Lindgren v Aaron Trigg Painting - [2011] QCATA 267

CITATION:

Lindgren v Aaron Trigg Painting [2011] QCATA 267

APPELLANT:	Paula Catharina Lindgren (Applicant/Appellant)
v
RESPONDENT:	Aaron Trigg Painting (Respondent)

APPLICATION NUMBER:

APL022-11

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Fleur Kingham, Acting President

DELIVERED ON:

24 January 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Applicant is granted leave to apply for leave to appeal or appeal the Minor Civil Dispute decision in claim number 55-110 heard in Nambour.

2. The application made in case number APL206-10 is accepted as that application and will proceed under case number APL022-11 and

(a) Any procedural requirements in relation to filing a further application are waived; and

(b) All material filed by either party in APL206-10 is accepted as material filed in case number APL022-11.

3. The applicant will file in the registry one copy and deliver to the respondent one copy of her written submissions in support of the application for leave to appeal (and if successful in that application in support of the appeal), by 4.00pm on 14 February 2011.

4. If the applicant complies with the direction in paragraph 3, the respondent may file in the registry one copy and deliver to the applicant one copy of its submissions in reply to both the application for leave to appeal and in support of the appeal within 21 days after receipt of the applicant’s submissions.

5. If the applicant does not comply with the direction in paragraph 3, the Tribunal will proceed to determine the application on the papers.

CATCHWORDS:

APPEAL – Where application dismissed for non-compliance – where reasonable excuse – whether reopening available – leave granted to bring fresh application for leave to appeal and directions made

Queensland Civil and Administrative Tribunal Act 2009, ss 28, 48, 49, 136

REASONS FOR DECISION

Ms Lindgren applied for leave to appeal a decision made in a Minor Civil Dispute matter heard in Nambour in August 2010. She did not comply with directions made on 21 October 2010 to file submissions in support of her application for leave to appeal, and if successful in that application, in support of her appeal. Those directions provided that if she did not do so, her application would be dismissed without further notice. On 16 November 2010, after the date for compliance, her application was dismissed.

Ms Lindgren has asked the Tribunal to reconsider that decision. She has provided the Tribunal with a letter dated 13 September 2010 advising she would be overseas in October and November. She says she sent it to the Tribunal on or about the date of the letter. There is no record on the Tribunal’s file of the letter having been received. That does not mean the Tribunal did not receive it. This Tribunal receives a large volume of correspondence each day. From time to time documents go astray and are filed incorrectly. Sending a letter advising the Tribunal of her movements is consistent with Ms Lindgren’s conduct, otherwise, of her application. By…

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 Lindgren v Aaron Trigg Painting

Details

AGLC: Lindgren v Aaron Trigg Painting [2011] QCATA 267
Case: [2011] QCATA 267
Decision Date: 24 January 2011

CaseChat Overview and Summary

Lindgren brought an appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT) in relation to a minor civil dispute. The dispute arose out of a contract between Lindgren and Aaron Trigg Painting for painting services. The appeal was dismissed due to non-compliance with procedural requirements. Lindgren sought leave to bring a fresh application for leave to appeal, arguing that there was a reasonable excuse for the non-compliance. The Tribunal considered whether it was appropriate to grant leave for a fresh application and, if so, what directions should be made.

The legal issues that the Tribunal was required to decide were whether it was appropriate to grant leave for a fresh application for leave to appeal, and if so, what directions should be made. The Tribunal considered the reasons for the non-compliance, the availability of a reasonable excuse, and the likelihood of success of the appeal. The Tribunal also considered the potential prejudice to the respondent if leave was granted and the need for directions to ensure that the application was determined efficiently.

The Tribunal held that it was appropriate to grant leave for a fresh application for leave to appeal. The Tribunal found that there was a reasonable excuse for the non-compliance and that there was a likelihood of success of the appeal. The Tribunal also considered that the respondent would not be prejudiced if leave was granted and that directions were necessary to ensure that the application was determined efficiently. Accordingly, the Tribunal granted leave for a fresh application for leave to appeal and made directions in relation to the filing and service of written submissions.

The Tribunal ordered that the applicant is granted leave to apply for leave to appeal or appeal the Minor Civil Dispute decision in claim number 55-110 heard in Nambour. The application made in case number APL206-10 is accepted as that application and will proceed under case number APL022-11. Any procedural requirements in relation to filing a further application are waived, and all material filed by either party in APL206-10 is accepted as material filed in case number APL022-11. The applicant will file in the registry one copy and deliver to the respondent one copy of her written submissions in support of the application for leave to appeal (and if successful in that application in support of the appeal), by 4.00pm on 14 February 2011. If the applicant complies with the direction in paragraph 3, the respondent may file in the registry one copy and deliver to the applicant one copy of its submissions in reply to both the application for leave to appeal and in support of the appeal within 21 days after receipt of the applicant’s submissions. If the applicant does not comply with the direction in paragraph 3, the Tribunal will proceed to determine the application on the papers.

Orders

Orders of the court

1. The Applicant is granted leave to apply for leave to appeal or appeal the Minor Civil Dispute decision in claim number 55-110 heard in Nambour.

2. The application made in case number APL206-10 is accepted as that application and will proceed under case number APL022-11 and

(a) Any procedural requirements in relation to filing a further application are waived; and

(b) All material filed by either party in APL206-10 is accepted as material filed in case number APL022-11.

5. If the applicant does not comply with the direction in paragraph 3, the Tribunal will proceed to determine the application on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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