Manson v Collins

[2010] QCATA 63

CITATION: Manson v Collins [2010] QCATA 63

PARTIES:	Lee Arthur Manson  (Applicant/Appellant)
v
John Aloysius Collins (Respondent)

APPLICATION NUMBER:            APL168 -10  

MATTER TYPE: Appeal

HEARING DATE:   On the papers  

HEARD AT:   Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON:   19 October 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  1.  The applicant’s application for an   extension of time which to lodge an  application for leave to appeal is    refused. 

CATCHWORDS : 

 APPEAL – PROCEDURE – Period in which application for leave to appeal must be filed – whether time should be extended.

STATUTORY INTERPRETATION – Where literal meaning would produce an absurd result – interpretation to avoid that result.

Queensland Civil and Administrative Tribunal Act 2009 ss 121, 122, 123, 127, 142, 143

Grey v Pearson (1857) 6 HLC 61 at 106

REASONS FOR DECISION

1. Mr Collins obtained an order from QCAT that Mr Manson refund a deposit paid in June the previous year. That order was made in Mr Manson’s absence. He did have notice of the mediation and that if he did not attend, orders would be made in his absence.  

1. The decision was posted to Mr Manson at the address noted in the Tribunal’s records on 11 May 2010. The Registrar’s delegate certified that, in the ordinary course of post, the original of the document would be delivered to Mr Manson on 13 May 2010.

1. The address to which the decision notice was sent is the same address used by Mr Manson in this application to extend time. Mr Manson has not suggested that he did not receive notice of the decision within the time certified or shortly after. Mr Manson has not explained his delay in seeking to commence the appeal process.

1. The provisions of the Queensland Civil and Administrative Tribunal Act 2009 dealing with the time within which an appeal or application for leave to appeal must be made are somewhat opaque.

1. As this is an application to appeal a decision by an adjudicator in QCAT’s Minor Civil Dispute jurisdiction, leave is required[1]. An application for the Appeal Tribunal’s leave to appeal must be filed in the Registry within 28 days after the relevant day[2]. Relevant day is defined, relevantly, to mean:

   [1] Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i)

   [2] Queensland Civil and Administrative Tribunal Act 2009 s 143(3)

‘(a) the day the person is given written reasons for the decision being appealed against,’[3]     

[3] Queensland Civil and Administrative Tribunal Act 2009 s 143(5)

1. This definition appears to assume that all appellants will either be given written reasons, or will request them from QCAT. Experience demonstrates that is not always the case.

1. The provision relating to time to appeal needs to be considered in the context of the sections dealing with decisions and reasons. Reasons must be given for all final decisions, either orally or in writing[4]. A party has a right to request written reasons for the decision within 14 days after it takes effect[5]. If reasons were given orally, the request for written reasons may be satisfied by QCAT providing a transcript or audio recording of those reasons[6].

   [4] Queensland Civil and Administrative Tribunal Act 2009 s 121(4)

   [5] Queensland Civil and Administrative Tribunal Act 2009 s 122(2)

   [6] Queensland Civil and Administrative Tribunal Act 2009 s 123

1. A decision of the Tribunal takes effect when it is made unless a later date is stated[7]. In this case, the decision took effect on the day it was made, 6 May 2010. Mr Manson did not request written reasons for the decision. Had he done so the Tribunal would have been required to provide them within 45 days of that request[8].

   [7] Queensland Civil and Administrative Tribunal Act 2009 s 127

   [8] Queensland Civil and Administrative Tribunal Act 2009 s 122(3)

1. Where written reasons have not been requested a sensible interpretation of the definition of the relevant day would be that the 28 days runs from  the last day upon which Mr Manson could request written reasons. Otherwise, a literal interpretation of the definition would mean that if written reasons were not requested and therefore, were not provided, the appeal period would never commence. This cannot have been Parliament’s intention. A statute is construed applying the ordinary sense of the words used, unless that would lead to an absurdity[9]. It would be absurd if a party who requested written reasons had a limited time within which to appeal and a party who did not had an unlimited right to apply for leave. To avoid that result, the definition of relevant day in s143(5)[10] should be read to mean the day the person is given written reasons for the decision being appealed against or, if written reasons are not requested, the last day upon which such a request may be made.

   [9] Grey v Pearson (1857) 6 HLC 61 at 106

   [10] Queensland Civil and Administrative Tribunal Act 2009

1. In this case the application for an extension of time was received by the Tribunal on 17 August 2010, some three months after the decision was made. Applying the interpretation I prefer, the application is well out of time. As no reason for the delay has been given, the application for an extension of time is refused.

1. It follows the application for leave to appeal should also be refused.