Ely v Smith

Case [2022] QCATA 123

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Ely v Smith [2022] QCATA 123

PARTIES:
WA-EEDA ELY

(appellant)

v
GRAHAM SMITH

(respondent)

APPLICATION NO/S:

APL310-21

ORIGINATING APPLICATION NO/S:

MCDO769/20 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

3 August 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.     Leave to appeal is granted.

2.     The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – GENERALLY – where a party brought debt claims which arose during a de facto relationship – whether there was jurisdiction to hear the claims having regard to the exclusive jurisdiction of the family courts in applications for property orders – whether, having decided to hear the claims, the Adjudicator should also have heard the respondent’s claim of set-off arising from her diverse expenditure for the purpose of the relationship

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where an Adjudicator when giving reasons for a decision in a minor civil dispute made findings which may not have been supported in the evidence and made adverse comments which were unnecessary for the decision – whether an error of law or an appearance of bias

Commonwealth Powers (De Facto Relationships) Act 2003 (Qld)

Family Law Act 1975 (Cth), s 39A, s 90RC, s 90SM
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142

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D Galambos & Son Pty Ltd v McIntyre (1974) 5 ACTR 10
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Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Jones v McCoist [2011] QCATA 212
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Smithies v Barry (Civil Dispute) [2016] ACAT 31

Theodorou v Provatidis [2022] SADC 16

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. This is an appeal which concerns whether the tribunal had jurisdiction to hear and determine a minor debt claim for money lent during a de facto relationship, and to determine a claim in respect of a debt which arose soon after the end of the relationship, and whether diverse expenditure by the debtor for the purposes of the relationship should have been considered as a set-off.  The appeal also concerns whether there was an error of law, or an appearance of bias, where the Adjudicator may have made a mistake of fact, and may have made an incorrect assumption, and expressed…

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Details
AGLC
Ely v Smith [2022] QCATA 123
Case
[2022] QCATA 123
Decision Date

CaseChat Overview and Summary

In the case of Ely v Smith, the appellant, Ely, initiated debt claims against the respondent, Smith, which arose during their de facto relationship. The dispute reached the court, which had to determine whether it had the jurisdiction to hear these claims, given the exclusive jurisdiction of family courts in matters related to property orders. Additionally, the court needed to decide if, having chosen to hear the claims, the Adjudicator should also have considered Smith's set-off claim stemming from her expenses for the relationship.

The legal issues presented involved whether the court's decision to hear the debt claims was an error of law and if the Adjudicator's comments in their reasons for the decision amounted to an appearance of bias. The court examined whether the Adjudicator's findings and comments were supported by the evidence and if they were necessary for the decision. The appellant argued that the Adjudicator should not have made certain findings and comments, which could be seen as an error of law or an appearance of bias.

The court found that the Adjudicator did not err in deciding to hear the claims, as the debt claims were not property settlement claims but rather claims for money owed. Regarding the set-off claim, the court held that it was not necessary for the Adjudicator to consider it, as it did not pertain to the claims being adjudicated. The court further concluded that the Adjudicator's comments, although perhaps unnecessary, did not amount to an appearance of bias. Consequently, the appeal was dismissed, and leave to appeal was granted.

The final orders of the court were that leave to appeal was granted and the appeal was dismissed. The court's decision clarified the jurisdictional boundaries between family courts and other courts in handling de facto relationship disputes and reinforced the principles governing the appearance of bias in judicial proceedings.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is dismissed.

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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