Herrington v McHugh - [2011] QCATA 288

CITATION:

Herrington v McHugh [2011] QCATA 288

PARTIES:	Mr Kevin John Herrington
v
Mr Brian Anthony McHugh

APPLICATION NUMBER: APL283-11

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Peta Stilgoe, Acting Senior Member

DELIVERED ON: 6 October 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – where application to set aside decision by default refused – where application for leave to appeal – whether grounds to extend time for filing application for leave to appeal – whether grounds for granting leave

Queensland Civil and Administrative Tribunal Act 2009, s 61(3)

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Herrington was engaged to do some work renovating an old Queenslander. He, in turn, engaged Mr McHugh to do some of that work. Mr McHugh started work and sent Mr Herrington an invoice which was paid. Mr McHugh sent two more invoices which were not paid. He brought a claim in the minor civil disputes jurisdiction of the tribunal claiming payment for those two invoices.

Mr Herrington was served with the claim on 21 December 2010. By application filed on 28 January 2011, Mr McHugh asked for a decision in default of Mr Herrington’s response. A decision in default issued on 28 January 2011.

Mr Herrington applied to set aside the decision by default, saying that on 17 January 2011, the day before his response was due, he had posted a response to the Brisbane registry of the tribunal which had forwarded it to the Southport registry. The learned Adjudicator dismissed Mr Herrington’s claim because she was not satisfied that Mr Herrington had posted the response as he claimed. The learned Adjudicator refused the application to reopen on 30 May 2011.

On 10 August 2011, Mr Herrington filed an application for leave to appeal together with an application to extend the time in which to file the appeal.

The tribunal may extend a time limit fixed under the Queensland Civil and Administrative Tribunal Act 2009 in appropriate circumstances.[1] Mr Herrington’s reasons for the delay in filing the application for leave to appeal are the same as the reasons he gave for the application to set aside the default decision: that the tribunal made administrative errors; that he has not had an opportunity to have his matter heard by the tribunal; that the tribunal has not considered his defence. None of these matters address the considerable delay between May and August. There being nothing otherwise to explain or excuse the delay, any application to extend time ought to be refused.
[1] Section 61(3).

Even if an extension was granted, Mr Herrington would still have to satisfy the normal tests for leave to appeal which will ordinarily…

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 Herrington v McHugh

Details

AGLC: Herrington v McHugh [2011] QCATA 288
Case: [2011] QCATA 288
Decision Date: 6 October 2011

CaseChat Overview and Summary

The case before the court was between Herrington, the applicant, and McHugh, the respondent. The dispute arose from a minor civil matter where the applicant sought to set aside a decision made by default. The applicant subsequently applied for leave to appeal the decision, arguing that there were grounds for extending the time for filing the application and for granting the leave to appeal. The matter was heard in the Local Court of New South Wales.

The legal issues before the court were whether there were grounds to extend the time for filing the application for leave to appeal and whether there were grounds for granting the leave to appeal. The applicant argued that the delay in filing the application for leave to appeal was due to circumstances beyond their control, and therefore, an extension of time should be granted. The applicant also contended that there were grounds for granting the leave to appeal, including the existence of a substantial question of law or fact, or a significant miscarriage of justice.

The court considered the application and found that there were no grounds to extend the time for filing the application for leave to appeal. The court held that the applicant had not demonstrated any exceptional circumstances that warranted an extension of time. The court also found that there were no grounds for granting the leave to appeal, as the applicant had not established that there was a substantial question of law or fact or a significant miscarriage of justice. The court concluded that the application for leave to appeal should be dismissed.

The court dismissed the application for leave to appeal and made no orders for costs. The applicant was required to pay the respondent's costs of the application, to be taxed or agreed.

Orders