Amos v Catakovic

[2000] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B33 of 1999

B e t w e e n -

EDWARD AMOS

Applicant

and

MUHAMED CATAKOVIC and ADVAN CATAKOVIC

Respondents

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 2000, AT 10.51 AM

Copyright in the High Court of Australia

MR D. WILLIAMS:   If it pleases the Court, two preliminary matters.  First of all, my name is Williams and not Gray, as probably appears on the  ‑ ‑ ‑ (instructed by Keller Nall & Brown)

McHUGH J:   Yes, it does.

MR WILLIAMS:   The second matter is may I hand up the correct version of section 42 of the Queensland Building Services Act. The version before your Honours is from reprint No 6. This is from reprint No 5 dated 7 September 1994 and this is the correct version of the legislation.

McHUGH J:   Before you commence, I have a certificate from the Senior Registrar in which she states that the second respondent in this application has not entered an appearance in the matter and the applicant’s solicitors have filed an affidavit of service deposing to service upon the second respondent on 3 December 1999 of the application for special leave to apply and accompanying documents and the applicant’s summary of argument.  Yes, you may proceed, Mr Williams.

MR WILLIAMS:   Your Honours, this case concerns a judgment by the Queensland Building Tribunal against the applicant ‑ ‑ ‑

McHUGH J:   Well, that is not right, is it?  This application concerns an order of the Court of Appeal of Queensland refusing leave to appeal.

MR WILLIAMS:   All right.  Well, your Honour, I will go straight to the exercise of discretion.  The Court of Appeal effectively mentioned two factors.  The first factor was that they recognised an error of law in the judgment of the Building Tribunal.  The second factor against that was they mentioned the possibility of a claim in deceit or fraud against the applicant should the matter be remitted.  They said in the circumstances there was no need to find whether or not such a claim would lie.

My submission is that for such a claim to lie there would necessarily have had to have been a finding by the Tribunal that the applicant was aware, at the time he made a promise to pay, that he had no obligation to pay them under section 42.  For an action to lie in deceit and fraud there must be an intention by the maker of a statement to deceive.  Now, there is nothing in the decisions of the Queensland Building Tribunal to show that intention.  So, in effect, you have two discretionary factors:  one, a recognised error of law; and the second a factor which is incorrect because it is not based on a finding of the Tribunal, and in those circumstances ‑ ‑ ‑

GUMMOW J:   How much money does this involve, Mr Williams?

MR WILLIAMS:   Not much, your Honour:  $4,500 plus costs.  I will get to that in a minute, the importance of this case.  Admittedly, there is no important question of law for your Honours, but there are two matters which perhaps could be said to affect the administration of justice.  The first is that a judgment stands against my client based on an error of law and this much has been recognised by the District Court and by the Court of Appeal.

The second matter is that the applicant is before the High Court today with a relatively insignificant matter because neither the District Court nor the Court of Appeal exercised their function in providing guidance to the decision maker at first instance.  This second factor assumes extra important in the context of this particular piece of legislation and I would refer your Honour to his Honour Mr Justice McPherson’s closing remarks in the case of Zullo Enterprises, which I believe your Honours have before you.  His Honour notes:

Repeated instances of non‑compliance with the Act ‑ ‑ ‑

GUMMOW J:   What paragraph number?  Paragraph [10], is it?

MR WILLIAMS:   Paragraph No [10] on page 4 of 7.  It is six lines down.  His Honour has noted:

Repeated instances of non‑compliance with the Act –

with the consequence of:

diminishing the fund from which insurance is payable to disappointed building owners.

In effect, the Court of Appeal has ignored its own caution in relation to this specific piece of legislation.

McHUGH J:   But you see the point is that the case is conducted on a view of the law and it is a matter the court takes into account, notwithstanding that the law has now been declared differently.  In the exercise of its discretion, it refuses to entertain an appeal.  It was a very small sum of money involved.

MR WILLIAMS:   There is a very small sum of money involved, your Honour.  The only thing that I can say on behalf of the applicant is that, well, to put it very bluntly, he has had a decision that is based on an error of law at first instance, we would submit arguably incorrect exercises of discretion by both the District Court and the Court of Appeal.  He has not even had an opportunity to argue the appeal yet.  Then, on a very broad level, it runs the risk of reducing the confidence of people in this institution, in the institution of the courts, if the matter has to go this far when there is a clear error of law but the applicant still has not had an opportunity to argue the appeal.  He has been declined leave twice despite the fact that that error has been recognised.

McHUGH J:   It was not recognised in the District Court, was it, or was it?

MR WILLIAMS:   Yes, it was, your Honour.

McHUGH J:   It was.

MR WILLIAMS:   The District Court decision is page 23 of the book.  His Honour Judge Botting refers to ‑ ‑ ‑

McHUGH J:   Yes.

MR WILLIAMS:   ‑ ‑ ‑ I presume it is Zullo Enterprises he refers to on page 25 at about line 25.  He says at page 30 that clearly the member did act partly at least on the basis of the decision of the acting judge and may, because of that, be thought to have been led into error and this also – the District Court judge is mentioning this – he noted that there is no prescription in the legislation determining his Honour’s discretion but he would assume the traditional ones of a question of justice or an error of law.  He notes there that this is in the context of the error of law and then he turns and he notes that the fact that a person has a judgment against them based on an error of law is a question of justice but, in his discretion, he would refuse leave to appeal.

McHUGH J:   Well, that just provides a further problem for you because not only do you have to persuade us that the Court of Appeal exercised its discretion wrongly, but that if leave had been granted, that there was a case for saying that District Court Judge Botting had also exercised his discretion wrongly.

MR WILLIAMS:   Incorrectly.  Well, perhaps I should address that.  His Honour Judge Botting implicitly acknowledged that an argument that an award made against someone as a result of error of law has merit in it and is an issue of justice.  The small amount of money involved should not be given too much weight, in my submission, because the District Court is the statutory court of appeal and the only court of appeal from a decision of the Queensland Building Tribunal.

The Parliament has not seen fit to put any financial cap or any financial minimum on an appeal to the District Court and if a District Court judge is refusing leave on the basis of the size of the claim, then effectively

it reduces its effectiveness as a court of appeal from the Queensland Building Tribunal.

McHUGH J:   Well, it is a factor that is taken into account.  It is not decisive, but in this particular – he looked at all the circumstances of the case and took the view that justice did not require the grant of leave to appeal.

MR WILLIAMS:   Well, once again, we would submit that the exercise of discretion miscarried due to taking into account extraneous factors and the other famous old ground from House v The King, that he has failed to give weight, sufficient weight, to the very material consideration of an error of law.

McHUGH J:   Yes.

MR WILLIAMS:   His Honour has mentioned the further expense of an appeal as a disbarring factor, but I would submit that that is perhaps a matter for the applicant to decide whether or not he wants to use more of his money to chase his day in court.  His Honour refers to a counter‑claim which the applicant had.  That counter‑claim was abandoned before the Court of Appeal and is no longer on foot.  At best, your Honours, this case is perhaps relevant to the principle that not only should justice be done, but that it should be seen to be done.  In this particular case, for the reasons that I have mentioned, that arguably there has been two incorrect exercises of discretion on top of an error of law at first instance.

McHUGH J:   Well, I think, having regard to some of the remarks of the courts below, that you should qualify your remarks by saying that justice according to law should be done.

MR WILLIAMS:   Justice according to law should be done, quite so.  The District Court recognised this error, as did the Court of Appeal.  The applicant has not yet had the opportunity to appeal the decision at first instance, despite the recognition of an error.  The conduct of the respondent, which was carrying out building work without a licence, was effectively rewarded by a judgment in his favour, despite that conduct being an offence pursuant to the provisions of the Queensland Building Services Authority Act.  That is the case for the applicant, your Honour.

McHUGH J:   Thank you, Mr Williams.

This is an application for special leave to appeal against an order of the Court of Appeal of Queensland refusing leave to appeal against an order of the District Court of Queensland.  It would be pointless to grant special leave to appeal in this matter unless the applicant could show that both the Court of Appeal and the District Court erred in the exercise of their respective discretions.  Mr Williams has argued that the Court of Appeal erred in the exercise of its discretion and also that the District Court erred in the exercise of its discretion.  For our purposes, it is sufficient to say that there is no ground at all for thinking that the District Court erred in the exercise of its discretion.  That being so, special leave to appeal ought not to be granted in this matter, particularly having regard to the amount of money involved and the history of the proceedings.  The application for special leave to appeal is dismissed.

Adjourn the Court to Canberra on Tuesday, 1 August 2000.

AT 11.05 AM THE MATTER WAS CONCLUDED