Vehicle Auctions Australia v Sainsbury
[2020] QCATA 151
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- Unreported Judgment
- Vehicle Auctions Australia v Sainsbury[2020] QCATA 151
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Vehicle Auctions Australia v Sainsbury[2020] QCATA 151
Vehicle Auctions Australia v Sainsbury[2020] QCATA 151
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Vehicle Auctions Australia v Sainsbury [2020] QCATA 151 |
PARTIES: | Vehicle AUCTIONS AUSTRALIA (applicant/appellant) v NATALIE SAINSBURY (respondent) |
APPLICATION NO: | APL276-20 |
ORIGINATING APPLICATION NO: | MVL032-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 4 November 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – whether extension of time should be granted for filing of leave to appeal or appeal – where delay in filing application is brief – where unsatisfactory explanation for delay – where grounds of appeal indicate appeal is of limited merit – where grounds of appeal do not indicate error by Tribunal below – relevance of public interest in the efficient use of tribunal resources Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 143 Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 Crime and Misconduct Commission v Chapman [2011] QCATA 229, [9] Reeve v Hamlyn [2015] QCATA 133 |
REPRESENTATION: | |
Applicant: | By its officers |
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) |
REASONS FOR DECISION
- [1]Natalie Sainsbury applied to QCAT for orders against Vehicle Auctions Australia concerning a motor vehicle dispute. Following an oral telephone hearing, an Adjudicator made orders as follows:
- The Respondent pay to the Applicant the sum of $5,400 within seven (7) days.
- Upon receipt of clear funds, the Applicant will within seven (7) days redeliver the motor vehicle at its own cost to the Respondent and sign any necessary transfer documentation.
- [2]Vehicle Auctions applied, outside of the timeframes prescribed in s 143 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act), for leave to appeal the Adjudicator’s decision. The application for leave to appeal can proceed only if the Appeal Tribunal grants an extension of time to file the application to Vehicle Auctions.
- [3]Both parties have provided written submissions about the application for extension of time.
- [4]For the reasons set out in the paragraphs that follow, the application for an extension of time is refused.
Should an extension of time be granted to Vehicle Auctions Australia?
- [5]Relevant considerations in deciding whether to grant of an extension of time to file an application for leave to appeal or appeal include the following:
- (i)the duration of the delay;
- (ii)whether there is a satisfactory explanation for the delay;
- (iii)the strength of the case intended to be brought (that is, here the merits of the application for leave to appeal or appeal and its prospects of success);
- (iv)the likelihood of prejudice to other parties; and
- (v)
- (i)
- [6]The delay in filing the application outside of the 28-day timeframe provided for in the QCAT Act is brief. The Adjudicator’s decision was made and given to the parties on 5 August 2020. The application for leave to appeal was filed on 9 September 2020.
- [7]Vehicle Auctions states that the late filing the application occurred as a consequence of staff changes; the one person responsible for administration became very busy and accidentally missed the due date; and, it appears thereafter, when the oversight had been discovered, it acted to prepare and send the application to QCAT as quickly as possible.
- [8]Vehicle Auctions’ stated grounds of appeal are to the effect that the decision should be ‘reversed,’ and it should be found not to have any liability to Ms Sainsbury. It asserts that it seeks to have the orders reversed because it was unable to attend the hearing and the decision was made in its absence; and because it believes the vehicle was ‘fit for service’.
- [9]Ms Sainsbury submits that the application for extension of time should be refused because Vehicle Auctions has ‘wasted enough of’ QCAT’s and her time. She seeks orders dismissing the application.
- [10]No particular likelihood of prejudice to Ms Sainsbury if an extension was to be granted is identified.
- [11]The QCAT file discloses that Vehicle Auctions was given appropriate notification of the oral telephone hearing of the MVL claim. Notice of the hearing is dated 3 July 2020, of the telephone hearing on 5 August 2020 at 9.30am. The notice states clearly that if a party fails to attend the hearing, the tribunal may proceed to make orders in the party’s absence. At the commencement time, the Adjudicator hearing the application telephoned Vehicle Auctions. The person who answered the telephone advised that the person who was supposed to appear was unavailable. The Adjudicator stood down the hearing for 10-15 minutes to allow Vehicle Auctions to make arrangements.
- [12]When the hearing resumed, a person at Vehicle Auctions advised that neither of the two people involved were available to attend. At that stage the adjudicator proceeded to hear the matter in the absence of Vehicle Auctions, as provided for by s 93 of the QCAT Act.
- [13]Whether leave to appeal should be granted is not addressed in the material filed by the parties to date. However, when read in light of the events at hearing, the grounds of appeal sought to be advanced if leave to appeal is granted do not identify error by the Tribunal in making its decision. First, they concern Vehicle Auctions’ failure to make arrangements to have a representative attend the hearing. The Tribunal telephoned it and allowed time for a person to be made available on its behalf. Vehicle Auctions had not applied for an adjournment of the hearing. Its failure to attend the hearing did not relate to a lack of notice of the hearing. It had the opportunity to make its representative available, but it did not do so. It does not suggest any reason for its failure. Second, Vehicle Auctions intends to argue that it believes that the vehicle was ‘fit for service’. Again, this does not disclose error by the Tribunal, but rather Vehicle Auctions. The hearing was the opportunity for Vehicle Auctions to present its evidence and submissions about whether the vehicle was ‘fit for service’ and any other matter that it may have considered relevant.
- [14]The purpose of the appeal process is not, in effect, to have a rehearing because a party failed to attend the hearing without reasonable excuse and does not now agree with the outcome. The appeal process is for correction of error by the tribunal. Leave to appeal would be necessary before the appeal could proceed as the errors alleged by Vehicle Auctions are errors of fact or mixed law and fact.[2] Leave will usually be granted when there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[3]
- [15]As the High Court of Australia made clear in Aon Risk Services Pty Ltd v Australian National University,[4] court (and by extension, tribunal) resources are for the benefit of not only the litigants to particular proceedings but also the public. Parties must take responsibility for acting in their own interest in proceedings having regard to the public interest in the efficient use of court and tribunal resources. Indeed, s 45 of the QCAT Act provides that each party must act quickly in any dealing relevant to the proceeding. Parties who fail to act in their own interests must bear the consequences of their actions.
- [16]In the circumstances, I am not satisfied that the application for leave to appeal has merit. The grounds of appeal sought to be agitated do not disclose error by the Tribunal or any consequent substantial injustice.
- [17]The stated principles from Aon Risk are relevant here also in respect of the explanation given for the delay in filing the application for leave to appeal or appeal. Having failed to act in its own interests by attending the hearing and taking the opportunity to present and argue it’s case, Vehicle Auctions further failed to act in its own interests by ensuring that it filed its application for leave to appeal or appeal within the prescribed time frames because a staff member ‘became very busy’ and, it appears, that it once again simply missed the date. In light of the history of failure to attend the hearing, this is a less than satisfactory explanation for the delay, despite the extension sought being no more than a few days.
- [18]Overall, in the absence of a satisfactory explanation for the delay in filing the application for leave to appeal and further the absence of identifiable merit in the grounds of appeal proposed to be advanced, I am not satisfied that it is in the interests of justice for an extension of time to be granted to Vehicle Auctions to file its application for leave to appeal.
Conclusions and Orders
- [19]I make an order refusing the application for an extension of time. The proceeding is therefore at an end.