QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Green Engineering Pty Ltd v Ballinger [2021] QCATA 49	
PARTIES:	Green Engineering Pty Ltd	
	(applicant)	
	V	
	Stephen Ballinger	
	(respondent)	
APPLICATION NO:	APL232-20	
ORIGINATING APPLICATION NO:	MCDQ8/20 (Cleveland)	
MATTER TYPE:	Appeals	
DELIVERED ON:	6 April 2021	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Senior Member Howard	
ORDERS:	1.	The application to stay a decision filed on 21 December 2020 is dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).	
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – powers and functions – where party brought an application for stay of a decision pending appeal – where no appeal to the tribunal available under statute – where appeal outside of jurisdiction – where no basis for grant of a stay - whether application to stay a decision should be dismissed on the basis that it is misconceived 
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ch 2 pt 1 div 2, ch 2 pt 1 div 3, s 47, s 48, s 145, ch 2 pt 8 div 1, ch 2 pt 8 div 2, s 150, s 152, s 165
Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175	
APPEARANCES & REPRESENTATION:		
Applicant:	Robson G of GLR Law	
Respondent:	Self-represented	
	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
[1]	On 6 April 2021, I made a decision to dismiss an application to stay a decision of the Appeal Tribunal dated 14 October 2020.  These are the reasons for my decision.
Background
[2]	The Tribunal made a decision in a Minor Civil Dispute proceeding to the effect that Green Engineering must pay to Stephen Ballinger the sum of $7,317.00.  
[3]	Green Engineering Pty Ltd filed an application for leave to appeal or appeal the Tribunal’s decision (the first appeal) outside of the prescribed time limits for filing the appeal.  It filed an application for an order staying the operation of the Tribunal’s order on same date.
[4]	On 11 August 2020, Green Engineering was directed by the Appeal Tribunal to file an affidavit of service of the application for leave to appeal or appeal on Mr Ballinger, and an application for an extension of time to file the application for leave to appeal or appeal together with any submissions in support.
[5]	On 7 September 2020, the Appeal Tribunal made directions extending the time for Green Engineering to file and serve its application for an extension of time and supporting submissions. It further directed that if Green Engineering Pty Ltd failed to comply by the specified date (of 21 September 2020), the application for leave to appeal or appeal and the application to stay a decision may be dismissed without further notice to the parties.
[6]	On 14 October 2020, the Appeal Tribunal made an order dismissing the application for leave to appeal or appeal, as follows:
1.	The application for leave to appeal or appeal is dismissed, pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009, on the basis of non-compliance with the Appeal Tribunal’s Directions.
[7]	The learned Member gave reasons for this decision, which included relevantly:
(i)	No application for an extension of time to file the application for leave to appeal or appeal was filed by 21 September 2020 or by the time of the Order made on 14 October 2020.
(j)	By Order made on 14 October 2020 the application for leave to appeal or appeal was dismissed, pursuant to section 48 of the QCAT Act on the basis of non-compliance with the Appeal Tribunal’s Directions.
…
The relevant history of the matter set out in this Decision demonstrates that the applicant failed to comply with the Direction made on 7 September 2020 to seek an extension of time for the filing of its application for leave to appeal or appeal.
[8]	On 21 December 2020, a further application to stay a decision was accepted by the registry as filed by email by solicitors for Green Engineering. The registry file reveals that the solicitors also attempted to file by email an application for leave to appeal or appeal at the same time (the second appeal). Further, the solicitors indicated to the registry that hard copies of the application and an application for leave to appeal or appeal were sent by post. The registry has no record that the hard copies have been received at any time.
[9]	The application to stay a decision has been referred to me. The stay application sets out the following information:
The Applicant is seeking a stay of the decision made in APL232-20 pending appeal.  The grounds for appeal relate to QCAT, as a matter of law, erring in dismissing the appeal.  The Appeal was dismissed for failure to comply with Orders however, QCAT did not consider that revised Orders made on 8 September 2020.  The Applicant says that they had never been provided with any electronic copy as per Order 2 made on 8 September 2020.
[10]	Further, the application states:
1.	The Respondent to the appeal is aggressively pursuing enforcement in the Magistrates Court
2.	As a matter of law, the Respondent has proceeded incorrectly against the Appellant – the Appellant was the wrong party to pursue for his claim.  An error of law was made in the orignal (sic) Judgment.
Statutory provisions about bringing of appeal proceedings
[11]	Generally speaking, appeals and applications for leave to appeal may be brought in the Appeal Tribunal of QCAT in respect of decisions made by non-judicial members in the Tribunal’s original and review jurisdictions. Chapter 2, Part 8, Division 1 of the QCAT Act entitled ‘Appeals to Appeal Tribunal’ sets out the relevant provisions. I do not need to set them out in full here. Pursuant to s 145 of the QCAT Act, the appeal tribunal as constituted for the appeal or a judicial member may stay the operation of the tribunal’s order which is the subject of the appeal, pending the appeal being finally decided.
[12]	Appeal from a decision of the Appeal Tribunal may be made to the Court of Appeal as provided for in s 150 of the QCAT Act, only with the leave of the Court and only on a question of law.
[13]	Relevantly, Chapter 2, Part 8, Division 2 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) is entitled ‘Appeals to Court of Appeal’. Chapter 2, Part 8, Division 2, section 150 of the QCAT Act is entitled ‘Party may appeal-decisions of appeal tribunal’.  That section relevantly provides that a party to an appeal under Division 1 of Chapter 2, Part 8 (that is, appeal proceedings brought in the appeal tribunal) may appeal to the Court of Appeal against a decision of the appeal tribunal which is the final decision in an appeal.
[14]	A ‘final decision’ is defined to mean the ‘tribunal’s decision that finally decides the matters the subject of the proceeding’.  A ‘proceeding’ is defined to generally 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’.  Section 165 of the QCAT Act provides:
(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.
[15]	Section 152(1) of the QCAT Act states that the start of an appeal under Chapter 2, Part 8, Division 2 (that is, an appeal to the Court of Appeal) against a decision of the tribunal ‘does not affect the operation of the decision or prevent the taking of action to implement the decision’.  However, section 152(2) provides:
the Court of Appeal, or the tribunal as constituted when the decision was made, may make an order staying the operation of the decision until the appeal is finally decided.
[16]	Accordingly, the appeal tribunal that made a final decision has power to stay its decision which is the subject of an appeal to the Court of Appeal until the appeal is finally decided.
Can the stay application proceed before the appeal tribunal?
[17]	As set out earlier, the application for leave to appeal or appeal was dismissed by the Appeal Tribunal on 14 October 2020 for non-compliance with directions pursuant to s 48 of the QCAT Act. The order dismissing the application was a final decision disposing of the appeal proceeding.  The appeal proceedings were at an end. 
[18]	The application for a stay order filed on 21 December 2021 was it seems intended to be filed with a (further) application for leave to appeal or appeal in the Appeal Tribunal. It appears based on the stay application that challenge was intended to be made to the decision of 14 October 2020. Although not entirely clear, it seems that the argument sought to be made is that the application for leave to appeal or appeal should not have been dismissed for non-compliance by Green Engineering because the Principal Registrar had not provided it with an electronic copy of the  application for an extension of time in accordance with the directions dated 7 September 2020 (mistakenly referred to by Green Engineering as made on 8 September 2020).
[19]	In any event, having regard to the appeal provisions set out earlier, there is no provision in the QCAT Act for an appeal to be brought in the appeal tribunal in respect of an Appeal Tribunal decision and, absent an appeal in the Court of Appeal, no provision empowering the appeal tribunal to make orders staying the operation of a decision of the appeal tribunal. The appeal proceedings were at an end once the decision of 14 October was made. Any further appeal as may be available, could only be to the Court of Appeal. 
[20]	(To be clear, the appeal tribunal also has power to stay the operation of an order of the tribunal made at first instance in its original and review jurisdictions pending determination of an appeal under Chapter 2 Part 8 Division 1. However, that does not assist here.)
[21]	Accordingly, I find the application for a stay order filed on 21 December 2020 is misconceived.   
[22]	Section 47 of the QCAT Act provides:
(1)	This section applies if the tribunal considers a proceeding or a part of a proceeding is - 
(a)	frivolous, vexatious or misconceived; or
(b)	lacking in substance; or
(c)	otherwise an abuse of process.
(2)	The tribunal may – 
(a)	if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or party be dismissed or struck out …
[23]	Pursuant to s 47 of the QCAT Act, I make orders dismissing the application for a stay order.
Observations
[24]	Further, for completeness, I make the following observations about the ground apparently sought be raised in the second appeal based on the contents of the application for a stay decision.  Green Engineering contends that the Principal Registrar did not provide an electronic copy of the application for an extension of time.  The Tribunal file shows that an electronic copy of the application for an extension of time was in fact provided by the Principal Registrar as directed.  However, that is irrelevant in any event. Green Engineering had an obligation to act in its own interests and comply with the directions requiring it to take relevant steps in the appeal proceeding, (noting that it had in any event sought to file its application for leave to appeal or appeal outside of the prescribed 28-day time limit in the first place).
[25]	Accordingly, there is no apparent merit in the ground apparently sought to be raised in the second appeal, even if, which I do not accept, it had been properly brought.