Statutory authorities, and their lawyers, who regularly appear as respondents in QCAT often have to deal with applicants who are dilatory or wholly non-compliant with the Tribunal’s directions to take steps to progress their matters. Given that QCAT is, ordinarily, a no cost jurisdiction, the delay that is caused by dilatory applicants can significantly add to the costs of the respondent – with no or limited recourse to recover those costs. The guillotine order remains the best way to bring stagnant proceedings to an end.1
What are guillotine orders?
Guillotine orders, also known as springing or self-executing orders, are common case management orders that courts, tribunals and respondents collectively use, for different reasons, in order to bring stale matters to an end. For example, sections 80 and 116 of the Supreme Court of Queensland Act 1991 (Qld) authorise judges, upon application, to make general orders or directions on terms and conditions that the court considers appropriate to manage their case loads.2 Likewise, the judges of the Federal Court of Australia can make self-executing orders that allow proceedings to be dismissed unless a certain party does a certain act within a certain time.3
What is the difference between self-executing and guillotine orders?
The difference between a true self-executing order and a guillotine order has become blurred in recent years. A true self-executing order is a type of order which will automatically (or summarily) dismiss a proceeding if the dilatory party fails to take a particular action.4 However, a guillotine order is a conditional order where a certain further order is only highly likely to be made if certain mandatory steps are not taken. The inherent danger with self-executing orders is that the order may take effect in circumstances that were not foreseen when the order was made. Hence, there is a need to exercise caution before making an order in those terms lest an unjust decision eventuate.5
In QCAT judicial and lay members have no express power to issue a true self-executing order, thus largely eliminating the risk of an unjust order from being imposed. Section 48 of the QCAT Act states that if the Tribunal considers that a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by not complying with a tribunal order or direction, without reasonable excuse, then the tribunal may order the proceeding be dismissed or struck out. Whilst the law in this respect is not yet completely settled6 the decision maker must always give consideration to the merits of any particular case as it currently stands before any final order is made. Failure of the decision maker to consider the merits at the time that an order is made may create a ground to reopen, or a ground to appeal. Hence, a Tribunal member will often make a final direction that if an applicant fails to take a step by a certain date without a reasonable excuse, then the matter will be dismissed. The member may then exercise their discretion based upon whether any excuse was raised, and whether it was reasonable in all of the circumstances.
What are the pitfalls?
The danger for a non-compliant applicant, who may have a genuine grievance, is that upon dismissal of a proceeding pursuant to s 48 of the QCAT Act that party must then seek the leave of the president or deputy president of QCAT before filing a new application to re-litigate the dismissed proceedings.7 The matter cannot simply be re-opened, even if it appears that an injustice has occurred.
For example, in the matter of Ramke Constructions Pty Ltd v Queensland Building Services Authority8 the applicant, Ramke Constructions, was a licensed builder, which had commenced proceedings to review a decision of the relevant statutory authority. It then failed to take the necessary steps to progress the matter by failing to appear at the compulsory conference and then failing to file submissions resisting an application that the proceedings should be dismissed pursuant to s 48(2) of the QCAT Act. As a direct consequence, Ramke Constructions’ application to review was dismissed. Upon an application by Ramke Constructions to reopen pursuant to s 138 of the QCAT Act the Tribunal reluctantly found that despite the factual circumstances justifying a reopening, the reopening provisions in the Act could not be construed to allow for that to occur because the proceedings had been dismissed for non-compliance.9 This approach was later confirmed by the Supreme Court of Queensland.10
What is the best practice approach?
In order to ensure that guillotine orders are final, and do not lead to further applications in other forums, it may be necessary for solicitors acting for statutory authorities to file an affidavit attesting that an applicant does not have a reasonable excuse as all attempts have been made to maintain contact with the applicant and the applicant has not advanced their matter. Therefore, as frustrating as it can be to deal with dilatory applicants in Tribunals and other litigious forums, it is in the interests of the Respondent to attempt to maintain contact with an Applicant, if only to satisfy the relevant Tribunal member that the Applicant’s conduct lacks any merit worthy of further extension. This will ensure that any guillotine order is truly terminal.