Spinosa v Victims Assist Queensland
[2017] QCATA 120
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- Unreported Judgment
- Spinosa v Victims Assist Queensland[2017] QCATA 120
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Spinosa v Victims Assist Queensland[2017] QCATA 120
Spinosa v Victims Assist Queensland[2017] QCATA 120
CITATION: | Spinosa v Victims Assist Queensland [2017] QCATA 120 | |
PARTIES: | Donato Spinosa (Applicant/Appellant) v Victims Assist Queensland (Respondent) | |
APPLICATION NUMBER: | REO020-16 | |
MATTER TYPE: | Reopening | |
HEARING DATE: | 21 September 2017 | |
HEARD AT: | Brisbane | |
DECISION OF: | Justice Carmody | |
DELIVERED ON: | 23 October 2017 | |
DELIVERED AT: | Brisbane | |
ORDERS MADE: | THE APPEAL TRIBUNAL ORDERS THAT:
| |
CATCHWORDS: | REOPENING – where the applicant seeks to reopen appeal proceedings – where the tribunal has no power to reopen appeal proceedings – where the application to reopen is dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 138(1) | |
APPEARANCES and REPRESENTATION (if any): |
| |
APPLICANT | Donato Spinosa on behalf of the Applicant | |
RESPONDENT | Brendan James (solicitor) on behalf of the Respondent | |
REASONS FOR DECISION
- [1]The applicant seeks to reopen an appeal under s 138(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- [2]The grounds for reopening can be summarised as follows:
- it was unfair that the applicant’s appeal was summarily dismissed for non-compliance with tribunal directions due to an honest mistake;
- the tribunal erred in finding that the conduct the applicant complained of in the appeal was not unreasonable;
- the fact that police took a witness statement from the applicant regarding his complaint indicated that the matter was sufficiently serious to warrant a finding that the behaviour complained of in the appeal was unreasonable; and
- the tribunal’s original decision failed to take into account key considerations, including that Counsel for the respondent “lied in court”.
- [3]The respondent submits that the real issue is a legally narrow one, and the tribunal must decide if it has the power to reopen appeal proceedings.
- [4]The relevant provision of the QCAT Act states:
138 Application to reopen …
- A party can not make an application under this section in relation to a decision the subject of an appeal, or an application for leave to appeal, under part 8.
- Subsection (5) applies whether or not the appeal or application has been decided.
- [5]The applicant says that regardless of the governing legislation, all he seeks is a fair hearing.
- [6]Undoubtedly the applicant feels as though there has been a miscarriage of justice – however the meaning of s 138 is clear. The tribunal has no power to reopen a proceeding that is or has been the subject of an application for leave to appeal or appeal, including after it has been decided.
- [7]Reopening the applicant’s appeal would impermissibly undermine the finality of the tribunal’s decision-making powers and functions, and the application must be refused as a matter of law.
Orders
- The application to reopen the appeal is refused.