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 2009DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave/Judicial Review
Miscellaneous Application – CivilORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:
29 July 2010DELIVERED 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 madeORDERS:
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]…
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- AGLC
- Di Iorio v Norris [2010] QCA 191
- Case
- [2010] QCA 191
- Decision Date
CaseChat Overview and Summary
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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