Stanton v Electrics Downunder - [2020] QCATA 142

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Stanton v Electrics Downunder [2020] QCATA 142

PARTIES: NOEL EDWARD STANTON

(applicant/appellant)

v

ELECTRICS DOWNUNDER PTY LTD

(respondent)

APPLICATION NO:

APL245-17

ORIGINATING APPLICATION NO:

BDL231-16

MATTER TYPE:

Appeals

DELIVERED ON:

1 October 2020

HEARING DATE:

9 March 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member
Member Burke

ORDERS:
1. The Appeal Tribunal’s direction numbered 2 dated 20 September 2018 is vacated.

2. The application for miscellaneous matters filed by Noel Edward Stanton on 18 July 2019 is dismissed.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – SCOPE AND EFFECT OF APPEAL – proper construction of statute - effect of referral of a matter as a reopening application in appeal proceeding– where reopening application refused – where appeal proceeding stayed pending reopening – whether right of appeal constrained by statute following referral – whether referral of a matter to tribunal dispenses with appeal proceeding– whether ground of appeal is res judicata – whether application for leave to rely upon fresh evidence is res judicata – where appeal against adverse order due to non-compliance and failure to engage with proceeding – where appeal of order to award counter-claim to respondent due to conduct of applicant - whether leave to rely upon fresh evidence should be granted – where fresh evidence is only basis for appeal – where appeal falls away if leave to rely upon fresh evidence not granted – whether fresh evidence probative of facts asserted – public interest in conduct of proceedings – duty of parties to act in their own interest

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 36, s 48, s 133, s 135, s 136, s 138, s 138A, s 139, s 140, s 141, s 142, s 143, s 143A, s 147, sch 3

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

Brakatselos v ABL Nominees (2012) 36 VR 490
Clarke v Japan Machines Pty Ltd [1984] 1 Qd R 404
Fox v Percy (2013) 214 CLR 118
Lindgren v Aaron Trigg Painting [2011] QCATA 267
Mulholland v Mitchell [1971] AC 666; [1971] All ER 307
Pickering v McArthur [2005] QCA 294
Radnedge v GIO(NSW) (1987) 9 NSWLR 235

Stanton v Queensland Building and Construction Commission [2018] QCAT 271

APPEARANCES & REPRESENTATION:

Applicant:

McLennan S, counsel instructed by Kelly P of Kelly Legal

Respondent:

Ritchie T, counsel instructed by McKays Solicitors

REASONS FOR DECISION

Senior Member Howard:

The history and background to the dispute, the orders made in the building dispute, and the orders previously made by this Appeal Tribunal are sufficiently set out in Member Burke’s draft reasons for decision which I have read, as are the submissions of the parties, and in large part, the relevant provisions of the QCAT Act, as far as the Preliminary Point is concerned. I repeat them only to the extent necessary to discuss them.
For the reasons that…

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 Stanton v Electrics Downunder

Details

AGLC: Stanton v Electrics Downunder Pty Ltd [2020] QCATA 142
Case: [2020] QCATA 142
Decision Date: 1 October 2020

CaseChat Overview and Summary

In the case of Stanton v Electrics Downunder, the Queensland Civil and Administrative Tribunal (QCAT) Appeal Tribunal was tasked with resolving a dispute between the parties regarding the interpretation and application of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The primary legal issues revolved around the proper construction of the appeal and reopening provisions of the QCAT Act, as well as the effect of referring a matter as a reopening application in an appeal proceeding. Specifically, the court had to determine whether the right of appeal was constrained by statute following a referral, and whether such a referral dispenses with an appeal proceeding.

The court held that the Appeal Tribunal had erred in its interpretation of the QCAT Act provisions. It concluded that once an appeal proceeding has been finalised, a party is entitled to file a new application for leave to appeal or appeal and an application for leave to rely upon additional evidence, in compliance with the provisions of the QCAT Act. The court noted that while the appeal proceeding was finalised by the making of the Appeal Tribunal’s orders on 20 September 2018, which referred the matter to the tribunal, there was no appeal proceeding to be brought on, irrespective of the outcome of the reopening application. The court found that Mr Stanton was entitled to file fresh applications after the reopening application was refused. The court further held that if it was necessary, it would treat Mr Stanton’s application filed on 18 July 2019 as an application for leave to appeal or appeal, an application to extend the time for the filing of the application, as well as an application for leave to rely upon the additional evidence.

Ultimately, the court vacated the Appeal Tribunal’s direction numbered 2 dated 20 September 2018 and dismissed the application for miscellaneous matters filed by Noel Edward Stanton on 18 July 2019. The court's decision clarified the interplay between the appeal and reopening provisions of the QCAT Act and reinforced the importance of strict compliance with the statutory provisions when filing such applications.

Orders

Orders of the court

1. The Appeal Tribunal’s direction numbered 2 dated 20 September 2018 is vacated.

2. The application for miscellaneous matters filed by Noel Edward Stanton on 18 July 2019 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It follows that in any event, if the application for leave to rely upon the additional evidence is properly before the Appeal Tribunal, we would be entitled to consider it.Is there an application for leave to appeal (and an application for leave to rely upon additional evidence) before the Appeal Tribunal? Here, it follows from the construction adopted, that the appeal proceeding was finalised by the making of the Appeal Tribunal’s orders on 20 September 2018 referring the matter to the tribunal to decide whether to reopen the proceeding. There is no appeal proceeding currently on foot. Accordingly, the Appeal Tribunal erred, when referring ‘the matter’ pursuant to s 143A, in making a direction to the effect that the appeal proceeding is stayed pending the determination of the reopening, to be brought back on by either party on 14 days’ notice. On a proper construction, following the referral, there was no appeal proceeding to be brought on, irrespective of the outcome of the reopening application. That said, Mr Stanton was entitled to again file an application for leave to appeal or appeal and an application for leave to rely upon the additional evidence after the reopening application was refused, but he was obliged to file fresh applications in compliance with the provisions of the QCAT Act. On 10 June 2019, the Tribunal issued its decision refusing the reopening application. The decision was sent to the parties on 14 June 2019. On 24 June 2019, the Appeal Tribunal directed that unless an application was made to bring on the appeal proceedings by 19 July 2019, the application for leave to appeal or appeal may be dismissed without further notice to the parties. Mr Stanton filed an application on 18 July 2019, seeking directions for the conduct of the appeal proceeding including for the filing of any further material by the parties, and the bringing on of the application for leave to appeal or appeal. The Appeal Tribunal made directions and listed the proceeding for hearing. If it was necessary to do so, in view of the Appeal Tribunal’s error, I would treat Mr Stanton’s application filed on 18 July 2019 as an application for leave to appeal or appeal and an application to extend the time for the filing of the application, as well as, an application for leave to rely upon the additional evidence. In respect of the granting of an extension of time, Electrics Downunder cannot be said to surprised or prejudiced by the fresh application for leave or appeal. Further, Mr Stanton’s delay in making it outside of the 28 day period from the date of the Tribunal’s decision in the reopening proceeding was precipitated by the Appeal Tribunal’s directions requiring him to file an application by 18 July 2019, several days outside of the prescribed period in s 143 following the final determination under Chapter 2, Part 2, Division 7. The delay is short and, having regard to the history and circumstances of the proceeding, inconsequential. Further, if it was necessary to do so, I would grant leave extending the time for Mr Stanton to file the application for leave to appeal to 18 July 2019.

Decision

Reasons for decision

If an application has been made for reopening pursuant to s 138 ‘about the tribunal’s final decision in the proceeding’, an application for leave to appeal or appeal cannot be made until the application for reopening is finally dealt with under Division 7.[7] Final decision relevantly ‘means the tribunal’s decision that finally decides the matters the subject of the proceeding’.[8] Therefore, if a reopening is granted, an application for leave to appeal or appeal may not be made until after rehearing of the relevant issues on the merits as provided for in s 140. If the reopening application is refused, the final decision of the tribunal must be the decision made by it before the reopening application was made (and which was sought to be disturbed as a consequence of the reopening application). [7]QCAT Act, s 141.[8]QCAT Act, sch 3 (definition of ‘final decision’). Part 7, Division 7 does not provide for the tribunal to initiate a reopening application on its own initiative. A party must make an application for reopening. Chapter 2, Part 8 is entitled, ‘Appeals etc.’ Chapter 2, Part 8, Division 1 of the QCAT Act provides for ‘Appeals to the appeal tribunal’. Section 142 provides that a tribunal decision may generally be appealed to the appeal tribunal (if a judicial member did not constitute the tribunal for the proceeding), subject to a number of exceptions and, in respect of specified decisions, subject to leave of the appeal tribunal. Section 143 provides for applications for leave to appeal or appeal to be filed within 28 days of the ‘relevant day’.[9] Relevant day is a defined term for the section.[10] In particular, s 143(5) provides that if a person makes an application under Part 7, Divisions 5, 6, or 7 about the decision, the relevant day is the day that application is finally dealt with under the division. [9]QCAT Act, s 143(3) and (4). [10]QCAT Act, s 143(5). As a matter of statutory construction, the QCAT Act provides that if an application for leave to appeal or appeal has been filed, an application may not be made to reopen the subject decision.[11] Conversely, any application made for reopening of a final decision must be finally dealt with under Division 7 before a person may file an application for leave to appeal or appeal.[12] A person’s appeal rights in respect of the decision need not be exercised until 28 days after the reopening application is finally dealt with under Part 7, Division 7.[13] For present purposes, it is noted that s 143(5) does not limit the right of a person to appeal following a reopening application to a person whose reopening application was successful (and therefore, followed by a rehearing of relevant issues on the merits). [11]QCAT Act, s 138(5) and (6).[12]QCAT Act, s 141.[13]QCAT Act, s 143(5)(a). Further, after a reopening application is determined, the decision which may be the subject of any later appeal proceeding is the decision in the original proceeding about the substance of the dispute made by the tribunal. The decision to grant or refuse the reopening application may not be challenged.[14][14]QCAT Act, s 139(5).

Ratio Decidendi

Legal Principle Established

For the reasons that follow, I do not agree in all respects with the learned Member’s reasoning about the Preliminary Point. Further, in case I am wrong about the Preliminary Point, I make observations about the application for leave to appeal and application for leave to rely upon additional evidence.The Preliminary Point: operation of the appeal and reopening provisions in the QCAT Act This Appeal Tribunal made orders on 20 September 2018 whereby it referred the application for leave to appeal to the tribunal pursuant to s 143A of the QCAT Act to decide whether the proceeding should be reopened because it appeared the reasons for the application for leave to appeal may constitute a reopening ground. Further, we directed that, pending determination of the application to reopen, the appeal proceeding was stayed to be brought on by either party on 14 days’ notice. The reopening was subsequently refused by the Tribunal. Electrics Downunder submits effectively that, in making its orders on 20 September 2018, the Appeal Tribunal dealt with the appeal proceeding and it may not entertain the same application because it was taken to be an application for a reopening pursuant to s 143A(3) of the QCAT Act; and, in deciding the reopening, the Tribunal decided not to allow reliance on the new evidence and the matter is therefore res judicata because no appeal is allowed from a reopening application.[1][1]QCAT Act, s 139(5). Mr Stanton submits that s 147(2) specifically provides for additional evidence and that the test on appeal for allowing fresh evidence differs from the test on reopening. He argues that Electrics Downunder’s submissions would result in a two-tier system of justice depending upon whether evidence was reasonably available at the time of the original tribunal hearing and whether s 143A is invoked or not. Further, he submits that when exercising its discretion not to refer, pursuant to s 143A, the appeal tribunal would apply the same test as set out in the definition of reopening ground, when the appeal tribunal consistently applies the test in Clarke v Japan Machines when deciding whether to give leave to rely upon fresh evidence in appeal proceedings. The issues raised concern the proper construction of the relevant provisions of the QCAT Act. The reopening provisions are contained in the QCAT Act in Chapter 2, Part 7, entitled ‘Decisions and enforcement’. Chapter 2, Part 7, Divisions 5, 6 and 7 respectively concern applications for renewal; correction; and reopening of tribunal decisions. None of these applications, that is, for renewal or correction or reopening, may be made by a party in relation to a final decision that is the subject of appeal.[2] [2]QCAT Act - for renewal application see ss 133(6) and (7); correction application see ss 135(4) and (5); and reopening application see ss 138(5) and (6). Division 7, entitled ‘Reopening’, applies to a proceeding except to an appeal under Part 8, Division 1 that has been heard and decided by the tribunal.[3] A party may apply for a proceeding to be reopened, as provided for in s 138, as follows: