Hicks v Lovett (No. 2) - [2021] QCATA 21

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hicks v Lovett (No. 2) [2021] QCATA 21

PARTIES:

DANNY HICKS
(appellant)

v

DANIEL LOVETT

(respondent)

APPLICATION NO/S:

APL084-20

ORIGINATING APPLICATION NO/S:

MCDO 47/19

MATTER TYPE:

Appeals

DELIVERED ON:

10 February 2021

HEARING DATE:

2 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The Orders made on 5 March 2020 are set aside.

4.   The proceedings are remitted to an Adjudicator for rehearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – leave to appeal – where Tribunal improperly constituted – where reconstituted Tribunal did not address or make findings about critical issue from original appeal - where reconstituted Tribunal failed to provide adequate reasons for decision – where parties must be satisfied that Tribunal has given them answer to their issues – where reconstituted Tribunal did not set out law being applied – where failure to give adequate reasons amounted to denial of procedural fairness – where errors of law for which leave should be granted to correct substantial injustice

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 121, s 143, s 146, s 147, s 165, s 166, s 167, s 168

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Body Corporate for Rosegum Villas v Queensland Building and Construction Commission [2015] QCATA 125
Cachia v Grech [2009] NSWCA 232
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Hicks v Lovett [2019] QCATA 179
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Mistero Pty Ltd v Cann [2017] QCATA 56
Phu v NSW Department of Education and Training [2010] NSWADTAP 76
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES & REPRESENTATION:

Appellants:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION
What is this appeal about?

On 13 August 2019, Member Howe sitting as the Appeal Tribunal[1] made these Orders:
1.Application to adduce fresh evidence at Appeal is refused.
2.Leave to appeal granted.
3.Appeal allowed.
4.The matter is returned to the same tribunal of Justice of the Peace for reconsideration with the hearing of additional evidence as necessary.
[1]Hicks v Lovett [2019] QCATA 179.
On 5 March 2020, the matter was reheard. Unfortunately – and contrary to the Appeal Tribunal’s Orders – it was not by the same tribunal, as one of the sitting Justices of the Peace noted:
JP: Okay. What happened was a decision was made by a differently constituted tribunal, of which I was not a member, previously. This has been appealed. The appeal has been upheld. We’re now rehearing it. It’s been sent back to us for rehearing. So what I’m going to be asking everybody who…

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 Hicks v Lovett (No. 2)

Details

AGLC: Hicks v Lovett (No. 2) [2021] QCATA 21
Case: [2021] QCATA 21
Decision Date: 10 February 2021

CaseChat Overview and Summary

The case of Hicks v Lovett (No. 2) involved an appeal against a decision of a reconstituted tribunal. The appellants, Hicks and others, sought leave to appeal against the decision of the tribunal which had been made after the original tribunal was found to be improperly constituted. The respondents, Lovett and others, opposed the application for leave to appeal on the basis that the issues raised had already been determined by the original tribunal.

The central legal issues before the court were whether the appellants had established grounds for leave to appeal and whether the appeal should be allowed. Specifically, the court needed to determine whether the errors made by the reconstituted tribunal amounted to substantial injustice and whether there was a denial of procedural fairness. The appellants argued that the tribunal had failed to address a critical issue from the original appeal, had not provided adequate reasons for its decision, and had not set out the law being applied. The respondents contended that the appellants had not identified any new grounds for appeal and that the issues had already been determined.

The court found that the appellants had established grounds for leave to appeal. The reconstituted tribunal had failed to address or make findings about a critical issue from the original appeal, and had not provided adequate reasons for its decision. The court held that the failure to give adequate reasons amounted to a denial of procedural fairness and that the errors of law for which leave should be granted to correct substantial injustice. The court also found that the reconstituted tribunal had not set out the law being applied, which was a further error of law. As a result, the court granted leave to appeal, allowed the appeal, set aside the orders made on 5 March 2020, and remitted the proceedings to an Adjudicator for rehearing.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The Orders made on 5 March 2020 are set aside.

4. The proceedings are remitted to an Adjudicator for rehearing.

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:	Hicks v Lovett (No. 2) [2021] QCATA 21
PARTIES:	DANNY HICKS (appellant)
v
DANIEL LOVETT (respondent)
APPLICATION NO/S:	APL084-20
ORIGINATING APPLICATION NO/S:	MCDO 47/19
MATTER TYPE:	Appeals
DELIVERED ON:	10 February 2021
HEARING DATE:	2 February 2021
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed. 3. The Orders made on 5 March 2020 are set aside. 4. The proceedings are remitted to an Adjudicator for rehearing.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – leave to appeal – where Tribunal improperly constituted – where reconstituted Tribunal did not address or make findings about critical issue from original appeal - where reconstituted Tribunal failed to provide adequate reasons for decision – where parties must be satisfied that Tribunal has given them answer to their issues – where reconstituted Tribunal did not set out law being applied – where failure to give adequate reasons amounted to denial of procedural fairness – where errors of law for which leave should be granted to correct substantial injustice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 121, s 143, s 146, s 147, s 165, s 166, s 167, s 168 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Body Corporate for Rosegum Villas v Queensland Building and Construction Commission [2015] QCATA 125 Cachia v Grech [2009] NSWCA 232 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hicks v Lovett [2019] QCATA 179 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Mistero Pty Ltd v Cann [2017] QCATA 56 Phu v NSW Department of Education and Training [2010] NSWADTAP 76 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
APPEARANCES & REPRESENTATION:
Appellants:	Self-represented
Respondent:	Self-represented