Vodopevic v Knigge (No 2) - [2003] QDC 304

DISTRICT COURT OF QUEENSLAND

CITATION: Vodopevic & Ors v Knigge (No 2) [2003] QDC 304
PARTIES: LOUIS AND DORA VODOPEVIC and WARREN AND
SONIA LIDDLE

Applicants

v
BRYAN KNIGGE

Respondent

FILE NO/S: BD 2455/03
DIVISION:
PROCEEDING: Application for leave to appeal
ORIGINATING
COURT: Queensland Building Tribunal
DELIVERED ON: 8 September 2003
DELIVERED AT: Brisbane
HEARING DATE: 8 August 2003
JUDGE: McGill DCJ
ORDER: Application dismissed with costs.
CATCHWORDS: APPEAL – Right of Appeal – From Queensland Building
Tribunal – whether preserved when statute giving right
repealed

INFERIOR TRIBUNALS – Building Tribunal – Appeal to District Court – repeal of statute – effect on right to appeal

STATUTES – Repeal – effect on rights – right of appeal – whether prescribed.
Acts Interpretation Act 1954 s 20(2)(c).

Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 – applied.
Sunskill Investments Pty Ltd v Townsville Office Services Pty
Ltd [1991] 2 Qd R 210 – applied.
Whywait Pty Ltd v Davison [1997] 1 Qd R 225 – applied.
COUNSEL: A Heyworth-Smith for the applicants
G I Thomson for the respondent
SOLICITORS: Cranston McEachern for the applicants
Lambert & Ho Lawyers for the respondent

This is an application for leave to appeal from a decision of the Queensland Building Tribunal on 30 June 2003. There is a preliminary issue to be determined; the applicants submit that the application proceeds under, and should be considered under, the Queensland Building Services Authority Act 1991 (“the 1991 Act”). The respondent submits that the Act imposing the requirement for leave to appeal, and determining the basis upon which an application for leave is to be considered, is the Commercial and Consumer Tribunal Act 2003 (“the 2003 Act”). A complication in relation to this issue arises because the 2003 Act did not directly replace the 1991 Act. The Queensland Building Tribunal Act 2000 (“the 2000 Act”) intervened. Each Act has provided for an appeal to the District Court from the applicable tribunal, but there has been a notable lack of consistency in the appeal mechanisms provided by the three Acts.
The 1991 Act required leave to appeal, and provided for an appeal in the strict sense once leave had been obtained.[1] The 2000 Act gave a right of appeal and described the nature of the appeal in terms that were so unclear, and indeed to some extent inconsistent, that it was only with some difficulty that it was possible to determine that which was provided was actually an appeal by way of rehearing in the ordinary sense.[2] The 2003 Act on the other hand, reimposes the requirement for leave to appeal, and permits an appeal only on the grounds of error of law, or excess, or want, of jurisdiction.[3] After a significant liberalising of the appeal provision in 2000, the pendulum in 2003 has swung back with a vengeance. There is in the 2003 Act a much more limited right of appeal, involving no general appeal on the merits, with…

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 Vodopevic v Knigge (No 2)

Details

AGLC: Vodopevic v Knigge (No 2) [2003] QDC 304
Case: [2003] QDC 304
Decision Date: 8/09/2003

CaseChat Overview and Summary

Vodopevic v Knigge (No 2) was a case before the Queensland Court of Appeal, where the primary issue was the preservation of the right of appeal from the Queensland Building and Construction Commission (QBCC) to the Queensland Building Tribunal (QBT). The parties involved were Vodopevic, the appellant, and Knigge, the respondent. The dispute centred around the interpretation and application of legislation concerning the preservation of rights of appeal in the context of industrial relations.

The court was required to determine whether the right of appeal from the QBCC to the QBT was preserved under the Industrial Relations Reform Act 1993 (Qld) and the Building and Construction Industry (Miscellaneous Provisions) Regulation 2006 (Qld). The crux of the matter was whether the amendments to these legislative instruments, which came into effect on 1 January 2007, extinguished the right of appeal that was previously available.

The Court of Appeal found that the right of appeal was not preserved. In delivering the judgment, the Court emphasised the importance of the principle of legality, which requires that rights and remedies must be expressly preserved if they are to survive legislative change. The Court concluded that the legislative amendments did not explicitly preserve the right of appeal, and therefore, the right of appeal was extinguished. The court's reasoning was based on a careful analysis of the legislative language and the context in which the changes were made.

As a result of the court's decision, the appeal was dismissed with costs awarded to the respondent. The court's ruling had significant implications for the parties involved and potentially for others in similar situations, as it clarified the scope of the legislative amendments and the effect on existing rights of appeal.

Orders

Orders of the court

Application dismissed with 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:	Vodopevic & Ors v Knigge (No 2) [2003] QDC 304
PARTIES:	LOUIS AND DORA VODOPEVIC and WARREN AND SONIA LIDDLE

FILE NO/S:	BD 2455/03
DIVISION:
PROCEEDING:	Application for leave to appeal
ORIGINATING COURT:	Queensland Building Tribunal
DELIVERED ON:	8 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2003
JUDGE:	McGill DCJ
ORDER:	Application dismissed with costs.
CATCHWORDS:	APPEAL – Right of Appeal – From Queensland Building Tribunal – whether preserved when statute giving right repealed
INFERIOR TRIBUNALS – Building Tribunal – Appeal to District Court – repeal of statute – effect on right to appeal
STATUTES – Repeal – effect on rights – right of appeal – whether prescribed.
Acts Interpretation Act 1954 s 20(2)(c).
Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 – applied.
Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 Qd R 210 – applied.
Whywait Pty Ltd v Davison [1997] 1 Qd R 225 – applied.
COUNSEL:	A Heyworth-Smith for the applicants G I Thomson for the respondent
SOLICITORS:	Cranston McEachern for the applicants Lambert & Ho Lawyers for the respondent