Tep v ATS Australasian Technical Services Pty Ltd - [2013] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

Tep v ATS Australasian Technical Services Pty Ltd [2013] QCA 180

PARTIES:

CHAN KOROP TEP
(appellant)
v
ATS AUSTRALASIAN TECHNICAL SERVICES PTY LTD
ABN 71 065 220 831
(respondent)

FILE NO/S:

Appeal No 9286 of 2012
SC No 6272 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2013

JUDGES:

Holmes and Gotterson JJA and Douglas J
Separate reasons for judgment for each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave is granted nunc pro tunc to bring the appeal.

2.   The appeal is allowed.

3.   The judgment below is set aside.

4.   The proceeding is remitted to the trial division for determination of the issues of liability and quantum.

5.   The parties are to provide submissions as to the costs of the appeal and the proceeding below within two weeks of delivery of this judgment.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – OTHER MATTERS – where representatives for the appellant failed to file the order of the primary judge from which the appeal was brought – where r 661(4)(b) of the Uniform Civil Procedure Rules 1999 provides that no appeal may be brought against an order which has not been filed without leave of the court – where no such application was made for leave on the hearing of the appeal – where further submissions were sought from the parties, and where the parties concur that leave should now be granted nunc pro tunc – whether leave should be granted

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS CLEARLY WRONG – GENERALLY – where the appellant unsuccessfully brought an action for damages for personal injuries sustained in a workplace accident alleging breach of contractual and common law duties – where the appellant claimed he had been working on a scaffold the guard-rail of which had collapsed when he leant on it, resulting in a fall – where the trial judge found that the platform of the scaffold was only half a metre above the floor, and entered judgment for the respondent – where the finding of the primary judge as to the platform height contradicted both the pleadings and the direct evidence from both parties – where the finding that the platform was set at half a metre above the ground was critical to making the respondent’s version of the accident feasible – whether such a finding was open on the evidence – whether the appellant was denied procedural fairness where no issue about the height had been raised and where the suggestion that the platform was only half a metre above the ground had not been put to the appellant – whether the court had power under…

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: [2013] QCA 180
Decision Date: 12 July 2013

CaseChat Overview and Summary

In the case of Tep v ATS Australasian Technical Services Pty Ltd, the appellant, Tep, sought to appeal a judgment entered in the District Court of Queensland. The primary dispute centred on the appellant's claim for damages resulting from personal injuries sustained in a workplace accident. Tep alleged that he had been working on a scaffold with a collapsed guard-rail, leading to a fall and injuries. The respondent, ATS, denied liability and argued that the accident occurred under different circumstances. The District Court found in favour of the respondent, and Tep subsequently appealed the decision to the Supreme Court.

The legal issues before the Supreme Court included whether the appeal could proceed due to the non-filing of the primary judge's order and whether the trial judge's findings on the height of the scaffold platform were clearly wrong and open to challenge. Additionally, the court had to determine if procedural fairness was compromised when the issue of the scaffold's height was not raised during the trial and if the court could adjust the trial judge's assessment of damages under the Uniform Civil Procedure Rules.

The Supreme Court found that the appeal could proceed with leave granted nunc pro tunc, acknowledging that the procedural error in not filing the primary judge's order was inadvertent. The court held that the trial judge's finding on the scaffold platform's height was clearly wrong as it contradicted the pleadings and direct evidence. This finding was critical to the respondent's version of the accident and was not supported by the evidence. The court also concluded that the appellant was not denied procedural fairness as the height issue was not a material point raised during the trial. Consequently, the court set aside the original judgment and remitted the matter to the trial division for reconsideration of liability and quantum. Finally, the court ordered the parties to submit their views on the costs of the appeal and the proceeding below within two weeks of the judgment.

Orders

Orders of the court

1. Leave is granted nunc pro tunc to bring the appeal.

2. The appeal is allowed.

3. The judgment below is set aside.

4. The proceeding is remitted to the trial division for determination of the issues of liability and quantum.

5. The parties are to provide submissions as to the costs of the appeal and the proceeding below within two weeks of delivery of this judgment.

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:	Tep v ATS Australasian Technical Services Pty Ltd [2013] QCA 180
PARTIES:	CHAN KOROP TEP (appellant) v ATS AUSTRALASIAN TECHNICAL SERVICES PTY LTD ABN 71 065 220 831 (respondent)
FILE NO/S:	Appeal No 9286 of 2012 SC No 6272 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	25 March 2013
JUDGES:	Holmes and Gotterson JJA and Douglas J Separate reasons for judgment for each member of the Court, each concurring as to the orders made
ORDERS:	*1. Leave is granted nunc pro tunc* to bring the appeal. 2. The appeal is allowed. 3. The judgment below is set aside. 4. The proceeding is remitted to the trial division for determination of the issues of liability and quantum. 5. The parties are to provide submissions as to the costs of the appeal and the proceeding below within two weeks of delivery of this judgment.**
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – OTHER MATTERS – where representatives for the appellant failed to file the order of the primary judge from which the appeal was brought – where r 661(4)(b) of the Uniform Civil Procedure Rules 1999 provides that no appeal may be brought against an order which has not been filed without leave of the court – where no such application was made for leave on the hearing of the appeal – where further submissions were sought from the parties, and where the parties concur that leave should now be granted nunc pro tunc – whether leave should be granted APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS CLEARLY WRONG – GENERALLY – where the appellant unsuccessfully brought an action for damages for personal injuries sustained in a workplace accident alleging breach of contractual and common law duties – where the appellant claimed he had been working on a scaffold the guard-rail of which had collapsed when he leant on it, resulting in a fall – where the trial judge found that the platform of the scaffold was only half a metre above the floor, and entered judgment for the respondent – where the finding of the primary judge as to the platform height contradicted both the pleadings and the direct evidence from both parties – where the finding that the platform was set at half a metre above the ground was critical to making the respondent’s version of the accident feasible – whether such a finding was open on the evidence – whether the appellant was denied procedural fairness where no issue about the height had been raised and where the suggestion that the platform was only half a metre above the ground had not been put to the appellant – whether the court had power under…