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HXB v The Public Trustee of Queensland[2016] QCATA 3

HXB v The Public Trustee of Queensland[2016] QCATA 3

CITATION:

HXB v The Public Trustee of Queensland [2016] QCATA 3

PARTIES:

HXB

(Appellant)

v

The Public Trustee of Queensland

(Respondent)

APPLICATION NUMBER:

APL226-15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

Member Browne

DELIVERED ON:

4 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for an extension of time is refused.

CATCHWORDS:

APPEAL – EXTENSION OF TIME – where delay of approximately 2.5 weeks in filing application for appeal – where no prejudice alleged – whether good reason for delay – whether reasonable prospects on appeal – whether interest of justice favour extension

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 61.

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309; cited

Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229; cited

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 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    On 27 March 2015, the Tribunal continued the appointment of The Public Trustee of Queensland as an administrator for HMV.
  2. [2]
    HXB is HMV’s son and wants to appeal that decision. HXB filed an application for leave to appeal or appeal on 22 May 2015, outside the time required for filing an appeal under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  3. [3]
    Because HXB filed his appeal outside the time required, he needs leave to extend time. HXB filed an application for an extension of time on 22 May 2015.
  4. [4]
    The Appeal Tribunal has the power to extend the time to commence a proceeding[1] even if the time for complying with the requirement has passed.[2] The Appeal Tribunal cannot extend time if to do so would cause prejudice.[3] In this case, The Public Trustee of Queensland does not say it will suffer any prejudice by the extension of time.[4]
  5. [5]
    The relevant factors[5] to be considered by the Appeal Tribunal in determining whether an extension of time should be granted include:
    1. Whether this is a good reason for the delay;
    2. The strength of the case HXB wishes to bring or raise based on the material before the Appeal Tribunal;
    3. The length of the delay where a short delay is generally easier to excuse than a lengthy delay;
    4. Whether it is in the interests of justice to grant the extension.
  6. [6]
    In an earlier decision of the Appeal Tribunal, the President of the Tribunal said compliance with time limits will lead to disposition of matters and, unless there is a compelling reason, a party should comply with time limits[6]:

Each party is aware of the required time limits and the fair approach is to require that limits be complied with unless there is a compelling reason (such as those listed above) to the contrary. This is fair for all parties. Compliance with time limits also will lead to disposition of matters in the most efficient and quick way. Compliance with time limits is also consistent with the public interest in finality of litigation….[7]

  1. [7]
    In this case HXB must have a compelling reason why the Appeal Tribunal should extend time for the filing his application for leave to appeal or appeal.

Reason for the delay

  1. [8]
    HXB does not provide an explanation for the delay in filing in his application for leave to appeal or appeal. HXB says in his recent handwritten submissions that the appeal must not be dismissed because ‘(1) the gross mismanagement by Qld Public Trustee of over $1000,000 to [his] family and QCAT continually (2) QCAT continually fail their responsibilities to take action; (3) QCAT bias must be stopped’.[8] HXB has identified issues and concerns about the continued appointment of The Public Trustee of Queensland but has provided no explanation for the delay.

Length of delay

  1. [9]
    The Tribunal’s file shows that the Tribunal posted its decision made on 27 March 2015 to HXB on 31 March 2015 together with the ‘Appeals information notice’ pursuant to section 121(2) of the QCAT Act. That notice clearly sets out the time in which an appeal must be filed in the Tribunal together with a summary of information about appeals.
  2. [10]
    The Tribunal’s file shows that HXB attended the Tribunal’s hearing in person on 27 March 2015. It is open to the Appeal Tribunal to draw the reasonable inference that HXB had the benefit of hearing the Tribunal’s reasons for the decision in person because the learned Member delivered her reasons orally.
  3. [11]
    The Appeal Tribunal has calculated that HXB has delayed filing his application for leave to appeal or appeal by approximately 2.5 weeks. That period of time is calculated by allowing some extra days for delivery of standard post interstate (because HXB lives in New South Wales) from the Tribunal’s date of posting the decision and appeals information notice (on 31 March 2015).
  4. [12]
    It is open to the Appeals Tribunal to draw the reasonable inference that HXB received the decision and appeals information notice on or about 7 April 2015 (allowing 5 business days for delivery).
  5. [13]
    The period of 2.5 weeks is significant given the circumstances of this matter, in particular, that HXB attended the hearing in person and would have had the benefit of hearing the Tribunal’s oral reasons on 27 March 2015.

The strength of the case - prospects on appeal

  1. [14]
    HXB identifies issues or concerns with The Public Trustee of Queensland but does not identify any grounds of appeal.
  2. [15]
    In the application for leave to appeal or appeal, HXB says the case was unfairly dealt with, his mother is paying $12,000 over 10 years (approximately), he (HXB) would ‘look after’ his mother ‘for free’, his brother defamed him with ‘disgusting lies’ and it is his right to look after his mother’s finances because he is her eldest son.[9]
  3. [16]
    HXB has detailed the orders he seeks in relation to the appeal- remove the Public Trustee of Queensland; and give HXB the authority to look after his mother’s finances.[10]
  4. [17]
    The Tribunal has carefully considered HXB’s issues or concerns set out in the application for leave to appeal or appeal and his handwritten submissions.
  5. [18]
    The Appeal Tribunal recognises that HXB is self-represented and does not have an experienced legal background. The Appeal Tribunal has done its best to identify some of the recurring issues or concerns that appear in his submissions as follows:
    1. The Public Trustee has caused losses of $600,000 to HXB personally;
    2. The Public Trustee has invested HMV’s money;
    3. The Public Trustee has lost HMV’s money;
    4. The Public Trustee refuses to follow HMV’s wishes;
    5. The Public Trustee ‘refuses’ to recover stolen money;
    6. HXB’s brother is ‘a liar’, a ‘failure at business’ and ‘a thief’;
    7. HXB is badly treated by the Tribunal.[11]
  6. [19]
    Some of HXB’s submissions have been addressed to the Prime Minister, the Queensland Premier, the Queensland Police, various television stations throughout Australia, newspapers in Australia, the Crime and Misconduct Commission and various members of parliament. HXB identifies issues or concerns with the Tribunal generally. HXB says ‘QCAT are pigs with their snouts in the trough wasting tax payers money. They are incompetent and way out of their abilities’. HXB says he is ‘a son who loves his mum and now hates public servants. They should be shot or put in goal. There is no use complaining…’
  7. [20]
    Those handwritten submissions show a concerning lack of understanding of the Tribunal’s role. They are, with respect, confusing, repetitive and do not identify why HXB says the Tribunal’s decision is wrong and how it is affected by error being an error in law or mixed fact and law.
  8. [21]
    It is clear from reading the submissions that HXB is dissatisfied with the Tribunal’s decision to continue the appointment of The Public Trustee of Queensland. This does not necessarily mean however that the Tribunal’s decision is wrong or is affected by error. HXB makes no reference to the Guardianship and Administration Act 2000 (Qld) or the QCAT Act. The Appeal Tribunal is not satisfied that there is any merit to HXB’s application for leave to appeal or appeal.

Is it in the interests of justice to grant the extension?

  1. [22]
    The tribunal first appointed the Public Trustee of Queensland as HMV’s administrator in 2006. The tribunal reviewed that appointment in 2011 and again 2015. The matters of which HXB complains have not arisen in the recent past; they have been a function of the Public Trustee’s involvement in his mother’s life since 2006.
  2. [23]
    If the tribunal’s decision to appoint the Public Trustee was wrong, then HXB should have taken action much earlier than 2015. The interests of justice do not support an extension of time, even a short one, to correct a situation that has existed for almost ten years.

Conclusion

  1. [24]
    HXB has not provided a good reason for his delay in filing the application for leave to appeal or appeal. HXB had the benefit of attending the Tribunal’s hearing at first instance in person and has waited for approximately 2.5 weeks to file his appeal. It is desirable to have finality in this matter. The Appeal Tribunal appreciates that HXB is dissatisfied with the Tribunal’s decision but this alone is not a reason to grant an extension of time to file the appeal. The application for an extension of time to file an application for leave to appeal or appeal is refused.

Footnotes

[1]  QCAT Act, s 61(1)(a).

[2]  Ibid s 61(2).

[3]  Ibid s 61(3).

[4]  Written submission filed by The Public Trustee of Queensland on 27 October 2015.

[5] Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229.

[6] Coppens v Water Wise Design Pty Ltd [2014] QCATA 309. 

[7]  Ibid at [14].

[8]  HXB’s written submissions filed on 13 October 2015.

[9]  Application for leave to appeal or appeal filed on 22 May 2015.

[10]  Ibid.

[11]  Written submissions filed on 17 September 2015, 17 September 2015, 13 October 2015, 1

Close

Editorial Notes

  • Published Case Name:

    HXB v The Public Trustee of Queensland

  • Shortened Case Name:

    HXB v The Public Trustee of Queensland

  • MNC:

    [2016] QCATA 3

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe, Member Browne

  • Date:

    04 Jan 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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