Introduction

This fact sheet outlines the options available to people unhappy about a decision made by the Queensland Civil and Administrative Tribunal (QCAT).

The following information refers to provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). An enabling Act may set out requirements which override these provisions. An enabling Act is another Act which gives the Tribunal jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling Act is the Guardianship and Administration Act 2000 (Qld).

Requesting reasons

Before deciding whether to appeal a decision, it is important to get written reasons for that decision.

If the decision was made by QCAT, then you are entitled to request written reasons within 14 days after the decision takes effect. The Tribunal is obliged to comply with this request within 45 days unless extended by the President (s 122  QCAT Act). A decision takes effect when it is made or at the time stated within the decision (s 127 QCAT Act).

If the decision was made by another entity, with appeal rights to QCAT, then you will need to look at the relevant legislation to determine your rights to written reasons.

Questions of law versus questions of fact

It is important to understand that an appeal of a decision can be made on a question of fact or a question of law, or both.

An appeal on a question of fact is one where you are arguing that the Tribunal's decision is factually wrong. For example, if you disagree with a decision because you believe the Tribunal misinterpreted the evidence, made a wrong finding of fact or placed too much weight on a particular piece of evidence, then you would appeal on a question of fact.

A question of law is one that is answered by applying legal principles, rather than making a determination on the facts and evidence. For example, an appeal on any of the following grounds is an appeal on a question of law:

• the decision applies the wrong law to the facts of the case;
• the decision misinterprets the meaning of legislation;
• the decision fails to apply relevant law;
• the decision makes a finding of fact where there is no evidence to support that finding; 
• the Tribunal did not have jurisdiction to make the decision;
• the Tribunal breached the rules of natural justice in making the decision.

Whether you seek to appeal on a question of law or on a question of fact or both will impact upon whether you need to have the permission (leave) to commence appeal proceedings.

Can I appeal?

QCAT matters may be heard by between 1 and 3 tribunal members. A tribunal member can be a judicial member or a non-judicial member. A judicial member is a member who is the President or the Deputy President of QCAT, or is a judge of the Supreme or District Court. You need to know whether the QCAT members who decided your matter were judicial members or not to work out your appeal rights.

Matters heard by non-judicial members

If the matter was heard by a non-judicial member of QCAT, an appeal of the decision is made to the QCAT Appeal Tribunal (see below).

An appeal to the Appeal Tribunal can be made on a question of law as of right, or otherwise with the permission of the Appeal Tribunal (s 142 QCAT Act).

Permission to appeal is also required to appeal:

• minor civil disputes,
• decisions which are not the Tribunal's final decision (unless it is a decision under the Guardianship and Administration Act 2000 (Qld) - see s 101 of that Act); and
• costs orders (s 142(3) QCAT Act).  

The President may transfer an appeal to the Appeal Tribunal to the Queensland Court of Appeal if that is appropriate (s 144 QCAT Act).

Matters heard by judicial members

If the matter was heard by a judicial member of QCAT, then an appeal is to the Queensland Court of Appeal.

An appeal can be made on a question of law as of right, or otherwise with the permission of the Court of Appeal (s 149 QCAT Act).

Appealing costs decisions

Costs orders may be appealed in accordance with the rules stated above. That is:

• If the Tribunal did not include a judicial member - to the Appeal Tribunal within QCAT with the permission of the Appeal Tribunal (s 142(3) QCAT Act).
• If the Tribunal includes a judicial member - to the Court of Appeal on a question of law as of right, or otherwise with the permission of the Court of Appeal.

However, cost-amount decisions may only be appealed to the Court of Appeal on a question of law only, and only with leave permission of the Court of Appeal. It does not matter whether the Tribunal did or did not include a judicial member (s 149(1) QCAT Act).

A cost-amount decision is a decision about the amount of costs to be paid, either fixed or assessed by the Tribunal under s 107 of the QCAT Act. See our factsheet on QCAT - Costs for more information.

Appealing registrar decisions to accept or reject an application or referral

When a person makes an application to the Tribunal or a matter is referred to the Tribunal, the principal registrar may decide to reject the application or referral on certain grounds (s 35 QCAT Act). The applicant may request that this decision be referred to the Tribunal for review (s 35(4)(b) QCAT Act).

The subsequent decision of the Tribunal is not appealable (ss 142(2)(a) and 149(4) QCAT Act).

Appealing decisions of the Appeal Tribunal

The following decisions of the Appeal Tribunal can be appealed:

• A refusal to grant leave to appeal to the Appeal Tribunal;
• The Appeal Tribunal's final decision; and 
• A cost-amount decision.

Appeals are to the Court of Appeal and can only be made on a question of law and only with the leave of the Court of Appeal (s 150 QCAT Act).

Powers and procedure - Appeals to the Appeal Tribunal

The Appeal Tribunal is QCAT exercising its appellate jurisdiction.  It is usually constituted by 1, 2 or 3 judicial members of the Tribunal. The normal rules and procedures of QCAT apply.

Application for appeal or leave to appeal

An application for appeal or leave to appeal must be made using a QCAT Form 39 - APplication for Leave to Appeal or Appeal. (See http://www.qcat.qld.gov.au/forms.htm)

Time limits

If the Appeal Tribunal's leave is not required, then an application to appeal must be filed within 28 days after receiving written reasons for the decision (s 143(4) QCAT Act).

If leave is required, then an application for leave to appeal must be filed within 28 days after receiving written reasons for the decision (s 143(3) QCAT Act). The appeal must be filed within 21 days after the leave is given (s 143(4)(a) QCAT Act).

The Tribunal may extend these time limits under s 61 QCAT Act, provided they would not cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to the proceeding (s 61(3) QCAT Act).

See Litzow v Racing Queensland Pty Ltd [2010] QCAT 414, where the Tribunal allowed an applicant  to file an application for review of a decision out of time.

Powers on appeal

If the appeal is on a question of law only, the Appeal Tribunal may:

• Confirm or amend the decision;
• Substitute its own decision;
• Set aside the decision and return the matter to the Tribunal or other entity who made the decision for reconsideration, with or without additional evidence as directed by the Appeal Tribunal, and with any other directions of the appeal tribunal; or 
• Make any other order it considers appropriate (s 146 QCAT Act).

If the appeal is on a question of fact or mixed law and fact, the Appeal Tribunal may:

• Confirm the decision;
• Amend the decision; or
• Substitute its own decision (s 147(3) QCAT Act).

For powers on making costs orders see the QCAT - Costs factsheet.

An enabling Act may also confer certain functions on the Appeal Tribunal, or vary or exclude functions conferred by the QCAT Act (s 6 QCAT Act).

An appeal to the Appeal Tribunal involving a question of fact must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal (s 147 QCAT Act). This means that the Appeal Tribunal determines the rights and obligations of the parties under the law as at the date of the rehearing, and may allow new evidence to be submitted.

How does an appeal affect the original decision?

The start of an appeal does not affect the operation of the original decision or prevent its enforcement.

However, the Appeal Tribunal may order a stay of the original decision until the appeal has been decided. This can be on the application of a party or on the Appeal Tribunal's own initiative (s 145 QCAT Act).

Reasons for decision

The Appeal Tribunal must give reasons for its final decision in writing to each party to the appeal and any other person the Tribunal reasonably considers should be given notice of the decision (s 148 QCAT Act).

Powers and procedure - Appeals to the Court of Appeal

An appeal to the Court of Appeal is made under the Uniform Civil Procedure Rules 1999 (Qld) (s 151(2)(a) QCAT Act). The Court of Appeal is a division of the Supreme Court and is very different to the Tribunal. 

Time Limits

An appeal, or an application for leave to appeal, to the Court of Appeal against a decision of the Tribunal must be made within 28 days after the day the person is given written reasons for the decision being appealed against (s 151(2)(b) QCAT Act).

Powers on appeal

In deciding an appeal on a question of law the Court of Appeal may:

• confirm or amend the decision;
• set aside the decision and substitute its own decision;
• set aside the decision and return the matter to the tribunal for reconsideration, with or without the hearing of additional evidence; or
• make any other order it considers appropriate (s 153 QCAT Act).

In deciding an appeal on a question of fact or mixed law and fact, the Court of Appeal may:

• confirm or amend the decision; or
• set aside the decision and substitute its own decision (s 154 QCAT Act).

An appeal on a question of fact, or mixed law and fact, must be by way of rehearing, with or without the hearing of additional evidence as decided by the Court of Appeal (s 154(2) QCAT Act).

See above in relation to the powers of the Appeal Tribunal for more information.

How does an appeal affect the original decision?

The start of an appeal in the Court of Appeal does not affect the operation or enforcement of the decision being appealed against. However, the Court of Appeal, or the Appeal Tribunal as constituted when the decision was made, may make an order staying the operation of the decision until the appeal has been decided (s 152 QCAT Act).

Reopening

In certain circumstances, the Tribunal may permit a matter to be re-opened, specifying the issues that must be heard and decided again. A hearing on reopening is by way of a fresh hearing on the merits. It is taken to be part of the original proceedings (s 140 QCAT Act).

The Tribunal may grant an application to reopen a proceeding if the party:

• did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
• would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.

This could be effectively or conveniently dealt with by reopening the proceedings (s 139(4) QCAT Act).

An application for reopening cannot be made if an application for appeal or leave to appeal has already been made (s 138(5) QCAT Act).

The decision on whether to reopen a matter cannot be challenged, appealed against, reviewed, set aside, or called in question in another way under the Judicial Review Act 1991 (Qld) or otherwise (s 139(5) QCAT Act). A reopened decision cannot be reopened again (s 140(6)).

Judicial Review

Judicial review of a decision or conduct of the Tribunal cannot be sought, except to the extent the decision or conduct is affected by jurisdictional error (s 156 QCAT Act).

Contact us

Please contact QPILCH by:

E:    qcatadmin@qpilch.org.au
T:    07 3846 6317
F:    07 3846 6311
P:    QPILCH, PO Box 3631, South Brisbane BC, Qld 4101