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Pivovarova v Michelsen

 
Unreported Citation: [2019] QCA 256
EDITOR'S NOTE

The applicant in this matter sought leave to appeal a final decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal. The critical issue was whether the Court of Appeal was equipped to hear the appeal pursuant to s 150(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009. The court determined that the expression “only on a question of law” in s 150(3)(a) permits an appeal “on a question of law only”. The court further clarified that a mixed question of law and fact was not a “question of law”. Accordingly, as none of the applicant’s grounds of appeal was on a question of law only the application was dismissed.

Fraser JA and Boddice and Crow JJ

19 November 2019

The dispute between the parties concerned a contract for the construction of a home for the applicant. The parties were at odds regarding whether the respondent was entitled to be paid for the final payment claim for works reaching practical completion. [18], [19]. The matter was ultimately determined in two separate Tribunal decisions. [24]–[31]. The applicant appealed the second of those decisions, and that appeal was dismissed on the basis that it had been determined that Practical Completion had been reached, a decision made without error nor evidence of the Member having failed to observe the requirements of natural justice or extend a proper opportunity to the applicant to present her case, nor any demonstrated bias. [32]. It was that decision which the applicant applied for leave to appeal. [33].

The legislation

Section 150(2) and (3) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) allows solely for appeals on a question of law. It reads as follows:

150 Party may appeal—decisions of appeal tribunal 

(2)  A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal—

(a)  a cost-amount decision;

(b)  the final decision.

(3)  However, an appeal under subsection (1) or (2) may be made—

(a)  only on a question of law; and

(b)  only if the party has obtained the court’s leave to appeal.”

Citing Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 254; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175; and Comcare v Etheridge [2006] FCAFC 27, [13]–[17] and in examining the nature of an appeal governed by the section, the court unanimously concluded that a mixed question of fact and law is not a “question of law”. [3], [14], [36].  

Further and critically, in his reasons, Fraser JA did not adopt the reasoning followed in Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202 and other lines of authority, namely that not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law. Instead, he (and the court) endorsed the strict approach, that s 150(3)(a) of the QCAT Act ought plainly be read as if “pure” or “only” qualifies “question of law”. Justice Fraser stressed that the meaning of s 150 is “influenced by contextual matters which had no counterpart in the statutes considered in Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd”, thus (effectively) distinguishing that decision. The court’s preferred view was that the legislative intent was to narrowly restrict the grounds of an appeal against a decision of the QCAT appeal tribunal. [4].

The court also contrasted s 149 of the Act, which similarly confers rights of appeal. It observed that s 149(3)(a) permits appeals only on “a question of law” whereas s 149(3)(b) permits appeals either on “a question of fact, or a question of mixed law and fact”. Further, s 142(3)(b) also permits certain appeals “on a question of fact, or a question of mixed law and fact”. Justice Fraser observed that:

“The contrast between the expressions ‘a question of law’ and ‘a question of fact, or question of mixed law and fact’ makes clear the legislative policy to confine the ambit of an appeal for which the Court of Appeal may give leave under s 150 to an appeal on a question of law which does not involve any question of fact or of mixed law and fact of the kind described in ss 149(3)(b) and 142(3)(b). In a similar statutory context, Rothman J held in Bagumya v Kakwano that the expression ‘only on a question of law’ must mean ‘on a question of law alone’.” [5]. (footnote omitted)

Finally, the court noted that the statement in s 153(1) of the QCAT Act that s 153 “applies to an appeal before the Court of Appeal against a decision of the tribunal on a question of law only” serves to reinforce the legislative policy. In the court’s view, the word “only” qualifies “a question of law”, whereas s 150(3)(a) permits an appeal to be made “only on a question of law”. Since s 153 is plainly intended to enable an appeal under s 150, it follows that an appeal under s 150 is restricted to one made on a question of law alone. [7].

In a methodical judgment, the court individually examined each 22 grounds of the applicant’s proposed appeal in order to ascertain whether they raised “only a question of law” and if so, whether the Court ought to grant leave to appeal. [39]–[76]. Ultimately, finding that no matters of appeal pursuant to s 150(3)(a) of the Act were raised, it dismissed the application.

A de Jersey