Shorten v Bell-Gallie - [2014] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

Shorten v Bell-Gallie & Anor [2014] QCA 57

PARTIES:

IAN RODGER WILLIAM SHORTEN
(applicant/appellant)
v
SHIRLEY BELL-GALLIE
(first respondent)
BRISBANE QCAT REGISTRY
(second respondent)

FILE NOS:

Appeal No 11869 of 2013
QCAT No 1 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

28 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Holmes JA

ORDER:

Remove the second respondent from the application for leave to appeal.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where the applicant seeks leave to appeal a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal – where the named second respondent is neither a legal entity nor a party to the tribunal application – where the applicant seeks to substitute as respondents the tribunal members who made the decision appealed from – whether the tribunal members are "directly affected by the relief sought" or "interested in maintaining the decision under appeal" – whether the second respondent should be removed as a party – whether the tribunal members should be substituted as respondents

Uniform Civil Procedure Rules 1999 (Qld), r 69(1)(a), r 749(1)

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, cited

COUNSEL:

No appearance for the applicant, the applicant’s submissions were heard on the papers
No appearance for the first respondent
No appearance for the second respondent, the second respondent’s submissions were heard on the papers

SOLICITORS:

No appearance for the applicant, the applicant’s submissions were heard on the papers
No appearance for the first respondent
No appearance for the second respondent, the second respondent’s submissions were heard on the papers

HOLMES JA: An issue has arisen in this case as to the naming of the “Brisbane QCAT Registry” as second respondent to the application for leave to appeal. The parties have agreed that the court should resolve it on the papers.

The applicant for leave, Mr Shorten, wished to challenge the appointment of the named first respondent, Ms Bell-Gallie, as administrator of the affairs of a disabled person. He unsuccessfully sought to appeal to the Appeal Tribunal of the Queensland Civil and Administrative Tribunal against a tribunal member’s decision to deal with his application for review on the papers and not to proceed to a hearing of it. The tribunal member had applied a practice direction, the effect of which was that, in the absence of new information arising since the administrator’s appointment, no review should be conducted until its expiry. Mr Shorten seeks leave to appeal the Appeal Tribunal’s decision on broadly expressed grounds asserting a failure to apply precedent and legislation and a misinterpretation of the practice direction. There seems to be an allied ground to the effect that he should not have been refused leave to adduce new evidence before 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 Shorten v Bell-Gallie

Details

AGLC: Shorten v Bell-Gallie [2014] QCA 57
Case: [2014] QCA 57
Decision Date: 28 March 2014

CaseChat Overview and Summary

In the case of Shorten v Bell-Gallie, the applicant sought leave to appeal a decision made by the Appeal Tribunal of the Queensland Civil and Administrative Tribunal. The applicant aimed to substitute the tribunal members who made the original decision as respondents in the appeal. The second respondent in the case was not a legal entity and was not a party to the tribunal application, leading to questions regarding the proper parties to the appeal. The legal issues before the court involved determining whether the tribunal members were directly affected by the relief sought or interested in maintaining the decision under appeal, and whether the second respondent should be removed from the application and the tribunal members substituted as respondents.

The court examined the provisions under the Uniform Civil Procedure Rules and their predecessors to address the proper parties in the appeal. The court noted that the second respondent was neither a legal entity nor a party to the tribunal application, and thus was not a proper respondent in the appeal. The tribunal members, who made the decision under appeal, were identified as potentially being directly affected by the relief sought. The court concluded that these members should be substituted as respondents in the appeal to ensure that all interested parties were properly before the court. The court found that the second respondent should be removed from the application for leave to appeal.

Consequently, the court ordered that the second respondent be removed from the application for leave to appeal. The tribunal members who made the decision under appeal were substituted as respondents in the appeal. This decision ensured that the proper parties were before the court and that the appeal could proceed with all relevant interests represented. The court's ruling clarified the process for determining the appropriate respondents in appeals from the Queensland Civil and Administrative Tribunal, focusing on the necessity of identifying those who are directly affected by the relief sought or have an interest in maintaining the decision under appeal.

Orders

Orders of the court

Remove the second respondent from the application for leave to appeal.

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:	Shorten v Bell-Gallie & Anor [2014] QCA 57
PARTIES:	IAN RODGER WILLIAM SHORTEN (applicant/appellant) v SHIRLEY BELL-GALLIE (first respondent) BRISBANE QCAT REGISTRY (second respondent)
FILE NOS:	Appeal No 11869 of 2013 QCAT No 1 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	28 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Holmes JA
ORDER:	Remove the second respondent from the application for leave to appeal.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where the applicant seeks leave to appeal a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal – where the named second respondent is neither a legal entity nor a party to the tribunal application – where the applicant seeks to substitute as respondents the tribunal members who made the decision appealed from – whether the tribunal members are "directly affected by the relief sought" or "interested in maintaining the decision under appeal" – whether the second respondent should be removed as a party – whether the tribunal members should be substituted as respondents Uniform Civil Procedure Rules 1999 (Qld), r 69(1)(a), r 749(1) R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, cited
COUNSEL:	No appearance for the applicant, the applicant’s submissions were heard on the papers No appearance for the first respondent No appearance for the second respondent, the second respondent’s submissions were heard on the papers
SOLICITORS:	No appearance for the applicant, the applicant’s submissions were heard on the papers No appearance for the first respondent No appearance for the second respondent, the second respondent’s submissions were heard on the papers