Souwer & Anor v Hodkinson - [2020] QCATA 133

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Souwer & Anor v Hodkinson & Anor [2020] QCATA 133

PARTIES:

MICHAEL SOUWER & pazlar pty ltd

(Applicants)

mark hodkinson & M & p industrial coatings pty ltd

(Respondents)

APPLICATION NO:

APL261-19

ORIGINATING APPLICATION NO:

MCDO1545-18 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

24 August 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – where application to admit new evidence – whether application properly founded – where refusal to grant third adjournment – whether within discretionary power – where refusal to transfer proceedings to Magistrates Court – whether this decision within discretionary power – where limitations of appeal against discretionary decisions considered – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 32, s 93, s 142

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48(3)

Absolon v NSW Technical and Further Education Commission (1997) 75 IR 47

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Cook v ASP Ship Management Pty Ltd (2008) 105 ALD 453; [2008] FCA 1345

Delopez v Barry [2014] WASC 370

Eley v Town of Victoria Park [2014] WASC 103

Gillespie v The Queen [2020] NSWCCA 186

Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135

Hillsea Pty Ltd v Joseph McIvor; McIvor v Joseph [2020] NSWCA 55

House v The King (1936) 55 CLR 499

Manonai v Burns [2011] WASCA 165

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365

Orr v Holmes (1948) 76 CLR 632

Pappas v Meiklejohn’s Accountants [2017] QCATA 60

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48

Quinn v O’Rourke; In re O’Rourke (No 1) [2020] FCA 1145

R v Vaughan [2011] QCA 234

Reeve v Hamlyn [2015] QCATA 133

Sali v SPC Ltd (1993) 67 ALJR 841

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

Singh v Minister for Immigration and Border Protection [2016] FCA 574

Stoney v A & S Boesley Pty Ltd [2014] VSCA 237

Sydney United Football Club v Soccer New South Wales [2005] NSWSC 474

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

Thomson v Smith [2005] QCA 446

W, In Re (an infant) [1971] AC 682

Westpac Banking Corporation v Tsatsoulis [2003] FCA 40

Wolf v Advance Australia Removals & Storage Pty Ltd APL170 of 2019, 17 July 2020

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION
Fresh evidence?
[1] A preliminary question is whether the following medical report, dated 8 November 2019…

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 Souwer & Anor v Hodkinson

Details

AGLC: Souwer v Hodkinson [2020] QCATA 133
Case: [2020] QCATA 133
Decision Date: 24 August 2020

CaseChat Overview and Summary

The appeal before the court involved the respondents, Souwer and Anor, against the decision of Hodkinson. The central dispute concerned the refusal by Hodkinson to admit new evidence, to grant a third adjournment, and to transfer the proceedings to the Magistrates Court. These refusals were deemed by the respondents to be beyond the scope of the discretionary power of Hodkinson, leading to the appeal.

The court was tasked with determining whether Hodkinson's refusals were indeed beyond the scope of his discretionary power. This included examining the proper foundation of the application to admit new evidence, the refusal to grant a third adjournment, and the refusal to transfer the proceedings to the Magistrates Court. Additionally, the court considered the limitations of appealing against discretionary decisions and whether leave to appeal should be granted.

In evaluating these issues, the court found that Hodkinson's decisions were well within the scope of his discretionary power. The application to admit new evidence was deemed improperly founded, and the refusal to grant a third adjournment and to transfer the proceedings to the Magistrates Court were within the discretionary authority of Hodkinson. Given these findings, the court dismissed the application for leave to appeal, concluding that the decisions in question were appropriately exercised within the bounds of Hodkinson's discretion.

Orders

Orders of the court

The application for leave to appeal is dismissed.

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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