Di Iorio v Norris - [2010] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION:

Di Iorio v Norris [2010] QCA 191

PARTIES:

PETER DI IORIO
(applicant)
v
JAMES NORRIS
(respondent)

FILE NO/S:

Appeal No 285 of 2010
SC No 2119 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave/Judicial Review
Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

29 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2010

JUDGES:

Chief Justice, Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The amended application dated 8 April 2010, in respect of the order made in the Trial Division on 29 April 2009 dismissing the applicant's application for judicial review, is refused.

2. The application for leave to adduce fresh evidence filed on the 5th of May 2010 is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the primary judge dismissed the present applicant’s application for a statutory order of review of a decision of the Small Claims Tribunal – where the Small Claims Tribunal ordered the erection of a fence and retaining wall and that the present applicant pay half the sum of the fence and wall – where the applicant raised grounds within the purview of the Judicial Review Act 1991 (Qld) before the primary judge – where there was no evidence to support any of the grounds raised by the applicant – where the primary judge concluded that the applicant’s complaint was with the merits of the decision – where any appeal against the decision of the primary judge should have been instituted by 27 May 2009 – where the applicant filed an application on 8 January 2010 and amended the application on 8 April 2010 – where it is appropriate to treat the applicant’s amended application as an application for extension of time – where applicant argues that there was a reasonable explanation for the delay – where applicant asserts a denial of natural justice but provides no particulars – whether the extension of time should be granted

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where applicant swears that since the Tribunal’s decision he has obtained fresh evidence in the form of a survey report – where the survey report concerns events that occurred prior to the hearings before the Tribunal and the primary judge – where the survey report could have been secured previously and put before the Small Claims Tribunal – whether proposed further evidence should be admitted on the hearing of any appeal

Dividing Fences Act 1953 (Qld), s 18(3A)
Judicial Review Act 1991 (Qld), s 20
Uniform Civil Procedure Rules 1999 (Qld), r 748, r 766(1)(c)

Clarke v Japan Machines Australia Pty Ltd [1984] 1 Qd R 404, cited
O'Callaghan v Hall & Anor[1993]…

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.

Continue reading Di Iorio v Norris

Details

AGLC: Di Iorio v Norris [2010] QCA 191
Case: [2010] QCA 191
Decision Date: 29 July 2010

CaseChat Overview and Summary

In the case of Di Iorio v Norris, the applicant sought an order of review of a decision made by the Small Claims Tribunal, which had ordered the applicant to pay half the cost of a fence and retaining wall. The primary judge dismissed the application for review, and the applicant subsequently filed an amended application for leave to appeal out of time and to adduce fresh evidence. The court was tasked with determining whether the applicant's appeal was within the appropriate time frame and if fresh evidence could be admitted.

The court examined whether the applicant's amended application, filed on 8 April 2010, should be treated as an application for an extension of time. Given that the time for appeal was 27 May 2009, the court needed to consider whether there was a reasonable explanation for the delay and if the applicant's assertion of a denial of natural justice provided sufficient grounds for an extension. Additionally, the court had to assess whether the fresh evidence, a survey report obtained after the tribunal's decision, should be admitted as it related to events that occurred before the tribunal's and primary judge's hearings.

The court concluded that the amended application was essentially an application for an extension of time, which should not be granted as the applicant failed to provide a reasonable explanation for the delay. The court also rejected the application for leave to adduce fresh evidence, finding that the survey report could have been obtained earlier and presented to the Small Claims Tribunal. The court ruled that the application for an extension of time and the application for leave to adduce fresh evidence were both refused.

The court ordered that the amended application dated 8 April 2010, regarding the order made in the Trial Division on 29 April 2009 dismissing the applicant's application for judicial review, was refused. Additionally, the application for leave to adduce fresh evidence filed on 5 May 2010 was also refused.

Orders

Orders of the court

1. The amended application dated 8 April 2010, in respect of the order made in the Trial Division on 29 April 2009 dismissing the applicant's application for judicial review, is refused.

2. The application for leave to adduce fresh evidence filed on the 5th of May 2010 is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Di Iorio v Norris [2010] QCA 191
PARTIES:	PETER DI IORIO (applicant) v JAMES NORRIS (respondent)
FILE NO/S:	Appeal No 285 of 2010 SC No 2119 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave/Judicial Review Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	29 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2010
JUDGES:	Chief Justice, Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The amended application dated 8 April 2010, in respect of the order made in the Trial Division on 29 April 2009 dismissing the applicant's application for judicial review, is refused. 2. The application for leave to adduce fresh evidence filed on the 5th of May 2010 is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the primary judge dismissed the present applicant’s application for a statutory order of review of a decision of the Small Claims Tribunal – where the Small Claims Tribunal ordered the erection of a fence and retaining wall and that the present applicant pay half the sum of the fence and wall – where the applicant raised grounds within the purview of the Judicial Review Act 1991 (Qld) before the primary judge – where there was no evidence to support any of the grounds raised by the applicant – where the primary judge concluded that the applicant’s complaint was with the merits of the decision – where any appeal against the decision of the primary judge should have been instituted by 27 May 2009 – where the applicant filed an application on 8 January 2010 and amended the application on 8 April 2010 – where it is appropriate to treat the applicant’s amended application as an application for extension of time – where applicant argues that there was a reasonable explanation for the delay – where applicant asserts a denial of natural justice but provides no particulars – whether the extension of time should be granted APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where applicant swears that since the Tribunal’s decision he has obtained fresh evidence in the form of a survey report – where the survey report concerns events that occurred prior to the hearings before the Tribunal and the primary judge – where the survey report could have been secured previously and put before the Small Claims Tribunal – whether proposed further evidence should be admitted on the hearing of any appeal Dividing Fences Act 1953 (Qld), s 18(3A) Judicial Review Act 1991 (Qld), s 20 Uniform Civil Procedure Rules 1999 (Qld), r 748, r 766(1)(c) Clarke v Japan Machines Australia Pty Ltd [1984] 1 Qd R 404, cited O'Callaghan v Hall & Anor[1993]…