DISTRICT COURT OF QUEENSLAND
CITATION:
Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131
PARTIES:
DANNY POINTON (Appellant)
v
REDCLIFFE DEMOLITIONS PTY LTD (Respondent)
FILE NO/S:
Appeal 5981/01
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Queensland Building Tribunal
DELIVERED ON:
24 May 2002
DELIVERED AT:
Brisbane
HEARING DATE:
12 April 2002
JUDGE:
McGill DCJ
ORDER:
Leave to Appellant to amend notice of appeal, and consequential orders
CATCHWORDS:
APPEAL AND NEW TRIAL – Appellate Jurisdiction – Queensland Building Tribunal – nature of appeal – Queensland Building Tribunal Act 2000 s.92
INFERIOR TRIBUNALS – Building Tribunal – Appeal to District Court – nature of appeal – Queensland Building Tribunal Act 2000 s.92
COUNSEL:
C Muir for the Appellant
R W Taylor for the Respondent
SOLICITORS:
Norman & Kingston for the Appellant
Michael Hefford for the Respondent
This is an Appeal from a decision of the Queensland Building Tribunal brought to this court pursuant to s.92 of the Queensland Building Tribunal Act 2000 (“the Act”). On 19 February 2002 Robin DCJ ordered that outlines of argument be filed by particular dates and a Certificate of Readiness by 2 April 2002, and that the appeal be adjourned to 12 April 2002 for hearing. On that date it came on before me, but the parties were not ready for a hearing because a transcript of the evidence given in the course of the proceedings before the Tribunal was not available. There was however some dispute between the parties before me as to the nature of the appeal, and whether there was a valid appeal. The respondent sought that the appeal be struck out, for failure to comply with s.92 (3) (v) of the Act.
Background
The respondent Redcliffe Demolitions Pty Ltd applied on 28 August 2001 to the Queensland Building Tribunal seeking payment of the sum of $4,000.00 alleged to be owing to it by the appellant. The statement of claim filed with the application alleged that the respondent was a home removalist who had contracted with the appellant to move a house property for $10,000.00, had done so and had been paid $6,000.00 and given a cheque for the balance of $4,000.00, which was subsequently stopped prior to payment, and sought payment of that balance. In the alternative a claim was made in quantum meruit on the basis that $10,000.00 was reasonable remuneration for the work done.
Following a directions hearing on 4 October 2001 the appellant filed a defence on 15 October 2001 in which it was alleged that the agreement made on or about 17 June 2001 was for the removal of the house and resiting and restumping on certain land owned by the appellant, that the respondent subsequently altered the written contract which had been entered into, and had failed to do the restumping, and that $6,000.00 which had already been paid was reasonable remuneration for the work in fact done by the respondent. A mediation on 31 October 2001 was unsuccessful, and the matter proceeded to an expedited hearing on the same…
Keep reading for free
Create a free CaseChat account to read Pointon v Redcliffe Demolitions Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2002] QDC 131
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions and previous case law to determine the scope of the appeal. It considered precedents such as Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission, Amos v Auctioneers and Agents Committee, and Logan v Woongarra Shire Council, among others, to understand the varying nature of appeals under Queensland statutes. The court concluded that the appeal in this case was not strictly limited to errors of law or jurisdictional mistakes but allowed for a broader review, akin to a rehearing de novo. The appellant was entitled to present new evidence and arguments, effectively starting the appeal process afresh.
The District Court granted Pointon leave to amend the notice of appeal, allowing for a comprehensive review of the case. The court's decision acknowledged that the statutory language and relevant case law supported a more extensive appeal process than merely correcting legal errors or jurisdictional issues. The outcome provided Pointon with the opportunity to present a full case before the District Court, ensuring a fair and thorough examination of the issues at hand.
Orders
Orders of the court
Leave to Appellant to amend notice of appeal, and consequential orders
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
In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 the majority of the court, after noting that the nature of the appeal must ultimately depend on the terms of the statute conferring the right of appeal, continued: There have been a number of cases where courts in Queensland have dealt with specific provisions for appeal given by Queensland statutes. In Amos v Auctioneers and Agents Committee (1980) 6 QL 290 Mylne DCJ held that an appeal under the Auctioneers and Agents Act (1971) section 17, which was to be “by way of rehearing,” was to be something approaching a rehearing de novo, although either party could rely on evidence which had been before the committee, subject if required to producing witnesses heard by the committee for cross examination. In Re H. (a pharmacist) [1972] Qd R 402 Williams J considered an appeal from the Pharmacy Board to the Supreme Court under the Pharmacy Acts (1917 to 1967) which was said to be an appeal by way of rehearing, and concluded that it was appropriate to enquire de novo into the questions involved and arrive at his own decision on the evidence given before him, so as to stand in the place of the Board. Any discretions which were originally exercised by the board had to be exercised by him in its place, although bearing in mind what the board had said and giving such weight to the Board’s view as he thought appropriate in the light of his consideration of the matter. In Logan v Woongarra Shire Council [1983] 2 QdR 689 it was held by the Full Court that an appeal to that court from the Local Government Court “on the ground of error or mistake in law on the part of the Court or that the Court had no jurisdiction to make the decision or exceeded it jurisdiction in making the decision” was not an appeal by way or rehearing but was an appeal stricto sensu. Williams J (as His Honour then was) said at p.691 “Generally speaking an appeal will only be by way of “rehearing” if the provision creating the right of appeal expressly says so…… The essential distinguishing feature of an appeal by way of “rehearing” is that the appellant is entitled “to the independent judgment of the Court of Appeal” on the facts and also on the law as it then stands. If the provision creating the right of appeal expressly provides for such matters then, even though the word “rehearing” is not used, the court may well construe the appeal as being one by way of rehearing.” In Re Fredericks [1984] 1 QdR 438 Carter J held that an appeal to the Supreme Court under the Public Accountants Registration Act (1946 – 1975), said by s.26(3) to be in the nature of a rehearing, required a hearing de novo “as if the application had been made to the court in the first instance”: p.441. Accordingly the person who had applied for registration and was refused, on coming to the court as an appellant, is “in the position of pursuing his application anew before the court. A necessary consequence of that is that it is the appellant who must satisfy the court that in all of the circumstances he is entitled to registration. On that account the onus is upon him to satisfy the court that he ought to be registered or reregistered as a public accountant”. His Honour held that the onus was on the appellant because he had been the applicant before and therefore he ought to begin: p.442. That was a case where there was no hearing at all before the Board and it had given no reasons for its refusal of the application.