Cavanough v Siltex Pty Ltd t/as Brisbane Storage Solutions [2022] QCATA 36

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cavanough v Siltex Pty Ltd t/as Brisbane Storage Solutions [2022] QCATA 36 PARTIES: KELLY-SUZANNE KATHERINE CAVANOUGH (appellant) v SILTEX PTY LTD T/AS BRISBANE STORAGE SOLUTIONS (respondent) APPLICATION NO/S: APL213-21 ORIGINATING APPLICATION NO/S: MCDO104/20 (Cleveland) MATTER TYPE: Appeals DELIVERED ON: 16 March 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon ORDERS: 1. The application to extend time to appeal is refused. This means the appeal fails. 2. The application for a stay of the order made on 6 May 2021 is also refused. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where no explanation for the delay – whether a satisfactory explanation is a precondition to an extension of time – whether merits of prospective appeal sufficient for it to be just to extend time Acts Interpretation Act 1954 (Qld), s 38 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 143 Buderim Ginger Ltd v Booth [2002] QCA 177 Cardillo v Queensland Building Services Authority [2011] QCAT 574 Comcare v A’hearn (1993) 45 FCR 441 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Oatley v Pertzel [2011] QCATA 92 APPEARANCES & This matter was heard and determined on the papers -- 1 of 6 -- 2 REPRESENTATION: pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] This is an application for an extension of time to file an appeal against a final decision made in the minor civil disputes jurisdiction of the tribunal and an application for stay of that decision pending appeal. [2] The minor civil dispute claim was brought by the applicant, Kelly-Suzanne Katherine Cavanough. The respondent was Siltex Pty Ltd. The Adjudicator heard the parties on 21 January 2021 and reserved the decision. On 6 May 2021 the Adjudicator dismissed the claim on the merits and gave written reasons. [3] The reason why this appeal lodged by Ms Cavanough appears to have been lodged out of time is as follows. By section 142(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) an appeal against a minor civil dispute decision requires the Appeal Tribunal’s leave to appeal. By section 143(3) an application for leave to appeal must be filed in the registry within 28 days after the relevant day. Where written reasons are given for the decision as here, by section 143(5) the relevant day is the day the person is given written reasons for the decision being appealed against. [4] It can be seen from the file that on 6 May 2021 the registry at Cleveland prepared an order to correspond with the Adjudicator’s final decision. There is an affidavit of service dated 6 May 2021 showing that this order was posted to Ms Cavanough on that day. There is nothing to show however, whether or not the written reasons for the decision were also posted to her on that day. [5] It can also be seen from the file that on 9 June 2021 Ms Cavanough attended the Cleveland registry with an application on Form 40,1 asking for a copy of the reasons for the decision, and saying that she believed that she would have received them in the mail but had not yet done so. A note on the file shows that Ms Cavanough was given a copy of the reasons for the decision on that day by a member of staff at the front counter of the Cleveland registry. In her submissions in this appeal Ms Cavanough states that this was the first time she received the reasons.2 [6] On the basis that 9 June 2021 was the first time the written reasons were given to Ms Cavanough, the application for leave to appeal would need to be filed by midnight 8 July 2021.3 That was a business day so it would not automatically be extended.4 [7] Ms Cavanough prepared an application for leave to appeal on Form 39. She put the date of 6 July 2021 on it. She must have presented it to Cleveland registry on 8 July 2021 because it was stamped at the counter that day. However the stamp is crossed out. There is another ‘received’ stamp on the form dated 16 July 2021 but that is also crossed out with the word ‘return’ added. A third stamp on the form shows ‘Received QCAT Brisbane Reception 27 Jul 2021’. On the form itself, there is an 1 Application for miscellaneous matters. 2 Submissions received on 24 August 2021. 3 Applying section 143(3) of the QCAT Act, and also section 38 of the Acts Interpretation Act 1954 (Qld), which requires the first day (when the reasons were given) to be excluded. 4 Which would happen if the day for filing the appeal had fallen on an ‘excluded’ day. -- 2 of 6 -- 3 area marked ‘For Office Use Only’. That has a space for the date of filing which is given as 27 July 2021 and a filing fee of $100 is shown as having been paid. The usual fee for an appeal is $716.10, but it is possible to apply to pay a reduced fee of $100 on the grounds of financial hardship.5 [8] There is a reference on the file to an application made by Ms Cavanough to reduce the fee. The application itself is not on the file but a medical certificate dated 6 July 2021 which supported that application is on the file. And there is a note in the file showing that a receipt was issued for $100 by the Appeal Tribunal on 27 July 2021. [9] Ms Cavanough also made an application on Form 42 to extend the time limit to file the application for leave to appeal. Again this document has various date stamps – one marked ‘Cleveland counter’ on 8 July 2021 (crossed out), one ‘Received – Queensland Civil and Administrative Tribunal’ on 16 July 2021 (crossed out) and one ‘Received QCAT Brisbane Reception’ on 27 July 2021. In the area marked ‘For Office Use Only’ this application is shown as having been filed on 27 July 2021. [10] There is nothing from Ms Cavanagh explaining these dates, but it is possible to piece together the main elements of what happened. It would appear that when Ms Cavanough first tried to file the application for leave to appeal in Cleveland on 8 July 2021 she did not then pay the filing fee of $716.10 and applied to pay a reduced fee. Hence she completed an application to extend time on that day. It was not until 27 July 2021 that her application for leave to appeal was treated as validly made on a reduced fee of $100. [11] The net result however, is that the application for leave to appeal is out of time. This is because section 143(2) of the QCAT Act requires the application to be accompanied by the prescribed fee at the time of filing. This should have happened by 8 July 2021 but did not happen until 27 July 2021. [12] The medical certificate explains that Ms Cavanough might have, or would have, difficulty with forms. In her application for an extension of time she also states that there was a 3-day lockdown during the time when she was supposed to file the application for leave to appeal. [13] There is no doubt that the information above would usually cause the Appeal Tribunal to offer some indulgence to an applicant for leave to appeal. This is because of the attempt to file the appeal in time, the apparent shortage of funds with which to do so, and the medical certificate showing a disadvantage. [14] Against this is the fact that Ms Cavanough has not explained the delay between 8 July and 27 July 2021. It is true that it was said by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 that it is a precondition for an extension of time that there is a satisfactory explanation for delay. This has been repeated many times in QCAT decisions,6 but in a case of this sort this approach can be unjust, particularly where (as here) there has been no oral hearing where an explanation could have been given. The Full Court of the Federal Court in Comcare 5 Regulation 10(5) of the Queensland Civil and Administrative Tribunal Regulation 2019 (Qld). 6 For example, Cardillo v Queensland Building Services Authority [2011] QCAT 574, [33] and several authorities citing Cardillo. -- 3 of 6 -- 4 v A’hearn (1993) 45 FCR 4417 said that it was incorrect to treat the lack of a satisfactory explanation as fatal to such applications and this has also been said by the Court of Appeal in Queensland.8 This is how I shall approach that matter. [15] The real difficulty with the application for an extension of time to file the application for leave to appeal however, is that it is difficult to see any merit in the appeal. [16] The application before the Adjudicator was for compensation for damage to Ms Cavanough’s goods by water and rodents when they were stored in a shipping container that she had purchased from the respondent. It was said that the purchase was made on the assurance that the container would be water and rodent proof and it was not. [17] The Adjudicator’s written reasons explain that at the hearing Ms Cavanough produced ‘voluminous photographs, letters and documents’ which she said showed the goods she had stored in the container and which were damaged. At the hearing Ms Cavanough said that she had a list of the damaged items and the values of each damaged item but this was at home. The Adjudicator made an order that she produce the list to the tribunal within 7 days. Although the tribunal has not sought to obtain a transcript of the hearing it is clear from the written reasons that the Adjudicator read all the documents and heard from both parties about the claim in the usual way. [18] In paragraphs 26 to 28 of the written reasons, the Adjudicator explains why the claim failed. It was because the Adjudicator was not satisfied that the container was sold as weatherproof as Ms Cavanough said, or that she relied on any assurance that the container was waterproof at the time of purchase. The Adjudicator found that her purpose at the time was to store things temporarily for a period of days while painting was being done; long term storage was not anticipated at the time of the contract. In any case the Adjudicator was not satisfied that Ms Cavanough explained to the respondent the purpose of her purchase. The structure and integrity of the container did not fail, and it was sufficiently weatherproof to remain dry when exposed to the weather. The weather event described by Ms Cavanough was extreme. In the circumstances there was no breach of the relevant guarantees. [19] In the reasons the Adjudicator sets out the evidence which was given by both sides and it can be seen from this that it was clearly open to the Adjudicator to make those findings of fact. [20] In this appeal it is said that the container was not of acceptable quality because it was not waterproof or weatherproof.9 But the Adjudicator found otherwise. There is no appealable point disclosed by this disagreement with the Adjudicator’s conclusion. [21] On 24 August 2021 Ms Cavanough filed a number of documents in the Appeal Tribunal in support of the appeal. One of the documents was the Adjudicator’s written reasons annotated with Ms Cavanagh’s comments. It is clear from the 7 [15]. 8 Buderim Ginger Ltd v Booth [2002] QCA 177, [22]. 9 Part C ‘Grounds of Appeal’ in the application for leave to appeal or appeal filed on 27 July 2021. -- 4 of 6 -- 5 comments that Ms Cavanagh disagrees with the Adjudicator’s findings of fact set out above but the main thrust of the appeal is that the Adjudicator should have accepted her case rather than the respondent’s case. The difficulty with this is that an appeal is not an opportunity to try to get a second opinion from the Appeal Tribunal about which case should have succeeded. [22] One point made in the appeal is that Ms Cavanagh says that, contrary to what is said in the Adjudicator’s written reasons, she did attend the Cleveland registry with the list that the Adjudicator directed her to provide but that the Adjudicator refused to receive it. This point does not help the appeal because Ms Cavanagh did not lose the case because of the list; she would still have lost the case even if the list had been before the tribunal. [23] There seem to be a number of new photographs in the material submitted by Ms Cavanagh to the appeal tribunal. None of those are relevant because they do not affect the reasons for the Adjudicator’s decision. [24] There is also a statement from Ms Cavanagh and a number of statutory declarations including twelve from Ms Cavanagh herself. [25] It seems to me that the only part of this new material which could have affected the Adjudicator’s decision is a statutory declaration from a person who claims to have witnessed representations by the respondent on the telephone to Ms Cavanagh about the quality of the container prior to purchase. [26] It was central to Ms Cavanagh’s case that such representations were made.10 Hence the evidence of this important witness should have been before the Adjudicator at the hearing on 21 January 2021 if she had wished to rely on it. It is likely that this could have been done. This is shown by the fact that other statutory declarations from Ms Cavanagh were before the Adjudicator for the original hearing (showing that she knew how to present such evidence) and the evidence of this important witness was not new. [27] An appeal is not an opportunity to put evidence before the Appeal Tribunal which should have been before the hearing at first instance. Only in rare circumstances will this be permitted and it would require an explanation why the evidence was not available at the original hearing. [28] Even if it were permitted in this appeal one weakness is that the statutory declaration was made on 18 August 2021 and is about a conversation which occurred in October 2014. Since what was said in this evidence is in dispute between the parties, it would need to be tested in cross examination and be of sufficient weight to overcome the respondent’s denials that any such representation had been made. Since the Appeal Tribunal is not the place for a rehearing on disputed facts,11 it would only have a value if the matter were remitted back to the minor civil dispute list for a rehearing. As stated earlier in these reasons, there are no grounds for such a rehearing. In the circumstances, the merits of the appeal are very poor. 10 In the claim she says ‘The shipping container was purchased on the assurance it was both waterproof and vermin proof’. 11 Oatley v Pertzel [2011] QCATA 92, [13], Justice Alan Wilson, President. -- 5 of 6 -- 6 Conclusion [29] Although in this particular case in the circumstances of the delay in bringing the appeal, the Appeal Tribunal might otherwise have extended time, the difficulty is that the merits of the appeal are very poor. [30] Accordingly it would not be right to permit the appeal to proceed, and so an extension of time to bring it is refused. The stay application is misconceived because there is nothing to stay. That is also refused. -- 6 of 6 --