Zanetti v Pierpoint (No 2) - [2011] QCATA 334

CITATION:

Zanetti & Anor v Pierpoint (No 2) [2011] QCATA 334

PARTIES:	Paul Zanetti Michelle Zanetti (Applicants/Appellants)
v
Adrian Pierpoint (Respondent)

APPLICATION NUMBER:

APL299-11

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

14 December 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Appeal is allowed;

2. The application to disqualify the learned Member from further hearing the matter is allowed; and,

3. The matter is to be listed for a directions hearing before Senior Member Kerrie O’Callaghan on a date to be advised by QCAT.

CATCHWORDS:

APPEAL – BIAS – APPREHENDED BIAS – Where applicant appeals against decision to dismiss application to disqualify the Member who has part heard proceedings – Where applicant appeals on grounds that the tribunal failed to properly consider what was said by the tribunal at a directions hearing – Where the decision under appeal fails to take due account of a clear and specific communication at another hearing as to the Member’s position – Whether a reasonable observer would suspect a lack of impartiality – Whether there was a reasonable suspicion of apprehended bias – Where it was found untenable for the learned Member to continue with the hearing – Where the appeal is allowed

Queensland Civil and Administrative Act 2009, s 147(3)(a)(ii)

House v The King (1936) 55 CLR 499 applied
Kuswardana v Minister for Immigration (1981) 35 ALR 186 applied
Pierpoint v Zanetti & Adpoint Development Pty Ltd [2010] QCAT 699 cited
Pierpoint v Zanetti and Ors [2011] QCAT 371 overturned
R v Justices of Rankin River: Ex Parte Sydney; Ex Parte Pluto (1962) 3 FLR 215 applied
R v Watson; Ex Parte Armstrong (1976) 136 CLR 248 applied
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 applied
Zanetti & Anor v Pierpoint [2011] QCATA 228 cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

This long running building case has an unfortunate history which will, regrettably, be exacerbated by this decision. The hearing of the matter began in March 2010 and ran for two days before a QCAT Member. Later, it was thought the matter might have been compromised, but that did not come to pass.
The learned Member who began the hearing was subsequently asked to disqualify himself, on the grounds of apprehended bias. He considered the matter and decided he was not compromised and that he would proceed with the hearing. Mr and Mrs Zanetti have sought leave to appeal that decision.
Leave is necessary because the decision is not this Tribunal’s final decision in the proceeding.[1] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary…

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 Zanetti v Pierpoint (No 2)

Details

AGLC: Zanetti v Pierpoint (No 2) [2011] QCATA 334
Case: [2011] QCATA 334
Decision Date: 14 December 2011

CaseChat Overview and Summary

In the matter of Zanetti v Pierpoint (No 2), the applicant, Zanetti, sought to appeal a decision by the Queensland Civil and Administrative Tribunal (QCAT) to dismiss an application for the disqualification of a Member, Pierpoint, who had part heard the proceedings. The underlying dispute involved a claim by Zanetti against Pierpoint, though the specifics of the original claim are not detailed in this appeal. The appeal was heard by the Queensland Civil and Administrative Tribunal Appeal Panel.

The legal issues at hand centred on whether the tribunal correctly assessed the application for disqualification based on apprehended bias. Zanetti argued that the tribunal had not adequately considered communications made by Pierpoint at a directions hearing, and that there was a reasonable suspicion of bias due to these communications. The appeal hinged on whether a reasonable observer, equipped with all the facts, would suspect a lack of impartiality in Pierpoint.

The appeal panel found that the tribunal's decision was flawed as it failed to properly consider critical communications from Pierpoint that indicated a potential lack of impartiality. The panel concluded that a reasonable observer would indeed suspect such bias, given the circumstances. Consequently, the tribunal was found to have erred in its assessment, leading to the dismissal of the disqualification application. The appeal was allowed, and the application to disqualify Pierpoint was granted.

The orders made by the appeal panel included allowing the appeal, granting the application to disqualify Pierpoint from further hearing the matter, and directing that the case be listed for a directions hearing before Senior Member Kerrie O’Callaghan, with a date to be determined by QCAT.

Orders

Orders of the court

1. The Appeal is allowed;

2. The application to disqualify the learned Member from further hearing the matter is allowed; and,

3. The matter is to be listed for a directions hearing before Senior Member Kerrie O’Callaghan on a date to be advised by QCAT.

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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