Self-executing orders
A decision of Justice Thomas, President of the Qld Civil and Administrative Tribunal (QCAT) highlights the importance for a complainant to comply with directions of the tribunal to file contentions and other material.
The complaint of a teacher of race discrimination was referred to the tribunal in June 2013, and directions were made requiring the complainant to file contentions by 17 September 2013. The complainant had not filed the contentions by March 2014, at which time the respondents applied to have the complaint struck out. The tribunal declined striking out the complaint and instead ordered the complainant to file particulars of her claim by 31 March 2014. The tribunal also ordered that if the complainant failed to comply with the directions the complaint would be dismissed without further order. (This type of order is called a self-executing order.)
On the due date of 31 March 2014, solicitors acting for the complainant sent a facsimile to the tribunal asking for an extension of time. The letter came to the attention of a tribunal member the following day, and was treated as an application for an extension of time. The respondents applied for a question of law to be referred to the President of the tribunal. The question of law was whether the complaint was dismissed by the complainant's failure to comply with the direction of the tribunal made on 17 March 2014.
The President noted that section 127(b) of the QCAT Act provides that where a decision of the tribunal is said to take effect at a date later than the date of the order, the decision takes effect on the later date or time. He considered the wording of the order, and thus its operation, was clear; that the complaint was dismissed when there was a failure to comply with the direction by the due date and time. In the absence of grounds to reopen a case or to correct an error, there is no power in the QCAT Act to revive proceedings that have been dismissed.
The President also made some observations which he said apply to the tribunal in general:
- Other than in exceptional circumstances it is neither 'fair' or 'just, nor consistent with the overriding principles of natural justice and procedural fairness that a request for an extension of time (received just before the due time on the due date) should be considered by the tribunal without notice to the other party.
- It is the obligation of the party making the application, not the tribunal, to ensure the other party is given adequate notice.
- It is incorrect to conclude that once such a letter has been sent to the tribunal the matter is beyond the control of the party.
- The objective of the tribunal is to provide a fair and just process in accordance with the overriding principles of natural justice and procedural fairness.
- Other aims of the tribunal must be balanced with that overarching objective, and do not take precedence or apply to the exclusion of overarching principles, and cannot give rise to private rights enforceable in the tribunal.
- Finality in decision-making is a key public interest consideration of the tribunal in carrying out its functions and administering justice; and
- If a tight reign is not kept on litigation 'cases could be delayed interminably and costs heaped up indefinitely' (In Re the Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318, per Sir Frederick Gordon CJ at 322).
Rintoul v State of Queensland (No. 2) [2014] QCAT 332 (11 July 2014)
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