Herrington v McHugh

[2011] QCATA 288

CITATION: Herrington v McHugh [2011] QCATA 288

PARTIES:	Mr Kevin John Herrington
v
Mr Brian Anthony McHugh

APPLICATION NUMBER:            APL283-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Peta Stilgoe, Acting Senior Member

DELIVERED ON:   6 October 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused. 

CATCHWORDS:

MINOR CIVIL DISPUTE – where application to set aside decision by default refused – where application for leave to appeal – whether grounds to extend time for filing application for leave to appeal – whether grounds for granting leave

Queensland Civil and Administrative Tribunal Act 2009, s 61(3)

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Herrington was engaged to do some work renovating an old Queenslander.  He, in turn, engaged Mr McHugh to do some of that work.  Mr McHugh started work and sent Mr Herrington an invoice which was paid.  Mr McHugh sent two more invoices which were not paid.  He brought a claim in the minor civil disputes jurisdiction of the tribunal claiming payment for those two invoices.

1. Mr Herrington was served with the claim on 21 December 2010.  By application filed on 28 January 2011, Mr McHugh asked for a decision in default of Mr Herrington’s response.  A decision in default issued on 28 January 2011.

1. Mr Herrington applied to set aside the decision by default, saying that on 17 January 2011, the day before his response was due, he had posted a response to the Brisbane registry of the tribunal which had forwarded it to the Southport registry.  The learned Adjudicator dismissed Mr Herrington’s claim because she was not satisfied that Mr Herrington had posted the response as he claimed.  The learned Adjudicator refused the application to reopen on 30 May 2011.

1. On 10 August 2011, Mr Herrington filed an application for leave to appeal together with an application to extend the time in which to file the appeal.  

1. The tribunal may extend a time limit fixed under the Queensland Civil and Administrative Tribunal Act 2009 in appropriate circumstances.[1]  Mr Herrington’s reasons for the delay in filing the application for leave to appeal are the same as the reasons he gave for the application to set aside the default decision: that the tribunal made administrative errors; that he has not had an opportunity to have his matter heard by the tribunal; that the tribunal has not considered his defence.  None of these matters address the considerable delay between May and August.  There being nothing otherwise to explain or excuse the delay, any application to extend time ought to be refused.

   [1] Section 61(3).

1. Even if an extension was granted, Mr Herrington would still have to satisfy the normal tests for leave to appeal which 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.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. Mr Herrington is, in fact, trying again to have the decision by default overturned.  He has provided no new grounds for his application and I respectfully adopt the conclusions of the learned Adjudicator:

a)    Mr Herrington was served with a copy of the application.

b)    The application has a very clear warning about the consequences of failing to file a response.

c)    Even though it was the day before the 28 days expired, Mr Herrington decided to post his response rather than personally file it.

d)    He risked his response to the vagaries of ordinary mail in the expectation that it would be delivered the next day.

e)    The tribunal still had no record of receipt of the response 10 days after the 28 day deadline.

f)     Mr Herrington’s copy of the response is unsigned.  It suggests that it was created after the fact.

1. The learned Adjudicator did not accept Mr Herrington’s claim that he had telephoned the registry on 3 February 2011 to confirm the receipt of his response.  I agree with her conclusions.  One of the things that the learned Adjudicator didn’t mention is that Mr Herrington’s response is not in the correct form.  While the tribunal does not strictly enforce compliance with its procedures the lack of the correct form might explain why Mr Herrington’s response went astray in the registry (if, in fact, it was received).

1. There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted.  Leave to appeal should be refused.