Mitsel v Lewis[2018] QCATA 171

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The principal application before this Appeal Tribunal is an application by the applicant for leave to appeal against a decision of the Tribunal constituted by a Magistrate.  The following background is derived from the material before the learned Magistrate who heard this matter at first instance.
2. [2]
   The respondent purchased a vehicle from the applicant on 27 September 2017.  The respondent was not present at the time of purchase but had a friend complete the purchase on her behalf.  That friend inspected the vehicle before taking possession but did not take it for a test drive.
3. [3]
   The vehicle was purchased on the Gold Coast and driven back to Hervey Bay, where the respondent lives.  In the course of that trip, the respondent’s friend identified that the vehicle was ‘playing up’.  There appeared to be issues accelerating and the power was slipping.
4. [4]
   The respondent had the vehicle inspected and an issue with the gear box was identified: the T bar would not work and it was slipping out of gear.  The respondent contacted the applicant and asked what he would do about it.
5. [5]
   A number of emails then passed between the parties with a view to determining the specific issues and how they could be rectified.  The applicant asked for the respondent to obtain quotes to have the vehicle fixed, but there was a dispute about how many quotes the respondent obtained.  The applicant had possession of the vehicle between 23 January 2018 and 13 February 2018 with the intention of repairing it, but when the vehicle was returned to the respondent she claimed the problems persisted. 
6. [6]
   The respondent was advised that the vehicle was not roadworthy and work needed to be done to bring it to that standard.   She remained of the view that the vehicle cannot be driven.
7. [7]
   The respondent made application to the Tribunal for compensation in the amount of $10,676.80.  This comprised of the value of the vehicle (being $10,250), $100 refund of money and the filing fee. 
8. [8]
   The matter was heard and determined by a learned Magistrate at Hervey Bay sitting in the Minor Civil Disputes jurisdiction of the Tribunal.
9. [9]
   The Magistrate determined that compensation would be paid to the respondent in the sum of $4,328.50, that being, on the Magistrate’s assessment, the cheapest quote for replacement of the gear box.
10. [10]
    As noted, the applicant has applied for leave to appeal and appeal.  As the decision by the learned magistrate was for a minor civil dispute, an appeal may be pursued only with the Tribunal’s leave.^[1] 
11. [11]
    The present application is by the applicant for an extension of time and a stay of the Magistrate’s decision.

Extension of time application

12. [12]
    An application for leave to appeal must be made within 28 days of delivery of the decision.^[2]  The Magistrate’s decision was delivered to the parties on 20 April 2018.  The application for leave to appeal was not accepted as filed until 24 May 2018, being seven days outside the 28 day time limit.  Consequently, the applicant filed an extension of time application on 24 May 2018.
13. [13]
    The applicant contends that an application for leave to appeal was made within the 28 day time limit but due to miscommunication he did not make payment of the filing fee until 24 May.  Regardless of any such “miscommunication”, the relevant legislation clearly provides that an application for leave to appeal ‘must be accompanied by the prescribed fee’.^[3]  The consequence of not construing that legislation strictly was addressed by the rhetorical question posed by Wilson J in State of Queensland v Ali:

If the prescribed fee was not required to be paid when the application or appeal was filed, at what stage in the proceedings would the appellant be compelled to pay that fee?^[4]

In short, the Tribunal cannot accept an application for leave to appeal until the fee is paid.

14. [14]
    It follows that, the applicant’s application was out of time – but only by a week. 
15. [15]
    The Tribunal has the discretion to extend a time limit,^[5] unless 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.’^[6]
16. [16]
    The respondent has not pointed to any prejudice or detriment which would be suffered if an extension were granted.
17. [17]
    Accordingly, it will be ordered that time for filing the application for leave to appeal be extended to 24 May 2018.

The stay application

18. [18]
    The applicant has also applied for a stay of the decision of the learned Magistrate.  It will be recalled that the applicant has filed an application for leave to appeal, but has not yet been granted such leave.
19. [19]
    In the recent decision of Hessey-Tenny & Anor v Jones ^[7], I reviewed the legislation and authorities concerning the power of the Tribunal to grant a stay in such circumstances.  It is unnecessary to canvass those matters again, as I concluded that the Tribunal has power under s 58 of the QCAT Act to allow a stay of a primary order in circumstances where leave to appeal has not been granted, but such circumstances must be exceptional before an order for a stay will be granted pending an application for leave to appeal.^[8] 
20. [20]
    I would, however, repeat the oft-cited warning by Keane JA (as he then was) in Cook’s Construction Pty Ltd v Stork Food Systems Australasia^[9] that the decision below should not be considered ‘as merely provisional…a successful party in litigation is entitled to the fruits of its judgment’.^[10] 
21. [21]
    In Day v Humphrey^[11] Morrison JA conveniently summarised the conventional tests for a stay.  The traditional factors which are taken into account are whether the applicant has demonstrated that there is a good arguable case on appeal, whether the applicant will be disadvantaged if the stay is not granted, and whether there is a compelling disadvantage to the respondent which would outweigh the disadvantage to the applicant. 
22. [22]
    On 30 May 2018, directions in this proceeding were made which required the applicant to file submissions in support of his application for a stay.  Those submissions were never filed. 
23. [23]
    The Tribunal is unable to assess the strength of the proposed appeal case or whether the applicant will suffer any disadvantage if the stay is not granted. 
24. [24]
    The applicant has therefore failed to demonstrate any proper basis for the grant of a stay pending determination of the application for leave to appeal.
25. [25]
    There will be the following orders:

    1. The time for filing the application for leave to appeal be extended to 24 May 2018.
    2. The application for a stay of the learned Magistrate’s decision is refused.