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

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 time for complying with the relevant requirement has passed.
However, the Tribunal can not extend or shorten a time limit if to do so would cause prejudice or detriment to a party to a proceeding, not able to be remedied by an appropriate order for costs or damages.[3]
[3]QCAT Act s 61(3).
Based upon the wording of s 61 of the QCAT Act, consideration of applications under s 61(1) is essentially a two stage process which includes:
a) Consideration of whether s 61(3) applies: whether the making of an order under s 61(1) would cause prejudice or detriment not able to be remedied by an appropriate order for costs or damages to a party or potential party to a proceeding.
b) In the absence of such prejudice or detriment, consideration of other factors which may be relevant to the exercise of the discretion contemplated by s 61(1).
In terms of the first stage, if such prejudice or detriment is identified then no order can be made under s 61(1). This arises because of the provisions of s 61(3).
In circumstances where such a prejudice would not arise by the granting of an extension or shortening of a time limit or waiver of compliance with other procedural requirements, or where prejudice that does arise can be remedied by an appropriate order for costs or damages, other factors may be relevant. One then turns to the stage 2 considerations.
In the case of Crime and Misconduct Commission v Chapman and Anor[4] Judicial Member, Mr James Thomas AM QC outlined the following factors as being relevant: [5]
a)    Whether a satisfactory explanation (or “good reason”) is shown to account for the delay.
b)    The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).
c)    Prejudice to adverse parties.[6]
d)    Length of the delay, noting a short delay is usually easier to excuse than a lengthy one.
e)    Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.[7]
[4][2011] QCAT 229.
[5]These facts are relevant to the stage 2 analysis which I have described.
[6]Because of the operation of s 61(3), the question of prejudice or detriment which cannot be remedied by an appropriate order for costs or damages to a party or potential party to a proceeding is therefore not a factor considered in stage 2. The presence of any such prejudice will mean that the Tribunal has no discretion to extend or shorten a time limit under s 61(1).
[7]At [9].
The question was also considered in the case of R v Twindale.[8] Referring to earlier authorities, Her Honour, Margaret Wilson J, observed
factors the Court will consider include the viability of the appeal, the length of the delay and the reason for it, but public interest in the finality of litigation, whether the application for extension of time is an abuse of process in that it has been made for a collateral and improper purpose and, in the unusual case where it is a live issue in a criminal appeal, any prejudice to the respondent.
[8][2009] QCA 200.
As was noted by Judicial Member Thomas, the legislature must have had a good reason for fixing a time limitation period. Clear definition of time limits assists in achieving the object outlined in section 3(b) of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
Each party is aware of the required time limits and the fair approach is to require that limits be complied with unless there is a compelling reason (such as those listed above) to the contrary. This is fair for all parties. Compliance with time limits also will lead to disposition of matters in the most efficient and quick way. Compliance with time limits is also consistent with the public interest in finality of litigation.[9]
[9]R v Twindale [2009] QCA 200 per Margaret Wilson J.
For these reasons, the underlying premise is that, in the absence of compelling circumstances, time limits must be complied with and should be enforced by the Tribunal. It is a matter for the applicant to establish any circumstances which would, in the interests of justice, require a departure from this position.

Discussion

I will now consider the question of detriment or prejudice – relevant to the application of s 61(3).
The applicant does not address the question of prejudice.
The respondent asserts that the proceedings have been on foot since November 2010, with the delay in lodging the appeal being ‘yet another delay in the matter that has proceeded too long in the interests of justice’. The respondent submits that the respondent is entitled, ‘having presented at the hearing of this matter some 3 years after it commenced, to have the applicant’s application finally determined’.
The respondent submits that the matters referred to in the “matters” document are ‘in reality unsupported personal attacks against the respondent’. To permit the applicant to proceed with an appeal in these circumstances would, it is submitted, ‘be highly contrary to the interests of justice’. It is asserted that ‘the applicant has diverted the Tribunal’s and the Courts resources for too long in pursuing the respondent and a granting of the Tribunal’s discretion in her favour would unfairly prolong this proceeding to the applicant’s further detriment’.
In general terms, in considering the question of prejudice in s 61(3) of the QCAT Act, the relevant prejudice to be considered is that which flows from the extension or shortening of the time limit, rather than prejudice arising from the way in which the matter has generally been conducted.
The way in which the dispute has been conducted, and the conduct of the parties, may be relevant to the question of whether the application for an extension of time is an abuse of process in that it may have been made for a collateral and improper purpose.
On balance, I conclude that sufficient and relevant prejudice has not been demonstrated so as to enliven the operation of s 61(3), and so it is necessary to move to the second stage of the consideration under s 61.
In support of the application, the applicant raised 14 issues in a document headed ‘reasons for delay of application to appeal and reply to orders given’.
A number of the reasons outlined are of a domestic nature not relevant to the appeal proceedings. Those include items 2 to 7, being:
·explosion of a hot water unit 3 days before Christmas;
·days without water and difficulty in normal household duties and hygiene due to water supply breakdown;
·due to lack of assistance from tradespeople and parts available during the Christmas and New Years holiday breaks;
·the complete breakdown of my car and the attempt and evaluation of fixing it;
·the need and time taken to purchase another car; and
·3 weeks without a car.
It is noted that the events referred to in items 2 to 4 occurred after the relevant appeal period. No reference is made to when the events referred to in items 5 to 7 occurred.
Item 1 concerns the applicant’s obtaining legal advice, and the assertion that ‘first available time 5 January 2014’. The assertion continues ‘lawyer could not explain the various parts of the reasons for decision by Mr Paul Favell’. There was adequate time for the applicant to obtain legal advice. Because of other QCAT matters in which the applicant has pursued appeal rights, the applicant was aware of the relevant appeal timeframes.
Items 8 to 12 relate to a request to Auscript for a transcript of the proceedings. The transcript was not necessary to inform the applicant of the reasons for decision, as those reasons were published by Member Favell on 29 October 2013. The reasons are 18 pages in length and set out, in detail, the relevant findings made, and conclusions reached, by the Member. The request for a transcript is not relevant to the date which is the “relevant date”.
Item 15 reads ‘doctors visits, psychologists appointment and visit, ongoing due to extreme depression’. Again, this is a matter of a personal nature which is not related directly to the appeal proceedings.
Reference is made in item 13 to ‘days taken for written submission of 29 November 2013’. The written submission of 29 November 2013 was a letter of complaint directed to the Tribunal relating to the proceedings. The points of complaint are 14 pages in length, and set out a number of complaints which the applicant wished to make concerning the process at QCAT. The document sets out the applicant’s commentary concerning various aspects of the evidence about which the complaint was being made.
In the context of earlier complaints, the applicant has been informed directly by QCAT that a complaint is not an appeal and would not be treated as an appeal or an application for leave to appeal from the decision. The applicant’s attention has previously been drawn to communications from QCAT regarding the applicant’s right to seek leave to appeal, the fact that time limits apply in relation to appeals, and if the applicant wished to seek leave, or to appeal, the applicant should act promptly to protect the applicant’s interest.
This information is also available on the QCAT website.
The issues raised by the applicant in the ‘reasons for delay of application to appeal and reply to orders given’ document are relevant, essentially, to whether a satisfactory explanation is shown to account for the delay. I conclude that the matters raised by the applicant do not provide a satisfactory explanation which accounts for the delay in filing the appeal.
Another factor is the strength of the case.
In relation to the appeal, the application reads:
Due to the ill state of my mental health I am unable to “specify briefly the grounds of my appeal” but I have attached the copy of the affidavit sworn at Hervey Bay on 29 November 2013 which I wish to use in this application.
The affidavit sworn on 29 November 2013 attached the complaint document, which was headed ‘matters about the hearing of 3 October 2013 and application for miscellaneous matters 18 November 2013’.
The “matters” document was a complaint regarding process, including assertions regarding the conduct of QCAT employees and the breach by the respondent of various provisions of the QCAT Act, including those relating to legal representation.
The matters document was not an appeal document and no application for appeal was lodged within the relevant timeframe. From the documents lodged it is not possible to identify, with any certainty or clarity, the basis upon which an appeal against the decision of Member Favell would be made out by the applicant.
In relation to the length of the delay, the application was lodged on 24 January 2014. The delay was around 8 weeks. In the context of a 28 day time limit, this is not an unsubstantial or short delay.
Judicial Member Thomas AM QC correctly, in my opinion, concludes that the factors listed by him are not exclusive or even a comprehensive statement of the principles that may influence a determination in relation to an application for extension of time. It is not necessary for each of those factors to be considered in the determination of whether an extension of time will be granted. Each case is to be determined on its individual merits and the particular factual matrix.
In this case, I conclude that a satisfactory explanation has not been shown to account for the delay, which, I conclude, is not a short delay. Based on the documents which the applicant has filed it is not possible to determine the basis upon which the applicant would be appealing against the decision of Member Favell.
I conclude that it is not in the interests of justice to grant the extension.
The application for an extension of time is refused.