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Hodges v Boe QCATA 39
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Hodges v Boe & Anor  QCATA 39
RONALD NEAL HODGES
ROBYN JEAN BOE
JOHN WILLIAM BOE
ORIGINATING APPLICATION NO/S:
29 March 2019
On the papers
The application to extend time within which to file an application for leave to appeal or appeal is refused.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the appellant applied for leave to appeal more than 16 months after judgement against him – where no explanation given for delay – where fresh evidence proposed to be led on appeal – where fresh evidence purported to be expert evidence – where no expertise on the part of the expert established – where no basis laid for the evidence relied on by the proposed expert
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 143(3)
Blair v Harbrew Pty Ltd  QCATA 19
Crime and Misconduct Commission v Chapman & Anor
 QCAT 229
Dasreef Pty Ltd v Hawchar  HCA 21
Forrester v Harris Farm Pty Ltd (1996) 129 FLR 431
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- The respondents commenced proceedings in the Tribunal suing on a guarantee signed by the appellant given to the respondents guaranteeing the repayment of loan moneys to a third party.
- At the hearing, the appellant denied signing the guarantee however the learned Adjudicator hearing the respondents’ claim gave judgment for the respondents in the sum of $25,000. That was on 28 June 2017.
- On 20 November 2018 the appellant filed an application for leave to appeal or appeal in the Tribunal against that decision.
- The appellant is out of time in respect of his application for leave to appeal or appeal. He had 28 days after being given notice of the decision to file the application. In fact the application has been made more than 16 months late.
- The appellant seeks leave to extend the time within which to file his application for leave to appeal or appeal.
- The factors to be considered in an application for an extension of time for leave to appeal are set out in the Tribunal decision of Crime and Misconduct Commission v Chapman & Anor:
- a.Whether a satisfactory explanation or good reason is shown to account for the delay
- b.The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed upon the preliminary material)
- c.Prejudice to adverse parties
- d.Length of the delay, (a short delay is usually easier to excuse than a lengthy one)
- e.Overall, whether it is in the interests of justice to grant the extension, which usually calls for some analysis of the above factors considered in combination.
- The appellant has not explained his delay. The appellant submitted with his application for an extension of time reasons why the order made by the Adjudicator should not have been made. The reasons are limited to the authenticity of his signature on the guarantee documents. There is no explanation why it has taken more than 16 months after expiry of the appeal period for the appellant to make an application for leave to appeal.
- As to the strength of the appeal case proposed to be brought to challenge the decision below, the appellant says the signature on the guarantee is not his. That was raised in the hearing before the learned Adjudicator however, and not accepted.
- In his submissions the appellant says the learned Adjudicator should only have formed a view concerning the signature on the guarantee based on the original document or a certified copy of the original document. He does not say why that is so.
- By s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) in conducting proceedings the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate and must act with as little formality and technicality as requirements dictate. Accordingly, the learned Adjudicator was able to rely upon the copy document filed in support of the respondents’ claim before him.
- Now, in his application for leave to extend time to appeal, the applicant has produced a statement by one Gregory Francis Martoo, who describes himself as holding a Bachelor of Applied Science (Surveying) and a Master of Applied Science (Built Environment) and is a Certified Practising Town Planner. Mr Martoo has prepared a document entitled Request to Compare Signatures dated 6 December 2018. In that document, he purports to be an expert on handwriting and gives an opinion as to the authenticity of the signature of the appellant on the guarantee document, the subject of the claim before the learned Adjudicator.
- Mr Martoo is not an expert on handwriting. He says in the document that as a professional surveyor and town planner he is ‘frequently required to prepare documents and provide advice that involves the combining of raster and vector data and the layering, manipulation, interrogation and/or analysing of such data’. I fail to see how survey investigation and analysis skills (if proven) makes him an expert on the subject of handwriting and signatures. He doesn’t explain how that leap comes about.
- It is suggested that Mr Martoo has expertise in assessing and comparing signatures where the learned Adjudicator did not. There is no justification for that contention.
- It has always been a fundamental requirement of evidence law that experts must be experts. They are not allowed to give evidence in the form of opinions if they are not properly designated experts. Mr Martoo is not shown to have any expertise in the analysis of handwriting and signatures and his evidence is of no value or assistance in the matter.
- But in any case, Mr Martoo refers to a signature by the appellant, which the appellant confirmed to Mr Martoo was made by him. But whilst the basis laid for that proposition is stated, the comparison document and signature concerned is unproven. All that is referred to by Mr Martoo about the comparison signature and document is that it was a signature ‘on a Morgan Land Unit Trust document that you signed on or about 18 December 2012.’
- As stated by Heydon J in Dasreef Pty Ltd v Hawchar:
Expert evidence is inadmissible unless the facts on which the opinion is based are stated by the expert – by way of proof if the expert can admissibly prove them, otherwise as assumptions to be proved in other ways.
- Or as more fully explained by Miles CJ in Forrester v Harris Farm Pty Ltd:
It is a trite principle of evidence law that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub- stratum of facts, which facts are proved by the evidence in the case, exclusive of the evidence of the expert, to the satisfaction of the Court according to the appropriate standard of proof. Whether or not the expert believes in that sub-stratum of facts or knows them to be true or is satisfied that they are true, is completely beside the point. The expert's function is to express an opinion based on assumed facts, not to express a view on whether the assumptions are justified. (See Clarke v Ryan (1960) 103 CLR 486.)
- The comparison signature and document is entirely unproven and not before the Tribunal, even to the lesser standard available in the Tribunal by s 28 of the QCAT Act.
- Lastly the letter from Mr Martoo of 6 December 2018 must be offered on the basis of fresh evidence. It was not before the learned Adjudicator at the hearing.
- It is not appropriate to receive fresh evidence for consideration in appeal proceedings unless an application to adduce such is made and leave granted, which is not the case here. Generally, the person applying to adduce fresh evidence must show that the evidence was not available as at the date of hearing or, if it was that it could not have been obtained with reasonable diligence at the original hearing; that if it was allowed to be relied on it would probably have an important impact on the results; and the evidence is credible.
- Leaving aside the finding that the evidence is not of value because it is opinion evidence other than from an expert, there is no explanation offered as to why handwriting evidence was not adduced by the appellant at the hearing. The appellant admits in his submissions that the guarantee document at issue was brought to his attention at least by 20 May 2016, more than a year before the hearing. Nor is there any explanation why the evidence has only been obtained some one and a half years after the hearing.
- Other than signature, and the submission that the original document should have been used to assess the signature, the appellant raises no other claims of error on the part of the learned Adjudicator.
- Is there prejudice to adverse parties in granting an extension of time to file an application for leave to appeal? The appellant makes no submissions on this point. The respondents point out they have still not received the benefit of the decision given in their favour more than one and a half years ago, and further that the claim dates back to monies paid out by them over 6 years ago. Further delay will be prejudicial to their interests.
- The length of the delay in filing the application for leave to appeal is marked. As stated, the appellant is more than 16 months out of time in making his application for leave to appeal or appeal. He has given no explanation why he has not acted before now.
- Finally it is appropriate to ask, is it in the interests of justice to allow the appellant leave to appeal?
- The appellant’s prospects of success are not good. The suggested fresh evidence upon which his application for leave to appeal or appeal is currently based is of no value. His delay in making his application for leave to appeal or appeal is unexplained. The delay is very long. The respondents have been out of their money for a very long time.
- I conclude that it is not appropriate to exercise the discretion to extend time for the appellant to commence proceedings for leave to appeal.
- Published Case Name:
Ronald Neal Hodges v Robyn Jean Boe and John William Boe
- Shortened Case Name:
Hodges v Boe
 QCATA 39
29 Mar 2019