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- Unreported Judgment
Johnson v Department of Transport and Main Roads QCAT 210
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Johnson v Department of Transport and Main Roads  QCAT 210
BRUCE MICHAEL JOHNSON
DEPARTMENT OF TRANSPORT AND MAIN ROADS
General administrative review matters
Decision made on 2 April 2019
Reasons delivered on 18 April 2019
On the papers
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to review a decision filed prematurely – whether jurisdictional or procedural matter
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(a), s 4(c), s 61(1)(c)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 7(1)(a)
Transport Operations (Road Use Management) Act 1995 (Qld), s 65A(2).
Bobak v Department of Transport and Main Roads  QCAT 398, distinguished
McDonald v Department of Transport and Main Roads  QCAT 679, distinguished
G C Hartridge
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- These reasons relate to an aspect of a review proceeding. The substantive review proceeding brought by Mr Johnson relates to a decision made by the Department of Transport and Main Roads to cancel his approval as a person who can approve vehicle modifications.
- The aspect in question is whether the review can proceed, or whether certain other steps would be required before it could proceed, having regard to the fact that Mr Johnson applied prematurely to the Tribunal for a review.
- The following matters appear not to be in dispute.
- On 4 September 2018 the Department wrote to Mr Johnson advising that his approval had been cancelled. (This followed earlier communications which it is not necessary to describe here). The letter of 4 September 2018 advised Mr Johnson of his right to ask for the decision to be reviewed (by applying to an officer of the Department) and his associated right to apply to QCAT for a stay of the Department’s decision.
- On or about 3 October 2018 Mr Johnson gave the Department a document headed ‘APPEAL FOR DECISION REVIEW – 2 OCTOBER 2018’. It seems that the Department treated this, appropriately, as a request for an internal review by the Department.
- On 8 October 2018 the Department wrote to Mr Johnson enclosing an engineering report which Mr Johnson had said he had not received.
- On 25 October 2018 Mr Johnson filed in QCAT an application to review a decision and an application to stay a decision. The application to review a decision identified the decision to be reviewed as the one made on 4 September 2018. The application to stay a decision presumably related to the same decision.
- On 29 October 2018 QCAT directed Mr Johnson to file ‘a copy of the reviewable decision’ by 9 November 2018.
- On 8 November 2018 Mr Johnson filed a copy of a letter from the Department dated 31 October 2018 headed ‘Notice of review of original decision to cancel approval as an Approved Person…’. This letter explained that the Department had conducted a review but decided to confirm the decision dated 4 September 2018. The letter went on to advise that Mr Johnson could apply to QCAT within 28 days for a review.
- In a covering note dated 8 November 2018, filed with the letter, Mr Johnson said:
Please find copy of the latest “Decision Notice” that is QCAT reviewable dated 31 October 2018.
This is well within the 28 day period and is essentially the same as the previous notice in the context of a “decision”.
- I do not know whether Mr Johnson gave a copy of that covering note to the Department. Quite possibly he did not, as he had not been directed by QCAT to give a copy of the reviewable decision to the Department.
- On 13 November 2018 QCAT directed (by Direction 1) that the application to review a decision and the application to stay a decision were to proceed as applications to review and stay the decision ‘to cancel the approvals of Bruce Michael Johnson as an approved person, which was confirmed on internal review on 31 October 2018’. QCAT also made directions for the filing of submissions relating to the stay application, and the filing of material relating to the review. In compliance with those directions, the Department filed submissions and, on 18 December 2018, a folder of material. Mr Johnson also filed documents. A compulsory conference was held on 4 March 2019. The matter did not settle. Subsequently, the matter was listed for a two-day hearing on 30 April 2019 and 1 May 2019. Directions had been made at the conclusion of the compulsory conference about the filing of evidence and submissions in advance of the hearing.
- Meanwhile, on 6 March 2019 the Department emailed QCAT and Mr Johnson raising an issue of jurisdiction. The email advised that the Department had not been served by Mr Johnson with a sealed copy of the application to review a decision, and so it had only recently come to the attention of the Department that the application to review a decision had been filed before the internal review decision (of 31 October 2018) had been made. The Department referred to legislation and case law in explaining its view that QCAT lacks jurisdiction in that situation. The Department suggested to Mr Johnson that he could withdraw the existing application to review a decision, and make a fresh application to review a decision (relating to the 31 October 2018 decision) together with an application for an extension of time to bring that fresh review application. The Department indicated that this would remove the need for it to file a strike out application.
- This prompted Mr Johnson to file an application to extend or shorten a time limit or for waiver of compliance with procedural requirement form on 8 March 2019. In that application Mr Johnson sought, if possible, waiver of ‘the procedural requirement that “application” date must be after the date of review decision notice…’ or, in the alternative, orders for the existing application to review a decision to be struck out, for Mr Johnson to file a new application, and for the documents filed in the existing proceeding to be carried over to the new proceeding.
- In submissions dated 19 March 2019, the Department argued that waiver was not open as the problem went to jurisdiction. Instead, the Department submitted, an appropriate course would be for QCAT to strike out the application to review a decision, grant an extension of time for Mr Johnson to file a fresh application to review (relating to the 31 October 2018 decision), and permit the parties to request that material already filed in the existing proceeding be treated as having been filed in the fresh proceeding.
The decision made on 2 April 2019
- On 2 April 2019 I made eight directions. The first two are set out on the cover page of this document. Upon reflection, I consider that the second should have been termed an order rather than a direction. Direction 3 confirmed the hearing dates of 30 April 2019 and 1 May 2019. Directions 4 to 7 adjusted an earlier timetable for the filing of evidence and submissions, while Direction 8 corrected a typographical error in an earlier direction.
The request for reasons
- On 4 April 2019 the Department requested written reasons for the decision made on 2 April 2019. I assume that the request relates to the decision numbered 2 on the cover page of this document, rather than to the other procedural directions. If I am mistaken about that, I would decline to give reasons for Directions 3 to 8 as QCAT is not required to provide reasons for directions made under section 62(1) of the QCAT Act.
- The Department submitted that a person’s right to seek a QCAT review in a matter such as Mr Johnson’s arises only once an internal review decision has been made: section 65A(2) of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM Act’). That section refers to a person applying to QCAT for the review of a ‘reviewed decision’. The Department also pointed to section 34(6) of the Transport Planning and Coordination Act 1994 (Qld) which provides, relevantly, that in an application to QCAT for a review, the decision subject to review is the reviewed decision and not the original decision. Here, the Department submitted, the original decision was the one made on 4 September 2018, and the internal review decision – the ‘reviewed decision’ – was the one made on 31 October 2018. Accordingly, ‘the application made in this case on 25 October 2018, apparently in regard to the original decision dated 4 September 2018… is not within the jurisdiction of the Tribunal’.
- I accept those submissions.
- However, I do not accept that the only appropriate course in response would be to strike out the application to review a decision and to facilitate a fresh application to review a decision.
- I consider that the preferable course is to treat the application to review a decision filed on 25 October 2018 as an application to review the 31 October 2018 reviewable decision.
- I consider that this course is available, for the following reasons. The starting point is to recognise that an application that is permitted by an enabling Act – such as the TORUM Act – must be in a form substantially complying with the rules, must state the reasons for the application, and must be filed in the registry. An application must be in ‘the approved form’, and so on. However, the Tribunal may waive compliance with a procedural requirement under the QCAT Act or the rules.
- In Mr Johnson’s case, it has been clear all along that he has been seeking a review by QCAT of the Department’s cancellation of his approval. It is not apparent why he lodged the application to review a decision prematurely, but it should be borne in mind that Mr Johnson is self-represented. He is an engineer, not a lawyer. In circumstances where, as here, a person can apply to QCAT for a stay order of an original decision pending an internal review, it is not uncommon for applicants to mistakenly file an application to review a decision as well as an application to stay a decision.
- Mr Johnson went on to file various documents within 28 days of when he would have received the 31 October 2018 review notice, and they could be viewed collectively as an application for the review of that decision. However, it is sufficient to have regard just to the covering note of 8 November 2018 from which I quoted in paragraph 10 above. As I indicated earlier, the Department may not have a copy of that document. However, the covering note is in substance an application for review of the 31 October 2018 decision. It is not in the approved form but in my view the requirement for filing in the approved form is a procedural requirement, as is the requirement for the application to state the reasons for the application.
- Within the 28 day period from when Mr Johnson received the 31 October 2018 review notice, he had filed in QCAT (and presumably given the Department copies of) documents explaining why he disagreed with the Department’s cancellation of his approval. These including a substantial ‘Appeal’ document together with associated documents.
- An object of the QCAT Act is to have QCAT deal with matters in a way that is economical, informal and quick, as well as fair and just. QCAT must also facilitate access to its services throughout Queensland, and ensure that proceedings are conducted in an informal way that minimises costs to parties. It seems to me that nothing would be gained by striking out the existing proceeding, and requiring Mr Johnson to fill out further forms and pay a further filing fee, and transferring documents from one file to another, in circumstances where those steps can be avoided without any apparent injustice to the Department.
- This outcome can be achieved, in my view, under section 61(1)(c) of the QCAT Act, in effect waiving compliance with the requirement for a new application in the approved form, by treating the application to review a decision filed on
25 October 2018 as an application to review the 31 October 2018 decision.
- The Department had drawn my attention to some QCAT cases where proceedings were struck out because there had been no internal review conducted. However, in my view the options in those cases were narrower because there had still not been an internal review by the time the question of jurisdiction was considered.
- In the present case, I consider that the application to stay a decision should be treated as an application to stay the 31 October 2018 decision rather than the 4 September 2018 decision. No decision had been made in relation to the stay application by the time the 31 October 2018 decision was made. Once the 31 October 2018 decision was made, it became the operative decision. QCAT made a stay order on 21 December 2018.
- Finally, it was appropriate to vacate Direction 1 issued on 13 November 2018. That direction was the one that the application to review a decision and the application to stay a decision would proceed in relation to the decision that was confirmed on internal review on 31 October 2018. The decision was better expressed in the terms contained in the order made on 2 April 2019, in light of submissions from the Department pointing out that a review by QCAT would relate to the reviewed decision rather than the original decision, notwithstanding that both decisions were to the same effect.
- Factors of speed, informality and economy favour a decision enabling the already well-advanced proceeding to continue despite the fact that the application to review a decision was filed prematurely.
 QCAT Act, s 122(4).
 The Department’s written submissions of 19 March 2019, .
 QCAT Act, s 33(2).
 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 7(1)(a).
 QCAT Act, s 61(1)(c).
 Ibid, s 3(b).
 Ibid, s 4(a), s 4(c).
 Bobak v Department of Transport and Main Roads  QCAT 398 and McDonald v Department of Transport and Main Roads  QCAT 679.
- Published Case Name:
Johnson v Department of Transport and Main Roads
- Shortened Case Name:
Johnson v Department of Transport and Main Roads
 QCAT 210
18 Apr 2019