Cummings v Queensland Building and Construction Commission - [2015] QDC 312

[2015] QDC 312

DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE DORNEY QC
No 3574 of 2015
ALLAN JAMES CUMMINGS Appellant
and
QUEENSLAND BUILDING & Respondent
CONSTRUCTION COMMISSION
BRISBANE
11.13 AM, FRIDAY, 27 NOVEMBER 2015
JUDGMENT

HIS HONOUR: This appeal - which of course is only an appeal if I should allow an extension of time for the filing of the notice of appeal - was filed on the 11^th of September 2015. I’ll come in a moment to the reasons why that filing was out of time. The judgment appealed against was a decision of Magistrate Thacker on the 3^rd of August 2015. It was with respect to a claim filed in the Magistrates Court of Queensland on the 21^st of May 2015. The judgment of the court was that the first and second defendants (which include the present appellant, Allan James Cummings) pay to the plaintiff, which is the Queensland Building and Construction Commission, a specific amount. I won’t go into the details of that amount. They’re not relevant for the purposes of the present matters.

The appeal was required by the Uniform Civil Procedure Rules 1999 to be brought within 28 days. What Mr Cummings (and his then fellow proposed appellant) did was to file an application in the Magistrates Court on the 31^st of August 2015 seeking that that earlier judgment be set aside. He asserts that he was misled in doing so; and for the present purposes I accept that that can be accepted as an explanation. He then filed, as I say, the notice of appeal (which is earlier referred to) on the 11^th of September 2015 - but there appears to be a document called “Notice of Appeal Subject to Leave” also filed but only on the 6^th of November 2015. It matters not in this particular case.

The first issue then is how, under the Uniform Civil Procedure Rules, I consider the issue of extending time. Rule 748 is the relevant rule. And, as I indicated, the notice of appeal must be filed within 28 days after the date of the decision appealed upon. That particular rule is relevant even in this appeal by force of rule 785, which brings the procedure for appeals to the District from the Magistrate Court within that particular rule. The rule says:

(U)nless the Court orders otherwise.

Relevant authorities establish that the principles applicable to extending time include such things as: an explanation for the failure; actions taken by such an applicant; informal notice given; prejudice to the respondent; potential for unsettling other peoples’ well-established practices; and the merits of the appeal.

Given the circumstances of the background outlined and the way that the application for the extension of time has been filed, I accept that the relevant circumstances have been met. As for the merits of the appeal, I was concerned about the fact that the original decision did not consider issues which I think are relevant for the…

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: [2015] QDC 312
Decision Date: 27 NOVEMBER 2015

CaseChat Overview and Summary

In this case, the appellant, Allan James Cummings, was appealing a decision of Magistrate Thacker which had found that Cummings and another party were liable to pay a specific amount to the Queensland Building and Construction Commission. Cummings had filed an application for an extension of time to file his notice of appeal, which was out of time. The court granted the extension of time and proceeded to consider the appeal on its merits. The main issues in the appeal were whether the policy in question could be examined for the purposes of the summary judgment and whether there was a policy of insurance covering the relevant contract. The court found that there was a relevant insurance policy covering the contractor on the relevant land and that the policy could be examined. However, the court also found that there were no real prospects of success in any defence based on the terms of the insurance policy and that there was no need for a trial. Therefore, the appeal was dismissed and the appellant was ordered to pay the costs of the appeal.

Orders