Rigby & Marsh v Knowles & Knowles - [2024] QCATA 37

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Rigby & Marsh v Knowles & Knowles [2024] QCATA 37

PARTIES:

ALEXANDER MCLEOD RIGBY
BROOKE AMANDA MARSH

(appellants)

v

BRUCE KNOWLES
ANNABEL KNOWLES

(respondents)

APPLICATION NO/S:

APL337-23

ORIGINATING APPLICATION NO/S:

Q503-23 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

21 March 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1. Leave to appeal is granted, the appeal is allowed and the decision made on 12 September 2023 to dismiss application Q503-23 (Brisbane) is set aside.

2. The Appeal Tribunal substitutes a decision that application Q503-23 (Brisbane) is dismissed for want of jurisdiction.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where an Adjudicator dismissed an application for a minor civil dispute for want of jurisdiction at a hearing which the applicants could not attend, where the parties had agreed that the hearing should be adjourned to enable the applicants’ submissions on jurisdiction to be heard – whether the hearing was procedurally unfair – whether the tribunal had jurisdiction to hear the application

Human Rights Act 2019 (Qld), s 31

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 10, s 28, s 31, s 32

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 93, s 146

Financial Advisers Australia v Mooney & Anor [2016] QCATA 181

Hashfield v Gold Coast City Council [2020] QCATA 36
Lauren Kay George Pty Ltd as trustee for the Lauren Kay George Family Trust v Wolf [2023] QCATA 78.
L J Hooker Stafford v Roberts [2020] QCATA 94

Tamarin Pty Ltd & Otmoor Pty Ltd as trustee v Wicks [2021] QCATA 146

APPEARANCES & REPRESENTATION:

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

Appellants:

Self-represented but assisted by Rigby Lawyers

Respondents:

Self-represented by assisted by PHV Law Solicitors and Consultants

REASONS FOR DECISION

This appeal considers whether there was procedural unfairness in the way an Adjudicator handled the hearing when dismissing for want of jurisdiction an application which claimed a contribution for a dividing fence. This decision also considers whether the tribunal had jurisdiction to hear the application in the particular circumstances.
The hearing was on 12 September 2023 and it had been listed for a full hearing of the application on the merits. The only person who appeared at the hearing was a legal representative of the respondents. But only two weeks before the hearing, the respondents’ application for legal representation had been refused by the tribunal. So the legal representative was not permitted to represent the respondents at the hearing. Instead, the legal representative asked to appear ‘as a friend of the tribunal’. The Adjudicator agreed to this.
The applicants had applied for an adjournment of the hearing because they were ‘overseas’. Although the notice of hearing had been sent to the parties on 23 August 2023, 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.

Keep reading for free

Create a free CaseChat account to read Rigby & Marsh v Knowles & Knowles 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] QCATA 37
Decision Date: 21 March 2024

CaseChat Overview and Summary

In the appeal of Rigby & Marsh against Knowles & Knowles, the applicants sought to challenge the Adjudicator's dismissal of their application for a minor civil dispute on the basis of lack of jurisdiction. The applicants had been unable to attend the hearing at which their application was dismissed, as they had agreed with the respondents to adjourn the hearing to enable the applicants' submissions on jurisdiction to be heard. The applicants argued that the hearing was procedurally unfair and that the tribunal had no jurisdiction to hear the application. The Appeal Tribunal was required to determine whether the Adjudicator's decision to dismiss the application was legally sound and procedurally fair.

The legal issues before the Appeal Tribunal were whether the Adjudicator's dismissal of the application for want of jurisdiction was an error of law and whether the hearing was procedurally unfair. The tribunal had to consider whether the Adjudicator had jurisdiction to hear the application and whether the Adjudicator's decision was legally sound. The tribunal also had to consider whether the applicants' inability to attend the hearing was a procedural unfairness that warranted setting aside the Adjudicator's decision.

The Appeal Tribunal found that the Adjudicator had jurisdiction to hear the application and that the dismissal of the application for want of jurisdiction was not an error of law. However, the tribunal found that the hearing was procedurally unfair because the applicants were unable to attend and present their submissions on jurisdiction. The tribunal held that the Adjudicator's decision to dismiss the application was therefore set aside and substituted with a decision that the application was dismissed for want of jurisdiction. The tribunal granted leave to appeal, allowed the appeal, and set aside the Adjudicator's decision.

Orders

Orders of the court

1. Leave to appeal is granted, the appeal is allowed and the decision made on 12 September 2023 to dismiss application Q503-23 (Brisbane) is set aside.

2. The Appeal Tribunal substitutes a decision that application Q503-23 (Brisbane) is dismissed for want of jurisdiction.

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.