Durham v Adjudication Registrar (No. 2) - [2017] QCAT 322

CITATION: Durham v Adjudication Registrar (No. 2) [2017] QCAT 322

PARTIES: Helen Durham
(Applicant)

V

Adjudication Registrar
(Respondent)

APPLICATION NUMBER: OCR137-15

MATTER TYPE: Renewal Application

HEARING DATE: 31 May 2017

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 14 September 2017

DELIVERED AT: Brisbane

ORDERS MADE:
THE TRIBUNAL ORDERS THAT:

1.     The application for renewal is dismissed.

CATCHWORDS:
RENEWAL OF ORDERS – SCOPE OF TRIBUNAL’S POWER TO RENEW ORDERS – where applicant sought renewal of orders – whether order could be interpreted, implemented or enforced – where no material difficulty arose interpreting the order – where the meaning of the order clear to a reasonable person

Building and Construction Industry Payments Act (2004) s 120 (repealed)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 133(2), 133, 134, sch 3

Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284

Edwards-Louis v Jamison [2014] QCAT 183

Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593

Keys v Medical Board of Australia [2012] QCAT 448

Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326

APPEARANCES and REPRESENTATION (if any):
APPLICANT/APPELLANT      A Crossland of Counsel and H Durham
RESPONDENT  S Moody of Counsel instructed by J Stroud for the Adjudication Registrar

REASONS FOR DECISION

The application is for a renewal of a final decision of the tribunal pursuant to s 133(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
The decision in issue, handed down on 28 November 2016, in QCAT No. OCR137-15 is that:
MTT2 is confirmed to the extent that it conforms to the terms of s 120 Building and Construction Industry Payments Act 2004 (Qld).[1]
[1]Durham v Adjudication Registrar [2016] QCAT, OCR137-15.
The legislation
Applications for renewal are dealt with in sections 133 and 134 of the QCAT Act, which operate concurrently as a remedy to difficulties in a final decision:
133 Application for renewal
(1) This section applies if—
(a) it is not possible for the tribunal’s final decision in a proceeding to be complied with; or
(b) there are problems with interpreting, implementing or enforcing the tribunal’s final decision in a proceeding.
134 Renewed final decision
(1) This section applies if, under section 133, a person applies for a renewal of the tribunal’s final decision in a proceeding.
(2) The tribunal may make—
(a) the same final decision it made when the proceeding was originally decided; or
(b) any other appropriate final decision that it could have made, under this Act or an enabling Act, when the proceeding was originally decided.
The applicant does not submit that the decision does not have or cannot be given practical expression or be carried out, but says merely that there are problems interpreting, implementing or enforcing this order. The problems allegedly arise from the use of the acronym “MTT2”, the use of the word “it”, and the use and nature of the qualifier “to the extent that it conforms to the terms…

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: [2017] QCAT 322
Decision Date: 14 September 2017

CaseChat Overview and Summary

The matter of Durham v Adjudication Registrar (No. 2) involved an applicant seeking renewal of certain orders made in a prior adjudication. The application was before the tribunal, which had to determine whether the orders could be renewed and, if so, the scope of the tribunal's power to do so. The tribunal had to consider whether the orders could be interpreted, implemented, or enforced, and whether any material difficulties arose in doing so.

The central legal issue was whether the tribunal had the authority to renew the orders in the absence of any material difficulties in their interpretation, implementation, or enforcement. The tribunal had to examine the meaning of the orders to a reasonable person and whether there were any ambiguities or uncertainties that would prevent the orders from being executed.

The tribunal found that the orders were clear and unambiguous to a reasonable person, and no material difficulties arose in their interpretation, implementation, or enforcement. The tribunal concluded that the orders could be executed as they were written, and there was no need for renewal. The tribunal emphasised that its power to renew orders was limited and could only be exercised in cases where there were material difficulties in executing the orders. Since no such difficulties existed in this case, the tribunal dismissed the application for renewal.

The tribunal ordered that the application for renewal be dismissed. The tribunal's decision highlights the importance of clear and unambiguous orders and the limited scope of the tribunal's power to renew orders. The tribunal's approach to the interpretation of orders and the requirements for renewal will be of interest to parties involved in similar disputes.

Orders

Orders of the court

THE TRIBUNAL ORDERS THAT:

1. The application for renewal is dismissed.

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

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PARTIES:	Helen Durham (Applicant)
V
Adjudication Registrar (Respondent)
APPLICATION NUMBER:		OCR137-15