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Appealing a QCAT Decision

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Appealing a QCAT Decision

Decisions handed down by the Queensland Civil and Administrative Tribunal (QCAT) are only able to be appealed in certain circumstances. There are particular decisions that cannot be appealed against, these include:

• Decisions to accept or reject an application made by the Principal Registrar or a delegate
• A direction to accept or reject an application made by QCAT to the Principal Registrar
• A default decision
• Decision to reopen a proceeding

If your decision does not come within one of these categories then you may be able to appeal against the decision.  The process of appeal will depend upon the type of decision that was made, the categories of decisions are:

• minor civil dispute
• the amount of costs awarded (cost amount)
• whether to award costs or not rather than the amount of costs awarded
• interim decision
• decision made by a judicial member
• decision made by a non-judicial member.

Time Limit

The time limit for lodging an application to appeal against a QCAT decision is within 28 days of receiving written reasons for the decision.  Failure to lodge your appeal within this time will allow QCAT to refuse your application.  Only under exceptional circumstances will an extension of time be granted.  In order to apply for permission to appeal against a QCAT decision, you must lodge a Form 39- Application for leave to appeal or appeal.

Effect on original QCAT decision

In most cases, the original QCAT decision will continue to take effect regardless of an intention to appeal, however you may request that decision does not take effect until after the appeal application is decided (a ‘stay’ of the decision). An application to do so must be lodged at the same time of lodging an appeal. To apply for a stay of the decision, you must lodge a Form 44- Application to stay a decision.

Minor Civil disputes

Appeals against minor civil disputes must be heard by the QCAT Appeal Tribunal.  You may appeal a decision based upon a question of law or fact, or both law and fact.  You must provide reasons based upon the evidence or reasons for decision as to why there has been an error or substantial injustice.  It is important to know that permission to appeal will not be granted in cases where the reasons for appealing are insufficient.  You may not appeal a decision simply because:

• you disagree with QCAT’s decision;
• you believe that a different decision may have been made had it been heard by a different person;
• you failed to provide all available evidence in the first hearing;
• the evidence of another person was preferred to your evidence;
• you do not agree with the evidence that QCAT relied on;
• you are seeking a second chance to present your case in pursuit of a more preferable outcome

The Tribunal will reconsider all original information and evidence; however will only consider new evidence and facts in very limited circumstances upon approval of an application to do so.

The outcome of the appeal may be to:

• confirm the decision
• amend the decision
• set aside the decision and hand down a new decision, or
• set aside the decision and require the decision to be reconsidered by QCAT

Decision whether to award costs or not

Appeals of a QCAT decision on whether to award costs or not must also be heard by the QCAT Appeal Tribunal.  The decision may be appealed based upon a question of law or fact, or both law and fact.  A similar process and outcomes to that described above for minor civil disputes will be followed.

Interim decision

An interim decision is one that is not a final decision.  The appeal of an interim decision must also be heard by the QCAT Appeal Tribunal.  The decision may be appealed based upon a question of law or fact, or both law and fact.  A similar process and outcomes to that described above for minor civil disputes will be followed.

Decision made by non-judicial member

A non-judicial member is either an adjudicator or ordinary member. Decisions made by non-judicial members are heard on appeal by the QCAT Appeal Tribunal. The decision may be appealed based upon a question of law or fact, or both law and fact.  A similar process and outcomes to that described above for minor civil disputes will be followed however if the question relates solely to one of law, and is not a decision about a minor civil dispute, decision whether to award costs or not or interim decision; the requirement to ask for permission to appeal is waived.

Decision about the amount of costs awarded:

Decisions pertaining to the amount of costs awarded must be appealed to the Court of Appeal.  Decisions may only be appealed based upon a question of law.  Appeals based upon facts will not be allowed.  The Court of Appeal will reconsider all original information and evidence; however will only consider new evidence and facts in very limited circumstances upon approval of an application to do so.

The outcome of the appeal may be:

• confirm the decision
• amend the decision
• set aside the decision and hand down a new decision, or
• set aside the decision and require the decision to be reconsidered by QCAT

Decision made by judicial member

A decision made by a judicial member is one made by the president or deputy president, a senior or ordinary member who is a former judge or a Supreme Court or District Court judge who is a supplementary member.  Decisions made by judicial members may only be appealed to the Court of Appeal.  The decision may be appealed based upon a question of law or fact, or both law and fact.  A similar process and outcomes to that described above for a decision about the amount of costs awarded will be followed, however if the question relates solely to one of law, the requirement to ask for permission to appeal is waived.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au