Applying to QCAT for review of a Blue Card related decision

Applying to QCAT for review of a Blue Card related decision

The Queensland Civil and Administrative Tribunal (QCAT) can review certain Blue Card related decisions made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act)

This factsheet is written for persons who are unfamiliar with that legislation.

Blue Card Services

  • Blue Card Services (BCS), a public service unit administered by the Department of Justice and Attorney-General since 1 October 2016 is responsible for regulating the issue of Blue Cards and Exemption Cards, which are mandatory for people employed or volunteering in certain child-related positions in Queensland. Blue Card Services was previously administered by the Public Safety Business Agency.
  • Blue Cards are issued to eligible persons working or volunteering in regulated areas, including sport, education, child care services and the care of children under the Child Protection Act 1999 (Schedule 1 WWC Act).
  • Exemption Cards are issued to eligible registered teachers and police officers in Queensland providing regulated services to children outside of their professional duties.
  • When the BCS receives a Blue Card application, BCS must either issue a positive notice (granting a Blue Card) or a negative notice (refusing a Blue Card) (section 220 WWC Act).
  • In some cases, BCS must issue a positive notice unless the case is exceptional (section 221 WWC Act). That may happen, for example, if a person has been convicted of an offence other than a serious offence (as defined in Schedule 2 WWC Act).
  • In other cases, BCS must issue a negative notice unless the case is exceptional (section 225 WWC Act). That may happen, for example, if a person has been convicted of a serious offence.
  • If a person does not agree with a decision of BCS about a Blue Card, the person may be able to apply to QCAT for review of the BCS decision.

Applying to QCAT for review of a BCS decision

  • A person can only apply to QCAT for review of a BCS decision if the person is not disqualified from applying under the WWC Act. Also, only certain BCS decisions can be reviewed by QCAT (sections 353 and 354 WWC Act).
  • BCS decisions that can be reviewed by QCAT are called chapter 8 reviewable decisions and are set out in section 353 WWC Act. They include, for example, a decision to issue a negative notice to a person who was not convicted of a serious offence.

What is the limitation period to apply to QCAT?

  • A limitation period is a length of time within which legal action must be started. If legal action is not started within that time, a person may be prevented from commencing any action, even if it has legal merit.
  • A person applying to QCAT for review of a BCS decision must file a review application in QCAT generally within 28 days from the day the person receives notice of the decision (sections 353 and 354 WWC Act).
  • QCAT may grant an extension of time for a person to file a review application in exceptional circumstances (section 61 QCAT Act).

QCAT review of Blue Card related decisions

  • QCAT decides review applications by way of a fresh hearing (section 20 QCAT Act).
  • A review by QCAT is undertaken under the principle that the rights and well-being of children are paramount (section 360 WWC Act). That means that the right of children to be protected from risk of harm prevails over a person’s right to hold a Blue Card.
  • Like BCS, QCAT also applies the law set out in the WWC Act. For example, if QCAT is reviewing a decision to cancel a Blue Card because a person’s police information has changed, QCAT must consider the matters set out in section 226 WWC Act, including:
    • if the police information is about a conviction or a charge;
    • if the alleged offence is a serious or disqualifying offence;
    • when the offence is alleged to have been committed;
    • the nature of the offence; and
    • the sentence imposed by a court and the court’s reasons for its decision.
  • When exercising its review jurisdiction, QCAT considers if BCS made the correct decision in assessing the risk of harm to children if a Blue Card is granted to a person, based on the merits of each case (section 19 QCAT Act).
  • Each case is different. QCAT weighs up many factors to decide if a risk of harm to children is likely to materialise if a Blue Card is granted to a person. Those factors are called risk factors and protective factors.
  • Examples of risk factors include a person’s:
    • offending behaviour;
    • history of abuse, neglect, drugs or alcohol issues;
    • history of fractured relationships; and
    • lack of remorse and insight into the offending behaviour.
  • Examples of protective factors include:
    • evidence of steps taken by a person to manage the causes of the offending behaviour;
    • evidence from a doctor or psychologist that a person is suitable to work with children;
    • a person’s honesty and insight into the offending behaviour; and
    • a person’s supportive and stable relationships.
  • QCAT will not allow a person to hold a Blue Card if that would expose children to an unacceptable risk of harm.
  • QCAT decisions about Blue Card review proceedings are published by the Queensland Supreme Court Library and can be found here.

QCAT pre-hearing process

  • When QCAT receives a valid application seeking review of a BCS decision (QCAT Form 23), QCAT serves a copy of the application on BCS.
  • Within 28 days from receiving a copy of the review application, BCS must file in QCAT a written statement with reasons for the decision (section 21 QCAT Act).
  • The BCS statement of reasons includes all documents and information that BCS used to make its decision, including for example information received from the police, Director of Public Prosecutions, Corrective Services, Child Services, the Mental Health Court and the Mental Health Review Tribunal.
  • QCAT may make orders about how a review application will progress and direct the parties to attend one or more compulsory conferences.
  • QCAT cannot suspend a BCS decision until a review application is decided (section 354 WWC Act). That means that the filing of a review application in QCAT does not affect the operation of a BCS decision.

QCAT hearing

  • The hearing of a Blue Card review application is held in private and only persons authorised by QCAT are allowed to attend. The parties present at a hearing are usually the applicant, a BCS representative, lawyers if the parties are legally represented, support persons and witnesses while they are giving evidence (section 361 of the WWC Act).
  • There are special provisions in the QCAT Act and the WWC Act about special witnesses giving evidence, including children and people who QCAT consider may be disadvantaged due to a mental, intellectual or physical impairment (section 99 QCAT Act; sections 364- 367 WWC Act).
  • QCAT decisions involving children or vulnerable people are de-identified if they are published, to protect the identity of these parties. However, other details of the case may be published unless QCAT makes a non-publication order.
  • QCAT may make a non-publication order on its own initiative or if a party to the proceeding applies for the order (section 66 QCAT Act; QCAT Form 40).

Post hearing process

  • QCAT may decide a review application at the hearing or deliver its decision at a later date, for example if the presiding member needs more time to consider the matter or gather information.
  • When deciding the application QCAT may either:
    • confirm a BCS decision;
    • amend a BCS decision;
    • substitute a BCS decision by its own decision; or
    • set aside a BCS decision and return the matter to BCS for reconsideration, with any directions QCAT considers appropriate (section 24 QCAT Act).
  • If QCAT grants a review application, the applicant must liaise with BCS to have a Blue Card issued. A QCAT decision to grant a review application does not automatically issue a person’s Blue Card.

Appeals

  • Appeals are very technical legal proceedings. Appeal rights, either to the QCAT Appeal Tribunal or to the Queensland Court of Appeal, will depend on whether the appeal relates to a question of law or fact, and whether a matter was heard by a judicial member.
  • If a person is considering appealing a QCAT decision, it is strongly recommended that the person apply for reasons for the decision and obtain legal advice before filing an appeal.
  • A person can request written reasons for a QCAT decision within 14 days from the decision taking effect (section 122 QCAT Act). A decision generally takes effect on the date it is made, unless QCAT provides otherwise.

For more information, refer to the Appeals factsheet on the LawRight website.

Costs

  • There is no filing fee to apply to QCAT for review of a Blue Card decision of BCS.
  • For information about costs orders, refer to the Costs in QCAT factsheet on the LawRight website.


Disclaimer

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.


Discrimination

Discrimination

Discrimination law governs the protection from and prevention of unlawful treatment on the basis of various attributes including race, sex, sexuality, age, disability, pregnancy, marital status, religion or political belief or activity.

Factsheets

External Resources

  • Australian Human Rights Commission– The Australian Human Rights Commission is Australia’s independent human rights body which also helps people resolve complaints of discrimination and other breaches of human rights through their complaint handling service.
  • Queensland Human Rights Commission (QHRC)- The Queensland Human Rights Commission receives and deals with complaints of discrimination and other contraventions of the Anti-Discrimination Act 1991 (Qld), and promotes human rights in Queensland.
  • Discrimination and sexual harassment fact sheet– Legal Aid Queensland provides a detailed fact sheet on the law around discrimination and sexual harassment.

Where to go for help

  • Queensland Advocacy Inc (QAI)– Systems advocacy and legal advocacy organisation for people with disability in Queensland
  • Cairns Community Legal Centre– Disability Discrimination Legal Service – The Disability Discrimination Legal Service provides free legal services for people who have been discriminated against because of their disability.
  • Disability Discrimination Advocacy Service– The Welfare Rights Centre provides this Service, which gives free advice and advocacy for people who have been discriminated against in the workplace because of their disability.
  • Speaking Up for You Inc (SUFY)– SUFY is an independent individual social advocacy organisation for people with a disability in Brisbane.
  • You may wish to approach a community legal centre for assistance. To find your nearest community legal centre, please visit the Community Legal Centres Queensland website at communitylegalqld.org.au. There are a number of community legal centres throughout Queensland that hold regular advice sessions.
  • LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups.For more information about the help available, and the process for applying for help, please see the LawRight website at lawright.org.auIf your matter has not resolved in the Anti-Discrimination Commission and is proceeding to QCAT, LawRight may be able to help you through its Self Representation Service.

If you need assistance with civil law proceedings in the Supreme or District Courts or the Court of Appeal, the Federal Court or Federal Circuit Court or in QCAT please complete our Application Form. If you want help completing the form, please email statecourtsadmin@lawright.org.au. Lodge the form at admin@lawright.org.au.  You can also phone  3738 7800  and leave a message. Queensland Civil and Administrative Tribunal (QCAT) Office Level 11, National Australia Bank (NAB) Building 259 Queen Street Brisbane QLD 4000 Phone:  (07) 3738 7800 Email: srsadmin@lawright.org.au


Discrimination claims in the Federal Circuit Court

Discrimination claims in the Federal Circuit Court

This factsheet sets out the process to make a claim in the Federal Circuit Court ("the FCC") under the:

  • Racial Discrimination Act 1975 (Cth);
  • Sex Discrimination Act 1984 (Cth);
  • Disability Discrimination Act 1992 (Cth); or
  • Age Discrimination Act 2004 (Cth).

In most cases any claim under these laws must be started in the Australian Human Rights Commission ("the Commission"). The Commission will organise a mediation between you and the person you are complaining about to try to resolve your complaint. If no agreement is reached through mediation, the Commission will terminate your complaint and give you a Notice of Termination that will let you make an application to the FCC if you want to continue.

It is important to understand that the acceptance and mediation of a complaint by the Commission does not necessarily mean that the complaint has a good chance of succeeding. Pursuing a case beyond the Commission stage and going to court is time consuming. If you don't have a good case and go to court anyway, you may be ordered to pay the other party's legal costs, which can be very high. Therefore, before you go to court you should think about whether you have the evidence to prove your cause of action.

Time limits

An application to the FCC must be made within 60 days of the date on the Notice of Termination you receive from the Commission.

How to apply

To apply to the FCC under one of the above discrimination acts, you will need to prepare:

  1. Application - Human Rights; and
  2. Applicant's Genuine Steps Statement.

Application - Human Rights

The Application - Human Rights has a number of different parts. Below are specific comments about some of the sections, but generally:

  • You will be the Applicant and the Respondent will be the person or company who you allege has committed unlawful discrimination against you;
  • At the bottom of the first page of the Application, you will need to set out your details, including a street address within Australia that you are happy for the other party and the court to send any relevant documents to; and
  • Before you lodge your Application with the court you will need to attach a copy of the complaint you made to the Commission and a copy of the Commission's Notice of Termination.

Part A - Final and Interim Orders

Under Part A of the Application, you will need to list the final and interim orders you are asking the court to make.

An interim order is an order you want the court to make straight away, before deciding your overall claim. This might include an order that you can have an extension of time to lodge your claim with the FCC if you did not file your Application within the 60 day time period.

Final orders are the orders you want the court to make after hearing your case, such as an apology or compensation.

It is important to note that damages in discrimination claims are designed to place applicants in the position in which they would have been if there had not been an act of unlawful discrimination committed against them - they are not designed to impose punishment on the Respondent. Generally, there are three types of damages you can claim:

  • Special damages, which includes economic loss. An example would be loss of earning capacity if a person left their job because of sexual harassment. They could claim damages for the time between when they left the job and when they found an alternative job;
  • General damages, which includes non-economic loss for hurt and humiliation; and
  • Exemplary or aggravated damages. Exemplary damages are only awarded in limited circumstances where there is evidence of malevolence, spite or ill will.

It is essential that you have evidence of the loss and damage you say you have suffered.

Part B - Grounds of Application

In this section, you will need to set out the factual basis for your claim (that is, you will need to list the facts that demonstrate you have a cause of action). The purpose of this section is to tell the court your story and explain why you should get the orders you are asking for. Try to be as clear and concise as possible and relate the facts without emotion or personal comment.

The facts you will need to include will vary depending on what breach of the discrimination law you say has happened.

For example, if your complaint is that you were subject to age discrimination during an employment recruitment process, the facts you are relying on could look something like this:

On 1 March 2013 I saw the position of salesperson at Bob Egg Pty Ltd ("the Respondent") advertised in The Courier-Mail.
On 12 March 2013 I forwarded my completed application for the position to the Respondent via email.
On 30 March 2013 I attended an interview at the Respondent's premises at 100 Bob Egg Lane, Brisbane.
On 12 April 2013, I spoke to Susan Egg, a representative of the Respondent, by telephone. We had the following conversation:

Susan said: "Hi Larry, this is Susan. I'm calling to tell you that you have been unsuccessful in your application as salesperson at Bob Egg Pty Ltd."
I said: "I'm sorry to hear that, can you give me any feedback about my application?"
Susan replied: "You had all the necessary qualifications but we were looking for someone younger than you to fill the position so we went with a different candidate."
Since that time, I have applied for five other jobs but have been unable to secure a position.

Genuine Steps Statement

The Civil Dispute Resolution Act 2011 (Cth) requires that parties to court proceedings take genuine steps to resolve a dispute before commencing proceedings. For discrimination matters, this requirement is fulfilled by the mediation process you would have completed with the Commission as long as you genuinely participated in that process and did not unreasonably refuse any offers made by the other party.

Failure to take genuine steps to resolve a dispute before coming to court will not invalidate the court proceedings but may impact on what orders the court makes about costs at the end of the proceedings.

The Applicant's Genuine Steps Statement requires you to list the steps you have taken to resolve the dispute before filing proceedings. For example, you might say:

  • Attempts have been made to mediate through the Australian Human Rights Commission.
  • The Australian Human Rights Commission has issued a Notice of Termination for matter [INSERT THE COMMISSION REFERENCE], which is the matter dealing with the dispute between myself and the Respondent which is the subject of this Application, on the basis that there was no reasonable prospect of the matter being resolved.
  • The Respondent refused to participate in the mediation process before the Australian Human Rights Commission.

Filing and serving your documents

Once you have completed both forms you will need to lodge them with the court (called filing). You can file your documents online or in person at the Federal Circuit Court Registry.

There will be a filing fee payable to lodge your application (currently $55 but check current fees here). In certain circumstances you can apply for a waiver of this fee. See our Fee waiver guide - Federal Circuit Court factsheet for more information.

A sealed copy (which is a copy stamped by the court) will then need to be personally served on all the people you have named as Respondents at least seven days before the first court date.

For an individual, personal service means that the document must be taken to the person, the person must be identified as the person named on the document, and the document handed to them. If the person refuses to take the document, the person serving it may put the document down in the presence of the person to be served and tell the person what the document is. If you are not comfortable serving the creditor yourself, you can get a bailiff of the court or a process server to do it for you for a fee.

For a corporation, personal service requires you to go to the registered office of the corporation and to leave a copy of the documents with a person in the service of that corporation. The registered office of a corporation can be different from the company's principal place of business. You should obtain a current company extract from the Australian Securities and Investments Commission which will show the company's registered address.

In addition to serving any Respondents, you will need to give a sealed copy of your court documents to the Commission at least five days before the first court date.

Progress of proceedings

When you file your documents, you will be given a time and date for the first hearing of your Application, which will be a directions hearing.At the directions hearing, the FCC will give you and the Respondents a time line to complete all the necessary documents and meetings needed to get the proceedings ready for a trial.Throughout the proceeding you can expect:

  • To be served with a Response from the Respondent or a Notice of Address for Service. (see rules 4.03, 4.04, and 6.01(2) of the FCC Rules);
  • To be required to file and serve affidavit material which will contain your evidence and that of your witnesses (see Division 15.4 of the FCC Rules);
  • To receive affidavit material from any Respondents;
  • To attend a mediation; and
  • To attend a final hearing at which all your witnesses must be present to be cross-examined.

Useful links

You can get further information about discrimination from the following organisations:

Australian Human Rights Commission
P: 1300 656 419
W: http://www.humanrights.gov.au

Basic Rights Queensland (for disability discrimination)
P: 1800 358 511
W: http://www.brq.org.au


Bankruptcy

Bankruptcy

Bankruptcy can occur when a person is completely unable to pay their debts. A person may voluntarily declare bankruptcy or be forced to do so by a court.

LawRight Factsheets

External resources

  • MoneySmart – The MoneySmart web page provides information about the bankruptcy process.

Where to go for help

  • LawRight’s Court & Tribunal Services – The LawRight Court & Tribunal Services can offer legal advice and assistance to people involved in proceedings in the Federal Circuit Court or Federal Court. We may also help with drafting documents and correspondence relating to your legal matter, but they do not provide representation. In limited circumstances, LawRight’s Referral Service may be able to refer you for pro bono legal assistance.
  • You may wish to approach a community legal centre for assistance. To find your nearest community legal centre, please visit the Community Legal Centres Queensland website at www.communitylegalqld.org.au . There are a number of community legal centres throughout Queensland that hold regular advice sessions.


Disclaimer

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.


Employment

Employment

Employment law is concerned with the relationship between employers and employees, and covers a number of areas including employment contracts, claims based in tort or on a breach of contract, protection from discrimination, health and safety and a number of statutory regulations.Strict time limits apply in employment law claims, and you should seek advice as soon as possible.

LawRight factsheets

 

 

Resources from other organisations

  • Fair Work Act 2009 (Cth) - Commonwealth legislation governing employer/employee relationships.

Where to go for help

 

  • Legal Aid Employment Law Service - Legal Aid Queensland has an Employment Law Service which provides free advice by telephone appointment, and in some instances, also provides legal representation in conciliation and hearing in the Queensland Industrial Relations Commission (QIRC) or Fair Work Commission (FWC). Even though you can represent yourself if you apply to the QIRC or FWC, if you feel that you require advice or assistance, you can contact the Legal Aid Employment Law Service on 1300 65 11 88.
  • Caxton Legal Centre Inc - The Caxton Legal Centre has an Employment Legal Service which can provide information. However, this is an area of high demand and does not receive funding.
  • Fair Work Commission - The Fair Work Commission is the national workplace relations commission. It is an independent body with power to carry out a range of functions relating to the safety net of minimum wages and employment conditions, enterprise bargaining, industrial action, dispute resolution, termination of employment and other workplace matters.

Appeals in the Queensland Court of Appeal - how to respond to an appeal

Appeals in the Queensland Court of Appeal - how to respond to an appeal

The Court of Appeal is a division of the Queensland Supreme Court that only hears appeals. This factsheet is designed to give you information about responding to an appeal to the Court of Appeal in civil cases.

Rules referenced in this fact sheet are the Uniform Rules of Civil Procedure 1999.

Responding to an appeal

If you are the respondent and are served with a notice of appeal, you can:

(a) file a notice of cross appeal, if you also want to appeal (rule 755); or

(b) file a notice of contention, if you believe that the grounds of appeal contained in the Notice of Appeal have merit, but that there is another reason why the decision of the trial judge should be upheld (rule 757);

within fourteen days of the date you are served.

Your other options are either to "resist" the appeal, that is, argue that the original decision was correct, or you could choose not to participate in the appeal.

Deciding whether or not to respond

Your first step should be to read carefully through the reasons for the decision and the notice of appeal.

If the trial court did not give written reasons for its decision, you will need to obtain a transcript of the trial court's reasons for decision.

You will need to read through the reasons for the decision carefully, noting how the court came to its decision. In particular you should note:

  1. What findings of fact did the court make?
  2. What legal rules did the court apply?
  3. How did the court apply the legal rules to the facts?
  4. Were there any defects in the procedures that the court used?
  5. Did the court consider everything that it was required to consider, or not consider something that it was required to consider?

Answering these questions should help you to understand how the court below made its decision, and whether or not there were any errors by the court.

Appeal timetables

The Court of Appeal Registry takes a fairly active role in appeals. Once an appeal has been filed, both parties will receive an Appeal Timetable from the Registry.

This sets out the due date for the various steps that both parties will have to comply with.

The Court of Appeal expects the parties to comply with this timetable. If you are going to have difficulties in complying with this timetable, you should contact the Court of Appeal Registry to ask for an extension.

Twenty-eight days after an appeal is commenced, the appellant should serve an outline of argument and a draft appeal book index. The appeal book contains the material that the judges of the Court of Appeal hearing the case will have before them. The Court expects the parties to confer about what documents will be put in the appeal book.

If you are participating in the appeal, you have twenty-eight days to file any outline of argument in response. See our factsheet on drafting and outline of argument or submissions for more information about these documents. You should also file and serve a "List of Authorities." The List of Authorities lists all of the cases and legislation that you intend to rely on at the hearing.

Part A of the list includes those cases and legislation that you will definitely be referring to when your appeal is heard.

Part B of the list includes those cases and legislation that you may refer to in the hearing.

What is the effect of the appeal on the decision?

Bringing an appeal does not automatically prevent you from enforcing the judgment against the other party (rule 761).

In such a case, the other party needs to apply to the Court of Appeal to "stay" the enforcement of the decision against them.

Listing the appeal for hearing

Once the outlines of argument are filed, the Registry will contact the parties to set an appeal date.

Two clear court days before the appeal is heard, you should file 3 copies of the cases and legislation in Part A of your List of Authorities, except for those cases and legislation that the Appellant or Applicant has included in Part A of their List of Authorities. You do not have to give the Court copies of the cases and legislation in Part B of your List.


Appeals in the Queensland Court of Appeal - how to bring an appeal

Appeals in the Queensland Court of Appeal - how to bring an appeal

The Court of Appeal is a division of the Queensland Supreme Court that only hears appeals. This factsheet is designed to give you information about bringing an appeal to the Court of Appeal in civil cases.

Rules referenced in this fact sheet are the Uniform Rules of Civil Procedure 1999.

You are not happy with the decision in your case

Your right to appeal depends on what type of case your matter was.

You may not have an automatic right of appeal. An appeal is not an opportunity for the Court of Appeal to revisit a case in its entirety. You will be bound by the way that your case was run at trial, and in most cases by the evidence that was presented at trial. While you may not be satisfied with the decision in your case, there are no guarantees that an appeal will succeed. In some cases, an appeal may have no practical effect other than to increase the costs that you are ordered to pay.

Deciding whether or not to appeal

Your first step should be to read carefully through the reasons for the decision.

If the trial court does not give written reasons for its decision, you will need to obtain a transcript of the trial court's reasons for decision.

You will need to read through the reasons for the decision carefully, noting how the court came to its decision. In particular you should note:

  1. What findings of fact did the court make?
  2. What legal rules did the court apply?
  3. How did the court apply the legal rules to the facts?
  4. Were there any defects in the procedures that the court used?
  5. Did the court consider everything that it was require to consider, or not consider something that it was required to consider?

Answering these questions should help you to understand how the court below made its decision, and whether or not there were any errors by the court.

For some appeals, you must show the Court of Appeal that the trial court made an error of law. Errors of fact are more difficult to bring an appeal on. The Court of Appeal:

  1. can draw inferences of fact from the evidence given to the trial court, provided that those inferences are consistent with any findings of fact by a jury (rule 766);
  2. can consider new evidence in some circumstances (rule 766);
  3. will defer to the trial judge's findings about the credibility of the parties and the witnesses, as they had the opportunity to observe the witnesses when giving evidence.

When is leave required?

Sometimes, you will have an automatic right to bring an appeal. Other times, you will need the leave (permission) of the Court of Appeal.

You will need the leave of the Court of Appeal to bring an appeal if:

(a) you have already brought an appeal to the District Court (section 118 District Court of Queensland Act 1967) or QCAT (section 150 Queensland Civil and Administrative Tribunal Act 2009) and you want to bring a further appeal; or

(b) your matter was in the District Court and the judgment was for $150,000 or less or the matter was not about property worth more than $150,000 (section 118 of the District Court of Queensland Act 1967); or

(c) you are appealing a consent order or a discretionary costs order of the Supreme Court (section 253 Supreme Court Act 1995).

The Court of Appeal's practice in these cases is to hear the argument for leave at the same time that the substantive issues in the appeal are argued.

Appeals from the District Court or QCAT

The Court of Appeal hears appeals from the District Court of Queensland, as well as appeals from decisions of a judicial member of the Queensland Civil and Administrative Tribunal.

Appeals from the Supreme Court

You have the right to appeal a decision of the Supreme Court of Queensland (s 29 of the Supreme Court of Queensland Act 1991 and s 254 Supreme Court Act 1995).

Appeal period

You have twenty-eight days from the date that judgment is given to commence an appeal (rule 748).

This time starts from when the judge pronounces his or her decision in the court, not from when the formal written order is made.

What forms do I need?

A form 64 notice of appeal sets out your grounds of appeal.

If you need leave to appeal, you need to file a form 69 application for leave to appeal and a supporting affidavit (form 46). The affidavit should contain as an exhibit (form 47) a copy of the decision appealed and your notice of appeal.

Once you have filed your notice of appeal, you must serve it on the other party (at their address for service in the earlier proceeding) as soon as practicable.

Forms can be accessed here.

Obtaining leave to appeal to the Court of Appeal

To obtain leave to the Court of Appeal, you must satisfy the Court of Appeal that:

  1. You have suffered a substantial injustice;
  2. There was a prima facie error of law in the judgment appealed; and
  3. That the intervention of the Court of Appeal is capable of curing the injustice to the Applicant (Tsigounis v Medical Board of Queensland [2006] QCA 295).

Grounds of appeal

Your Notice of Appeal sets out the grounds of appeal. The grounds set out the mistakes or errors that you believe that the Trial Judge made in determining your case.

It isn't enough that you disagree with the decision.

Sometimes, your right to bring an appeal will be limited to an appeal on a question of law. For example, an appeal from a decision by the Appeal Tribunal within QCAT, can only be on a question of law.

Examples of Grounds of Appeal include:

  1. That the learned trial judge erred in finding that (or failing to find that) …….
  2. That the learned trial judge erred by failing to have regard to …….
  3. That the learned trial judge erred by failing to find that the weight of the evidence before her or him was such as to justify an order in respect of the respondents.
  4. That the learned trial judge erred by preferring the evidence of the respondents when the evidence before the Magistrate established that …..

Outline of argument

Twenty-eight days after a Notice of Appeal is filed, an appellant must file and serve an outline of argument. See our separate factsheet on outlines of arguments for information on drafting this document.

List of authorities

When you file and serve your Outline of Argument, you must also file and servce a List of Authorities. This document lists all of the cases and legislation that you intend to rely on at the hearing.

Part A of the list includes those cases and legislation that you will definitely be referring to in the hearing. Part B of the list includes those cases and legislation that you may refer to in the hearing.

New evidence

The Court of Appeal conducts appeals by way of rehearing. This generally means that the Court of Appeal considers the evidence that was before the trial court.

The Court of Appeal can admit new evidence in an appeal (rule 766 UCPR). To exercise this discretion the Court needs to be satisfied of the following issues:

  1. That with reasonable diligence the new evidence could not have been obtained for the initial hearing; and
  2. That the evidence if allowed would probably have had an important impact on the outcome of the case; and
  3. That the evidence is credible. Horne v Commissioner of Main Roads: [1991] 2 Qd.R 38

Practice Direction 3 of 2013 allows an Appellant to bring an application to the Court of Appeal where it will consider the admission of this new evidence. This will be considered at the same time as the substantive appeal.

Appeal record book

The Court of Appeal requires an appellant to prepare and file an appeal book (rule 758). These can be quite expensive to prepare as the Court of Appeal will only accept certain types of binding.

You can apply to the court for the Court of Appeal Registry to prepare the appeal book on the grounds of hardship (rule 759).

The Registry has to consider whether it is in the interests of justice to grant the order after considering whether or not the appellant is receiving an income tested pension (and the amount of any such pension), how much the appellant pays for rent, and whether or not a spouse or close relative of the appellant might be willing to provide financial assistance to the appellant (rule 759(3)).

The record book contains the material that the Court of Appeal will consider.

The Court of Appeal has prepared some good examples of these in their factsheets which are located here.

The book must be bound in volumes of no more than 250 pages, and bound using velobinding.

When the appellant prepares an outline of argument, they must also send a draft index to the appeal book. The parties must then agree on (or settle) the appeal book index. Once this is done, and the final versions of the outlines of argument are prepared, the book must be formally put together.

If I am out of time - can I appeal?

If you are outside of the 28 day time period you need to apply for an extension of time.

The Court of Appeal will then consider whether or not you have a reasonable explanation for the delay as well as the prospects of the appeal, in deciding whether or not to grant you the extension.

What is the effect of the appeal on the decision against me?

Bringing an appeal does not automatically prevent the other party from enforcing the judgment against you (rule 761).

In such a case, you may need to bring an application to the Court of Appeal to "stay" the enforcement of the decision against you.

You should consider if a stay is needed. If you were the plaintiff and your case was dismissed, and you were ordered to pay costs, until the other party attempts to enforce their costs, there is not really anything for you to apply for a stay of.

On the other hand, if you were the defendant, and you have been ordered to pay the plaintiff a sum of money, or to deliver up possession of your property, in such a case seeking a stay would be very important.

However, you can only seek a stay if you have an appeal on foot. If you are applying for leave to appeal, then you cannot seek a stay from the Court of Appeal (Woolworths Ltd v Maryborough City Council & Rokay Pty Ltd [2005] QCA 62).

Appeal timetables

The Court of Appeal Registry takes a fairly active role in appeals. Once an appeal has been filed, both parties will receive an Appeal Timetable from the Registry.

This sets out the due date for the various steps that both parties will have to comply with.

The Court of Appeal expects the parties to comply with this timetable. If you are going to have difficulties in complying with this timetable, you should contact the Court of Appeal Registry to ask for an extension.

Listing the appeal for hearing

Once the outlines of argument are filed, the Registry will contact the parties to set an appeal date.

List of authorities

Two clear court days before the appeal is heard, you must file 3 copies of the cases and legislation that you have referred to in Part A of your List of Authorities. You do not need to file copies of the authorities that you refer to in Part B of your List.


Factsheet index


Disclaimer

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.


Appeals in the District Court of Queensland

Appeals in the District Court of Queensland

The District Court of Queensland can hear appeals in some matters that were dealt with in the Magistrates Court.

Some important points about appeals:

  • Your right to appeal depends on what type of case your matter was.
  • You may not have an automatic right of appeal.
  • An appeal is not an opportunity for the District Court to revisit a case in its entirety.
  • You will be bound by the way that your case was run at trial, and in most cases by the evidence that was presented at trial.
  • While you may not be satisfied with the decision in your case, there are no guarantees that an appeal will succeed.
  • In some cases, an appeal may have no practical effect other than to increase the costs that you are ordered to pay.

Rules referenced in this factsheet are the Uniform Civil Procedure Rules 1999 (Qld)

Deciding whether or not to appeal

Your first step should be to read carefully through the reasons for the decision.

If the Court does not give written reasons for its decision, you will need to obtain a transcript of the Court's reasons for decision.

You will need to read through the reasons for the decision carefully, noting how the Court came to its decision. In particular you should note:

  1. What findings of fact did the court make?
  2. What legal rules did the court apply?
  3. How did the court apply the legal rules to the facts?
  4. Were there any defects in the procedures that the court used?
  5. Did the court consider everything that it was require to consider, or omit to consider anything that it was required to consider?

Answering these questions should help you to understand how the court below made its decision, and whether or not there were any errors by the court.

Appeals under the Justices Act 1886

For certain quasi-criminal matters that are dealt with by the Magistrates Court under the Justices Act 1886 (Qld) (e.g. Peace and Good Behaviour Orders, Traffic Offences) your right to appeal is governed by section 222 of the Justices Act 1886 (Qld).

Under this section a person aggrieved by a decision of the Magistrates Court made after the filing of a complaint has one month from the date of the decision of the Magistrate.

To commence such an appeal you need a form 27 (Justices Act) which you can find here.

Civil appeals to the District Court

For other civil appeals to the District Court, the appeal must be commenced within 28 days of the decision you are appealing (section 45 Magistrates Courts Act 1921 (Qld) and rule 748).

If your Magistrates Court dispute was for an amount over $25,000 or more, you can appeal a final decision to the District Court (section 45 of the Magistrates Court Act 1921 (Qld)).

If the amount in dispute is less than $25,000, you will need leave to appeal.

To appeal to the District Court you will need to file a Form 96 Notice of appeal. If you need leave, you use the Form 97 Notice of appeal subject to leave.

The District Court procedure for appeals

Once your appeal has been lodged, the appeal is governed by Practice Direction 5/2001 of the District Court. A copy of that Practice Direction is located here.

Once an appeal has been filed, it should be served on the other party, using their address for service in the Magistrate's Court proceedings.

You should also file a copy in the registry of the Magistrates Court that you are appealing from (rule 783).

The respondent to an appeal has two options. Either they can participate in the appeal by filing a notice of address for service, or not participate in the appeal. If the respondent elects not to participate in the appeal, then you will still have to argue your appeal to the District Court (rule 786).

If the Magistrate did not give written reasons (and this is common in the Magistrates Court) you will need to get a transcript of the reasons for the decision.

The Practice Direction requires the appellant to file an outline of argument within 28 days of commencing your appeal.

The Respondent then has 28 days to file their outline of argument.

Once the Respondent's outline of argument is filed, the parties have fourteen days to complete a certificate of readiness (form 98). This form contains the parties' estimate of the time that the hearing will take and it sets out the issues that are going to be discussed before the Court (rule 790).

If the parties cannot agree, you should both file Certificates of Readiness in the Registry, and the matter will be placed on the callover list for a hearing (rule 790).

If the parties do agree, the matter will be put on the list of matters that are ready for hearing and a date will be allocated (rule 790).

Dismissing appeals

You may be able to reach an agreement with the other party to resolve a District Court appeal. Rule 788 allows the parties to an appeal to seek a consent order that deals with an appeal.


Going to QCAT

Going to QCAT

The Queensland Civil and Administrative Tribunal (QCAT) is an independent tribunal that can resolve disputes, make and review decisions about anti-discrimination, administrative matters, building disputes, disputes over children and young people, guardianship, minor civil disputes, consumer and debt disputes as well as other civil matters if the amount in dispute is less than $25,000.

External resources

  • Court Network – Court Network is a Queensland and Victorian service aimed at providing support to people attending court.

Where to go for help

  • LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups.For more information about the help available, and the process for applying for help, please see the LawRight website at www.lawright.org.au. LawRight runs a Service to assist people representing themselves in QCAT.
  • Tenants Union of Queensland – The Tenants Union of Queensland are the experts in tenancy law in Queensland. Useful resources, including fact sheets and guides, are available on their website.
  • Manufactured Home Owners Association Ltd (MHOA) – MHOA assists members in understanding the Manufactured Homes (Residential Parks) Act 2003, especially in relation to the settling of disputes between home owners and park operators.