Robb v Tunio - [2014] QCA 127

SUPREME COURT OF QUEENSLAND

CITATION:

Robb v Tunio [2014] QCA 127

PARTIES:

EGERTON MACPHERSON ROBB
(applicant)
v
MUSHTAQ TUNIO
(respondent)

FILE NO/S:

Appeal No 10888 of 2013
QCAT No 279 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

30 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2014

JUDGES:

Muir JA and Martin and Jackson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.The application to extend the time to apply for leave to appeal is dismissed.

2.The application for leave to appeal is dismissed.

3.The applicant pay the costs of the application.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – where an appeal was made from a decision of the Appeal Tribunal of the Queensland Civil and Administrative Trial – where the applicant claimed $8,000 from the respondent as money lent – where the grounds of proposed appeal and reasons for justifying an extension of time for leave to appeal were that the applicant alleged he had proven that the statements made in the defence by the respondent were false – where the applicant further alleged that the Queensland Civil and Administrative Tribunal had failed to refer to these alleged falsehoods in their written judgment – whether the grounds alleged by the applicant constitute an appeal only on a question of law

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(2)
Uniform Civil Procedure Rules 1999 (Qld), r 748

Bagumya v Kakwano [2010] NSWSC 600, applied
Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88, applied

COUNSEL:

The applicant appeared on his own behalf
D Wilson with R Gordon for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Aitken Whyte Lawyers for the respondent

MUIR JA: I agree with the reasons of Jackson J and with the orders he proposes.

MARTIN J: I agree with Jackson J.

JACKSON J: The applicant applies for an extension of time to start an appeal[1] and for leave to appeal against the decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal.[2]
[1]Uniform Civil Procedure Rules 1999 (Qld), r 748.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(2)(b) and (3)(b).

On 1 October 2013, the Appeal Tribunal gave leave to the applicant to appeal from the decision of the Tribunal[3] and dismissed the appeal.[4] The Appeal Tribunal heard and determined the matter on the papers.[5] The appeal to the Appeal Tribunal was from the decision of the Tribunal dated 6 November 2012. The Tribunal dismissed the applicant’s claim in a minor civil dispute. The Tribunal also heard and determined the matter on the papers.
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 148.
[5]Queensland Civil…

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: [2014] QCA 127
Decision Date: 30 May 2014

CaseChat Overview and Summary

The case of Robb v Tunio involved an appeal by the applicant, who sought $8,000 from the respondent, claiming it as money lent. The respondent had successfully defended against the claim in the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT). The applicant then sought to appeal to the court, alleging that the respondent's defence contained false statements and that QCAT had not addressed these in their written judgment. The applicant applied for an extension of time to lodge the appeal and also sought leave to appeal.

The central legal issue before the court was whether the applicant's grounds for appeal constituted an appeal solely on a question of law, which is necessary for an appeal to the court. The applicant argued that the alleged falsehoods in the respondent's statements were material to the case and that the failure of QCAT to address these in their judgment was a significant error. The court needed to determine if these issues were purely questions of law or also involved questions of fact, which would not be grounds for appeal.

The court found that the applicant's appeal was not solely on a question of law. Instead, the alleged falsehoods in the respondent's statements and the failure of QCAT to address them involved questions of fact and credibility, which were within the purview of QCAT's decision-making process. The court held that these issues did not meet the threshold for an appeal on a question of law. Consequently, the application to extend the time to apply for leave to appeal was dismissed, and the application for leave to appeal was also dismissed. The applicant was ordered to pay the costs of the application.

Orders

Orders of the court

1.The application to extend the time to apply for leave to appeal is dismissed.

2.The application for leave to appeal is dismissed.

3.The applicant pay the costs of the application.

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:	Robb v Tunio [2014] QCA 127
PARTIES:	EGERTON MACPHERSON ROBB (applicant) v MUSHTAQ TUNIO (respondent)
FILE NO/S:	Appeal No 10888 of 2013 QCAT No 279 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	30 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2014
JUDGES:	Muir JA and Martin and Jackson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.The application to extend the time to apply for leave to appeal is dismissed. 2.The application for leave to appeal is dismissed. 3.The applicant pay the costs of the application.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – where an appeal was made from a decision of the Appeal Tribunal of the Queensland Civil and Administrative Trial – where the applicant claimed $8,000 from the respondent as money lent – where the grounds of proposed appeal and reasons for justifying an extension of time for leave to appeal were that the applicant alleged he had proven that the statements made in the defence by the respondent were false – where the applicant further alleged that the Queensland Civil and Administrative Tribunal had failed to refer to these alleged falsehoods in their written judgment – whether the grounds alleged by the applicant constitute an appeal only on a question of law Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(2) Uniform Civil Procedure Rules 1999 (Qld), r 748 Bagumya v Kakwano [2010] NSWSC 600, applied Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88, applied
COUNSEL:	The applicant appeared on his own behalf D Wilson with R Gordon for the respondent
SOLICITORS:	The applicant appeared on his own behalf Aitken Whyte Lawyers for the respondent