Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeship Scheme Ltd

[2008] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd
[2008] QCA 100

PARTIES:

LOGAN AREA GROUP APPRENTICESHIP/TRAINEESHIP SCHEME LIMITED
ACN 010 799 809
(plaintiff/respondent/cross-applicant)
v
ARNOLD ELECTRICAL & DATA INSTALLATIONS PTY LTD
ACN 056 068 896
(defendant/applicant/cross-respondent)

FILE NO/S:

Appeal No 10788 of 2007
Appeal No 10942 of 2007
DC No 106 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2008

JUDGES:

McMurdo P, Fraser JA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

Applications for leave to appeal by both parties are dismissed in each case with costs to be assessed on the standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES BY LEAVE OF COURT – GENERALLY – where
s 118(3) of the District Court of Queensland Act 1967 (Qld) confers a general discretion on the Court of Appeal to grant or refuse leave to appeal – where the Court of Appeal held that the primary judge erred in construing the contract – where the argument relied upon to demonstrate that error before the Court of Appeal was not raised before the trial judge – where the evidence placed before the trial judge was unclear – where the pleadings at the trial did not identify any material facts to support the claim – where the quantum in issue was relatively small – where the matter had already been litigated in two courts – whether leave to appeal should be granted in the circumstances

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where the contract contained a ‘change clause’ – where the change clause referred to an ‘award rate’ – where the term ‘award rate’ referred to labour costs – where the relevant labour costs were changed by an ‘enterprise bargaining agreement’ – whether, on a correct interpretation of the contract, the change effected by the ‘enterprise bargaining agreement’ amounted to a change of the ‘award rate’ for the purposes of the contract

EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – IN GENERAL – where the defendant alleged that its witness was an expert – where the witness relied upon facts which were not identified and proved or admitted – whether the evidence had any probative effect

EVIDENCE – ADMISSIBILITY AND RELEVANCY – IN GENERAL – OBJECTIONS – where evidence was tendered that allegedly proved various material facts – where no objection was made – whether because of the absence of an objection to its tender the evidence had probative effect

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING GENERALLY – where there was a dispute as to the applicable rate of labour cost to…