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Coppens v Water Wise Design Pty Ltd

Coppens v Water Wise Design Pty Ltd

Case [2014] QCATA 309 3 November 2014

Civil Litigation & Procedure

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CITATION:

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309

PARTIES:	Josephine Rosalie Coppens (Applicant/Appellant)
v
Water Wise Design Pty Ltd (Respondent)

APPLICATION NUMBER:

APL044-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

DELIVERED ON:

3 November 2014

DELIVERED AT:

Brisbane

ORDER MADE:

The application for an extension of time is refused.

CATCHWORDS:

APPEALS – LEAVE TO APPEAL – PROCEDURE – EXTENSION OF TIME – where application for leave to appeal filed nearly 2 months out of time – where s 61(1) allows that tribunal may order an extension for the start of a proceeding – whether grant of extension would cause prejudice or detriment to respondent, not able to be fixed by remedied by order for costs or damages – where most of applicant’s reasons for delay are irrelevant to appeal proceedings – where principles for granting extension for leave have not been demonstrated – whether application for extension should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 32, s 61, s 143

Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229
R v Twindale [2009] QCA 200

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION
The application

On 24 January 2014 the applicant filed an application ‘to extend or shorten a time limit or for waiver of compliance with procedural requirements’.
In the application which was filed, the applicant indicated that she was applying for an extension of time to appeal the decision made by Member Paul Favell on 29 October 2013.
The need for extension of time arose because of the provisions of s 143 of the QCAT Act which requires that:
An appeal must be filed in the Registry within … 28 days after the relevant day. [1]
[1]QCAT Act s 143(4)(b).
The relevant day means the day ‘the person is given written reasons for the decision being appealed against’.
Because of the requirements of s 143 of the QCAT Act, the appeal should have been lodged no later than 27 November 2013.[2]
[2]Inspection of the primary file in BDL375-10 reveals that the decision and reasons of Member Favell were posted to the applicant on the date of their publication, the 29 October 2013. In accordance with s 39A of the Acts Interpretation Act 1954 (Qld), where a document is served by post, it is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved. Providing one day for postage, the relevant date is therefore 27 November 2013.

The requirements for the extension

Section 61(1) of the QCAT Act allows that the Tribunal may, by order, extend or shorten a time limit fixed by the QCAT Act and may do so even when the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coppens v Water Wise Design Pty Ltd

Details

AGLC: Coppens v Water Wise Design Pty Ltd [2014] QCATA 309
Case: [2014] QCATA 309
Decision Date: 3 November 2014

CaseChat Overview and Summary

The applicant, Coppens, filed an application for leave to appeal against a decision made by Water Wise Design Pty Ltd, which was heard in the Civil and Administrative Tribunal of New South Wales. The primary issue in dispute centred around whether the tribunal had the authority to grant an extension of time for the filing of an application for leave to appeal, which had been submitted nearly two months past the statutory deadline. The tribunal was required to determine if the provisions of section 61(1) of the relevant legislation allowed for such an extension, and if granting it would cause any prejudice or detriment to the respondent that could not be remedied by an order for costs or damages.

The court considered the principles for granting extensions of time for leave to appeal, focusing on whether the applicant demonstrated that they had not been significantly at fault, that there was a reasonable prospect of success on the appeal, and that the extension would not cause substantial prejudice to the respondent. The court held that most of the applicant's reasons for delay were not relevant to the appeal itself and did not demonstrate the required principles. Furthermore, the tribunal found that the principles for granting an extension had not been adequately demonstrated by the applicant. As such, the court concluded that the application for an extension should not be granted.

In light of the tribunal's findings, the application for leave to appeal was dismissed. The tribunal emphasised that the delay in filing the application was significant and that the applicant had not adequately justified the extension of time. Consequently, the tribunal did not grant the extension, and the applicant's appeal was not proceeding further. The final orders of the tribunal were that the application for leave to appeal be dismissed and that no extension of time be granted for the filing of the application.

Orders