Brici v Parry [2019] QCATA 134

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brici v Parry [2019] QCATA 134 PARTIES: ANGELA BRICI (applicant) v SHARELLE PARRY (respondent) APPLICATION NO/S: APL159-19 ORIGINATING APPLICATION NO/S: MCDQ11-19 (Richlands) MATTER TYPE: Appeals DELIVERED ON: 27 August 2019 REASONS DELIVERED ON: 5 September 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Browne ORDERS: The application for an extension of time to file the application for leave to appeal or appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – PROCEDURE – TIME, EXTENSION AND ABRIDGMENT – MINOR CIVIL DISPUTE – where delay in filing the application for leave to appeal or appeal – whether discretion should be exercised to grant an extension of time to file the application for leave to appeal or appeal – whether there is adequate explanation for delay Acts Interpretation Act 1954 (Qld), s 38 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 61, s 143 Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70 Pappas v Meikeljohn’s Accountants [2017] QCATA 60 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented -- 1 of 4 -- 2 APPEARANCES: 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 Angela Brici filed an application for leave to appeal or appeal a decision of the Tribunal made in the minor civil disputes jurisdiction on 1 May 2019. Relevantly, the learned Adjudicator dismissed Ms Brici’s application for a consumer dispute seeking a refund of money spent on vitamin supplements and for compensation. Because the application for leave to appeal or appeal was filed outside the prescribed time of 28 days under s 143(4)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), Ms Brici applied for an extension of time to file the application. On 27 August 2019 I refused Ms Brici’s application to extend the time for filing the application for leave to appeal or appeal. Ms Brici requested reasons for my decision made that are now set out below.1 The application to extend time Section 143(4)(b) of the QCAT Act provides that an appeal must be filed in the registry within 28 days after the relevant day. Here, the ‘relevant day’ as provided under s 143(5)(c) is the day the person is given written reasons for the decision being appealed against.2 There is power under the QCAT Act to extend a time limit fixed for the start of a proceeding.3 Although the power to extend time involves the exercise of a broad discretion, s 61(3) of the QCAT Act provides that the Tribunal cannot extend or shorten time if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding. The usual considerations that apply in the granting of an extension of time include the length of delay; whether the party has provided an adequate explanation for the delay; the merits of the proceeding; prejudice to others; and the interests of justice.4 Ms Brici filed the application for leave to appeal or appeal on 19 June 2019 being 21 days outside the prescribed period for filing an appeal. Ms Brici identifies a number of reasons for the delay in filing her application such as personal circumstances involving her family, no opportunity to review her resources, full-time study commitments starting on 4 June 2019 and, as stated, she was ‘hoping to resolve the matter before the appeal to reduce some of the distress’.5 Ms Brici also says that she 1 Decision dated 27 August 2019 and Appeal Tribunal Directions dated 5 July 2019. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 143(5)(c). 3 QCAT Act s 61. 4 Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70, [26]. 5 Application to extend time filed 31 May 2019. -- 2 of 4 -- 3 requested QCAT provide her with relevant forms and they (meaning QCAT) are unaware of the date the forms were sent to her.6 Further Ms Brici refers to what may be described as a number of attempts by her to obtain relevant forms such as the application for leave to appeal or appeal from the Tribunal in order for the forms to be served on the respondent. I am not satisfied based on all of the material before me that Ms Brici has provided an adequate explanation for the delay in filing the application for leave to appeal or appeal. Ms Brici has filed no material to support her submission that she was experiencing psychological distress due to personal and family reasons. Further, there is no material to support Ms Brici’s submission that her full-time study commitments including three exams are a reason for the delay. Indeed, Ms Brici refers to the start date for her examinations as 4 June 2019. There is no explanation provided by Ms Brici for the delay in filing the application for leave to appeal or appeal during the period from the date of commencement of the examinations (i.e. 4 June 2019) to the date of filing the application being on 19 June 2019. Further, Ms Brici has filed together with her submissions in support of the application to extend time, a copy of correspondence sent to the respondent dated 21 May 2019 in which Ms Brici seeks to resolve the matter on certain terms. In the letter dated 21 May 2019, Ms Brici refers to the date of the hearing at first instance (i.e. 1 May 2019) and states that she still has, ‘the opportunity to appeal this matter within the coming days’.7 It is open for me to find that as at 21 May 2019, Ms Brici was well aware of her appeal rights in which she had an opportunity to consider whether she wished to proceed with the filing of an application for leave to appeal or appeal and more importantly was aware of the prescribed time limits in which to file an application. I am not satisfied that QCAT has in any way contributed to the delay in filing the application for leave to appeal or appeal, as contended by Ms Brici. Here, the application for leave to appeal or appeal (form 39) was filed in the Richlands Magistrates Court along with payment of the relevant fee on 19 June 2019. The relevant application (form 39) is available for download together with relevant information about the prescribed time for filing the form 39 from the Tribunal’s website. Indeed, the record of proceeding shows that Ms Brici attended the Tribunal hearing before the learned Adjudicator on 1 May 2019. Ms Brici would therefore have had the benefit of hearing the Tribunal’s oral reasons for its decision at the hearing on 1 May 2019 and would have had sufficient time (i.e. from 1 May 2019) to consider whether she wished to proceed with an appeal. I have also considered the merits of the proceeding. Ms Brici sets out a number of contentions in support of the application for leave to appeal or appeal such as that her initial application included an amount she was seeking from the respondent being ‘$595 +’ meaning an amount in excess of $595. Ms Brici says that it was stated in the hearing below, presumably by the learned Adjudicator, that she could not change the amount she was seeking.8 Ms Brici submits that she is now seeking $3,000 for the expenses that she has incurred from the respondent. 6 Submissions filed 18 July 2019. 7 Submission filed 26 July 2019. 8 Application for leave to appeal or appeal filed 19 June 2018. -- 3 of 4 -- 4 In the application for a consumer dispute that was filed in the Tribunal proceeding below, Ms Brici sets out the nature of her dispute including that she is seeking a refund of $595 as stated ‘due to the extra expenses’ associated with a consultation and prescriptions provided by the respondent, a registered Naturopath. Further, Ms Brici states that she had a reaction to the supplements prescribed by the respondent. In the application for a minor civil dispute, Ms Brici states, amongst other things, that the respondent sent her a script for practitioner-only supplements but she, as stated ‘wasn’t comfortable taking those supplements that were suggested by Ms Parry so she [the respondent] had altered [the script]’. More importantly, Ms Brici states that she did not buy the product prescribed by the respondent directly from her (the respondent) and, as stated by Ms Brici, ‘went to another store and purchased the product for a cheaper price’. It is open for me to find based on the material and submissions before me that Ms Brici’s application has limited prospects. Ms Brici has failed to quantify her claim and although she is seeking compensation for what appears to be a reaction to supplements prescribed by the respondent it is uncertain as to whether the supplements taken by Ms Brici were in fact the same supplements prescribed by the respondent. In the application and supporting material filed in MCDQ11-19 Ms Brici says that she did not in fact purchase the prescribed supplements from the respondent. Further, Ms Brici seeks to rely upon further material or fresh evidence that was not before the Tribunal at first instance, for which leave to rely upon the fresh evidence would be required should leave be granted and the application for leave to appeal or appeal proceed (and the application to extend the time for filing the appeal be granted). Here, Ms Brici has failed to convince me that there is a compelling reason for granting an extension of time to file the application for leave to appeal or appeal. Compliance with time limits is consistent with the public interest in the finality of litigation.9 Time limits must be complied with unless there is a compelling reason for the noncompliance. I have decided to exercise my discretion against the granting of an extension of time in this matter. The application for an extension of time for filing the application for leave to appeal or appeal is refused. I order accordingly. 9 Pappas v Meikeljohn’s Accountants [2017] QCATA 60, [10] (Thomas J). -- 4 of 4 --