Crowder v Moore [1996] QCA 168 [1997] 1 Qd R 24

IN THE COURT OF APPEAL [1996] QCA 168 SUPREME COURT OF QUEENSLAND Appeal No. 2111 of 1996 District Court Appeal No. 296 of 1995 Brisbane [Moore & Anor v. Crowder] BETWEEN: GAVIN MOORE and PANTEC BUILDING SERVICES PTY LTD (Applicants) Appellants AND: MALCOLM EDWARD CROWDER (Respondent) Respondent Fitzgerald P. Shepherdson J. Byrne J. Judgment delivered 31/05/1996 Judgment of the Court 1. Leave to appeal granted. Appeal allowed. 2. Set aside the order of the District Court at Brisbane made on 13 February 1996. 3. Remit the proceedings to the District Court at Brisbane for another judge to hear the appellants' application for leave to appeal against the determination made by the Queensland Building Tribunal on 15 November 1995. 4. The respondent is to pay the appellants' costs of the application for leave to appeal to this Court and of the proceedings in the District Court at Brisbane in which their application for leave to appeal was refused. 5. The respondent is to have an indemnity certificate under the Appeal Costs Fund Act 1973. CATCHWORDS: BUILDING CONTRACTS - appeal from Queensland Building Tribunal - whether "application for leave made" within 28 days where oral application is not heard within that time - s.94(2) Queensland Building Services Authority Act 1991. WORDS AND PHRASES - "application ... made" - "made". -- 1 of 7 -- 2 Counsel: G. J. Radcliff for appellants I. R. Molloy for respondent Solicitors: Diamonds for appellants Short, Punch & Greatorix for respondent Hearing date: 22 April 1996 -- 2 of 7 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 2111 of 1996 District Court Appeal No. 296 of 1995 Brisbane Before Fitzgerald P. Shepherdson J. Byrne J. [Moore & Anor v. Crowder] BETWEEN: GAVIN MOORE and PANTEC BUILDING SERVICES PTY LTD (Applicants) Appellants AND: MALCOLM EDWARD CROWDER (Respondent) Respondent REASONS FOR JUDGMENT - THE COURT Judgment delivered: 31/05/1996 The applicants invoke s.92(2) of the District Courts Act 1967 in seeking leave to appeal against the decision of a judge of District Courts refusing them leave to appeal against a determination of the Queensland Building Tribunal ("the Tribunal"). The question of law raised by this application concerns the meaning of s.94(2) of the Queensland Building Services Authority Act 1991 ("the Act"). Section 94(1) of the Act allows a party to a proceeding before the Tribunal to appeal against its determinations by leave of a District Court. A time limitation is imposed. By s.94(2): "An application for leave to appeal must be made within 28 days after the making of the determination or such further period as the District Court allows (whether on an application made before or after the end of the 28 day period)." Subsection (3) regulates the mode of proceeding on such an application for -- 3 of 7 -- 2 leave, stipulating that the application "must be made in accordance within any applicable rules of court ... ". Rule 333 of the District Courts Rules 1968 is among those rules. Sub-rule 1 provides that any proceeding authorised to be commenced in a District Court for which no other mode of commencement is prescribed may be begun by application. By sub-rule (2), except to the extent to which another form of procedure is prescribed, "applications in any proceeding shall be made in accordance with this rule". The rule continues: "(3) Unless permitted or required by any Act or rule to be made ex parte and subject to the provisions hereinafter contained, applications in any proceedings shall be made on notice. (4) A copy sealed with the seal of the Court of every application made on notice and copies of affidavits (if any) intended to be used upon the hearing of an application shall be served upon the opposite party before being used, and in sufficient time to enable the party served to answer, on affidavit, any statement which the party intends to contest." Form 107, which is headed Notice of Application and relates to applications on notice, envisages that a time and place for the hearing will be fixed and inserted into the sealed copy of the Notice when it issues from a registry upon the filing of the original. The applicants were dissatisfied with the decision of the Tribunal in a case brought against them by the present respondent. Within 28 days of the Tribunal's determination, they caused a notice substantially in accordance with Form 107 to be filed in a District Court seeking leave to appeal against the Tribunal's determination. The notice appointed a day more than 28 days after the Tribunal's determination as the date for hearing. The notice was not served until more than 28 days after the Tribunal's determination; and, as the notice anticipated, the first appearance before a judge to request leave to appeal occurred outside the 28 day period. The primary judge declined to consider the application on its merits. He -- 4 of 7 -- 3 considered that it had not been "made" until the appearance before him to request leave to appeal and was therefore out of time. His Honour also refused an extension of time for leave to appeal. The issue is whether the judge's construction of s.94(2) is correct. As the Tribunal has an extensive jurisdiction in controversies concerning domestic building work, this point of statutory interpretation is of sufficient general importance to justify the grant by this Court of leave to appeal to agitate it. The judge was influenced by Donkin v. Donkin; ex parte Donkin [1963] Qd R 36, one of several cases concerned with s.209 of the Justices Act 1886. Section 209 provides that when a person "shows by affidavit to a judge ... sitting in court or chambers a prima facie case of error ... the judge may ... upon application made within 28 days from the making of ... (the) order ... grant ... an order (to review)". That language indicates that s.209 describes an oral application as the method by which an application is instituted. The section envisages that the application will be brought upon affidavit without originating process. The filing of the affidavit does not commence the application: it is a preliminary step: Cottle v. Hentzschel; ex parte Cottle [1982] Qd R 772, 773. Decisions on s.209 do not afford assistance in interpreting s.94(2). In Woods v. Bennett (1972) 46 ALJR 294, Stephen J, in a judgment agreed in by Barwick CJ, McTiernan and Menzies JJ, said (at p. 296): "phrases referring to the making of an application are familiar ones in legislation and appear consistently to have been interpreted as referring only to the initiation of proceedings and not to the subsequent stages of hearing and determination - In Re Ridgway, [1952] V.L.R. 71, per Smith J. at pp. 74-78 and cases there discussed." Tallon (1993) 67 A Crim R 40 is a recent illustration of this tendency. That case concerned s.671(2) of the Criminal Code, which provides that an appeal by the -- 5 of 7 -- 4 Attorney-General against sentence "shall be made" within 28 days of the sentence. This Court held that the appeal was "made" when the notice of appeal was filed. See also The Broken Hill Proprietary Co Ltd v. Xenakis [1982] 2 Lloyd's Rep. 304, where a requirement of an English rule of court that parties "apply to the Court" within a particular period was held to be satisfied by the issue of a summons within that time; and cf. Thunderbird Products Corporation v. Thunderbird Marine Products Pty Ltd (1974) 131 CLR 592, 602 - 603. Two main considerations favour the interpretation said in Woods v. Bennett to have been consistently adopted. First, "the matter is in the cognisance of the court" (per Smith J. in Ridgway at p.75) when process issues which will culminate in a hearing, and so it is an ordinary use of language to regard the initiating process as an application to the Court. Secondly, considerations of convenience typically require such an interpretation. Were it otherwise, rights could be defeated by circumstances quite beyond an applicant's control: for example, through an inability to obtain a return date within the limited period or because of difficulties in service: cf. Re Rawson v. Williams [1984] 2 Qd R 287, 295. A legislature is unlikely to intend that the exigencies of court lists or the vagaries of service should frustrate statutory entitlements to curial relief. Those considerations matter to s.94(2). Rule 333 and Form 107 envisage that a District Court's jurisdiction is invoked on the filing of an appropriate Notice of Application. Difficulties in service can readily be envisaged. The availability of a judge to hear an application for leave to appeal within the prescribed period could not always be assured throughout the State; and it is scarcely to be supposed that Parliament expected that citizens living where District Courts are not frequently constituted must either conduct their litigation at a considerable distance or else be -- 6 of 7 -- 5 obliged to seek the indulgence of an extension of time. Section 94(2) should be construed as other like provisions have been in Australia. An "application" on notice is "made" for the purposes of s.94(2) upon the filing of the Notice which Rule 333 contemplates. Leave to appeal should be granted. As the parties are content that the point has been fully argued, the appeal should be allowed. The judge's order refusing leave to appeal must be set aside and the matter remitted to the District Court at Brisbane for another judge to hear the application for leave to appeal against the Tribunal's determination. The respondent must pay the costs of the application for leave to appeal to this Court and of the proceedings before the judge. The point was taken by the judge himself and, in the circumstances, the respondent should have an indemnity certificate under the Appeal Costs Fund Act 1973. -- 7 of 7 --