BLU Australia Pty Ltd v Pyramid Milk Pty Ltd [2015] QCATA 47

CITATION: BLU Australia Pty Ltd v Pyramid Milk Pty Ltd [2015] QCATA 47 PARTIES: BLU Australia Pty Ltd (Appellant) v Pyramid Milk Pty Ltd (Respondent) APPLICATION NUMBER: APL042-15 MATTER TYPE: Appeals HEARING DATE: 3 April 2015 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 7 April 2015 DELIVERED AT: Brisbane ORDERS MADE: It is declared that application for leave to appeal APL042-15 is properly before the Appeal Tribunal, and that the appellant is at liberty to proceed. CATCHWORDS: MINOR CIVIL DISPUTE – APPLICATION FOR LEAVE TO APPEAL – application to extend time for appeal – where confusion in district registry between notice of orders made and reasons for decision – where unrepresented appellant unaware of procedure for obtaining transcript or audio-recording of reasons – where notice of appeal filed before reasons provided to appellant – where extension of time not required – declaration accordingly. Queensland Civil and Administrative Tribunal Act 2009 ss 28, 32, 60, 122, 142, 143 Uniform Civil Procedure Rules 1999 r 748 Busby v Body Corporate for Balmattum [2014] QCATA 156 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Legal Services Commissioner v Bradshaw -- 1 of 5 -- 2 [2009] QCA 126 Manson v Collins [2010] QCATA 63 Roberts v Queensland Building Services Authority [2013] QCATA 213 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 (QCAT Act). REASONS FOR DECISION [1] This is an application by BLU Australia (BLU) for an extension of time to appeal. The appeal, if any, requires the Tribunal’s leave,1 and will be dealt with by another judicial officer. [2] On 19 November 2014 a Magistrate, sitting as a Member of the Tribunal, in an oral judgment, dismissed BLU’s action for the price of goods sold and delivered to the respondent Pyramid. [3] BLU filed its application for leave to appeal on 4 February 2015 – some 77 days after the primary judgment was delivered. [4] The time for appeal normally expires 28 days after the “relevant day”.2 The relevant day is that on which the intending appellant is given written reasons for the decision in question.3 The requirement for reasons may be satisfied by giving the appellant an audio recording of a viva voce decision.4 [5] BLU’s uncontradicted evidence5 is that on 21 November 2014, just two days after the trial6, it asked the Caloundra registry by phone for a copy ‘of the judgment’ for the purposes of an appeal. The registry replied that a ‘digital copy of the judgment [would] be sent by post’. 7 It was not until two months later that the Caloundra office explained that it could not supply the material itself, and that a special, centralised procedure must be followed: The request for reasons must be done through the QCAT website. Submit your request there and they will look after it. The Registry here has no authority or capability to issue any recordings. This due to all transcripts being under the control of Auscript, a private entity. QCAT has an 1 QCAT Act s 142(3)(a)(i). 2 QCAT Act s 143(4)(b). 3 Ibid s 143(5)(a); Manson v Collins [2010] QCATA 63 at [5], [9]. Compare and contrast Uniform Civil Procedure Rules 1999 r 748(a). 4 Ibid s 123(2). 5 This expression is to be understood in the light of s 28 of the QCAT Act. 6 This complies with s 122(2) of the QCAT Act (decisions without written reasons) which allows 14 days to request such reasons. 7 Email BLU to Caloundra registry 12 January 2015. -- 2 of 5 -- 3 agreement with Auscript that reasons will be provided free of charge and this is why the request must be done online via the QCAT website.8 [6] It is not to be expected that non-lawyers, or, for that matter, every lawyer would be aware of this procedure without specific notice. Indeed, when Pyramid’s solicitors applied for a copy of the reasons they sent their request to Landsborough courthouse.9 [7] On 12 January 2015 BLU, still believing that a copy of the judgment was a matter for the Caloundra registry, politely pointed out that it had not yet received that document.10 On the same day the registry replied: Thank you for your enquiry. Please find a copy of the decision attached. As per request, I have mailed the original today to [your office address].11 [8] It is apparent that the registry staff, in sending this email, confused the formal order of the court with the required reasons for judgment. The file includes a Certificate of Service endorsed on a copy of the court’s order, reading: ‘Copy posted on 12.1.2015 (signature indecipherable)’. Possibly the confusion was caused by the QCAT form’s description as “Decision”, rather than “Order”. Obviously, in preparing an appeal, a terse “Decision” is much less useful than the reasons for that conclusion. [9] On 20 January 2015 BLU told the registry: ‘We didn’t receive the decision digital copy yet’.12 As the formal order would have reached BLU, in the ordinary course of post, on or about 13 January 2015, it could readily be inferred that what BLU really wanted was a copy of the reasons for judgment. [10] However, at 12:10pm on 20 January the registry politely but unhelpfully replied: In response to your email today I advise that the order [sic] was posted to you at PO Box 346 Beerwah 4419 on 12/1/15. I attach a copy of the order that was sent.13 [11] A few minutes later BLU tried again: Just to clarify. In order for us to review the decision that was made on the day, we have asked for reasons as per QCAT website.14 [12] That was the Damascene moment, when the distinction between reasons for judgment and a bare order dawned on officialdom. At 1:23pm on 20 January the registry wrote again to the appellant: 8 Email Caloundra registry to BLU 20 January 2015. 9 Email Astley Associates, Cairns, to Landsborough court 18 October 2015. (BLU initiated the proceedings in Landsborough, although the hearing was in Caloundra). 10 Email BLU (Cohen) to Caloundra registry 12 January 2015. 11 Email Caloundra registry (Donna Hay) to BLU 12 January 2015. 12 Email BLU (Cohen) to Caloundra registry 20 January 2015 at 6:21am. 13 Email Caloundra registry (David Hay) 20 January 2015 at 12:10pm to BLU. 14 Email BLU (Cohen) to Caloundra registry 20 January 2015 at 12:35pm. -- 3 of 5 -- 4 Sorry, I now understand what you are after. The request for the reasons must be done through the QCAT website. ... The registry here has no authority or capability to issue any recordings.15 [13] In the premises, it is quite incorrect for Pyramid to contend that ‘the allegation that the applicant was prevented from filing an appeal in time because of the alleged failure of the Caloundra court to provide a transcript promptly ... is entirely without substance’.16 (I note the qualification: ‘so far as we are aware’.) [14] So soon as BLU was informed of the proper procedure for obtaining reasons for judgment, it placed an order for them on the central QCAT website. BLU’s applications for leave to appeal and extension of time to appeal were filed 15 days later. Precisely when the reasons were received is unclear, but it is plain that 28 days did not elapse between the first reasonable opportunity to obtain the reasons and filing of the appeal. BLU’s statement that the decision was received on 19 November 2014 is simply a misunderstanding of subsections 143(4) and (5) of the QCAT Act. If the appeal was filed before the reasons were received, that is immaterial. There is nothing to prevent an appellant from lodging an appeal before the reasons for judgment are received, albeit at the risk of having to amend, or if the reasons seem unassailable, deciding to withdraw. [15] The Caloundra registry’s confusion of the formal order with the reasons for judgment effectively prevented BLU from obtaining the reasons before 20 January 2015. Indeed, the order itself was not served upon the appellant until two months after the hearing.17 [16] The time for filing an appeal runs from the day on which an intending appellant is given written (or digital) reasons for the decision in question,18 not from the date of the decision. It follows that no extension of time is required in this case. The reasons were requested two days after the hearing in November 2014; because, per incuriam, they were not given to the appellant until on or after 20 January 2015. [17] If an extension were required, the Tribunal, in its discretion, would properly take several considerations into account, including the appellant’s prospects of success.19 Here BLU faces the task of displacing findings of fact and credit that are peculiarly matters for the primary adjudicator. It must be appreciated that an appeal is not a re-run of the trial, but an 15 Email Caloundra registry to BLU, 20 January 2015 at 1:23 pm, emphasis added. 16 Letter Astley Associates, solicitors to Landsborough Magistrates Court 16 February 2015. 17 See Certificate of service marked as posted on 12 January 2015 and email David Hay to BLU 20 January 2015 at 12:10pm. 18 QCAT Act s 143(5)(a). 19 Legal Services Commissioner v Bradshaw [2009] QCA 126 at [33] and [62]; Roberts v Queensland Building Services Authority [2013] QCATA 213 at [5]; Busby v Body Corporate for Balmattum [2014] QCATA 156 at [33]; Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [10]. -- 4 of 5 -- 5 examination of alleged errors of law. However, it is not for me to decide the merits, and I make no attempt to do so. [18] As no extension of time is required, it is sufficient to declare20 that BLU’s application for leave to appeal is properly before the Tribunal, and that the appellant is at liberty to proceed. ORDER It is declared that application for leave to appeal APL042-15 is properly before the Appeal Tribunal, and that the appellant is at liberty to proceed. 20 QCAT Act s 60. -- 5 of 5 --