Links v McMahon (No 2)

[2017] QCATA 140

CITATION:

Links & Anor v McMahon (No 2) [2017] QCATA 140

PARTIES:

Jon Robert Links
Katherine Emma Nuttall
(Applicants/Appellants)

v

Philip John McMahon

(Respondent)

APPLICATION NUMBER:

APL128-16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

DELIVERED ON:

21 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The application for an extension of time to file the application for correction of the Appeal Tribunal’s reasons for decision dated 25 October 2016 is refused.

2.    The application for correction is dismissed.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where application for correction of the Appeal Tribunal’s reasons for decision – whether reasons for decision can be corrected under slip rule

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 135, Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 90

APPEARANCES:

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

REASONS FOR DECISION

1. Mr Links and Ms Nuttall filed an application for a minor civil dispute arising out of a contract with Mr McMahon. An Adjudicator made orders transferring the application to the building list for hearing. The application was subsequently dismissed by a Senior Member of the Tribunal. The Senior Member made directions as follows:

   1.  The application is dismissed.

   2.  The applicants are at liberty to file an application for a domestic building dispute.

   3. Any application filed in accordance with direction 2 herein must include evidence of the applicants’ compliance with s 77(2) of the Queensland Building and Construction Commission Act 1991.

   4.  Anything filed in this proceeding will be taken to have been filed in any proceedings commenced in accordance with direction 2.

2. Section 77(2) of the QBCC Act requires that a person must not apply to the Tribunal unless the person has complied with the process established by the QBCC to attempt to resolve the dispute.

3. Mr Links and Ms Nuttall subsequently filed an application for leave to appeal or appeal. The application for leave to appeal was refused by another Senior Member constituted as the Appeal Tribunal on 25 October 2016. Other than refusing leave to appeal, the Appeal Tribunal made no other orders in respect of the application for leave to appeal. The Appeal Tribunal gave written reasons for its decision at the time of its decision. The reasons for decision were published on the Supreme Court Library website in the usual way. Mr Links and Ms Nuttall did not appeal the decision of the Appeal Tribunal to refuse leave for them to appeal.

4. Mr Links and Ms Nuttall filed an application to extend time to make an application for correction together with the application for correction, it seems on 27 June 2017 (although the application to extend time limit is stamped as received by the tribunal registry on 3 August 2017). They seek to correct allegedly ‘incorrect’ statements contained in the reasons for decision of the Appeal Tribunal.

Correcting mistakes

1. Under s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Tribunal may correct a decision made by it, if the decision contains a clerical mistake or an error arising from an accidental slip or omission; a material miscalculation of figures or a material mistake in the description of a matter, person or thing mentioned in the decision, or a defect of form. This provision, and its equivalent as applied in other tribunals and courts, is often referred to as the slip rule.

2. A decision of the Tribunal is defined in Schedule 3 of the QCAT Act as follows:

   decision, of the tribunal—

   (a) means—

   (i) an order made or direction given by the tribunal; or

   (ii) the tribunal’s final decision in a proceeding; and

   (b) for chapter 7—see section 244.

Should an extension of time be granted to apply for correction?

1. An application under s 135 of the QCAT Act must be made, among other things, within 28 days of the relevant day.[1] In this case, the relevant day is the day the party was given notice of the decision.

   [1]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rule 90. Relevant day is defined as the day the party is given notice of the decision.

2. The Appeal Tribunal’s decision to refuse the application for leave to appeal was dated 25 October 2016 and was accompanied by written reasons of that date. The tribunal file records that the decision and reasons for decision were emailed and posted to the parties on 27 October 2016.

3. Mr Links and Ms Nuttall seek an extension of the time limit to make their application for correction.[2] In considering an application for extension of a time limit, the explanation for the delay is one relevant factor. In support of their application for an extension of time, they submit in essence that although they were informed about applications for correction in March 2017, the Queensland Ombudsman was considering ‘the matter’ until 15 June 2017. It appears that they contend they could not have brought the application earlier than March 2017. The reason for their delay in seeking to bring the application between March and 15 June 2017 appears to be their involvement of the Ombudsman. The delay from 15 June 2017 until 27 June 2017 is unexplained. On the available information, it is far from clear that there is a reasonable explanation for the delay.

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61 provides for the Tribunal to be able to grant an extension of time for a procedural requirement.

4. In considering the application for an extension of time, it is also relevant to consider whether it would be fair in all of the circumstances to grant the extension; whether any prejudice has been occasioned as a result of the delay; and the merits of the claim sought to be made if an extension of time is granted.

5. In this instance, even if the other factors weighed in favour of Mr Links and Ms Nuttall, I would not be persuaded to exercise my discretion to grant an extension of time because the application for correction does not have merit. The types of mistake that may be corrected under s 135 are limited to those types of mistake set out earlier: that is, accidental slips and omissions in the decision. Mr Links and Ms Nuttall do not contend that the Appeal Tribunal made an error of that type. What they seek are alterations to the reasons for decision given by the Appeal Tribunal for its decision.

6. Accordingly, an application for correction must fail if it was to proceed.

Orders

1. In the circumstances, I make orders dismissing the application for an extension of time to file the application for correction.