James v Tottman - [2021] QCATA 90

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

James v Tottman [2021] QCATA 90

PARTIES: ADAM JAMES

(applicant/appellant)

v

GREG TOTTMAN

(respondent)

APPLICATION NO:

APL230-20

ORIGINATING APPLICATION NO:

BDL120-18

MATTER TYPE:

Appeals

DELIVERED ON:

11 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

1. The application for miscellaneous matters filed on 21 January 2021 (seeking release of evidence sealed under Tribunal order) is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where party seeks leave to obtain electronic document sealed under order for use in appeal proceeding – where certain evidence inadmissible due to operation of statute – where electronic document was received at a compulsory conference – where statutory distinction between an appeal on a question of law in a strict sense and an appeal including rehearing with or without additional evidence – where statutory limitation to admission of additional evidence – where party seeking to adduce additional evidence on appeal failed to attend hearing at first instance – consideration of nature and effect of additional evidence in appeal proceeding – consideration of nature and purpose of appeal proceeding – whether it is in the interests of justice to allow a party to access documents sealed under order – where party’s submissions inconsistent with facts

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 45, s 74(1), s 74(2), s 142, s 146, s 147

Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175

Creek v Raine & Horne Mossman [2011] QCATA 226
Ericson v Queensland Building Services Authority [2013] QCA 391
Harrison & Anor v Meehan [2017] QCA 315

Urquhart T/as Hart Renovations v Partington [2016] QCA 087

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)

REASONS FOR DECISION

Adam James filed an application for leave to appeal or appeal a decision of the Tribunal made on 26 May 2020 in proceeding BDL120-18.
The stated grounds of appeal are three-fold. Doing the best I can, based on the application, they are briefly summarised as follows:
(i)      An alleged error of law in failing to consider that Mr Tottman has the benefit of the works at no cost and by ‘windfall’ and been unjustly enriched;
(ii)      An alleged error of law in failing to take into account the cost of materials; and
(iii)     An alleged error of fact and law in, it appears, failing to consider whether Mr Tottman failed to mitigate his loss by watering turf as instructed.
On 11 May 2021, I refused an interlocutory application by the applicant, Mr Adam James, to access an electronic document stored on a USB which had been sealed under a Tribunal order in proceeding BDL120-18. Mr James has requested reasons for my decision. My reasons follow.

Background

In May 2018, Greg Tottman, filed an application for domestic building dispute in…

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 James v Tottman

Details

AGLC: James v Tottman [2021] QCATA 90
Case: [2021] QCATA 90
Decision Date: 11 May 2021

CaseChat Overview and Summary

In the matter of James v Tottman, the appellant sought leave to obtain an electronic document that was sealed under an order of the Tribunal for use in the appeal proceeding. The dispute originated from an earlier decision made by the Tribunal, and the appellant now aimed to adduce additional evidence that was not previously available at the time of the first instance hearing. The respondents opposed the application, arguing that the statutory framework governing the appeal process precluded the admission of such evidence. The case was heard in the appellate court, which was tasked with determining whether the appellant's application should be granted.

The central legal issue before the court was whether it was permissible to admit additional evidence in an appeal proceeding, given the statutory constraints and the established principles governing appeals. Specifically, the court had to consider the statutory distinction between an appeal strictly on a question of law and an appeal that included a rehearing with or without additional evidence. The court was also required to assess whether the appellant's failure to attend the initial hearing at first instance impacted their ability to introduce new evidence on appeal. Furthermore, the court needed to balance the nature and effect of the additional evidence against the purpose and nature of the appeal proceeding to determine if it was in the interests of justice to allow the appellant to access the sealed documents.

Upon reviewing the statutory provisions and the established case law, the court found that the statutory limitation on the admission of additional evidence applied in this case. The court noted that the appellant's submissions were inconsistent with the facts, and their failure to attend the initial hearing at first instance further complicated their position. Consequently, the court concluded that it was not in the interests of justice to permit the appellant to adduce the additional evidence. The court refused the application for miscellaneous matters filed on 21 January 2021, which sought the release of evidence sealed under the Tribunal order.

The court's decision was grounded in the statutory framework governing the appeal process and the established principles that limit the scope of evidence that can be introduced on appeal. By refusing the application, the court upheld the integrity of the appeal process and ensured that the statutory constraints on the admission of additional evidence were respected. The court's ruling reinforced the importance of adhering to the procedural rules and the need for parties to present their cases comprehensively at the first instance to avoid complications in subsequent appeal proceedings.

Orders

Orders of the court

1. The application for miscellaneous matters filed on 21 January 2021 (seeking release of evidence sealed under Tribunal order) is 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:	James v Tottman [2021] QCATA 90
PARTIES:	ADAM JAMES
(applicant/appellant)
v
GREG TOTTMAN
(respondent)
APPLICATION NO:	APL230-20
ORIGINATING APPLICATION NO:	BDL120-18
MATTER TYPE:	Appeals
DELIVERED ON:	11 May 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Howard
ORDERS:	1. The application for miscellaneous matters filed on 21 January 2021 (seeking release of evidence sealed under Tribunal order) is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where party seeks leave to obtain electronic document sealed under order for use in appeal proceeding – where certain evidence inadmissible due to operation of statute – where electronic document was received at a compulsory conference – where statutory distinction between an appeal on a question of law in a strict sense and an appeal including rehearing with or without additional evidence – where statutory limitation to admission of additional evidence – where party seeking to adduce additional evidence on appeal failed to attend hearing at first instance – consideration of nature and effect of additional evidence in appeal proceeding – consideration of nature and purpose of appeal proceeding – whether it is in the interests of justice to allow a party to access documents sealed under order – where party’s submissions inconsistent with facts Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 45, s 74(1), s 74(2), s 142, s 146, s 147 Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 Creek v Raine & Horne Mossman [2011] QCATA 226 Ericson v Queensland Building Services Authority [2013] QCA 391 Harrison & Anor v Meehan [2017] QCA 315 Urquhart T/as Hart Renovations v Partington [2016] QCA 087
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)