Sandra Field v Neville Pape[2023] QCAT 40

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 3 August 2021 I dismissed the Notice of Dispute referred to the Tribunal on 13 July 2020. On 29 November 2021, Ms Field filed an application for reopening, correction, renewal or amendment. On 16 February 2022 Ms Field filed an application to extend the time to file the reopening application. The application to extend time falls for determination.
2. [2]
   The following issues must be determined:

   1. (a)
      Is the application by Ms Field for reopening or renewal?
   2. (b)
      Is an extension of time required to file the application?
   3. (c)
      Should time be extended?

The background to the dispute and the dismissal of the proceeding

3. [3]
   Ms Field was the tenant of premises from which she operated a gym and fitness centre.  Mr Pape was the lessor of the premises. The parties entered into a lease for a period of 1 year commencing on 5 October 2018. Ms Field vacated the premises on 11 July 2019, prior to the end of the lease period claiming that Mr Pape had breached the lease by, among other things, failing to provide Ms Field with quiet enjoyment.
4. [4]
   Ms Field lodged a Notice of Dispute in accordance with the provisions of the Retail Shop Leases Act 1994 (Qld) (RSL Act). The parties attended a mediation. The issues in dispute could not be resolved at the mediation and the mediator referred the Notice of Dispute to the Tribunal.
5. [5]
   The parties attended a compulsory conference on 3 November 2020. Again, attempts to resolve the dispute were unsuccessful although there is some indication that the parties were considering settlement offers. On 14 May 2021 a directions hearing was held following which directions were made for the further conduct of the proceedings. It seems apparent from the directions that a potential issue had arisen in relation to the jurisdiction of the Tribunal to decide the dispute. Ms Field was directed to:

   1. (a)
      Advise the Tribunal and Mr Pape whether she intended to proceed with the claim, and, if so;
   2. (b)
      File in the Tribunal and give to Mr Pape written submissions addressing the preliminary issue as to whether the Tribunal had jurisdiction to decide the dispute.
6. [6]
   The Tribunal directed that if Ms Field did not comply with the directions, the Notice of Dispute may be dismissed. Ms Field was required to comply with the directions by 28 May 2021. She did not do so.
7. [7]
   On 30 June 2021, Ms Field was directed to comply with the previous directions by 16 July 2021 failing which the Notice of Dispute would be dismissed. Ms Field did not comply with the directions.
8. [8]
   On 3 August 2021 I dismissed the Notice of Dispute. The effect of the order dismissing the Notice of Dispute was that the proceeding was dismissed.
9. [9]
   On 13 August 2021 the decision dismissing the Notice of Dispute was forwarded by the Tribunal registry to each of the parties by email. On 12 August 2021 Ms Field purported to file submissions in accordance with the directions originally made on 14 May 2021. Of course by this stage it was too late. The proceeding was at an end.
10. [10]
    I dismissed the Notice of Dispute in accordance with the powers conferred upon the Tribunal by s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). By s 48(2)(a) of the QCAT Act, the tribunal may, if an applicant fails to comply with an order or direction without reasonable excuse and thereby causes the respondent unnecessary disadvantage, dismiss a proceeding. The tribunal may, by s 48(4), exercise the powers conferred by s 48(2)(a) on its own initiative. In dismissing the proceeding, I was mindful of the disadvantage being caused to Mr Pape as a result of Ms Field’s failure to comply with the Tribunal directions. In particular, Mr Pape was entitled to expect the litigation to be progressed to finalisation expeditiously and, by failing to comply with the directions, Ms Field was not acting in a way consistent with her obligations as an applicant nor was she conducting the proceeding consistently with the objects of the QCAT Act and particularly s 3(b) of the Act.

Is this a reopening application?

11. [11]
    Once the Tribunal makes a final decision, it is functus officio. This means that the power of the Tribunal is spent and cannot be re-exercised. Of course, if a party is unhappy with a final decision they may apply to appeal the decision provided they are able to establish that the decision contained error.
12. [12]
    The QCAT Act however provides a number of very limited exceptions to the doctrine of functus officio. These exceptions are the power of the Tribunal to:

    1. (a)
       Reopen a proceeding;
    2. (b)
       Renew a final decision;
    3. (c)
       Correct or amend a final decision if there is an administrative error in the decision.^[1]
13. [13]
    Neither (b) nor (c) above are relevant for present purposes. A renewal of a decision is only possible in circumstances where it is not possible for the final decision of the Tribunal to be complied with or there are problems with interpreting, implementing or enforcing the decision. That is not the case here. Nor is there any suggestion that there is a clerical error in the final decision.
14. [14]
    That leaves a reopening application. A party may apply for the reopening of a proceeding if the party believes that there is a reopening ground. A reopening ground means:

    1. (a)
       The party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
    2. (b)
       The party would suffer a substantial injustice if the proceeding is not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
15. [15]
    I proceed on the basis that Ms Field’s application is one to reopen the original proceeding for a retail tenancy dispute.

Application to extend time

16. [16]
    The tribunal may, by s 61(1)(b) of the QCAT Act, extend or shorten a time limit fixed by the Act. However, s 61(3) provides that the tribunal cannot extend or shorten a time limit if to do so would cause prejudice or detriment to another party which could not be remedied by an order for costs or damages.
17. [17]
    The relevant principles to be considered when considering an application to extend time are well established:

    1. (a)
       Has the applicant provided a satisfactory explanation for the delay?
    2. (b)
       What is the strength of the applicant’s case?
    3. (c)
       What prejudice, or disadvantage, will be caused to the other party if the extension of time is allowed?
18. [18]
    Ms Field was required to file the application to reopen a proceeding within 28 days after receiving the decision dismissing the Notice of Dispute. As I have earlier observed the parties received the decision by email on 13 August 2021. Accordingly, Ms Field was required to have filed the reopening application by 10 September 2021. The application was in fact filed on 29 November 2021, some 80 days late. The delay in filing the application is not an insignificant one, nor does Ms Field offer any explanation for such delay. This factor tells against the granting of the extension of time.
19. [19]
    Ms Field’s prospects of success in the reopening application are, for the reasons that follow, poor. Although Ms Field has not been directed to file submissions addressing the reopening application it is apparent from the material filed to this point that there is very little prospect that Ms Field will be able to establish a reopening ground. Firstly, the decision to dismiss the proceeding was not made following a hearing which Ms Field did not attend. The decision was made on the papers as a result of Ms Field’s failure to comply with Tribunal directions. The first reopening ground is therefore not applicable. Secondly, there is no suggestion that significant new evidence has arisen which was not reasonably available when the proceeding was first heard and decided. And in any event, the matter was not ‘heard and decided’ as contemplated by the reopening provisions in the QCAT Act.^[2] These factors tell against granting the extension of time.
20. [20]
    As to the issue of prejudice to Mr Pape, I do not consider this factor either supports or does not support the granting of an extension of time.
21. [21]
    Finally, there is the matter of the substantive retail tenancy dispute between the parties. As I have earlier observed, it is apparent from the directions made on 14 May 2021 that the Tribunal identified a potential issue concerning jurisdiction. The Tribunal is a creature of statute and has only those powers conferred upon it by the QCAT Act or the relevant enabling Act. In respect of the substantive dispute between the parties, the enabling Act was the RSL Act. The Tribunal has jurisdiction to decide retail tenancy disputes.^[3] A retail tenancy dispute is a dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease.^[4] A retail shop lease is a lease of a retail shop.^[5] A retail shop means premises that are either situated in a retail shopping centre or used wholly or predominantly for the carrying on of a retail business.^[6] A retail business means a business prescribed by regulation to be a retail business.^[7] A gymnasium or fitness centre is not prescribed by regulation to be a retail shop nor is there any suggestion that the leased premises were situated in a retail shopping centre. Accordingly, there seems to be a very significant question mark as to whether the dispute between the parties is a retail tenancy dispute in respect of which the Tribunal has jurisdiction. I make these latter comments as observations only. My substantive determination is confined to the reopening application.
22. [22]
    For the reasons I have set out, I decline to extend the time to file the reopening application. It follows that the application to extend time is refused and the reopening application is dismissed.