Handmade Food Co Pty Ltd v Biotech Laboratories Pty Ltd
[2021] QCATA 97
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- Unreported Judgment
- Handmade Food Co Pty Ltd v Biotech Laboratories Pty Ltd[2021] QCATA 97
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Handmade Food Co Pty Ltd v Biotech Laboratories Pty Ltd[2021] QCATA 97
Handmade Food Co Pty Ltd v Biotech Laboratories Pty Ltd[2021] QCATA 97
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Handmade Food Co Pty Ltd v Biotech Laboratories Pty Ltd [2021] QCATA 97 |
PARTIES: | The Handmade food co pty ltd |
(applicant/appellant) | |
v | |
biotech laboratories pty ltd | |
(respondent) | |
APPLICATION NO: | APL011-21 |
ORIGINATING APPLICATION NO: | MCDO61544/18 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 5 August 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Fitzpatrick |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – OTHER MATTERS – where party filed application for leave to appeal or appeal outside of time frame – whether extension of time to file application for leave to appeal or appeal should be granted – where party requested reasons outside of statutory time frame for request – what is the relevant day for the purposes of construing statutory time frame – where delay is short – where no clear prejudice to respondent – where applicant has met judgment – where applicant has arguable case Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 122, s 123(2), s 143(5)(b), s 143(5)(c) Reeve v Hamlyn [2015] QCATA 133 |
APPEARANCES & REPRESENTATION: | 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]The applicant, the Handmade Food Company (HFC) is a food manufacturer. The respondent, Biotech Laboratories Pty Ltd (Biotech) undertakes microbiological testing.
- [2]HFC was a respondent to a claim for a minor civil debt brought by Biotech for unpaid costs of testing, heard by the Tribunal in its minor civil disputes jurisdiction. That was matter MCDO61544/18 filed on 27 December 2018.
- [3]On 15 February 2019, a response in the proceeding was filed by HFC. HFC sought relief from payment of Biotech’s claim in an amount of $24,448.19, being its cost with Biotech of extra testing as a result of a false positive test for e coli in four of HFC’s products and the loss associated with dumping product.
- [4]On 27 December 2018 it was ordered that HCF file a consumer dispute against Biotech and that the consumer dispute application and MCD61544/18 be heard together.
- [5]On 14 September 2020 HFC filed an application for minor civil dispute – consumer dispute in the Tribunal. The application was brought against Biotech. The application was responsive to Biotech’s claim in MCDO61544/18 and raised the same issues as the response earlier filed by it. The consumer dispute was matter MCDO1105-20.
- [6]On 30 October 2020 both matters were heard before an Adjudicator in the minor civil disputes jurisdiction. The Adjudicator made a decision on that day and delivered oral reasons for the decision.
- [7]I have obtained a transcript of the Adjudicator’s decision. The Adjudicator considered HFC’s response and consumer dispute application. She indicated that two questions were raised: first, whether the relief sought could be considered a defence to the action in debt, namely an equitable set-off; and secondly, whether the counter-application can be brought as a separate proceeding within the jurisdiction of the tribunal.
- [8]In relation to the first question, the Adjudicator found that the contractual arrangement between the parties was that of a standing order followed by a series of individual contracts and that there was not a sufficiently close connection between the amount claimed by Biotech pursuant to an individual contract and the claim for damages for breach of contract or negligence occasioned in respect of one contract only.
- [9]In relation to the second question, the Adjudicator found that the consumer dispute claim did not fall within the jurisdiction of the Tribunal as either a claim for a liquidated demand, or as a claim for the payment of money or relief from payment of money between a consumer and a trader. The Adjudicator found that Biotech was not a trader because it provided a professional service.
- [10]HFC filed an application for leave to appeal or appeal on 5 January 2021.
- [11]The Tribunal file reveals that Adjudicator’s decision was posted to HFC on 30 October 2020 and, in the ordinary course of post, the document would be delivered on 6 November 2020.
- [12]The file also reveals that HFC made a request for reasons for the decision. Auscript advised the Tribunal on 2 December 2020 that the Audio CD had been provided to HFC. The advice notes that time should be allowed for the audio to be delivered.
- [13]HCF’s application for leave to appeal or appeal records the decision as received on 4 December 2020.
- [14]By section 122 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), HFC was able to request written reasons for a decision within 14 days of it taking effect. HFC made its request outside that time frame. Although the Audio CD was provided by way of written reasons,[1] there was no obligation on the part of the Tribunal to do so. That is important in terms of calculating the time available to HFC to file its application for leave to appeal or appeal.
- [15]By section 143 of the QCAT Act, HFC was required to file its application for leave to appeal or appeal within 28 days of the ‘relevant day’. The relevant day is relevantly defined in s 143(5)(b) as the day the person received notice of the decision, if no written reasons are required to be given; or, by s 143(5)(c), the day the person is given written reasons.
- [16]If, despite providing written reasons, the Tribunal was not obliged to do so, and s 143(5)(b) is engaged, HFC was required to file its application for leave to appeal or appeal within 28 days of 6 November 2020; that is, by 4 December 2020. The application was in fact filed approximately one month later and out of time. If I am wrong and the fact of provision of written reasons means the time for lodging the appeal is calculated from the date the Audio CD was received by HFC, then the application for leave to appeal or appeal should have been filed within 28 days of 4 December 2020; that is, by 1 January 2021 and, given the public holiday and weekend, by 4 January 2021. On this reckoning the application was filed one day late.
- [17]The Appeal Tribunal may extend time to file an application for leave to appeal or appeal under s 61 of the QCAT provided there is no irremediable prejudice to the other party.
- [18]HFC was directed to file an application for extension of time to file the application for leave to appeal or appeal and written submissions in support of the application. Biotech was directed to file submissions in response.
- [19]The relevant considerations are:
- (a)the duration of the delay;
- (b)whether there is a satisfactory explanation for the delay;
- (c)the merits of the application and its prospects of success;
- (d)the likelihood of any prejudice to other parties or potential parties; and
- (e)whether the extension of time is in the interests of justice.[2]
- (a)
- [20]The delay in this case is short, however one counts the time for filing. I do not consider this is a basis to refuse an extension of time.
- [21]No explanation has been given for the delay although HFC has explained the steps it took to file the application for leave to appeal or appeal. This is not a case where the applicant has sat on its hands.
- [22]As to the merits of the application, I must conduct a preliminary assessment, which is not intended to prejudge the application.
- [23]The grounds of appeal assert errors of mixed law and fact or errors of fact.
- [24]As to the first ground of appeal, HFC asserts that its claim falls below the $25,000.00 monetary limit in the minor civil disputes jurisdiction. HFC appears to misunderstand the basis on which the Adjudicator determined that the claim did not meet the criteria necessary to amount to a claim arising out of a contract between a consumer and a trader. The issue was not the amount of the claim, but rather whether Biotech fell within the definition of a trader. The finding of the Adjudicator on that point was reasoned and unlikely to amount to an error.
- [25]As to the second ground of appeal, HCF asserts that the Tribunal erred in the way in which it categorised the contract between the parties. I consider HFC does have at least an arguable case that an overarching contract existed between the parties; rather than a series of contracts related to individual items of work. HFC gave evidence at the hearing as to the nature of the relationship between the parties which is consistent with the contention put by it.
- [26]That consideration is relevant to the last ground of appeal. HFC contend that grounds exist for a set off, on the basis that the loss and damage suffered by it are a direct consequence of the false positive test result given to it by Biotech, which was an error on the part of Biotech and a breach of its contractual obligation to exercise due care and skill in performing its tests for HFC.
- [27]Overall, I consider that the last two grounds of appeal are arguable.
- [28]As to prejudice to Biotech, I note from Biotech’s submissions that the order for payment has been met by HFC. Apart from the inconvenience of the matter remaining unresolved, I do not consider that there is any prejudice to Biotech if an extension of time is granted.
- [29]I consider that it is in the interests of justice for the matters raised by HFC to be determined.
- [30]For the reasons given, I extend time for filing the application for leave to appeal or appeal to 5 January 2021.