Turner v Nuske - [2020] QCATA 116

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Turner v Nuske [2020] QCATA 116

PARTIES: WARD TURNER

(applicant/appellant)

v

PHILLIP NUSKE

(respondent)

APPLICATION NO:

APL135-20

ORIGINATING APPLICATION NO:

MCDO160/19 (Caboolture)

MATTER TYPE:

Appeals

DELIVERED ON:

12 August 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:
1.   The application for an extension of time to seek leave to appeal or appeal is dismissed.

2.   The application for a stay of the decision made 7 April 2020 is dismissed.

3.   The application to seek leave to appeal or appeal is dismissed.

CATCHWORDS:
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE - EXTENSION OF TIME TO APPEAL – STAY OF PROCEEDINGS - where application for leave to appeal or appeal filed out of time – whether explanation for delay satisfactory – merits of application for leave to appeal or appeal – prejudice to party – whether circumstances exist for a stay.

Acts Interpretation Act 1954 (Qld) s39A

Evidence Act 1995 (C/W) s160

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48(1)(b), s 143(3)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Fancourt v Mercantile Credits Limited [1993] HCA 28
Hessey-Tenny & Anor v Jones [2018] QCATA 131
Reeve v Hamlyn [2015] QCATA 133

Wilkes v Andrew [2012] QCATA 173

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

Ward Turner is the respondent to an application for a minor civil dispute – consumer dispute, filed 14 October 2019. The application was commenced by Phillip Nuske for moneys owing but unpaid, for customisation and repair work performed by Mr Nuske on Mr Turner’s Ford Mustang Registration Number S 3202. A hearing was held in the Caboolture Magistrates’ Court on 4 February 2020.
On 7 April 2020, it was decided that Ward Turner pay Phillip Nuske the sum of $6,664.55. The Tribunal file records that the decision was posted by the Registrar to Mr Turner at his address of 17-19 Walnut Court, Burpengary, Queensland on 8 April 2020. In the ordinary course of post the decision would be received by Mr Turner on 17 April 2020.
On 26 May 2020, Mr Turner filed an application for leave to appeal or appeal and an application to stay a decision.
Mr Turner was directed to establish that the application for leave to appeal or appeal and the application to stay a decision had been given to Mr Nuske by 4:00 on 9 June 2020.
On 19 June 2020, a document was filed in the Tribunal by Mr Turner, which purports to be an affidavit of service of documents. The document is not in the Tribunal form and appears to be a cut and paste amalgam of the form. It is deficient in that it does not swear to the manner of service of the application documents on Mr Nuske.
I am not satisfied that the application for…

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 Turner v Nuske

Details

AGLC: Turner v Nuske [2020] QCATA 116
Case: [2020] QCATA 116
Decision Date: 12 August 2020

CaseChat Overview and Summary

The case of Turner v Nuske involved an appeal by the respondent against a decision made on 7 April 2020. The respondent sought an extension of time to appeal the decision and a stay of the proceedings. The appeal was considered by the court, which needed to determine whether the respondent had provided a satisfactory explanation for the delay in filing the appeal, the merits of the appeal itself, the potential prejudice to the applicant if the appeal were not heard, and whether the circumstances warranted a stay of the decision.

The court examined the respondent's explanation for the delay in filing the appeal and found it insufficient. The respondent also needed to demonstrate the merits of the appeal and the potential prejudice to them if the appeal were not heard. The court considered these factors, along with the overall circumstances, in deciding whether to grant the application for a stay.

After reviewing the evidence and arguments presented, the court concluded that the explanation for the delay was unsatisfactory, the appeal lacked merit, and there was no significant prejudice to the respondent. The court also determined that the circumstances did not warrant a stay of the decision. Consequently, the court dismissed the respondent's application for an extension of time to seek leave to appeal or appeal, the application for a stay of the decision made on 7 April 2020, and the application to seek leave to appeal or appeal.

Orders

Orders of the court

1. The application for an extension of time to seek leave to appeal or appeal is dismissed.

2. The application for a stay of the decision made 7 April 2020 is dismissed.

3. The application to seek leave to appeal or 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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