Alexware Consulting Pty Ltd v Carbon Energy

[2012] QCAT 319

CITATION: Alexware Consulting Pty Ltd v Carbon Energy [2012] QCAT 319

PARTIES:	Alexware Consulting Pty Ltd (Applicant)
v
Carbon Energy (Respondent)

APPLICATION NUMBER: MCDO4134-11

MATTER TYPE: Other minor civil disputes matters

HEARING DATE: 23 July 2012

HEARD AT: Brisbane

DECISION OF: J Bertelsen, Adjudicator

DELIVERED ON: 23 July 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application to extend the time to apply for the Appeal Tribunal’s leave to appeal or appeal the Tribunal’s decision of 18 April 2012 is refused.

CATCHWORDS: Decision – reasons for decision – decision correction – appeal – right of appeal

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. By email of 1 June 2012 the Tribunal provided the applicant with its reasons for decision rejecting the applicant’s contention that the default decision originally entered in its favour was incorrectly set aside.

2. That email stated, inter alia, “decisions about minor civil disputes can be appealed to the QCAT Appeal Tribunal provided the Appeal Tribunal has given leave for the appeal to be lodged”.  That email also stated, “an application for leave to appeal against a QCAT decision must be lodged within 28 days of a party receiving the written reasons for the decision”.

3. The applicant additionally was referred to sections 143 and 61 of the QCAT Act.

4. Clearly the applicant had until 29 June 2012 as the timeframe within which to lodge its application for leave to appeal or appeal. 

5. The applicant by email of 6 June 2012 took issue with the Tribunal’s decision of 18 April 2012 whereby the Tribunal dismissed the applicant’s application to set aside the earlier Tribunal decision whereby the Tribunal set aside the default decision originally entered ie in effect to have the default decision reinstated.

6. The applicant referred to paragraph 10 of the decision alleging the Tribunal had been “intentionally misinformed”.  If the decision’s reasoning was based on incorrect or erroneous information then that clearly could be raised on appeal.  It was never enough for the applicant to email the Tribunal disputing the Tribunal’s decision and expecting that the Tribunal would of its own volition revisit its decision. 

7. Thereafter there is no further communication from the applicant until its email of 19 June 2012 wherein it seeks, “further to my application on 6 June 2012 (email below) to correct a decision, I herewith apply to extend the time within which I must initiate an appeal and/or consider mediation.”

8. The applicant then refers to what it perceives as the misconstruing of available evidence regarding service of the original application the subject of this proceeding.  Finally the applicant then attaches its form 43 application to correct a decision referring to those same service issues.

9. Section 135 QCAT Act provides for the correction of a mistake on the face of a decision. It does not and is not intended to address the reasoning behind a decision such that it could be utilised (inappropriately) as a de facto appeal mechanism. If the reasoning behind a decision is considered erroneous that is clearly a matter for appeal. The applicant’s email of 19 June 2012 implies that the application to extend the time for appeal is brought on by a lack of outcome in respect of the informal application to review matters as contained in its email of 6 June 2012.

10. The applicant’s dissatisfaction with the decision as expressed in its email of 6 June 2012 did not relieve the applicant of its primary responsibility clearly articulated to it in the Tribunal’s email of 1 June 2012 namely that it had 28 days to appeal.  Nor is it the case that it was incumbent on the Tribunal to enter into further correspondence with the applicant.  Nor is it the case that the applicant simply by disputing the decision made can rely on that such as to form the basis for an application to extend time. 

11. The applicant’s request in its email of 6 June was never an application for correction.  The applicant sought a totally different (and opposite) decision.

12. The applicant’s proper course was clearly to appeal the decision made on 18 April 2012 communicated to it on 1 June 2012.  The applicant was made fully aware of its right to appeal the decision. 

13. For the applicant to lodge an application for correction where what is in reality being sought is a reversal of the decision at the same time as lodging an application for an extension of time to appeal is a disingenuous and contrived attempt to circumvent or extend the proper appeal process and applicable timeframes articulated in the QCAT Act.

14. There are no grounds to extend the time to appeal identified in any of the applicant’s applications.

Order

1. The application to extend the time to apply for the Appeal Tribunal’s leave to appeal or appeal the Tribunal’s decision of 18 April 2012 is refused.