Barnett & Anor v Pirrone & Anor - [2019] QCATA 166

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Barnett & Anor v Pirrone & Anor [2019] QCATA 166

PARTIES: CHRIS BARNETT

(first applicant\appellant)

NICOLA ZOE ANGEL

(second applicant\appellant)

v

MARIO PIRRONE

(first respondent)

NICOLA JULIE PIRRONE

(second respondent)

APPLICATION NO/S:

APL001-19

ORIGINATING APPLICATION NO/S:

NDR182-16; MCDO752-18 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

11 December 2019

HEARING DATE:

2 October 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson presiding
Member Howe

ORDERS:
1.   Leave to adduce fresh evidence on appeal refused.

2.   Leave to appeal granted.

3.   The appeal is allowed.

4.   The decision of the Tribunal made 16 November 2018 is set aside.

5.   The respondents pay the appellants costs of the proceedings on an indemnity basis from 24 May 2018 fixed in the sum of $14,066.25.

6.   The respondents pay the appellants costs of appeal in the amount of the filing fee of the application for leave to appeal and appeal of $676.40.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – ADMISSION OF NEW EVIDENCE – whether error by tribunal – whether leave should be given

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where appeal against costs order – where leave to appeal costs order required – whether error by tribunal – whether leave should be given – whether appeal tribunal should make order for costs – whether costs should be on indemnity basis

Commercial and Consumer Tribunal Act 2003 (Qld), s 71

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 31

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46, s 100, s 102, s 142(3)(a)(iii), s 146

Uniform Procedure Rules 1999 (Qld), r 304(2), r 307(2)

Booth v Helensvale Golf Club Ltd [1997] 2 Qd R 141

Colgate Palmolive v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248

Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397

Harrison and Anor v Meehan [2016] QCATA 197

J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch and Building Trades Association of Unions of Western Australia (Association of Workers) [1993] FCA 42

Lominoga v Lominoga [1930] QWN 12

Orr v Orr [1949] QWN 5

Petavrakis v Hirst & Co [2001] QSC 224

QBCC v Crocker [2018] QCATA 194

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

Rathie v ING Life Ltd [2003] QSC 429

Richards v Richards [1933] QWN 12

Sharpe v Wren [1917] St R Qd 817

Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

This matter involves an appeal about costs. The respondents in the appeal were the applicants in the hearing at first instance. In these reasons they are referred to as the respondents.
In November 2016, the respondents filed in the Tribunal an…

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

Case: [2019] QCATA 166
Decision Date: 11 December 2019

CaseChat Overview and Summary

In the case of Barnett & Anor v Pirrone & Anor, the parties involved were the Barnetts and the Pirrones, who were engaged in a legal dispute that was first heard and decided by a tribunal. The nature of the dispute centred on issues related to the admissibility of new evidence and the assessment of costs in the context of a civil appeal. The case was ultimately brought before the court to determine whether the tribunal had erred in its decisions regarding these matters.

The legal issues before the court included whether the tribunal had erred in refusing to admit new evidence and whether the tribunal had erred in its decision to award costs in a particular manner. Specifically, the court needed to assess if the tribunal's refusal to allow the introduction of new evidence was justified and whether the tribunal had correctly exercised its discretion in ordering the respondents to pay the appellants' costs on an indemnity basis.

In its reasoning, the court determined that while the tribunal's refusal to admit new evidence was not erroneous, there were grounds to allow the appeal on the basis of the costs decision. The court found that the tribunal had indeed erred in its decision to order the respondents to pay the appellants' costs on an indemnity basis from a specific date. Consequently, the court granted leave to appeal and set aside the tribunal's decision, ruling that the respondents should pay the appellants' costs from 24 May 2018 on an indemnity basis and the costs of the appeal as fixed.

The final orders of the court included the refusal of leave to adduce fresh evidence on appeal, the granting of leave to appeal, the allowance of the appeal, the setting aside of the tribunal's decision, and the direction that the respondents pay the appellants' costs of the proceedings on an indemnity basis and the costs of the appeal. These orders effectively resolved the legal issues in favour of the appellants, providing them with the relief they sought regarding the costs awarded.

Orders

Orders of the court

1. Leave to adduce fresh evidence on appeal refused.

2. Leave to appeal granted.

3. The appeal is allowed.

4. The decision of the Tribunal made 16 November 2018 is set aside.

5. The respondents pay the appellants costs of the proceedings on an indemnity basis from 24 May 2018 fixed in the sum of $14,066.25.

6. The respondents pay the appellants costs of appeal in the amount of the filing fee of the application for leave to appeal and appeal of $676.40.

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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