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Beyond Reserve Pty Ltd v Kagawa[2024] QCATA 98

Beyond Reserve Pty Ltd v Kagawa[2024] QCATA 98

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Beyond Reserve Pty Ltd v Kagawa [2024] QCATA 98

PARTIES:

beyond reserve pty ltd and mek property services pty ltd

(applicants/appellants)

v

chiho kagawa

(first respondent)

And

CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL, OFFICE OF FAIR TRADING

(second respondent)

APPLICATION NO/S:

APL105-23

ORIGINATING APPLICATION NO/S:

GAR033-23

MATTER TYPE:

Appeals

DELIVERED ON:

7 November 2024

HEARING DATE:

16 October 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

  1. Leave to appeal. 
  2. Leave to rely on additional evidence, namely the affidavit of Maia filed 3 July 2023.
  3. Appeal dismissed. 
  4. If any party wants to apply for an order for costs of the appeal, that party must file submissions in writing in support of the order sought, and give a copy of them by email to each of the associate to the Deputy President of the Tribunal and each other party, within 14 days from the date of this decision. 
  5. If no such submissions are filed, there will be no order as to costs of the appeal. 
  6. If such submissions are filed, the party from whom costs are sought may file any submissions in writing in opposition to such an order, and give a copy of them to by email to each of the associate to the Deputy President and each other party, within 14 days of the receipt of such submissions. 
  7. If submissions as to costs are filed, the question of costs will be decided by the Appeal Tribunal without an oral hearing, under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32. 
  8. Liberty to apply as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Procedure – application to review reviewable decision – how and when made – whether requirement of Rules incorporated into provision of Act – whether time extended under Acts Interpretation Act 1954 (Qld) s 38(2) – whether jurisdiction to review validly invoked

Acts Interpretation Act 1954 (Qld) s 38(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 33

Bowie v Gela [2023] QCATA 129

Brennan v QBCC [2024] QCAT 37

Campaigntrack Victoria Pty Ltd v Chief Executive, Department of Justice and Attorney-General [2016] QCA 37

CPR Solutions Mackay Pty Ltd v Zammit Earthmoving Pty Ltd (2020) 4 QR 624

CQ Sheds and Concrete Pty Ltd v QBCC [2023] QCAT 487

Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15

Irwin Homes Pty Ltd v Invest Now Australia Pty Ltd [2018] 3 Qd R 603

Magic Mountain Developments Pty Ltd v Laureate Australia Pty Ltd [1991] 2 Qd R 570

Perryman v Commissioner of State Revenue [2016] QCAT 26

QBCC v Watkins [2014] QCA 172

State of Queensland v Ali [2014] QCATA 14

Sunup Solar Pty Ltd v QBCC [2015] QCAT 435

Syed v Chief Executive, Department of Justice and Attorney-General – Office of Fair Trading [2022] QCAT 11

Vignes v Clarke [1990] 2 Qd R 593

APPEARANCES & REPRESENTATION:

Applicants:

B W Wacker instructed by Frigo Jones Legal

Respondents:

N Brash solicitor for first respondent, pro bono.

L Benjamin legal officer of the second respondent

REASONS FOR DECISION

  1. [1]
    This appeal raises the question, when is an application to review an administrative decision “made” to the Tribunal?  There are a host of Acts which permit the Tribunal to review such decisions, and they sometimes specify a time limit within which the person affected may apply for a review.  Otherwise, the time limit in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 33(3) applies.  Generally this time limit is not vital, because of the power in the QCAT Act s 61(1)(a) to extend such time limits;[1] but sometimes the enabling Act excludes the operation of this power in relation to the time limit for making an application for review.  In such a case, the question of when an application is made can become important.  If it has not been made in time, there is no jurisdiction for the review.[2]
  2. [2]
    One would expect that the statutory provisions would provide a clear, and hopefully simple, answer to the question.  Sadly, that is not the case.  The answer has been affected by the terms of the QCAT Act, the terms of the QCAT Rules and registry practice, and unfortunately, the three are not on their face really consistent.  Even the QCAT Act is itself complex on this point, the Rules are difficult to work together with the QCAT Act, and perhaps inconsistent in some respects with it, and there are aspects of what I understand to be registry practice which may not be consistent with either.  The few decisions on this point are not all consistent, and, with all due respect, some are somewhat superficial. 
  3. [3]
    The first respondent, whose claim against a fund under the Agents Financial Administration Act 2014 (Qld) (“the Act”) was rejected by the second respondent, presented for filing an application to review that decision at the registry of the Magistrates Court in Southport.[3]  The appellants claimed that it had not been made within the time limited by the QCAT Act, and challenged the jurisdiction of the Tribunal.  On 7 March 2023 a Member held that the application had been made within time, as extended by the Acts Interpretation Act 1954 (Qld) (“the AIA”) s 38(2), and the Tribunal had jurisdiction for the review.  By an application filed on 3 April 2023, the appellants sought leave to appeal against that decision.
  4. [4]
    Because the decision was not the Tribunal’s final decision in the proceeding, the appellants need leave to appeal to the Appeal Tribunal.[4]  The Appeal Tribunal is generally reluctant to interfere with such decisions, particularly in the case of matters of procedure, although where the question goes to the jurisdiction of the Tribunal it can be seen as a question which needs to be clarified at an early stage.  The issue turns largely on the interpretation of the relevant statutory provisions, although there was some reference to various factual matters, largely to illustrate the significance of the various arguments.  The issue potentially arises in every matter where an application for review is made to the Tribunal and there is a time limit which is not subject to extension, so it has an importance which is much wider than the dispute between these parties, and it is a point on which the opinion of an Appeal Tribunal will hopefully be of assistance.  The grant of leave to appeal was not opposed by the respondents, and I consider that leave should be granted. 
  5. [5]
    The appellants also sought leave to put additional evidence before the Tribunal, in the form of the document which records the delegation by the Principal Registrar under the QCAT Act s 210(2) which was current at the relevant dates.[5]  Under the conventional approach to fresh evidence on appeal this delegation would not qualify, but given the nature and importance of this issue, and because it affects the question of jurisdiction, and bearing in mind that it is an internal document of the Tribunal, I give leave to rely on it on the appeal.  I am however aware that the terms of the QCAT Act should not be interpreted by reference to what happens to be the current version of the delegation. 

Background

  1. [6]
    On 28 August 2021 the first respondent entered into a contract to purchase a home unit in a block on the Gold Coast for a particular price.  The appellants were the agents for the vendor of the unit, and the first respondent claimed that they represented that she would have a right as the owner of the unit to park a car in an adjacent car park, although there were no designated spaces.  After signing the contract, the first respondent claimed that she discovered that the right to use the car park was an “ephemeral privilege” and not a proprietary right.  She completed the contract, but a little over a year later resold the unit at a small profit. 
  2. [7]
    She made a claim against the Claim Fund administered under the Act, seeking the difference between the small profit she had made on the sale of that unit and the much larger profit she claimed she could have made on the resale of a similar unit where the owner had a proprietary right to a car parking space.  The basis of the claim was that the appellants had misrepresented the rights that the owner of the unit they were selling had in respect of parking a car in the adjacent car park.  The claim was rejected by the second respondent, on the basis that the appellants had adequately disclosed the car parking arrangement, and there had been no relevant misrepresentation by them, or other event within the Act s 82(1).  I am not concerned with the merits of the challenge to that decision.  
  3. [8]
    On 30 November 2022 the second respondent sent a notice of the decision to the first respondent by post and by email, together with a copy of the decision and a copy of the reasons for it.  The Notice advised of the right to apply to the Tribunal to review the decision within 28 days after the day on which she was notified of the decision.  The first respondent has not disputed that she was notified on 30 November.  The period of 28 days after that date expired on 28 December.  On that day the Magistrates Court Registry at Southport was closed.  It did not reopen until 9 January 2023.  The first respondent presented the application for filing on that day, and it was taken and not returned to her on that day.  The part headed “For office use only” on the first page was completed with a Case Number, the date “09-01-2023”, the registry “Southport”, “Sent to: Brisbane”, and the receipt number for the fee paid the same day.[6]   
  4. [9]
    The Tribunal Registry in Brisbane was also closed on 28 December 2022, having been closed since 23 December.  It reopened on 3 January 2023.  The first respondent’s application also has a stamp on the first page saying “Received 09 Jan 2023 QCAT Brisbane” and the seal of the Tribunal stamped on it.  I do not know whether the seal was applied in Southport or in Brisbane, although I understand the usual practice is to do it in Brisbane.  Presumably the Southport Registry has a seal, since it would need one to use for minor civil dispute matters, for which everything is done there. 

Decision of the Member

  1. [10]
    On 7 March 2023 a Member gave ex tempore reasons for concluding that the application was filed within time at the Southport Magistrates Court Registry.  He noted that applications to the Tribunal could be accepted for filing at a Magistrates Court Registry, that the Southport Registry was convenient for the applicant, and that 9 January was the first day the registry was open after it had been closed on all the days since the last day of the 28 day period.  The Member refused to accept the proposition that the application was out of time because it could have been filed in the Brisbane Registry on 3 January, because of access to justice considerations.  He held that the application had been filed within time, at the Southport registry. 

The legislation

  1. [11]
    Counsel for the appellants helpfully took me through the relevant legislative provisions.[7]   The Act provides in s 100 that the second respondent must decide a claim on the Fund, and in s 102 that the second respondent must give the parties an information notice complying with the QCAT Act s 157(2) for the decision.  The Act s 103(1) provides: “A party who is dissatisfied with the chief executive’s decision under s 100 may apply, as provided under the QCAT Act for a review of the decision.”  Section 101 provides that if no such application is made within the time allowed under the QCAT Act s 33(3) the decision is binding on the claimant and the respondent, that the amount paid to the claimant in accordance with the decision is recoverable by the second respondent as a debt from the respondent named in the decision,[8] and that “s 122 and the QCAT Act s 61 do not apply to enable QCAT to extend the time within which a person may seek a review under the QCAT Act s 33(3).” 
  2. [12]
    Turning to the QCAT Act, s 33 provided, so far as is relevant, as follows:

33Making an application

  1. This section applies if this Act or an enabling Act provides that a person may apply to the tribunal to deal with a matter.
  1. The application must—
  1. be in a form substantially complying with the rules; and
  1. state the reasons for the application; and
  1. be filed in the registry.
  1. If the application is for the review of a reviewable decision, the application must be made, by filing it in the registry, within 28 days after the relevant day.

Notes—

1Under section 6(7), an enabling Act that is an Act may provide for a different period within which a person must make an application.

2Under section 61, the tribunal may extend the period within which a person must make an application.

  1. [13]
    The balance of the section, which I need not quote, provides that the relevant day is, in the circumstances of this case, the day the applicant is notified of the decision.  It will be apparent that in this case the second note was inaccurate, because of the Act s 101(2).  Section 35 then provided that, if a person “makes an application” to the Tribunal, the principal registrar may accept the application, accept it with conditions stated in the Rules, reject it on a ground referred to in s 35(3), or refer it to the Tribunal, but only if the principal registrar believes there is a ground for rejecting the application under s 35(3).  If the principal registrar rejects the application, or accepts it subject to conditions, the applicant may require that the application be referred to the Tribunal, and the Tribunal then decides the matter.[9] 
  2. [14]
    The QCAT Act s 36 provides that a proceeding starts when the principal registrar accepts an application, whether or not on conditions.  That triggers the obligation in the QCAT Act s 37 for the applicant to give a copy of the application to the parties to the proceeding.[10]  In order to do that, the applicant needs service copies, which will commonly be copies of the application sealed with the seal of the Tribunal.[11] 
  3. [15]
    Part 5 of the QCAT Act provides for the Registry of the Tribunal.  Section 207 establishes it, in terms which suggest that the Registry Brisbane in is the Registry of the Tribunal.  A number of the provisions of the QCAT Act read as though the Principal Registrar, a person appointed under s 208, is expected to do a lot personally, especially in terms of handling documents.  Fortunately the QCAT Act s 210 permits the Principal Registrar to delegate functions to a Registry staff member, or a Magistrates Court staff member.  This is one of the few indications in the QCAT Act that the Magistrates Courts play an important part in the functioning of the Tribunal. 
  4. [16]
    Although the fact is not mentioned in the QCAT Act, documents for use in a proceeding in the Tribunal can be can be filed, or at least will be accepted if presented for filing, at any Magistrates Court Registry in Queensland.[12]  Much of the work of the Tribunal is done by Magistrates sitting as members of the Tribunal to hear and decide minor civil disputes.[13]  They cannot however exercise the review jurisdiction of the Tribunal.  An application to review a decision of the second respondent invokes the review jurisdiction of the Tribunal,[14] which is done by applying to the Tribunal under the QCAT Act.[15]  That requires an application in accordance with s 33. 
  5. [17]
    The functions of the Principal Registrar under the QCAT Act include, by s 229, keeping a register of proceedings in the Tribunal, containing the matters stated in the rules, and by s 230, keeping a record for each proceeding containing all documents filed in the registry for the proceeding.  The “record for proceeding” appears to be what is conventionally referred to as the file for the proceeding.[16]  At one time, these were all physical files; now many matters are dealt with electronically, and the files are also kept electronically.[17]  Happily that did not occur in the case of this proceeding, so that I can ignore, for the purposes of this analysis, any complications produced by the use of that electronic system, the principal characteristic of which seems to be that it is very hard to use.  The functions under s 229 and s 230 have not been delegated to Magistrates Courts Registries, except in the case of minor civil disputes, which are dealt with locally.  Otherwise, when a document is lodged at a Magistrates Court Registry it is forwarded to the Tribunal Registry in Brisbane. 
  6. [18]
    I should also mention that the QCAT Act provided in s 224 for the Governor in Council to make Rules for the practices and procedures of the Tribunal, and for the matters mentioned in Schedule 2.  Schedule 2 included in Item 4 “starting proceedings” “applications or referrals to the Tribunal, including for example the form of the application or referral,” and the way an application by a group of individuals or businesses are to be made.  Also in Item 4 was “the conditions that may be imposed on the acceptance of an application under Chapter 2 Part 3.”  This is a reference to the provision in s 35(2)(b).[18] 
  7. [19]
    The Queensland Civil and Administrative Tribunal Rules 2009[19] provide in Rule 24 that an application may be filed in person, by post or electronically, which includes by email.  Division 3, headed “Provisions about filed documents” begins with Rule 31, headed “When document is filed”, and provides relevantly:
  1. A document is filed when the principal registrar records the document and stamps the tribunal’s seal on it.
  1. After filing a document, the principal registrar must stamp the tribunal’s seal on each copy of the document that accompanied it.
  1. [20]
    The Rule goes on to deal with what is to be done with the stamped copies of the document, referred to in Rule 31(2), in cases where the document was filed electronically or by post.  In essence, they are to be returned to the person who sent the material to the Registry for filing.  Nothing is said about what is to be done with the stamped copies of a document filed in person, but I expect they are returned to the person doing the filing.  I note that Rule 29 provides that, except in certain cases not applicable here, “a person required to file a document in a proceeding … must file the original document, and the number of copies of the document provided by sub-rule (3).”  I need not quote sub-rule (3), but it requires two or three copies, plus service copies.  These are the copies which are used to give the notice of the proceeding to the other parties under the QCAT Act s 37.[20]  The use of the word “file” in Rule 29 to refer to the copies of the original document is interesting, and not consistent with the way it is used in Rule 31, which distinguishes between the original document and the copies. 
  2. [21]
    Rule 32 provides that the principal registrar may refuse to file a document if it does not comply with these Rules or can not otherwise be filed.  Unlike the power to refuse to accept an application under the QCAT Act s 35, there does not appear to be any scope for the review of a decision under Rule 32 to refuse to file a document.  On the face of it Rule 32 applies to any document sought to be filed, whereas s 35 applies only to applications or referrals, that is, to initiating documents.[21] 

Submissions for the appellants

  1. [22]
    The argument for the appellants proceeded on the basis that, although a document could be lodged in a Magistrates Court Registry, it could not be filed there, as the only place where the application to review a decision could be filed was in the Registry of the Tribunal, in Brisbane.  Hence the relevant office at which filing the document may be done was the Registry in Brisbane, and by the time the document reached there, the period allowed by s 33(3) for filing an application to review the decision had expired.  Even if the application had reached and been processed by the Registry in Brisbane on 9 January, that was not the first day that was not an excluded day for the purpose of filing a document in the Tribunal Registry, that being 3 January.  Accordingly the first respondent’s application was out of time, there was no power to extend time, and the Tribunal had no jurisdiction to entertain that application.[22] 
  2. [23]
    Counsel for the appellants submitted that the process involved in filing an application involved three stages:  lodging the document, filing the document, and acceptance of the document.  The first stage, lodgement, referred to what the applicant did when handing in the document at the Southport Registry.  The document may be filed in person, by post or electronically (Rule 24), but that Rule does not specify where the document may be lodged.  The significant provision is Rule 31, which provides for when a document is filed, namely, when the principal registrar records the document and stamps the Tribunal’s seal on it.  It was submitted that the reference to “records the document” in Rule 31(1) was a reference to recording it in the register kept as required by the QCAT Act s 229.   
  3. [24]
    The written submissions at paragraph 30 referred to the register, in accordance with s 230 of the QCAT Act, but this must be a slip.  The register is provided for by s 229, and what it contains by Rule 100.  Section 230 provides for keeping a record containing all documents filed in the Registry for the proceeding.  I read s 230 as providing that the “record” comprises all the filed documents, so it is the bundle of filed documents itself, not a method of recording the fact that a document has been filed.[23]  The word “record” as a noun is defined in the Schedule to the Rules as the record kept under s 230; the word “record” as a verb, which is what it is in Rule 31, is not defined.  It follows that Rule 31(1) is obscure as to exactly what is required of the Principal Registrar when she “records the document”. 
  4. [25]
    On the face of it there are four possibilities that occur to me.  One is that to “record” the document means to note in the register under s 229 that it has been filed.  That is the meaning for which the appellants contended, although it faces the difficulty that Rule 100 states the matters to be entered on that register, and what documents have been filed, and importantly when each document was filed, are not among them.  Section 229 confines the matters to be included to those “stated in the Rules”, and Rule 100(1)(b) states the list of matters which must be included, but the Rule makes no provision for anything else to be included.  If that is the correct interpretation of Rule 31, it is inconsistent with Rule 100. 
  5. [26]
    Another possibility is that the requirement is that the document be incorporated in the “record” under s 230, that is, physically placed on the file.  There are practical problems with that interpretation, in that I understand that in practice it is common enough for documents not to be actually placed on the file until after the date they reach the Registry, by whatever means, and that no record is kept of when that occurs.  What is recorded is the date the document is “received” by the Registry.   Another practical problem is that, although there has been extensive delegation of the functions of the Principal Registrar under s 210(2), the appellants have submitted that the steps required by Rule 31(1) have not been delegated to anyone.  If that is so,[24] and an application is filed for the purposes of the QCAT Act s 33 when the Principal Registrar has personally done whatever Rule 31(1) requires, I expect that no application for review has ever been validly filed in the Tribunal.[25] 
  6. [27]
    The entry in the Limitations and Comments column of the delegation relating to Rule 31 is interesting:

Date stamp all QCAT documents filed.  Sealing of Minor Civil Disputes only.  All other applications are to be forwarded to QCAT Brisbane for processing. 

  1. [28]
    This suggests that a document is regarded as “filed” in the Magistrates Court Registry although it is not sealed there, unless it is a minor civil dispute matter.  That is consistent with the fact that the power to accept an application under the QCAT Act s 35, or otherwise, has been delegated to various people in the Magistrates Court Registries, although for anything apart from acceptance without conditions such registry officers are to “seek guidance from QCAT”.  But as I mentioned earlier, the interpretation of the QCAT Act cannot depend on the terms in which powers are delegated from time to time. 
  2. [29]
    The third possibility is that the fact of the document’s being filed is recorded in some other way.[26]  Again, if that is the case, the question of how and where it is recorded has not been answered by the Rules, nor do they provide any way to determine on which day this occurred. 
  3. [30]
    The fourth possibility is that suggested by reference to the equivalent rule in the UCPR, r 968(4).  This rule applies where someone files a document in a registry in the traditional way, by going up to the counter and handing the document over.[27]  Sub-rule (4) now provides: “The document is taken to be filed when the registrar records the date of filing on the document, and stamps the seal of the court on it.”  That makes clear that what is recorded is the date of filing, which is done by a clerk[28] stamping the document with the word “filed” and the current date.  That makes perfectly clear what is required by way of “filing”, a process which will occur while the person seeking to file the document is at the counter, and which both fixes and preserves the date on which the document is filed. 
  4. [31]
    Prior to an amendment made in 2018, UCPR r 968(4) was in the same terms as Rule 31(1).  Evidently when this amendment clarified the rule, it was unfortunately not copied by the Tribunal.  It said by Crow J in CPR Solutions Mackay Pty Ltd v Zammit Earthmoving Pty Ltd (2020) 4 QR 624 at [53] that the act of “recording” the document under the rule in its former terms was “best taken to mean the act of the registrar placing the filing stamp on the document indicating the date and the court in which the document was received.”[29]  The amendment to r 968(4) was in response to the decision in Irwin Homes Pty Ltd v Invest Now Australia Pty Ltd [2018] 3 Qd R 603.  In that matter Mullins J (as her Honour then was) held that a document was “recorded” for the purposes of r 968(4) when it was recorded on the record required to be kept under UCPR r 977: [13], [14].  The difficulty in applying that decision to Rule 31 is that there does not appear to be any equivalent to r 977 in the QCAT Act or the Rules. 
  5. [32]
    In Bowie v Gela [2023] QCATA 129 a Member suggested that an application was “recorded” by giving the application a distinct filing number: [37].  With respect, that cannot be correct, as Rule 31 is not confined to an application which is an originating process, but applies to any document filed in the Registry, the great majority of which will be fined in an existing proceeding, which already has a number.  Fortunately, for my purposes I do not need to clarify just what Rule 31(1) means, but with respect I consider that there is a lot of sense in what was said by Crow J. 
  6. [33]
    The submission for the appellants was that the third step in this process was that the principal Registrar had to decide whether to accept the application, or accept it with conditions, or reject it under the QCAT Act s 35(2).  This was said to arise after an application had been filed for the purposes of Rule 31, because s 35 spoke about the power arising when an application is “made”, and by s 33 that does not occur until the application has been filed.  This power, to accept or reject an application, was said to be additional to the power to refuse to file the application under Rule 32, a situation said to be justified by the fact that different grounds for refusal were provided by the two provisions. 
  7. [34]
    The appellants referred in submissions to decisions supporting the proposition that r 968 means that something has to be done by the registrar in order for the document to be filed, rather than the document just being received by the registry.[30]  I do not disagree with the interpretation of r 968 adopted in those decisions, but I do not consider that they determine the real issue in this matter.  The appellants then submitted that the application itself showed that the filing had occurred in the Tribunal Registry in Brisbane, because it bore a stamp “Received 9 January 2023 QCAT Brisbane” and was stamped with the seal of the Tribunal. 
  8. [35]
    The submissions for the applicant then turned to the effect of the AIA s 38, which relevantly provides:
  1. If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day. 
  1. In this section excluded day … for filing or registering a document – means a day on which the office is closed where the filing or registration must or may be done. ….
  1. [36]
    The submission was that the only office where the filing or registration must or may be done was the Tribunal Registry in Brisbane, because it was only there that the process of filing under Rule 31 could take place for an application to review a decision.  Under that Rule the process of filing could take place only in the Tribunal Registry, because although the Southport Registry of the Magistrates Court had power to receive the application, all it could do was forward it to Brisbane.  The tasks to be done to amount to filing such an application were not delegated, and had to be done in Brisbane.  The record kept under s 230 was also kept in Brisbane.  The role of the Southport Registry was said to be limited to “receiving documents, forwarding them to ‘QCAT Brisbane’ and, once filed, date stamping those documents.”[31]  Further, a decision to refuse to file a document under Rule 32 remains with the Principal Registrar, except in the case of a minor civil dispute.[32] 
  2. [37]
    It was submitted that it followed that the office for the purposes of the AIA Act s 38 was the Tribunal Registry.  That office was open on 3 January, and it followed that the effect of s 38 was that the time for filing the application was extended only to 3 January 2023, and an application filed on 9 January 2023 was out of time.  The Tribunal had no jurisdiction to hear and decide the application, which should therefore be dismissed. 
  3. [38]
    In support of the submissions counsel for the appellants referred to a number of authorities, as well as those I have already mentioned.  In QBCC v Watkins [2014] QCA 172 the Court held that the provisions of the Queensland Building Services Authority Act 1991 (Qld) excluded any jurisdiction to review a particular decision of the Authority after the expiry of the twenty-eight period allowed by that Act: [16].  The wording of the Act is different, but I accept that the express exclusion of the power to extend the twenty-eight day period under the Act or under the QCAT Act, coupled with the terms of the Act s 101(1), make it clear that the legislative intention was that after the twenty-eight day period the Tribunal is to have no jurisdiction to review the decision. 
  4. [39]
    An example of a contrasting case is Campaigntrack Victoria (supra) where it was held that the relevant provisions of the enabling Act did not exclude the power to extend time under the QCAT Act s 61.  The Court contrasted the provisions relevant in that case with the terms of a different provision in very similar terms to the relevant section of the Act.  This decision contains a helpful analysis of the relevant considerations, and comments, that a court would not lightly infer an intention to shut out deserving claimants (at [44]), and that it would be odd if an error on the part of the Chief Executive would deprive the Tribunal of jurisdiction (at [16]). 

A diversion into history

  1. [40]
    At one time proceedings in the Supreme Court were commonly commenced by a writ, which was in form a royal command, issued in the name of the Chief Justice,[33] and bearing the date it was issued.  The UCPR still provides, in r 8(1), that an originating process is “issued”, although there is now a requirement for a copy to be filed: r 20.[34]  By r 978, a document “issued” by the court must be signed by the appropriate officer, and stamped with the court seal.  By r 8 the proceeding commences when the originating process is issued.  In practice this date is recorded by the use of a date stamp on the document. 
  2. [41]
    If in error the wrong date was put on the writ, the power to amend a writ could be used to correct it, but only if the error was made by an officer of the court, rather than by the plaintiff or the solicitor for the plaintiff: Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15.  The reasons for that decision include the evidence of a registrar as to the practice when a writ was presented for filing, as follows:

The writ tendered for issue would be received by the registry staff, checked for compliance with [the] form and, if accepted, then dated and signed.  The original and a duplicate writ are at that point sealed and the filing fee collected.  The sealed writ is then returned to the person filing it accompanied by the receipt.  Then the original writ is filed in accordance with the requirements of O 87 r 14[35] and stamped accordingly and the matter of the filing is entered in the Cause Book pursuant to O 87 r 16.  He makes the point that it is not entered in the Cause Book unless it is duly issued and correctly filed.  The “invariable” practice which [the registrar] deposes to is, it may be noted, a single stage procedure under which the issue of a writ is attended to in the course of one continuing episode.

  1. [42]
    The case concerned a writ issued by the Mackay District Registry, where on other evidence it could occur as a two stage process, and in that matter the evidence suggested that the writ had been signed and sealed, and entered in the Cause Book, on 20 November 1978, but not dated or handed over until the next day, because the amount of the cheque for the filing fee was $3 short, and a second cheque for that amount was not provided until the next day.  There was evidence that it was common in Mackay for the writ not to be processed by the registry and returned the same day, being returned the following day, or even later, but usually with the date on the writ the date it was presented for filing.  In that matter Macrossan J referred to the relevant rules, and said that the writ when issued “should bear as the date of issue that date which in each case is in fact the date of presentation and issue.” 
  2. [43]
    His Honour referred to the principle that a litigant should not suffer for an error of the court staff, and ultimately drew the inference that the practice in the Mackay registry, of which he clearly disapproved, was probably the reason for the delay in issuing the writ.  Accordingly he allowed the writ to be amended to show 20 November 1978 as the filing date, relying on some dicta in other cases.[36]  Derrington J, who agreed with the outcome of Macrossan J, called in aid O 93 r 17 under which the failure to pay the full fee was an irregularity, and said that the writ should have been issued on 20 November 1978 even if the full fee had not been paid, since the breach of O 87 r 12 (which required the fee to be paid first) was just an irregularity. 
  3. [44]
    McPherson J, who dissented, rejected reliance on O 93 r 17, on the basis that, although it may have been an irregularity if the registry had issued the writ in breach of O 87 r 12 because the full fee had not been paid, it was no irregularity to comply with that rule.  On his analysis of the evidence, he concluded that the appropriate inference to draw as to what had occurred was one where the failure to have the writ issued was the fault of the solicitor, and relief should not be granted.  He did not however disagree with the majority on the principle to be applied.[37] 
  4. [45]
    In those days the rules defined when a writ was “issued” in O 87 r 10, which also gave a discretion to the registrar to decline to issue it if it was not in proper form, or if the person presenting it for issue was not “entitled to sue out the same.”  A document delivered to the registry personally for filing was filed when it was “stamped as filed”: O87A r 1(3).  At least from 1996 a document could be filed by post, but a document lodged for filing by post “is at the risk of the filing party”: O87A r 3.  Presumably this covered the risk of the document being lost in the post, and not being “filed” or “issued” within any relevant time limit. 
  5. [46]
    According to my 1973 copy of the White Practice, the Rules of the Supreme Court in England provided for writs to be “issued”, and in O 6 r 7(3) that “Issue of a writ takes place upon its being sealed by an officer of the court out of which it is issued.”  That provision has the virtue of identifying a clear point in time when the originating process “issues”.  The annotations to the rule include the proposition that, except in cases when the leave of the court is required, the issue of the writ is regarded as the act of the plaintiff, and cannot be refused.[38]  O 63 r 3(1) of those rules provided that “Any document filed … in any proceedings must be sealed with a seal showing the date on which the document was filed.”  That also strikes me as a useful provision. 
  6. [47]
    Williams’ Supreme Court Practice (Victoria) (2nd Ed, 1973) stated that (in those days, and in that state) writs were to be issued by the Prothonotary’s Office[39] and were “deemed to be issued” when sealed by the Prothonotary: O 5 r 3.  The person presenting any writ for sealing was to leave a copy (r 4) which was then to be filed by “the officer receiving such copy” and an entry of the filing made in the Cause Book: r 5.  Interestingly r 6 provided that, if the Office were closed, a writ could be issued by having a Judge initial the writ.  Order 61 provided, in both r 16 and r 18, that the date of filing a document was to be written or indorsed on the document.[40] 
  7. [48]
    I have also looked at the District Court Rules 1968, which show that things can be done differently.  In those days a proceeding in that court was commenced by plaint, and r 44 provided that, when a plaintiff delivered to the registry at least two copies of the plaint, the registrar (or an officer) was to mark the copies with the “date of presentment”, and was to file one copy and sign and seal the copy or copies returned to the plaintiff.  The effect of this would appear to be that, if the proceeding in Gower (supra) had been in the District Court, there would have been no problem because the only date recorded would have been the date of presentment, 20 November 1978. 
  8. [49]
    From this brief survey it can be seen that the ways in which originating process has been handled by courts have generally involved a number of features: 
    1. A distinction has been drawn between what is required to commence a proceeding, and what is required to file a document in an existing proceeding. 
    2. There is a provision which fixes when a proceeding starts, usually by some formal act done by a court officer.
    3. The process is expected to be able to be completed quickly.  If someone wants to start a proceeding, it should be possible to do so quickly.  That is important because of the existence of various limitation periods which often cannot be extended, and legislatures and rule makers would have been cognisant of this background.   

Another diversion

  1. [50]
    I may say that I have some personal experience of the process of filing documents in the Tribunal Registry in Brisbane.  I once filed an application in a proceeding and an affidavit for a person known to me who was involved in litigation in the Tribunal, and was having trouble coping with the system for filing a document on line.  Fortunately at that time it was possible to file documents in such a proceeding in the traditional way, and I took them to the Registry counter on Floor 11.  When my turn came, I presented the documents, with appropriate copies, to the clerk at the counter, who checked them, saw that they appeared to be regular, and stamped each (including copies) with a stamp saying “Received QCAT Brisbane” and the date, and also with the seal of the Tribunal.  One of each was kept, and the copies were returned to me.  The clerk did something on a computer (I do not know what) and I left.  I would have thought that, when the clerk stamped the documents, they had been filed; more importantly, anyone filing documents in this way would I expect have been left with the same impression. 
  2. [51]
    To finish the story, because the file (or “record”) for the proceeding was now being kept electronically, the process was that such documents were to be scanned into the file by registry staff.  As it happened, in this case, the affidavit was scanned in twice and the application not scanned in at all.  Unsurprisingly, the application was not listed for hearing.  A case perhaps of one step forward and two steps back.  It does make me wonder however what might have happened if the application I was filing, or thought I was filing, was an application under the QCAT Act s 33. 

Submissions for the respondents

  1. [52]
    The first respondent submitted that the QCAT Act should be interpreted having due regard to the objects of the legislation, and in a way which would facilitate taking proceedings under that Act.  If the interpretation contended for by the appellants were correct, it would give rise to great uncertainty as to the process of filing an application because, even if the application was lodged in the Tribunal Registry, one would not know just when it was actually filed.  Filing can be understood as a process, which begins when the document is presented for filing, even if it does not end until some time later when the requirements of Rule 31 are completed.  The time limit in s 33(3) should operate by reference to the time when the applicant does what is required of the applicant. 
  2. [53]
    It was also submitted that there was room under the QCAT Act s 61(1)(c) for some flexibility, so that the requirement under Rule 31 as to sealing could be waived by the Tribunal.  This is the solution adopted in CQ Sheds and Concrete Pty Ltd v QBCC [2023] QCAT 487, a case where an applicant to review a decision of the respondent as to the scope of rectification works was lodged at the Magistrates Court Registry in Rockhampton within time, but had not made its way to the Tribunal Registry in Brisbane until after the time for making an application to review the decision had expired.[41] 
  3. [54]
    In that case the application under s 33 had not been stamped in Rockhampton with a “Received” stamp, and it was said by the Senior Member that this omission was due to the fault of the Rockhampton counter staff.  Reference was made to Gower (supra) and the principle that a litigant should not suffer because of some failing of registry staff, and it was said that there was power under the QCAT Act s 61(1)(c) to waive a procedural requirement of the Rules, that an omission to stamp an application was such a requirement, and that it should be waived because to deprive an applicant of a right to review would not be fair or just[42] if it was the fault of the counter staff that the document was not stamped.  Having waived that requirement, it was said to follow that the application for review was filed when it was presented for filing at the local registry, and was therefore within time.  A declaration to that effect was made. 
  4. [55]
    With all due respect, I consider that there are difficulties with that reasoning, as it appears to equate the application of a “received” stamp with the requirement in Rule 31 that the document be sealed, and overlooks the additional requirement that it be “recorded”.  The seal stamped on documents is a round stamp with the words “Queensland Civil and Administrative Tribunal” inside borders, but innocent of any date, or indeed crest.   But the outcome was certainly fair and just. 
  5. [56]
    Finally the first respondent submitted that the AIA s 38 operated by reference to an office where a document “may” be filed, and so far as a prospective applicant is concerned, that was the Southport Registry, which was closed until 9 January.  The fact that prior to that day it would have been possible to file the application in Brisbane was not relevant, because there is nothing in the wording of the section to suggest that the extension it provides depends on the unavailability of any alternative office. 
  6. [57]
    The second respondent submitted that the fundamental difficulty with the appellants’ argument was that the AIA in Schedule 1 defines “file” to include “lodge”.  If one reads “filed” in the QCAT Act s 33(2)(c) as “lodged” then it is clear that the requirement of that paragraph was satisfied on 9 January 2022.  Since the application by first respondent could be “lodged” in the Southport Registry, it followed that that was a place where such a document could be “filed” (ie, “lodged”) for the purposes of the AIA s 38, which extended the time for doing so to 9 January.  The application was therefore filed within time.  Although that definition can be excluded by a contrary intention appearing in any Act,[43] no such contrary intention appeared in the QCAT Act.  It was not correct to treat s 33(3) as providing that the application could be filed only in the Tribunal Registry in Brisbane. 
  7. [58]
    The second respondent also submitted that in any case the requirement that the application be filed as required by Rule 31 was a procedural requirement rather than a jurisdictional requirement, and it could therefore be waived under the QCAT Act s 61(1)(c).  This was on the basis that the jurisdictional requirements were those in the Act s 101 and s 103, and the QCAT Act s 35 and s 36, and did not include Rule 31.  This approach was said to be supported by the decision in CQ Sheds (supra).  On the view I take of the matter, it is not necessary to decide this point, although I consider that the effect of the Act s 101 is that compliance with the QCAT Act s 33 must occur within the twenty-eight period, subject to any extension by the AIA, so that whatever s 33 really requires is a limitation on the jurisdiction of the Tribunal. 
  8. [59]
    The submissions for the second respondent also refer to an application lodged electronically by the first respondent on 3 January 2023, “to extend or shorten a time limit.”  This application appears to have sunk without trace, and neither of the other parties referred to it, nor did the Member.  On the view that I take of the matter, it is unnecessary to consider this application further. 

Other information

  1. [60]
    I should also mention that I have seen an internal Tribunal memo, which stated that the longstanding registry practice, in the case of an application presented to a Magistrates Court Registry for filing, is for that registry to date stamp the application with the date of lodgement as well as the receipt for the filing fee (if paid), and then to forward the application to the Tribunal Registry in Brisbane.  When processed there, the document is stamped with the QCAT seal.  The date of filing however is treated as the date on which the document was lodged in the Magistrates Court Registry.  That practice would explain why the document was stamped as “received” in Brisbane with the same date as it was received in Southport. 
  2. [61]
    The memo also referred to a number of earlier decisions considering the question of when an application is filed.  In Smith v QBCC [2010] QCAT 448 a Senior Member said at [8] that s 33 “must be read in conjunction with Rule 31.”  As a result, because the application had not been stamped with the seal of the Tribunal, it had not been filed, and the application had not been made within time.  Reference was made to s 36 and s 38, but it was said that they applied only when the application had been filed.  This analysis supports the submissions of the appellants, but it will be apparent from what I say later that I do not agree with it. 
  3. [62]
    In Sunup Solar Pty Ltd v QBCC [2015] QCAT 435 an application to review a decision of the respondent was presented for filing within time, but was rejected on the ground that the wrong respondent had been named.  A Member held that this was not a ground for rejection within s 35(3), and the registry had compounded the error by not advising the applicant of the availability of an appeal to the Tribunal from the rejection under s 35(4).  On the basis that the principle in Gower (supra) applied, the matter was rectified by treating the application as having been made when it was first presented. 
  4. [63]
    In State of Queensland v Ali [2014] QCATA 14 an application for leave to appeal was presented to the registry, but the fee for such an application was not paid.  A few days later, after the need for a fee was advised to the appellant, it was paid, but by then the time for appeal had (just) expired.  What was decided was that the provisions of s 143(2) over-rode those of s 38, so that the application for leave to appeal had not been filed until the fee was paid, a point which does not arise here, as the fee was paid by the first respondent on 9 January 2022.  In that case, the Appeal Tribunal extended the time for filing the application. 
  5. [64]
    In Perryman v Commissioner of State Revenue [2016] QCAT 26 an application to review a decision of the respondent was sent by email to the Tribunal on the last day for an application to review, although after the registry had closed for the day.  It was not dealt with until seven working days later.  At that time a document could be filed by email only if it was one on which a fee was not payable, not the situation in that matter.  It was struck out as made out of time, but on the basis that that occurred only on the day it was processed by the Registry, when it was recorded and stamped with the seal of the Tribunal.  For good measure, the Member said that the fee had not been paid.  I agree with the conclusion in that case, but not with the reasoning. 
  6. [65]
    In Bowie v Gela [2023] QCATA 129 the issue was whether an application for an order for termination of a tenancy under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) had been made within the two week period allowed by s 293(2).  The applicant (respondent on the appeal) had emailed an application within time, and had added a credit card authorisation slip, but that was regarded as inappropriate and the email was deleted.  Two days later, the application was sent again, but without the credit card form, but was not processed by the registry until three days later, by which time the two week period had expired.  It was said at [58] that the delay in processing, and indeed the rejection of the initial application, were the fault of the Registry, that an application can be filed before the filing fee is paid ([37].[39]), and that the time limit in this statute could not be extended under the QCAT Act s 61.  The Member referred to Gower (supra) and Vignes (supra), and rejected the challenge of the appellant, on the ground that he had been out of possession for about two years already, and it would be inappropriate to interfere with the respondent’s possession after such delay: [87]–[89].  The reasons contain some interesting information about the practice of the Registry.[44] 
  7. [66]
    In Brennan v QBCC [2024] QCAT 37 an application to review a decision was sent by email to the Registry at about 9 pm on the last day for such an application to be made.  It appears that it was processed the next day, when the “Received” stamp was put on it, showing the date of that day, not the date the email was actually received, which was the previous day.  The Member discussed the decision in Bowie (supra) and endorsed much of it, and would have been disposed to amend the “received” date to the previous day, but considered that the decision in Bowie precluded him from doing so.  As a result, it was held that the time limit had been exceeded, the time could not be extended under s 61, and the application had to be dismissed, as out of time. 
  8. [67]
    The Member made in the reasons a number of significant points:
    1. At [11], that there is a difference between filing by email and the eLodgement process.
    2. At [13], that “there is no reference in the Rules stipulating the date to be recorded on the application. In practice the date stamp identifies the date when the document was received into the registry. Again for practical purposes in the conduct of proceedings, the date stamp (received date) is generally regarded as the filing date, which is the same date in the ‘for office use only” box.
    3. At [14], that “Presumably, for the purposes of rule 31(1) the recording of the document is the application of the stamp with the received date. Also presumably, the QCAT seal is then affixed to the front page of the application at the same time. The seal is not dated. The point here is that, if the correct received date is recorded on the document, and at the same time the seal is applied, even if it is the next day, the application could be said to be filed.” 
    4. At [22], that “In my view the date of the receipt of the application in the Registry can be critical, particularly when there is a strict time limitation applicable to the application. The QCAT Rules makes provision for filing applications and referrals by email. If there is a [contention] that electronically means eLodgments only, that is inconsistent with Tribunal practices. However, an applicant should not have to anticipate, and allow for, sufficient time for when it is likely the application will come to the attention of the registrar (or delegate) for approval and sealing.” 
    5. At [25], that “The QCAT Act or Rules do not specify what date is to be regarded as the filing date. It is taken for granted that the filing date is that date which is on the front page of the document, being the ‘received’ date. In other words, the date the document is processed by the registry staff as occurred here and in Bowie. However, if the ‘received’ date is to be the relevant date for the purposes of identifying ‘the filing date’, it should record the date the document was actually received into the tribunal, by email or over the counter, and not the date it was processed, even if the acceptance by the Registrar is at a later date when the seal is applied. It seems to me that there is no impediment to actually recording the actual date the document is received.” 
    6. At [26], that “the general principles in construing limitation clauses are relevant to the construction of the sections in the QCAT Act and the Rules in relation to the filing date. That is because their construction will have the same consequences as the limitation itself. Therefore, they should be strictly construed because to adopt a broad interpretation of fixing the filing date to the date when the registry gets around to putting a the stamp on the application, has the potential to deny an applicant’s rights of review.” 
  9. [68]
    I regard all of these as significant and helpful observations.[45]  I agree with the general thrust of the propositions advanced, although the conclusion they lead me to is different from that adopted by the Member. 

Consideration

  1. [69]
    In essence, I accept the first submission on behalf of the second respondent, that when the QCAT Act s 33 uses the term filed, it means “lodged” pursuant to the definition in the AIA Schedule.  Far from the QCAT Act containing an indication to the contrary, I consider that the better interpretation of that Act is that s 33 does not use the term “filed” as meaning filed in accordance with the requirements of Rule 31.  There are a number of reasons for this conclusion. 
    1. The effect of the AIA Act s 4, s 32A and s 36 is that “lodged” is the prima facie meaning. 
    2. Section 33 is essentially about what a prospective applicant needs to do in order to make an application to the Tribunal.  Such a person has to use the appropriate form, state the reasons for the application, and then do what is required of an applicant in order to get the application filed.  It is speaking of filing as something done by the applicant, not in terms of something done by the Registry, so it is speaking about lodging, which is what the applicant does. 
    3. It is important for a prospective applicant, wishing to file an application, to comply with any applicable time limitation.  But, as pointed out in Brennan (supra), such a time limit can operate unfairly or unjustly if an attempt to comply can be frustrated by delay on the part of the Registry, for which an applicant is not responsible.  It would be more consistent with providing a fair and accessible system of review of reviewable decisions for a time limit confronting an applicant to operate by reference to what the applicant has to do, rather than require an applicant to guess how long the Registry, over which the applicant has no control, will take to carry out whatever system is required by the Rules and Registry practice to complete the process of “filing”. 
    4. It follows that to interpret the Act as I do produces a purposive interpretation,[46] in terms of the objectives of the QCAT Act.[47]   
    5. Litigants in the Tribunal are expected to be commonly acting without the benefit of legal assistance.[48]  The provisions should therefore be interpreted in a way which facilitates the ability of such a person to use the system.[49]  Hence my reference to my “filing” an application: I thought I had done so, but, depending on just what “record” means in Rule 31(1), I may not have done so. 
    6. Section 33(2)(c) does not say “filed … in accordance with the rules.”  It could have done so; indeed the legislature adopted that approach in the very next section: see s 34(2)(b), dealing with referrals, and in s 35, where the conditions which may be imposed are those “stated in the rules”.[50] 
    7. If s 33 required that the application be filed as required by the Rules, the outcome is that the QCAT Act and the Rules provide two separate mechanisms for blocking the process: not accepting the application under the QCAT Act s 35, and refusing to file the application under Rule 31.  These have tests which are expressed differently, although in practice there is clearly a good deal of overlap.  Rather than providing a justification for the existence of two separate opportunities to reject, this suggests to me that the power in Rule 31 is not intended to apply as well as the power in s 35. 
    8. That is supported by the structure of the Rules.  Rule 31 is in Part 4 of the Rules, headed “Filing documents in proceeding”, not in Part 3, headed “Starting Proceedings”.  But there is no “proceeding” until an application is accepted: QCAT Act s 36. 
    9. That is consistent with the traditional approach of courts for an originating process to be dealt with differently from other documents.  Here that is done by the mechanism provided by the QCAT Act, “filing”, that is lodging, and acceptance under s 35.  By s 36, that is when the proceeding starts.  Incorporating the requirements of Rule 31 into the process achieves nothing useful, and potentially obstructs the process, which is in principle undesirable. 
    10. As well, in general a statute should not be interpreted by reference to subordinate legislation.  It is even less appropriate to interpret the provisions of the Act for making an application by reference to the terms of the delegation of the Principal Registrar under s 210. 
    11. What balances s 33 is the provision in s 35 for the application to be accepted, accepted with conditions, or rejected.  But that section provides that, if the application is rejected, there is an opportunity for the applicant to have that decision reviewed by the Tribunal.  Putting aside the fact that the Rules allow fourteen days for an applicant to exercise that right, the legislature, in allowing this opportunity to review a rejection (or an unwelcome condition) must have realised that such a process of review would take some time.  It seems unlikely that the legislature intended that an applicant would have a right of review which could prove futile if the review were frustrated by the expiry of the limitation period before it was over.[51]  One would expect in those circumstances for the legislature to have intended the time limit to operate by reference to what was required of the applicant. 
  2. [70]
    It is true that s 33 refers to “the Registry”, and in general the Act proceeds on the basis that the Registry of the Tribunal is the one in Brisbane.  But if s 33 requires that every application within s 33 has to be “filed” in Brisbane, that would produce an outcome inconsistent with the requirement in s 4(a) that the Tribunal must “facilitate access to its services throughout Queensland.”  It was always the intention of the legislature that the services of the Tribunal be widely available, as shown by the fact that all magistrates were made members of the Tribunal for the purpose of resolving minor civil disputes.[52]  When the QCAT Act was passed s 210 did not include a power to delegate, except to a registrar, and the Principal Registrar must have been very concerned until that power was inserted later in 2009,[53] including the reference to delegating powers to Magistrates Court staff members. 
  3. [71]
    It was always the intention that the ability to access the Tribunal’s services would be decentralised through the Magistrates Courts system, and it would be inconsistent with that objective to interpret the reference to “the registry” in s 33 as confined to the Registry in Brisbane.  The term here should be understood in the broader sense, of incorporating Magistrates Court Registries, where QCAT business could be transacted.[54] 
  4. [72]
    Once s 33 is interpreted in this way, the difficulties fall away.  The application was certainly one which could be lodged at the Southport Registry, and that occurred on 9 January 2023.  It was apparently accepted on that day, and sent to Brisbane where, almost certainly on some later but unrecorded day, it was processed and put into the system.  At some point the first respondent was provided with sealed copies of the application, which were “given”, ie, served.[55]  The proceeding commenced on 9 January 2023, under s 36, and the obligation to give such notice arose under s 38. 
  5. [73]
    Whether the application was made within time depends on the application of the AIA s 38.  On my interpretation the Southport Registry was an office at which an application “may” be lodged, so when it was closed on the last day of the twenty-eight day period, s 38(2) applied to extend time to the next day which was not an excluded day.  That was 9 January for that office, and it follows that the application was made in time.  The argument for the appellants depended on the proposition that the only registry in which the application could be “filed” was the registry in Brisbane.  I do not accept that interpretation, and it follows that there is nothing to stop s 38 applying according to its terms. 
  6. [74]
    The facts in this matter have some similarity to the facts in Magic Mountain Developments Pty Ltd v Laureate Australia Pty Ltd [1991] 2 Qd R 570.  In that case one of the issues was whether s 38 operated to extend the time for filing an appeal to the Local Government Court to the following Monday, in circumstances where the appeal could have been filed in the Southport Registry except for the fact that on the last day that Registry was closed for the Gold Coast Show Holiday.  The Full Court rejected an argument that the section did not operate because the appeal could have been filed in Brisbane, or indeed in any other District Court Registry in the State.  Williams J said at 577 that it was not to the point that other registries were open and an appeal could have been filed there, although he did note that the case involved a contract for the sale of land on the Gold Coast and an approval by the Gold Coast City Council, so that Southport was the most convenient place to file the appeal.  Ambrose J, who wrote the principal judgment, adopted the same approach at 589.[56]  He noted that a particular registry could be closed for a variety of reasons, including flooding or industrial action, and rejected a submission that that could produce an absurd result. 
  7. [75]
    A similar submission was made to me, and it was pointed out that the Magistrates Court Registry in Mossman had been closed for about a year, apparently due to cyclone damage.[57]  Presumably when it reopened there was not a hoard of aspiring litigants lined up to file various documents which would have been out of time if filed anywhere else.  But the short answer is that s 38 really does not deal with a situation where an office where a document may be filed (or lodged) is closed but others are open.  The section can only be applied according to its terms, the approach adopted in Magic Mountain. 
  8. [76]
    I should add that in 1991 s 38 was recast, and was further amended in 1993 and 2000 to bring s 38(2) and (5) into their present form,[58] so the analysis of the words used in the section in that decision does not directly apply to the current section.  But the changes were part of fairly extensive amendments to the AIA, and there is nothing to suggest that the intention was to overturn the result in Magic Mountain.  The approach, that the section must be applied according to its terms, remains valid. 
  9. [77]
    I consider that the purpose of a provision for the extension of time when an office is closed is to deal with a situation where a person turns up (in time) to lodge a document, to discover that that cannot be done, as the office is closed, and permits a person to lodge the document on the next day on which that office is open.  Ordinarily that will be advised to the public by a sign at the office, at least in the case of a routine closure.  In circumstances where the section does not deal with the possibility of the availability of other offices where the document can be lodged, it is not appropriate to speculate as to the legislative intention. 
  10. [78]
    It follows that in my opinion the decision of the Member was correct, although I have differed somewhat from his reasons.  The appeal must be dismissed.  I will give direction for any application for costs. 

Footnotes

[1]State of Queensland v Ali [2014] QCATA 14, per Wilson J, dealing with the analogous time limit for an appeal under the QCAT Act. 

[2]Syed v Chief Executive, Department of Justice and Attorney-General – Office of Fair Trading [2022] QCAT 11. 

[3]  I am using here the term “presented for filing” as a neutral expression for what she did, since there is an issue as to the correct effect of what she did.

[4]  The QCAT Act s 142(3)(a)(ii). 

[5]  Annexed to the affidavit of Maia filed 3 July 2023. 

[6]  Appeal Book p 13.  I assume this was all completed in Southport.

[7]  I have referred to the version of the QCAT Act and the Rules which were in force as at January 2023. 

[8]  In this case, the appellants. 

[9]  By Rule 17(2), this must be done within 14 days after the applicant has been given a notice under s 35(4)(a) about the principal registrar’s decision. 

[10]  Read literally, this requires the applicant to give a copy of the application to himself or herself.  The section provides for some exceptions to this, to cover the matters where the requirement to give notice of the application falls on the Tribunal. 

[11]  Although Rule 29 seems to contemplate that service copies of filed documents should be copies stamped with the Tribunal’s seal, neither the QCAT Act s 37 nor Rules 19 or 35 expressly require that sealed copies be “given”. 

[12]  Subject to a qualification in Rule 8 in the case of tenancy disputes. 

[13]  The QCAT Act s 171(2). 

[14]  The QCAT Act s 17.

[15]  The QCAT Act s 18(1). 

[16]  Note the difference between the wording of s 229 (“register containing the matters”) and s 230 (“record containing all documents”).  Besides, there does not appear to be any other provision dealing with keeping, and inspection of, the file. 

[17]  See Rule 34. 

[18]  This was done by Rule 18. 

[19]  Referred to in these reasons as “the Rules”, or, in the case of one, as “Rule”. 

[20]  This matter is also dealt with in Rule 35, which applies also to documents filed in a proceeding other than the originating document. 

[21]  The sections in Part 3 of Chapter 2 of the QCAT Act are concerned with starting a proceeding, as shown by the heading of the Part.   The QCAT Act and the Rules contemplate that a party to a proceeding may make applications in the proceeding, but there are no specific provisions dealing with such applications, the equivalent of the UCPR r 31. 

[22]Campaigntrack Victoria Pty Ltd v Chief Executive, Department of Justice and Attorney-General [2016] QCA 37 at [30], [35]. 

[23]  I consider that this is made clear by the content of the balance of s 230, which provides for the process known as searching the file.  (In the UCPR this is dealt with in more detail.)

[24]  The delegation p 8 refers to Rule 31(2) in the Reference column, but the Nature of Function column refers to the functions in both Rule 31(1) and (2). 

[25]  At least since 1 November 2022, when that delegation came into force. 

[26]  I know that the Registry keeps an electronic “record” of each proceeding which includes reference to filed documents, although it also contains communications with the parties, decisions or directions, and perhaps some other entries.  I know nothing about the process by which an entry is made in that “record”. 

[27]  There are equivalent provisions in r 969 for documents filed by post, and in r 969A for documents filed electronically, the latter containing an interesting and useful provision about when the document is taken to have been filed, which unfortunately has not been copied by the Tribunal. 

[28]  See UCPR r 984, under which clerks may be authorised to “receive and file documents”. 

[29]  See also Brennan v QBCC [2024] QCAT 37 at [14]. 

[30]CPR Solutions (supra); Mahoney v Building Services Authority [2010] QDC 214; Irwin Homes Pty Ltd v Invest Now Australia Pty Ltd [2018] QSC 114. 

[31]  Written submissions for the appellants para [50]. 

[32]  Delegation, p 7. 

[33]  Rules of the Supreme Court O 2 r 8. 

[34]  See also r 22(3), where the terminology drifts away from “issued”. 

[35]  This provided that a date of filing shall be noted on every document filed in the registry.  My recollection is that it was the duplicate original writ which was placed on the court file, as the original which was issued was to be shown to a person on whom it was served personally: O 10 r 2.  See Gower per McPherson J; sed contra Fielding v Janosevic [1983] 2 Qd R 352 at 357.  What was handed over on service was a copy with a stamp with the letters “LS” on it (locus sigilli, the place of the seal) where the office seal was stamped on the original writ.  This quaint practice did not survive in the UCPR.   

[36]Evans v Jones (1862) 2 B & S 45, 121 ER 99; E Ryan and Sons Ltd v Rounsevell (1910) 10 CLR 176, in each of which the fault was found to be on the part of a solicitor seeking to file the document. 

[37]  See also Vignes v Clarke [1990] 2 Qd R 593 at 594, 595 to similar effect. 

[38]  Citing Clarke v Bradlaugh 8 QBD at 69 per Brett LJ.  The annotations also state that it is the original writ which is returned to the plaintiff, and the duplicate (also sealed) retained and filed: 6/7/4. 

[39]  The Victorian equivalent of the Registrar.  In Queensland the Registrar of the Supreme Court also held office as prothonotary, an office inherited from the old Court of Common Pleas (See McPherson “Supreme Court of Queensland” (1989) p 72) and was given duties eo nomine by certain old statutes collected in the Supreme Court Act 1995 (Qld), some of which lasted until its repeal by the Civil Proceedings Act 2011 (Qld). 

[40]  O 61 r 18 also required the time of filing to be endorsed. 

[41]  This illustrates the significant delay which can arise if such an application is not “filed” until it has been processed in Brisbane.  The postal service is not what it was in the days when such documents would have travelled overnight to Brisbane on the Rockhampton Mail train. 

[42]  As required by the QCAT Act s 3(b). 

[43]  AIA s 4. 

[44]  This decision is an exception to my comment at [2] above, although it appears to assume that s 33 picks up the requirements of Rule 31.

[45]  This decision is also an exception to my comment at [2] above. 

[46]  The AIA s 14(1).

[47]  In particular the QCAT Act s 3(b).  See also s 4(c), (e). 

[48]  The QCAT Act s 43(1).

[49]  Consistent with the objective that the Tribunal be accessible in the QCAT Act s 3(b). 

[50]  The QCAT Act s 35(2)(b).  This was done by Rule 18. 

[51]  Consider a situation where the application is lodged within time but rejected, but on review by the Tribunal, is accepted (with or without conditions), but only after the expiration of the time limit. 

[52]  The QCAT Act s 171(2).  Note also s 163(1): the Tribunal may be constituted at any place in Queensland. 

[53]  By the State Penalties Enforcement and Other Legislation Amendment Act 2009 s 78, commencing on 19 November 2009, before the QCAT Act itself commenced on 1 December 2009.  The Explanatory Note for the Amendment Act stated on p 20 that “This amendment is made to ensure the processing and case management of QCAT matters in rural and regional areas can be carried out by appropriately qualified tribunal and court staff.”  The omission of this power initially was characterised as an error. 

[54]  I note that that is the sense in which it is used in Rule 8. 

[55]  This is an inference from the fact that the copy of the application in the Appeal Book is sealed.   By a direction on 27 April 2023 the appellants were directed to file an appeal book, so I assume this is the copy of the application served on them.  On a quick look, I cannot find any requirement that the copy of the application served be a sealed copy.  Indeed, all the QCAT Act s 37(2) requires is that a copy of the application be given. 

[56]  The third member of the Court, Shepherdson J, decided the appeal on a different point. 

[57]  Closed from 18 December 2023 (Magistrates Courts Practice Direction No 11 of 2023) until 9 October 2024: Magistrates Courts Practice Direction No 9 of 2024, although I note that it appears that temporary relocation arrangements were in place from 31 January 2024, and it was operating from a different office in Mossman at least from 10 April 2024: Practice Directions 3 of 2024 (repealed). 

[58]  By the Statute Law (Miscellaneous Provisions) Act 1991 (Qld) Schedule 1; Statute Law (Miscellaneous Provisions) Act 1993 (Qld) Schedule 1; Justice and Other Legislation (Miscellaneous Provisions) Act 2000 (Qld), Schedule. 

Close

Editorial Notes

  • Published Case Name:

    Beyond Reserve Pty Ltd v Kagawa

  • Shortened Case Name:

    Beyond Reserve Pty Ltd v Kagawa

  • MNC:

    [2024] QCATA 98

  • Court:

    QCATA

  • Judge(s):

    Judicial Member D J McGill SC

  • Date:

    07 Nov 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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Evans v Jones (1862) 2 B & S 45
1 citation
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Fielding v Janosevic [1983] 2 Qd R 352
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Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15
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Irwin Homes Pty Ltd v Invest Now Australia Pty Ltd[2018] 3 Qd R 603; [2018] QSC 114
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Queensland Building and Construction Commission v Watkins [2014] QCA 172
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Smith v Queensland Building Services Authority [2010] QCAT 448
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State of Queensland v Ali [2014] QCATA 14
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Sunup Solar Pty Ltd v Queensland Building And Construction Commission [2015] QCAT 435
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Syed v Chief Executive, Department of Justice and Attorney-General – Office of Fair Trading [2022] QCAT 11
2 citations
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Vignes v Clarke[1990] 2 Qd R 593; [1990] QSCFC 35
2 citations
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Cite 1 - [1990] 2 Qd R 593
Cite 2 - [1990] 2 Qd R 593

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SLH v Director-General, Department of Justice [2025] QCAT 132 citations
1

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