Perhaps you’re involved in a civil dispute with your neighbour about a dividing fence. Maybe you’re a tenant who has an issue with your landlord. You might feel you’ve been discriminated against in the workplace, or you need to apply for guardianship of an elderly relative. Perhaps you are on the wrong end of a decision by a government agency, or wish to pursue a disciplinary issue against police or health professionals. In any of these cases, you will likely end up interacting with the Queensland Civil and Administrative Tribunal (QCAT).
QCAT exists to resolve disputes and make decisions in a way that is “fair, just, accessible, quick and inexpensive”. Its set-up is less formal than a court, but it can still make final decisions that are binding on the parties. For that reason, if a judicial member of QCAT (someone able to make an ‘enforceable’ decision) makes a decision with which you don’t agree, there are avenues of appeal.
Who classifies as a judicial member of QCAT?
A judicial member of QCAT includes:
- the tribunal’s president and deputy president;
- a supplementary member who is a Supreme Court judge or District Court judge;
- a senior member or ordinary member who is a former judge and the president nominates to exercise the tribunal’s power to make an order or give a direction.
Non-judicial members are all other QCAT members, including adjudicators.
How is an appeal made?
If you disagree with a decision made by QCAT, your avenues of appeal are to the QCAT Appeal Tribunal or Queensland Court of Appeal (a division of the Queensland Supreme Court).
Only decisions made by non-judicial members of QCAT can be made to the QCAT Appeal Tribunal. Decisions made by judicial members of QCAT must be appealed to the Court of Appeal.
In order to make an appeal to the Court of Appeal, you must demonstrate that it is based on:
- a question of law, i.e. a question which must be answered by applying relevant legal principles, by an interpretation of the law; or
- a question or fact, i.e. a question which must be answered by reference to facts and evidence, and inferences arising from those facts; or
- a question of mixed law and fact.
If you’re applying on a question of law, you do not have to ask the Court of Appeal for permission to appeal QCAT’s decision. If you are appealing on a question of fact, or a mixed question of fact and law, you must seek the Court’s permission in order to appeal.
In hearing the appeal, the Court will conduct a new hearing which will consider the original information and evidence presented. Any new information and evidence may only be presented if you make an application to the Court of Appeal and your request is approved.
It should be noted that an appeal does not affect the operation of the original QCAT decision, although in some cases the QCAT or the Court of Appeal can make an order staying, or temporarily stopping, the decision from being carried out until the appeal is finalised.
Deciding whether to appeal
In order to decide whether you have grounds to appeal an QCAT decision based on the reasons above, you should first apply for written reasons for the decision. A person is entitled to request reasons for a decision within 14 days after the decision takes effect, which is usually the day on which the decision was made. Applications can be made online at the QCAT website or by completing the QCAT ‘request for reasons form’.
QCAT must respond to your request within 45 days and this may result in provision of a transcript or audio recording of the part of the hearing during which the reasons for the decision were orally given.
In reviewing these reasons it’s important to identify any errors which would justify you commencing an appeal, and this is where expert legal advice can prove vital in determining whether an appeal is the wisest course.
A lawyer with expertise in QCAT processes can help answer questions such as:
- What findings of fact were made?
- What legal rules did QCAT apply and how did it apply them to the facts?
- Were there any defects or errors in the procedures that QCAT used?
- Did QCAT consider everything that it was required to consider, or omit to consider anything that it was required to consider?
Reopening proceedings and setting aside decisions
In some cases an appeal of a QCAT decision may not be appropriate. Instead, in cases where you did not attend the hearing at which the decision was made, or you have been made aware of significant new evidence since the time of the hearing, it’s possible under the QCAT Act to apply to re-open the proceedings.
It’s also possible to apply to have the decision set aside if QCAT made a decision by default when you did not respond to an application made against you. In deciding an application to set aside a default decision against you, QCAT will consider:
- whether the applicant can demonstrate a prima facie defence;
- whether the applicant can provide an explanation as to why they failed to file a response;
- whether the applicant delayed in making the application to set aside the decision;
- the applicant’s good faith, including their conduct in the proceedings before and after the default decision was made; and
- whether the other party would be prejudiced if the default decision was set aside.
You should also note that an application to appeal against a QCAT decision to the Court of Appeal must be lodged within 28 days of you receiving the reasons for the decision.
Seek legal advice
QCAT makes findings on what can often be controversial issues between citizens, sometimes later enforceable in court when made by a judicial member of the Tribunal, so disagreement with some of their decisions is inevitable.
If this is your situation, it’s advisable to seek legal advice as to the best way to proceed. Hannay Lawyers can help analyse your matter to determine whether you should apply to reopen the proceedings, have the decision set aside, or appeal the decision to the Court of Appeal. Call us today on (07) 3184 2323.