Venzin Danielli Pty Ltd v Zynergy Group
[2012] QCATA 23
•16 February 2012
| CITATION: | Venzin Danielli Pty Ltd v Zynergy Group and Ors [2012] QCATA 23 |
| PARTIES: | Venzin Danielli Pty Ltd (Applicant/Appellant) |
| v | |
| Zynergy Group Suzanne Reily Helen Baker Angela Haigh (Respondents) |
| APPLICATION NUMBER: | APL324-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 16 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for extension of time to file an application for leave to appeal or appeal is refused. |
| CATCHWORDS: | Extension of Time – where no explanation of delay – where appeal lacks substantive merit Queensland Civil and Administrative Tribunal Act2009, ss 142(3), 143(4) Fox v Percy (2003) 214 CLR 118 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
The applicant traded as Vendan Events. It conducted a business as a “public events” organisation that offered mentoring, coaching and services to business women.
Each of the respondents paid Vendan Events $9,759.00 to participate in a “12 month professional workshop series for 12 vibrant and motivated Brisbane business women, aimed at facilitating opportunities for women to connect with other women, grow professionally and to be inspired by role models and each other”. After the commencement of the course, the respondents became disillusioned with the presentation of the course and it became clear to them that, to use the words of the learned Member, it “was a hastily conceived pilot program that had never been previously conducted (nor even trialled) before being offered to the paying public.”
The respondents alleged that the course was not as represented by the applicant and brought a proceeding in the minor civil disputes jurisdiction of the Tribunal to recover the money they paid for it. Each of the respondents commenced a separate proceeding being 3408-10, 3409-10, 3411-10 and 3412-10. The Tribunal made an order that the proceedings be heard together and the decision and reasons were delivered in MCDO3409-10.
The Tribunal ordered that Vendan Events pay to each of the respondents $7,648.25.
The representative for the applicant, Ms Venzin, had her solicitors write to the Tribunal to request that she be excused from attending the hearing because of a medical condition. Submissions on her behalf were filed and her solicitors were content to rely on those submissions at the hearing.
Subsequent to the hearing, the learned Member became aware that Ms Venzin did want to attend by remote conferencing, that is by telephone, so the hearing was reconvened. She was telephoned but the number given to the Tribunal was disconnected. He then proceeded to deliver his decision and reasons.
The application for leave to appeal or appeal was filed out of time. It was received in the Tribunal on 26 August 2011 whereas the decision was published to the parties on 10 June 2011. An application for leave to appeal must be filed within 28 days after a person has given written reasons for the decision.[1] Here, the reasons were delivered when the order was made. One can reasonably suppose that the decision and the reasons would have been received by the respondent within days of it being posted to it.
[1] QCAT Act, section 143(4).
Because the appeal is out of time, the applicant has filed an application to extend time. The application to extend time, like the application for leave to appeal is devoid of any particulars of any basis upon which an extension of time should be granted. One can appreciate that although Vendan Events had legal representation in the past, these documents have been prepared by Ms Venzin who, I assume is not legally trained. One does not necessarily expect all of the usual matters that are considered in an application to extend time would be addressed by a lay person. However it would be reasonable to expect that there would be at least some explanation about the delay, and something about the merits of her appeal, although one can look to the submissions in support of the application for leave to appeal to assist.
In her application for leave to appeal, the only ground relied upon is that Vendan Events would like to exercise its right to appeal on the basis that blatant misleading and untrue information has been given by the applicants.
[10] That is expanded upon in the submissions filed however those submissions do not attempt to identify any error on the part of the learned Member. They do not contend that the evidence accepted by him to support his decision was not open to him relying on the evidence put forward by both the applicant and the respondents.
[11] Leave to appeal to be granted[2] 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?
[2] QCAT Act, section 142(3).
[12] Ms Venzin’s submissions simply refer to the evidence that was either put before the learned Member, or that which is contained within the brief of evidence she has filed with her submissions. What the applicant is asking the Appeal Tribunal to do, is to revisit the issues that were in dispute before the learned Member and come to a different decision. It is not the function of the Appeal Tribunal to decide where the truth lay as between the competing versions given by the parties.[3]
[3] Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
[13] The reasons given by the learned Member relied on the evidence presented by the respondents and he was entitled to accept that evidence. Ms Venzin’s new evidence deals with feedback offered by each of the respondents during the course which, she contends is inconsistent with the evidence put before the Tribunal. Even if there is inconsistency, it does not follow that the learned Member was not entitled to accept the evidence of the respondents in coming to his decision.
[14] Furthermore, as observed above, the submissions do not address the question of extension of time particularly, why the application was not filed within the 28 days, nor does it address the substantial merits of the case although, one does infer from the submissions that Vendan Events is contending that it does have an arguable case on appeal.
[15] The applicant has not established, in this case, that the Appeal Tribunal should favourably exercise its discretion to grant an extension of time. Even if an extension of time were granted, no error on the part of the learned Member has been identified, nor is any apparent. Therefore, leave to appeal would be refused in any event. This of course means that because the Appeal itself lacks merit there should not be an extension of time.
[16] Therefore, the order of the Tribunal will be that the applicant’s application for extension of time is dismissed.
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