Gillham v Kernohan Construction Pty Ltd - [2023] QCATA 64

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gillham v Kernohan Construction Pty Ltd [2023] QCATA 64

PARTIES:

AUSTIN GILLHAM

(applicant/appellant)

v

KERNOHAN CONSTRUCTION PTY LTD

(respondent)

APPLICATION NO/S:

APL191-19

ORIGINATING APPLICATION NO/S:

BDL116-15

MATTER TYPE:

Appeals

DELIVERED ON:

31 May 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Howe

ORDERS:

1. The application to extend a time limit filed 19 April 2022 is refused.

2. The application for reopening, correction, renewal or amendment filed 19 April 2023 is dismissed.

CATCHWORDS:

PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the appellant filed an application for correction alleging error in Appeal Tribunal calculations of damages and interest – where the application for correction is filed out of time – where the factors affecting whether to grant an extension of time include the length of delay, the adequacy of explanation for delay, the merits of the proceeding, prejudice to others and the interests of justice – where the appellant provided no explanation for the late application

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61(1), s 135

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 90(b)

Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70

Sands v McDougall & The Commissioner for Taxation (1999) 2 VR 114

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)

Applicant:

Queensland Legal

Respondent:

Bathersby Legal

REASONS FOR DECISION

On 14 January 2022 the Appeal Tribunal gave its decision in the appeal.[1]
[1]Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19.
The applicant has applied to have the decision corrected.
Section 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides as follows:
135 Tribunal may correct mistake
(1)The tribunal may correct a decision made by it in a proceeding if the decision contains—
(a)       a clerical mistake; or
(b)       an error arising from an accidental slip or omission; or
(c)a material miscalculation of figures or a material mistake in the description of a matter, person or thing mentioned in the decision; or
(d)       a defect of form.
(2)The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
(3)An application under subsection (2) must be made within the period, and in the way, stated in the rules.
(4)A party can not make an application under subsection (2) in relation to a decision the subject of an appeal, or an application for leave to appeal, under part 8.
(5)Subsection (4) applies whether or not the appeal or application has been decided.
An application for correction must be filed within 28 days after a party receives the decision.[2]
[2]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 90(b), Schedule.
By s 61(1) of the QCAT Act the Tribunal may:
(a)extend a time limit…

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.

Continue reading Gillham v Kernohan Construction Pty Ltd

Details

AGLC: Gillham v Kernohan Construction Pty Ltd [2023] QCATA 64
Case: [2023] QCATA 64
Decision Date: 31 May 2023

CaseChat Overview and Summary

In the matter of Gillham v Kernohan Construction Pty Ltd, the court was tasked with determining whether the appellant, who had filed an application for correction in relation to errors in the Appeal Tribunal's calculations of damages and interest, was entitled to an extension of time for filing this application. The appellant argued that the Appeal Tribunal had made mathematical errors that necessitated correction. The respondent, however, contended that these issues should have been raised in the appeal and that they go to the substance of the Appeal Tribunal's decision. The primary issue for the court was whether the appellant's application for an extension of time to file the application for correction should be granted, considering the length of the delay, the adequacy of the explanation for the delay, the merits of the proceeding, the potential prejudice to others, and the interests of justice.

The court considered several factors in deciding whether to grant an extension of time. Firstly, the length of the delay, which was just over 7 weeks, was significant and weighed against extending time. Secondly, the appellant provided no explanation for the delay in filing the application, which also weighed against extending time. Thirdly, regarding the merits of the application, the court found that the issues raised by the appellant were not properly the subject of correction and should have been raised in the appeal. Lastly, the court noted that the applicant's complaints about the Appeal Tribunal's decision did not meet the strict criteria for a slip rule correction, which requires that no real difference of opinion can exist about the error and the correction claimed.

The court ultimately concluded that the application to extend time should be refused, and the application for correction was dismissed. The court held that the appellant's failure to explain the delay and the significant length of the delay were critical factors. Additionally, the merits of the application, which should have been raised in the appeal, and the strict criteria for a slip rule correction further supported the decision. The court's reasoning and decision were based on the established factors for extending time and the specific circumstances of this case.

The court ordered that the application to extend the time limit filed on 19 April 2022 was refused, and the application for reopening, correction, renewal, or amendment filed on the same date was dismissed. This decision upheld the importance of adhering to procedural timelines and the necessity for clear and timely explanations for any delays in legal proceedings.

Orders

Orders of the court

1. The application to extend a time limit filed 19 April 2022 is refused.

2. The application for reopening, correction, renewal or amendment filed 19 April 2023 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

The applicant had the opportunity to pursue other avenues if he asserts error in the decision. He has not done so. In our view, this is not a factor weighing in favour of allowing the application for correction.Conclusion There has been a failure by the applicant to explain the delay in the filing of the applicant. Nor does a consideration of the other factors to which we have referred persuade us that this is a case in which an extension of time to file the application for correction should be permitted. The application to extend time is refused. The application for correction is dismissed.

Ratio Decidendi

Legal Principle Established

In Harper Property Builders Pty Ltd v Queensland Building and Construction Commission[3] the Appeal Tribunal said the following regarding the relevant considerations in extending time to file an application to review a decision:Whilst recognising that the discretion to extend time is unfettered (except to the extent that s 61 of the QCAT Act precludes such an extension when it would cause prejudice or detriment, that could not be remedied by an appropriate order for costs or damages), the following matters have been recognised … as particularly relevant considerations in such exercises:(a) the length of the delay;(b) the adequacy of explanation for the delay;(c) the merits of the proceeding sought to be litigated;(d) prejudice to others; and(e) the interests of justice (sometimes expressed as ‘general considerations of fairness’).[4]Consideration[3][2018] QCATA 70.[4]Ibid at [26].a. Length of the delay The application for correction was filed 50 days, or just over 7 weeks, late. The delay is significant in the context of an application to correct a final decision. Such an application should be brought promptly. This factor weighs against extending time. b. Adequacy of the explanation for the delay There has been no attempt by the applicant to explain the delay in the filing of the application. This factor weighs against extending time.c. The merits of the application The applicant says that the decision of the Appeal Tribunal adopts mathematical errors in the decision at first instance requiring correction. The respondent says that the matters complained of by the applicant are not properly the subject of correction but go to the substance of the Appeal Tribunal decision. The matters complained of by the applicant should, in our view, have been raised in the appeal. The applicant points to four errors:(a)Allowance for variation 1. At first instance the Tribunal allowed the respondent $78,323.65 in respect of contractual variations. On appeal, we found that the respondent was not entitled to recover any amount for variation 1. The amount of the variation, $10,773.84, was required to be deducted from the amount to which the respondent was entitled. A further amount of $38.94 was also conceded by the respondent. The total reduction in the respondent’s contractual entitlement to remuneration was $10,812.78. We are unable to discern precisely what the applicant’s complaint is in relation to this item.(b)Allowance for Scott Schedule item 32. The error in the calculations at first instance asserted by the applicant is $10.89. The item was not the subject of appeal. We are not persuaded that there was any error requiring correction in respect of (a), (b) and (c) above. In relation to (d) and the calculation of interest, the applicant must establish that an error was made and that the error and the correction claimed are matters about which no real difference of opinion can exist.[5] In Sands v McDougall & The Commissioner for Taxation[6] Brooking JA stated:[5]Valleyfield P/L v Primac Ltd & Anor [2002] QSC 134. [6](1999) 2 VR 114.We have heard a good deal of argument about what is and what is not comprehended by the slip rule, to which I now return. One of the difficulties - and it is a difficulty often encountered in considering what was said in previous decisions - lies in determining whether the court, in describing the state of affairs which in its view existed, is formulating a test which must be met or merely speaking of the facts of the given case, which in its view are enough to warrant relief. For example, in Hatton v Harris[1892] A.C. 547 Lord Herschell said at 558, `I cannot doubt that the correction would at once have been made' if the matter had been drawn to the attention of the judge who made the decree. In Storey & Keers Pty. Ltd. v Johnstone(1987) 9 N.S.W.L.R. 446 at 453 McHugh J.A. accepted this as laying down what was in general the test.In L. Shaddock & Associates Pty. Ltd. v Parramatta City Council (No. 2)[1982] HCA 59; (1982) 151 C.L.R. 590 at 593 the court said:We have no doubt that, if the matter had been adverted to in this Court and this Court possessed power to make such an award of interest, it would have made it.In Tak Ming Co. Ltd. v Yee Sang Metal Supplies Co. [1973] 1 W.L.R. 300 at 304; [1973] 1 All E.R. 569 at 572 the Judicial Committee referred to the determination of the primary judge (`I am in no doubt whatever ... that I would have made an award of interest') and observed that on the basis of that explanation the slip rule had been brought into operation.In Commonwealth v McCormack[1984] HCA 57; (1984) 155 C.L.R. 273 at 277 the court said:If the matter had been raised on the hearing of the appeals, such an order would have been made as of course ...In Elyard Corporation Pty. Ltd. v DDB Needham Sydney Pty. Ltd.(1995) 61 F.C.R. 385 Lockhart J., with whose judgment Black C.J. concurred, said at 390-1:The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy ...Counsel for the appellants and for the respondent invited us to adopt that test. The test commends itself to me and I think it should be adopted.