Hopkins v Queensland Building Services Authority

[2004] QDC 503

[2004] QDC 503

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 629 of 2004

MURRAY HOPKINS	Applicant
and
QUEENSLAND BUILDING SERVICES AUTHORITY	Respondent

SOUTHPORT

..DATE 30/11/2004

ORDER

CATCHWORDS: Commercial and Consumer Tribunal Act 2003, s.52, s.100 - Uniform Civil Procedure Rules r 16, r 371, r 748,
r 786 - application for leave to appeal decision of Commercial and Consumer Tribunal made within 28 day appeal period limited by s.100(3) - whether leave must be obtained and appeal instituted within the 28 days - whether only the Tribunal can extend time - whether r 371 allows application to be treated as an appeal, despite applicant's failure to use the approved Form 97, Notice of Appeal subject to leave.

HIS HONOUR: This is an originating application filed six weeks ago on the 18th of October 2004 seeking leave pursuant to s.100 of the Commercial and Consumer Tribunal Act 2003 to appeal a decision of the Commercial and Consumer Tribunal dated 13 September 2004.

The effective date of that decision, it appears, is taken to be the 21st of September 2004, a matter of some significance since s.100(3) provides that an appeal must be filed within 28 days after the relevant decision takes effect.

By subsection(1), an appeal is available only with the Court's leave and only on the ground of error of law or excess or want of jurisdiction.

The applicant, although the application was served on the respondent Queensland Building Services Authority some time ago, has learned only today at Court that the Authority raises technical objection to the proceeding.

The root of the objection is that what has been filed is not an appeal. Mr Davis relies on Jiminex v Jayform Contracting Pty Ltd [1993] 1 QdR 610 and Beggs v Mellor [1969] QWN44, in support of the proposition that leave of the kind applied for here must be obtained within the time limited for the filing of a notice of appeal, so that the appeal itself may be filed within the appeal period.

It may well be that this Court lacks any ability to extend the 28 day period given that it is fixed by the statute.  Compare the situation under Rule 748, which provides a catch-all time limit for appeals in respect of which time is not otherwise limited.

The authorities cited contemplate a somewhat inconvenient procedure whereby the tribunal appeal from, rather than the appellate court, may be the proper venue for obtaining an extension of time for appealing should one be necessary. Section 52 of the Act appears to give the tribunal that jurisdiction. It may be that a refusal of an extension could then be appealed under section 100, depending on the circumstances.

Mr Davis' argument relies on Rules 784 and 786 which require that an appeal such as that which the applicant wishes to bring must be started by filing a notice of appeal in the court, which notice of appeal must be in the approved form; by Rule 786(5) there is a special "notice of appeal subject to leave" which is the appropriate one here.
Both a conventional notice of appeal and a notice of appeal subject to leave are recognised in the UCPR as ways of starting a proceeding, see Rule 8. The familiar provisions in Rule 13 and 14 which permit proceedings incorrectly stated by claim or application to advance as if started by the other process do not apply here. Rule 16 deals with originating process in general, but, typically, by defining circumstances in which an originating process may be disposed of. I am not sure that (i) helps. Although its language is wide enough, it may well be that its application must be ancillary to something dealt with by the preceding paragraphs.

My own inclination is to regard the situation which has arisen as within Rule 371, the applicant having failed to comply with the rules which, as Mr Davis says, make specific provision as to the way in which he should have invoked the jurisdiction of the court.
The material filed in support of the originating application goes a considerable distance towards providing the material which would have been included had Form 97 been adopted, as it should have been. 

Exhibit 1 to Mr Brown's affidavit is entitled and sets out "grounds of appeal" and the orders sought, which are that 1) the Court uphold the appeal, 2) the Court sets aside the Tribunal's decision to affirm the decision of the Authority, 3) costs and 4) any further or other order that the Court sees fit. 

It is perhaps pertinent at this stage to note s.100(8) which, on the face of it, makes it a hopeless cause for an appellant to seek costs. The proper meaning and application of that strange provision are yet to be worked out.

Mr Davis, anxious to protect a more general interest of his client, which is often an appellant, urged the Court not to make the costs order which he submits his client should gain today one based on s.100(8).

I understand that in at least one instance, the provision has been used to require a successful appellant to pay the costs of an unsuccessful respondent which, depending on the circumstances, may be a difficult or unattractive outcome to justify.

Without the benefit of hearing submissions, I would be inclined to think the section goes no further than precluding an award of costs to an appellant.

It will be clear from the foregoing that my inclination is to accept what the applicant has done as an appeal, but the view is necessarily provisional; there has not been full argument about it.

Mr Davis' approach accepts that in the absence of any guidance in the Act outside s.100 as to how one appeals, the UCPR provide the answer.

I have not mentioned this in the discussion that has occurred with counsel, but the thought occurs to me that Court of Appeal decisions giving an extraordinarily wide meaning to the term "action" (and in the context of providing appeal rights thereby to those whose right is dependent on there being an action) may at least by analogy, be applicable here. See Wynch v Ketchell [2002] 2 QdR 560.

In other words, what the applicant has done may be identified as an appeal. 

The Court respects the approach taken by the applicant of seeking an adjournment of the application without the court's determining any issues.  It does no favour to the applicant for the court, as I am inclined to do, to proceed regardless on some heroic or experimental or contrived basis which may ultimately be determined to be incorrect.

Mr Hopkins, who, after all, is proceeding in support of his ability to act as a builder on his own account as he used to do before certain troubles supervened would not wish to win a battle today but ultimately lose the war.  Understandably, Mr Murdoch wishes to have time to consider the matter rather than have to make decisions and advise his client on the run.

In the circumstances, the application will be adjourned to a date to be fixed.

I agree with Mr Murdoch that costs ought to be reserved, but note Mr Davis' submission that ordinary on principles, the applicant should have to pay his client's costs of today on the basis that he has come ready to deal with the matter and been forced to face an adjournment.  The Authority's attitude was to agree to the adjournment provided it was accompanied by an offer of costs.

Mr Davis' alternative suggestion was that it be ordered that the applicant pay his client's costs in the event of dismissal of the application or the dismissal of any appeal.  One or other of those outcomes may result from the court's reserving costs today.  The principal reason for my doing so is that, from the applicant's point of view in any event, he has been ambushed today; no reason appears why the preliminary point which has concerned us could not have been advised earlier.

So, application adjourned to a date to be fixed.

Costs reserved.

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