Andrews v McNamara

[2017] QCATA 96

CITATION: Andrews v McNamara [2017] QCATA 96

PARTIES:	Susan Andrews (Applicant/Appellant)
v
Robert John McNamara (Respondent)
APPLICATION NUMBER:		APL207-17

MATTER TYPE: Application and Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 15 August 2017

DELIVERED AT: Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1.     The application for extension of time to file the application for leave to appeal or appeal is refused.

2.     The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – where the competency of an application for leave to appeal and appeal dependent on an extension of time limit for filing initiating forms – where directions to explain delay and address merits not complied with – where exercise of favourable discretion to relieve from procedural requirements not justified.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 32, 61(1)(a)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

1. This is an on the papers decision on the fate of an application to extend the time for a filing application for leave to appeal a magistrate’s MCD order on 8 February 2017.[1]

   [1]see QCAT Act s 61(1)(a).

2. Directions were made for the applicant to file a written statement addressing specified matters in support of waiver of the procedural irregularity.  Those matters relate to the prospects of the success of the proposed appeal and the reasons for late filing.

3. Both applications concern a second reopening application.  A brief litigation history is at T1-2:5-30 of the record of proceedings.

4. The dispute concerned a disputed invoice for upholstery goods and services.

5. The applicant complained that agreed wood refurbishment work was not performed.  The magistrate found that the applicant’s case was contradicted by the respondent’s sworn evidence corroborated by contemporaneous documentary evidence and had little chance of success.[2]

   [2]T-13:15-25.

6. The applicant alleges that she was prevented “from being able to present her evidence” on 8 February 2017.

7. The applicant’s submissions do not address relevant matters and appear to explain why she failed to make the first reopening hearing on 31 January 2017 rather than what error vitiates the 8 February 2017 decision against her.

8. As to why she filed outside the time limit she says that the form 39 was lodged on 16 May 2017 in Cairns but not processed until six weeks later.  This is not a satisfactory explanation for not filing within 28 days of 8 February 2017.

9. In these circumstances there is no demonstrated basis for enlarging time.  The lateness is not explained and the merits of the proposed appeal are not addressed.

10. The application for extension of time to file the application for leave to appeal is refused and, therefore, the appeal proceeding is dismissed.