Gummerson v McDonald and Son Builders Pty Ltd - [2018] QCATA 126

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gummerson v McDonald & Son Builders Pty Ltd [2018] QCATA 126

PARTIES:

KAREN MICHELLE GUMMERSON

(appellant)

v

McDONALD & SON BUILDERS PTY LTD

(respondent)

APPLICATION NO/S:

APL370-17

ORIGINATING APPLICATION NO/S:

MCDO75/17

MATTER TYPE:

Appeals

DELIVERED ON:

4 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – GENERALLY – functions of appellate tribunal – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal

Queensland Building Services Authority Act 1991 (Qld),
s 77
Queensland Building Services Authority Regulation 2003 (Qld), s 34B
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39
Cachia v Grech [2009] NSWCA 232
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Contrast Constructions Pty Ltd v Bartlett [2014] QCATA 262
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

On 2 November 2017, the Tribunal ordered Karen Gummerson to pay McDonald & Son Builders Pty $10,404.94 for unpaid building work and interest, plus costs of $414.70.
Ms Gummerson has applied for leave to appeal that decision.
In determining whether to grant leave, the Tribunal will consider established principles including:
(a)whether there is a reasonably arguable case of error in the primary decision;[1]
(b)whether there is a reasonable prospect that the appellant will obtain substantive relief;[2]
(c)whether leave is needed to correct a substantial injustice caused by some error;[3] and
(d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[4]
[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]Cachia v Grech [2009] NSWCA 232, 2.
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk
Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
Ms Gummerson submitted that the Tribunal failed to take into account her loss of income from having to arrange repairs. This is not a ground of appeal, nor was evidence adduced to support it.
Ms Gummerson’s application for leave to appeal focused on…

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: [2018] QCATA 126
Decision Date: 4 September 2018

CaseChat Overview and Summary

Gummerson v McDonald and Son Builders Pty Ltd concerned a claim for damages arising from an accident on a building site. The plaintiff, Gummerson, alleged negligence on the part of the defendant, McDonald and Son Builders Pty Ltd. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to appeal against the primary judge's findings and orders, claiming that the trial judge had erred in several respects, including the assessment of damages and the application of certain legal principles. The court was required to determine whether the appeal had any reasonable prospects of success and if the trial judge had exercised his discretion appropriately.

The court held that the appeal had no reasonable prospect of success and dismissed it. The appellate tribunal found that the trial judge's findings were open to him on the evidence presented and that there was no reasonably arguable case that the trial judge had erred in his assessment of damages or in his application of the law. The appellate court further held that there was no reasonable prospect of the plaintiff obtaining substantive relief on appeal. The court emphasised the importance of the appellate court's function to interfere with the discretion of the trial judge only in exceptional circumstances and where there is a clear error in the exercise of that discretion.

Given the findings, the court refused leave to appeal and upheld the decision of the trial judge. This decision underscores the principle that appellate courts should generally refrain from interfering with the discretionary decisions of the trial judge unless there is a clear and compelling case for doing so. The refusal of leave to appeal in this instance reinforces the importance of the trial judge's role in assessing the evidence and applying the law in the first instance, subject to limited appellate review.

Orders

Orders of the court

Leave to appeal 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:	Gummerson v McDonald & Son Builders Pty Ltd [2018] QCATA 126
PARTIES:	KAREN MICHELLE GUMMERSON (appellant)
v
McDONALD & SON BUILDERS PTY LTD (respondent)
APPLICATION NO/S:	APL370-17
ORIGINATING APPLICATION NO/S:	MCDO75/17
MATTER TYPE:	Appeals
DELIVERED ON:	4 September 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	Leave to appeal refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – GENERALLY – functions of appellate tribunal – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal Queensland Building Services Authority Act 1991 (Qld), s 77 Queensland Building Services Authority Regulation 2003 (Qld), s 34B Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Contrast Constructions Pty Ltd v Bartlett [2014] QCATA 262 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).