Focus Pty Ltd v Walton

[2011] QCATA 51

CITATION: Focus Pty Ltd v Walton [2011] QCATA 51

PARTIES:	Focus Pty Ltd (Application/Appellant)
v
Sue Walton t/a Anray Computer Solutions (Respondent)

APPLICATION NUMBER:   APL025-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 18 March 2011

DELIVERED AT: Brisbane

ORDERS MADE: Application for leave to appeal refused.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – where respondent alleged at first instance that bookkeeping work that had been done for the applicant had not been paid for – where applicant alleged that the work done by the respondent was defective – where the learned Magistrate gave judgment to the respondent at first instance – where applicant now seeks leave to appeal that decision – whether the application for leave to appeal and appeal was filed out of time – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, ss 122, 123, 143

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ms Walton, who trades under the business name ‘Anray Computer Solutions’ performed some bookkeeping work for Focus Pty Ltd in the early part of 2009 and claimed that Focus Pty Ltd did not pay invoices which she delivered for that work.

2. Ms Walton commenced proceedings by way of a Minor Debt Claim in the Magistrates Court in 2009, and the proceedings were transferred to QCAT after it took over that jurisdiction from 1 December of that year.

3. Dr Jane Stanley, a Director of Focus Pty Ltd, filed a defence in the Magistrates Court and also sent material to the court in respect of a hearing of Ms Walton’s claim which was set down at Sarina on 10 December 2010, and was heard and determined by a Magistrate sitting as a QCAT Member.

4. It has taken over a year to obtain a transcript of the proceedings before the Magistrate but it is now available and shows that neither Dr Stanley nor any other person appeared on behalf of Focus Pty Ltd but, in the course of the hearing, the learned Magistrate took into account material which had been sent in by Dr Stanley (who told the Tribunal that she was ‘… unable to attend in person’).

5. The learned Magistrate gave reasons for his decision which show that, although Focus Pty Ltd alleged that Ms Walton’s work was somehow defective, the company had failed to produce evidence which would enable the Tribunal to measure its losses, if any.  The Magistrate then gave judgment to Ms Walton in the sum of $2,794 plus costs of $121.50.

6. For some reason the decision was not posted out to Focus Pty Ltd until 20 January 2010 but it was sent, on that day, by registered post and also by email.

7. Focus Pty Ltd filed an application for leave to appeal on 8 March 2010 which is, arguably, out of time: QCAT Act, s 143. Dr Stanley has, however, also filed (on behalf of Focus Pty Ltd) an application to extend time. In support of that application she says that at the time the decision was sent to her by email in late January 2010 she was overseas, and the email ‘…may have been inadvertently deleted by others’.  The submission does not address the evidence on the QCAT file of service of the decision by registered, prepaid post.

8. It is appropriate to observe that the method for calculating time set out in s 143 of the QCAT Act is likely to give rise to confusion, or uncertainty, in persons wishing to use the appeal provisions.

9. It requires that an application for leave to appeal, or an appeal, must be filed within 28 days ‘… after the relevant day’. The term ‘relevant day’ is defined in s 143 (5) to mean the day the person is given written reasons for the decision being appealed against.

[10] Under s 122 if (as here) the Tribunal gives a final decision but does not give written reasons, a party can request them. That request can be satisfied by providing a recording of the proceedings: s 123. Here, the learned Magistrate gave oral reasons which were recorded, but it does not appear that the parties ever received written reasons. Arguably, unless and until that occurs, or a written transcript or an audio recording is provided under s 123, time for an application for leave to appeal does not commence to run. It seems unlikely that that was the legislative intention.

[11]  For reasons which follow, the question is largely academic here because there is no basis upon which the applicant ought to have leave to appeal.  That said, however, the uncertainty inherent in the legislation means it is appropriate to grant the application by Focus Pty Ltd for an extension of time in which to seek leave.

[12]  On 1 June 2010 this Appeal Tribunal directed that the application for the leave to appeal (and the appeal, if leave is granted) would be determined on the papers with submissions to be exchanged according to a timetable.  Dr Stanley sent in an affidavit containing allegations that Ms Walton performed the work she was contracted to do incompetently and it was not ‘… satisfactory against any reasonable bench mark’; and that her charges were excessive.  Dr Stanley has also sent in a large bundle of documents, without page numbering, but amounting to about 100 pages.

[13] Because the original decision was made in QCAT’s Minor Civil Disputes jurisdiction, Focus Pty Ltd requires leave before it can bring an appeal: QCAT Act s 143 (3)(a)(i). Leave would also be necessary because nothing in Dr Stanley’s submissions suggests any error of law on the part of the Magistrate, and an appeal on a question of fact (or a question of mixed law and fact) may, again, only be brought with leave.

[14]  It is plain from the Tribunal file that Dr Stanley had notice of the hearing date before the Magistrate, and chose not to attend for reasons attributed to ‘work commitments’.  She did however send documents to the Tribunal which, as the transcript of the hearing and the learned Magistrate’s reasons for his decision show, he read and took into account.  He heard the evidence of Ms Walton in considerable detail and, as his reasons also show, was persuaded by that evidence that he should give judgment in her favour.

[15]  Dr Stanley’s submissions in support of the application for leave to appeal do no more than reiterate assertions of fact which she either put before the Tribunal, or could have presented – had she chosen to attend the hearing.

[16]  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  The question that is sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

[17]  Nothing in Dr Stanley’s submission suggests any error on the part of the learned Magistrate.  Her submissions, rather, do no more than attempt to re-argue a case she could, and should, have presented to the Tribunal at first instance, had she wished.  There is nothing to suggest any error or injustice has arisen in the circumstances just described, and the application for leave to appeal must be refused.