Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Musgrave v Grimberg[2019] QCATA 106

Musgrave v Grimberg[2019] QCATA 106

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Musgrave v Grimberg [2019] QCATA 106

PARTIES:

BEN MUSGRAVE

(applicant/appellant)

v

JOSEF GRIMBERG

(respondent)

APPLICATION NO/S:

APL349-18

ORIGINATING APPLICATION NO/S:

MCDO201-18 (Beenleigh)

MATTER TYPE:

Appeals

DELIVERED ON:

10 June 2019

REASONS DELIVERED ON:

16 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

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 – consideration of grounds for granting an extension of time for filing the application for leave to appeal or appeal

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

Reeve v Hamlyn [2015] QCATA 133

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

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

  1. [1]
    Ben Musgrave seeks to appeal a decision of the Tribunal made on 12 November 2018 in the Minor Civil Disputes jurisdiction.
  2. [2]
    The application for leave to appeal or appeal was filed on 19 December 2018 being a date outside the prescribed time of 28 days for filing an application for leave to appeal or appeal.[1]
  3. [3]
    On 10 June 2019 I refused Mr Musgrave’s application for an extension of time to file the application for leave to appeal or appeal. Mr Musgrave requested reasons for my decision that are now set out below.

Should time be extended?

  1. [4]
    Compliance with time limits is consistent with the public interest in the finality of litigation.[2] Time limits must be complied with unless there is a compelling reason for the noncompliance.
  2. [5]
    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.[3]
  3. [6]
    There is power under the QCAT Act to extend a time limit fixed for the start of a proceeding.[4] Although the power to extend time involves the exercise of a broad discretion, s 61(3) of the QCAT Act provides that the Tribunal can not 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.
  4. [7]
    The discretion to extend time should be exercised in accordance with applicable common law and equitable principles, and any relevant statutory prescriptions.[5] In  Reeve v Hamlyn,[6] the Appeal Tribunal held:

…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.[7]

  1. [8]
    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.[8]
  2. [9]
    Here the record of proceeding in the Tribunal hearing below reflects that Mr Musgrave attended the hearing in person. Mr Musgrave would therefore have had the benefit of hearing the Tribunal’s reasons for its decision given orally on 12 November 2018.
  3. [10]
    Mr Musgrave submits that the application for leave to appeal or appeal (Form 39) was filed within time because he requested written reasons for the decision received by him on 19 November 2018. Mr Musgrave states that 28 days from receipt of the audio recording is 17 December 2018.[9] Mr Musgrave further states, ‘28 working days from receipt of the audio recording is the 26 December 2018 (actually 28 December 2018 due to public holidays)’.[10]
  4. [11]
    In the application to extend time, Mr Musgrave says that the information on the Tribunal’s ‘web page’ is ambiguous and attaches a copy of the relevant ‘screen shots’ of the information.[11] Mr Musgrove also says that when he went to lodge the Form 39 he was told that, as stated, ‘I was outside the 28 day time frame…’.[12]
  5. [12]
    I do not accept Mr Musgrave’s submission that the information on the Tribunal’s ‘web page’ is ambiguous. The information clearly states that there are strict time limits for seeking leave to appeal and states that, amongst other things, ‘you must lodge the Form 39 within 28 days’. Further, the information provides that ‘you must lodge the Form 39 within 28 days of the day you were given written reasons for the decision’.
  6. [13]
    Here, Mr Musgrave does not dispute that the ‘relevant day’ for the purposes of s 143(3) of the QCAT Act is 19 November 2018 (the date that Mr Musgrave received the audio recording[13]). 28 days from the ‘relevant day’ (excluding 19 November 2018) and including the final day (i.e. 17 December 2018) is 17 December 2018.[14]
  7. [14]
    Mr Musgrave’s application for leave to appeal or appeal was filed on 19 December 2018 being 2 days outside the prescribed time for filing the application.[15]
  8. [15]
    Although the length of the delay is not excessive, Mr Musgrave has failed to provide any explanation for filing the Form 39 outside the prescribed time of 28 days, that is, within 28 days after Mr Musgrave received the audio recording. A failure to provide an adequate explanation for the delay in filing the application is one of a number of considerations in exercising the broad discretion to grant an extension of time.
  9. [16]
    I have also considered the merits of the proceeding. The Minor Civil Dispute proceeding below concerned an order for compensation for damage to or destruction of a dividing fence alleged to have been caused by the respondent.  In the application for leave to appeal or appeal, Mr Musgrave asserts, amongst other things, that the Tribunal made many factual findings identified as ‘mistakes’ concerning the age of the dividing pool fence. Mr Musgrave does not, however, dispute the fact that, as submitted by the respondent, the boundary fence between Mr Musgrave’s property and the respondent’s property has been replaced and the respondent has paid for half of the new fence (to Mr Musgrave).[16]
  10. [17]
    In this matter Mr Musgrave has failed to convince me that there is a compelling reason for granting an extension of time for filing the application for leave to appeal or appeal. Mr Musgrave’s application for leave to appeal or appeal on its face appears to lack merit. I have decided to exercise my discretion against the granting of an extension of time in this matter. The application to extend the time for filing the application for leave to appeal or appeal is refused. I order accordingly.

Footnotes

[1]  QCAT Act, s 143(4)(b).

[2]Pappas v Meikeljohn’s Accountants [2017] QCATA 60, [10] (Thomas J).

[3]  QCAT Act, s 143(5)(c).

[4]  QCAT Act, s 61.

[5]Reeve v Hamlyn [2015] QCATA 133.

[6]  [2015] QCATA 133.

[7]Reeve v Hamlyn [2015] QCATA 133, [35].

[8]Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70, [26].

[9]  See application for leave to appeal or appeal filed 19 December 2018 and submissions.

[10]  Ibid.

[11]  Application to extend or shorten a time limit filed 19 December 2019 and attachments.

[12]  Ibid.

[13]  See s 143(5)(c) of the QCAT Act.

[14]  Applying s 38(1)(b) of the Acts Interpretation Act 1954 (Qld).

[15]  QCAT Act, s 143(4)(b).

[16]  Respondent’s written submission to the Tribunal dated 10 January 2019.

Close

Editorial Notes

  • Published Case Name:

    Musgrave v Grimberg

  • Shortened Case Name:

    Musgrave v Grimberg

  • MNC:

    [2019] QCATA 106

  • Court:

    QCATA

  • Judge(s):

    Member Browne

  • Date:

    16 Jul 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.