QCAT Tools: The Form Number 40

By Danny Bycroft • In Law, LitigationComments Off on QCAT Tools: The Form Number 40

As they say “it comes with the territory.”

The Queensland Civil and Administrative Tribunal (“QCAT”) is, in many of its jurisdictions including minor civil disputes, the jurisdiction with the lowest monetary limit and often the most accessible for self-represented litigants (and over-enthusiastic legal practitioners). Unfortunately, this leads to many Applications which section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) eloquently calls “frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.”

It is well known that QCAT attempts to conduct proceedings in a fair but informal manner and is not bound by the usual rules of evidence, practice or procedures which usually apply to Courts of record. However the cost, wasted time and general litigation stress for a client having to respond to spurious QCAT applications can mount quickly. This is especially the case where they must provide a response, attend mediation and attend an eventual hearing to obtain orders dismissing those proceedings.

These applications can be actions in which the applicant:
(a) displays no legal cause of action;
(b) is time barred;
(c) completes the QCAT Application form in a scribbled or illegible fashion;
(d) commences their action in the incorrect jurisdiction; or
(e) commences their action against the wrong respondent.

So what can one do if served with an illegitimate QCAT application?

Part 5 Division 1 of the QCAT Act outlines ways in which there can be an early end to proceedings. Pursuant to section 47(2)(a) these include the proceedings or part of a proceeding being dismissed or struck out. Section 47(2)(c) even allows QCAT to make a costs order against the party who brought the proceedings to compensate the respondent for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding. Unfortunately, in the author’s experience, such costs orders are rarely made.

A respondent or any party to QCAT proceedings can request the Tribunal make section 47(2)(a) orders with what is known as a Form Number 40 Application for miscellaneous matters. There is no filing fee for this application and best practice, in the case of minor civil disputes, is to file this form at the same time as your client’s Response. This prevents an overzealous applicant from making a request for decision by default because of your failure to file a response.

The author has had considerable success bringing proceedings to an early end using the form number 40. This tactic has proved especially useful in proceedings where the applicant has displayed no real cause of action or is, unbeknownst to them, time barred. It is also noteworthy to mention that once a proceeding has been dismissed or struck out section 49 of the QCAT Act prevents another proceeding of “the same kind, relating to the same matter” from being commenced without the leave of the Tribunal’s president or deputy president.

Daniel Bycroft is a solicitor in the Dispute Resolution and Litigation Team at Bell Legal Group. Daniel is highly skilled in practice and procedure at QCAT across all of the tribunal’s jurisdictions.

Bell Legal Group has one of the fastest growing Dispute Resolution and Litigation sections on the Gold Coast covering a broad range of issues from consumer and neighbourhood disputes to complex contractual, construction, commercial and insolvency matters.

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