Davis v Gray (No. 2)

The matter of Davis v Gray (No. 2) involved an appeal against a decision of the Australian Building and Construction Commission (ABCC). The applicant, Davis, had originally sought a remedy in relation to a commercial building dispute, which the ABCC had dismissed. Davis then appealed this decision to a Tribunal, which initially upheld the ABCC's decision but later set aside its own decision and remitted the matter back to the ABCC. Davis subsequently sought to recast his claim, arguing that it should proceed in a different form to one previously considered. The issue before the court was whether the Tribunal should remit the case for a hearing of the new claim or whether it was more appropriate for Davis to file a new claim. The court needed to determine whether the appeal should be dismissed, given the substantial alteration in the nature of the claim.

The court considered the principles governing appeals and new trials, particularly in the context of the ABCC. The court noted that an appeal does not lie where the applicant seeks to proceed with a claim that is substantially different in nature from the one previously considered. The court examined the principles of res judicata and whether the new claim was an attempt to re-litigate an issue that had already been decided. The court also considered the practicalities of the case and whether it was more appropriate for Davis to file a new claim rather than continuing with the existing appeal. Ultimately, the court concluded that the appeal should be dismissed and that Davis should not be permitted to proceed with a claim that was different in nature from the one previously considered.

The court found that the appeal should be dismissed. The court held that the Tribunal should not remit the case for a hearing of the new claim as it was substantially different in nature from the one previously considered. The court held that it was more appropriate for Davis to file a new claim rather than continuing with the existing appeal. The court also noted that the principles of res judicata applied and that Davis was attempting to re-litigate an issue that had already been decided. The court concluded that the appeal should be dismissed and that Davis was not permitted to proceed with a claim that was different in nature from the one previously considered.

The court substituted the following order for the decision of the Tribunal dated 31 March 2017 that was set aside by the Tribunal order dated 28 September 2018: The application for a commercial building dispute is dismissed.