Reeve v Hamlyn[2015] QCATA 133

REASONS FOR DECISION

1. [1]
   The applicant, Mr James Reeve, filed an application for leave to appeal and appeal against the decision of Magistrate Schemioneck in relation to a minor civil dispute. The applicant claims that the Magistrate erred by issuing judgment and orders against the applicant, as he was incorrectly nominated as the respondent in the original proceedings.
2. [2]
   At the outset, I feel it necessary to mark my dissatisfaction and disapproval of the manner in which the applicant has conducted this litigation. The Queensland Civil Administrative Tribunal is intended to be an efficient and informal forum providing access to justice for unsophisticated parties disencumbered of the procedural strictures governing ordinary civil litigation. In this respect, it is designed to be the “people’s court” of Queensland and dispense practical justice to the parties.
3. [3]
   The applicant does not appear to have conducted these proceedings with utmost good faith, and seems to have misguided the Appeal Tribunal by claiming to be a mere “employee” of Reeve Management Pty Ltd.
4. [4]
   To explain these remarks and the determination of the Appeal Tribunal, it will be necessary to summarise the facts giving rise to this dispute.

Procedural History and Factual Matrix

5. [5]
   On 29 December 2013 the respondent, Mr Timothy Hamlyn, purchased a home gymnasium from FitOnline, an electronic retailer of fitness equipment. In a complex arrangement of artificial persons, FitOnline is the trading name of a discretionary trading trust titled The Trustee of the Reeve Family Trust (“The Family Trust”). The Family Trust was settled in 1996, and the applicant and his wife, Ms Nicole Reeve, were appointed as joint trustees of The Family Trust. On 1 March 2003 the applicant and Ms Reeve were removed as trustees, and Reeve Management Pty Ltd (ACN 076 791 350) was appointed as the sole trustee of The Family Trust. The applicant is currently the sole director and secretary of Reeve Management Pty Ltd.
6. [6]
   No evidence has been furnished establishing the assets or solvency of Reeve Management Pty Ltd. The ASIC Reports adduced by the respondent demonstrate that Reeve Management Pty Ltd possesses a share structure of only two fully paid up ordinary shares, valued at $2.00. Reeve Management Pty Ltd retains legal – but not beneficial – ownership of the ordinary shares. No evidence has been provided tending to establish the beneficial owner of the shares.
7. [7]
   The fitness apparatus procured from FitOnline was a composite multi-purpose exercise machine designed for a diverse range of physical movements for the purposes of developing different parts of the human anatomy. The user applies force to certain sections of the device, which operates a mechanical pulley system connected to weights providing dynamic resistance. The exercise machine possessed several defects, and the pulley system failed, rendering the equipment unsafe and inutile. The applicant and GPI declined to refund the purchase price of the equipment, claiming that the failure was caused by inappropriate use or assembly.
8. [8]
   Following several failed attempts to informally resolve the dispute, on 26 June 2014 the respondent filed an originating application in the minor civil dispute jurisdiction of the Queensland Civil and Administrative Tribunal for recovery of the purchase price of the exercise equipment. The basis of the application was that the defects exhibited by the exercise equipment contravened express warranties contained under the contract for the sale of goods, or implied warranties under the Australian Consumer Law. The applicant resisted the application, asserting that the defect may have been caused by inappropriate use or assembly.
9. [9]
   The tribunal hearing commenced on 4 December 2014, and the applicant, appearing by telephone, requested an adjournment to facilitate the engagement of an independent mechanical specialist to inspect the exercise equipment and provide an expert report on the nature and cause of the defect. The Magistrate adjourned the proceedings, and directed that the applicant file an expert report on the status of the exercise equipment by 17 December 2014.
10. [10]
    On the evidence available to the Tribunal, the applicant failed to file the required expert report with the Magistrate, or serve the report on the respondent, by 17 December 2014. However, the applicant sent an email to the respondent stating the following:

Thanks for allowing our technician to inspect the gym… [T]he technician’s report is inconclusive, and he does recommend that the gym can be returned to a full and new working condition with replacement parts… since the report does confirm that the use of a gym and its assembly are not contributing factors to its failure, we will agree to a refund. GPI will contact you separately to arrange the removal of the gym, and as soon as this is complete we will refund the fully $1,018.95 to the PayPal account you used to place the order. Please note that this is not an admission of fault or concession by us or GPI that you are entitled to a refund, but rather as a gesture of good will to allow all parties to move forward with more productive pursuits…

Following that inspection, not withstanding (sic) that there was no conclusive outcome to the inspection, we’ve agreed to the refund. (emphasis added)

11. [11]
    The proceedings resumed on 19 December 2014, and the applicant failed to enter an appearance despite receiving leave to appear by telephone. The Magistrate was satisfied on the balance of probabilities that the respondent was entitled to a refund, in light of the photographic evidence adduced by the respondent and the electronic correspondence. The Magistrate ordered that the applicant pay the respondent the purchase price of the exercise equipment, which was $1,018.95, and filing fees of $101.40, amounting to $1,120.35.
12. [12]
    On 27 April 2015 the applicant filed an application to reopen the proceedings before the Magistrate. The application to reopen claimed that the originating application was filed against the wrong person, namely the applicant, Mr Reeve, who lacked any legal relationship with the respondent.
13. [13]
    The applicant claimed that the originating application should have been filed against Reeve Management Pty Ltd, the sole trustee of The Family Trust. This is because The Family Trust, trading as FitOnline, entered into the relevant contract with the respondent. This fact was established by correspondence and invoices exchanged between The Family Trust and the respondent. The applicant submitted that he was only an “employee” of Reeve Management Pty Ltd, and was not contracting as principal, but as an agent on behalf of the company.
14. [14]
    The Magistrate refused the application to reopen the proceedings without providing detailed reasons, but writing on the application form:

Noted – Respondent to consider appeal as previously advised. Application to Re-Open (Abuse of Process). Dismissed.

15. [15]
    The Magistrate, therefore, appears to have refused the application to reopen proceedings on the basis that it was an abuse of process. The applicant did not file a request for detailed reasons for the refusal of the application to reopen the minor civil dispute proceedings.
16. [16]
    On 8 May 2015 the applicant filed an application for leave to appeal and appeal with the Registry of the Queensland Civil and Administrative Tribunal. This application forms the foundation of the present proceedings.

Application for Leave to Appeal and Appeal: Grounds of Appeal

17. [17]
    The applicant appeals against the decision and orders of the Magistrate on the basis that the originating application nominated the wrong respondent.
18. [18]
    The applicant seeks orders setting aside the decision and orders of the Magistrate issued on 19 December 2014 or, in the alternative, requiring the proceedings to be re-opened to allow Reeve Management Pty Ltd to make submissions on behalf of The Family Trust.
19. [19]
    The respondent resists the application on the grounds that application for leave to appeal was brought outside the time limits prescribed under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). In the alternative, the respondent claims that the application for leave to appeal and appeal should not be allowed because:

    1. the applicant is the sole officeholder of Reeve Management Pty Ltd;
    2. the respondent contracted with the applicant for the supply of exercise equipment;
    3. allowing the appeal would cause prejudice to the respondent; and
    4. the applicant has suffered no substantial injustice or practical detriment as a result of the Magistrate’s decision.

Time Limits Prescribed for Applications for Leave to Appeal and Appeals

Is the application within the prescribed time limit?

20. [20]
    An applicant may file an application for leave to appeal and appeal against the decision of a Magistrate exercising the minor civil dispute jurisdiction of the Queensland Civil and Administrative Tribunal.^[1] The application for leave to appeal and appeal must be filed within 28 days of the relevant day.^[2]
21. [21]
    “Relevant day” is defined as:

1. (a)
   if a person makes an application under part 7, division 5, 6, or 7 about the decision being appealed against within 28 days after the person is given written reasons for the decision – the date that application is finally dealt with under that division;

2. (b)
   if written reasons have not been given for the decision being appealed against and reasons have not been requested under section 122 or are not required to be given – the day the person received notice of the decision; or

2. (c)
   the day the person is given written reasons for the decision being appealed against.

22. [22]
    The applicant was entitled to file an application for reasons within 14 days from the date on which the decision of the Magistrate took effect.^[3] The applicant failed to file an application for written reasons. Therefore, in accordance with s 143(5)(b), the “relevant day” is the date on which the applicant was given notice of the decision.
23. [23]
    The decision of the Magistrate took effect on 19 December 2014.^[4] The fact that the decision and orders were not registered with the Registry at some later date for enforcement does not modify the operative date for the decision.^[5] Applying the reckoning of time requirements under s 38(1)(b) of the Acts Interpretation Act 1954 (Qld), the applicant was required to file an application for written reasons by late January.
24. [24]
    The applicant, however, filed an application to reopen the decision of the Magistrate on 27 April 2015. Rule 92(b) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld)^[6] prescribes that an application to reopen the decision of the Magistrate had to be made within 28 days after the relevant day. The application, therefore, was brought outside of the prescribed time period had elapsed. Nevertheless, the Magistrate refused the application as an abuse of process.^[7]
25. [25]
    As an application to reopen proceedings constitutes an application brought under chapter 2 part 7 division 7 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the applicant sought to rely on s 143(5)(a) to extend the time period for filing an application for leave appeal or appeal. Applying Manson v Collins,^[8] s 143(5)(a) should be read as follows:

1. (a)
   if a person makes an application under part 7, division 5, 6 or 7 about the decision being appealed against within 28 days after the person is given written reasons for the decision [or the last day on which an application for written reasons could have been made] – the day the application is finally dealt with under that division. (emphasis added)

26. [26]
    Examining the modified s 143(5)(a), the applicant failed to file an application to reopen the decision by early February 2015, 28 days from the last date on which an application for written reasons could have been made. Therefore, despite having received a final determination on the application to reopen the decision of the Magistrate, s 143(5)(a) does not apply.
27. [27]
    The applicant contends that the Magistrate’s refusal to grant the application to reopen the original decision impliedly means the Magistrate granted the extension of time within which to file an application to reopen the proceedings. The applicant argues that had the Magistrate refused to grant the extension of time, the Magistrate would not have refused the application on the grounds that it was an abuse of process.
28. [28]
    The applicant’s nuanced argument, however superficially compelling, is erroneous.
29. [29]
    Firstly, the abridged written note accompanying the refusal of the application to reopen proceedings does not comprehensively articulate the grounds on which the application was refused. Indeed, the precise reasoning of the Magistrate is not before the Appeal Tribunal because the applicant failed to file an application for written reasons under s 122(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Accordingly, the Appeal Tribunal cannot be satisfied that a reason of the Magistrate for refusing the application to reopen the decision was not that the application was brought outside of the prescribed time period.
30. [30]
    Secondly, it does not follow that the Magistrate allowed the extension of time because the application was refused on the grounds of being an abuse of process. If an application is an abuse of process, presumably the accompanying application to extend time within which to file the application also amounts to an abuse of process. Therefore, the refusal of the application would concurrently amount to a refusal of the application to extend the time period within which to file an application for leave to appeal and appeal. It would be perverse to suggest that the Magistrate allowed an extension of time – the test for which substantially relates to the merits of the application for leave to appeal and appeal – and then dismisses the application to which the extension of time relates on the grounds of an abuse of process.
31. [31]
    Thirdly, the Appeal Tribunal is bound by the natural and ordinary meaning of s 143(5)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The definition of the “relevant day” under that provision is conditioned on the application for reopening having been brought within 28 days from the date prescribed in Manson v Collins. The relevant section does not make any allowance for extensions of time, clearly because of the statutory objective of promoting efficiency and expediency in the administration of the Tribunal under s 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Such an interpretation, which applies the natural and ordinary meaning of s 143(5)(a), is not unreasonable, manifestly absurd or perverse, nor does it deprive a meritorious applicant of a remedy, as the applicant might still file an application for an extension of time with the Appeal Tribunal, which would be granted if the proceedings possessed merit.
32. [32]
    Accordingly, the applicant cannot rely on s 143(5)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), and is bound by s 143(5)(b). The applicant was, therefore, required to file an application for leave to appeal and appeal by late January. Therefore, the applicant must request the Tribunal to extend the time period within which to file an application for leave to appeal and appeal.^[9] The Tribunal accepts the applicant’s informal request in oral and written submissions to extend time for compliance.
33. [33]
    Before considering the applicant’s application for an extension of time within which to file an application for leave to appeal and appeal, it is convenient to consider the principles governing an application for extension of time.

Principles governing a request for the extension of time to comply with procedural requirements in filing an application for leave to appeal

34. [34]
    The Tribunal may extend a time limit fixed by the Queensland Civil and Administrative Tribunal Act 2001 (Qld),^[10] even if the time for complying with the relevant requirement has elapsed.^[11] The only fetter imposed on the Tribunal’s discretion is that it cannot extend a time limit if doing so would cause prejudice or detriment to a party that cannot be remedied by an appropriate order for costs or damages.^[12]
35. [35]
    Despite this, the discretion should not be exercised mechanically or automatically in circumstances where granting an extension of time to comply with procedural requirements would not cause irremediable detriment or prejudice to a party or potential party to the proceedings. The discretion must be exercised in accordance with the applicable common law and equitable principles, and any relevant statutory prescriptions. The Tribunal must also assign appropriate weight to the requirement of finality of proceedings, expedition in filing appeals, the avoidance of stale actions or appeals, and the prospects of parties and non-parties changing their position in reliance on the original Tribunal decision.
36. [36]
    In deciding whether to allow a request for an extension of time to file an application for leave to appeal and appeal, the Tribunal should consider:

    1. the duration of the delay;
    2. whether there is a satisfactory explanation for the delay;
    3. the merits of the application and its prospects of success;
    4. the likelihood of any prejudice to other parties or potential parties; and
    5. whether the extension of time is in the interests of justice.^[13]

Duration of the delay

37. [37]
    The duration of the delay is a material factor in an application for leave to appeal and appeal a decision of the Magistrate. As the Queensland Civil and Administrative Tribunal is required to dispense justice as efficiently and expediently as practicable,^[14] the Tribunal will be more inclined to grant an extension of time to comply with procedural requirements in cases involving short delay. Applicants may need to show exceptionally compelling circumstances where the delay is protracted or extensive.
38. [38]
    The duration of delay may also prejudice the parties or non-parties, or undermine the integrity of the hearing. The effluxion of time often correlates with a deterioration in the quality of recollection of the parties and witnesses. Parties and non-parties may change their position or make personal and commercial decisions based on the original decision and orders. Material evidence may become lost or irretrievable where it may have been used to answer the applicant or appellant’s amended pleadings on appeal. Delay frequently increases the cost and time required to dispense with proceedings. Accordingly, there is a public interest in ensuring that appeals are efficiently and expediently prosecuted.
39. [39]
    The applicant filed the application for leave to appeal 130 days from the date of the decision and orders of the Magistrate, which significantly exceeds the time within which to file an application for leave to appeal and appeal, which is taken from the date the applicant received notice of the decision. In light of efficiency required in administering the Tribunal’s minor civil dispute jurisdiction and the relative simplicity of the respondent’s consumer claim, this constitutes inordinate delay.

Is there a satisfactory explanation for the delay?

40. [40]
    The applicant claims that a reason for the delay in filing the application was his application to reopen proceedings filed on 27 April 2015. This application was brought over 80 days after the time prescribed for filing an application to reopen proceedings elapsed. Therefore, it provides no meaningful explanation for the delay in bringing the present application.
41. [41]
    The applicant also refers to:

    1. public holidays and staff absences since 19 December 2015;
    2. the time involved in seeking suitable legal advice;
    3. his absence from the country until January 2015;
    4. that the respondent lodged the decision in March 2015;
    5. the incorrect use of the applicant’s address;
    6. the complaint lodged with QCAT by the applicant on 13 January 2015, which was not responded to until 20 February 2015; and
    7. the applicant’s retail “employment” is seasonal, being most demanding in February to April.
42. [42]
    A “satisfactory explanation” requires evidence of exceptional or unusual circumstances, outside of the ordinary vicissitudes of life or commercial activities, which causes, or materially contributes to, the delay. A logical connection or significant nomological pattern must also be drawn between the exceptional or unusual circumstances and the delay. The explanation must also demonstrate that the applicant, in some material respect, is not primarily at fault or otherwise responsible for the delay.
43. [43]
    Public holidays, business travel, staff absences, and seasonal sales volumes are standard and reasonably foreseeable features of managing a commercial enterprise. Furthermore, the time required to secure legal advice is contemplated within the prescribed time period for filing an application for leave to appeal and appeal.  Such factors do not, separately or cumulatively, constitute a satisfactory explanation for the delay.
44. [44]
    The fact that the respondent filed the decision and orders for enforcement with the Registry of the Queensland Civil and Administrative Tribunal in March 2015 is irrelevant. The applicant would have been supplied a copy of the decision and orders before March 2015, whereupon the applicant should have immediately observed the alleged defect within the decision. Furthermore, the respondent elected to delay enforcement to provide the applicant with an opportunity to provide a full refund as offered by the applicant in email correspondence dated 15 December 2015.^[15]
45. [45]
    The applicant claims that delay was caused by incorrect filing of material at the applicant’s place of employment. As the applicant is the sole Director and officeholder of Reeve Management Pty Ltd, the Tribunal is satisfied that this information would have come to the attention of the applicant. In any event, the applicant has failed to draw any logical connection between the fact of delivery to an incorrect address, and the actual duration of delay.
46. [46]
    The business complaint filed by the applicant with the Queensland Civil and Administrative Tribunal on 13 January 2015 has no relevance to the current proceedings. It did not prevent or delay the filing of an application for leave to appeal and appeal. The applicant was not required to suspend the filing of such an application until the resolution of the complaint.
47. [47]
    Accordingly, the application has failed to provide a satisfactory explanation for the delay. Nevertheless, this alone is not fatal to the applicant’s request for an extension of time to file an application for leave to appeal and appeal.

Merits of the application and prospects of success

48. [48]
    The Tribunal must consider the merits and prospects of success of an application for leave to appeal and appeal in determining whether to grant a request for the extension of time.
49. [49]
    The merits and prospects of success of an application are relevant in determining whether: (a) any lawful purpose would be discharged in granting the extension of time; and (b) any substantial injustice or detriment has been caused to the applicant by the purportedly erroneous decision. However, in conducting a preliminary assessment, the Tribunal must be cautious to avoid prejudging the merits of the application. Thus, any view expressed by the Tribunal in evaluating the application should be a tentative and preliminary opinion subject to modification or dissuasion by either party.
50. [50]
    The degree of proof required to warrant an exercise of discretion to extend the time to comply with procedural requirements is positively correlated with the relative cogency or strength of the respondent’s application. Relatively meritorious grounds of appeal militate strongly in favour of extending the time required to comply with procedural requirements to avoid depriving the applicant of an appropriate remedy. Relatively weak, ephemeral or improbable grounds of appeal will militate against granting the extension of time to avoid prolonging unproductive or futile proceedings.
51. [51]
    In light of these principles, it is convenient to conduct a preliminary assessment of the merits of the application for leave to appeal and appeal.
52. [52]
    The applicant submits that the Magistrate erred in nominating the applicant as the respondent in the decision and orders, whereas the Magistrate should have nominated Reeve Management Pty Ltd, the Trustee of The Family Trust and operator of the business FitnessOnline.
53. [53]
    This raises the following mixed questions of law and fact:

    1. whether the applicant was a party to the contract, either as sole principal, or joint principal together with Reeve Management Pty Ltd;
    2. if the applicant was not a party to the contract, whether the applicant was an appropriate respondent in the original proceedings.
54. [54]
    The principle of finality requires applications before the Tribunal to be fully resolved at first instance. An appeal is not an opportunity to make a second case different to that advanced at the original hearing. Otherwise, the Tribunal’s original jurisdiction would become a “testing ground” for legal and factual arguments which would be re-litigated or modified on appeal based on their relative efficacy before the primary decision-maker. This would result in an exorbitant waste of the temporal, financial and capital resources of the Queensland Civil and Administrative Tribunal, which is fundamentally inconsistent with the objectives of its constitutional legislation.
55. [55]
    If an application raises a mixed question of law and fact for the first time on appeal, the Appeal Tribunal should consider the application provided that the relevant facts are founded on evidence before the original decision-maker, or might easily be established by the adduction of admissible evidence. This is subject to the overriding consideration of prejudice which might be caused to the opposing party by raising the ground of appeal for the first time on appeal.
56. [56]
    The applicant in these proceedings is the sole director and officeholder of the relevant company. I am satisfied that the applicant had notice of the proceedings, as he participated in hearings relating to the originating application. The applicant might have been reasonably expected to have perceived that the respondent in the originating application might have been incorrectly identified. The applicant failed to file an objection during the hearing or within the appellable time period thereafter.
57. [57]
    The correspondence and invoices adduced during the original tribunal hearing also raise a legitimate question as to whether the applicant contracted as principal to the contract for the sale of exercise equipment. However, any further evidence which may be required to warrant a positive finding that the applicant was merely contracting as agent for Reeve Management Pty Ltd, including the constitution or articles of association of the company, and any further internal policies relevant to the authority of employees and officers of the company. Therefore, the applicant has failed to demonstrate that the evidence required to establish that the applicant was merely contracting as agent for Reeve Management Pty Ltd was adequately adduced before the primary decision-maker.
58. [58]
    A related issue is that the respondent in these proceedings, in many respects, is the alter ego of Reeve Management Pty Ltd, being the sole director and officeholder, and indirectly holding an interest in the corporation through a discretionary trust. Thus, there remains a genuine question regarding whether the applicant was not in fact an appropriate respondent.
59. [59]
    Assuming that the applicant can establish his capacity when contracting with the respondent is undisputed, established on the evidence before the Magistrate, or could be demonstrated without difficulty on admissible fresh evidence, the applicant must show there is no prejudice to the respondent.
60. [60]
    The originating application was filed and served on the applicant, and clearly nominated the applicant as the respondent in the proceedings. The applicant filed a response in reply to the originating application, and written and oral submissions before the Magistrate. Indeed, the applicant requested that the hearings be adjourned for independent mechanical specialists to inspect the exercise equipment and provide an expert report to the Tribunal. The applicant was also provided leave to appear by telephone for the oral hearing on 19 December 2015. The applicant appears, therefore, to have conducted a fulsome and effective defence to the application by the respondent seeking recovery of the purchase price of the exercise equipment.
61. [61]
    Despite this, the applicant failed to raise the procedural defect in the original proceedings. Had the applicant promptly raise the procedural defect, the Magistrate, exercising his jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (Qld), could have amended the originating application and ancillary documentation without complication, additional cost or prejudice to either party. If necessary, the other possible respondents could have been joined as co-respondents in the proceedings.
62. [62]
    The relevant procedural defect in the originating application and decision of the Magistrate is not something which could only be identified by specialist legal training, knowledge or experience. If the applicant’s submissions are correct, the error should have been transparent at the time the documents were served. The applicant then should have made a request to the Magistrate to be removed as respondent, or alternatively join Reeve Management Pty Ltd or The Family Trust.
63. [63]
    The failure of the applicant to promptly raise the procedural objection caused the respondent and Tribunal to unnecessarily expend time and resources in hearing the appeal and, if allowed, setting aside the original decision of the Magistrate to have the proceedings commenced de novo. As the applicant is the sole director and officeholder of Reeve Management Pty Ltd, it is highly unlikely that the conduct of the proceedings would be materially different to that before the original Magistrate. The litigation tactics deployed by the applicant – inimical to the purpose and objectives of the Queensland Civil and Administrative Tribunal – have caused unnecessary and inordinate delay in resolving the dispute.
64. [64]
    For these reasons, it is doubtful whether the respondent would be able to establish that the Tribunal should allow the mixed question of law and fact to be raised for the first time on appeal. If it is allowed, the proximity of the relationship between the applicant and Reeve Management Pty Ltd, which bears the markings of the company being an alter ego for the applicant, and the possibility of the applicant contracting as principal, raises legitimate concerns regarding the merits of the appeal.

Substantial Miscarriage of Justice

65. [65]
    Assuming (a) the Tribunal should allow the applicant to raise misnomer as a ground of appeal and (b) that the applicant can establish that he was not a principal to the contract between the respondent and FitOnline, the applicant must still establish that he has suffered a “substantial injustice” or “practical detriment” as a result of the applicant being incorrectly nominated as respondent in the decision of the Magistrate.
66. [66]
    With the exception of the letter of the debt collector, the applicant has failed to furnish evidence of a substantial injustice or practical detriment. Although the applicant may be required to personally satisfy the amount ordered in the judgment, the applicant is the sole director and officeholder of Reeve Management Pty Ltd, and a principal beneficiary under The Family Trust.
67. [67]
    In the circumstances, the applicant has not adduced sufficient evidence to establish on the balance of probabilities, having regard to the fact that Reeve Management Pty Ltd appears to be an alter ego of the applicant, that the applicant has suffered a substantial injustice or practical detriment.

Is there any likelihood of prejudice to parties or potential parties if the extension of time is allowed?

68. [68]
    The Appeal Tribunal possesses some evidence that prejudice might be caused to the respondent if the extension of time is allowed.
69. [69]
    The respondent has incurred significant costs in prosecuting the originating application and securing a decision from the Magistrate. The proceedings have also been infected by extensive delay. The respondent possesses limited financial resources, and would likely be substantially disadvantaged by incurring the costs associated with prosecuting the application again. Granting the extension of time would cause the accrual of further costs and delays to the respondent and the Tribunal.
70. [70]
    Accordingly, limited prejudice may be caused to the respondent by granting an extension of time within which to file an application for leave to appeal and appeal.

Interests of Justice

71. [71]
    The Tribunal must consider the interests of justice in determining whether to grant an extension of time. The interests of justice require a comprehensive examination of the relevant circumstances of the case, and balancing the competing interests and rights of the respective parties.
72. [72]
    Assuming that the applicant’s submission of misnomer is correctly founded, the applicant’s failure to object to the form of the originating application, which should have been clear to the applicant, at first instance resulted in the unnecessary expenditure of considerable private and public time, resources and costs. This expenditure could have been avoided during the proceedings by amending the originating application and formally serving all required notices and materials on Reeve Management Pty Ltd. The respondent’s failure to promptly object, and the consequences of that failure, are appropriate considerations in determining whether to grant an extension of time.
73. [73]
    I am also satisfied on the evidence that the applicant, as the sole director and officeholder of Reeve Management Pty Ltd, and possessing a substantial interest in the company through a discretionary trading trust, would have, in effect, incurred the financial loss had the orders been made against the relevant company.
74. [74]
    The applicant referred to the following passage of Wilson J in Blair v Harbrew Pty Ltd,^[16] where his Honour held that:

The legislation, and the demands on public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences.

The fact remains that McAleese Transport took no care in ensuring that its claim was properly made. All hotels are required to display the licensee at the front of the premises. There is no evidence that McAleese Transport took the precaution of checking this information. It did not do a business name search until May 2012. These simple steps could have avoided the costs it later incurred. McAleese Transport did not act in its own best interests. It must, in part, accept the consequences.

75. [75]
    In Harbrew Pty Ltd the applicants were filing an application to appeal against the decision of a Magistrate refusing to set aside default judgment on the basis that the applicants were incorrectly nominated in the proceedings. Significantly, the applicants had not responded to the originating application, and therefore the matter had not been fairly argued and ventilated before the Magistrate by the applicants. Furthermore, the legal threshold associated with establishing the right to set aside a default judgment is substantially less onerous than that required to establish a right to set aside final judgment on appeal.
76. [76]
    In the original proceedings, the applicant filed a response to the originating application and made oral and written submissions to the Magistrate. The applicant failed to promptly raise the incorrect identification of the respondent with the Magistrate to facilitate amendment of the originating application and ancillary processes. Further, the applicant provided a fulsome and comprehensive defence on ostensibly the same basis that Reeve Management Pty Ltd would have prosecuted its defence.
77. [77]
    This case is clearly distinguishable from Harbrew Pty Ltd because:

    1. the applicant prosecuted a comprehensive and fulsome defence against the originating application;
    2. the proceedings are an appeal to set aside the final decision and orders of the Magistrate, not an appeal to set aside the refusal of a Magistrate to set aside default judgment;
    3. in Harbrew Pty ltd the application for leave to appeal and appeal was filed one day late. Here, the application for leave to appeal and appeal is over 80 days late; and
    4. there is clear evidence of a proximity of interests between Reeve Management Pty Ltd, The Family Trust and the applicant, such that the two former entities are vehicles through which the applicant manages and operates FitOnline.
78. [78]
    It is true that the legislation imposes an expectation and obligation that a party will act in its own best interests. This principle, however, equally applies to both applicants and respondents. There is an expectation that a respondent, presented with transparent evidence of a failure on behalf of the applicant to nominate the correct respondent, will raise this error in comprehensively presenting their case at first instance. It is not expected that the respondent will prosecute a comprehensive and fulsome defence, but reserve a critical component for consideration on appeal.
79. [79]
    During the hearing before the Appeal Tribunal, it was proposed to the applicant that the matter might be settled by setting aside the orders of the Magistrate and issuing amended orders in the same terms nominating Reeve Management Pty Ltd as the respondent. The applicant declined, claiming that the consideration of such a proposal must be conducted by Reeve Management Pty Ltd, not the applicant. The position of the applicant would be sustainable were the applicant not the sole officeholder and director of Reeve Management Pty Ltd. The applicant possessed the authority to acquiesce to the issuing of the amended orders. Nevertheless, the Appeal Tribunal acknowledges the entitlement of the applicant to decline such a proposal.
80. [80]
    Balancing the competing interests and rights of the parties, the interests of justice tend to weigh against granting an extension of time within which to file an application for leave to appeal and appeal.

Findings

81. [81]
    The Tribunal has found that there has been a substantial delay of over eighty days in filing the application for leave to appeal and appeal. The applicant has failed to proffer a satisfactory explanation of the delay.
82. [82]
    The merits of the application for leave to appeal and appeal remain contentious with several factual issues yet to be resolved. The applicant has also failed to adduce sufficient evidence that substantial injustice or practical detriment has been caused by the error of the magistrate.
83. [83]
    The respondent has demonstrated that he may suffer some prejudice in the form of additional costs and delay as a result of the granting of the extension of time. However, I would note that this prejudice might be adequately remedied by a monetary award of compensation, indicating that this is a less cogent consideration.
84. [84]
    The applicant provided a fulsome and comprehensive defence of the originating application. He is the sole officeholder and director of Reeve Management Pty Ltd. The company is a trustee of The Family Trust, of which the applicant is a principal beneficiary. As the applicant’s interests are highly proximate to that of Reeve Management Pty Ltd, and the matter was fully and competently argued and ventilated at first instance without the incorrect identification of the respondent having been raised, the interests of justice would appear to militate against granting an extension of time within which to file an application for leave to appeal and appeal.
85. [85]
    Accordingly, the Appeal Tribunal should refuse the request to extend the time within which the applicant may file an application for leave to appeal and appeal. If the Tribunal were incorrect in refusing to extend the prescribed time limit, the Tribunal would have been minded to refuse leave to appeal on the grounds articulated in this decision.

Order

86. [86]
    Extension of time to file an application for leave to appeal and appeal is refused.