Hargreaves v Burnitt

[2011] QCATA 351

CITATION: Hargreaves v Burnitt [2011] QCATA 351

PARTIES:	Keith Gordon Hargreaves (Applicant/Appellant)
v
Wayne Burnitt (Respondent)

APPLICATION NUMBER:   APL111-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 12 July 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Application for an extension of time within which to apply for leave to appeal is refused.

2.    Application for leave to appeal is dismissed.

CATCHWORDS:  APPEAL – Minor Civil Dispute – Where leave required – where application for leave out of time – whether an extension of time should be granted

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Mr Hargreaves was ordered to pay Mr Burnitt the sum of $37,928 for breach of a building contract.  Mr Hargreaves seeks leave to appeal the decision.  The decision was made on 5 May 2010.  The application for leave to appeal was filed on 7 April 2011.  It is clearly out of time.[1]  Mr Hargreaves seeks an extension of time within which to appeal.

   [1]Queensland Civil and Administrative Tribunal Act 2009, s 143. Mr Hargreaves should have filed the application within 28 days of receiving the written reasons for the decision.

2. Mr Hargreaves says he was overseas due to family reasons for several months immediately following the decision.  He has not provided details about when he left and whether he was in a position to consider whether to appeal.

3. By the time he returned, he says the 28 day appeal period had long since passed.  He thought he was unable to obtain an extension of time, until he consulted a lawyer.  He consulted a lawyer because, he says Mr Burnitt was harassing and threatening his daughter about the decision.  The lawyer advised him he could seek an extension of time.

4. Mr Hargreaves submissions are not persuasive, given the very lengthy extension he is after.

5. The basis for his appeal is that he has evidence (of having made certain payments and sought a further loan) that the original decision maker clearly looked for, but which was not available to the learned member, when she made her decision.  There is no right to lead further evidence on appeal.[2]  Leave may be granted where the evidence was not reasonably available at the hearing; had it been, an opposite result was likely and the new evidence is credible.[3]

   [2]        Queensland Civil and Administrative Tribunal Act 2009, s 147(2).

   [3]        Council of the City of Wollongong v Cowan (1955) 93 CLR 435.

6. A fair reading of the learned Member’s reasons demonstrates the lack of that evidence, although one factor is not the sole or determining factor in her decision.

7. Mr Hargreaves was legally represented in the proceedings.  They commenced in the Commercial and Consumer Tribunal, since subsumed by QCAT.  In July 2009, the Chairperson of the CCT directed the parties to file statements of their evidence and the evidence of any witness upon which they intended to rely.  Relevant documents had to be provided with the statements.  The Chairperson directed that no party would be allowed to present any further evidence without leave.  Once the matter came before QCAT, the parties were given a further opportunity to provide their final material. 

8. Mr Hargreaves had ample opportunity to produce the evidence he now wishes to lead.  In effect, he is seeking to reopen the proceedings.  That may be done if a party would suffer a substantial injustice because significant new evidence has arisen that was not reasonably available when the proceeding was first heard and decided.[4]  There is nothing in Mr Hargreaves’ submissions to suggest the information he now seeks to lead on appeal was not reasonably available when the matter was heard and determined.  In any case, this is an application for an extension of time within which to seek leave to appeal, not an application to reopen the proceeding.

   [4]        Queensland Civil and Administrative Tribunal Act 2009, s 137(b).

9. The considerable lapse of time between the decision being made and the application for appeal being lodged has not been adequately explained.  Mr Hargreaves seeks a significant indulgence.  It appears that Mr Burnitt has still not received the benefit of the decision in his favour. 

[10]  Mr Hargreaves has not raised any errors in the approach taken by the learned Member and there seems little prospect of Mr Hargreaves being granted leave to appeal.

[11]  In those circumstances, the Tribunal declines to exercise discretion in Mr Hargreaves’ favour.  His application for an extension of time within which to apply for leave to appeal is refused.  Accordingly, his application for leave to appeal is dismissed.