Mahony v Building Services Authority - [2010] QDC 214

DISTRICT COURT OF QUEENSLAND

CITATION:

Mahony v Building Services Authority [2010] QDC 214

PARTIES:

GERARD WILLIAM MAHONY

Appellant

AND

BUILDING SERVICES AUTHORITY

Respondent

FILE NO/S:

Appeal 835/09

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Commercial and Consumer Tribunal

DELIVERED ON:

15 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2010

JUDGE:

McGill DCJ

ORDER:

Appeal struck out with costs.

CATCHWORDS:

PRACTICE – Registry – filing document – what constitutes – notice of appeal not filed just by being sent by fax to a registry

APPEAL AND NEW TRIAL – Practice – commencement of appeal – whether notice of appeal filed – not sufficient just to send by fax to a registry

Commercial and Consumer Tribunal Act 2003 s 100(3)

UCPR rr 967, 968, 969

Wenn v Café San Paul Pty Ltd [2008] QCA 108 - cited

COUNSEL:

The appellant appeared in person

G.I. Thomson for the respondent

SOLICITORS:

The appellant was not represented

The respondent was not represented.

On 26 March 2009 a notice of appeal subject to leave by which the appellant, Mr Mahony, sought leave to appeal from the decision of the Commercial and Consumer Tribunal dated 22 December 2006 was filed in the District Court.

The appeal has come on for hearing. There was an application last week by Mr Mahony to adjourn the hearing of the appeal. On that occasion I raised the question of whether the appeal had been filed within time. I refused the application for the adjournment.

At that stage I indicated that I would deal with the question of whether the appeal had been filed within time today, and today the application for the adjournment was renewed, but I heard submissions and I have ascertained what the position is and what Mr Mahony wants to say in relation to the question of whether the appeal has been filed within time, and in the circumstances I do not consider that any good purpose would be achieved by adjourning the matter further.

The evidence indicates that what happened is that the Commercial and Consumer Tribunal gave its decision on 22 December 2006. Copies were posted to the parties. The appellant was aware of the decision prior to 12 January 2007. Under the Commercial and Consumer Tribunal Act 2003 s 100, a party to a proceeding before the Tribunal may appeal to the District Court against a decision of the Tribunal with the Court’s leave only on specified grounds.

Under subsection (3) an appeal must be filed within 28 days after the decision takes effect. Although the term “file” is defined in the dictionary as meaning filed in the Tribunal, and that is no doubt the ordinary meaning of that term, the context where s 100 is speaking about appeals to the District Court from decisions of the Tribunal indicates that in subsection (3) the reference to the appeal being filed means filed in the District Court rather than in the Tribunal.

The 28 day time period runs from the time when the decision takes effect.…

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.

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Details

Case: [2010] QDC 214
Decision Date: 15 April 2010

CaseChat Overview and Summary

The case of Mahony v Building Services Authority involved the appellant seeking to appeal a decision of the Building Services Authority, which had ruled in favour of the respondents. The core issue in this case was whether the notice of appeal had been properly filed with the court. The appellant had sent the notice of appeal by fax to the registry, but the registry had not accepted it as properly filed because it had not been physically lodged. The respondents argued that the notice of appeal was not validly filed and, consequently, the appeal was invalid.

The court was required to determine whether the notice of appeal had been correctly filed and if sending it by fax to the registry constituted proper filing. The court considered the rules and practice regarding the filing of documents with the court registry. It examined whether there was a requirement for physical lodging of documents and whether the practice of faxing could suffice. The court held that the notice of appeal had not been properly filed because it had not been physically lodged with the registry. The mere act of sending it by fax was not enough to meet the legal requirements for filing.

As a result of this determination, the court found that the notice of appeal was not validly filed, and therefore, the appeal was invalid. The court struck out the appeal and ordered the appellant to pay the costs incurred by the respondents. This outcome emphasised the importance of adhering to the procedural requirements when lodging documents with the court registry, ensuring that the proper procedures are followed to validate the filing of legal documents.

Orders

Orders of the court

Appeal struck out with costs.

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:	Mahony v Building Services Authority [2010] QDC 214
PARTIES:	GERARD WILLIAM MAHONY Appellant AND BUILDING SERVICES AUTHORITY Respondent
FILE NO/S:	Appeal 835/09
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Commercial and Consumer Tribunal
DELIVERED ON:	15 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2010
JUDGE:	McGill DCJ
ORDER:	Appeal struck out with costs.
CATCHWORDS:	PRACTICE – Registry – filing document – what constitutes – notice of appeal not filed just by being sent by fax to a registry APPEAL AND NEW TRIAL – Practice – commencement of appeal – whether notice of appeal filed – not sufficient just to send by fax to a registry Commercial and Consumer Tribunal Act 2003 s 100(3) UCPR rr 967, 968, 969 Wenn v Café San Paul Pty Ltd [2008] QCA 108 - cited
COUNSEL:	The appellant appeared in person G.I. Thomson for the respondent
SOLICITORS:	The appellant was not represented The respondent was not represented.