TA v Chadi[2021] QCATA 154

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 24 November 2020, the Tribunal in proceeding ADL059-19 dismissed TA’s complaint of victimisation under the Anti-Discrimination Act 1991 (Qld).  The Tribunal also refused a number of other applications, including: an application by Mr Chadi to exclude an audio recording; an application by TA to transfer allegations he had made to the Queensland Police Service; and applications for costs by both parties.  The Tribunal also declined to deal with an application by TA which sought for Mr Chadi to be punished for contempt.
2. [2]
   On 5 February 2021, TA filed an application for leave to appeal or appeal in respect of the Tribunal’s decision.  That said, I acknowledge that TA attempted on several occasions in December 2020 and January 2021 to file the application or appeal. These attempts are discussed later.
3. [3]
   TA filed an application for miscellaneous matters with the application for leave to appeal or appeal. The miscellaneous matters application sought, among other orders, ‘An order for the timeframe for appeal to be extended, if possible, applicable and appropriate’.  TA also sought orders that he be allowed to file his application for leave to appeal or appeal by email, and that the applicable filing fee be waived.
4. [4]
   I issued directions on 8 March 2021 requiring the parties to file submissions about whether time for filing of the application for leave to appeal or appeal should be extended, and for the application for an extension of time to then be heard and determined on the papers. TA filed written submissions. Unfortunately, it came to light that Mr Chadi was not provided with these directions by the registry. On 22 June 2021, I extended the time for Mr Chadi to file submissions about the application for an extension of time.  TA sought an oral hearing of the application for an extension of time.
5. [5]
   The oral hearing proceeded on 4 August 2021.  Both parties attended by telephone [Redacted] and made oral submissions.  By then, Mr Chadi had filed his written submissions and TA had filed submissions in reply to Mr Chadi’s submissions about the application to extend time.

TA’s attempts to file his application for leave to appeal or appeal

6. [6]
   TA and Mr Chadi were sent a copy of the Tribunal’s decision which TA now seeks to appeal on 25 November 2020 by way of email from the registry.  To comply with the time limits provided for in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), any application for leave to appeal or appeal the decision was to be filed within 28 days after the day on which the parties were given written reasons for the decision,^[1] that is, here, within 28 days after 25 November 2020.
7. [7]
   On 7 December 2020 at 1.04am (Brisbane time), TA sent an email to a registry officer and to Mr Chadi, attaching, it appears, copies of his application for leave to appeal or appeal and his application for miscellaneous matters seeking a fee waiver and filing by email.  TA then sent several emails to the registry chasing up the status of those documents. I note that the application for leave to appeal or appeal sought to be filed named the applicant/appellant only as ‘TA’. In the anti-discrimination proceeding, a non-publication order was made prohibiting publication of TA’s identity and the proceeding was entitled, ‘TA v Chadi’.
8. [8]
   On 9 December 2020, an officer of the registry advised TA that his application or appeal was not accepted, and that he would need to file hard copies by post or in-person. Subsequently, on 14 December 2020, TA was informed in email by a registry officer that his request to file the application or appeal by email was allowed by registry.  TA was informed that his application for fee waiver would need to be resubmitted in a Form 49, accompanied by evidence supporting the fee waiver. He was also advised that a fee reduction to $100 only was available in appropriate circumstances in respect of an application for leave to appeal or appeal.^[2]  It appears that TA was, unfortunately, advised at this time that the full filing fee was $352.  He was also informed that he must include his name on the application for leave to appeal or appeal and that he could file an application for a non-publication order if he wished to do so.
9. [9]
   Subsequently on 16 December 2020, hard copies of the application for leave to appeal or appeal were lodged at the Southport Magistrates Court registry on TA’s behalf. A filing fee was not paid at that time.
10. [10]
    On 17 December 2020, TA sent emails to the registry advising of his credit card details for payment along with authorisation to draw the fee. On 18 December 2020, TA emailed his application for a fee waiver and supporting documentation to registry staff.  However, the fee waiver was not processed on this day.
11. [11]
    The 19^th and 20^th December 2020 were a Saturday and Sunday, respectively. The Tribunal registry was closed for the period 21 December 2020 to 1 January 2021.^[3]  The  2^nd and 3^rd January 2021 were a Saturday and Sunday, respectively. If an Act requires something to be filed by a certain day, and that day is a day on which the office where the filing must be done is closed or is not a business day, then the next day that is a business day and the relevant office is not closed becomes the date for filing.^[4]  Accordingly, any timeframe for filing of a document that was due across the period 19 December 2020 to 3 January 2021 expired on 4 January 2021.
12. [12]
    On 4 January 2021 (Brisbane time), TA called the registry and left a message providing his payment details of the amount he was advised to pay for the application or appeal ($352).  This is confirmed by a receipt provided to TA dated 4 January 2021.
13. [13]
    The correct fee for the application or appeal was $704.10.^[5] On 29 January 2021, the registry advised TA that the fee he had paid was incorrect. 
14. [14]
    Finally, on 4 February 2021, TA again filed a fee waiver application.  TA’s fee waiver was approved by the registrar on 5 February 2021.

What was the filing date of the application for leave to appeal or appeal?

15. [15]
    Subject to certain exceptions, a party to a proceeding may appeal to the appeal Tribunal against a decision that was not made by a judicial member.^[6] Pursuant to section 143(2) of the QCAT Act, if a party wishes to make an application for the appeal Tribunal’s leave to appeal a decision by the Tribunal and/or an appeal of a decision by the Tribunal, the application or appeal must:

    1. (a)
       be in a form substantially complying with the rules;
    2. (b)
       state the reasons for the application or appeal; and
    3. (c)
       be accompanied by the prescribed fee (if any).
16. [16]
    Further, an application for leave to appeal or appeal must be filed in the registry within the applicable, here 28 day, timeframe: s 143(3) and (4). Accordingly, it is only filed once it complies with the timeframe and the s 143(2) pre-conditions.
17. [17]
    The application or appeal did not include the proper names of the applicant, describing the applicant/appellant as ‘TA’. Although a non-publication order was made in the anti-discrimination file, there was not any such order in the appeal proceeding. 'TA' was not a party to the anti-discrimination proceeding, notwithstanding the non-publication order. The applicant was the relevant party. There is no legal person called ‘TA’ who can properly be a party to proceedings and there is not a non-publication order which provides for the applicant to be called ‘TA’ in the appeal proceedings. 
18. [18]
    That said, somewhat unusually, the Tribunal’s non-publication order in the anti-discrimination proceeding, for which there are no reasons for decision available, provided for the proceeding to be entitled ‘TA v Chadi’, whereas typically, a party or parties names might be published more broadly in a deidentified format, in the Tribunal orders and directions, the title of the proceeding would not be the subject of an order. However, I note that there was no confusion that TA was the applicant, irrespective that he did not name himself in the application for leave to appeal or appeal. That said, ‘TA’ is not a legal entity with an entitlement to bring proceedings, the applicant is the appropriate legal entity.
19. [19]
    In light of the unusual order made in the anti-discrimination proceeding, I accept that despite not referring to himself by his proper name, TA substantially complied with the requirements of the QCAT Act in filing his application for leave to appeal or appeal in the name of TA. That said, I consider that the practice of a party not naming him, her or itself is most undesirable. In other circumstances, such an application might be struck out as misconceived because it is brought in the name of an entity which has no legal standing to appeal.
20. [20]
    The timeframe for filing pursuant to the QCAT Act has been discussed above.  TA’s application for leave to appeal or appeal, which he attempted to file by email first on 7 December 2020, was in the prescribed Form 39 – Application for leave to appeal or appeal.
21. [21]
    The Form 39 included an attachment expressing the reasons for his application or appeal. 
22. [22]
    The circumstances must be considered to ascertain the date of payment of the applicable filing fee. As has been discussed above, the correct fee for the application or appeal was $704.10.^[7]  The minimum fee for the application or appeal, and only after approval by the registrar of a fee waiver, is $100.  Accordingly, the application or appeal can only have been filed on the first date on which TA had either:

    1. (a)
       paid the prescribed amount of $704.10; or
    2. (b)
       paid the reduced fee amount of $100 and had the amount reduced by the principal registrar (or their delegate).^[8]
23. [23]
    Condition (a) was never met.  The first date on which condition (b) was met was 5 February 2021.  This is the date on which TA’s application for leave to appeal or appeal was filed pursuant to section 143(2) the QCAT Act.  Accordingly, despite the various attempts to file the application or appeal, it was filed after 4 January 2021.
24. [24]
    Therefore, the application or appeal was filed late and TA requires an extension of time to file it.

Should an extension of time be granted?

25. [25]
    Subject to s 61(3) of the QCAT Act, the Tribunal has broad discretionary power to extend the time for filing of an application for leave to appeal or appeal pursuant to s 61 of the QCAT Act.
26. [26]
    As the High Court of Australia made clear in Aon Risk Services Pty Ltd v Australian National University,^[9] court (and by extension, Tribunal) resources are for the benefit of not only the litigants to particular proceedings but also the public. It follows that parties have a responsibility to act expeditiously and efficiently in their own interests in proceedings: that is, in the use of limited Tribunal resources. Finality in litigation is highly desirable, and statutory time limits on bringing different proceedings are in place for a reason, including to promote finality of disputes.^[10]
27. [27]
    In deciding an application for an extension of time to file an application for leave to appeal or appeal, the Appeal Tribunal will consider well-established relevant factors, including:

    1. (a)
       the length of the delay;
    2. (b)
       whether there is a satisfactory explanation for the delay;
    3. (c)
       the strength of the case on appeal (if possible, on the preliminary material available) intended to be brought and prospects of success;
    4. (d)
       the likelihood of prejudice to the other parties; and
    5. (e)
       overall, whether an extension of time is in the interests of justice.^[11]

Length and explanation for the delay

28. [28]
    TA says that the delay is not significant, and that the reasons for the delay can be entirely attributed to error by the registry.  He says that he made numerous bona fide attempts to comply with the prescribed timeframe and that the failure to file in time is due to reasons outside of his own control.  He says that the copies of various emails, documents and recordings he has filed in support of his application for an extension of time provide satisfactory reasons for the ‘real or perceived’ delay in the filing of the application or appeal.
29. [29]
    Mr Chadi says, in response, that there is a significant delay and that he was entitled to presume the matter had been finalised after the end of the prescribed timeframe for filing an application for leave to appeal or appeal.  He also says that TA could, and should, have arranged for his application or appeal to be faxed or posted, for instance, instead of relying upon email filing.
30. [30]
    Mr Chadi’s submission that the delay is significant is not compelling in the circumstances. It is of relatively short duration particularly having regard to the period of registry closure in the December and January period.
31. [31]
    That said, I do not accept TA’s arguments that the registry was entirely to blame for the delay. To the extent that the delay was contributed to by the registry, that is regrettable. That said, TA played a not insignificant role in the problems he encountered in filing the application or appeal in time. Had he initially arranged, as he was able to do on 16 December 2020, for the documents to be filed in hard copy, rather than claiming as he did, that he could not file them other than by email, he could have filed in time. Further, had he arranged to pay the correct filing fee on 16 December 2020 in the registry when filing the hard copy documents, through the person who assisted him by filing the documents in hard copy, he would have filed the application or appeal in time.
32. [32]
    I do not accept that the delays in filing are attributable entirely to the registry delays. TA did not act as expeditiously as he might have done in his own interest, notwithstanding the contributions made by registry delay and error in the amount of the filing fee initially taken.

The merits of the appeal

33. [33]
    A preliminary assessment of the merits of the appeal grounds raised by TA is relevant to a consideration of whether an extension of time is in the interests of justice.
34. [34]
    TA’s application for leave to appeal or appeal sets out what TA considers to be 7 grounds:

    1. (a)
       error by misconstruing facts, including by failing to consider a relevant factor;
    2. (b)
       error by using documents TA filed in the complaint proceedings as evidence;
    3. (c)
       failure to provide sufficient reasons for dismissing an application to strike out Mr Chadi’s response to the complaint (which sought dismissal on the grounds of non-compliance with procedural requirements);
    4. (d)
       a general allegation of error with respect to the Member’s findings on causation and credibility;
    5. (e)
       error by finding that TA was required to personally serve his application for contempt on Mr Chadi;
    6. (f)
       error by making a finding of fact where there is no evidence to support that finding; and
    7. (g)
       such further or other grounds as he may advise or the Tribunal considers just.
35. [35]
    TA submits that he is not merely attempting to re-argue the case he ran below, but says instead he has made specific allegations of errors by the Tribunal which he describes as ‘possible’. TA expands to an extent on some of these grounds in later submissions. He says in essence that he ‘believes the possibility exists that the learned Adjudicator acted on a wrong principle or made mistakes of fact and/or law…’^[12] He asserts without more that the causation test was ‘unworkable’ and that he doesn’t ‘….believe that the evidence was capable of supporting the learned adjudicator’s conclusion’.  Further, that he doesn’t believe the decision ‘…reflected   a proper exercise of his discretion.’ He also says that leave is necessary to correct a substantial interest of justice, and that there is a reasonable prospect that he will obtain substantive relief in the appeal.
36. [36]
    Mr Chadi submits that the Member’s decision was thorough, well-reasoned and that the application or appeal are unlikely to be successful.
37. [37]
    The alleged error in (c) appears to be that the Tribunal refused to strike out (and did consider Mr Chadi’s contentions filed in response in the anti-discrimination proceeding despite Mr Chadi filing it, it appears some 8 days later, than directed). This informally made application was refused in the Tribunal’s decision dated 9 October 2020, not the decision sought to be appealed. Apart from being therefore misconceived as a ground advanced in the proposed appeal of the decision of 25 November 2020, it is in any event lacking in substance in that he was not disadvantaged by the 8 day delay.
38. [38]
    In relation to alleged error (e), having regard to s 219 of the QCAT Act and Rule 99 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), as well as s 926 of the Uniform Civil Procedure Rules 1999 (Qld), the alleged error, or any error, is not apparent.
39. [39]
    The other alleged errors are general and non-specific. On my preliminary assessment, they have little obvious merit. Despite TA’s submissions to the contrary, they suggest that TA seeks to re-agitate the case on which he failed below. The Tribunal was entitled to make findings of fact and draw reasonable inferences from the evidence before it. I make the observation that the Tribunal considered TA’s descriptions became more detailed as time went on,^[13] and were inconsistent with the available contemporaneous documents.^[14]  Further, there is no error in the Tribunal having regard to the documents filed by TA in the complaint proceedings, those documents having been provided to the Tribunal with the referral of the complaint, and therefore were before the Tribunal.

Prejudice

40. [40]
    TA says that Mr Chadi was on notice from early December 2020 that TA was intending to apply for leave to appeal and to appeal.  He says that the delay is not substantial, that there is no prospect of evidence being lost or oppression caused to Mr Chadi owing to the delay and that, regardless, the public interest would support an extension of time being granted.
41. [41]
    Mr Chadi says that the proceedings inherently cause him stress and interference in his personal life.  He says that: the purpose of the limitations on bringing the application or appeal more that 28 days after the relevant day is to ensure finality; that he was entitled to rely on this timeframe; and that it would cause Mr Chadi further stress to grant TA an extension of time.  Mr Chadi also complains about what he describes as a pattern of conduct on the part of TA by repeated non‑compliance with directions, failure to serve documents, and continually obtaining extensions of time for compliance.
42. [42]
    I accept that Mr Chadi was on notice of the proposed appeal proceeding from early December 2020. Further, whereas stress caused to Mr Chadi may be distressing to him, there is no identifiable prejudice of the requisite type identified by Mr Chadi.
43. [43]
    That said, as identified, finality in litigation is highly desirable and the public interest TA seeks to rely upon is not apparent.

Is an extension of time in the interests of justice?

44. [44]
    The period of delay is relatively short, and in any event, Mr Chadi had early notice of the intended appeal proceeding. However, TA could have, and acting in his own interests, ought reasonably to have taken steps to file his application for leave to appeal or appeal including by paying the applicable fee in accordance with the prescribed timeframes when he filed a hard copy of the documents. That said, I acknowledge an unfortunate contribution was made by registry error and delay to TA’s late filing. On balance, the reasons for the delay weigh to a small extent in favour of TA’s application.
45. [45]
    However, the intended grounds of appeal are general and non-specific. TA himself refers to them as no more than ‘possible’ errors. They do not have obvious merit. There is no apparent substantial injustice which needs to be addressed. These factors weigh against TA’s application.
46. [46]
    Finality in litigation is highly desirable which weighs against the granting of the application irrespective that Mr Chadi has not suffered prejudice.
47. [47]
    Overall, I am not satisfied that it is in the interests of justice that an extension of time be granted to TA. Accordingly, the application for an extension of time should be refused.

Orders

48. [48]
    I make orders accordingly.
49. [49]
    TA has applied for a non-publication order in these appeal proceedings. Pending determination of the application for a non-publication order, these reasons for decision may be published, other than to the parties, in a de-identified format only.