[2015] QDC 312
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE DORNEY QC
No 3574 of 2015
ALLAN JAMES CUMMINGS Appellant
and
QUEENSLAND BUILDING & Respondent
CONSTRUCTION COMMISSIONBRISBANE
11.13 AM, FRIDAY, 27 NOVEMBER 2015
JUDGMENT
HIS HONOUR: This appeal - which of course is only an appeal if I should allow an extension of time for the filing of the notice of appeal - was filed on the 11th of September 2015. I’ll come in a moment to the reasons why that filing was out of time. The judgment appealed against was a decision of Magistrate Thacker on the 3rd of August 2015. It was with respect to a claim filed in the Magistrates Court of Queensland on the 21st of May 2015. The judgment of the court was that the first and second defendants (which include the present appellant, Allan James Cummings) pay to the plaintiff, which is the Queensland Building and Construction Commission, a specific amount. I won’t go into the details of that amount. They’re not relevant for the purposes of the present matters.
The appeal was required by the Uniform Civil Procedure Rules 1999 to be brought within 28 days. What Mr Cummings (and his then fellow proposed appellant) did was to file an application in the Magistrates Court on the 31st of August 2015 seeking that that earlier judgment be set aside. He asserts that he was misled in doing so; and for the present purposes I accept that that can be accepted as an explanation. He then filed, as I say, the notice of appeal (which is earlier referred to) on the 11th of September 2015 - but there appears to be a document called “Notice of Appeal Subject to Leave” also filed but only on the 6th of November 2015. It matters not in this particular case.
The first issue then is how, under the Uniform Civil Procedure Rules, I consider the issue of extending time. Rule 748 is the relevant rule. And, as I indicated, the notice of appeal must be filed within 28 days after the date of the decision appealed upon. That particular rule is relevant even in this appeal by force of rule 785, which brings the procedure for appeals to the District from the Magistrate Court within that particular rule. The rule says:
(U)nless the Court orders otherwise.
Relevant authorities establish that the principles applicable to extending time include such things as: an explanation for the failure; actions taken by such an applicant; informal notice given; prejudice to the respondent; potential for unsettling other peoples’ well-established practices; and the merits of the appeal.
Given the circumstances of the background outlined and the way that the application for the extension of time has been filed, I accept that the relevant circumstances have been met. As for the merits of the appeal, I was concerned about the fact that the original decision did not consider issues which I think are relevant for the…
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- [2015] QDC 312
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