. declare the claim had been made within the required time;
  1. declare the “Claim out of time notice” dated 19 September 2012 to be of no effect;
  1. direct the Chief Executive to continue to process the claim and to expedite possible settlement of it and, in the event the claim remained unresolved, to refer the unresolved claim to the Tribunal for determination;
  1. make appropriate orders for the joinder of respondents and for the hearing of the claim in the event it did not settle; and
  1. make a precautionary finding that, in the event the Tribunal had concluded that the claim was out of time, then the Tribunal would have extended pursuant to s 61 of the QCAT Act to 15 October 2012 the time for Campaigntrack to file an application for an extension of time.[10]

The appeal to the QCAT Appeal Tribunal

  1. The Chief Executive successfully appealed the Member’s decision to extend time pursuant to s 61 of the QCAT Act to the QCAT Appeal Tribunal.  The Appeal Tribunal found that s 61 of the QCAT Act could not be used to extend the 14 day period within which to apply to the Tribunal for an extension of time to make a claim against the claim fund.[11]  In essence, the Appeal Tribunal held that s 61 did not apply because s 511(1)(a)(i) (when read together with s 473(5)(b)) did not provide “a procedural time limit”.[12]  It described the requirement under consideration as “substantive and mandatory” and creating a “condition of jurisdiction”.[13]
  2. According to the Appeal Tribunal, because Campaigntrack had not filed its application to extend the time under s 472 within the 14 day period stated in the Chief Executive’s notice, a precondition to the Tribunal’s jurisdiction was not satisfied.  Because the Tribunal was found to have erred in extending the time referred to in the s 473(5)(b) notice, the Appeal Tribunal allowed the appeal to it, set aside the Tribunal’s orders and substituted a decision that the application of Campaigntrack dated 15 October 2012 be dismissed.
  3. The Appeal Tribunal went on to hold that if it was wrong and there was “no substantive time limit and precondition to the Tribunal’s jurisdiction, the result would be unchanged.”[14]  This was because s 473(5)(b) and s 511(1)(a)(i) read together were a “modifying provision” within the meaning of s 7 of the QCAT Act.  The Appeal Tribunal concluded that there was an inconsistency between the modifying provision and s 61 of the QCAT Act because “both could not be complied with.”  The operation of s 61 of the QCAT Act was excluded.

The application to this Court

  1. Campaigntrack applies for leave to appeal the question of law of whether s 61 can be used to extend the 14 day period referred to in s 473(5)(b) of PAMDA with the effect that the “time mentioned in the notice” is the extended time for the purposes of s 511(1)(a)(i).  It challenges the Appeal Tribunal’s construction of those sections as ousting the operation of s 61 of the QCAT Act and also contends that the Appeal Tribunal erred in reading those sections as a modifying provision which was inconsistent with s 61.  Campaigntrack submits that there are three principal errors in the Appeal Tribunal’s reasoning.  First, s 511 is said to be irrelevant to the inquiry before the Appeal Tribunal because s 473(5)(b) is the only relevant section.  Second, even if it is correct that the 14 day period is contained in s 511(1)(a)(i), when read together with s 473(5)(b), the Appeal Tribunal is said to have erred in concluding that the time limit is “substantive and mandatory”.  The third alleged error is the Appeal Tribunal’s refusal to adopt the construction advanced by Campaigntrack, in part, because it would “require reading into s 511(a)(i) [sic] (and/or s 473(5)), additional words after Parliament’s actual words to the effect of ‘or such later time as the Tribunal may allow’”.[15]
  2. Campaigntrack points to the fact that the relevant sections do not state that an application “must” or “may only” be made within the time mentioned in the notice given under s 473(5)(b), and therefore leaves scope for s 61 to operate.  Campaigntrack submits that it would be difficult to see how s 61 could operate unless it modified the language of every provision of an enabling Act that created such a time limit or similar procedural requirement.
  3. Campaigntrack also contends that the Appeal Tribunal erred in its alternative holding that s 61 is inconsistent with s 473 and s 511 of PAMDA and that s 7(2) of the QCAT Act therefore dictates that “the operation of s 61 of the QCAT Act is excluded.”[16]  Section 61 assumes the existence of temporal and other procedural requirements in an enabling Act.  The power to extend time under s 61 is not inconsistent with such a provision.  The Appeal Tribunal was wrong to conclude that s 61 was excluded.  It also is alleged to have erred in finding an inconsistency on the basis that “both could not be complied with”.  According to Campaigntrack, that reasoning is infected with error because a person does not comply with s 61 of the QCAT Act.  Section 61 does not set time limits, and can be used to extend the time limit fixed by an enabling Act such as the 14 day time period recognised in s 473(5)(b) or s 511(1)(a)(i).

The Chief Executive’s response

  1. The Chief Executive sought to uphold the Appeal Tribunal’s decision and contended that:
  1. the PAMDA provisions are not a procedural requirement, and therefore the Tribunal has no power to waive compliance with them; and
  1. the relevant provisions of PAMDA are ones to which the QCAT Act itself gives paramountcy at the expense of s 61 of the QCAT Act because the PAMDA provisions are “modifying provisions”.

On both arguments, the consequence was that there was no power to extend the 14 day period mentioned in the notice given under s 473(5)(b), and the Tribunal lacked jurisdiction to consider Campaigntrack’s application to extend time.

  1. In oral argument, counsel for the Chief Executive immediately acknowledged complications with the position that the time limit was not a procedural requirement since the Appeal Tribunal did not separately address subparagraphs (b) and (c) of s 61(1) of the QCAT Act.  While not abandoning the “procedural requirement” argument, counsel for the Chief Executive relied primarily on the argument that the relevant provisions of PAMDA were a “modifying provision” within the meaning of s 7 of the QCAT Act and prevailed over the provisions of s 61 of the QCAT Act to the extent of any inconsistency between them.  The result was that s 61 of the QCAT Act simply did not apply either to extend a time limit[17] or to waive compliance with the procedural requirement under PAMDA.[18]

The issues

  1. The parties’ submissions raise the following substantial issues:
  1. the nature of the time period implied by s 473(5)(b) and s 511 of PAMDA;
  1. whether it is a “procedural requirement”; and
  1. if so, whether it may be extended pursuant to s 61 of the QCAT Act.

The nature of the time period implied by s 473(5)(b) and s 511

  1. Section 473(5)(b) does not itself impose a time limit.  It concerns the contents of a notice the Chief Executive must give if the claim is not made within the time allowed under s 472.  If the claim is not in fact made within the time allowed under s 472, then the Chief Executive must give the required notice, and the notice must state that the person “may apply” to the Tribunal within 14 days after being given the notice, for an extension of time within which to make the claim.
  2. Section 511(1)(a)(i) states the conditions upon which the Tribunal may extend the time within which to file a claim.  One condition is that the Tribunal is satisfied that the application is made within the time mentioned in the notice given under s 473(5)(b).  Rather than fix a limit of 14 days on the time within which to file an application for an extension of time following receipt of a “Claim out of time notice” under s 473(5), s 511 picks up the “time mentioned in the notice given under s 473(5)(b)”.
  3. I do not accept, however, Campaigntrack’s contention that s 511 was irrelevant to the inquiry before the Appeal Tribunal and that only s 473(5)(b) discloses a temporal requirement.  Instead, the sections, taken together, impliedly recognise the existence of a time period within which a claimant may apply for an extension of time within which to make a claim.
  4. The sections do not expressly state that a claimant “may only” apply within that period, or “must” apply within that period, failing which the Tribunal has no jurisdiction to entertain an application for an extension of time.  Nor does either section adopt language that expressly excludes the operation of s 61 of the QCAT Act.  Elsewhere, and particularly in s 472A of PAMDA, there is such an express exclusion.  Section 472A(3) states in respect of a claim against the fund for capital loss because of, or arising out of, a marketeering contravention in relation to a purchase of non-investment residential property:

“The QCAT Act, section 61 does not apply to empower the tribunal to extend the time permitted to do a thing mentioned in subsection (1)(a) or (b).”

No similar exclusion of the operation of s 61 of the QCAT Act appears in respect of the time period recognised by s 473(5)(b) and s 511 to apply for an extension of time within which to make a claim.

  1. In summary, s 473(5)(b) and s 511 in combination imply, rather than clearly express, a time period of 14 days within which a claimant may apply for an extension of the time stated in s 472.  The sections do not state that an application for such an extension may not be sought outside this time period.  They do not exclude the operation of s 61 of the QCAT Act so as to allow the Tribunal in an appropriate case to grant an extension of the 14 day period or waive compliance with the requirement to make the application within the time mentioned in the notice.

The procedural requirement issue

  1. The Appeal Tribunal concluded that the time period stated in s 511(1)(a)(i) (read together with s 473(5)(b)) did not set out a “procedural time limit” and that the requirement under consideration was “substantive and mandatory”.[19]  Section 61 was said not to apply to a time limit that is a “pre-condition to jurisdiction”.  The Appeal Tribunal relied upon the decision of this Court in Queensland Building and Construction Commission v Watkins[20] and stated:

“The Court of Appeal in Watkins considered that such a provision contains a substantive and mandatory, rather than a procedural, time limit.”[21]

  1. I regard the Appeal Tribunal’s reference to “mandatory” in this context as unhelpful.  The requirements, whether substantive or procedural, are in a sense always “mandatory”.  As counsel for the Chief Executive acknowledged, the issue of whether the requirement is procedural or substantive does not depend upon the requirement being mandatory or otherwise.  The issue is whether the provisions are procedural or not.[22]
  2. The Appeal Tribunal’s reliance on Watkins was misplaced.  That case concerned a provision of the Queensland Building Services Authority Act 1991 (Qld) which relevantly provided: “The tribunal must not review the following decisions of the authority …”  Dr Forbes, the member of QCAT who dealt with a related matter, concluded that the prohibition defined and limited the jurisdiction of the Tribunal.  He stated: “It is not merely a procedural rule that may be relaxed under section 61 of the QCAT Act”.[23]  The matter before this Court was an appeal from an adjournment of an application for summary judgment.  The respondent to that appeal did not challenge the decision of QCAT or make a submission contrary to its effect.[24]  Douglas J, with whom McMurdo P and Morrison JA agreed, did not question the correctness of the decision of QCAT and concluded that the relevant provision which prohibited the Tribunal from reviewing certain decisions of the Authority if 28 days had elapsed since the relevant decision or direction had a “substantive rather than procedural effect”.[25]
  3. This Court in Watkins was considering a very different kind of statutory provision to the kind of time period or time limit recognised by s 473(5)(b) and s 511(1)(a)(i) of PAMDA.  As the Appeal Tribunal in this matter acknowledged, s 511(1)(a)(i), when read together with s 473(5)(b), is not couched as a prohibition, as the provision was in Watkins.[26]  The provision in Watkins was a prohibition upon the Tribunal which, in the words of Dr Forbes “defines and limits the jurisdiction of the Tribunal”.
  4. In the present statutory context, the time within which to make an application for an extension of the time stated in s 472 is a matter governing the procedure by which a claim against the fund is processed, heard and decided.  The provisions impliedly state that a claimant may make an application to extend time within a certain period, and say nothing about whether the Tribunal may allow an extension of that time in a deserving case.  The 14 day time period within which a claimant “may” make an application for an extension of time may be characterised as a time limit fixed by PAMDA or another procedural requirement.  Campaigntrack is correct in its submission that any time limit contained in s 511(1)(a)(i), when read together with s 473(5)(b), is procedural.  The Appeal Tribunal erred when it concluded that the relevant provisions of PAMDA were not procedural.
  5. If s 61 of the QCAT Act applied, then it gave QCAT power to extend the time limit fixed by PAMDA or to waive compliance with the procedural requirement.

Did s 61 not apply because the PAMDA provisions were an inconsistent modifying provision?

  1. As noted, the Tribunal Member concluded that s 61 of the QCAT Act applied and did not accept the Chief Executive’s submission that there was an inconsistency between s 61 and the provisions of PAMDA.  By contrast, the Appeal Tribunal gave an alternative basis upon which to allow the appeal to it.  It was that there was an inconsistency between the “modifying provision” constituted by s 511(1)(a)(i) and s 473(5)(b) when read together and s 61 of the QCAT Act.
  2. Section 7 of the QCAT Act applies if a provision of an enabling Act[27] provides for:

(a)the Tribunal’s functions in jurisdiction conferred by the enabling Act; or

(b)a matter mentioned in s 6(7).

The latter includes requirements about applications and the conduct of proceedings for jurisdiction conferred by the enabling Act, including practices and procedures.  An example is the period within which an application must be made.[28]  A provision of an enabling Act to which s 7 of the QCAT Act applies is described as “the modifying provision”.  Section 7(2) states that:

“The modifying provision prevails over the provisions of this Act, to the extent of any inconsistency between them.”

  1. The Appeal Tribunal reasoned that there was an inconsistency between the relevant modifying provision and s 61 of the QCAT Act because “both could not be complied with”.[29]  The problem with this reasoning is that s 61 of the QCAT Act does not require the Tribunal (or indeed anyone else) to comply with it.  Contrary to the Chief Executive’s written submissions on appeal, the provisions are not “at odds with each other”.  Section 61 assumes the existence of a time period of the kind provided for in the relevant provisions of PAMDA, and allows for its extension in certain circumstances.
  2. The Chief Executive’s oral submissions on this application advance the inconsistency argument on the basis that PAMDA evinces a manifest intent that the application be made only in the 14 day period stated in the notice.  Any other view, it is said, would render the 14 day period merely a matter of notice.  Section 511 says nothing about the power of the Tribunal to grant an extension of time if the application for an extension of time is not made within the time mentioned in the notice.  The necessary intention is said to be that an out of time claim is at an end if an application for an extension of time is not made within that period, namely within 14 days after being given the notice.
  3. The fact that the sections do not say “may only” or “must”, or do not expressly prohibit the making of an application at a later time, is acknowledged by the Chief Executive to weaken the argument that there is a “manifest intention” that there be no power in the Tribunal to extend time where the 14 day period has expired.  However, use of the word “may” is submitted to merely signal permission for a claimant to bring an application in 14 days if it chooses to.  The intention to preclude applications which are made later than the 14 day period is submitted by the Chief Executive to be supported by the need for diligent pursuit of rights under the statutory scheme for claims to be made.  By enacting the notice requirement in s 473(5) and by expressly limiting the power of the Tribunal to grant an extension of time under s 511 to cases in which the application for the extension of time is made within the period stated in the notice, the legislature is said to have manifestly intended a 14 day limit, incapable of extension.  The existence of a time limit that is incapable of extension is submitted to give rise to an inconsistency with an extension of time provision such as s 61(1)(b) of the QCAT Act.  The notice provision and the condition contained in s 511(1)(a)(i) are submitted to effectively say more than “you may apply to the Tribunal within 14 days after being given this notice”.  The thrust of the Chief Executive’s submissions is that the sections, in effect, say “you must apply to the Tribunal within 14 days after being given the notice”.
  4. This, however, is not what either section says.  In my view, clear words would be required to provide that the application must be made within 14 days, after which there is no scope to extend the time to make an application for an extension of time or to waive the 14 day procedural requirement.  Section 473(5) concerns the content of a notice and provides that the notice must state that the person “may apply” to the Tribunal within 14 days after being given the notice.  Neither it nor s 511 precludes the possibility of making an application at a later time if, for example, the claimant satisfies the requirements of s 61 and persuades the Tribunal to extend the 14 day period referred to in the notice due to extenuating circumstances.  In such a case, the time so extended would be the time picked up by s 511(1)(a)(i).  Accordingly, when the Tribunal came to consider whether to extend the time referred to in s 472 for the making of a claim, it would need to be satisfied that the application for an extension of time was made within the extended time ordered by the Tribunal pursuant to s 61.
  5. One should not lightly infer a legislative intent to shut out deserving claimants from seeking an extension of time under s 511.  For example, a claimant might fail to apply for an extension of time within the 14 day period stated in the notice because he or she was in a coma in hospital and unable to make the application.  One can imagine other deserving circumstances in which a claimant fails to make the application within the 14 day period stated in the notice.
  6. In summary, this is not a case in which the relevant provisions, either expressly or by necessary intendment, create a time limit beyond which no application for an extension of time may be made.
  7. As a result, the case is not one of inconsistency between the modifying provisions of an enabling Act and the provisions of the QCAT Act.  It is unlike a case where, for instance, a provision of an enabling Act imposes a 14 day period within which an application to the Tribunal must be made and the QCAT Act allows 28 days to do so, giving rise to an inconsistency between the time stated in the enabling Act and the time stated in the QCAT Act.  Instead, one has a time period in the enabling Act and a provision in the QCAT Act which empowers the Tribunal to extend that time.  Section 61 assumes the existence of such a provision about the time within which to bring an application (or some other procedural requirement) and is not inconsistent with it.
  8. In addition, it cannot be that an inconsistency with s 61 of the QCAT Act arises whenever a provision of an enabling Act deals with the matter of timing, such as the time within which an application may be filed.  Were that so, s 61 would have little work to do.
  9. Section 61 exists for a variety of cases in which enabling Acts or the QCAT Act may fix a time limit or impose other procedural requirements.  Its presence removes the need to laboriously insert in numerous enabling Acts words such as “unless the Tribunal extends the time or waives compliance with this requirement” in conjunction with time limits or other procedural requirements.
  10. Section 61 will not apply if the enabling Act indicates otherwise, for example, by stating that the period cannot be extended, that s 61 of the QCAT Act does not apply to empower the Tribunal to extend the time,[30] or that an application must be brought in a certain time, failing which the Tribunal shall not decide the application.  Where an intent to preclude an extension of time under s 61 is evident, there will be an inconsistency between the modifying provision and s 61 so that the modifying provision prevails in accordance with s 7 of the QCAT Act.
  11. This is not such a case.  Recognition in s 473(5)(b) and s 511(1)(a)(i) of PAMDA of a time within which an application for extension may be made is not inconsistent with a provision to extend that time in a deserving case.  I conclude that the Appeal Tribunal erred in law in concluding that s 61 of the QCAT Act is inconsistent with s 473(5)(b) and s 511(1)(a)(i) of the PAMDA when read together.  The provisions are not inconsistent and, as a result, the operation of s 61 was not excluded.

Disposition

  1. Although PAMDA has been repealed, the question of law raised in this matter is an important one and has implications for the operation of s 61 of the QCAT Act in various contexts in which the provision of an enabling Act fixes a time limit or contains some other procedural requirement.
  2. The Appeal Tribunal erred in law in construing the relevant provisions of PAMDA and in interpreting those provisions as inconsistent with s 61 of the QCAT Act.  The effect of the decision of the Appeal Tribunal was to dismiss Campaigntrack’s application for an extension of time dated 15 October 2012 and to deprive it effectively of the opportunity to pursue its claim for $329,995 from the fund.  The Appeal Tribunal in a concluding observation noted the Member’s finding that an extension of time under s 472 was unnecessary and stated that it expected the Chief Executive to fully consider the Member’s findings or observations.  The Chief Executive did so, but declined to act upon the finding of the Tribunal that Campaigntrack’s claim was made within the time specified in s 472 of PAMDA.  Rather than adopt the finding of an independent tribunal reached after a contested hearing and appropriate consideration of the submissions of representatives of the parties, the Chief Executive adhered to a view that the claim was made outside the time provided for in s 472.  As a result, in a letter dated 21 May 2015, the solicitor for Campaigntrack was advised that the matter was at an end and that there would not be any further steps taken in processing Campaigntrack’s claim.
  3. The importance of the questions of law raised by Campaigntrack’s application to this Court and the consequences to Campaigntrack of the Appeal Tribunal’s erroneous decision warrants the grant of leave to appeal to this Court.  The appeal should be allowed and the orders made by the Appeal Tribunal on 6 May 2015 set aside.  However, to simply set aside the Appeal Tribunal’s orders would have the effect of reinstating the orders made by the Tribunal on 23 July 2014.  For the reasons discussed above, it was not appropriate to grant an extension of time pursuant to s 61 of the QCAT Act to extend the time mentioned in the notice given under s 473(5)(b).  The finding of the Tribunal that Campaigntrack’s claim had been made within time had the consequences earlier stated.  The statutory precondition for giving a “Claim out of time notice” under s 473(5) did not exist and the notice was ineffective.
  4. In circumstances in which the decision to issue the “Claim out of time notice” was not a reviewable decision for the purposes of the Tribunal’s review jurisdiction, and where Campaigntrack had made an application for an extension of time in addition to an “application to review a decision”, the Member decided to treat the application as one for an extension of time.  This course was influenced by the statutory command to the Tribunal to act with as little formality and technicality and with as much speed as requirements of the Act and a proper consideration of the matter before it permitted.[31]  However, rather than progressing an application for an extension of time in a case in which the Member found that an extension of time was not required, the Member should have taken a different procedural course.  The preferable course was to exercise the Tribunal’s original jurisdiction to hear and decide a claim against the fund which was found by the Tribunal to have been brought within time.
  5. The determination of whether a claim against the fund was made within the time stated in s 472 may fall to the Tribunal.  For example, it is possible to imagine a case in which the Chief Executive does not form the view that the claim is out of time, but that in the course of a contested hearing before the Tribunal, an interested respondent asserts that it was out of time, thereby requiring the Tribunal to decide that issue.  The Tribunal might choose to determine the question of whether the claim was brought within time as a preliminary question or to determine it at the same time as it hears the claim.
  6. In the circumstances which developed in this matter, Campaigntrack contested the Chief Executive’s view that its claim was made out of time.  Campaigntrack was effectively challenging the failure and refusal of the Chief Executive to process a claim which fell within the Tribunal’s jurisdiction and which, because of the Chief Executive’s view, had not been processed and formally referred to the Tribunal.  The substance, as distinct from the form, of Campaigntrack’s application to the Tribunal was for it to rule that the claim had been brought within time.  In the circumstances, different orders should have been made by the Tribunal so as to give effect to its finding that the claim was within time.  These appear at [17] above.
  7. The appropriate course for this Court is to order pursuant to s 153 of the QCAT Act that the matter be returned to the Tribunal (as distinct from the Appeal Tribunal) for reconsideration so as to give effect to the finding made by the Member that Campaigntrack’s claim was made within time.  The making of declarations of the kind mentioned above to the effect that Campaigntrack’s claim was made within time will preserve the Chief Executive’s entitlement, if any, to seek leave to appeal against that declaration and any other orders made by the Tribunal on what might be regarded as a mixed question of fact and law about whether the claim was made in time.
  8. There is no sound reason as to why the matter should not be returned for reconsideration to the same Member of the Tribunal who made the original decision, although the matter might be reconsidered by another Member, depending upon the Tribunal’s arrangements.
  9. It would seem appropriate for the Tribunal to make appropriate directions for the Chief Executive to attempt to settle the claim in accordance with the provisions of PAMDA.  Accordingly, I would expect the Tribunal to make an order in the same or similar form to paragraph 3 of the orders made on 23 July 2014.

Costs

  1. Mr Gannon, the third respondent in the matter before this Court, appeared by counsel at the hearing on 4 November 2015.  Counsel was instructed to appear and to merely preserve Mr Gannon’s position on costs.  Counsel sought leave to file written submissions on the question of costs, depending on the judgment of the Court.
  2. My present view is that no order should be made in respect of Mr Gannon’s costs in relation to the application before this Court.  He did not appear when the matter was before the Appeal Tribunal.  It seems that he was included as third respondent to the Chief Executive’s appeal to the Appeal Tribunal because the orders made by the Tribunal on 23 July 2014 included an order that he and Galacoast be added as respondents to Campaigntrack’s application to extend time.  The Appeal Tribunal was not invited to disturb the order made for the joinder of Mr Gannon.  In circumstances in which Mr Gannon did not play any part in the hearing before the Appeal Tribunal and did not play any active part in the application to this Court, I do not presently see that he has any proper basis to seek his costs in respect of Campaigntrack’s application to this Court for leave to appeal.
  3. Subject to any further submissions in relation to costs, the appropriate order would seem to be that there be no order as to the costs of the third respondent and that costs follow the event as between Campaigntrack and the Chief Executive.  As a result, the only order for costs which I consider appropriate is that:

The first respondent pay the applicant/appellant’s costs of and incidental to the application for leave to appeal dated 5 June 2015 and the appeal.

  1. If no submissions on costs are made within 14 days of the delivery of the Court’s judgment, a costs order should be made in these terms.

Orders

  1. I would make the following orders:
  1. Leave to appeal granted.
  1. Allow the appeal.
  1. Set aside the orders made by the Appeal Tribunal on 6 May 2015.
  1. Return the matter to the Tribunal for reconsideration, and to:

(a)declare the claim had been made within the required time;

(b)declare the “Claim out of time notice” dated 19 September 2012 to be of no effect;

(c)direct the Chief Executive to continue to process the claim and to expedite possible settlement of it and, in the event the claim remains unresolved, to refer the unresolved claim to the Tribunal for determination;

(d)make appropriate orders for the joinder of respondents and for the hearing of the claim in the event it does not settle;

(e)make a precautionary finding that, in the event the Tribunal had concluded that the claim was out of time, then the Tribunal would have extended pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to 15 October 2012 the time for Campaigntrack to file an application for an extension of time; and

  1. If no submissions on costs in accordance with paragraph 52(4) of Practice Direction No 3 of 2013 are made within 14 days of the delivery of the Court’s judgment, then it be further ordered:

“The first respondent pay the applicant/appellant’s costs of and incidental to the application for leave to appeal dated 5 June 2015 and the appeal.”

  1. HENRY J:  I agree with the reasons of Applegarth J and the orders he proposes.

Footnotes

[1] PAMDA, Sch 2.

[2] Section 511(1)(a)(i).

[3] Section 511(1)(b).

[4] The Tribunal does not have a “review jurisdiction”, as that term is used in Chapter 2, Part 1, Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), to review the decision of the Chief Executive to issue a notice under s 473(5).

[5] Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General [2014] QCAT 703 (“Tribunal decision”), [100].

[6] Ibid, [103].

[7] [2014] QCATA 20.

[8] PAMDA, ss 474 – 477 envisages an attempted settlement process involving other parties.

[9] PAMDA, s 10(3)(e)(iii).

[10] This precautionary finding is necessary in the event the Chief Executive successfully appeals from orders 1-4.

[11] Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd & Ors [2015] QCATA 61 (“The Appeal Tribunal’s decision”).

[12] At [45].

[13] Ibid.

[14] At [49].

[15] The appeal Tribunal’s decision, [43].

[16] Ibid, [49].

[17] QCAT Act, s 61(1)(b).

[18] QCAT Act, s 61(1)(c).

[19] Appeal Tribunal’s decision, [45].

[20] [2014] QCA 172.

[21] Appeal Tribunal’s decision, [45].

[22] Respondent’s written submissions para 14.

[23] Watkins v Queensland Building Services Authority [2013] QCAT 535 at [15], citing Queensland Building Services Authority v Rebuild Pty Ltd (unreported, APL 226-13, 23 August 2013, Dr Forbes) [11].

[24] Queensland Building and Construction Commission v Watkins [2014] QCA 172.

[25] At [16].

[26] Appeal Tribunal’s decision, [45].

[27] Section 7 of the QCAT Act defines an enabling Act to include an Act, such as PAMDA, which confers jurisdiction on the Tribunal.

[28] QCAT Act, s 6(7)(a).

[29] Appeal Tribunal’s decision, [49].

[30] Cf PAMDA, s 472A(3).

[31] QCAT Act, s 28(3)(d).

Close

Editorial Notes

  • Published Case Name:

    Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors

  • Shortened Case Name:

    Campaigntrack Victoria Pty Ltd v Chief Executive, Department of Justice and Attorney-General

  • MNC:

    [2016] QCA 37

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Applegarth J, Henry J

  • Date:

    26 Feb 2016

Litigation History

Event Citation or File Date Notes
Primary Judgment - - QCAT
Primary Judgment [2015] QCATA 61 - QCATA
Notice of Appeal Filed File Number: 5714/15 11 Jun 2015 APL362/14
Appeal Determined (QCA) [2016] QCA 37 26 Feb 2016 -

Appeal Status

{solid} Appeal Determined (QCA)