Chandra v Queensland Building and Construction Commission [2014] QCA 335

1. The application for leave to appeal or appeal is dismissed."

[2] Peter Lyons J in his reasons has set out the relevant background facts. I agree with his Honour that the applicant has not demonstrated that there is a right to apply for leave to appeal to this Court in respect of a QCAT order refusing an extension of time to appeal to the QCAT appellate tribunal. That, however, does not dispose of the application to this Court.

[3] In determining the application for an extension of time, the senior member ordered that the application for leave to appeal or appeal be dismissed. Until time was extended there was no application for leave to appeal or appeal. The order dismissing the application for leave to appeal or appeal was wrongly made but under s 150 Queensland Civil and Administrative Tribunal Act 2009 (Qld), it gave the applicant a right to apply for leave to appeal to this Court from that order on a question of law.

[4] It is clear from the senior member's reasons that the order dismissing the application for leave to appeal or appeal was because of the senior member's refusal of the application to extend time and not because of a decision on the merits of the proposed appeal itself. I agree with Peter Lyons J's reasons for concluding that, in light of the applicant's apparently plausible evidence explaining why he did not commence his appeal within time, that explanation should not have been rejected without giving him the opportunity to comment on any consideration not raised in the respondent's written contentions which the senior member regarded as warranting its rejection. This could have been achieved either by raising this issue at an oral hearing or by inviting further written submissions from the parties on this point.

[5] I also agree with Peter Lyons J's reasons for concluding that the senior member erred in law, first in considering there was prejudice to the home owners from granting the extension and second, in not taking into account that the period of the extension sought was relatively short. These errors of law operated upon the senior member's decision to refuse the extension of time and to subsequently dismiss the application for leave to appeal or appeal. They warrant the granting of leave to appeal and the allowing of the appeal against the order dismissing the application for leave to appeal or appeal.

[6] Whilst the applicant has not established any right of appeal in respect of the order refusing the extension of time, this Court is now aware that order was based on legal error. This Court appears to have the power to make a declaration that the order refusing to extend time is without legal effect. I agree with Peter Lyons J's reasons for concluding that, subject to anything the parties may subsequently raise, the Court should declare that the order refusing the extension of time is of no legal effect.

[7] I agree with the orders proposed by Peter Lyons J.

[8] PETER LYONS J: This matter comes before the Court by way of an application for leave to appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT), under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)[1].

[9] In 2005, the applicant was approached to provide certification for renovations to a home which had been carried out the previous year. The applicant was then a licensed building certifier under the Building Act 1975 (Qld). He provided certification for the renovations. In 2008, Mr and Mrs Niessl (home owners) purchased the house. Later that year water penetrated walls of the house, causing substantial damage. On 1 April 2009 the home owners lodged a complaint about the certification, apparently with the Queensland Building Services Authority (QBSA). In April 2011, the QBSA notified the applicant that it considered that he engaged in two counts of professional misconduct, under s 204 of the Building Act. In disciplinary proceedings commenced in QCAT by the QBSA against the applicant, a preliminary question was identified. That question related to the scope of the applicant's duty when providing the certification. A QCAT member determined the question in favour of the applicant; but the QBSA appealed. That appeal (earlier appeal) was heard by the President, and a Senior Member of QCAT, sitting as the appeal tribunal. The QCAT member's decision was reversed. The reasons of the appeal tribunal however made clear that the decision was confined to the scope of the applicant's duty, and did not consider whether he breached it. Ultimately, the appeal tribunal determined that the applicant was obliged to ensure that the renovated area complied with the requirements for a Class 1a structure.

[10] In a subsequent hearing resulting from the home owners' complaint (disciplinary hearing) it was found that the applicant was guilty of professional misconduct. A number of orders were then made. The first was that the applicant "never be re-licensed as a building certifier by the QBSA" (Order 1). A monetary penalty was also imposed. In addition, the applicant was ordered to pay the home owners a specified sum as the cost of rectification works, together with interest, by 28 March 2014 (compensation order). The decision was delivered on 22 November 2013.

[11] On 31 January 2014 an application to extend time for appealing against the decision of 22 November 2013 was lodged in QCAT. Part B of the application form required provision of details of what the applicant sought from the tribunal. They were provided in an accompanying document (applicant's extension submissions), which set out the facts relied upon by the applicant, and his submissions in support of the application. In several places the applicant's extension submissions made it plain that he did not intend to appeal against the compensation order. Thus they said that there was "no prejudice to (the home owners) because this Application for Appeal is confined to the issues of penalty, not to the compensation that Mr Chandra has to pay to (the home owners)"[2]. A little later, the following appeared, "The Applicant does not seek to appeal the compensation Order"[3].

[12] At the same time, the applicant filed a document entitled "Application for leave to appeal or appeal"[4]. It identified the relevant decision as that made in the disciplinary hearing; and in response to a question as to when the applicant received the decision, the date specified was 17 December 2013[5]. Part of the form required the applicant to state if he did not require leave to appeal; and whether he was seeking leave to appeal. He did not state that he did not require leave to appeal; but instead indicated he was seeking leave to appeal[6].

[13] The form required the applicant to specify briefly the grounds of appeal; and to provide details of orders he was asking the tribunal to make. The responses referred to an attached document. That appears to be a document entitled, "APPLICATION FOR APPEAL". This document identified the subject matter of appeal, some background facts, the grounds of appeal, and the orders sought. In a number of places, it made clear that the appeal was confined to Order 1 made in the disciplinary hearing; and expressly stated that it did not relate to the compensation order. Thus in the introductory paragraphs, it stated that the proposed appeal was "against the penalty imposed on the Applicant's professional registration by the Tribunal"; and subsequently that, "The Appeal is not in relation to the compensation Order..."[7]. The passages which follow address Order 1, and not the compensation order[8]. When the document identified the orders sought, it nominated the setting aside of Order 1, but made no reference to the compensation order[9].

[14] The document also stated that the applicant had had his licence cancelled for two and a quarter years from 5 August 2010; and that because of the disciplinary proceedings he had not applied for a building certifier's licence. It also stated that he had not worked as a building certifier since 2009.

[15] The respondent informed this Court, without objection, that it provided its submissions to the tribunal on 25 February 2014. They were not referred to in the Senior Member's reasons, save for the respondent's concession that it would not be prejudiced by an extension of time[10]. Nor have they been included in the material placed before this Court. It was not suggested that their contents (with the possible exception of the concession just mentioned) were relevant to any of the matters raised in the course of the present proceedings.

[16] The matter was then dealt with by the Senior Member on the basis of the documents that had been provided by the parties, without the parties, their representatives or witnesses appearing at the hearing[11].

[17] On 26 February 2014, the Senior Member gave her decision, refusing the extension for time (extension refusal), and dismissing the "application for leave to appeal or appeal" (refusal of leave)[12]. That resulted in a request for reasons, which were provided under cover of a letter from QCAT dated 7 April 2014. In the meantime, the applicant had filed an application for leave to appeal to this Court against her decision.

[18] The tribunal was established by s 161 of the QCAT Act. The President of the tribunal is required by s 165(1) to choose 1, 2 or 3 members or an adjudicator to constitute the tribunal for a particular matter. Thus, under s 165 of the QCAT Act, the tribunal's President may decide that the tribunal for a particular matter may be constituted by a single member. Subsections (2), (3) and (4) then provide as follows:

"165 Constitution generally

(2) The person or persons chosen by the president under subsection (1) constitute, and may exercise all the jurisdiction and powers of, the tribunal in relation to the matter.

(3) For an appeal, or a proceeding relating to an application for leave to appeal to the appeal tribunal, a reference in this Act to the tribunal includes a reference to the appeal tribunal constituted, or to be constituted, for the appeal or proceeding.

(4) Subsection (3) does not limit another reference in this Act to the tribunal being taken to include a reference to the tribunal as constituted by the appeal tribunal, if the context requires or permits."

[19] Section 166 of the QCAT Act is of some relevance to the capacity in which the Senior Member dealt with the proceeding below. Section 166(1) provides that the appeal tribunal is to be constituted for an appeal or an application for leave to appeal, by 1, 2 or 3 judicial members. However, the following then appears:

"166 Constitution of appeal tribunal

(2) If the president considers it appropriate for a particular appeal or application for leave to appeal, the president may choose 1, 2 or 3 suitably qualified members to constitute the tribunal for the appeal or application, whether or not in combination with a judicial member."

[20] In the context of these provisions, it is also convenient to refer to the definition of "appeal tribunal"[13], which is as follows:

"appeal tribunal means the tribunal constituted, or to be constituted, under section 165 for the purpose of -

(ii) a decision of another entity under an enabling Act for which the enabling Act confers appeal jurisdiction on the tribunal; or

(b) deciding an application for leave to appeal against a decision mentioned in paragraph (a)(i) or (ii)."

[21] Chapter 2 Part 1 deals with the jurisdiction of the tribunal. Section 9 includes the following:

(1) The tribunal has jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act.

[22] The provisions relating to the tribunal's appeal jurisdiction include the following:

The tribunal has jurisdiction to hear and decide an appeal against a decision of the tribunal in the circumstances mentioned in section 142."

[23] The tribunal is given the status of a court of record by s 164 of the QCAT Act. The manner in which it is to conduct its proceedings is regulated by s 28, which includes the following:

(2) In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.

(3) In conducting a proceeding, the tribunal -

(b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and

(c) may inform itself in any way it considers appropriate; and

(d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and

(e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts."

[24] Section 29(1)(a)(ii), consistently, requires the tribunal to take all reasonable steps to ensure each party to a proceeding understands the nature of assertions made in the proceedings and the legal implications of the assertions. This provision also requires the tribunal to take all reasonable steps to "understand the actions, expressed views and assertions" of a party to a proceeding before it, with specific reference to the party's age, any disability, and cultural, religious and socioeconomic background. Section 95(1) requires the tribunal to allow a party to a proceeding reasonable opportunity to do a number of things, including calling or giving evidence, and making submissions. These things are consistent with the objects of the Act, which include to have the tribunal deal with matters in a way that is fair[14].

[25] Under s 142(1), a party to a proceeding in the tribunal may appeal to the appeal tribunal against a decision of the tribunal, provided that a judicial member did not constitute the tribunal in the proceeding. There was no suggestion that the Senior Member was a judicial member[15]. Subsection (2) excludes some types of decisions from the operation of subsection (1), but they are not relevant. Under s 142(3), an appeal on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the appeal tribunal's leave to appeal.

[26] Under s 143, an application for the appeal tribunal's leave to appeal must be filed within 28 days after the "relevant day". An appeal must be filed, if the appeal tribunal's leave is required, 21 days after the leave is given; or otherwise within 28 days after the "relevant day". It would appear that the "relevant day" in the present case was the day the applicant was given written reasons for the decision in the disciplinary hearing[16]. However, this was not the subject of submission at the hearing.

[27] The power to extend time for an appeal or an application for leave to appeal is found in s 61 of the QCAT Act, which, relevantly includes:

(a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or

(b) extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or

(c) waive compliance with another procedural requirement under this Act, an enabling Act or the rules.

(3) The tribunal cannot extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.

(5) The tribunal's power to act under subsection (1) is exercisable only by -

(a) the tribunal as constituted for the proceeding; or

(b) a legally qualified member, an adjudicator or the principal registrar."

[28] The applicant relied upon s 150 of the QCAT Act for the application and proposed appeal to this Court. It is as follows:

"150 Party may appeal - decisions of appeal tribunal

(1) A person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.

(2) A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal -

(3) However, an appeal under subsection (1) or (2) may be made -

(b) only if the party has obtained the court's leave to appeal."

[29] The applicant's extension submissions, after indicating that the applicant wished to appeal against the disciplinary decision, stated that the appeal "should ordinarily be lodged within 28 days of the decision". It then referred to s 61 of the QCAT Act. Under the heading "BACKGROUND", after a statement that the decision was made on 22 November 2013, the following appeared[17]:

"3. The Applicant was only advised of the Decision by his solicitor by email on 17th December 2013".

[30] A little later, it set out an explanation for the delay. It stated that the applicant left Australia on 11 December 2013 to visit an ill relative in India, and did not return until 2 January 2014. While he was away, the applicant had difficulty with communications and emails, including with his solicitor. His solicitor was on vacation from 22 December 2013 until 13 January 2014. On 13 January 2014 the applicant contacted his solicitor to obtain advice in relation to the decision. He expected to be able to file the application on 28 January 2014.

[31] The document addressed the strength of the case on the proposed appeal, stating that the grounds were set out in the draft application for appeal; and that the strength of the grounds could only be assessed at the hearing of the appeal.

[32] The submissions also dealt with prejudice. It was submitted that there was no conceivable prejudice to the respondent. Nor was there prejudice to the home owners because, as has been stated earlier, the proposed appeal related only to Order 1, and not to the compensation order.

[33] The submissions made the point that the delay was short; and that the application could not have realistically been made earlier, because the tribunal was closed over the Christmas vacation, and because the applicant's solicitor was unavailable over the Christmas-New Year period.

[34] Some submissions were made under the heading, "FAIR AND EQUITABLE". They referred to the fact that the applicant's registration had previously been cancelled for a period of two and a quarter years, for later conduct; and to the length of time that had passed since the certification which led eventually to the disciplinary hearing. They contended that the penalty was overly harsh, having regard to the age of the applicant, his loss of earning ability, and his responsibility to extended family. They noted that the only limitation on the power to extend time was that found in s 61(3) of the QCAT Act, namely, that the extension would cause prejudice or damage to a party to the proceedings that could not be remedied by an order for costs or damages. They referred to a statement in a decision of this Court[18] said to set out principles relevant to the granting of an extension of time, including that there is a tendency to relax rigid time limits where that can be done without causing prejudice or injustice to the parties.

[35] At the outset, the Senior Member identified the applications before her as an application for leave to appeal; and an application for an extension of time[19].

[36] The Senior Member accepted the explanation for delay from 22 December 2013 to 13 January 2014[20]. However, the reasons stated that the applicant received a copy of the decision by email on 17 December 2013; and that the applicant "is silent about when his lawyer received a copy of the decision"; and "about why he did not receive a copy of the decision before he left for India"[21]. They noted the absence of an affidavit from the lawyer "about what happened between 22 November 2013 and 17 December 2013". The Senior Member stated that if the delay was as a result of error by the lawyer, "the tribunal would giver (sic) serious consideration to an extension of time. In the absence of an explanation, however, I can only assume that nothing was done and there was no good reason for that omission[22]."

[37] Shortly after, the reasons referred to a previous application for leave to appeal from a decision of the tribunal, and observed that the applicant is "not a stranger to the tribunal's procedure". Accordingly, the reasons stated, he should have been "aware of the need to move quickly", and concluded that his explanation for the delay is "not compelling"[23]. With regard to the prospects on appeal, the reasons referred to the grounds in the application for appeal. These were said to be cast in general terms. The reasons continued[24]:

"Although parties generally have to (sic) opportunity to expand on their grounds for leave to appeal, one would expect some detail in the initial grounds for the application. For example, what is the basis for submitting there has been a denial of natural justice? What was the alleged error by the learned Member? Where is the evidence of bias? The submissions as framed have a flavour of a scattergun approach."

[38] After further discussion, the Senior Member stated that she could not conclude that the application had no merit, but that she was not persuaded that it had prospects of success.

[39] With respect to prejudice, the Senior Member stated that the applicant had not worked as a building certifier since 2009. Accordingly, this was not a case where the applicant would be deprived of the occupation in which he had engaged until the primary decision[25]. The reasons then continued[26]:

"The facts giving rise to this application occurred in 2006. The homeowner suffered damage in 2008. The homeowner lodged a complaint with the Authority in 2009. The homeowner is entitled to finality. Allowing an extension of time would deprive the homeowner of the right to recover compensation for an event that occurred over five years ago."

[40] In conclusion, the Senior Member observed that the tribunal "requires parties to take proceedings seriously and not assume that 'informal' means 'casual'. (The applicant) had the knowledge, means and the time to protect his interests. He failed to do so and he has not explained his failure to my satisfaction[27]."

[41] The applicant submitted that leave should be granted to appeal to this Court because he had been prevented from having his appeal to the appeal tribunal heard according to law. His submissions were not adequately considered by the appeal tribunal, in part because the appeal was heard on the papers when that course was not appropriate. The Senior Member should have recused herself because of her previous involvement in the proceedings against the applicant, where a finding was made against him.

[42] It was apparent from the Senior Member's reasons that she reached a point, particularly in considering the proposed grounds of appeal, where she should have given the applicant the opportunity to respond by way of an oral hearing. The submission relied upon R (West) v Parole Board[28]. Her failure to do so resulted in a denial of natural justice.

[43] In particular, the Senior Member failed to give adequate consideration to the applicant's submissions relating to the brief period of delay for which an extension was sought. She also failed to consider the applicant's submissions in relation to prejudice. She failed to consider the applicant's submissions in relation to what was fair and equitable (which included the submissions relating to the harshness of the penalty because of its impact on his ability to earn income). With reference to Khan v Minister for Immigration and Ethnic Affairs[29] it was submitted that the Senior Member ought to have given "proper, genuine and realistic consideration" to the applicant's submissions, and it was apparent that she did not. The Senior Member's failure to consider the applicant's submissions was relied upon in support of the allegation of apparent bias.

[44] From the applicant's oral submissions, it became clear that there was considerable overlap between the grounds on which he relied.

[45] For the respondent, it was submitted that the earlier decision to which the Senior Member had been a party involved a question of law only. No finding was made adverse to the applicant. Accordingly, this case did not involve apparent bias.

[46] The respondent submitted that the applicant had consented to a hearing on the papers, having been informed that it was proposed. The applicant was bound by its consent. The course which the determination took did not effect the position.

[47] Otherwise, the submissions for the respondent generally controverted the oral submissions for the applicant. However, the respondent acknowledged that the Senior Member's finding that to allow an extension of time to the applicant would deprive the home owners of their right to compensation was in error; and confirmed that it would not itself suffer any prejudice from an extension of time.

[48] The Court sought submissions on the competence of the appeal, a matter not raised earlier by the parties. The applicant referred to the fact that the orders made by the Senior Member included orders dismissing the applicant's application for leave to appeal.

[49] Section 150 of the QCAT Act creates a right of appeal (subject to leave) to this Court only against a decision of the appeal tribunal. A question arose whether the Senior Member, in determining the applications, constituted the appeal tribunal.

[50] An application for an extension under s 61 of the QCAT Act of the time in which to make an application for leave to appeal to the appeal tribunal is, in my view, a proceeding relating to an application for leave to appeal. On that basis, the appeal tribunal is, by virtue of s 165(3), given jurisdiction to deal with such an application. Alternatively s 61(5) provides that the tribunal's powers to grant such an extension is exercisable "only by ... the tribunal as constituted for the proceeding". If the Senior Member had been chosen by the tribunal's President to constitute the tribunal for the application for leave to appeal under s 165(1), then she alone, as the appeal tribunal, had the power to extend time, by virtue of s 61(5). That reading of s 61(5) is available by reference to s 165(4).

[51] On either view, the legislation authorised the Senior Member (if so chosen by the tribunal's President) to constitute the appeal tribunal for both applications.

[52] It is somewhat unsatisfactory that the record does not make plain that the Senior Member was chosen by the tribunal's President to constitute the appeal tribunal for the purpose of the application for leave to appeal; if not expressly for both applications. However, it seems unlikely that she would have proceeded to determine the applications, unless chosen to do so by the tribunal's President. So far as the application for leave to appeal is concerned, only the appeal tribunal could, by virtue of s 142(3) of the QCAT Act, grant such leave. Section 166(2) confirms that the tribunal's President might choose only one member to constitute the appeal tribunal for such an application[30].

[53] Moreover, it is apparent that the Senior Member considered that she constituted the appeal tribunal[31].

[54] In those circumstances, in the absence of evidence to the contrary, and particularly in light of s 142(3), I am prepared to conclude that the proceedings came before the Senior Member in accordance with the requirements of the QCAT Act, and that she constituted the appeal tribunal for the purpose of determining them. Indeed, that conclusion may be mandated by s 236[32], though this section was not the subject of submissions.

[55] It follows that the application before this Court is an application for leave to appeal from decisions of the appeal tribunal of QCAT.

[56] Section 150(1) of the QCAT Act confers an express right of appeal to this Court (subject to leave) against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal. One of the applications dealt with by the Senior Member was, on its face, such an application. It would follow that there is a right to appeal to this Court against the Senior Member's decision on that application.

[57] It is apparent from the Senior Member's reasons that she considered she was dealing with an application for leave to appeal to the appeal tribunal[33]. Her references to an "application for leave to appeal or appeal" appear to refer to the form[34], which is on its face a form designed to be used both for such an application and for an appeal. It is apparent from the document lodged on behalf of the applicant with the tribunal that he considered that he required leave, and was applying for it. At the hearing in this Court, a question arose as to whether in truth leave was required; but in view of the fact that the applicant applied for leave, as the Senior Member's reasons recognised, it seems to me unnecessary to consider this question further.

[58] It follows that, by virtue of s 150(1) the applicant has a right to appeal to this Court (subject to leave) against the Senior Member's refusal of leave to appeal.

[59] No attempt was made to demonstrate that an appeal lies to this Court against the extension of time refusal. That would appear to depend on whether it was "the final decision" of the appeal tribunal[35]. Relevantly, that is defined[36] to mean "the tribunal's decision that finally decides the matters the subject of the proceeding". The application of this definition requires the identification of the proceeding. That word is itself defined[37] to mean "a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal". There is some scope for debate about the effect of these provisions. Since we have not had submissions about their effect, I propose to proceed on the basis there is no right to appeal to this Court against that decision.

[60] Section 32(2) of the QCAT Act authorised the appeal tribunal to conduct the proceeding without an oral hearing "if appropriate". The helpful decision of the Deputy President of the tribunal, sitting as the appeal tribunal in Lyons v Dreamstarter Pty Ltd[38], points to the need for the appeal tribunal to accord natural justice, notwithstanding s 32. That is consistent with provisions of the QCAT Act, referred to previously.

[61] Often it will be appropriate to determine applications, such as those which were being decided by the Senior Member, without an oral hearing. However, in a particular case it may not be appropriate to do so, or to continue to do so. It will be (or become) inappropriate, if that would deny a party a fair opportunity to be heard.

[62] Reference has already been made to s 28 of the QCAT Act, which requires the tribunal to act fairly; and to observe the rules of natural justice. In West their Lordships were required to consider whether those rules, in a particular context, made an oral hearing necessary. Two cases were considered together. Each involved prisoners who had been released on licence, but whose licence had been subsequently revoked. Each then applied to the Parole Board for re-release, which was refused on the papers, without an oral hearing. Each then applied, unsuccessfully initially, for judicial review of the Board's refusal.

[63] The applicant relied upon the following passage from the judgment of Lord Slynn of Hadley in West[39]:

"There is no absolute rule that there must be an oral hearing automatically in every case. Where, however, there are issues of fact, or where explanations are put forward to justify the actions said to be a breach of licence conditions, or where the officer's assessment needs further probing, fairness may well require that there should be an oral hearing. If there is doubt as to whether the matter can fairly be dealt with on paper then in my view the board should be predisposed in favour or an oral hearing."

[64] His Lordship's statement applied to the particular applications which led to the appeal before him. Nevertheless, it may be regarded as identifying considerations relevant to determining whether or not a failure to accord an oral hearing amounts to a breach of the requirements of natural justice in the present case.

[65] His Lordship, on this topic, agreed with the reasons of Lord Bingham of Cornhill[40], as did Lord Walker of Gestingthorpe[41], Lord Carswell[42], and, substantially, Lord Hope of Craighead[43]. Lord Bingham commenced his consideration of the topic by asking what fairness, in a particular context, requires[44]. His Lordship derived guidance from statements by Mason J in Kioa v West[45], where his Honour said that the expression "procedural fairness" conveys the notion of "a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case." The content of the obligation was to be determined by a consideration of the statutory requirements, the interests of the individual concerned, and the interests and purposes, whether public or private, which the relevant statute seeks to advance or protect; or which it permits to be taken into account as legitimate considerations. Thus his Lordship determined the question by reference to the statutory context; the public interest, in particular a consideration of the safety of the public; and the individual prisoner's interest in his freedom. He said that[46] an oral hearing is most obviously necessary to achieve a just decision in a case were facts are in issue which may affect the outcome of the proceedings. His Lordship also relied[47] on statements from the judgment of Brennan J in Goldberg v Kelly[48], which included the following:

"... written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important".

"The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society."

[67] The immediate statutory context in the present case is the provision of a right of appeal against a decision of the tribunal. Decisions which are made in a disciplinary proceeding may be protective of the public; but can also have considerable significance for the person against whom the proceedings were brought.

[68] Broader context is provided by the Act as a whole. A number of provisions of present relevance have been referred to earlier. They strongly support the view that, in any matter before the tribunal, including the appeal tribunal, care must be taken to ensure that a party has a fair opportunity to deal with matters which may be potentially of importance in coming to a decision adverse to it. That is a consequence of s 28(2) and s 28(3)(a); and is consistent with s 29(1)(a)(ii).

[69] One of the objects of the QCAT Act is to have the tribunal deal with matters in a way that is, amongst other things, "economical, informal and quick"[50]. In general, the determination of applications such as those before the Senior Member, without an oral hearing is, in principle, to be encouraged. However the objects of the Act also include having the tribunal deal with matters in a way that is "fair (and) just"[51]. To achieve the objects of the Act, the tribunal is required to ensure that proceedings are conducted "in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice"[52]. In light of these provisions, and the provisions of s 28, the requirements of a fair hearing are not to be sacrificed to achieve economy, informality and speed.

[70] The applicant had in his submissions advanced what appears to be a good explanation for his failure to apply for leave to appeal prior to 17 December 2013. He was not advised of the decision until that day. Nevertheless, the Senior Member considered that he did not provide a satisfactory explanation for the period from 22 November to 17 December. She also considered that if delay between 22 November and 17 December was "because of the lawyer's error"[53], she would have given serious consideration to an extension of time. The reasons appear to attribute some fault to the applicant for the fact that he did not receive a copy of the decision before 17 December; on a basis not raised by the material before the Senior Member; and which the applicant had no reason to anticipate. Indeed, it is implicit in the reasons that the Senior Member did not accept the applicant's statement that he was only advised of the decision by his solicitor on 17 December. It is difficult to see how she could have reached that position fairly, without giving the applicant notice and an opportunity to respond. He was at least entitled to be informed that his statement was in issue[54]. The oral submissions for the respondent accepted that the applicant was entitled to procedural fairness on this matter; but submitted that this was provided by the initial opportunity given to the applicant to make submissions[55]. For the reasons given, I do not accept this to be correct.

[71] I shall refer more extensively to the Senior Member's finding about prejudice to the home owners later in these reasons. It is sufficient to say that, in light of the material the applicant had placed before the Senior Member on that question, and in the absence of any other relevant material, she should not have come to that conclusion, without giving the applicant the opportunity to comment on any consideration which might be regarded as justifying it.

[72] The views which I have expressed are, it seems to me, consistent with the observation of Lord Bingham about the difficulties in effectively dealing with a matter, without knowing the points which are troubling the decision-maker. It was not suggested that some mechanism, other than an oral hearing, could more appropriately have dealt with these difficulties.

[73] In my view, the applicant was not given a fair hearing by the Senior Member. That could have been achieved by an oral hearing.

[74] The striking feature of the present case is the conclusion by the Senior Member as to prejudice to the home owners, if an extension of time were granted. In light of the material placed before the tribunal by the applicant, the conclusion of the Senior Member on this question can only be described as extraordinary. It was plain that the applicant did not intend to appeal against the compensation order. Nothing has been identified in the QCAT Act which could conceivably have provided a basis for the conclusion of the learned Member. In fact, s 145 provides that the start of an appeal against a decision does not affect the operation of the decision, nor does it prevent the taking of action to implement the decision. In light of this provision, it is not possible to see how the Senior Member could have proceeded from the fact that the applicant sought an extension of time within which to apply for leave to appeal against Order 1 to a conclusion that the extension of time (or even the grant of leave to appeal) would have any effect on the home owners' right to recover money payable under the compensation order.

[75] The respondent correctly conceded that this conclusion was in error[56]. Since the reasons do not demonstrate how the Senior Member reached that conclusion, there is some difficulty in identifying the error.

[76] The Senior Member's reasons demonstrate some awareness of some of the contents of the material filed on behalf of the applicant. However, the conclusion she reached about prejudice to the home owners, without reference to what appeared in the applicant's material relating to the nature of the proposed appeal, and to the absence of prejudice to the home owners, strongly suggests a complete failure on the part of the Senior Member to pay attention to these aspects of the applicant's material. They were of considerable significance. They identified the true nature of the proposed appeal, and accordingly the nature of the application for an extension of time, and for leave to appeal. On the application for an extension of time, they were potentially of critical importance.

[77] In Dranichnikov v Minister for Immigration and Multicultural Affairs & Indigenous[57] Gummow and Callinan JJ held that the tribunal whose decision resulted in the matter coming before the High Court had misunderstood and failed to deal with an important aspect of Mr Dranichnikov's case[58]. Their Honours continued[59],

"To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice."

[78] Their Honours went on to conclude that what occurred in the tribunal was "a constructive failure to exercise jurisdiction"[60]. Hayne J agreed with the reasons of Gummow and Callinan JJ[61]. Gleeson CJ made it clear that his dissent was not based on any disagreement on a matter of principle[62].

[79] In Plaintiff M61/2010E v The Commonwealth[63], the judgment of the Court relied upon the conclusions of Gummow, Callinan and Hayne JJ in Dranichnikov[64] in relation to the failure to accord natural justice, for the following conclusion:

"... failing to address one of the claimed bases for the plaintiff's fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. The failure to deal with the claim was a denial of procedural fairness".

[80] The Senior Member's reasons do not record any consideration of the fact that only a short extension of time was required. Nor do they reflect any consideration of the propositions from Muirhead relied upon in the applicant's submissions. In light of her failure to consider the material relating to absence of prejudice to the home owners, it seems to me reasonable to conclude that they, too, were not given any consideration by the Senior Member, and I do so. They raise matters which were not without importance, though not necessarily critical to the outcome of the applications.

[81] The applicant submitted the Senior Member failed to take into account his submission that Order 1 was overly harsh because of the loss of his earning capacity. It is not clear to me that that is correct. The Senior Member said that this was not a case where a person would be deprived of the occupation in which he had engaged until the primary decision[65]; and elsewhere referred to the "lifetime ban in one's chosen profession"[66]. Ordinarily, as the Senior Member recognised, a significant impact on earning capacity is a matter to be given considerable weight[67]. It seems to me that the applicant has not demonstrated this submission to be correct.

[82] Nevertheless, the applicant has shown that the Senior Member failed to give consideration to significant matters advanced in his submissions. She thereby failed to comply with the statutory obligation to accord natural justice. That the scope of the obligation extends to proper consideration of the submissions of a party is confirmed by the requirement (found is s 29(1)(b)) that the tribunal take all reasonable steps to understand the expressed views and assertions of a party.

[83] In Ebner v Official Trustee in Bankruptcy[68] it was held that the test for determining whether someone in the position of a judicial officer should not determine a matter was said to be whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question that person is required to decide. It was accepted by the respondent that this was the appropriate test to be applied to the appeal tribunal. In my view, the respondent was correct to do so. Under s 162 of the QCAT Act, in exercising its jurisdiction, the tribunal must act independently. Under s 164, it is given the status of a court of record. Its jurisdiction includes jurisdiction to determine minor civil disputes[69], which are disputes of a kind which would otherwise be determined in a court[70]. The fact that its Members include Judges and Magistrates[71] also support this conclusion. Finally there are the obligations to act fairly, and to act in accordance with the substantial merits of the case, as well as the obligation to accord natural justice, found in provisions mentioned earlier.

[84] The cases relied upon by the respondent[72] demonstrate that ordinarily, the involvement of a judicial officer in earlier proceedings which did not result in findings on a party's credibility, and in particular, which determined only a question of law, does not mean that the officer is disqualified from hearing later proceedings involving that party, on the ground of apparent bias. However, it remains necessary to apply the test stated in Ebner in each case, and it seems to me to be by no means inconceivable that in a particular case, something may have occurred at an earlier hearing on a question of law which would mean that a judicial officer should not hear a later, related matter.

[85] The earlier appeal involved only a question of law. Nothing which occurred at it provided, of itself, a proper basis for concluding that the Senior Member should have disqualified herself from hearing the applicant's applications, on the ground of apparent bias.

[86] The applicant relied upon the Senior Member's failure to consider matters raised by him in the proceedings in the tribunal as demonstrating apparent bias. In the absence of a coherent explanation for the failure by the Senior Member to consider those parts of the material submitted to the tribunal by the applicant which made it plain that his application did not seek to overturn or vary the compensation order, it may well be that a fair-minded lay observer might reasonably apprehend that the Senior Member did not bring an impartial mind to the determination of the applications. However, because of the way the hearing of the application proceeded in this Court, the respondent's lawyer may have thought it unnecessary to address this question. Its determination is unnecessary in view of the conclusions I have otherwise reached, and I do not propose to consider it further.

[87] The respondent did not submit that, if the applicant was successful on any of the matters which have been considered, nevertheless the application for leave should be refused, or any appeal dismissed[73].

[88] Insofar as the refusal of the application for leave to appeal to the appeal tribunal was a direct product of the reasons of the Senior Member, the present application for leave should be granted, the hearing treated as the hearing of the appeal, the appeal allowed, and the appeal tribunal's decision on that application set aside. It may however be the case that this decision of the appeal tribunal is a consequence of its decision to refuse the applicant's application for an extension of time.

[89] In a case where a tribunal is required to accord procedural fairness as an aspect of the requirements of natural justice, a failure to do so by failing to give the party a proper opportunity to present its case results in jurisdictional error, with the consequence the decision lacks legal foundation and is properly to be regarded "as no decision at all"[74]. It follows, in my view, that the Senior Member's refusal of the application for an extension of time is a decision of no legal effect. On that basis, the same orders should be made relating to the application to the appeal tribunal for leave to appeal to it.

[90] In this Court, the parties have presented arguments in relation to the appeal tribunal's decision on the application for an extension of time. Their submissions dealt with the question whether the appeal tribunal failed to accord the applicant natural justice by not conducting an oral hearing; and whether it failed to give consideration to the submissions made to it by the applicant. This Court, in the present proceedings, may exercise every power of the Supreme Court[75]. That includes the power to make declarations as to the validity of orders of bodies such as the tribunal. In view of the conclusion stated earlier, it seems to me, on what has been thus far raised by the parties, appropriate that this Court should make a declaration that the appeal tribunal's refusal of the application for an extension of time is of no legal effect. I would therefore consider it appropriate to identify the orders I would propose, and give directions permitting the parties to make submissions about the proposed orders, and costs.

[91] The orders I would propose, subject to a consideration of any further submissions, are as follows:-

1. The applicant is granted leave to appeal from the decision of the Queensland Civil and Administrative Tribunal of 26 February 2014, dismissing the applicant's application for leave to appeal or appeal.

2. The appeal is allowed, and the decision referred to in paragraph (a) is set aside.

3. It is declared that the decision of the Queensland Civil and Administrative Tribunal of 26 February 2014, refusing the applicant's application to extend or shorten a time limit or for waiver of compliance with procedural requirement, is of no effect.

4. The matter is to be returned to the Queensland Civil and Administrative Tribunal to be reconsidered and determined in light of these reasons, the Tribunal to be differently constituted.

[92] On the publication of these reasons, I would propose that the following directions be made:

1. The parties are at liberty, if they so choose, to file written submissions about the form of orders proposed in paragraph 91 of the reasons for judgment of Peter Lyons J, by 30 January 2015.

2. The parties are at liberty, if they so choose, to file written submissions about orders for costs (including any application by the respondent for an indemnity certificate), by 30 January 2015, in accordance with paragraph 52(4) of Practice Direction 3 of 2013.

3. Unless such submissions are filed, the orders will be as proposed in paragraph 91 of the reasons for judgment of Peter Lyons J.

[93] NORTH J: I have had the benefit of reading the reasons of Peter Lyons J. I agree with his Honour's reasons concerning the background, the statutory context and the competence of the application[76]. I also agree that the Senior Member failed to accord the applicant natural justice contrary to s 28(3)(a) of the Act upon the question of the applicant's explanation for his delay and in consequence ordering the dismissal of the appeal.[77] His Honour's thorough treatment of the foregoing makes it unnecessary for me to repeat or traverse these matters in detail. Nevertheless this brief chronology puts the issue in focus.

Application to "extend time" to appeal filed[78].

Application for leave to appeal decision filed.[79]

Directions made for hearing of application to "extend time" on the papers including that the respondent's material be filed by 4 pm on 25/2/14.[80]

Respondent's submissions in reply filed.[81]

Decision of the tribunal dismissing the application to "extend time" and the application for leave to appeal or appeal.[82]

[94] I agree with Peter Lyons J that the Senior Member might have avoided the pitfall of failing to accord the applicant natural justice if she had conducted an oral hearing prior to determining the application before her. The circumstance that the Member had reservations whether the applicant had satisfactorily explained delay and thereby whether a discretion should be exercised to order or allow an extension of time required, in order to afford the applicant natural justice, that the Senior Member draw her reservations to the attention of the applicant and his advisors before determining the application adversely to the applicant. Thus the Senior Member should have afforded the applicant the opportunity to make further or more detailed submissions and, if available, submit further evidence.

[95] But in my view an oral hearing was not the necessary condition in order to accord the applicant natural justice, but one of alternative modes of procedure that might have been adopted to avoid a breach of s 28(3)(a). For example, in the circumstance of a determination on the papers the Senior Member might have alerted the applicant to the issue that was troubling her and invited him to make further submissions or provide further evidence by correspondence. While it may be that an oral hearing in many circumstances might be the more flexible or direct means whereby a decision maker might raise matters and afford a party the opportunity to address a troubling issue this could also be done, in the context of a determination on the papers, by raising these issues through written directions and correspondence and often at less cost to all.

[96] The chronology suggests haste in the disposition of the matter. A reasonable inference from the short period between the filing of the respondent's response to the application to extend time and the determination of the application (which involved dismissal of the appeal) is that it was impossible for the applicant to make any response in reply even if he had been afforded the opportunity. The Senior Member dismissed the applicant's application to extend time in which to appeal or seek leave to appeal because she determined he had not satisfactorily explained his delay. That decision was fatal to the application for leave to appeal because, having been filed late, it was incompetent. Thus the Senior Member's failure to accord the applicant natural justice upon the issue of his delay and the explanation for it lay at the heart of her dismissal of his appeal.[84] As Peter Lyons J has explained it is only the second order that can be appealed, with leave, to this court.[85]

[97] I agree with Peter Lyons J that a declaration should be made in respect of the order by the Senior Member dismissing the application to extend time[86] and with the orders proposed by his Honour.

[98] In view of the foregoing I do not consider it necessary to consider whether the Senior Member failed to accord the applicant natural justice by failing to give consideration to the submissions advanced on behalf of the applicant in the circumstances suggested by Peter Lyons J. Nor do I consider it necessary to address the issue of apparent bias.

[1] References to provisions of this Act in these Reasons are to the version current as at 1 January 2014. There has been no subsequent change to any provision of the Act referred to.

[2] Application Record (AR) p 87, para 19.

[7] AR p 93, introductory paragraphs 2 and 4.

[8] See AR p 94, para 6 (first); paras 2 and 6.

[15] See the definition of that expression in Schedule 3 of the QCAT Act.

[18] Muirhead v The Uniting Church Australia Property Trust (Q) [1999] QCA 513 (Muirhead) at [4] per Pincus JA.

[28] [2005] UKHL 1; [2005] 1 WLR 350 (West).

[29] [1987] FCA 457; (1987) 14 ALD 291, 292 per Gummow J.

[32] See also the definition of "official" in Schedule 3.

[33] AR p 67, para [2]. See also the catchwords at AR p 66.

[38] [2011] QCATA 142.

[45] [1985] HCA 81; (1985) 159 CLR 550, 585.

[48] [1970] USSC 68; (1970) 397 US 254, 269.

[54] See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29]- [35]. Section 29(1)(a)(ii), (b) and (2) assume that the issues will be identified by the parties. There was no suggestion that the respondent took issue with the applicant's statement.

[55] Transcript of application hearing of 31 July 2014 (T) 1-37 to 42.

[57] (2003) 197 ALR 389 (Dranichnikov).

[63] [2010] HCA 41; (2010) 243 CLR 319 at [90].

[64] These cases are discussed M Aronson and M Groves, Judicial Review of Administrative Action (LawBook Co, 5th ed, 2013) at [7.20].

[68] [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [6].

[70] See the definition of "minor civil dispute" in Schedule 3 of the QCAT Act.

[72] Radin v Commonwealth Bank of Australia [1999] FCA 418; Hudson v Whalan [1999] FCA 189.

[73] Although the submissions in this Court were directed extensively to matters which led to the refusal of the application for an extension of time, the respondent did not consider there was an issue about the applicant's right to appeal to this Court: T1-35, lines 3-4.

[74] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [51] and [53]; see also [40]-[44], [63], [67], [147], [149].

[75] See s 29(3) of the Supreme Court of Queensland Act 1991 (Qld).

[77] See further his Honour's reasons at [61] - [74].