Surrey v Sand and Surf Design Pty Ltd - [2015] QCA 274

SUPREME COURT OF QUEENSLAND

CITATION:

Surrey & Anor v Sand and Surf Design Pty Ltd [2015] QCA 274

PARTIES:

KEVIN SURREY
ALEXIS SURREY
(applicants)
v
SAND AND SURF DESIGN PTY LTD
ACN 134 308 268
(respondent)

FILE NO/S:

Appeal No 8865 of 2014
QCAT No 209 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2014] QCATA 225

DELIVERED ON:

15 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2015

JUDGES:

Holmes CJ and Douglas and North JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for leave to appeal is refused.

2. The applicants are to pay the respondent’s costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the applicants seek leave to appeal under s 150(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT) which set aside the decision of a Tribunal member – where s 150(2)(b) requires that an appeal be made against a “final decision” of the Tribunal – where a “final decision” is defined as a “decision that finally decides the matters the subject of the proceeding” – where the respondent asserts that the Appeal Tribunal’s decision was no more than a determination of a preliminary issue, rendering the application for leave to appeal incompetent – whether a “final decision” must resolve every aspect of a proceeding to amount to a “final decision”

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINT AND OBJECTIONS NOT TAKEN BELOW – where the applicants claim that they were denied natural justice because the Appeal Tribunal failed to consider and determine an argument as to whether there was evidence on which the Tribunal member could make a particular finding of fact – whether the applicants had actually made the argument about the particular finding – whether the Appeal Tribunal addressed the argument – whether there was evidence to support the Tribunal member’s finding – whether the applicants were denied natural justice

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where the applicants claimed the Appeal Tribunal had misstated the law as to the proper approach to first instance finding of facts and had consequently failed to reconsider certain findings of fact by the Tribunal member – whether the Appeal Tribunal misapplied Fox v Percy (2003) 214 CLR 118 – whether the Appeal Tribunal erred in declining to interfere with certain findings of the Tribunal

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – POINT AND OBJECTIONS NOT TAKEN BELOW – where the applicants claim the Appeal Tribunal failed to have regard to or alternatively failed to give appropriate weight to their evidence – whether the Appeal Tribunal disregarded or…

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: [2015] QCA 274
Decision Date: 15 December 2015

CaseChat Overview and Summary

Surrey sought leave to appeal against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT) that set aside a decision of a Tribunal member. The applicants argued that the Appeal Tribunal's decision was not a "final decision" under s 150(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). They contended that a final decision must resolve every aspect of a proceeding. Additionally, the applicants claimed that they were denied natural justice because the Appeal Tribunal did not consider whether there was evidence to support a particular finding of fact by the Tribunal member. They also argued that the Appeal Tribunal misapplied the principles in Fox v Percy and failed to give appropriate weight to their evidence. Lastly, the applicants submitted that the Appeal Tribunal erred in disturbing a factual conclusion of the Tribunal member.

The court held that the Appeal Tribunal's decision was a "final decision" as it finally decided the matters in the proceeding. The court also found that the applicants had not made the argument about the particular finding of fact, and the Appeal Tribunal had not erred in declining to consider it. Furthermore, the Appeal Tribunal did not misapply Fox v Percy and did not disregard or fail to give appropriate weight to the applicants' evidence. Lastly, the Appeal Tribunal's conclusions did not entail any error of law.

Accordingly, the application for leave to appeal was refused. The applicants were ordered to pay the respondent's costs.

In summary, the court held that the Appeal Tribunal's decision was final and did not deny the applicants natural justice. The Appeal Tribunal also did not misapply the law or err in its findings of fact. As a result, the application for leave to appeal was dismissed, and the applicants were ordered to pay the respondent's costs.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The applicants are to pay the respondent’s costs.

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:	Surrey & Anor v Sand and Surf Design Pty Ltd [2015] QCA 274
PARTIES:	KEVIN SURREY ALEXIS SURREY (applicants) v SAND AND SURF DESIGN PTY LTD ACN 134 308 268 (respondent)
FILE NO/S:	Appeal No 8865 of 2014 QCAT No 209 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane – [2014] QCATA 225
DELIVERED ON:	15 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2015
JUDGES:	Holmes CJ and Douglas and North JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is refused. 2. The applicants are to pay the respondent’s costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the applicants seek leave to appeal under s 150(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT) which set aside the decision of a Tribunal member – where s 150(2)(b) requires that an appeal be made against a “final decision” of the Tribunal – where a “final decision” is defined as a “decision that finally decides the matters the subject of the proceeding” – where the respondent asserts that the Appeal Tribunal’s decision was no more than a determination of a preliminary issue, rendering the application for leave to appeal incompetent – whether a “final decision” must resolve every aspect of a proceeding to amount to a “final decision” APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINT AND OBJECTIONS NOT TAKEN BELOW – where the applicants claim that they were denied natural justice because the Appeal Tribunal failed to consider and determine an argument as to whether there was evidence on which the Tribunal member could make a particular finding of fact – whether the applicants had actually made the argument about the particular finding – whether the Appeal Tribunal addressed the argument – whether there was evidence to support the Tribunal member’s finding – whether the applicants were denied natural justice APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where the applicants claimed the Appeal Tribunal had misstated the law as to the proper approach to first instance finding of facts and had consequently failed to reconsider certain findings of fact by the Tribunal member – whether the Appeal Tribunal misapplied Fox v Percy (2003) 214 CLR 118 – whether the Appeal Tribunal erred in declining to interfere with certain findings of the Tribunal APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – POINT AND OBJECTIONS NOT TAKEN BELOW – where the applicants claim the Appeal Tribunal failed to have regard to or alternatively failed to give appropriate weight to their evidence – whether the Appeal Tribunal disregarded or…