Mahony v Building Services Authority
[2010] QDC 214
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- Unreported Judgment
- Mahony v Building Services Authority[2010] QDC 214
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Mahony v Building Services Authority[2010] QDC 214
Mahony v Building Services Authority[2010] QDC 214
DISTRICT COURT OF QUEENSLAND
CITATION: | Mahony v Building Services Authority [2010] QDC 214 |
PARTIES: | GERARD WILLIAM MAHONY Appellant AND BUILDING SERVICES AUTHORITY Respondent |
FILE NO/S: | Appeal 835/09 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | Commercial and Consumer Tribunal |
DELIVERED ON: | 15 April 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 April 2010 |
JUDGE: | McGill DCJ |
ORDER: | Appeal struck out with costs. |
CATCHWORDS: | PRACTICE – Registry – filing document – what constitutes – notice of appeal not filed just by being sent by fax to a registry APPEAL AND NEW TRIAL – Practice – commencement of appeal – whether notice of appeal filed – not sufficient just to send by fax to a registry Commercial and Consumer Tribunal Act 2003 s 100(3) UCPR rr 967, 968, 969 Wenn v Café San Paul Pty Ltd [2008] QCA 108 - cited |
COUNSEL: | The appellant appeared in person G.I. Thomson for the respondent |
SOLICITORS: | The appellant was not represented The respondent was not represented. |
- [1]On 26 March 2009 a notice of appeal subject to leave by which the appellant, Mr Mahony, sought leave to appeal from the decision of the Commercial and Consumer Tribunal dated 22 December 2006 was filed in the District Court.
- [2]The appeal has come on for hearing. There was an application last week by Mr Mahony to adjourn the hearing of the appeal. On that occasion I raised the question of whether the appeal had been filed within time. I refused the application for the adjournment.
- [3]At that stage I indicated that I would deal with the question of whether the appeal had been filed within time today, and today the application for the adjournment was renewed, but I heard submissions and I have ascertained what the position is and what Mr Mahony wants to say in relation to the question of whether the appeal has been filed within time, and in the circumstances I do not consider that any good purpose would be achieved by adjourning the matter further.
- [4]The evidence indicates that what happened is that the Commercial and Consumer Tribunal gave its decision on 22 December 2006. Copies were posted to the parties. The appellant was aware of the decision prior to 12 January 2007. Under the Commercial and Consumer Tribunal Act 2003 s 100, a party to a proceeding before the Tribunal may appeal to the District Court against a decision of the Tribunal with the Court’s leave only on specified grounds.
- [5]Under subsection (3) an appeal must be filed within 28 days after the decision takes effect. Although the term “file” is defined in the dictionary as meaning filed in the Tribunal, and that is no doubt the ordinary meaning of that term, the context where s 100 is speaking about appeals to the District Court from decisions of the Tribunal indicates that in subsection (3) the reference to the appeal being filed means filed in the District Court rather than in the Tribunal.
- [6]The 28 day time period runs from the time when the decision takes effect. Relevantly a decision takes effect, in the case when a party is not present when the decision is delivered, when the decision comes to the attention of that party. In the case of Mr Mahony it is clear that he was aware of the decision prior to 12 January 2007 because on that day he sent by fax to the registry of the District Court both a notice of appeal against the decision and notice of appeal subject to leave in respect of the decision.
- [7]I accept that if those documents satisfied the requirement of subsection (3) then an appeal was validly instituted within the 28 day period. It does not appear, however, that anything further of significance occurred prior to 2009 in terms of the appeal being filed within the 28 day period, so that from Mr Mahony's point of view either sending the documents by fax to the registry of the District Court amounts to filing for the purposes of s 100(3) of the Commercial and Consumer Tribunal Act or his appeal does not comply with the requirements of subsection (3).
- [8]I should indicate that there is nothing in the Act which provides for any power to extend the 28 day period and the Court of Appeal has held that there is no power to extend the 28 day period, see Wenn v Café San Paul Pty Ltd [2008] QCA 108.
- [9]The question therefore is what is required by way of filing. The Commercial and Consumer Tribunal Act does not identify in any greater detail what is required by way of filing, but one would expect that in an Act passed in 2003 which provides for an appeal to be filed in the District Court, that that would require that the appeal be filed in accordance with the ordinary processes of the Court.
- [10]At that time and indeed in 2007 the requirements for a document being filed in the District Court were those set out in the Uniform Civil Procedure Rules r 967, which permitted the document to be sent to the registry personally, sent to the registry by post or, if lodgement by electronic or computer based means is authorised under a practice direction, complying with that practice direction, and there was no practice direction authorising notices of appeal to be filed by electronic or computer based means in the District Court.
- [11]Rule 968 dealing with filing of documents personally provides expressly that the document is filed when the registrar records the document and stamps the seal of the Court on it. Rule 969 dealing with filing of documents by post also provides that the document is filed when the registrar records the document and stamps the seal of the Court on it. In each case there is some formal act required by the Court registry other than the mere receipt of the document in order to constitute the filing of the document in the Court. In the present case what appears is the document was sent by fax and the faxed copies of the document were faxed back to the appellant on 3 April 2007.
- [12]Four of the five pages, or at least five pages of that facsimile are Exhibit POQ22 to an affidavit of Mr Mahony filed in the Court on 7 July 2009. There is nothing in that document, Exhibit POQ22 to indicate that anything had been done with the notices of appeal subject to leave and notice of appeal which had been sent by fax to the Court registry in January 2007 to constitute filing of the notices by the Court.
- [13]There is no indication of any filing stamp put on the documents, there is no indication of the Court's seal being put on the documents, there is no indication of receipt for the fees being recorded on the documents as is the case on the notice of appeal subject to leave filed 26 March 2009.
- [14]The usual practice of the District Court Registry when a notice of appeal is filed is to give the file which is thereby created a number, and the provision in the notice of appeal and notice of appeal subject to leave in Exhibit POQ22 does not contain the recording of any file number. There is nothing to indicate the documents have been treated by the registry as being filed or that the registry had done anything which could amount to filing of the documents as at 3 April 2007 at the time when they were faxed back to the appellant.
- [15]Section 100(3) is not in my opinion satisfied simply by sending an appeal by fax to the registry of the District Court. It is necessary that the appeal must be filed, that is filed in accordance with the ordinary practice of the Court.
- [16]In accordance with the rules, and for what it is worth the ordinary practice of the Court pursuant to those rules, that occurs when the document is stamped with the seal of the Court and recorded by the registrar, something which is usually done through the appropriate Court staff. But it requires some formal act in that way by which the registrar through the registrar's staff, formally accepts the document into the registry of the Court.
- [17]One practical consideration which arises here is that ordinarily the Court will not accept for filing a document which is subject to the payment of a fee unless the fee has been paid or unless the power to waive the fee has been exercised. The appellant has put in evidence today an affidavit exhibiting a photocopy of a cheque dated 16 December 2006 drawn on a bank apparently signed by the appellant and payable to the District Court of Queensland for $445.50.
- [18]Presumably the cheque was completed in anticipation of the decision of the Tribunal since it is dated prior to the date when the decision of the Tribunal was delivered. There is, however, no evidence that the cheque was actually sent to the District Court. It certainly could not have been sent by fax together with the documents which were faxed in January 2007. Cheques cannot be validly transmitted by fax.
- [19]I have spoken by telephone during the Court hearing this morning to the Deputy Registrar responsible for appeals. His understanding of the matter is that in 2007 the position was that although the notice of appeal had been received by fax by the registry it was not filed because the fee had not been paid.
- [20]He took over personally responsibility for appeals in 2008. His recollection is that during 2008 he had discussions with the appellant in the course of which he explained that the document had not been filed, although it had been received by fax by the Court registry, and the reason why the document had not been filed was that no fee had been paid. His understanding was that at that time the appellant admitted that the fee had not been paid.
- [21]The appellant has not produced today any evidence by way of bank statement to show that the cheque in question cleared at some relevant time, or indeed at any time. In the circumstances I am prepared to find that the fee was not paid in 2007 and that in fact the documents, although received by the Court Registry were not filed by the Registry and therefore the requirement of s 100(3) of the Commercial and Consumer Tribunal Act 2003 was not satisfied.
- [22]It follows that there has not been an appeal validly instituted in accordance with the requirements of the Act and the appropriate course is to strike out the appeal. The appeal that is before the Court was the one which was instituted by the filing of the notice of appeal subject to leave on 26 March 2009. That was out of time and it should be struck out. So the appeal is struck out. I order the appellant to pay the respondent's costs of the appeal to be assessed.