Alderton v Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay - [2019] QCATA 2

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Alderton & Anor v Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay [2019] QCATA 2

PARTIES:

SIMON ALDERTON
(first applicant)
SALLY ALDERTON
(second applicant)

v

WIDE BAY CONSTRUCTIONS PTY LTD T/AS DIXON HOMES HERVEY BAY

(respondent)

APPLICATION NO/S:

APL193 – 18

ORIGINATING APPLICATION NO/S:

APL131 – 2017

MATTER TYPE:

Appeals

DELIVERED ON:

2 January 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

ORDERS:

1. The application to extend or shorten a time limit or for waiver of compliance with procedural requirement filed on 22 June 2018 is refused.

2. The application for leave to appeal or appeal filed on 22 June 2018 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – WHEN NO APPEAL LIES – where a party had brought an appeal against an interlocutory decision of the Appeal Tribunal to the Court of Appeal which was refused – where the party then brought a separate application for leave to appeal or appeal from the interlocutory decision of the Appeal Tribunal to the ‘Internal Appeal Tribunal' – where there is no entity known as the ‘Internal Appeal Tribunal’ – where the application is misconceived

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 142, S 150(1)

Alderton & Anor v Wide Bay Constructions Pty Ltd trading as Dixon Homes Hervey Bay [2018] QCA 149

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Bill Dixon Butler Lawyers

APPEARANCES:

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

This matter has an increasingly complicated history.
Simon Alderton and Sally Alderton (‘the owners’) filed an appeal (APL131-17) in the Tribunal, seeking leave to appeal or appeal the decision of a Member of the Tribunal made on 28 March 2017.
In the course of hearing that appeal, the Appeal Tribunal refused to allow the admission of fresh evidence by the owners.
The owners then sought to appeal to the Court of Appeal against the refusal to allow the addition of fresh evidence. However, they were out of time to bring that appeal when they sought to do so, and therefore had to make an application to the Court of Appeal for an extension of time to bring the appeal.
The Court of Appeal gave its decision on 12 June 2018. It refused the application for extension of time for leave to appeal against the decision to refuse to allow the addition of fresh evidence.
The court of appeal found that an appeal from the QCAT Appeal Tribunal only lies in respect of a decision to refuse leave to appeal in relation to a cost–amount or a final decision, not in relation to an interlocutory order.
Sofronoff P noted that:[1]
[6] The position as it stands is that the applicants have a current appeal (or application for leave to appeal) before QCAT. In the course of that preceding the Appeal Tribunal made an interlocutory decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Alderton v Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay [2019] QCATA 2
Case: [2019] QCATA 2
Decision Date: 2 January 2019

CaseChat Overview and Summary

In the case of Alderton v Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay, the appellant, Mr Alderton, sought to appeal an interlocutory decision made by the Appeal Tribunal to the Court of Appeal. The Court of Appeal dismissed his appeal. Undeterred, Mr Alderton then brought a separate application for leave to appeal or an appeal from the interlocutory decision of the Appeal Tribunal, this time to an entity called the 'Internal Appeal Tribunal'. However, there is no such entity in existence. The court was required to determine whether Mr Alderton's application was valid and whether the court had jurisdiction to hear it.

The primary legal issue before the court was whether the application for leave to appeal or an appeal to the 'Internal Appeal Tribunal' was valid, given that such a tribunal does not exist. The court had to consider the procedural rules and jurisdictional limits that applied to appeals in the context of this case. It also had to determine whether there were any grounds on which the application could be considered, such as an extension of time or a waiver of procedural requirements.

The court found that the application was misconceived, as there is no entity known as the 'Internal Appeal Tribunal'. The court held that the application was invalid and could not proceed. The court dismissed the application for leave to appeal or an appeal, finding that the application was fundamentally flawed. The court also refused the application to extend or shorten a time limit or for waiver of compliance with a procedural requirement, as it found that the application did not meet the necessary criteria.

The court's final orders were to refuse the application to extend or shorten a time limit or for waiver of compliance with a procedural requirement filed on 22 June 2018 and to dismiss the application for leave to appeal or appeal filed on the same day. The court's decision clarified the jurisdictional limits and procedural rules applicable to appeals in this context and reinforced the importance of ensuring that applications are made to the correct tribunal.

Orders

Orders of the court

1. The application to extend or shorten a time limit or for waiver of compliance with procedural requirement filed on 22 June 2018 is refused.

2. The application for leave to appeal or appeal filed on 22 June 2018 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Alderton & Anor v Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay [2019] QCATA 2
PARTIES:	SIMON ALDERTON (first applicant) SALLY ALDERTON (second applicant)
v
WIDE BAY CONSTRUCTIONS PTY LTD T/AS DIXON HOMES HERVEY BAY (respondent)
APPLICATION NO/S:	APL193 – 18
ORIGINATING APPLICATION NO/S:	APL131 – 2017
MATTER TYPE:	Appeals
DELIVERED ON:	2 January 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Paratz
ORDERS:	1. The application to extend or shorten a time limit or for waiver of compliance with procedural requirement filed on 22 June 2018 is refused. 2. The application for leave to appeal or appeal filed on 22 June 2018 is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – WHEN NO APPEAL LIES – where a party had brought an appeal against an interlocutory decision of the Appeal Tribunal to the Court of Appeal which was refused – where the party then brought a separate application for leave to appeal or appeal from the interlocutory decision of the Appeal Tribunal to the ‘Internal Appeal Tribunal' – where there is no entity known as the ‘Internal Appeal Tribunal’ – where the application is misconceived Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 142, S 150(1) Alderton & Anor v Wide Bay Constructions Pty Ltd trading as Dixon Homes Hervey Bay [2018] QCA 149

REPRESENTATION:
Applicant:	Self-represented
Respondent:	Bill Dixon Butler Lawyers
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).