Lopez v Presbyterian and Methodist Schools Association
[2022] QCATA 162
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- Unreported Judgment
- Lopez v Presbyterian and Methodist Schools Association[2022] QCATA 162
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Lopez v Presbyterian and Methodist Schools Association[2022] QCATA 162
Lopez v Presbyterian and Methodist Schools Association[2022] QCATA 162
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Lopez & Anor v Presbyterian and Methodist Schools Association [2022] QCATA 162 |
PARTIES: | FRANKLIN MOREAN LOPEZ AND MAIRYM GARCIA ALFARO (appellants) V PRESBYTERIAN AND METHODIST SCHOOLS ASSOCIATION (respondent) |
APPLICATION NOS: | APL228 of 2021 and APL229 of 2021 |
ORIGINATING APPLICATION NOS: | MCDO491 of 2020 and MCDO53436 of 2018 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 10 November 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member PG Stilgoe OAM |
ORDER: |
|
CATCHWORDS: | APPEAL – GENERAL PRINCIPLES – extension of time – minor civil dispute – where application for leave to appeal filed out of time – whether extension of time should be granted – where application for leave to appeal lacks merit – whether appeal would cause irreparable prejudice Competition and Consumer Act 2010 sch 2 ss 21, 22 Queensland Civil and Administrative Tribunal Act 2009 ss 3(b), 32, 61(3) Queensland Civil and Administrative Tribunal Rules 2009 r 31 Brici v Parry [2019] QCATA 134 Coppens v Water Wise Design Pty Ltd [2014] QCATA 309 Danes and Anor v Sulman [2012] QCATA 81 Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70 Lopez & Anor v Brisbane Boys College [2021] QCATA 47 Pickering v McArthur [2005] QCA 294 Smith & Anor v Queensland Building and Construction Commission [2021] QCAT 397 |
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]In 2011, Franklin Lopez and Mairym Alfaro enrolled their son at Brisbane Boys’ College, which is controlled by the Presbyterian and Methodist Schools Association. After periods of financial difficulty, they entered a payment plan with the college in early 2017 on the proviso that their son’s enrolment would be reviewed in 2018 if they defaulted under the payment plan.
- [2]The parents failed to adhere to the payment plan and so on 28 March 2018, their son’s enrolment was suspended. The college applied to the tribunal for payment of outstanding tuition fees; the parents cross-applied for wrongful termination and repudiation of the contract. After the matters were heard together, the parents’ cross-application was dismissed and they were ordered to pay the outstanding tuition fees. The parents now wish to appeal each matter.
Should an extension of time to file be allowed?
- [3]The appeals were filed out of time. The parties agree that the applications for leave to appeal or appeal should have been filed by close of business on 10 August 2021. The applications were filed on 13 August 2021, three days late.[1] Although this delay may seem negligible to some, the tribunal must not extend a time limit if it would cause irreversible prejudice to the other party, here being the college.[2]
- [4]When considering whether to allow an extension of time, the tribunal must consider, as well as the length of the delay: the adequacy of the explanation for the delay; the merits of the proceeding to be heard; prejudice to others and the interests of justice.[3]
Is the explanation for the delay adequate?
- [5]The parents thought their applications were filed when posted, meaning they would have been filed within time on 9 August 2021. The tribunal’s rules make it clear that documents are only filed when recorded and stamped by the principal registrar.[4]The parents are not strangers to the tribunal’s appeal process and its time limitations, having unsuccessfully filed an appeal against an interlocutory decision in 2020.[5] Time limitations should be complied with to facilitate the just, fair and quick resolution of disputes.[6] No compelling reason for the delay is found in the parents’ misunderstanding.[7]
What are the merits of the grounds of appeal?
- [6]Even if their explanation for the delay were accepted as being reasonably compelling, their appeals lack merit. The parents argue that in each matter the tribunal erred: in construing the enrolment contract and its variations; in applying the Australian Consumer Law; and by not affording natural justice.[8]
- [7]The tribunal found that the enrolment contract required the parents to pay their son’s tuition fees within seven days of receipt of their account, unless other arrangements had already been agreed.[9] Failure to pay could result in interest accruing, recovery proceedings and suspension of their son’s enrolment at any time prior to the payment of overdue fees.[10] The tribunal correctly found that this right was never varied or vacated by the college acceding to the impromptu changes to payment sums and dates the parents would request from time to time.[11] The ability to terminate the student’s enrolment protected the legitimate interests of the college and was a measure of last resort.[12] The first two grounds of appeal have limited prospects of success.
- [8]As for natural justice, the parents understood the case against them and could make submissions in reply. The college claims that the parents had known the entire case against them since 15 September 2020.[13] Paul Brown’s affidavit provides a comprehensive ledger of agreed payments and corresponding due dates from the time of the child’s enrolment.[14] Sharon Winn’s subsequent affidavit includes a record of all electronic communication between the parties.[15] Any deficiency of particulars in the claim filed on 03 July 2018 was well and truly cured by the hearing on 14 June 2021. The tribunal made no error by stating that a brief statement of claim for the debt is commonly the case in these matters. This ground has limited prospect of success.
Would allowing an extension of time cause irreparable prejudice?
- [9]The college has been held out of its money since 2018. Ultimately, the parents do not deny the existence of the debt; they deny that the college was entitled to its full payment by 28 March 2018.[16] The parents have produced an uncompelling reason for the delay. Even if it were compelling, the appeal would have limited prospects of success. The college has already taken steps to enforce the primary decision and it would suffer significant prejudice if those enforcement costs were thrown away.[17]
- [10]Allowing an extension of time to file the application for leave to appeal or appeal would cause irreparable prejudice to the college. It is in the interests of justice that it be refused. [18]
ORDER
- The application for an extension of time is refused.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 s 61(3); Queensland Civil and Administrative Tribunal Rules 2009 r 31(1). Each application for leave to appeal or appeal was recorded by the QCAT Registry on 13 August 2021.
[2]Queensland Civil and Administrative Tribunal Act 2009 s 61(3).
[3]Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70, [26].
[4]Queensland Civil and Administrative Tribunal Rules 2009 r 31.
[5]Lopez & Anor v Brisbane Boys College [2021] QCATA 47.
[6]Queensland Civil and Administrative Tribunal Act 2009 s 3(b); Coppens v Water Wise Design Pty Ltd [2014] QCATA 309, [14].
[7]Brici v Parry [2019] QCATA 134, [13].
[8]Application for leave to appeal or appeal filed 13 August 2021, 5-6.
[9]T2-3, 23 – T2-4, 7.
[10]T2-3, 41 – T2-4, 7.
[11]T2-3, 36-39, T2-6, 28-33.
[12]Competition and Consumer Act 2010 sch 2 ss 21-22.
[13]Submissions of the Respondent filed 24 Jan 2022, [20].
[14]Affidavit of Paul Brown sworn 15 September 2020.
[15]Affidavit of Sharon Winn sworn 11 June 2021.
[16]T2-5, 30-47.
[17]Submissions of the Respondent filed 24 Jan 2022, [21]; Danes and Anor v Sulman [2012] QCATA 81, [28].
[18]Smith & Anor v Queensland Building and Construction Commission [2021] QCAT 397, [44].