Pead v Chambers - [2020] QCATA 103

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pead v Chambers & Anor [2020] QCATA 103

PARTIES: JILL PEAD

(applicant)

v

SANDRA CHAMBERS

(first respondent)

THE BODY CORPORATE FOR OUTRIGGER SUITES CTS 32195

(second respondent)

APPLICATION NO/S:

APL199-18

ORIGINATING APPLICATION NO/S:

BCCM0215-18

MATTER TYPE:

Appeals

DELIVERED ON:

7 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Roney QC

ORDERS:

The application for leave to rely upon fresh evidence in the appeal is dismissed.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – where applications filed for leave to rely upon fresh evidence in an appeal from a decision made by an Adjudicator appointed by the BCCM Commissioner

Body Corporate and Community Management Act 1997 (Qld), s 162, s 289, s 290
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Peace and Good Behaviour Act 1982 (Qld)

Ericson v Queensland Building Services Authority [2013] QCA 391

Albrecht v Ainsworth & Ors [2015] QCA 220

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES: 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

This is an interlocutory application by an Applicant from a decision made by an Adjudicator appointed by the BCCM Commissioner. The Application is for leave to rely upon fresh evidence in the appeal which has been brought in this Tribunal. Senior Member Howard has already dealt with an application by the Respondents to the appeal to strike-out or dismiss the appeal, or the application for leave to appeal. The bases for that application were, inter alia because of technical non-compliances with time limits set for completion of steps in the appeal, but also a failure to comply with directions by this Tribunal that the Applicant identify errors of law which she contended the Adjudicator had made and to refer to any case law which she relied upon in support of her contentions in that regard.
The learned Member concluded, by reference to the Applicant’s submissions filed in the Tribunal, that the Applicant had identified that the grounds of her appeal were that she had been denied natural justice, and that the findings which were made by the Adjudicator were unsupportable by the evidence. The learned Member concluded that if either of those issues were established by the Applicant in the appeal, then either would constitute an error of law. The learned Member accepted that there had been submissions which identified errors of law, and that there did not appear to be any case law relied upon in her appeal.
The background to the appeal concerns resolutions passed by a committee of the Second Respondent Body Corporate on 20 December 2017 and 14 February 2018 which had the effect of having the Body Corporate pay the legal defence costs of three committee members, including the Applicant, before this Tribunal in respect of proceedings which had been brought against them under the

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 Pead v Chambers

Details

AGLC: Pead v Chambers [2020] QCATA 103
Case: [2020] QCATA 103
Decision Date: 7 July 2020

CaseChat Overview and Summary

Pead v Chambers was a case before the Queensland Civil and Administrative Tribunal (QCAT) where the Applicant sought leave to rely on new evidence in an appeal from a decision made by an Adjudicator. The Respondent opposed the application on the basis that the new evidence was not obtained with reasonable diligence and was not relevant to the issues before the Adjudicator.

The legal issue before the Court was whether the Applicant should be allowed to rely on new evidence in the appeal, despite not having presented it before the Adjudicator. The Applicant argued that the Tribunal had a discretion under section 28 of the QCAT Act to allow new evidence, while the Respondent argued that the evidence was not admissible as it was not obtained with reasonable diligence.

The Court held that the foundation for the submission by the Applicant that the Tribunal should receive any further evidence which was not before the Adjudicator was not based on a discretion held by the Tribunal. The submissions made by the Applicant went to the merits or other issues which seemed to have most to do with identifying why the Adjudicator ought to have arrived at different factual conclusions than were reached. The Court found that even if the evidence could not have been obtained with reasonable diligence, it was not open to the Court to permit the evidence to be admitted. The Court therefore dismissed the application for leave to rely upon fresh evidence in the appeal.

In conclusion, the Court held that the Applicant was not entitled to rely on new evidence in the appeal, as it was not obtained with reasonable diligence and the submissions made by the Applicant did not establish a discretion for the Tribunal to admit such evidence. The application for leave to rely upon fresh evidence in the appeal was dismissed.

Orders

Orders of the court

The application for leave to rely upon fresh evidence in the appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Although the Court of Appeal decision in Albrecht was overturned by the High Court on the basis that the Court of Appeal made numerous errors of law in arriving at its conclusions in that decision, it did not make any finding which differed from that which the Court of Appeal determined on that aspect of the appeal.New evidence sought to be relied upon What I have said above in relation to the nature of the Appeal is determinative of the issue about whether the Applicant ought to be allowed to rely on new evidence in this Appeal; that is, upon evidence not relied upon before the Adjudicator. The foundation for the submission by the Applicant that this Appeal Tribunal should receive any further evidence which was not before the Adjudicator is not said to be founded upon what is said to be a discretion held by this Tribunal pursuant to s 28 of the QCAT Act. Much of what is in the submissions filed for the Applicant in support of that application deals with issues which go to the merits, or other issues which seem to have most to do with identifying why the Adjudicator ought to have arrived at different factual conclusions than were reached. The submissions obliquely touch on the issue of how, with reasonable diligence, the fresh evidence could not have been obtained by the Applicant to use in the original application before the Adjudicator, and how that adduced evidence must have an important impact on the outcome of the appeal. It is also directed to the credibility of that evidence. The evidence of course, were it to be admitted, has not been answered by any evidence which might be put forward to respond to it by any of the Respondents to this appeal. It follows that even were I persuaded, and I am not so persuaded, that with reasonable diligence this evidence could not have been obtained and put before the Adjudicator, it is not open to me to permit the evidence to be admitted, and I have no discretion of the kind that the Applicant contends that I have to allow it. I therefore dismiss the Application.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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