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Alderton & Anor v Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay

 

[2019] QCATA 2

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Alderton & Anor v Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay [2019] QCATA 2

PARTIES:

SIMON ALDERTON

(first applicant)

SALLY ALDERTON

(second applicant)

v

WIDE BAY CONSTRUCTIONS PTY LTD T/AS DIXON HOMES HERVEY BAY

(respondent)

APPLICATION NO/S:

APL193 – 18

ORIGINATING APPLICATION NO/S:

APL131 – 2017

MATTER TYPE:

Appeals

DELIVERED ON:

2 January 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

ORDERS:

  1. The application to extend or shorten a time limit or for waiver of compliance with procedural requirement filed on 22 June 2018 is refused.
  2. The application for leave to appeal or appeal filed on 22 June 2018 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – WHEN NO APPEAL LIES – where a party had brought an appeal against an interlocutory decision of the Appeal Tribunal to the Court of Appeal which was refused – where the party then brought a separate application for leave to appeal or appeal from the interlocutory decision of the Appeal Tribunal to the ‘Internal Appeal Tribunal' – where there is no entity known as the ‘Internal Appeal Tribunal’ – where the application is misconceived

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 142, S 150(1)

Alderton & Anor v Wide Bay Constructions Pty Ltd trading as Dixon Homes Hervey Bay [2018] QCA 149

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Bill Dixon Butler Lawyers

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

  1. [1]
    This matter has an increasingly complicated history.
  2. [2]
    Simon Alderton and Sally Alderton (‘the owners’) filed an appeal (APL131-17) in the Tribunal, seeking leave to appeal or appeal the decision of a Member of the Tribunal made on 28 March 2017.
  3. [3]
    In the course of hearing that appeal, the Appeal Tribunal refused to allow the admission of fresh evidence by the owners.
  4. [4]
    The owners then sought to appeal to the Court of Appeal against the refusal to allow the addition of fresh evidence. However, they were out of time to bring that appeal when they sought to do so, and therefore had to make an application to the Court of Appeal for an extension of time to bring the appeal.
  5. [5]
    The Court of Appeal gave its decision on 12 June 2018. It refused the application for extension of time for leave to appeal against the decision to refuse to allow the addition of fresh evidence.
  6. [6]
    The court of appeal found that an appeal from the QCAT Appeal Tribunal only lies in respect of a decision to refuse leave to appeal in relation to a cost–amount or a final decision, not in relation to an interlocutory order.
  7. [7]
    Sofronoff P noted that:[1]
  1. [6]
    The position as it stands is that the applicants have a current appeal (or application for leave to appeal) before QCAT. In the course of that preceding the Appeal Tribunal made an interlocutory decision refusing leave to the applicants to lead further evidence on appeal. The substantive proceeding before the QCAT Appeal Tribunal remains to be heard.
  1. [7]
    Appeals to the Court of Appeal from decisions of the Appeal Tribunal are governed by s 150 of the Queensland Civil and Administrative Tribunal Act (Qld) 2009. There is an appeal as of right against decisions of the Appeal Tribunal to refuse an application for leave to appeal. Appeals may only be made on a question of law and only with leave of the Court of Appeal. Appeals are limited to appeals against two kinds of decisions only. These are a ‘cost amount decision’ and ‘final decision’. A ‘cost amount decision’ is defined to mean a decision of the tribunal about the amount of costs fixed or assessed by it under S107. A ‘final decision’ is, relevantly, one that ‘finally decides the matters the subject of the proceeding’. The proceeding in this case is the applicant’s appeal to the QCAT Appeal Tribunal concerning the rejection of their claim for compensation for rectification of defective work.
  1. [8]
    The decision of Senior Member Howard refusing leave to the applicants to lead further evidence is not a final decision because it does not finally decide the matters the subject of the proceeding.
  1. [9]
    There is no avenue of appeal against an interlocutory decision except as part of any substantive appeal that might be made from the final decision in the QCAT appeal.
  1. [10]
    For these reasons the current application has no foundation and must be refused.
  1. [8]
    The owners still want to attempt to appeal the decision of the Appeal Tribunal to refuse leave to admit fresh evidence. They have brought this appeal (APL193-18) for that purpose.
  2. [9]
    Unfortunately, they have misinterpreted the decision of the Court of Appeal, the appeal process in the Tribunal, and the meaning of section 150(1) of the Queensland Civil and Administrative Tribunal Act (Qld) 2009 (‘the QCAT Act’).
  3. [10]
    In their application for leave to appeal or appeal filed on 22 June 2018, the owners stated in their grounds for appeal as follows:

We seek leave from the Internal Appeals Tribunal to appeal an interlocutory decision of the Appeal Tribunal based on a question or mixed law and fact. The Appeal Tribunal has made an error in refusing the fresh evidence.

  1. [11]
    The orders sought in that application were:
  1. We seek leave from the Internal Appeals Tribunal to make orders to set aside the interlocutory decision of the Appeal Tribunal and substitute with its own decision.
  2. We seek leave from the Internal Appeals Tribunal to make orders allowing the fresh evidence.
  1. [12]
    The owners also filed an application to extend or shorten a time limit or for waiver of compliance with procedural requirement, on 22 June 2018. In that application they said that the reasons they considered that an extension of time for filing of an application seeking leave to appeal should be made, were as follows:
  1. We filed an application seeking leave to appeal an interlocutory decision of the Appeal Tribunal to the Court of Appeal in error. We were not aware we had filed an application with the incorrect court until the hearing date of 19 June 2018.
  2. We are not legal professionals and have found the processes and procedures of QCAT to be very difficult and confusing. Although our application was filed with the incorrect court, we made our best effort. Also, Sally Alderton is currently suffering from mixed anxiety and depressed mood as a result of workplace bullying, breaches of her general protections, followed by unfair dismissal, all currently before the QIRC. Sally has found it difficult to cope with this application, lacking focus and concentration.
  3. The fresh evidence we seek the Internal Appeals Tribunal to allow has significant weight to our Appeal before the Appeal Tribunal.
  4. The respondent is aware of our intention to seek leave to appeal the decision of the Appeal Tribunal to refuse the fresh evidence. The respondent did not participate in the proceedings before the Court of Appeal. As the respondent is aware of our intent, the respondent will not be prejudiced by an extension of time.
  1. [13]
    The Appeal Tribunal gave directions on 10 September 2018 in relation to this application, and directed that the parties file submissions in relation to it. The appeal Tribunal noted by direction 2:
  1. 2.
    The Tribunal intends to consider dismissing the application for leave to appeal or appeal on the basis that the Appeal Tribunal does not have jurisdiction to hear an appeal arising from a decision of its own appeal jurisdiction.
  1. [14]
    The owners filed submissions in support of this application on 24 September 2018. They submitted that the application is based upon their reading of the QCAT information sheet:
  1. 2.
    In making an application to the Internal Appeals Tribunal, we referred to the guidelines outlined in the QCAT Website Information Sheet – Interim Decision, attached. We also referred to sections 94 – 97 of the Queensland Civil and Administrative Tribunal Rules (Qld) 2009. Accordingly we find the Internal Appeals Tribunal has the jurisdiction to hear an appeal arising from a decision of its own appeal jurisdiction.

In order for us to otherwise appeal the interlocutory decision made by the Appeal Tribunal on 24 November 2017, we require section 151 (1) of the Queensland Civil and Administrative Tribunal Act 2009 to be satisfied.

  1. [15]
    The use of the expression ‘The Internal Appeals Tribunal’ in the QCAT website information sheet is unfortunate, and appears to have confused the owners.
  2. [16]
    There is no separate entity in the Act known as ‘The Internal Appeals Tribunal’. There is only the Tribunal at first instance (which is usually constituted by a single Member, unless the particular enabling legislation requires otherwise); and the Appeal Tribunal referred to in section 142 of the QCAT Act.
  3. [17]
    The builder filed amended submissions in relation to the application on
    18 October 2018. It opposed the application on the grounds that the owners had given no adequate explanation for their failure to make the application within 28 days of decision, that any grant of leave would result in significant prejudice to it (being the cost of a full-day hearing of the substantive appeal on 9 March 2018), and that the grounds of appeal do not adequately particularise the basis upon which the owners say that the Appeal Tribunal erred in refusing leave to rely on fresh evidence.
  4. [18]
    The builder submits that the application has no merits because the Appeal Tribunal decision was properly made, and involves no error on a question of mixed law and fact.
  5. [19]
    The owners filed submissions in response on 12 October 2018. In those submissions they asked that they be given leave to appeal to the Court of Appeal:

However, in the event the Internal Appeals Tribunal decides to dismiss our application seeking leave to appeal, we require section 150 (1) of the Queensland Civil and Administrative Tribunal Act 2009 to be satisfied in order for us to seek leave to appeal to the Court Of Appeal.

  1. [20]
    Section 150(1) of the QCAT Act provides as follows:
  1. (1)
    a person may appeal to the Court of Appeal against a decision of the Appeal Tribunal to refuse an application for leave to appeal to the Appeal Tribunal.
  1. [21]
    The meaning of section 150(1) of the QCAT Act is to allow a party to appeal to the Court of Appeal, if the Appeal Tribunal refuses leave to appeal in the first place. That has not yet happened in this matter.
  2. [22]
    It is understandable that these technical procedural steps could be confusing to a party representing themselves, who have not had any legal experience. The owners have in this instance misinterpreted what the sections of the QCAT Act mean.
  3. [23]
    The expression ‘leave to appeal’ arises because the QCAT Act provides that in some matters an appeal may be brought without any further steps, whilst in other cases, leave is first required to bring the appeal. Regard has to be had to the appropriate sections of the QCAT Act in order to determine which requirement is applicable.
  4. [24]
    For convenience, QCAT has a practice of hearing both an ‘application for leave to appeal’ and an ‘appeal’ at the same time, so that the parties do not need to come back for a second hearing. By contrast, in some courts, such as in the High Court of Australia, these are two distinct steps; first there is a hearing for leave to appeal, and that is heard and decided; if leave is granted, the matter is then set down for a separate appeal hearing.
  5. [25]
    The Court of Appeal noted that there is no avenue of appeal to it against an interlocutory decision of the Appeal Tribunal, except as part of any substantive appeal that might be made from the final decision in the QCAT appeal.
  6. [26]
    There is no power in the Appeal Tribunal to hear an appeal from itself.
  7. [27]
    The result is that there is no avenue to appeal an interlocutory decision of the Appeal Tribunal until a final decision or cost-decision is made
  8. [28]
    The applications are misconceived, and I order, pursuant to section 47(1)(a) of the QCAT Act that:
  1. (1)
    The application to extend or shorten a time limit or for waiver of compliance with procedural requirement filed 22 June 2018 is refused.
  2. (2)
    The application for leave to appeal or appeal filed on 22 June 2018 is dismissed.

Footnotes

[1]Alderton and Anor v Wide Bay Constructions Pty Ltd Trading As Dixon Homes Hervey Bay (2018) QCA 149, [6]-[10].

Close

Editorial Notes

  • Published Case Name:

    Simon & Sally Alderton v Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay

  • Shortened Case Name:

    Alderton & Anor v Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay

  • MNC:

    [2019] QCATA 2

  • Court:

    QCATA

  • Judge(s):

    Member Paratz

  • Date:

    02 Jan 2019

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2017] QCAT 9028 Mar 2017Applicant's claims dismissed: Member Quinlivan.
Primary Judgment[2017] QCATA 14724 Nov 2017Application in appeal from [2017] QCAT 90 for leave to file fresh evidence refused: Senior Member Howard.
Primary Judgment[2019] QCATA 202 Jan 2019Application for leave to appeal against [2017] QCATA 147 refused as incompetent: Member Paratz.
Notice of Appeal FiledFile Number: Appeal 3204/1821 Mar 2018-
Appeal Determined (QCA)[2018] QCA 14929 Jun 2018Application for extension of time for leave to appeal against [2017] QCATA 147 refused: Sofronoff P and Gotterson JA and Ryan J.
Appeal Determined (QCA)[2019] QCA 8415 May 2019Application for leave to appeal against [2019] QCATA 2 refused: Gotterson JA, McMurdo JA and Mullins J.

Appeal Status

Appeal Determined (QCA)
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