Pointon v Redcliffe Demolitions Pty Ltd
[2002] QDC 131
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- Unreported Judgment
- Pointon v Redcliffe Demolitions Pty Ltd[2002] QDC 131
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Pointon v Redcliffe Demolitions Pty Ltd[2002] QDC 131
Pointon v Redcliffe Demolitions Pty Ltd[2002] QDC 131
DISTRICT COURT OF QUEENSLAND
CITATION: | Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131 |
PARTIES: | DANNY POINTON (Appellant) v REDCLIFFE DEMOLITIONS PTY LTD (Respondent) |
FILE NO/S: | Appeal 5981/01 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | Queensland Building Tribunal |
DELIVERED ON: | 24 May 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 April 2002 |
JUDGE: | McGill DCJ |
ORDER: | Leave to Appellant to amend notice of appeal, and consequential orders |
CATCHWORDS: | APPEAL AND NEW TRIAL – Appellate Jurisdiction – Queensland Building Tribunal – nature of appeal – Queensland Building Tribunal Act 2000 s.92 INFERIOR TRIBUNALS – Building Tribunal – Appeal to District Court – nature of appeal – Queensland Building Tribunal Act 2000 s.92 |
COUNSEL: | C Muir for the Appellant R W Taylor for the Respondent |
SOLICITORS: | Norman & Kingston for the Appellant Michael Hefford for the Respondent |
- [1]This is an Appeal from a decision of the Queensland Building Tribunal brought to this court pursuant to s. 92 of the Queensland Building Tribunal Act 2000 (“the Act”). On 19 February 2002 Robin DCJ ordered that outlines of argument be filed by particular dates and a Certificate of Readiness by 2 April 2002, and that the appeal be adjourned to 12 April 2002 for hearing. On that date it came on before me, but the parties were not ready for a hearing because a transcript of the evidence given in the course of the proceedings before the Tribunal was not available. There was however some dispute between the parties before me as to the nature of the appeal, and whether there was a valid appeal. The respondent sought that the appeal be struck out, for failure to comply with s. 92 (3) (v) of the Act.
Background
- [2]The respondent Redcliffe Demolitions Pty Ltd applied on 28 August 2001 to the Queensland Building Tribunal seeking payment of the sum of $4,000.00 alleged to be owing to it by the appellant. The statement of claim filed with the application alleged that the respondent was a home removalist who had contracted with the appellant to move a house property for $10,000.00, had done so and had been paid $6,000.00 and given a cheque for the balance of $4,000.00, which was subsequently stopped prior to payment, and sought payment of that balance. In the alternative a claim was made in quantum meruit on the basis that $10,000.00 was reasonable remuneration for the work done.
- [3]Following a directions hearing on 4 October 2001 the appellant filed a defence on 15 October 2001 in which it was alleged that the agreement made on or about 17 June 2001 was for the removal of the house and resiting and restumping on certain land owned by the appellant, that the respondent subsequently altered the written contract which had been entered into, and had failed to do the restumping, and that $6,000.00 which had already been paid was reasonable remuneration for the work in fact done by the respondent. A mediation on 31 October 2001 was unsuccessful, and the matter proceeded to an expedited hearing on the same day.
- [4]It was common ground that a contract in writing had been signed for work to be done at a price of $10,000.00. The respondent’s evidence was that prior to the signature of the standard form contact a clause providing for the work to include restumping had been deleted, whereas the appellant’s was that it had not been deleted, and that he had expected that the price of $10,000.00 included restumping. The contract in its current form has the relevant deletions; he said that they were not made at the time that he signed it. The cheque was handed over at the conclusion of the work, because he was concerned that otherwise the house would not be lowered onto the stumps, but he always intended to stop payment of it. The respondent had provided a written quotation for doing the work including the stumping at $14,000.00, which the appellant acknowledged receiving.
- [5]A member of the Tribunal, having heard the witnesses, preferred the evidence of the respondent to the evidence of the appellant and ordered the appellant to pay $4,000.00 to the respondent. The dispute was essentially one where the decision essentially turned on the assessment of the credibility of the witnesses. The formal decision of the Tribunal was given on 20 November 2001, and was that the appellant pay the respondent the sum of $4,000.00 by 4 pm on 11 December 2001 failing which interest would be paid on the sum outstanding from the date of the decision until the date of payment. The issue of costs was resolved by further decision of the Tribunal on 14 March 2002, that the appellant pay the respondent’s costs in the sum of $2,317.50 within twenty one (21) days of the order.
- [6]On 17 December 2001 a notice of appeal was filed in this court. It is not apparent whether the parties were present when the decision was given, or if not when it was served on them, but it has not been disputed that the notice of appeal was filed within time. The appellant sought to set aside the whole decision and sought a decision in favour of the appellant with costs. The notice of appeal states “this appeal is on the grounds that:
- the appellant seeks a hearing de novo of the proceedings the subject of the appeal.
Presumably the notice of appeal was promptly served, because on 21 December 2001 a notice of address for service on behalf of the respondent was filed in the court. Thereafter nothing was done until a Registrar’s reference came before the court on 19 February 2002 when the directions referred to earlier were given.
- [7]It is apparent from His Honour’s reasons for judgment on that occasion that there was some argument before His Honour as to whether it was appropriate given the nature of the appeal to file an outline of argument in accordance with the requirements of the practice direction, but His Honour thought that an outline of argument would assist in directing the attention of the Judge hearing the appeal to the relevant issues. He noted that there were no grounds whatever stated in the notice of appeal, which he found entirely unhelpful. There was some concern on the part of the respondent for the matter to proceed promptly to a hearing, and accordingly His Honour fixed a date for hearing.
- [8]As required by His Honour’s directions an outline of submissions on behalf of the appellant was filed on 19 March 2002, and outlines of submissions on behalf of the respondent were filed on 20 and 21 March 2002, apparently in identical terms; the former was forwarded to the court by fax. The appellant’s outline is in fact a submission as to the version of the facts which ought to be accepted on appeal, and as to the conclusion which should flow from that version. The respondent’s outline however submitted that there has been no error of fact or law or in any exercise of any discretion (if there was any) shown on the part of the Tribunal, and therefore there was no demonstrable error so there was no appeal, and it ought to be dismissed. This reveals a fairly substantial difference between the parties as to the nature of the appeal.
- [9]On 12 April it was submitted on behalf of the appellant that the effect of s.92 was that the appeal was by way of a hearing de novo, a complete rehearing of the matter, so that the case was conducted as if the matter had not risen for determination before. On the other hand, the respondent submits that the appeal is by way of rehearing and that it is a matter for the appellant to show that the decision under appeal is wrong. The respondent also submitted that the failure to comply with the requirement that the notice of appeal “state the grounds for the application” meant that there had been no appeal in accordance with s.92 of the Act, and so the proceeding should be dismissed or struck out. The appellant submitted that any deficiency in this respect could be overcome by amendment to the notice of appeal. The respondent however submitted that leave to amend should not be given, in the circumstances of the present case. Logically this issue arises first for determination.
Failure to State Grounds
- [10]The general trend of modern authorities is to treat a failure to comply with procedural requirement of a statutory provision for an appeal as not a matter going to the jurisdiction of the appellant court: Doubletime Pty Ltd v Ryan [2002] 1 QdR 371, especially at p.374. That case discussed certain procedural requirements of s.222 of the Justices Act 1886, and effectively overruled R v Judge of the District Court of Brisbane and Davies; ex parte Allen [1969] QdR 114. I am not aware of any occasion when the Court of Appeal has considered the effect of s.92 of the Act, but I think it likely that the Court would adopt a similar approach to that adopted in this decision. That indicates that the failure to state grounds would be a matter of procedural irregularity rather than a matter which would deprive this court of jurisdiction.
- [11]It would therefore be open to overcome the difficulty by giving leave to amend the notice of appeal to enable grounds to be inserted. Rule 751 of the Uniform Civil Procedure Rules permits a notice of appeal to the Court of Appeal to be amended with the leave of that Court, and by r.785 that rule is made applicable to the present appeal with necessary changes: the change which is necessary is that the leave is to be given by this court rather than by the Court of Appeal. Accordingly there is power in this Court to give leave to amend the notice of appeal in the present case. Whether leave should be given depends on the significance of the grounds of appeal, and indeed whether there could be any good grounds of appeal; the position adopted by the respondent is effectively that any appeal would be a waste of time and therefore leave should be refused. In order to assess that it is necessary to decide the true nature of the appeal provided for by s.92.
Nature of the Appeal
- [12]Section 92 which provides for the appeal is in the following terms:
- “92(1)A party to a proceeding before the tribunal may appeal to the District Court against a decision of the tribunal that finally decides matters the subject of the proceeding.
- (2)An appeal must be filed within 28 days after the decision takes effect
- (3)An appeal must –
- (a)be accompanied by the tribunal’s decision and reasons for decision, if any; and
- (b)refer to the tribunal’s decision and reasons for decision, if any, and any other relevant material and state the grounds for the application.
- (4)The Appeal is by way rehearing, unaffected by the tribunal’s decision, on the material before the tribunal and any further evidence allowed by the District Court.
- (5)The tribunal is not a party to the appeal but the party appealing must serve a copy of the appeal and supporting documents on the tribunal within 7 days of filing the appeal in the District Court.
- (6)On an appeal, the District Court may do any of the following –
- (a)confirm, annul, vary or reverse the tribunal’s decision; or
- (b)remit the case to the tribunal for further hearing or rehearing; or
- (c)make consequential or ancillary orders or directions.
- (7)The registrar of the District Court must give the tribunal a copy of the court’s judgment and reasons.”
- [13]There are a number of other features of the Act which are worth considering. Proceedings are started in the Tribunal by an applicant filing an application which must state the facts or grounds on which the application is based and the claim made and the outcome or orders sought by the applicant: s.29. The respondent must file a defence to the application setting out the facts relied on in defence of the claim and the nature of the defence, and may file a counter-claim setting out the facts on which the counter-claim is based and the outcome or orders sought by the respondent in relation to the counter-claim: s.30. By s.41, procedure is at the discretion of the Tribunal subject to the Act and the rules of natural justice, but the proceedings are to be conducted with as little formality and technicality and with as much speed as the requirements of the Act and proper consideration of the matters before the Tribunal permit: s.41. This section also provides that the Tribunal is not bound by the rules of evidence but may inform itself in any way it considers appropriate.
- [14]Section 41(6) permits the Tribunal to decide all or part of a proceeding from a consideration of the documents filed if the parties to a proceeding agree and the Tribunal considers it appropriate in all the circumstances. By s.42, the Tribunal may make orders and give directions and do what ever is necessary for the expeditious, just, fair and cost effective resolution of a proceeding. Examples are given of various orders which can be made. The Tribunal has power to award costs; s.61. There is not an unrestricted right to legal representation, but a party may be represented by a lawyer in certain fairly broad circumstances: s.66. In the present case it appears that both parties were legally represented and agreed to that course.
- [15]The Tribunal has power to issue a summons for witnesses (s.68) and the Tribunal may take evidence on oath: s.75. Although there is not a transcript presently available, I understand that in the present case witnesses on each side were called and examined and cross-examined by the legal representatives, and that this was tape-recorded. Under s.83 a decision of the Tribunal that finally decided matters the subject of the proceeding must be in writing and must state the decision and the reasons for the decision. A decision may be registered in an appropriate court, and on registration it may be enforced as if the decision had been originally given as a judgment of that court: s.85.
- [16]Accordingly it is apparent that what is contemplated is that ordinarily there be a real hearing before the Tribunal when an application is made to the Tribunal under the Act. In my experience in such appeals ordinarily evidence is given, and there is a full record of the original hearing in the first instance before the Tribunal available to the District Court on appeal. The situation is therefore different from one which is sometimes met with, where there is an appeal to a court from an administrative decision taken without any sort of real hearing, where an appeal, unless confined to an appeal on a question of law in the strict sense, will almost inevitably involve a hearing de novo.
- [17]The difficulty with the interpretation of s.92 is the words in subsection 4 “unaffected by the Tribunal’s decision”. But for those words that subsection would have provided a readily identifiable form of appeal, namely an appeal by way of rehearing on the material which was before the Tribunal, with power in the District Court (but not an obligation) to receive further evidence. But an appellate court hearing an appeal by way of rehearing in that sense ordinarily does not do so unaffected by the decision of the court or body from which the appeal is brought.
Authorities
- [18]In Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 the High Court considered the nature of an appeal to the District Court of New South Wales from a decision of the appellant board pursuant to the Builder’s Licensing Act 1971 of New South Wales. Mason J with whom two other members of the court agreed said at p.619 – 20: “An appeal is not a common law proceeding. It is a remedy given by statute. …… Upon an appeal stricto sensu the question considered is whether the judgment complained of was right when given, that is whether the order appealed from was right on the material which the lower court had before it. An appeal stricto sensu is to distinguished from an appeal by way of re-hearing…… This appeal by way of rehearing involves rehearing of the cause at the date of the appeal, that is “by trial over again on the evidence used in the court below; but there is special power to receive further evidence”. On such an appeal the rights of the parties must be determined by reference to the circumstances as they then exist and by reference to the law as it then exists; the appellate court may give such judgment as ought to be given if the case at that time came before the Court of first instance. But this appeal by way of rehearing did not call for a fresh hearing or hearing de novo; the Court does not hear the witnesses again. …..the appeal to Court of Session [in New South Wales] is most aptly described as a hearing de novo because, even if it be the defendant who appeals, the informant or complainant starts again and has to make out his case and call his witnesses”.
- [19]His Honour then referred to the decision of the High Court in Phillips v The Commonwealth [1964] 110 CLR 347 where it was held that an appeal to a County Court against a determination of the Commissioner under the Commonwealth Employees Compensation Act, said by the statute to be in the nature of a rehearing, required “the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it”. He continued at page 621: “Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. …….. There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo. The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply to rules of evidence or the issues which arise may be non- justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo. On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance. But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.”
- [20]More recently the High Court in Allesch v Maunz (2000) 203 CLR 172 at 180 in the judgment of the majority said:
“The critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.”
- [21]In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 the majority of the court, after noting that the nature of the appeal must ultimately depend on the terms of the statute conferring the right of appeal, continued:
“If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.”
- [22]There have been a number of cases where courts in Queensland have dealt with specific provisions for appeal given by Queensland statutes. In Amos v Auctioneers and Agents Committee (1980) 6 QL 290 Mylne DCJ held that an appeal under the Auctioneers and Agents Act (1971) section 17, which was to be “by way of rehearing,” was to be something approaching a rehearing de novo, although either party could rely on evidence which had been before the committee, subject if required to producing witnesses heard by the committee for cross examination. In Re H. (a pharmacist) [1972] Qd R 402 Williams J considered an appeal from the Pharmacy Board to the Supreme Court under the Pharmacy Acts (1917 to 1967) which was said to be an appeal by way of rehearing, and concluded that it was appropriate to enquire de novo into the questions involved and arrive at his own decision on the evidence given before him, so as to stand in the place of the Board. Any discretions which were originally exercised by the board had to be exercised by him in its place, although bearing in mind what the board had said and giving such weight to the Board’s view as he thought appropriate in the light of his consideration of the matter.
- [23]In Logan v Woongarra Shire Council [1983] 2 QdR 689 it was held by the Full Court that an appeal to that court from the Local Government Court “on the ground of error or mistake in law on the part of the Court or that the Court had no jurisdiction to make the decision or exceeded it jurisdiction in making the decision” was not an appeal by way or rehearing but was an appeal stricto sensu. Williams J (as His Honour then was) said at p.691 “Generally speaking an appeal will only be by way of “rehearing” if the provision creating the right of appeal expressly says so…… The essential distinguishing feature of an appeal by way of “rehearing” is that the appellant is entitled “to the independent judgment of the Court of Appeal” on the facts and also on the law as it then stands. If the provision creating the right of appeal expressly provides for such matters then, even though the word “rehearing” is not used, the court may well construe the appeal as being one by way of rehearing.”
- [24]In Re Fredericks [1984] 1 QdR 438 Carter J held that an appeal to the Supreme Court under the Public Accountants Registration Act (1946 – 1975), said by s. 26(3) to be in the nature of a rehearing, required a hearing de novo “as if the application had been made to the court in the first instance”: p.441. Accordingly the person who had applied for registration and was refused, on coming to the court as an appellant, is “in the position of pursuing his application anew before the court. A necessary consequence of that is that it is the appellant who must satisfy the court that in all of the circumstances he is entitled to registration. On that account the onus is upon him to satisfy the court that he ought to be registered or reregistered as a public accountant”. His Honour held that the onus was on the appellant because he had been the applicant before and therefore he ought to begin: p.442. That was a case where there was no hearing at all before the Board and it had given no reasons for its refusal of the application.
- [25]In Re Boothroyd [1986] 1 QdR 167 Thomas J (as he then was) held that an appeal to the Supreme Court from a decision of the board under the State Service Superannuation Act (1972-1984), said by s.58 (6) to be by way or rehearing, required a rehearing de novo. His Honour noted (at p.169) that: “it is apparent that the procedures before the board are such that it will usually be quite unsatisfactory to endeavour to conduct an appeal upon materials upon which the board may have acted. No formal hearing takes place and no record as such is kept. The procedure is quite informal and reasons do not need to be given. The Act also contemplates procedures by which the board refers certain questions to a Medical Board, in effect by way of delegation. …….. It is therefore apparent that it would be impossible to conduct a satisfactory “rehearing” on a record or its equivalent.”
- [26]In Re Schubert [1989] 2 QdR 99 it was held that an appeal under s.19 of the Radioactive Substances Act (1958 - 1978) said to be by way of rehearing required a hearing de novo. Williams J (as His Honour then was) with whom the other members of the court agreed at p.101-2 noted that the Act did not provide for there to be a hearing for the Minister or for any record to made of what material was before the Minister at the time the decision was made, or for any reasons to be given for the Minister’s decision. The decision was made on the recommendation of the council and there was also no hearing before the council or any record made of what was before the council, nor any reasons given for the recommendation of the council Reference was made to Spurway Constructions (supra).
- [27]Up until now I have been discussing the types of appeal as though they were essentially three types. The situation however is not as straightforward as that. In Turnbull v The New South Wales Medical Board [1976] 2 NSWLR 281, Glass JA p.297-8 identified six categories of appeal. This classification was described as helpful by Thomas JA with whose judgment the other members of the court agreed in Aldrich v Ross [2001] 2 QdR 235 at 248. His Honour’s categories were:
- “(a)Appeals to supervisory jurisdiction. Only errors going to jurisdiction or denials of natural justice can be ventilated.
- (b)Appeals on questions of law only, eg from the Workers Compensation Commission. Undetermined or wrongly determined issues of fact must be remitted.
- (c)Appeals after a trial before judge and jury. The result below will be disturbed if the judge fell into error of law, or if the jury’s errors of fact transcend the bounds of reason. But, except for the assessment of damages, issues of fact must be redetermined in a new trial.
- (d)Appeals from a judge in the strict sense, eg appeals to the High Court. If the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ordered to have been given at the original hearing. Later changes in the law are disregarded and additions to the evidence are not allowed.
- (e)Appeals from the Judge by way of rehearing, eg Appeals under s.75A of the Supreme Court Act 1970. Judicial opinion differs on whether a power to receive fresh evidence is implied. Almost invariably, however, it is expressly conferred. If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded.
- (f)Appeals involving a hearing de novo, eg appeals from a Court of Petty Sessions to a Court of Quarter Sessions. All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time”.
- [28]Even this categorisation was said by Thomas J in Aldrich v Ross [2001] 2 QdR 235 at 248 not to be comprehensive, since there could be different variations within the categories identified. In Aldrich the Court of Appeal considered the nature of an appeal to the Misconduct Tribunal from a decision of a prescribed officer under the Police Service Administrations Act 1990, and allowed an appeal from the decision of a single judge that the scope of the appeal to the tribunal was relatively confined. It substituted a conclusion that the appeal was by way of rehearing without using the term. Because of the unhelpfulness of that term in the statute, however, His Honour preferred to describe it as one where the tribunal was bound to make its own decision on the evidence before it. His Honour in that case noted that the terms in which the power of the appellant court was expressed was of some relevance. In Re Coldham; ex parte Brideson [No 2] (1990) 170 CLR 267, significance was attributed to the provision in the statute that the appellant court was to “make such order as it thinks fit”. In Coal and Allied Operations (supra) the absence of such a provision was regarded as significant; p.204. In Aldrich His Honour considered that the stature which allowed the Misconduct Tribunal to “give the orders about a proceeding it considers appropriate” and to “set aside the decision and substitute another decision” was similar in effect to those in Brideson [No 2]; p.256. This again emphasises the importance of the particular terms of the statute concerned.
- [29]Identifying the true nature of an appeal remains a common problem, not least because there appears to be no settled legislative practice in Queensland as to the terminology to be used when conferring a right of appeal to a court from an administrative body. I am concerned with the terms used in the legislation enacted in 2000, and I understand that this is the first occasion on which this particular issue has arisen for determination at the District Court level. A similar issue has arisen before me at least twice in the last twelve months. In Barry v Queensland Nursing Council (2001) QDC 146 I held that an appeal pursuant to s.137 of the Nursing Act (1992) was an appeal by way of pre-hearing in the usual sense. More recently in Stephens v The Auctioneers and Agents Committee (Appeal 5069/00, 16/05/02) I held (following Amos (supra)) that an appeal to this Court under s.17 of the Auctioneers and Agents Act 1971 was essentially by way of hearing de novo.
Analysis of s. 92
- [30]In the present case much emphasis is placed in s.92 on the decision of the Tribunal. By subsection (3) the appeal must be accompanied by the Tribunal’s decision and reasons for the decision, and it must refer to the Tribunal’s decision and reasons for decision, and any other relevant material, and state the grounds for the application. The reference to “grounds for the application” is curious, because in other respects the procedure is identified as an appeal rather than an application. The reference to “the grounds” is not readily consistent with a hearing de novo. If a party aggrieved by a decision of an administrative body has an appeal as of right to have the question before that body reheard the only real “ground” of the appeal is that the appellant is exercising that right.
- [31]Ordinarily what is meant by the grounds of an appeal is a list of the ways in which the appellant alleges that the decision under appeal is wrong. But where there is a right to have a rehearing de novo it is not necessary to show any such thing. Further, if the District Court is to conduct a hearing de novo it will not have any need for the tribunal’s decision and the reasons of the tribunal. Yet they are required to accompany the filed appeal. Accordingly the terms of subsection (3) suggest that what is required is not a hearing de novo.
- [32]Even within subsection (4), although the words “unaffected by the tribunal’s decision” suggest there is to be a hearing de novo, the subsection goes on to provide that the rehearing is to be on the material before the tribunal and any further evidence allowed by the court. The word “allowed” suggests that the court has a discretion as to whether or not to allow further evidence; that is, it is not a case where either party has a right to put further material before the District Court. That would serve to distinguish the present case from that considered in Amos (supra) and Stephens (supra). It is also inconsistent with a hearing de novo, in anything like the usual sense.
- [33]The power of the court on appeal is set out in subsection (6). Paragraph (a) of that subsection focuses entirely on the tribunal’s decision. Further the power in paragraph (b) to remit the case to the Tribunal for further hearing or rehearing seems clearly inconsistent with the notion that the appeal is to be conducted as a hearing de novo. If it were, there could be no basis upon which it could logically lead to a conclusion of the appropriate course as to order a further rehearing (presumably also de novo) before the Tribunal. The existence of the power in paragraph (b) indicates that the legislature must have contemplated that circumstances could arise where the District Court on appeal considered some further hearing of the matter was necessary because of some inadequacy in the original hearing before the Tribunal, which was not resolved by the rehearing in the District Court. That fits naturally with an appeal by way of rehearing in the ordinary sense, but not with a hearing de novo. On the other hand the power is not expressed in terms as wide as those regarded as significant in Brideson (No 2) (supra) and Aldrich (supra).
Another example
- [34]The reference to the appeal being by way of “rehearing, unaffected by the Tribunal’s decision” is similar to the terms in section 147 of the Weapons Act 1990 which provides that the appeal allowed by part 6 of the Act to the Magistrates Court from certain decisions under the Act “is to be by way of rehearing, unaffected by the decision appealed against”. By s.148, the Court on appeal may confirm the decision appealed against or set aside the decision and substitute another decision, and in doing so the Court has the same powers as an authorised officer (from whom an appeal is brought). There is an appeal from a decision of the Magistrates Court to the District Court but “only on a question of law”: s.149. As a result of my having heard one such appeal it is apparent that the Magistrates Court dealt with the appeal by conducting a hearing de novo.
- [35]Under that Act, the decisions which are subject to appeal would ordinarily be decisions taken by an authorised officer without any sort or hearing, simply as a result of an application for something to be done by the authorised officer, such as grant of a licence under the Act, or a decision under the Act to revoke a licence done without application by the licensee. It is therefore precisely the sort of situation contemplated by the High Court in Sperway as indicating an appeal by way of hearing de novo and in such a situation the Magistrate will be unaffected by the decision of the authorised officer. The use of a similar expression in the present case however is more difficult to reconcile with an appeal from such a hearing before the Tribunal as is provided for under the Act.
Legislative history
- [36]There may be some significance as well in the Legislative history. The Act replaced the Queensland Building Services Authority Act 1991 (“the 1991 Act”) which also provided for a Queensland Building Tribunal. Under the 1991 Act s.94 provided for an appeal by leave of the District Court against a determination of that Tribunal, but did not say anything about the nature of the appeal. In Whywait Pty Ltd v Davison [1997] 1 QdR 225 the Court of Appeal rejected the proposition that the appeal to the District Court from the Tribunal under that Act was to be heard de novo, and said that the approach which ought to be adopted by the District Court was that which had been established in a line of earlier authorities leading to Aitkin Transport Pty Ltd v Boysey [1990] 1 QdR 510 dealing with appeals to the Full Court from a decision of a District Court Judge, which in relation to questions of fact was equated with appeals from a jury. The Court in effect held that it was an appeal stricto sensu. The effect of this was that under the 1991 Act there was only very limited scope for findings of fact, and indeed any issue of fact, to be reviewed on appeal from the Tribunal to the District Court.
- [37]Evidently the Legislative intention when preparing the new legislation was to give a wider appeal. This appears in the explanatory memorandum for the Bill which included: “Clause 92 sets up a merit based appeal mechanism from decisions of the Tribunal. The appealable decisions under this provision do not include interlocutory or procedural orders or directions, but only final decisions in proceedings. ….”
A “merit based appeal”
- [38]The reference to “merit based appeals mechanism” suggests the distinction which was sometimes drawn between the review by a Court of an administrative decision under a Commonwealth enactment pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth), which is a review of the lawfulness of the decision, and an appeal from certain administrative decisions to the Administrative Appeals Tribunal under its act, the Administrative Appeals Tribunal Act (1995). That Tribunal may review a decision on its merits as well as reviewing its legality: Pearce “Commonwealth Administrative Law” (1986) p.23. It was decided early by the Tribunal that in its review of administrative decisions there was no onus of proof either on the application to show that the decision was wrong or on the respondent to show that it was right. The Tribunal did not assume that the decision under appeal was either prima facie wrong or prima face right: Re Ladybird Children’s Wear Pty Ltd and Department of Business and Consumer Affairs (1976) 1 ALD 1 at 5. The approach of the Tribunal depends on the nature of the decision under review, and the provisions of the Statute under which such decision was to be taken, and the Tribunal has to view the available evidence against the statutory requirement in question: McDonald v Director General of Social Security (1984) 6 ALD 6. In my experience in practice in proceedings in the Tribunal the applicant starts and there may well be some evidentiary onus on the applicant, but the Tribunal’s decision is unaffected by the decision being reviewed. In practice therefore the Administrative Appeals Tribunal conducts a rehearing de novo.
Nature of an appeal by way of rehearing
- [39]However, it is not necessary to view matters in terms of such a strict dichotomy. An appeal by way of rehearing in the conventional sense involves a review of the merits. It is necessary for the Appeal Court to bring its own judgment to bear on the question independent of the judgment of the body under appeal, although a good deal of weight may be attached to the view of that body; See Federated Carters and Drivers Industrial Union of Australia v The Motor Transport and Chauffeurs’ Association of Australia (1912) 6 CLR 112 at 124. This was cited with approval in Aldrich (page 225), and Thomas JA at p. 257 expressed his conclusion at the Tribunal there was “required to make its own decision on the available evidence rather then merely to determine the correctness of the original decision in the limited manner permitted by an appeal in the strict sense”.
- [40]A similar approach was adopted by Kirby J in State Rail Authority (New South Wales) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at 327 where he spoke of a duty imposed on appellate courts by statute “to make up their own mind; to conduct appeals on the facts by way of rehearing; to draw inferences from the facts for themselves; to give the judgment and make orders that should have been given at trial; and in exceptional circumstances even to admit fresh evidence into consideration”. His Honour at p.326 had stated the traditional view of the role of an appellate court conducting an appeal by way of rehearing to findings of fact by a trial judge as that identified in Warren v Coombes (1979) 142 CLR 531 at 551: “In general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn the appellate court will give respect and weight to the conclusions of that trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”
- [41]In that case there was some argument about the effect of three earlier decisions of the High Court on the way in which an appellate court, conducting an appeal by way of rehearing, should approach findings of fact by the trial court. Those decisions were Jones v Hyde (1969) 63 ALJR 349, Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472. In the third of those cases at p.479 the majority stated: “More than once in recent years this Court has pointed out that a finding of fact by a trial judge based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable.”” Kirby J at p.326 regarded these decisions as simply confirming a position which has long been acknowledged, that to the extent that the trial judge has an advantage because the trial judge had heard the witnesses and had been able to absorb the atmosphere of the trial, adequate recognition should be given to the significance of that advantage by an appeal court conducting a rehearing on a transcript.
- [42]Although the matter was not specifically mentioned, there is also the consideration that a trial judge generally devotes a lot more time to the resolution of a particular trial than is available to an appellate court on the hearing of an appeal. For this reason appellate courts even on an appeal by way of rehearing are naturally reluctant to interfere with findings of primary fact made by trial judges, particularly when they may involve assessments of credibility of witnesses. In the past that approach was generally supported on the basis that the trial judge had an advantage of being able to assess the demeanour of the witness.
- [43]As Kirby J pointed out in Earthline, the significance of the demeanour of a witness has been questioned in recent years, and it is now generally assumed that it is not possible to tell whether a person is lying by looking at him. On the other hand, matters such as pauses in answering or in the course of answering questions, or the tone of voice in which an answer is given, can be of some significance in assessing the evidence of a witness, and these will not be apparent from reading a transcript. As well, a particular set of words in a transcript may be capable of having more than one meaning, or different emphasis in meaning, which a trial judge will presumably be in a better position to assess. These practical advantages of a trial judge have always been recognized by appeal courts, even when there has been debate as to how much significance should be attributed to them. Whatever the appropriate degree of significance may be (and this may well be a subject upon which the last word has not yet been said) clearly some significance is to be attributed to them.
- [44]In a case such as the present therefore where there was a conflict between the evidence of the witnesses on each side and where the resolution of the matter essentially turned on the determination of which set of witnesses was the more reliable, the Judge who has heard and seen the witnesses has an advantage which has always been recognised, and that advantage will only be overcome, even on an appeal by way of rehearing in the ordinary sense, if there is some good reason for doing so. That must be the case, because the alternative would require the witnesses to be heard again. It would be a hearing de novo. In the circumstances of the present case and given the nature of the matter in dispute, the practical choice is between conducting an appeal by way of rehearing in the same way as the Court of Appeal would conduct an appeal by way of a rehearing from a single judge of the Supreme Court, or hearing the matter de novo. That is not always going to be the situation in the case of appeals from the Tribunal, but it may well be common.
- [45]In my opinion there is no reason why an adequate merits based appeal mechanism cannot be provided by an appeal by way of rehearing in the traditional sense, and therefore, insofar as the legislative intention is illuminated by the explanatory memorandum, it does not show clearly that the intention was that there be a rehearing de novo. Given that the intention was to provide a more liberal mechanism for appeal than that which had existed previously, that result is achieved by an appeal by way of rehearing. It then becomes a question of determining, from the inconsistent and in some respects flatly contradictory expressions which have been collected in s.92, just what the real nature of the appeal is to be.
- [46]Counsel for the respondent pointed out that the statute distinguishes between the Tribunal’s decision and the reasons for that decision, for example in sub-section (3), yet the findings of fact which lead to the decision and to which a particular significance is commonly attributed would ordinarily appear at the reasons rather than in the decision. The decision itself is usually a conclusion arrived at on the basis of findings of primary fact, perhaps inferences of fact, and the application of the appropriate principles of law. On this basis, on the hearing of an appeal effect could be given to findings of primary fact while the Court remained unaffected by the Tribunal’s decision. I doubt whether the legislature was really intending so subtle a distinction, and suspect that the problem in the present case is rather that in drafting s.92 various provisions from various precedents have been cobbled together without a clear understanding of the relevant issues involved in delimiting a right of appeal[1]. In modern Queensland statutes difficulties of construction are more readily explicable by drafting errors than by legislative subtlety.
Conclusion
- [47]It is necessary to give effect to whatever the legislature has in fact enacted, but that requires giving effect to the section as a whole. Although the expression “unaffected by the Tribunal’s decision” looked at in isolation suggests (indeed virtually demands) a rehearing de novo, it seems to me that when the section as a whole is analysed the various considerations referred to earlier arising from other provisions of the section are to the contrary and indicate overall that what was intended was an appeal by way of rehearing in the ordinary sense. The insertion of the difficult expression may perhaps be attributed to a desire to ensure that more than an appeal in the strict sense was provided, and to add emphasis to the obligation of the court hearing the appeal to make up its own mind, as emphasised by Kirby J in Earthline (supra). I do not consider however that that changes the basic approach to an appeal by way of rehearing.
- [48]It follows that the appellant has been under a misapprehension as to the true nature of the appeal in the present case. I would be disposed to forgive that misapprehension, since at one time I shared it myself. At the time when this matter was argued before me I thought that this section did require a rehearing de novo, perhaps modified as in the case of Stephens (supra). Consideration of the various authorities to which I have referred, however, and in particular the terms of s.92 as a whole, finally leads me to the conclusion that it is really an appeal by way of rehearing in the usual sense. Accordingly the onus is on the appellant to show that there was something wrong in the decision. And further, since the decision was based on findings of primary fact involving the assessment of creditability of witnesses, the appellant will face the particular difficulty identified by the High Court in overcoming the advantage of the Tribunal which has seen and heard the witnesses. In this respect the applicable approach in the present case is that in Warren v Coombes (supra).
- [49]This is not a matter which the appellant has so far addressed. Nevertheless I do not think that it is appropriate for the appeal to be dismissed summarily, without giving the appellant the opportunity to attempt to show that, approached in this way, the appeal should be allowed. Accordingly I propose to circulate these reasons, and will then give the appellant the opportunity to be heard further in relation to the matter should he wish to be. If that situation arises, it would be necessary for grounds which would show a basis upon which this Court would be justified in interfering with the decision (approaching the matter in the way I have indicated) to be inserted by amendment in the Notice of Appeal, and a new Outline of Argument directed to those issues to be filed.
- [50]Accordingly I give leave to the appellant to file and serve an amended Notice of Appeal which states grounds of appeal on or before 7 June 2002. I further order that the appeal stand dismissed with costs unless an amended Notice of Appeal is filed in the registry by 4.00pm on 7 June 2002. I further direct that if an amended Notice of Appeal is filed within that time, any further Outline of Argument on the part of the appellant be filed and served by 12 June 2002. The parties can liaise with my associate to arrange for a suitable date for the resumed hearing of the appeal.
Footnotes
[1] Note for example the inapt inclusion in ss.(3)(b) of the word “application”.