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Kg Restorations Paint and Panel v Burrows

Kg Restorations Paint and Panel v Burrows

Case [2014] QCATA 31 3 March 2014

Appeal

Standing

Natural Justice & Procedural Fairness

Civil Litigation & Procedure

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CITATION:

KG Restorations Paint and Panel v Burrows [2014] QCATA 031

PARTIES:	Karl Grice (t/a KG Restorations Paint and Panel) (Appellant)
v
Jasper George Burrows (Respondent)

APPLICATION NUMBER:

APL455-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr Forbes, Member

DELIVERED ON:

3 March 2014

DELIVERED AT:

Brisbane

ORDER MADE:

Leave to appeal is refused

CATCHWORDS:

APPEAL – MINOR CIVIL CLAIM – damages for conversion by bailee and order for repayment of moneys had and received – order allowing claimant to be legally represented – respondent/appellant unrepresented – whether order for representation a denial of natural justice – whether appellant consented to order for representation – order discretionary and procedural – substantive decision unchallenged – whether leave to appeal should be granted – leave refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 32
Disposal of Uncollected Goods Act 1967 (Qld) ss 5 - 9

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25, cited

Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14, cited

Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359, cited
Evans v Bartlam [1937] AC 473, cited

Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330, cited
Kenny v Ritter (2009) 52 MVR 360; [2009] SASC 139, cited
Grey v City of Marion (2006) 159 A Crim R 357; [2006] SASC 3, cited
In Re W (an infant) [1971] AC 682
International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332, cited
London Borough of Hounslow v Twickenham Garden Developments Ltd [1973] 3 All ER 326, cited

MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, cited
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16, cited

Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129; [1999] FCA 85, cited
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257, cited
R v Secretary of State for the Home Department; Ex parte Mughal [1974] QB 313, cited
R v White; R v Piggin (2003) 7 VR 442; [2003] VSCA 174, cited

Reisner v Bratt [2004] NSWCA 22, cited

Robinson v Corr [2011] QCATA 302, cited
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

In August 2011[1] the respondent (Burrows) was the proud owner of a vintage motor car, known as an HG Brougham. The appellant (Grice) conducted a car restoration business at Neumann Road, Capalaba, Brisbane.
[1]Transcript of hearing 20 September 2013 (“Transcript”) page 51 line 33 (Grice).
Burrows was keen…

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 Kg Restorations Paint and Panel v Burrows

Details

AGLC: KG Restorations Paint and Panel v Burrows [2014] QCATA 31
Case: [2014] QCATA 31
Decision Date: 3 March 2014

CaseChat Overview and Summary

The case of Kg Restorations Paint and Panel v Burrows involved a dispute between a claimant and a bailee regarding damages for conversion and repayment of moneys had and received. The matter was heard in the Federal Circuit and Family Court of Australia, with the court addressing issues of procedural fairness and the appropriate standard of review for the decision to allow legal representation. The respondent, who was also the appellant, contested the decision of the lower court which had ordered that the claimant could be legally represented in the proceedings.

The central legal issues before the court were whether the order permitting the claimant to be legally represented constituted a denial of natural justice, and whether the appellant had consented to the order. The court had to determine whether the decision to allow legal representation was a discretionary procedural decision, and if so, whether the appropriate standard of review was correctness or whether the decision was patently erroneous. The substantive decision regarding damages for conversion and repayment of moneys had and received was not challenged on appeal.

The court held that the decision to allow the claimant to be legally represented was a procedural matter, and the standard of review for such decisions was whether the decision was patently erroneous. The court found that the appellant had not demonstrated that the decision to allow legal representation was patently erroneous and that the appellant had not contested the order at the relevant time. The court further held that there was no denial of natural justice in the order, as the appellant had not demonstrated any prejudice resulting from the order. Consequently, the court refused the appellant's application for leave to appeal the decision of the lower court.

Orders