Rule v Crosby - [2014] QCATA 341

CITATION:	Rule v Crosby [2014] QCATA 341
PARTIES:	Gorgea Rule (Respondent) v Matthew Crosby
(Applicant/Appellant)
APPLICATION NUMBER:	APL436-14
MATTER TYPE:	Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Stilgoe OAM
DELIVERED ON:	11 December 2014
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal refused.
CATCHWORDS:	APPEAL – LEAVE TO APPEAL –BUILDING DISPUTE – APPLICATION FOR LEAVE FOR LEGAL REPRESENTATION – where
application for leave to be legally represented
filed shortly before hearing – where tribunal called for submissions from respondent – where
respondent failed to serve submissions on
applicant – whether failure to provide natural justice – whether tribunal correctly exercised
discretion - whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal
Act 2009 (Qld) s 43
House v The King (1936) 55 CLR 499 Lovell v Lovell (1950) 81 CLR 513 Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
[1]      Mr Crosby is a builder. He is claiming payment of $30,864.40 that is outstanding under a building contract. Ms Rule is counterclaiming $65,000 damages for breach of contract and the cost of rectification of defects.
[2]      The hearing was listed for 9 and 10 October 2014. On 15 September 2014, Ms Rule filed an application for leave to be legally represented. A senior member of the tribunal refused the application.
[3]      Ms Rule wants to appeal that decision. She submits that the learned Senior Member failed to provide natural justice because he received, and acted upon, submissions filed by Mr Crosby that were not copied to Ms Rule. She submits that the learned Senior Member failed to provide
reasons for his decision. She submits that the learned Senior Member’s
decision was wrong in principle because the dispute involves complex issues that, without legal representation, Ms Rule cannot address properly. She submits there is a material injustice in requiring a registered nurse to act in a building dispute against a registered builder.
[4]      Because this is an appeal from a decision of the tribunal that is not a final decision, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]
[2]
[5]      One ground of appeal can be disposed of quickly. As Ms Rule was
entitled, she requested reasons for the learned Senior Member’s decision

and he provided them. There can be no suggestion that the learned
Senior Member failed to provide reasons for his decision.
[6]      By directions of 18 September 2014 Mr Crosby was required to file and serve his submissions in response to the application by 26 September 2014. He filed his response on 25 September and it is clear from his reasons for decision[3] that 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 Rule v Crosby

Details

AGLC: Rule v Crosby [2014] QCATA 341
Case: [2014] QCATA 341
Decision Date: 11 December 2014

CaseChat Overview and Summary

In the matter of Rule v Crosby, the parties involved were the appellant, Rule, and the respondent, Crosby. The dispute centred on a building-related matter which had been adjudicated in a tribunal, with Rule seeking leave to appeal the tribunal's decision. The application for leave to appeal was lodged shortly before the scheduled hearing. During the proceedings, the tribunal requested submissions from the respondent, Crosby. However, Crosby failed to serve these submissions on the appellant, Rule. Rule argued that this failure constituted a breach of the principle of natural justice, which requires that all parties are given a fair opportunity to present their case.

The legal issues that the court was required to address included whether Crosby's failure to serve submissions on Rule constituted a breach of natural justice, and if the tribunal had correctly exercised its discretion in denying leave to appeal. The court had to consider whether the procedural irregularity was significant enough to warrant a new hearing and if the grounds for leave to appeal were sufficient. The court was also tasked with determining whether the late application for legal representation could be justified under the circumstances.

The court found that Crosby's failure to serve submissions did not constitute a breach of natural justice that would necessitate a new hearing, as the tribunal had still managed to conduct a fair process. The court further determined that the tribunal had correctly exercised its discretion in denying leave to appeal. The late application for legal representation was not deemed sufficient grounds for leave, given the circumstances. As a result, the court refused the application for leave to appeal.

Orders

Orders of the court

1. Leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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