Rosa v Hunterland

[2015] QCATA 20

CITATION: Rosa v Hunterland & Anor [2015] QCATA 20

PARTIES:	John Rosa (Applicant/Appellant)
v
Vicky Hunterland Jane Hunterland (Respondents)

APPLICATION NUMBER: APL119-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice D Thomas, President
Acting Deputy President Stilgoe OAM

DELIVERED ON: 5 February 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The time for filing an application for leave to appeal or appeal is extended to 7 March 2014.

2.    John Rosa must file and serve his submissions in support of the application for leave to appeal and appeal by 4:00pm on 19 February 2015.

3.    Vicky Hunterland and Jane Hunterland must file and serve any submissions in reply by 4:00pm on 5 March 2015.

4.    If John Rosa does not comply with direction 2 by the date specified, the application for leave to appeal or appeal is dismissed without further order of the Tribunal.

5.    The application will be listed for a Directions Hearing on a date to be advised by the registry.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – EXTENSION OF TIME – where tribunal decision in early November – where reasons delivered late November – where application for leave to appeal filed March – where application to extend time – whether to grant extension of time

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309
Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229

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. On 5 October 2011, the Hunterlands signed a building contract with Mr Rosa for the renovation of their flood affected home. The contract price was $260,744.

2. Despite a written building contract, the parties soon found themselves in conflict.  On 31 July 2012, the Hunterlands filed an application for a refund of $27,845 for unapproved variations plus interest plus the costs of rectification.

3. After a hearing on 11 October 2013, the tribunal ordered that Mr Rosa pay the Hunterlands $36,493.26 plus interest and costs.

4. Mr Rosa filed an application for leave to appeal or appeal on 7 March 2014. He has also filed an application to extend the time in which to file the application for leave to appeal or appeal.

5. The tribunal may extend a time limit fixed for the start of a proceeding fixed by the QCAT Act[1], even if the time for complying with the relevant requirement has passed.[2] However, the tribunal cannot extend time if to do so would cause prejudice or detriment to a party to a proceeding, not able to be remedied by an appropriate order for costs or damages.[3]

   [1]QCAT Act s 61(1)(a).

   [2]QCAT Act s 61(2).

   [3]QCAT Act s 61(3).

6. As the appeal tribunal has observed[4], consideration of whether or not an extension should be granted is a two-step process. Firstly, the appeal tribunal must consider whether to do so would cause prejudice or detriment to a party to a proceeding, not able to be remedied by an appropriate order for costs or damages.

   [4]Coppens v Water Wise Design Pty Ltd [2014] QCATA 309 at [8].

7. The Hunterlands do not address the issue of prejudice directly. They do submit[5] that Mr Rosa’s application is just another attempt to stall proceedings after he failed to comply with his legal obligations. We do not regard that submission as enough to refuse an extension of time on the grounds of prejudice.

   [5]Submissions filed 4 April 2014, at [12].

8. That being so, it is necessary to consider the second step in the process; that is, whether the appeal tribunal should exercise its discretion to grant an extension. Factors which are relevant to this exercise include[6]:

   a)    Whether a satisfactory explanation (or “good reason”) is shown to account for the delay. 

   b)    The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).

   c)    The length of the delay.

   d)    Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.

   [6]Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229.

Delay

1. Mr Rosa received reasons for the learned Member’s decision on 29 November 2013. He had 28 days from the receipt of those reasons to file his application for leave to appeal and appeal.[7] Therefore, he had until 27 December 2013 to file and serve his application. 

   [7]QCAT Act s 143(5)(c).

2. Mr Rosa says the tribunal provided the reasons for decision by an audio CD, which took seven days to transcribe. That short delay is understandable and acceptable.

3. Mr Rosa says that he was called to South Australia at short notice over the Christmas period to attend to his sick mother-in-law. He says that his lawyers were closed, and his particular lawyer on leave, until 11 January 2014. Again, that short delay is explicable and reasonable.

4. Mr Rosa says he could not give the appeal his attention in February because he was ill. Although there is no objective evidence to support that submission, the Hunterlands do not seriously contest the submission. We are entitled to accept that Mr Rosa was ill over this period and, therefore, that the delay was explicable and reasonable.

5. That leaves only a short period of three weeks – between 11 January and the end of January – unexplained. Mr Rosa cites his failing memory and the difficulty and cost of obtaining a transcript as reasons why he took no action during this period. We are not persuaded that these are valid reasons. However, given the fairly short period of delay, we are also not persuaded that an extension of time should be refused on this ground alone.

The strength of Mr Rosa’s case

1. The appeal tribunal has only an outline of Mr Rosa’s grounds of appeal. He submits the learned Member refused to allow him to make written, evidence - based submissions at the hearing. He submits the learned Member failed to apply correctly the provisions of the Domestic Building Contracts Act 2000 (Qld). He submits the learned Member failed to consider his counter claim. He submits that the learned Member failed to consider his statement of evidence and failed to award interest on the amount of $4,000 offset against the Hunterlands’ claim. Because we do not have a copy of the learned Member’s reasons for decision, we cannot make any assessment of the strength of Mr Rosa’s grounds for appeal but because Mr Rosa asserts errors of law rather than fact, it is difficult to dismiss them out of hand.

The interests of justice

1. The Hunterlands submit that Mr Rosa consistently failed to meet his legal obligations and that this is just another attempt to avoid them. The tribunal file lends some support to this submission in that Mr Rosa failed to attend the first compulsory conference and he was ordered to pay the costs of the Hunterlands’ attendance at the conference. He also filed multiple interlocutory applications. However, the dispute was listed for hearing on 14 March 2013 and adjourned because none of the parties had complied with the tribunal’s directions to file material. The Hunterlands cannot complain about delay and the failure to comply with legal obligations when they are similarly at fault.

2. The appeal tribunal has previously refused to stay the learned Member’s decision. Therefore, there is no suggestion that the Hunterlands have been, or will be denied the fruits of the learned Member’s decision pending the determination of the application for leave to appeal or appeal. Even so, they have the benefit of an order for interest.

3. Although the appeals tribunal recently refused a similar application for an extension of time[8], we consider that Mr Rosa’s application differs in material respects. Firstly, the delay in the original proceedings is not as significant; the application was filed in July 2012 and heard in mid-2013. Secondly, unlike Ms Coppens, Mr Rosa has not previously engaged in the appeal process of the tribunal. Finally, Mr Rosa has raised some arguable grounds of appeal, unlike Ms Coppens.

   [8]Coppens v Water Wise Design Pty Ltd [2014] QCATA 309.

4. For that reason, even though the explanation of the delay – ill health – and the length of the delay are similar, we are prepared to grant an extension of time in which Mr Rosa may file his application for leave to appeal. However, conscious of the Hunterlands’ submissions that Mr Rosa has filed the appeal simply to avoid his legal obligations, we propose a short timeframe for submissions and strict compliance with those timeframes.