Tinney v Allen - [2019] QCATA 116

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Tinney v Allen [2019] QCATA 116

PARTIES:

STEPHANIE KATE TINNEY
(appellant)

v

CHRISTOPHER ALLEN

(respondent)

APPLICATION NO/S:

APL243-18

ORIGINATING APPLICATION NO/S:

MCDO 25/18

MATTER TYPE:

Appeals

DELIVERED ON:

12 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The decision of 2 August 2018 is set aside.

4.   The Application is remitted for hearing before a different Adjudicator.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant applied for leave to appeal – where Tribunal dismissed claim for want of jurisdiction – whether claim was minor civil dispute or building dispute – where enabling Act conferred jurisdiction as building dispute

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where enabling Act prescribed early dispute resolution process – where appellant not given opportunity to present evidence of compliance – where leave needed to correct substantial injustice

Queensland Building and Construction Commission Act 1991 (Qld), s 75, s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, Schedule 3

AAlert Training Pty Ltd v Scott & Ors [2014] QCATA 95
Big4 Brisbane Northside Caravan Village v Schleibs [2012] QCAT 277
Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65
Edwards v Edgar & Wood Solicitors [2018] QCATA 154
Leyden v NJ Tierney Constructions Pty Ltd
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Pisa v Rountree [2011] QCATA 64
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Walsh v Australian Building and Construction Group [2016] QCAT 187

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

REASONS FOR DECISION

What is this appeal about?

An Adjudicator dismissed Stephanie Tinney’s claim of $1,520.00 plus costs against Christopher Allen as a refund for planning work. The learned Adjudicator found that the Tribunal did not have jurisdiction to decide the application because it was not for a liquidated sum and was not a consumer-trader dispute because Mr Allen is not a ‘trader’.
Ms Tinney wants to appeal the decision on the basis that Mr Allen has a building licence and is therefore a trader. Ms Tinney’s appeal on this ground must fail. Mr Allen drafted plans. His work is produced as a result of intellectual activity.[1] The Appeal Tribunal is satisfied that Mr Allen was not a trader because he was acting in the exercise of an exempt discipline.[2]
[1]Edwards v Edgar & Wood Solicitors [2018] QCATA 154, [15] citing Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65, [21].
[2]Edwards v Edgar & Wood Solicitors [2018] QCATA 154, Early Property Group Pty Ltd t/a…

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 Tinney v Allen

Details

AGLC: Tinney v Allen [2019] QCATA 116
Case: [2019] QCATA 116
Decision Date: 12 July 2019

CaseChat Overview and Summary

The appeal in Tinney v Allen was brought before the court by the applicant, who sought leave to appeal a decision made by the Tribunal. The Tribunal had dismissed the applicant's claim for want of jurisdiction. The central issue was whether the applicant's claim was a minor civil dispute or a building dispute, as this distinction would determine which jurisdiction was appropriate under the enabling Act. The applicant contended that the Tribunal had mischaracterised the claim and thus lacked jurisdiction to dismiss the matter.

The court needed to determine if the error made by the Tribunal constituted a legal error that warranted an appeal. The court considered whether the Tribunal had correctly classified the nature of the dispute. Additionally, the court examined whether the Tribunal's failure to allow the applicant to present evidence of compliance with an early dispute resolution process resulted in a substantial injustice. The court concluded that the Tribunal's error in characterising the dispute as a minor civil matter, rather than a building dispute, warranted setting aside the decision and remitting the matter for a hearing before a different Adjudicator.

The court granted leave to appeal, finding that the Tribunal's mischaracterisation of the dispute was indeed a legal error. The court allowed the appeal, setting aside the Tribunal's decision of 2 August 2018. The court found that the applicant's failure to present evidence of compliance with an early dispute resolution process had not been adequately addressed by the Tribunal, resulting in a substantial injustice. Consequently, the court ordered that the matter be remitted for a hearing before a different Adjudicator to allow the applicant an opportunity to present the required evidence. This decision underscored the importance of correctly characterising disputes under the enabling Act and ensuring procedural fairness in administrative tribunals.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 2 August 2018 is set aside.

4. The Application is remitted for hearing before a different Adjudicator.

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:	Tinney v Allen [2019] QCATA 116
PARTIES:	STEPHANIE KATE TINNEY (appellant)
v
CHRISTOPHER ALLEN (respondent)
APPLICATION NO/S:	APL243-18
ORIGINATING APPLICATION NO/S:	MCDO 25/18
MATTER TYPE:	Appeals
DELIVERED ON:	12 July 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 2 August 2018 is set aside. 4. The Application is remitted for hearing before a different Adjudicator.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant applied for leave to appeal – where Tribunal dismissed claim for want of jurisdiction – whether claim was minor civil dispute or building dispute – where enabling Act conferred jurisdiction as building dispute ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where enabling Act prescribed early dispute resolution process – where appellant not given opportunity to present evidence of compliance – where leave needed to correct substantial injustice Queensland Building and Construction Commission Act 1991 (Qld), s 75, s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, Schedule 3 AAlert Training Pty Ltd v Scott & Ors [2014] QCATA 95 Big4 Brisbane Northside Caravan Village v Schleibs [2012] QCAT 277 Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65 Edwards v Edgar & Wood Solicitors [2018] QCATA 154 Leyden v NJ Tierney Constructions Pty Ltd McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Pisa v Rountree [2011] QCATA 64 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Walsh v Australian Building and Construction Group [2016] QCAT 187
REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).