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Watkins v Goswami QCAT 194
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Watkins v Goswami & Anor  QCAT 194
Other minor civil dispute matters
23 July 2019
21 June 2019
ORDER & DIRECTIONS:
Procedural requirements are waived for Debbie Watkins to seek leave under section 49 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to start a new appeal proceeding against the orders of the Tribunal made on 14 March 2018 in minor civil dispute proceeding Richlands T19/18 and T20/18.
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where appeal proceeding dismissed and reopening sought – whether reopening available
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 49, s 136
Darragh v Davis  QCAT 181
Lindgren v Aaron Trigg Painting  QCATA 267
Thomas v Hahnon  QCATA 6
APPEARANCES & REPRESENTATION:
Self-represented, by phone
First respondent appeared for both respondents, by phone
REASONS FOR DECISION
- In this proceeding, Mrs Watkins seeks to reopen an appeal proceeding, APL064-18.
- The background is as follows. Mrs Watkins owns a rental property. She let it to Mr and Mrs Goswami. Mr and Mrs Goswami brought a tenancy proceeding – classified as a ‘minor civil dispute’ and given the case numbers Richlands T19/18 and T20/18 – in the Tribunal against Mrs Watkins. On 14 March 2018 the Tribunal decided the matter substantially in the favour of Mr and Mrs Goswami.
- On 16 March 2018, Mrs Watkins filed an application for leave to appeal or appeal form in the Tribunal in respect of the 14 March 2018 decision. On its face, it was an appeal without an application for leave to appeal. However, had it proceeded to hearing, it is likely that it would have been treated as including an application for leave to appeal. This is because such leave is required before an appeal can proceed in respect of a minor civil dispute.
- The appeal proceeding did not reach a hearing, though, because it was dismissed by the Appeals Tribunal on 18 June 2018. The order dismissing the appeal proceeding indicated that the dismissal was because of non-compliance with directions. An examination of the earlier directions indicates that the member constituting the Appeals Tribunal must have found that Mrs Watkins had failed to comply with a direction made on 27 March 2018 to file certain submissions. The due date for compliance was 8 May 2018, but by further direction on 21 May 2018 the date for compliance was extended to 4 June 2018.
- The dismissal must have been under section 48 of the QCAT Act. There is no other provision that would allow dismissal for non-compliance with directions.
- Tribunal records indicate that on 20 June 2018 the dismissal order was emailed to Mrs Watkins, care of her husband Kevin Watkins who was representing her in the proceeding. He responded the same day by email, saying that all directions had been followed ‘to the letter’. The Tribunal’s registry responded by email, also on the same day, informing Mr Watkins among other things that ‘… as the matter is finalised, you will need to make an application for a reopening …’.
- Mrs Watkins filed an application for reopening of the appeal proceeding on 18 July 2018. An extension of time was subsequently granted by the Tribunal for the filing of that application.
- I heard the reopening application on 21 June 2019.
- Part of the basis for the reopening application is that Mrs Watkins says that Mr Watkins phoned and emailed the Tribunal’s registry on 31 May 2018 advising, in effect, that Mrs Watkins had nothing to add to her earlier material, and that they believed that this constituted compliance with the directions. However, no copy of the email has been produced by Mrs Watkins in the reopening proceeding. At the reopening hearing, Mr and Mrs Watkins’ account of events was hard to follow. They seemed to say that the email was part of a paper file at their daughter’s house in Brisbane. Mr and Mrs Watkins live in New Zealand. Nonetheless, it remains puzzling that no copy of the email has been produced, bearing in mind the length of time the reopening proceeding has been on foot, and the volume of other past emails provided by Mr Watkins.
- I should also add that there has been continuing controversy in the material provided by the parties about which of Mrs Watkins and Mr Watkins was the ‘landlord’. At the hearing, I clarified that the property is registered in the name of Mrs Watkins and she signed the lease with Mr and Mrs Goswami, but Mr Watkins was the main contact point for any issues that arose during the tenancy.
Is it possible to reopen the appeal proceeding?
- Reopening is provided for in Division 7 of Part 7 of Chapter 2 of the QCAT Act. Section 136 is the first section within the Division, and it says:
This division applies to a proceeding, other than an appeal under part 8, division 1, that has been heard and decided by the tribunal.
- Part 8, Division 1 is also in Chapter 2. It provides for appeals including appeals where leave is required for the appeal to proceed. So the appeal proceeding brought by Mrs Watkins was ‘an appeal under part 8, division 1’ referred to in section 136.
- It is clear, and undisputed, that Mrs Watkins’ appeal proceeding was not heard and decided. It was dismissed before it reached any hearing. There was no ‘assessment and determination of the merits’ of the appeal proceeding.
- It is therefore not apparent how the appeal proceeding could be reopened because section 136 appears to contemplate reopening only in cases other than appeals, and, further, only when such cases have been heard and decided. So there are two barriers to reopening.
- However, there have been two cases where the Tribunal has read section 136 as allowing, or possibly allowing, an appeal proceeding to be reopened, provided that the appeal proceeding has not been heard and determined. The first was Lindgren v Aaron Trigg Painting. That was also a case involving the dismissal of an appeal proceeding from a minor civil dispute decision. However, the Appeal Tribunal said it was questionable whether reopening was available, and decided that the preferable avenue was under section 49 of the QCAT Act (which I will discuss later). The second case was Thomas v Hahnon. That case also involved an appeal proceeding against a minor civil dispute decision. The appeal proceeding was dismissed due to the failure of the appellant to attend the hearing. In that case, the Appeals Tribunal concluded that reopening was available, but that there was also an alternative basis for reinstating the appeal proceeding.
- In my view, the interpretation of section 136 as allowing the reopening of certain appeal proceedings would be sound only if the comma in section 136 after ‘division 1’ had been omitted.
- It seems to me that the plain and better interpretation of section 136 is that reopening is available only for a proceeding that is not an appeal proceeding. Further, reopening is available only for such a proceeding that has been heard and determined.
- I interpret section 136 accordingly, and therefore conclude that Mrs Watkins’ appeal proceeding cannot be reopened.
Should the matter proceed to a section 49 determination?
- Section 49 of the QCAT Act applies where a proceeding has been dismissed under section 48 (as well as in some other circumstances). Section 49(2) says that another proceeding of the same kind relating to the same matter cannot be started before the tribunal without the leave of the president or deputy president. Section 49(3) deals with the circumstances in which such leave may be given, and section 49(4) allows the president or deputy president to extend time for starting the new proceeding.
- As I have mentioned, the section 49 avenue was the one actually used in Lindgren v Aaron Trigg Painting.
- In the present case, the reopening application could be dismissed as misconceived under section 47 of the QCAT Act. However, given that Mrs Watkins was sent down the reopening path by the Tribunal’s registry, and she has filed a good deal of material that goes to the general question of whether she should be permitted to pursue an appeal proceeding, I consider that the better course is to treat the reopening application as a request for leave under section 49 to bring a new appeal proceeding. This is without forming any view on whether Mrs Watkins has a strong case for a grant of leave.
- For this purpose, it is necessary to consider whether a waiver of procedural requirements under section 61 of the QCAT Act is warranted. Such waiver can be done only if Mr and Mrs Goswami would not be caused prejudice or detriment that could not be remedied through an order for costs or damages.
- Mrs Watkins has not made a request for leave under section 49. There is no prescribed form for doing so, but at least a written request with particulars would be required.
- I consider it appropriate to waive the procedural requirement for a written leave application. I do not consider that this would cause detriment or prejudice to Mr and Mrs Goswami. They have had, and have taken, the opportunity in the reopening proceeding to put forward material opposing any resumption of the appeal proceeding.
- It is also appropriate to make directions under section 62 of the QCAT Act for the Tribunal’s registry to refer the matter to the President or Deputy President for a decision on whether to grant leave under section 49 of the QCAT Act.
- As the reopening application was misconceived, but the misconceived application was suggested by the Tribunal’s registry, the appropriate course is to reorient the matter down the appropriate channel.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(3)(a)(i).
Darragh v Davis  QCAT 181, .
 Division 1 of Part 5 of Chapter 2.
 Part 5 of Chapter 2.
  QCATA 267.
 Ibid .
  QCATA 6.
 Ibid .
  QCATA 267.
 QCAT Act, s 61(3).
- Published Case Name:
Debbie Watkins v Gemma Goswami & Anor
- Shortened Case Name:
Watkins v Goswami
 QCAT 194
23 Jul 2019