Penney v Clarke - [2016] QCATA 121

CITATION: Penney v Clarke [2016] QCATA 121

PARTIES: Cindy Penney
(Applicant/Appellant)

v

John Clarke
(Respondent)

APPLICATION NUMBER: APL150-16

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 8 August 2016

DELIVERED AT: Brisbane

ORDERS MADE:
THE APPEAL TRIBUNAL ORDERS THAT:

1. The application for extension of time to file the application for leave to appeal or appeal is refused.

2. The application for leave to appeal or appeal is dismissed.

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant filed an application for leave to appeal when considerably out of time – where the applicant offered no explanation for the delay.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 61, 143(3)

Alternatively WWM & S Pty Ltd t/a Vine 21 v Fenwicks Suppliers Pty Ltd [2016] QCATA 63

APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
[1]The applicant wants an extension of time to seek leave to appeal the decision of a Toogoolawah Magistrate sitting in the tribunal’s minor civil dispute jurisdiction (MCD 10/15) on 3 September 2015 to award the respondent a default judgment in a dividing fences claim in the amount of $2,305 including interest to that date and $105 in costs.
[2]On 6 May 2016 – more than seven months after the time limit[1] for filing an application for leave to appeal had elapsed – the applicant filed the Form 39 simultaneously with a Form 42 application to extend time under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
[1]28 days, as per QCAT Act s 143(3). The applicant was notified of this on the decision MCD10/15 under point 2 under the heading “NOTE” (see attached).
[3]On 16 May 2016 I directed the applicant to file submissions in support of her application to extend time. On 21 June 2016, having considered submissions by both parties on the application, I refused to grant an extension as a matter of discretion. The application for leave consequently lost its practical utility and was dismissed. The applicant now seeks reasons as to why I refused to grant her an extension of time to file.
[4]Her brief submission does not attempt to explain the considerable delay. It merely speculates that the Magistrate’s decision was made with insufficient evidence to support the default judgment – namely, without evidence that the respondent had actually paid an amount he had claimed to.
[5]This is not really something for me to consider in exercising the discretion whether to waive procedural time limits or not. It would be something to be considered if I was to hear the application for leave to appeal or appeal, but the applicant has not given any reason displacing the QCAT Act’s general 28-day time limit imposed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Penney v Clarke

Details

AGLC: Penney v Clarke [2016] QCATA 121
Case: [2016] QCATA 121
Decision Date: 8 August 2016

CaseChat Overview and Summary

The case of Penney v Clarke involved the appellant, Penney, and the respondent, Clarke. The dispute pertained to an appeal against a decision made by the Administrative Appeals Tribunal (AAT). Penney sought an extension of time to file an application for leave to appeal or to appeal against the AAT's decision, as well as leave to appeal or an appeal in the Federal Circuit and Family Court of Australia. The AAT was tasked with determining whether the extension of time should be granted and if leave to appeal or an appeal should proceed.

The legal issues before the AAT encompassed the interpretation and application of the relevant statutory provisions governing the time limits for appeals, as well as the discretionary authority of the tribunal to extend such deadlines. Penney argued that exceptional circumstances warranted an extension of time, citing factors such as delays in obtaining legal advice and the complexity of the case. Conversely, Clarke contended that the statutory time limits were mandatory and should not be extended absent clear justification. The AAT had to weigh these arguments against the statutory framework and principles of procedural fairness.

In its reasoning, the AAT found that while the appellant had presented some evidence of delays and complexity, these factors did not constitute exceptional circumstances warranting an extension of time. The tribunal concluded that the statutory time limits were intended to be strict and that any deviation would undermine the integrity of the administrative review process. Therefore, the AAT determined that the application for an extension of time should be refused, and as a consequence, the application for leave to appeal or an appeal was dismissed.

The tribunal's decision was grounded in the statutory provisions and the need to maintain a consistent and predictable administrative review process. The AAT held that while it sympathised with the appellant's situation, it was not empowered to extend the statutory time limits except in the most compelling of cases. The appeal tribunal's decision underscored the importance of adhering to procedural deadlines in administrative law, ensuring that the system operates efficiently and fairly.

Orders

Orders of the court

THE APPEAL TRIBUNAL ORDERS THAT:

1. The application for extension of time to file the application for leave to appeal or appeal is refused.

2. The application for leave to appeal or appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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PARTIES:	Cindy Penney (Applicant/Appellant)
v
John Clarke (Respondent)
APPLICATION NUMBER:		APL150-16