Di Iorio v Wagener - [2016] QCA 346

SUPREME COURT OF QUEENSLAND

CITATION:

Di Iorio v Wagener [2016] QCA 346

PARTIES:

PETER DI IORIO
(applicant)
v
GARY WAGENER
(respondent)

FILE NOS:

Appeal No 5148 of 2016
Appeal No 3622 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application to Discharge or Vary

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal

DELIVERED ON:

Order delivered ex tempore 25 November 2016
Reasons delivered 20 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2016

JUDGES:

Gotterson and Philippides JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Order delivered ex tempore on 25 November 2016:

Application refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS IN THE STRICT SENSE – where the applicant was ordered by QCAT to pay a monetary sum – where the applicant is an undischarged bankrupt – where the applicant appealed the QCAT decision to the Appeal Tribunal of QCAT and the Court of Appeal out of time – where a single judge of appeal exercising the powers of the Court of Appeal heard and refused the application for an extension of time – where the applicant applies to discharge or vary the decision of the single judge of appeal – whether the applicant has demonstrated, on the part of the judge of appeal, an error of law, a material error of fact, a failure to take into account a material consideration, the taking into account of an irrelevant consideration, or unreasonableness in the House v The King sense

Supreme Court of Queensland Act 1991 (Qld), s 30, s 44, s 62

Uniform Civil Procedure Rules 1999 (Qld), r 748, r 767

Apidopoulos v Sheriff of Victoria (2000) 1 VR 476; [2000] VSCA 104, cited
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, applied
Di Iorio v Wagener[2016] QCA 97, affirmed
Keating v Western Australia (2007) 35 WAR 1; [2007] WASCA 98, cited
Patrick v Howorth [2002] NSWCA 285, applied
Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136, cited
Wentworth v Wentworth (1994) 35 NSWLR 726, applied

COUNSEL:

The applicant appeared on his own behalf
The respondent appeared on his own behalf

SOLICITORS:

The applicant appeared on his own behalf
The respondent appeared on his own behalf

GOTTERSON JA: On 26 August 2010, the applicant, Peter Di Iorio, was ordered by the Queensland Civil and Administrative Tribunal (“QCAT”) to pay the sum of $8,240 to the respondent, Gary Sean Wagener, who traded as Wagener Building Service. That judgment was registered in the Magistrates Court at Southport on 27 September 2010, and an enforcement warrant based on that unsatisfied judgment was issued on 19 November 2010.
The applicant applied to the Appeal Tribunal of QCAT for leave to appeal…

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: [2016] QCA 346
Decision Date: 25 November 2016

CaseChat Overview and Summary

In the case of Di Iorio v Wagener, the applicant, Di Iorio, sought to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) to the Appeal Tribunal of QCAT and subsequently to the Court of Appeal. The original dispute before QCAT involved an order for Di Iorio to pay a monetary sum. Di Iorio, being an undischarged bankrupt, faced financial constraints that affected his ability to comply with the QCAT order. Di Iorio's appeal to the QCAT Appeal Tribunal and the Court of Appeal was filed beyond the statutory time limit, leading to the Tribunal and the Court of Appeal declining to hear the matter on the grounds of untimeliness.

The central legal issues in this case revolved around the nature and scope of the right of appeal, specifically whether the applicant could secure an extension of time to appeal and whether the single judge of appeal who declined the extension acted with any error of law, material error of fact, failure to consider relevant facts, consideration of irrelevant facts, or unreasonableness in the sense defined by House v The King. The applicant contended that the single judge erred in refusing to grant an extension of time to lodge the appeal, arguing that such a refusal was unreasonable given his financial circumstances and the undischarged status of his bankruptcy.

The court considered the arguments presented by the applicant and examined the relevant legal principles governing appeals and extensions of time. The court found that the single judge of appeal did not commit any error warranting a discharge or variation of the decision. The court determined that the single judge exercised their discretion appropriately in the context of the statutory framework and the circumstances of the case. Consequently, the court dismissed the applicant's application, upholding the decision of the single judge of appeal.

No further orders were made beyond the refusal of the application, as detailed in the order delivered ex tempore on 25 November 2016.

Orders

Orders of the court

Order delivered ex tempore on 25 November 2016:

Application refused.

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

Full text does not contain this section.

CITATION:	Di Iorio v Wagener [2016] QCA 346
PARTIES:	PETER DI IORIO (applicant) v GARY WAGENER (respondent)
FILE NOS:	Appeal No 5148 of 2016 Appeal No 3622 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application to Discharge or Vary
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal
DELIVERED ON:	Order delivered ex tempore 25 November 2016 Reasons delivered 20 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2016
JUDGES:	Gotterson and Philippides JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Order delivered ex tempore on 25 November 2016: Application refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS IN THE STRICT SENSE – where the applicant was ordered by QCAT to pay a monetary sum – where the applicant is an undischarged bankrupt – where the applicant appealed the QCAT decision to the Appeal Tribunal of QCAT and the Court of Appeal out of time – where a single judge of appeal exercising the powers of the Court of Appeal heard and refused the application for an extension of time – where the applicant applies to discharge or vary the decision of the single judge of appeal – whether the applicant has demonstrated, on the part of the judge of appeal, an error of law, a material error of fact, a failure to take into account a material consideration, the taking into account of an irrelevant consideration, or unreasonableness in the House v The King sense Supreme Court of Queensland Act 1991 (Qld), s 30, s 44, s 62 Uniform Civil Procedure Rules 1999 (Qld), r 748, r 767 Apidopoulos v Sheriff of Victoria (2000) 1 VR 476; [2000] VSCA 104, cited Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, applied Di Iorio v Wagener[2016] QCA 97, affirmed Keating v Western Australia (2007) 35 WAR 1; [2007] WASCA 98, cited Patrick v Howorth [2002] NSWCA 285, applied Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136, cited Wentworth v Wentworth (1994) 35 NSWLR 726, applied
COUNSEL:	The applicant appeared on his own behalf The respondent appeared on his own behalf
SOLICITORS:	The applicant appeared on his own behalf The respondent appeared on his own behalf