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Reihana v Beenleigh Show Society[2015] QCATA 170

Reihana v Beenleigh Show Society[2015] QCATA 170

CITATION:

Reihana v Beenleigh Show Society [2015] QCATA 170

PARTIES:

TONI COLIN REIHANA

(Applicant/Appellant)

v

BEENLEIGH SHOW SOCIETY

(Respondent)

APPLICATION NUMBER:

APL477-15

MATTER TYPE:

Appeals

HEARING DATE:

24 November 2015

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

23 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

  1. The application for leave to appeal is dismissed for want of jurisdiction.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  –  APPEAL TRIBUNAL – JURISDICTION – where the applicant filed an application in relation to a minor civil dispute before the Tribunal exercising its original jurisdiction (MCDT749/13) – where the applicant failed to attend the date listed for the hearing – where the applicant filed an application to reopen the original decision – where the application to reopen the original decision was refused by the Tribunal – where the applicant filed an application for leave to appeal and appeal against the decision of the Tribunal, exercising its original jurisdiction, to refuse to reopen the proceedings (APL450-15) – where the application for leave to appeal and appeal was filed outside the prescribed time limit – where the Senior Member directed the applicant to file an application for an extension of time – where the applicant filed an application for leave to appeal and appeal against the directions requiring the applicant to file an extension of time – whether the Appeal Tribunal has jurisdiction to hear an application for leave to appeal and appeal from a decision of the Appeal Tribunal.

Acts Interpretation Act 1954 (Qld), ss 14B, 32A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 8, 32, 122, 142, 150, 161, 165, sch 3

Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1

Bruce Moon v Office of State Revenue (unreported, Queensland Civil and Administrative Appeal Tribunal, APL213-15, 4 December 2015, Carmody J and Member Browne)

Conde v Gilfoyle & Anor [2010] QCA 109

Eileen Reed v Department of Public Housing and Works (unreported, Queensland Civil and Administrative Appeal Tribunal, APL484-15, 20 November 2015, President Thomas)

Mobile Building System International Pty Ltd v Hua [2014] QCATA 336

R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529

Special Projects (Qld) Pty Ltd v Simmons [2012] QCA 205

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

  1. [1]
    These are reasons for decision, in respect of the Appeal Tribunal’s refusal to grant leave to appeal on 24 November 2015, issued pursuant to s 122 of the QCAT Act. It is unfortunate that the Appeal Tribunal is compelled to give written reasons where the application for leave to appeal and appeal was vexatious, frivolous and doomed to fail.
  2. [2]
    The applicant filed an application for leave to appeal and appeal on 26 November 2015 against the decision of the Appeal Tribunal (APL450-15), constituted by Senior Member Stilgoe OAM, to issue directions requiring the applicant to file an application for an extension of time within which to file an application for leave to appeal and appeal against a refusal to reopen proceedings in respect of a decision of the Tribunal exercising its original jurisdiction. The extension of time in APL450-15 has since been refused.
  3. [3]
    The applicant has failed to consider the preliminary jurisdictional question of whether the Appeal Tribunal has jurisdiction to hear and determine applications for leave to appeal and appeal from the Appeal Tribunal.
  4. [4]
    The Appeal Tribunal has considered the jurisdiction of the Appeal Tribunal to hear appeals from the Appeal Tribunal in several recent cases.  In this respect, the Appeal Tribunal refers the applicant to Mobile Building System International Pty Ltd v Hua [2014] QCATA 336 (President Thomas); Eileen Reed v Department of Public Housing and Works (unreported, Queensland Civil and Administrative Appeal Tribunal, APL484-15, 20 November 2015, President Thomas); Bruce Moon v Office of State Revenue (unreported, Queensland Civil and Administrative Appeal Tribunal, APL213-15, 4 December 2015, Carmody J and Member Browne). In each of the above decisions, the Appeal Tribunal found that it lacked jurisdiction to hear and determine applications for leave to appeal and appeal from the Appeal Tribunal.
  5. [5]
    The Appeal Tribunal acknowledges that the abovementioned decisions, being earlier decisions of the Appeal Tribunal, do not bind the Appeal Tribunal. Nevertheless, they constitute highly persuasive precedent and should be followed to ensure legal certainty and predictability, unless the decisions are clearly wrong or unfounded. 
  6. [6]
    As the decisions of Mobile Building System International Pty Ltd, Bruce Moon, and Eileen Reed are plainly correct, this application for leave to appeal and appeal may be disposed of expediently.
  7. [7]
    The jurisdiction of the Appeal Tribunal is prescribed under ss 26, 27 and 142 of the QCAT Act.  Section 142(1) of the Act provides that:

A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding.

  1. [8]
    Section 8 and Schedule 3 of the QCAT Act defines “the tribunal” to mean “the Queensland Civil and Administrative Tribunal established under s 161 of the Act”.  It also contains a note referring the reader to s 165 of the Act. 
  2. [9]
    Section 165(3) of the QCAT Act provides that:

For an appeal, or a proceeding relating to an application for leave to appeal to the appeal tribunal, a reference in this act to the tribunal includes a reference to the appeal tribunal constituted, or to be constituted, for the appeal proceeding.

  1. [10]
    Section 165(4) of the QCAT Act provides that:

Subsection (3) does not limit another reference in this Act to the tribunal being taken to include a reference to the tribunal as constituted by the appeal tribunal, if the context requires or permits.

  1. [11]
    The applicant may only file an application for leave to appeal and appeal from a decision of the Appeal Tribunal to the Appeal Tribunal if the noun “tribunal” in s 142(1), which is used in contradistinction with “appeal tribunal” in the same section, is properly construed to include the Appeal Tribunal.
  2. [12]
    A definition in an Act applies except so far as the context or subject matter otherwise indicates or requires.[1]  The approach adopted by the courts and tribunals of Queensland in applying s 32A of the Acts Interpretation Act 1954 (Qld) was described by the Court of Appeal in Special Projects (Qld) Pty Ltd v Simmons:

Since what is in issue is the meaning of a defined term, it is also relevant to bear in mind that that s 32A of the Acts Interpretation Act 1954 (Qld) provides that definitions in an Act apply “...except so far as the context or subject matter otherwise indicates or requires.” The Court has previously emphasised that this suggests a flexible approach; it requires regard to be had, not only to context, but also to the subject matter of the provision in which the defined term is used, and it contemplates that application of the definition may be affected not only where it is required by the context, but also where the context or subject matter merely “otherwise indicates” (footnotes omitted).[2]

  1. [13]
    It is not necessary to demonstrate that the application of a defined meaning to a term in a statute is manifestly absurd or unreasonable before its natural and ordinary meaning will be applied.  It is sufficient for it to be merely contraindicated considering the structure, grammar and context of the Act.

Structure and Public Policy

  1. [14]
    The QCAT Act provides an aggrieved party to a proceeding before the Tribunal, exercising its original jurisdiction, with two alternative avenues of appeal:
    1. the aggrieved party may file an application for leave to appeal or appeal to the Appeal Tribunal under Division 1, Part 8, Chapter 2 of the QCAT Act; or
    2. the aggrieved party may file an application for leave to appeal or appeal to the Court of Appeal of the Supreme Court of Queensland under Division 2, Part 8, Chapter 2 of the QCAT Act. 
  2. [15]
    If the aggrieved party appeals to the Appeal Tribunal, and is not satisfied with the decision of the Appeal Tribunal, there is no obvious facility enabling further appeal to the Appeal Tribunal in Division 1, Part 8, Chapter 2. 
  3. [16]
    However, ss 150(1)-(2) of Division 2, Part 8, Chapter 2 provide that a party who has appealed to the Appeal Tribunal, who is dissatisfied with its final decision or decision to refuse an application for leave to appeal, may file an application for leave to appeal and appeal to the Court of Appeal on a question of law.  This vests the Court of Appeal with an appeal stricto sensu jurisdiction to hear applications for leave to appeal or appeals from a decision of the Appeal Tribunal.
  4. [17]
    The absence of any clear statutory facility permitting an application for leave to appeal and appeal to the Appeal Tribunal from the Appeal Tribunal, in contrast with the existence of such a facility for an appeal to the Court of Appeal, militates strongly in favour of construing “tribunal” in s 142(1) of the QCAT Act to include only the Tribunal exercising its original jurisdiction. 
  5. [18]
    Indeed, the public policy in favour of the finality and non-multiplication of legal proceedings militates in favour of granting only one appeal to the Appeal Tribunal. To allow otherwise would facilitate “member-shopping”, contrary to the mandate of QCAT “to deal with matters in a way that is… economical… and quick”.[3]  It would also bring the administration of justice into disrepute by permitting collateral attacks which erode the legitimacy of the original decision. Judicial (or quasi-judicial) comity should also preclude those of equivalent jurisdiction within the same position on the judicial (or quasi-judicial) hierarchy from overturning the decision of another member, unless that member is administering an inferior jurisdiction.  
  6. [19]
    Accordingly, the structure of the QCAT Act, and relevant public policy considerations, militates against the applicant’s preferred construction.

Grammatical Construction

  1. [20]
    Examining the text of Division 1, Part 8, Chapter 2 of the QCAT Act, it is clear the statute uses the terms “appeal tribunal” and “tribunal” differentially.  It refers to appeals from the “tribunal” to the “appeal tribunal”. In contrast, s 150 refers to appeals from the “appeal tribunal” to the Court of Appeal.
  2. [21]
    It should not be presumed that parliamentary draftspersons, with a robust understanding of syntactical presumptions and the meaning of legal words, would arbitrarily employ the terms “appeal tribunal” and “tribunal” differently throughout the Act, but intend both to have identical semantic meaning.
  3. [22]
    Therefore, the differential use of “appeal tribunal” and “tribunal” in Part 8, Chapter 2 of the QCAT Act strongly implies that the Parliament intended the terms to possess different meaning.  If Parliament had intended the terms “appeal tribunal” and “tribunal” to have the same meaning in Part 8, Chapter 2 of the QCAT Act, there would have been no need to differentiate them.
  4. [23]
    The Appeal Tribunal should also invoke the maxim expressum facit cessare tacitum, which means “what is expressed makes what is implied stay silent”.  This syntactical presumption, often wrongly conflated with expressio unius exclusio alterius, has a special aspect in the context of procedural law, described by the High Court of Australia in Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7, where Duffy CJ and Dixon J held:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might have relied on the same power.

  1. [24]
    This was further expressed in R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550, where Dixon J held:

[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. 

  1. [25]
    Section 150 confers a procedure for appeals from the Appeal Tribunal to the Court of Appeal. The structure of the QCAT Act, and applicable policy considerations, support the construction that s 150 is the exclusive facility for appeals from decisions of the Appeal Tribunal in the QCAT Act. 
  2. [26]
    Accordingly, it should not be readily inferred that s 142, a general provision permitting appeals to the Appeal Tribunal from decisions of the Tribunal, also confers additional jurisdiction for it to hear and determine appeals from the Appeal Tribunal. 

Context

  1. [27]
    Section 14B(1)(a) of the Acts Interpretation Act 1954 (Qld) permits the Appeal Tribunal to consider extrinsic material if a provision is ambiguous or obscure.  Extrinsic material includes an explanatory note or memorandum relating to the bill that contained the ambiguous provision, or material in an official record of proceedings in the Legislative Assembly. 
  2. [28]
    The Explanatory Memorandum to the Queensland Civil and Administrative Tribunal Bill 2009 (Qld) provides that:

Clause 142 enables a party to appeal against a decision of the tribunal to the appeal tribunal…

Clause 150 sets out the decisions of the appeal tribunal which may be appealed to the Court of Appeal…[4]

  1. [29]
    The Explanatory Memorandum provides limited assistance, except insofar as it does not contain any material suggesting that s 142 is intended to permit appeals from the Appeal Tribunal to the Appeal Tribunal.
  2. [30]
    The Second Reading Speech of the Hon Cameron Dick, Attorney-General and Minister for Industrial Relations, the Member of Parliament responsible for introducing the Queensland Civil and Administrative Tribunal Bill 2009 (Qld) into the Legislative Assembly, is more illuminating. 
  3. [31]
    The Attorney-General stated that:

QCAT will have three types of jurisdiction: original, review and appellate. In its original jurisdiction, QCAT will make decisions for the first time about matters including civil disputes between parties, guardianship and administration matters and disciplinary matters. In its review jurisdiction, QCAT will review a wide range of decisions of government agencies and statutory authorities. Matters in the review jurisdiction will generally be dealt with by way of a fresh hearing. This means the tribunal will not be confined to matters that were before the decision maker and may consider new material whether or not it existed at the time the original decision was made. This is the current approach taken in most existing tribunals and similar tribunals in other jurisdictions. QCAT will also have an internal appeal jurisdiction, enabling parties to appeal from an original decision of the tribunal to the appeal tribunal….

Decisions of QCAT may be appealed to the appeal tribunal within QCAT. A party may then appeal a decision of the appeal tribunal to the Court of Appeal on a question of law with leave of the court… (emphasis added)[5]

  1. [32]
    The italicised section of the extract of the Record of Proceedings strongly indicates that the Legislative Assembly intended, in enacting the QCAT Act, for any appeal from a decision of the Appeal Tribunal to be made to the Court of Appeal under s 150 of the Act. 

Conclusion

  1. [33]
    The structure of the QCAT Act establishes that an aggrieved party may appeal to the Appeal Tribunal or the Court of Appeal from certain decisions of the Tribunal exercising its original jurisdiction.  If the party elects to appeal to the Appeal Tribunal, and remains dissatisfied with its decision, the party may then appeal to the Court of Appeal.
  2. [34]
    This limited appellate pathway from the Appeal Tribunal promotes finality and non-multiplication of legal proceedings.  It also ensures that litigants do not engage in “member-shopping”, maintains public confidence in the administration of justice by preventing collateral attacks against the original decision, and promotes judicial (or quasi-judicial) comity.
  3. [35]
    The differential language deployed in Part 8, Chapter 2 of the QCAT Act demonstrates that the Legislative Assembly intended the phrases “tribunal” and “appeal tribunal” to possess asynonymous meanings.  Furthermore, the syntactical presumption of expressum facit cessare tacitum indicates that the section should not be interpreted to confer additional jurisdiction on the Appeal Tribunal, where it is already vested in the Court of Appeal.
  4. [36]
    The Second Reading Speech of the Member of responsible for introducing the Queensland Civil and Administrative Tribunal Bill 2009 (Qld) into Parliament demonstrates that the legislature intended any appeal from the Appeal Tribunal to be filed with the Court of Appeal.
  5. [37]
    In such circumstances, the structure, policy, grammar, and context of the QCAT Act cogently displace the presumption that the definition of “tribunal” provided in s 165(3) of the QCAT Act should apply to the noun “tribunal” in s 142(1).  This also accords with established precedent.
  6. [38]
    The Appeal Tribunal has no jurisdiction to determine an application for leave to appeal or appeal from a decision of the Appeal Tribunal. 
  7. [39]
    Senior Member Stilgoe OAM was the member properly appointed to constitute the Appeal Tribunal to hear APL 450-15.  The decision to issue directions requiring the respondent to file an application for an extension of time was a decision of the Appeal Tribunal. 
  8. [40]
    The Appeal Tribunal has no jurisdiction to hear the application for leave to appeal and appeal filed by the applicant on 26 November 2015, constituting the originating document in APL477-15.  Leave to appeal should be refused.

ORDER

  1. [41]
    It is the decision of the Appeal Tribunal that the application for leave to appeal and appeal is dismissed for want of jurisdiction.

Footnotes

[1] Acts Interpretation Act 1954 (Qld), s 32A.

[2] Special Projects (Qld) Pty Ltd v Simmons [2012] QCA 205 at [26]; see further Conde v Gilfoyle & Anor [2010] QCA 109 at [20].

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b).

[4]  Explanatory Memorandum, Queensland Civil and Administrative Tribunal Bill 2009 (Qld), 61, 63.

[5]  Queensland, Parliamentary Debates, Legislative Assembly, 19 May 2015, 325 (Hon Cameron Dick, Attorney-General and Minister for Industrial Relations).

Close

Editorial Notes

  • Published Case Name:

    Reihana v Beenleigh Show Society

  • Shortened Case Name:

    Reihana v Beenleigh Show Society

  • MNC:

    [2015] QCATA 170

  • Court:

    QCATA

  • Judge(s):

    Justice Carmody

  • Date:

    23 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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