Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Nuttell Pty Ltd v The Ashtay Group Pty Ltd[2015] QCATA 16

Nuttell Pty Ltd v The Ashtay Group Pty Ltd[2015] QCATA 16

CITATION:

Nuttell Pty Ltd v The Ashtay Group Pty Ltd [2015] QCATA 16

PARTIES:

Nuttell Pty Ltd

(Applicant)

v

The Ashtay Group Pty Ltd

(Respondent)

APPLICATION NUMBER:

APL030-15

MATTER TYPE:

Appeals

HEARING DATE:

3 February 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

DELIVERED ON:

3 February 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision to allow legal representation is set aside.
  4. The applicant file submissions in response to the respondent’s application for legal representation by 4:00pm on 5 February 2015.
  5. The application for legal representation be remitted to the Member for rehearing.

CATCHWORDS:

Appeal – Leave to Appeal – where Tribunal made decision to allow legal representation – where applicant not given opportunity to respond to application

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

REPRESENTATIVES:

 

APPLICANT:

Nuttell Pty Ltd represented by John Ellis, director

RESPONDENT:

The Ashtay Group Pty Ltd represented by Mr C T Harris of HWL Ebsworth Lawyers

REASONS FOR DECISION

  1. [1]
    The applicant and respondent were parties to an agreement whereby the respondent agreed to construct a townhouse development for the applicant. The parties fell into dispute and the applicant filed an application for commercial building disputes. The respondent has filed a response and counter-claim.
  2. [2]
    As is standard practice in these disputes the Tribunal issued directions requiring the parties to file statements of evidence and other material and the matter was set down for a compulsory conference to be held on 10 February 2015.
  3. [3]
    On 19 December 2014 the respondent filed an application for leave to be legally represented at the compulsory conference. They also filed written submissions in support of the application. They annexed to their application a letter from the applicant where the applicant indicated it did not consent to legal representation.
  4. [4]
    On 6 January 2015 the Tribunal made an order that the application for legal representation was granted. The applicant seeks leave to appeal and appeal that decision.
  5. [5]
    Because it is not a final decision the applicant needs leave to appeal.
  6. [6]
    In its application the applicant raises a number of grounds regarding the merits of the decision to allow legal representation. Reasons for the Member’s decision have not been asked for or delivered. It is not possible therefore to identify any error or exercise of the Member’s discretion.
  7. [7]
    The grounds of appeal however raise the issue of denial of procedural fairness in that:
    1. a)
      The applicant was not notified by the Tribunal prior to the matter being heard and had not had an opportunity to address the respondent’s written submissions and formerly object to the application.
    2. b)
      The applicant was not provided a stamped copy of the application in accordance with the requirements of the form.
  8. [8]
    The respondent says the applicant was not denied procedural fairness as its solicitor emailed a copy of the application to the applicant on 19 December 2014. It says the applicant should have then provided written submissions to the Tribunal if it wanted to be heard on the application.
  9. [9]
    Mr Ellis on behalf of the applicant says he assumed he would be given a stamped copy of the application (as required by the form) and was waiting to receive that and hear from the Tribunal so he could put written submissions in to oppose the application.
  10. [10]
    I accept that procedural fairness was not afforded to the applicant in the Tribunal’s determination of the application for legal representation.
  11. [11]
    The applicant should have been given the opportunity to make submissions in response prior to the learned Member determining the application.
  12. [12]
    For that reason I must grant leave and allow the appeal.
  13. [13]
    The denial of natural justice is a question of law.
  14. [14]
    In deciding an appeal against a decision on the question of law the Tribunal’s powers are provided for in s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’). The Tribunal can set aside the decision and substitute its own decision. It cannot however rehear the matter. That power is only available where a question of fact is also involved.
  15. [15]
    Unfortunately, as this matter cannot be decided without a rehearing to give the applicant the opportunity to make submissions and for the Tribunal to exercise its discretion based on those submissions, it will have to be returned to the Member to rehear.
  16. [16]
    In order to ensure that the compulsory conference goes ahead as scheduled I will only allow a short timeframe for the applicant to provide written submissions.
  17. [17]
    I order that:
  1. Leave to appeal is granted.
  1. The appeal is allowed.
  1. The decision to allow legal representation is set aside.
  1. The applicant file submissions in response to the respondent’s application for legal representation by 4:00pm on 5 February 2015.
  1. The application for legal representation be remitted to the Member for rehearing.
Close

Editorial Notes

  • Published Case Name:

    Nuttell Pty Ltd v The Ashtay Group Pty Ltd

  • Shortened Case Name:

    Nuttell Pty Ltd v The Ashtay Group Pty Ltd

  • MNC:

    [2015] QCATA 16

  • Court:

    QCATA

  • Judge(s):

    Senior Member O'Callaghan

  • Date:

    03 Feb 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.