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Milojevic v Bourke[2024] QCATA 9

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Milojevic & Anor v Bourke [2024] QCATA 9

PARTIES:

SANDRA MILOJEVIC

(first applicant/appellant)

And

SAMUEL MICHAEL ROWE

(second applicant/appellant)

v

MATTHEW RONALD BOURKE

(respondent)

APPLICATION NO/S:

APL386-23

ORIGINATING APPLICATION NO/S:

MCD367/23 (Southport)

MATTER TYPE:

Appeals

REASONS DELIVERED ON:

25 January 2024

DECISION DATE:

8 December 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. The application to stay a decision is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where stay is sought – where the application in a minor civil dispute was heard after a reopening – where final decision made by consent – where second reopening granted in the absence of power to do so – where decision made to strike reopened proceeding out and to confirm the final decision made by consent

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 58, s 138, s 139, s 140, s 143, s 145, Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 92, r 93

Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453

Day v Humphrey [2017] QCA 104

Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347

Hessey-Tenny & Anor v Jones [2018] QCATA 131

Simonova v Department of Housing and Public Works [2018] QCA 60

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

Summary

  1. [1]
    Ms Milojevic and Mr Rowe (‘the applicants’) were parties to a minor civil dispute over services provided to them by Mr Bourke. The dispute travelled through the tribunal as follows:
    1. On 6 September 2023 an order was made in the applicants’ favour at a hearing that took place in the absence of Mr Bourke.
    2. On 21 September 2023 the proceeding was reopened on Mr Bourke’s application on the grounds that Mr Bourke did not attend the hearing because he did not receive notice of it.
    3. On 9 October 2023 at the rehearing, the parties reached agreement by consent and an order was made giving effect to their agreement, pursuant to which Mr Bourke was to pay the applicants the sum of $385.00 in full and final settlement of the dispute.
    4. Mr Bourke paid the ordered amount to the applicants.
    5. On 12 October 2023 the applicants applied to reopen the decision as they say they had obtained further evidence to support their claim.
    6. They also applied for a notice to adduce electronic evidence and for a notice requiring a witness to attend the hearing.
    7. On 19 October 2023 the applicants’ application to reopen the proceeding was granted on the papers by an adjudicator who was not the presiding adjudicator for the 9 October 2023 hearing. As an outcome, the claim was listed for rehearing on 17 November 2023.
    8. On 23 October 2023 Mr Bourke applied to dismiss the proceeding on the basis that the dispute had been the subject of a final order and that he had complied with its terms.
    9. On 31 October 2023 the Tribunal sitting at Southport made an order granting Mr Bourke’s application to dismiss Ms Milojevic and Mr Rowe’s claim, confirmed the order made 9 October 2023 and deemed the proceeding to be at an end (the ‘decision’). 
  2. [2]
    The applicants want to appeal the decision[1] but to do so, leave is first required.[2] In the meantime, they asked the Appeal Tribunal to stay the decision pending the outcome of their application for leave to appeal or appeal.
  3. [3]
    On 8 December 2023 I refused the application to stay the decision for the reasons that now follow.

Factors to be considered on an application to stay

  1. [4]
    It is well established that final decisions should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment.[3]
  2. [5]
    Under section 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Appeal Tribunal may make an order staying the operation of the decision until the appeal is finally decided. However, there is no appeal until and unless leave to appeal has been granted where required.
  3. [6]
    Section 58(1) of the QCAT Act permits the Appeal Tribunal to make an interim order it considers appropriate in the interests of justice, including, for example:
    1. to protect a party’s position for the duration of the proceeding; or
    2. to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.
  4. [7]
    Therefore, an application to stay a decision that falls outside the ambit of section 145 may be considered under section 58 to allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.[4]
  5. [8]
    McMurdo JA said in Simonova v Department of Housing and Public Works[5] that “the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal”.
  6. [9]
    To succeed on a conventional application for a stay, the party applying for the stay must satisfy the Appeal Tribunal that there is a good reason for the stay, including:[6]
    1. that the applicant has a good arguable case on appeal;
    2. that the applicant will be disadvantaged if a stay is not ordered; and
    3. that competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the application if the stay is not granted.

A good arguable case on appeal

Reasons for the decision

  1. [10]
    The learned Adjudicator gave the following reasons for his decision:
    1. The matter resolved by consent after a full and long hearing on 9 October 2023, at the end of which it was apparent that an adjournment was necessary in order that the parties may adduce further evidence.
    2. The consent order was made after the parties expressed a preference not to adjourn and negotiated between themselves a resolution to their dispute. The learned Adjudicator did not mediate and was not otherwise a party to those discussions. 
    3. Once the decision was made by consent on 9 October 2023 the tribunal was functus officio (namely, its jurisdiction was exhausted) and there was no basis for the reopening that was granted on 9 October 2023.
    4. Allowing the reopening to stand would permit the parties to have another trial on the issues that were before the Tribunal on 9 October 2023 and would allow the applicants to advance their position in circumstances where they were offered that opportunity at the final hearing and declined it at their election.
    5. Such an outcome would be a waste of the Tribunal’s time and resources and it would be and unfair and inequitable to the respondent to allow that to occur.

Legislative framework for reopening

  1. [11]
    Section 138 of the QCAT Act allows a party to a proceeding to apply to reopen the proceeding if a “reopening ground” exists. Reopening grounds include that a party would suffer substantial hardship if the proceeding was not reopened because significant new evidence not available at the hearing has arisen.[7]
  2. [12]
    Under Rule 92 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) an application for reopening must be filed within 28 days of the relevant decision and under Rule 93 each party must be given an opportunity to make submissions on the application.
  3. [13]
    Under section 139 of the QCAT Act the Tribunal can reopen if a reopening ground exists, and if satisfied the ground could be dealt with by reopening the proceeding.  
  4. [14]
    Importantly:
    1. The Tribunal’s decision on a reopening application is final and can not be challenged, appealed against, reviewed, set aside or called into question in another way.[8]
    2. If a proceeding is reopened, the Tribunal must decide the issues in the proceeding that must be heard and decided again.[9]
    3. The decision made on rehearing is the Tribunal’s final decision in the proceeding.[10]
    4. The proceeding cannot be reopened again.[11]
  5. [15]
    Although not the subject of the decision nor of the application for leave to appeal or appeal, it is worth observing that the decision made on 19 October 2023 to reopen the proceeding for a second time was beyond jurisdiction and therefore a nullity as there is no power in the tribunal to grant a second reopening of a proceeding. The Tribunal was, as the learned Adjudicator correctly observed, functus officio upon the making of the final order after the first reopening.
  6. [16]
    The strike out application had merit and the learned Adjudicator was correct to find that the applicants’ attempt to relitigate their matter was, in the circumstances, an abuse of process. There is no apparent error in the decision made to confirm the decision and to refuse to permit the rehearing to proceed and I find, therefore that there is no good arguable case on appeal.

Will the applicant be disadvantaged if a stay is not ordered? 

  1. [17]
    The application to stay is misconceived as the underlying decision was to strike out and to confirm a decision ordering Mr Bourke to make a payment, that he had then performed. There is no urgent or imminent risk of hardship to the applicants if the decision is not stayed pending the outcome of the appeal for leave to appeal or appeal.

What is the competing disadvantage to the respondent, should the stay be granted, and does it outweigh the disadvantage suffered by the applicant if the stay is not granted? 

  1. [18]
    Mr Bourke has complied with a Tribunal order made by consent in a full and final compromise by the applicants of their claim against him and is entitled to rest on that outcome. I agree with the learned Adjudicator who observed that it would be unfair and inequitable to permit the proceeding to continue in those circumstances.
  2. [19]
    Particularly where there is no good arguable case on appeal, the disadvantage to Mr Bourke of granting the stay far outweighs the disadvantage to the applicants of refusing it.

Are the circumstances exceptional?

  1. [20]
    On balance, nothing in the material before the Appeal Tribunal satisfies me that the interests of justice require the granting of a stay.   

Decision

  1. [21]
    For those reasons, the application to stay was refused.

Footnotes

[1]  Application for leave to appeal or appeal filed 10 November 2023.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).

[3] Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 at [12] cited in Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [27].

[4] Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [24].

[5]  [2018] QCA 60 at page 5.

[6] Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 per Jerrard JA at [8]; Day v Humphrey [2017] QCA 104 per Morrison JA at {5} and [6].

[7]  Defined in Schedule 3 of the QCAT Act.

[8]  QCAT Act, s 139(5).

[9]  Ibid, s 140(4).

[10]  Ibid, s 140(5).

[11]  Ibid, s 140(6).

Close

Editorial Notes

  • Published Case Name:

    Milojevic & Anor v Bourke

  • Shortened Case Name:

    Milojevic v Bourke

  • MNC:

    [2024] QCATA 9

  • Court:

    QCATA

  • Judge(s):

    Member Lember

  • Date:

    25 Jan 2024

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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