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 on parties pursuing appeal rights.

[6]In Alternatively WWM & S Pty Ltd t/a Vine 21 v Fenwicks Suppliers Pty Ltd,[2] I outlined eight reasons why the tribunal requires at least a decent reason to grant an extension of time in an application for leave to appeal:

(1)Rules of practice and procedure are made for the efficient and effective functioning and management of the business of the Tribunal.

(2)They are expected to be obeyed by most litigants most of the time to avoid chaos.

(3)Reasonable time limits are fixed to assist the Tribunal in administering justice and meeting the stated objects of the QCAT Act. Clearly lax enforcement is likely to be misread as a weakness to be exploited which unless corrected will eventually undermine the Tribunal’s authority and then its ability to dispense timely justice to its affairs economically in the overall public interest by, in particular, maintaining clearance rates and avoiding back logs.

(4)Waiver of procedural irregularity is an indulgence for deserving cases – not a right for the tardy or uninformed.

(5)The winning party is entitled to the fruits of success without undue delay and, generally speaking, the Tribunal needs to be able to close and archive finalised matters when the time allowed for appealing has expired.

(6)Routinely overlooking non-compliance encourages some litigants to ignore them and aggrieves the majority of those who respect and faithfully adhere to the Tribunal practices and procedures.

(7)The delay was too long to be excused without a satisfactory explanation.  There is none.

(8)Ignorance of procedural time limits is not a good enough reason.  If it was, everyone would use it with predictable results.  QCAT publishes the attached Facts Sheet providing accessible and relevant information about minor civil dispute appeals online. The applicant was also notified of the 28 day lodgement requirement on the (…) decision (…) No reason for not finding this information was given.

[2][2016] QCATA 63 [4].

[7]Litigants seeking to bring applications in the tribunal need to familiarise themselves with the requirements for bringing them before using up the tribunal’s finite resources by demanding that it give reasons for refusing to exercise a discretion. That is particularly so in cases such as this; where the applicant has not even offered a reason for the seven month delay.

ORDERS

[8]Therefore, it is the decision of the appeal tribunal 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 therefore dismissed.