QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Forrest & Forrest v Abbott Builders QLD Pty Ltd [2021] QCATA 148
PARTIES: PHILLIP FORREST
JAN FORREST(applicants/appellants)
v
ABBOTT BUILDERS QLD PTY LTD (respondent)
APPLICATION NO/S:
APL044-21
ORIGINATING APPLICATION NO/S:
BDL280-19
MATTER TYPE:
Appeals
DELIVERED ON:
10 December 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Howard
ORDERS:
1. The application for leave to appeal is dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where leave to appeal required before an appeal in relation to order granting leave to be legally represented – where grounds of appeal seek error of law and errors of mixed law and fact and errors of fact – where copy of application not received – procedural fairness – whether tribunal’s exercise of discretion miscarried
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 28, s 29, s 31, s 43, s 142(3)(ii), s 146, s 147
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 35(3)Pickering v McArthur [2010] QCA 341
Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Becker Watt Lawyers
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
Abbott Builders Qld Pty Ltd (the builder) sought leave of the Tribunal to be legally represented in proceedings. The Tribunal made an order pursuant to s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘ QCAT Act’) granting leave for the parties to be legally represented in a proceeding concerning a building dispute. Mr and Ms Forrest (the homeowners) seek to challenge the Tribunal’s decision on appeal.
The grounds of appeal sought to be agitated concern alleged breaches of procedural fairness; and alleged inaccuracies in the reasons for decision. Leave to appeal is required before an appeal in relation to a decision of the Tribunal, which is not a final decision in a proceeding may advance.[1]
[1]QCAT Act s 142(3)(ii).
The Tribunal’s decision
In deciding to grant leave for legal representation, the learned Senior Member considered the history of two proceedings for a building dispute that were filed by the Forrest’s, and which had been consolidated by the Tribunal. The first application seeks restitution and costs in respect of defective and incomplete works based on some 20 issues raised by the Forrest’s. The second application involves their claim for liquidated damages for late completion of building works.
The parties subsequently filed statements of evidence which more comprehensively identified the issues. The Tribunal summarises the issues for consideration as including the meaning of the properly construed contract; the date for practical completion; any agreed extension of the date for practical completion; whether the…
Keep reading for free
Create a free CaseChat account to read Forrest & Forrest v Abbott Builders Qld Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] QCATA 148
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the Tribunal's decision to grant Abbott Builders leave to be legally represented, while the Forrests remained self-represented, was fair and lawful. The Forrests argued that this arrangement created a significant disadvantage for them and violated their right to procedural fairness. The appeal also questioned whether the Tribunal had correctly exercised its discretion under the QCAT Act, particularly in light of sections 28 and 29 which govern the conduct of proceedings and the obligations of legal practitioners.
The Court of Appeal found that the Tribunal was entitled to assess the complexity of the proceedings and was not obligated to consider the perceived disadvantage of the Forrests being unrepresented. The Court noted that the Tribunal had appropriately weighed the statutory obligations and the practicalities of the case. Furthermore, the Court held that while the Tribunal had made an error of fact, it did not materially affect the outcome. Consequently, the Court concluded that the Tribunal's exercise of discretion did not miscarry, and there was no substantial injustice warranting a grant of leave to appeal.
The Court dismissed the application for leave to appeal, reinforcing the decision of the Tribunal that Abbott Builders should be allowed to be legally represented. The Court made orders accordingly, confirming the dismissal of the appeal.
Orders
Orders of the court
1. The application for leave to appeal 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
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.