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[2026] QCA 3
respondent. The application for leave to appeal was refused, with costs.
The Court of Appeal accepted that the QCAT Appeal Tribunal had made a legal mistake about whether the applicants needed leave and extra time to challenge an interlocutory decision in an appeal from the final decision. That mistake did not change the result. The Appeal Tribunal had also rejected the challenge on its merits, and the applicants did not show a legal error in that assessment. More generally, the Court could hear only appeals confined to questions of law, not grounds that required it to decide what happened or reassess mixed factual and legal issues. The application for leave was refused, with costs.
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2,236 words · generated 08/10/2026
Marie and Bruce Monsour had a domestic building contract with C & R Darvill Pty Ltd, as trustee of the C & R Darvill Family Trust, for renovations to their home. The dispute became a QCAT proceeding. The Monsours sought recovery of alleged overpayments and the cost of rectifying allegedly defective work. Darvill counterclaimed for amounts it said remained unpaid, including variations and lost profit ([2]-[3], [10]-[11]).
3 cited instruments linked from this judgment.
The important statutory context was s 84 of the Domestic Building Contracts Act 2000 (Qld) (DBCA). As set out in the judgment, that provision allowed a building contractor to recover an amount for certain variations even where it had not complied with specified formal requirements, but only with the Tribunal's approval and subject to the conditions in s 84(4) ([14]-[15]). The Court did not re-decide the merits of whether those conditions were met. It addressed the later appeal pathway and the grounds the Monsours advanced.
Four days before the first hearing date, Darvill's solicitor emailed a proposed amendment referring expressly to s 84(2) of the DBCA ([13]). On the first hearing day, Darvill applied to amend its counter-application. Its counsel said the substance of the variation claim was already reflected in the evidence and that the amendment added the statutory basis for seeking recovery ([17]-[18]). The Monsours opposed the amendment, but did not identify specific prejudice, seek an adjournment, or raise another procedural response of that kind. Member Howe granted leave, reasoning that there would be no surprise given the evidence already filed ([19]-[20]).
The hearing took place over eight days. On 27 July 2022, Member Howe ordered the Monsours to pay Darvill $134,407.62. The judgment says that amount reflected Member Howe's acceptance that the conditions in s 84(4) were satisfied, including exceptional circumstances and that it would not be unfair to require payment for the variations ([4], [21]).
The Monsours appealed to the QCAT Appeal Tribunal. Their grounds changed over time and included challenges to the amendment, the reasons for allowing it, the finding of exceptional circumstances, and alleged procedural unfairness. The Appeal Tribunal rejected their case ([7], [24]-[31]). They then sought leave to appeal to the Queensland Court of Appeal under s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The Court refused leave with costs ([8], [81]).
The central constraint was the statutory limit on the Court of Appeal's jurisdiction. Section 150(3), as discussed by Bond JA, permitted an appeal from the Appeal Tribunal only on a question of law and only with the Court's leave. The Court adopted the explanation in Allen v Queensland Building and Construction Commission: the question of law must be the very subject matter of the proposed appeal. It is not enough that a legal issue is somehow involved in a complaint that substantially asks the Court to reassess facts ([39]-[40]).
That distinction was decisive for several of the Monsours' grounds. Some alleged that Member Howe or the Appeal Tribunal had failed to ensure procedural fairness or comply with s 29 of the QCAT Act. But the proposed grounds did not clearly identify an error in the Appeal Tribunal's legal reasoning. In substance, they invited the Court to review the transcript, determine what the primary facts were, and reach its own conclusion about whether the Tribunal had complied with its obligations. Bond JA said that was not an appeal only on a question of law ([63]-[69]).
The Court also considered whether the Monsours had shown that leave should be granted for grounds capable of raising legal questions. Allen explained that leave is discretionary and should not be granted lightly, particularly after two QCAT hearings. A reasonable argument that an error of law should be corrected will usually be necessary, but is not enough on its own. The Court identified substantial injustice and general or public importance as useful considerations ([41]).
The Court accepted that the Appeal Tribunal had made an error about the amendment issue. The appeal to the Appeal Tribunal was from the final decision and was filed within time. The legal challenge to the interlocutory decision allowing the amendment could generally be raised in that appeal without separate leave or an extension of time ([32]-[33], [52]). The Court relied on authorities concerning interlocutory decisions affecting final orders, including Nolan v Clifford, Gerlach v Clifton Bricks Pty Ltd and Michael Wilson & Partners Ltd v Nicholls ([33]).
However, that error did not establish that leave should be granted from the Appeal Tribunal's decision. The Appeal Tribunal had considered the merits of the challenge to the amendment. It assessed the evidence filed before the hearing, the notice given, the absence of a request for an adjournment, the opportunity to take steps during the hearing, and whether the Monsours had identified prejudice ([35]). The Court of Appeal said the Monsours' real complaint was that the Appeal Tribunal was wrong not to find that Member Howe's procedural discretion had miscarried. They did not identify a legal error in the Appeal Tribunal's merits assessment. Nor did they show that leave was necessary to correct substantial injustice or that the point raised a question of general or public importance ([54]-[55]).
The Court separately rejected grounds that were inadequately formulated. A proposed ground must do more than assert that there was an error of law. It must identify what the error was and where the Appeal Tribunal went wrong. For example, the first proposed ground stated that the Appeal Tribunal had failed to consider a relevant matter, but did not properly identify the asserted legal error; the Court also considered that the ground's description of the earlier order was literally wrong ([45]-[50]). Other grounds similarly asserted legal error without explaining it ([65], [71]).
The judgment applies rather than announces a new general test for appeals under s 150. Before this decision, the governing framework was set out in Allen v Queensland Building and Construction Commission (2024) 18 QR 79; [2024] QCA 24. As quoted and applied here, Allen states that the proposed appeal must be confined to a pure question of law, and that the Court lacks jurisdiction over questions of fact or mixed fact and law ([39]-[40]).
The judgment reinforces the practical importance of that distinction. A ground does not become a question of law just because it uses words such as “error of law”, “procedural fairness” or “relevant consideration”. The Court examines the actual issue the proposed appeal asks it to decide. If the task would require it to find facts or reassess a mixed question, it falls outside this appeal pathway ([40], [67]-[69]).
The decision also clarifies the treatment of the interlocutory amendment issue. The Appeal Tribunal had treated the challenge to Member Howe's amendment decision as requiring leave and an extension of time. The Court of Appeal held that, because the applicants were appealing from the final decision and had lodged their appeal within time, they could generally challenge an interlocutory decision affecting the final order as part of that appeal ([32]-[33], [52]). This did not remove the separate requirement that an appeal from the Appeal Tribunal to the Court of Appeal be confined to a question of law and obtain leave.
The decision does not alter the text or requirements of s 84 of the DBCA. It recounts that section's operation in the underlying dispute, but the Court's disposition concerned the Court of Appeal's jurisdiction and the adequacy of the proposed grounds, not a fresh determination of the contractor's substantive entitlement to payment ([14]-[15], [21], [39]-[41]).
At [40], Bond JA said: “The very subject matter of the appeal must be a question of law.” In plain English, an applicant cannot get within s 150 merely by pointing to a legal issue somewhere in a broader complaint. The appeal itself must ask the Court to decide a legal question, rather than re-examine what happened.
At [40], the Court also said it was for the applicant to formulate a ground the Court had jurisdiction to consider. This makes the form and substance of an appeal ground important. The applicant must identify a legal error clearly enough to show that the ground does not depend on the Court making its own factual findings.
At [41], the Court explained that a reasonable argument that there is an error of law will “usually be necessary – but not sufficient”. In plain English, identifying a reasonably arguable legal error does not automatically result in leave. The Court must still exercise its discretion, having regard to the nature of the case and considerations such as substantial injustice and general or public importance.
At [52], the Court identified the Appeal Tribunal's mistake: it had incorrectly concluded that the Monsours needed an extension of time and leave to challenge the decision allowing the s 84 amendment. The appeal was from the final decision, and the legal challenge to the interlocutory decision could be raised within that appeal.
At [54], the Court explained why that mistake did not change the outcome. The Appeal Tribunal had also decided the merits of the amendment challenge, and the Monsours did not show an error of law in that part of its decision. In plain English, pointing out a legal mistake in the procedural route was not enough when the substantive rejection of the challenge remained intact and was not shown to be legally flawed.
This decision is most relevant to appeals from a QCAT Appeal Tribunal where the proposed appeal is brought under s 150 of the QCAT Act. Its central rule is about jurisdiction: the proposed appeal must be only on a question of law, rather than a question of fact or a mixed question ([39]-[40]).
It is also relevant where a party wants to challenge an interlocutory decision as part of an appeal from a final decision. The judgment states that interlocutory decisions affecting the final order may generally be challenged as of right in an appeal from that order. On these facts, the amendment decision was interlocutory, but the Monsours' appeal to the Appeal Tribunal was from the final decision and had been filed within time ([32]-[33], [52]).
The decision may also be relevant where a party's proposed grounds use legal labels but, in substance, invite an appellate court to determine what the evidence shows or whether a procedural decision was fair in the particular circumstances. The Court looked at what the grounds required it to do, not merely how the grounds were worded ([67]-[73]).
The judgment arose from a domestic building dispute and a claim for variation payments under s 84 of the DBCA. But its principal reasoning concerns appellate jurisdiction and leave, rather than establishing a general rule about the merits of claims for variations or the evidence needed to satisfy s 84 ([14]-[15], [39]-[41]).
The judgment was delivered on 13 January 2026. The material provided contains no later decisions treating Monsour v C & R Darvill Pty Ltd as a precedent. It is therefore not possible to describe how later courts have applied, distinguished or otherwise treated this decision on the source material provided.
The judgment itself relied on earlier authorities. It followed Allen v Queensland Building and Construction Commission for the principles governing s 150 appeals and the meaning of an appeal “only on a question of law” ([39]-[41]). It cited Nolan v Clifford, Gerlach v Clifton Bricks Pty Ltd and Michael Wilson & Partners Ltd v Nicholls for the proposition about challenging interlocutory decisions in an appeal from a final order ([33]). It discussed Hope v Bathurst City Council in considering the boundary between law, fact and mixed questions ([66]-[68]), and referred to University of Wollongong v Metwally in addressing the effect of the applicants' conduct of the Appeal Tribunal hearing ([49]).
The judgment does not decide whether the Appeal Tribunal's merits assessment of the amendment challenge was correct. The Court identifies that assessment as the reason the procedural error did not justify leave, but does not reconsider the factual matters on which it rested ([35], [54]).
Nor does the judgment determine whether Member Howe's findings under s 84(4) were substantively correct. It records that Member Howe accepted the necessary conditions, including exceptional circumstances and that recovery would not be unfair, but the Court of Appeal proceeding did not result in a merits determination of that statutory issue ([21]).
The judgment also does not set out a comprehensive test for when an interlocutory decision “affect[s] the final order” for the purpose of being challenged in an appeal from that order. It states the general proposition and applies it to the amendment decision before it, referring to earlier authorities ([33]).
Finally, the judgment highlights but does not exhaustively define the boundary between a pure question of law and a mixed question of law and fact in the context of s 29 of the QCAT Act. Its application turns on the particular grounds and submissions: the Monsours did not identify the statutory expressions, fully found facts, or reasoning needed to present their proposed complaint as a pure question of law ([66]-[69]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, get a qualified Australian lawyer to check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Monsour v C & R Darvill Pty Ltd [2026] QCA 3
PARTIES: MARIE MONSOUR / (first applicant) / BRUCE MONSOUR / (second applicant) / v / C & R DARVILL PTY LTD ATF C & R DARVILL FAMILY TRUST / (respondent)
FILE NO/S: Appeal No 13671 of 2024 / QCATA No 259 of 2022
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT: Queensland Civil and Administrative Tribunal at Brisbane – [2024] QCATA 103 (Senior Member Brown)
DELIVERED ON: 13 January 2026
DELIVERED AT: Brisbane
HEARING DATE: 21 March 2025
JUDGES: Mullins P, Bond JA, Brown JA
ORDER: The application for leave to appeal is refused, with costs.
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – DISTINCTION BETWEEN QUESTION OF LAW AND QUESTION OF FACT – where the applicants and the respondent were parties to a contract pursuant to which the respondent undertook building renovations to the applicants’ house – where the applicants commenced proceedings in the Queensland Civil and Administrative Tribunal to recover certain alleged overpayments and damages from the respondent – where the respondent counterclaimed for unpaid monies allegedly owing in respect of the building works including for unpaid variations – where the primary judge ordered that the applicants pay the respondent $134,407.62 – where the applicants failed on appeal to the appeal tribunal – where an appeal from the appeal tribunal may only be made to the Court of Appeal only on a question of law and only if the applicants obtain the Court’s leave to appeal – whether leave to appeal should be granted – where the applicants failed to formulate grounds of appeal which would involve an appeal only on a question of law / Domestic Building Contracts Act 2000 (Qld), s 79, s 80, s 82, s 83, s 84 / Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 150 / Allen v Queensland Building and Construction Commission (2024) 18 QR 79; [2024] QCA 24, followed / Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16, cited / University of Wollongong v Metwally (1984) 158 CLR 447; [1984] HCA 74, cited
COUNSEL: P A Beehre for the applicants / M T Hickey KC, with E J Mijo, for the respondent
SOLICITORS: AJ Torbey & Associates for the applicants / Queensland Construction Legal for the respondent
MULLINS P: I agree with Bond JA.
BOND JA: The applicants and the respondent were parties to a contract pursuant to which the respondent undertook building renovations to the applicants’ house.
They fell into dispute and the applicants commenced proceedings in the Queensland Civil and Administrative Tribunal to recover certain alleged overpayments and damages from the respondent. For its part the respondent counterclaimed for unpaid monies allegedly owing in respect of the building works including for unpaid variations.
The matter proceeded to a hearing before Member Howe. On 27 July 2022 Member Howe published his reasons for deciding (the primary decision) that the applicants must pay the respondent the sum of $134,407.62.1 The applicants received the decision on 8 August 2022.
Pursuant to s 142(1) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), the applicants could appeal on a question of law as of right from the primary decision to the appeal tribunal created under the QCAT Act. Notably, however, an appeal on a question of fact or a question of mixed law and fact could be made only if the applicants had obtained the appeal tribunal’s leave to appeal.
On 2 September 2022, the applicants filed an application by which they sought to appeal to the appeal tribunal on the grounds that Member Howe had made an error of law. The applicants sought to have the primary decision set aside and an order made reducing to $35,244.32 the amount they had to pay to the respondent.
At a directions hearing in the appeal tribunal, the applicants were permitted to amend their grounds of appeal. The grounds advanced were still asserted to be errors of law. The application proceeded to a hearing before the appeal tribunal constituted by Senior Member Brown on 13 and 14 September 2023. On 11 September 2024, Senior Member Brown published the appeal tribunal’s reasons for judgment (the appeal decision), in which the applicants’ case completely failed.
Pursuant to s 150 of the QCAT Act the applicants now seek to appeal the decision of the appeal tribunal. Section 150(3) requires that any appeal may be made only on a question of law and only if the applicants have obtained this Court’s leave to appeal. If leave is obtained, the applicants seek orders from this Court setting aside the decision of the appeal tribunal and returning the matter to the appeal tribunal for reconsideration before a different member of the appeal tribunal.
For reasons which follow, the application should be refused either because the applicants were unable to formulate grounds of appeal which would involve an appeal only on a question of law or because leave to appeal should be refused in exercise of this court’s discretion.
Background facts
On 26 March 2018, the applicants commenced a proceeding in the Tribunal seeking recovery of overpayments and the cost of rectifying allegedly defective building work, which the respondent had performed under a domestic building contract.
On 16 May 2018, the respondent filed a document styled a “counter-application”, which effectively counterclaimed for an order “that the Applicants’ pay the Respondent the amount of $159,052.71 for unpaid variation and $42,961.92 for lost profit on remaining Contract Sum”.
Directions were made in the Tribunal for the filing and service of statements of evidence by the parties to the dispute.
On 22 October 2020, four days before the hearing of the proceeding, the respondent’s solicitor emailed the case manager and the applicants. The email was accompanied by an attached list of issues and recorded that the respondent sought leave to amend its counter-application as follows:
“2. That the Applicants’ pay the Respondent the amount of $159,052.71 for unpaid variations pursuant to Section 84(2) of the Domestic Building Contracts Act 2000 QLD and $42,961.92 for lost profit on remaining Contract Sum.”
“84 Right of building contractor to recover amount for variation
This section applies if –
the building contractor under a regulated contract gives effect to a variation of the contract; and
the variation consists of –
an addition to the subject work; or
an omission from the subject work that results in the building contractor incurring additional costs.
If the variation was originally sought by the building owner, the building contractor may recover an amount for the variation –
only if the building contractor has complied with sections 79, 80, 82 and 83; or
only with the tribunal’s approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor.
If the variation is not a variation that was originally sought by the building owner, the building contractor may recover an amount for the variation –
only if –
the building contractor has complied with sections 79, 80, 82 and 83; and
the ground of unforeseen circumstances applies; or
only with the tribunal’s approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor.
The tribunal may approve the recovery of an amount by a building contractor for a variation only if the tribunal is satisfied that –
either of the following applies –
there are exceptional circumstances to warrant the conferring of an entitlement on the building contractor for recovery of an amount for the variation;
the building contractor would suffer unreasonable hardship by the operation of subsection (2)(a) or (3)(a); and
it would not be unfair to the building owner for the building contractor to recover an amount.
For subsection (3)(a)(ii), the ground of unforeseen circumstances applies if the variation became necessary because of circumstances that could not have been reasonably foreseen by the building contractor when the contract was entered into.
If the building contractor is entitled to recover an amount for the variation of a fixed price contract, the amount is –
the increase in the contract price stated, or worked out in the way stated, in the appropriate variation document for the variation; or
if paragraph (a) does not apply – the cost of carrying out the variation plus a reasonable profit.
If the building contractor is entitled to recover an amount for the variation of a cost plus contract, the amount is the amount worked out in the way stated in the contract.”
The significance of s 84 was to permit a building contractor an avenue to recover for variations in circumstances where it had not complied with ss 79, 80, 82 and 83 of the DBCA, but only with the Tribunal’s approval and only if the Tribunal was satisfied of the circumstances mentioned in s 84(4).
The hearing before Member Howe took place over 8 days: 27 to 30 October 2020, 16 and 17 February 2021, and 24 and 25 June 2021. Although the material revealed that the applicants had previously obtained legal advice,2 the male applicant represented the applicants at the hearing. The respondent was represented by counsel.
As had been foreshadowed in the respondent’s solicitors’ email of 22 October 2020, on 27 October 2020 (the first day of the hearing) the respondent sought leave to amend its counter-application to refer to s 84(2). Before the Tribunal counsel for the respondent explained that:
“The substance of what [the respondent] seeks in respect of unpaid variations is already the subject of the evidence in the proceeding, and so it’s merely an express reference to that section. For the purposes of section 84 … we are required to make an application to the tribunal for variations which otherwise do not comply in certain written respects with normal provisions of the Act.”
Counsel went on to explain that the respondent needed to invoke the section but that the material was already in in terms of the evidence filed by the respondent. It is important to interpolate that it is evident that Member Howe and later the appeal tribunal both accepted the substance of the respondent’s submission in this respect.
When asked for their attitude to the application, the applicants said that recovery of variations had always been the respondent’s claim. They said that they had not had the calculation explained to them. Member Howe explained the relevant words of s 84(2) and that from the reference to obtaining approval one goes to the other parts of the provisions. The applicants opposed the amendment on the basis that they had a contract and the contract governed variations. Member Howe explained that the parties could not contract out of the provisions of the Act and the Act had governed the position up until 30 June 2015. He noted that the application was late and asked whether the applicants had anything to say about that. The applicants responded that they opposed the application but did not elaborate. They did not identify that they had suffered any prejudice by the late notice or seek an adjournment or any of the usual responses.
Member Howe ruled on the respondent’s application for leave to amend their counter-application that –
“Look, I’m going to grant leave, it’s a statutory provision and the tribunal’s remit is to come to a decision based on the appropriate material, … I don’t think that there’s any disadvantage to it insofar as there will be any surprise, according to [the respondent’s counsel], on the evidence which either will or will not support the provision in the Act. So I’m going to grant leave for that amendment.”
As has been mentioned, on 27 July 2022 Member Howe published the primary decision. His conclusion that the applicants must pay the respondent the sum of $134,407.62 reflected his acceptance of the respondent’s claim that pursuant to s 84(4) of the DBCA he should form the requisite state of satisfaction as to the existence of exceptional circumstances and that it would not be unfair to the applicants if they had to pay for the variations claimed.
On 2 September 2022, the applicants filed an application for leave to appeal or appeal the primary decision, together with written submissions in support of the application. The terms of the former document identified as the sole ground of appeal:
“Member Howe made an error of law in interpreting subsection 84(4) of the Domestic Building Contracts Act 2000 (Qld) (repealed) and applying it to the facts of this case.”
“1. The appeal is allowed.
The decision of the Tribunal made 27 July 2022 is set aside.
[The applicants] must pay [the respondent] THIRTY-FIVE THOUSAND, TWO HUNDRED AND FOURTY-FOUR [sic] AND THIRTY-TWO CENTS ($35,244.32) within fourteen (14) days of the date of this decision.”
“The Applicants Appeal the Primary Decision on the grounds that the Learned Member:
Erred in law by allowing the Respondents to amend their counterclaim to include a claim under section 84 of the Domestic Building Contracts Act 2000 (Qld) (repealed). (“DBCA”); or
Erred in law by failing to provide sufficient or adequate reasons for the decision to allow the Respondents to amend their counterclaim to include a claim under section 84 of the DBCA; or
made an error of fact in inferring that relief of exceptional circumstances under s 84 of the DBCA was always in contemplation on the basis of the Notice of Termination Pursuant to Clause 20 of the Contract; or
Erred in fact or law by finding that there were exceptional circumstances pursuant s. 84 of the DBCA with respect to the variations.
There was a failure to observe procedural fairness or natural justice which is an error law of law because:
The learned Member allowed the Respondents to enter into evidence new material contrary to the 2019 Directions Order of the Tribunal; or
The learned Member gave leave for a new version of the respondents Quantity Surveyor Report to be entered into evidence late, part way through the hearing; or
Eleven of the respondents witnesses, who the applicants required for cross examination, were not available for cross examination.”
On 9 December 2022, the applicants filed an application styled “application to extend or shorten a time limit or for waiver of compliance with procedural requirement” and also a separate document setting out the applicants’ amended grounds of appeal. The former document sought an order that “the time for the Applicant to file an amended application for leave to appeal or appeal be extended until 9 December 2022, and that leave be granted to do that”. The document explained that the grounds of appeal had been amended “following review by Counsel and after receipt of the transcript”.
The amended grounds of appeal filed on 9 December 2022 were as follows:
“1. The Applicants Appeal the Primary Decision on the grounds that the Learned Member:
Erred in law by allowing the Respondents to amend their counterclaim to include a claim under section 84 of the Domestic Building Contracts Act 2000 (Qld) (repealed). (“DBCA”); or
Erred in law by failing to provide sufficient or adequate reasons for the decision to allow the Respondents to amend their counterclaim to include a claim under section 84 of the DBCA; or
Erred in law by finding that there were exceptional circumstances pursuant s.84 of the DBCA with respect to the variations.
There was a failure to observe procedural fairness or natural justice which is an error … of law because:
The learned Member allowed the Respondents to enter into evidence new material contrary to the 2019 Directions Order of the Tribunal; or
The learned Member gave leave for a new version of the respondents Quantity Surveyor Report to be entered into evidence late, part way through the hearing; or
Eleven of the respondents witnesses, who the applicants required for cross examination, were not available for cross examination.”
but that otherwise the grounds identified in the amended grounds of appeal were the same as those which had been identified in the applicants’ November 2022 submissions.
“1. [The applicants] are granted leave to amend the Application for leave to appeal or appeal in accordance with the application filed 9 December 2022.
The matter is listed for a half day oral hearing in Brisbane at time and date to be advised, not before 12 July 2023.”
Three points should be made. First, the decision operated to amend the document referred to at [22] and [23] above by changing the grounds of appeal. Second, consistently with the way in which counsel had described the application to Senior Member Fitzpatrick, the order granted leave to amend and did not (as the applicants had actually sought in the application which they had filed) extend time. Third, consistently with the fact that the applicants still asserted that their grounds of appeal raised errors of law, not errors of fact or mixed fact and law, the applicants still did not seek leave from the appeal tribunal to advance the grounds they raised.
The hearing referred to in the order made by Senior Member Fitzpatrick ultimately took place before the appeal tribunal constituted by Senior Member Brown on 13 and 14 September 2023. During the course of oral argument Senior Member Brown raised the question whether the applicants needed (1) an extension of the time within which to appeal (on the expressed hypothesis that the appeal challenged an interlocutory decision made on the first day of trial and the appeal was not filed with time, if counted from that day) and (2) leave to appeal (on the hypothesis that the appeal challenged an interlocutory decision and not the final decision). Counsel for the applicants ultimately did not press a challenge to the hypotheses but pressed an application for extension of time and for leave.
On 10 September 2024, the appeal tribunal delivered its decision in Monsour & Anor v C & R Darvill Pty Ltd ATF C & R Darvill Family Trust [2024] QCATA 103 (QCATA Decision). The Appeal Tribunal recorded the following:
“[10] It is fair to observe that the grounds of appeal have been somewhat of a moving feast. It is therefore necessary to say something about the history of the appeal and the grounds relied upon by the [applicants].
[11] Originally there was but a single ground of appeal: the Tribunal erred in law in the interpretation and application of s 84(4) of the Domestic Building Contracts Act 2000 (Qld).
[12] The [applicants] filed further amended appeal submissions in November 2022 containing amended grounds of appeal:
Ground 1 – the Tribunal erred in law in permitting [the respondent] to amend its counterclaim to include a claim under s 84 of the Domestic Building Contracts Act 2000 (Qld) (DBCA);
Ground 2 – the Tribunal erred in law in failing to provide adequate reasons for the decision to permit the amendment of the counterclaim;
Ground 3 – the Tribunal erred in fact in inferring that relief of exceptional circumstances under s 84 of the DBCA was always in contemplation on the basis of the Notice of Termination pursuant to Clause 20 of the Contract;
Ground 4 – the Tribunal erred in fact or law in finding that there were exceptional circumstances pursuant to s 84 of the DBCA with respect to the variations;
Ground 5 – the appellants were denied procedural fairness or natural justice as a result of:
The Tribunal allowing the respondent to adduce new evidence contrary to Tribunal directions made in 2019;
The Tribunal allowing the respondent to adduce evidence in the form of a new version of the respondent’s quantity surveyor report;
Eleven of the respondent’s witnesses were not made available for cross examination.
[13] In December 2022, subsequent to filing the amended appeal submissions, the [applicants] filed an application seeking an extension of time to file an amended application for leave to appeal or appeal, regularising the amended grounds of appeal contained in the further amended appeal submissions. In February 2023 the [applicants] filed an application seeking an extension of time to file submissions in support of the application for leave to appeal or appeal. In that application they stated the amended grounds of appeal were on questions of law only, however leave to appeal was required to appeal interlocutory decisions made in the course of the hearing.
[14] On 3 May 2023 the Tribunal gave the [applicants] leave to amend the application for leave to appeal or appeal in accordance with the application.
[15] [The respondent] says that the [applicants] abandoned ground of appeal 3 as it raised an error of fact and abandoned ground of appeal 4 insofar as it relied upon an error of fact.
[16] On 7 September 2023, prior to the appeal hearing, the [applicants] filed an application to further amend the grounds of appeal to reinstate ground of appeal 3. The application is opposed by [the respondent].
[17] The grounds of appeal at the commencement of the appeal hearing were therefore:
Ground 1 – the Tribunal erred in law in permitting [the respondent] to amend its counterclaim to include a claim under s 84 of the Domestic Building Contracts Act 2000 (Qld) (DBCA);
Ground 2 – the Tribunal erred in law in failing to provide adequate reasons for the decision to permit the amendment of the counterclaim as referred to in ground 1;
Ground 3 – abandoned, however application made to reinstate;
Ground 4 – the Tribunal erred in law in finding that there were exceptional circumstances pursuant to s 84 of the DBCA with respect to the variations;
Ground 5 – the appellants were denied procedural fairness or natural justice as a result of:
The Tribunal allowing the respondent to adduce new evidence contrary to Tribunal directions made in 2019;
The Tribunal allowing the respondent to adduce evidence in the form of a new version of the respondent’s quantity surveyor report;
Eleven of the respondent’s witnesses were not made available for cross examination.
[18] The abandoned ground of appeal 3 being an appeal on a question of fact, and grounds of appeal 1, 2, 5(a) and 5(b) being appeals from interlocutory decisions made in the course of the hearing below, require leave. By s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), an application for leave to appeal must be filed within 28 days after the ‘relevant day’. The ‘relevant day’ means, inter alia, where no written reasons have been given or requested, the day the person received notice of the decision, or where written reasons have been provided, the day the person is given the written reasons for the decision.
[19] As may be apparent from the above, the issues for determination relating to the amendment of the grounds of appeal at the commencement of the appeal were:
Should leave be granted to reinstate ground of appeal 3;
If the reinstatement is granted in respect of appeal ground 3, should time be extended for the filing of the application for leave to appeal;
In respect of appeal grounds 1, 2, 5(a) and 5(b) should time be extended for the filing of the application for leave to appeal.
[20] In the course of the appeal hearing the [applicants] made a further application to amend appeal ground 4, seeking to assert an error of mixed law and fact.”
The history recited by the appeal tribunal in the above quotation was correct. However two errors of law were made. First, the assertion in paragraph [13] of the reasons that the applicants needed leave to appeal to raise a legal challenge to the decision made by Member Howe to permit the respondent to amend its counter-application to raise s 84 of the DBCA because it was to be regarded as an interlocutory decision made in the course of the hearing. Second, the related point that if the appeal was to be so regarded then in addition to leave, the applicants needed an extension of time within which to file the appeal.
Although –it was true that Member Howe’s decision to allow the amendment to raise s 84 was an interlocutory decision on a question of practice and procedure made in the course of the hearing; ands 142(3)(a)(ii) of the QCAT Act does specify that leave of the appeal tribunal must be made to appeal a decision that is not the tribunal’s final decision in a proceeding,
the appeal tribunal mistakenly failed to appreciate that interlocutory decisions which affect the final order may generally be challenged as of right within an appeal brought from the final order and the appeal was an appeal from the order made on a final hearing.3 On a correct understanding of the law, the appeal was to be regarded as an appeal from a final decision and the applicant needed neither leave nor extension of time to raise the matters advanced in appeal grounds 1 and 2, unless of course the applicants sought to raise errors of fact or mixed fact and law.
“the Tribunal erred in fact in inferring that relief of exceptional circumstances under s 84 of the DBCA was always in contemplation on the basis of the Notice of Termination pursuant to Clause 20 of the Contract”
For two reasons, the appeal tribunal was right to observe that leave to advance the appeal ground was needed. First, ground 3 had been abandoned and leave was obviously needed to reinstate it. Second, ground 3 specifically raised error of fact and s 142(3)(b) specifies that leave is needed to appeal on a question of fact.
The appeal tribunal noted that the notice by which the applicants had sought to terminate the respondent’s contract was in evidence and that it had stated that the respondent had breached ss 79 to 83 of the DBCA and had made no application under s 84 of the DBCA.
The appeal tribunal concluded that Member Howe had merely noted that the form of the termination notice revealed an appreciation of the nature of the right which the respondent had under s 84.
The appeal tribunal noted by reference to authority that it would ordinarily only grant leave when (1) questions of general importance upon which further argument and a decision of the appeal tribunal was to public advantage; (2) there was a reasonably arguable case that the primary decision maker was in error; and (3) there were reasonable prospects that the applicants would be granted orders in their favour.
The appeal tribunal concluded it was not persuaded that there was a reasonably arguable case of error as raised by the proposed appeal ground 3, that it would be futile to reinstate the ground of appeal in circumstances where the ground is without merit and refused leave to reinstate ground 3.
“the Tribunal erred in law in permitting [the respondent] to amend its counterclaim to include a claim under s 84 of the Domestic Building Contracts Act 2000 (Qld) (DBCA)”
The appeal tribunal dealt with appeal ground 1 in two ways. First, it dealt with the question whether time should be extended to permit the ground to be raised. Second it dealt with the merits of the ground as part of its decision whether it would have been prepared to grant leave had leave been required.
As has already been explained, the appeal tribunal was wrong in law to think that either extension of time or leave was required.
But that error may be thought to have been immaterial because the appeal tribunal specifically considered and rejected the merits of the applicants’ challenge to Member Howe’s decision to allow the amendment. The appeal tribunal reasoned that the evidence which the respondent’s s 84 case had been the subject of written statements of evidence which had been filed before the commencement of the hearing; the appeal tribunal was not persuaded that the applicants were prejudiced by the amendment not being made in a more timely way; no adjournment had been sought at trial and there was in any event a gap of four months between the first part of the hearing and the remaining part of the hearing; Member Howe had specifically drawn the attention of the applicants to the terms of s 84 on multiple occasions; and there was no indication that the applicants (represented by the male applicant) had not understood its significance.
Having regard to those considerations, the appeal tribunal concluded:
“It may be accepted on the basis of the foregoing that the [applicants] elected to proceed with the hearing below, over eight days, notwithstanding the late amendment to the counter-application. At various junctures, the learned member sought to remind the [applicants] of the amended counter-application and the implications of the amendment. The [applicants] had ample opportunity over the course of the hearing to take such steps as they considered necessary to protect their interests if they considered they had been disadvantaged by the late amendment to the counter-application. They could have sought an adjournment; they could have sought legal advice; they could have sought leave to file further evidence in chief. The [applicants’] evidence concluded at the end of the fourth day. Four months later the hearing resumed. At the commencement of the resumed hearing the learned member again raised with the [applicants] the amendment to the counter-application and the application of s 84 of the DBCA. At this juncture it was open to the [applicants] to apply to reopen their case and adduce further evidence in chief relevant to the amended counter-application.
…the learned member addressed the issue of prejudice to the [applicants] in allowing the amendment in stating that there would be no surprise, the parties already having filed their statements of evidence, and whether the claim pursuant to s 84 of the DBCA would be successful would turn on the evidence. It is implicit in the reasons that the learned member was satisfied that the amendment was for the just and expeditious resolution of issues in the proceedings rather than an amendment raising new claims and new issues. It is also implicit from the reasons that the learned member’s discretion was guided by the objects of the QCAT Act which include dealing with matters in a way that is accessible, fair, just, economical, informal and quick. And it is relevant to note that the [applicants] did not seek an adjournment and the question of wasted resources did not arise.
The application to extend time to rely upon ground of appeal 1 is refused. I would add that even had the application to extend time been allowed, I would have refused leave to appeal for the reasons set out.”
The proper understanding of this finding is that the appeal tribunal discerned no error in Member Howe’s exercise of discretion to allow the respondent to advance a claim pursuant to s 84 of the DBCA.
“the Tribunal erred in law in failing to provide adequate reasons for the decision to permit the amendment of the counterclaim.”
As has already been explained, the appeal tribunal was wrong in law to think that extension of time and leave was required because the appeal should not be regarded as an appeal from a final decision, the appeal tribunal dealt with the ground on the merits.
The appeal tribunal referred to relevant authority governing the obligation on the tribunal member to give reasons and concluded that the reasons were adequate in the circumstances and that the appeal ground had no reasonable prospect of success.
On that basis, the appeal tribunal refused the application to extend time to apply for leave to appeal.
“the Tribunal erred in law in finding that there were exceptional circumstances pursuant to s 84 of the DBCA with respect to the variations.”
No leave was required in respect of that ground. However, as has been mentioned during the course of the hearing the applicants sought to amend the ground to assert an error of mixed law and fact. Leave was required.
The appeal tribunal having reviewed the evidence on which the tribunal member had relied, noting that the factual findings were not challenged, and concluded that it was open for the learned member to conclude that exceptional circumstances were made out on those facts.
The appeal tribunal found that it was not clear what error the applicants asserted was the error of mixed law and fact. Given the unchallenged factual findings that had formed the basis of the appeal tribunal’s rejection of the merits of ground 4, the appeal tribunal refused the application for leave to amend.
“the appellants were denied procedural fairness or natural justice as a result of:
The Tribunal allowing the respondent to adduce new evidence contrary to Tribunal directions made in 2019;
The Tribunal allowing the respondent to adduce evidence in the form of a new version of the respondent’s quantity surveyor report;
Eleven of the respondent’s witnesses were not made available for cross examination.”
As has already been explained, the appeal tribunal was wrong in law to think that an extension of time and leave was required because the appeal should not be regarded as an appeal from a final decision. However leave was required in respect of those grounds as they evidently raised questions which involved mixed fact and law.
The appeal tribunal reasoned as follows in relation to appeal ground 5(a). The further evidence the subject of appeal ground 5(a) was evidence which should not have taken the applicants by surprise. In particular the oral evidence which was permitted was consistent with the written evidence which had filed before the hearing. Appeal ground 5(a) was without merit and on that basis the application to extend time to seek leave to appeal in respect of the ground was refused.
The appeal tribunal reasoned as follows in relation to appeal ground 5(b). The further evidence the subject of appeal ground 5(b) was the report of Mr Ray, the respondent’s quantity surveyor. The report was an amended report in which he expressed the conclusion that the value of the work completed by the respondent was in fact less than he had opined in his original report and that his revised conclusions favoured the applicants. After an adjournment to permit the applicants’ time to consider the report, the male applicant advised Member Howe that there was no objection to the report going into evidence. The applicants did not identify to the appeal tribunal any specific prejudice which resulted from the amended report of Mr Ray being allowed into evidence. Appeal ground 5(b) was without merit and on that basis the application to extend time to seek leave to appeal in respect of the ground was refused.
The appeal tribunal reasoned as follows in relation to appeal ground 5(c):The respondent had provided written statements from the witnesses prior to the hearing because they had been attached to a statement of evidence from the respondent’s principal witness, Mr Darvill.On the last day of the hearing counsel for the respondent said that the witnesses could not be contacted and would be unable to give evidence.Counsel for the respondent nevertheless sought to tender the statements noting that it was a matter of weight to be afforded the evidence in the absence of the witnesses being available for cross examination.The male applicant advised Member Howe that he wished to cross-examine all of the respondent’s witnesses. The learned member advised him that he would have the opportunity to address the evidence of the witnesses in final written submissions and on that basis, admitted the statements of evidence into evidence.The appeal tribunal noted the procedure for a proceeding was at the discretion of the tribunal, subject to the QCAT Act, any enabling Act and the rules. In all proceedings the tribunal must act fairly and according to the substantial merits of the case. In conducting a proceeding the tribunal must, inter alia, observe the rules of natural justice. There was no automatic right to cross-examine a witness in tribunal proceedings. However in conducting a hearing the tribunal must allow a party a reasonable opportunity to cross-examine witnesses.The appeal tribunal found there was nothing in Member Howe’s reasons to suggest that he subscribed any particular weight to the subject evidence. The appeal tribunal found it was reasonably clear from the reasons that the learned member considered the evidence of the witnesses not cross-examined to be relevant in the sense only that it reflected the general tenor of the evidence of other witnesses where opportunity to cross-examine was afforded regarding the extent to which the applicants interfered with, and constantly requested changes to, the works.The appeal tribunal was therefore not persuaded that there was a breach of procedural fairness by the learned member.
The proper approach to an application pursuant to s 150 of the QCAT Act
“First, leave to appeal may only be granted if the proposed appeal is ‘only on a question of law’: s 150(3)(a). In Pivovarova v Michelsen and in a number of subsequent decisions, this Court has determined that, on the proper construction of the QCAT Act, appeals from the Appeal Tribunal pursuant to s 150 must be confined to pure questions of law and only to such questions. This Court has no jurisdiction to consider an appeal from a final decision of the Appeal Tribunal on a question of fact or on a mixed question of fact and law.”
“The distinction between an appeal only on a question of law, on the one hand, and an appeal on a question of fact or on a mixed question of fact and law, on the other hand, is absolutely fundamental in the present context. It goes to the jurisdiction of this Court to entertain an appeal from the Appeal Tribunal. An appeal which must be ‘only on a question of law’ is of a narrower ambit than an appeal in which a question of law is merely ‘involved’. In order to be an appeal which this Court has jurisdiction to hear, the very subject matter of the appeal must be a question of law.
Unfortunately, a failure to grapple with this limitation in accordance with the law permeated the whole of the applicants’ written and oral argument. References were made to many cases in different contexts but which were not relevant to the present context. The applicants’ argument complained of errors below but without making the distinction which the law requires between appeals only on a question of law, and other appeals which allege factual error or error of mixed fact and law and in which legal error might merely be somehow involved. In applications of this nature, it is for the applicant and not this Court to formulate a ground of appeal which this Court would have jurisdiction to consider. For the most part, the applicants failed in this task.”5
“Having regard to the s 118(3) analogy and the position in Pivovarova outlined above, a more complete summary of the principles guiding the s 150(3)(b) discretion in relation to appeals from final decisions of the Appeal Tribunal may be essayed:
Leave to appeal may only be granted if the proposed appeal is only on a question of law in the sense discussed in Pivovarova.
The discretion is otherwise unfettered, and exercisable according to the nature of the case, but leave to appeal will not be granted lightly, given that the applicants have already had the benefit of two hearings in QCAT.
It will usually be necessary – but not sufficient – that the Court be persuaded that there is a reasonable argument that there is an error of law to be corrected, which, if corrected, would justify the applicant’s claim for relief.
Tests which provide useful guidance as to the nature of the additional consideration over and above the existence of a reasonable argument that there is such an error of law to be corrected include –
that leave is necessary to correct a substantial injustice; and
that the proposed appeal raises a question of law of general or public importance.”6
Consideration of the question whether leave should be granted
Unfortunately in the present case the applicants had not sufficiently considered the operation of s 150 when framing the 12 grounds on which they sought leave to appeal to this court or when drawing their outline of submissions in support of the application for leave to appeal in respect of those grounds.
The court caused the parties’ attention to Allen v Queensland Building and Construction Commission prior to the hearing. At the hearing the applicants initially took the position that each of their proposed grounds of appeal would give rise to an appeal only on a question of law. However during the course of oral argument, they abandoned that contention in relation to proposed appeal grounds 5, 6 and 7.
The result is that the application for leave should be considered only in relation to the remaining grounds.
Proposed appeal ground 1.
“1. The learned senior member erred in law by failing to take into a relevant consideration, in finding that one of the issues for determination at the commencement of the appeal was ‘in respect of appeal grounds 1, 2, 5(a) and 5(b) should time be extended for the application for leave to appeal’, because that leave had already been granted.”
The proposed appeal ground does not actually identify an error of law. It merely asserts that an error of law was made in reaching a particular result. I would not grant leave to advance an appeal ground so formulated even if this court’s jurisdiction was not constrained in the way it is.
Before this court the applicant submitted that the error sought to be advanced was that the appeal tribunal misinterpreted the effect of the order which had been made by Senior Member Fitzpatrick, which was, in effect, to grant the extension of time. As has already been explained, the order did not extend the time for the filing of the application for leave to appeal. As formulated the appeal ground is literally wrong. Nevertheless, there is some merit to the proposition that the effect of the grant of leave to amend was to excuse the need for any extension of time. Logically if an extension of time had been needed and if extension of time was ever to be opposed, one would expect that point to be taken as a basis for resisting the grant of leave.
But in the appeal tribunal hearing Senior Member Brown had specifically asked counsel for the applicant:
“… is a formal application made for an extension of time, or do you say that that isn’t required, that it’s already been dealt with or that time has already been extended or – because it’s not clear to me, based on any of the directions or decisions made by the appeal tribunal before today that the issue has been addressed”
In response counsel for the applicant did not press the proposition that leave had already been granted but in fact advanced an application for extension of time. The applicant is bound by the way in which it conducted the hearing before the appeal tribunal.7 In that context, the applicant cannot now be heard to contend it was an error of law to take into account a consideration which counsel had the opportunity to identify and to press but apparently made the forensic judgment not to do so.
I would not grant leave to advance this appeal ground.
Proposed appeal ground 2.
“2. The learned senior member erred in law by failing to take into account a relevant consideration, in finding that the applicants were out of time to appeal with respect to appeal grounds 1, 2, 5(a) and 5(b), because:
authorities have held that that interlocutory decisions which affect the final order may generally be challenged as of right within an appeal brought from that order; and
in any event, the tribunal had previously ordered that ‘The time for the Applicant to file an amended application for leave to appeal or appeal be extended until 9 December 2022, and that leave be granted to do that.’”
This appeal ground is a poorly phrased attempt to articulate the error of law which the appeal tribunal did make. As previously mentioned, the appeal tribunal was wrong in law to conclude that the applicants needed an extension of time and leave to appeal Member Howe’s decision to permit s 84 to be raised, at least so far as the applicants sought to raise a question of law before the appeal tribunal. Contrary to the view taken by the appeal tribunal, the appeal should have been regarded as within time because it was common ground that it was lodged within time after the final decision was made and the applicants should have been regarded as permitted to argue error of law in relation to the interlocutory decision as part of their appeal of the final decision.
If that were the only difficulty with the appeal ground, I would have been minded to allow the appeal ground to be reformulated so as to identify the errors of law which I have identified.
However, as has been explained, notwithstanding the making of those errors of law, the appeal tribunal dealt with the merits of the grounds raised before it. The overwhelming problem for the applicants is that their real complaint is that the appeal tribunal erred in not being persuaded that Member Howe’s discretion on the question of practice and procedure which was before him miscarried when he chose to permit the respondent to amend its case to advance a claim under s 84 of the DBCA. The appeal ground does not identify an error of law in the way in which the appeal tribunal dealt with the merits of that proposition. Further, absent some ground which also raised an error of law capable of impeaching the appeal tribunal’s conclusion on the merits, the applicant cannot demonstrate that leave is necessary to correct a substantial injustice. Nor is the point a question of law of general or public importance.
I would not grant leave to advance this appeal ground.
Proposed appeal ground 3.
“3. The learned senior member erred in law in ‘refusing an application to extend time with respect to appeal grounds 1, 2, 5(a) and 5(b)’ by failing to take into account relevant considerations, because:
authorities have held that that interlocutory decisions which affect the final order may generally be challenged as of right within an appeal brought from that order; and
The tribunal had previously ordered that ‘The time for the Applicant to file an amended application for leave to appeal or appeal be extended until 9 December 2022, and that leave be granted to do that.’”
Proposed appeal ground 4.
“4. The learned member erred in law in determining that leave was required to appeal with respect to appeal grounds 1, 2, 5(a) and 5(b) because he failed to take into account a relevant consideration, that leave to appeal had already been granted.”
Proposed appeal ground 7.
“7. The learned senior member erred in law in determining that even if the application to extend time had been refused, he would have refused leave to appeal for the reasons set out, because the reasons for refusing the extension of time contained an error of law.”
This proposed appeal ground proceeds on a misunderstanding of the point made by the appeal tribunal in relation to the first and second appeal grounds before it. The critical reason for refusing the extension of time was the adverse view which the appeal tribunal took of the merits of the criticism of Member Howe’s exercise of discretion to permit the respondent to amend its case to advance a claim under s 84 of the DBCA.
A combination of the reasoning I have expressed in relation to proposed appeal grounds 1 and 2 justifies refusal to grant leave to advance this appeal ground.
Proposed appeal ground 8.
“8. The learned senior member erred in law in acting upon a view of the primary facts which cannot reasonably be justified, in that he implicitly found that the primary learned member had complied with s 29(1)(a) and (b) of the Queensland Civil and Administrative Tribunal Act and/ or had afforded the applicants procedural fairness when the primary learned member:
Allowed the respondent to amend their case on the first day of the hearing to include the reference to s84 of the DBCA; or
failed to explain to the self represented [applicants] the consequence of the respondents application to amend its counterclaim to include a reference to s 84(2) of the Domestic Building Contracts Act 2000 (Qld) (DBCA) on the first day of the hearing when the application was made.”
“29 Ensuring proper understanding and regard
The tribunal must take all reasonable steps to—
ensure each party to a proceeding understands—
the practices and procedures of the tribunal; and
the nature of assertions made in the proceeding and the legal implications of the assertions; and
any decision of the tribunal relating to the proceeding; and
understand the actions, expressed views and assertions of a party to or witness in the proceeding, having regard to the party’s or witness’s age, any disability, and cultural, religious and socioeconomic background;”
The proposed appeal ground does not actually identify an error of law with any clarity. It seems merely to assert that an error of law was made in reaching a particular result without saying where or how the appeal tribunal went wrong, other than “implicitly”. I would not grant leave to advance an appeal ground so formulated even if this court’s jurisdiction was not constrained in the way it is.
Perhaps the applicants are seeking to avail themselves of the observations made by Mason J in Hope v Bathurst City Council (1980) 144 CLR 1 when his Honour observed:
“Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J. in Hayes v. Federal Commissioner of Taxation , where his Honour quoted the comment of Lord Parker of Waddington in Farmer v. Cotton's Trustees , which was adopted by Latham C.J. in Commissioner of Taxation v. Miller, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. …
…
However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v. Cozens was just such a case. The only question raised was whether the appellant's behaviour was ‘insulting’. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.
The judgment of Kitto J. in N.S.W. Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation is illuminating. Kitto J. observed that the question whether certain operations answered the description ‘mining operations upon a mining property’ within the meaning of s. 122 of the Income Tax Assessment Act 1936, as amended, was a mixed question of law and fact. He went on to explain why this was so: ‘First it is necessary to decide as a matter of law whether the Act uses the expressions “mining operations” and “mining property” in any other sense than that which they have in ordinary speech.’ Having answered this question in the negative, he noted that the ‘common understanding of the words has . . . to be determined’ as ‘a question of fact’. He continued:
‘The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law: see also per Isaacs and Rich JJ. in Australian Slate Quarries Ltd. v. Federal Commissioner of Taxation. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J. in the Broken Hill South Case.’”8 (emphasis added, citations omitted)
But the applicants do not anywhere in the proposed ground of appeal or in their written or oral submissions–identify the particular statutory expression(s) said to be the subject of the appeal ground;submit that the relevant statutory expressions do not have any sense other than that which they have in ordinary speech;explain how they can establish what is the common understanding of the statutory expressions without asking this court to make the determination of what is the common understanding (which would inevitably be to ask this court to make a determination of a question of fact, which is something they cannot do);identify what were the facts which were fully found and by whom were they found (without seeking to ask this court to make a determination of a question of fact, which is something they cannot do);demonstrate that no different conclusion was reasonably open than that the fully found facts were outside the common understanding of the particular statutory expression.
To the contrary, the applicants’ submission invites this court to review the transcript and itself to reach a conclusion on what were the primary facts and then to form its own view as to the alleged lack of compliance with s 29(1)(a) and (b). That is not an appeal only on a question of law.
As the applicants have not been able to formulate a ground of appeal which if leave was granted would give rise to an appeal only on a question of law, I would refuse to grant leave to appeal.
Proposed appeal ground 9.
“9. Erred in law in finding that the way in which the primary member allowed the respondent to amend their claim to include a claim under s84 of the DBCA afforded the appellants adequate natural justice.”
The proposed appeal ground does not actually identify an error of law. It merely asserts that an error of law was made in reaching a particular result without saying where or how the appeal tribunal went wrong. I would not grant leave to advance an appeal ground so formulated even if this court’s jurisdiction was not constrained in the way it is.
Further the applicants have not identified how any appeal ground could be formulated to seek to persuade this court of that the finding was erroneous which would not itself inevitably invite this court to examine questions of fact or mixed fact and law.
As the applicants have not been able to formulate a ground of appeal which if leave was granted would give rise to an appeal only on a question of law, I would refuse to grant leave to appeal.
Proposed appeal ground 10.
“10. The decision was otherwise contrary to law because these facts confirm that it is a legal requirement that the tribunal observe its obligations, which it failed to do, pursuant to s 29 of the QCAT Act to:
make sure that that unrepresented parties understood the case,
To take a more active role to assist the unrepresented parties. and
This was a substantial counter-claim so the obligation on the member of the tribunal to insure that the appellants received assistance was higher.”
Proposed appeal ground 12.
“12. Erred in law by failing to give adequate reasons, in that the learned senior member failed to address the issue raised in submissions with respect to the first ground of appeal that:
The learned member had failed to afford the [applicants] procedural fairness or natural justice by failing to explain to them the legal implications of the amendment by Mr Darvill to include a potential claim under s 84 of the DBCA, or
That the learned member had failed to comply with s 29(1)(a) and (b) of the Queensland Civil and Administrative Tribunal Act 2009;”
This appeal ground is misconceived for at least two reasons.
First the appeal tribunal could not have erred as alleged in relation to the first ground of appeal which was before the appeal tribunal. That ground of appeal contended that Member Howe erred in law in permitting the respondent to amend its counterclaim to include a claim under s 84 of the DBCA. Neither of the matters mentioned in (a) and (b) were raised by that appeal ground. Such submissions to the appeal tribunal could not have been regarded as submissions which sought to identify and persuade the appeal tribunal of the alleged error of law raised by the first appeal ground. It is difficult to see how the appeal tribunal could be said not to have given adequate reasons by failing to address an argument which could not have been relevant to the appeal ground before it.
Second, in oral submissions before this court counsel for the applicants suggested that the error which was made by the appeal tribunal was that the appeal tribunal erred by finding that the reasons given by Member Howe were adequate. But that does not assist because that is not the error alleged by proposed appeal ground 12. And even if appeal ground 12 was amended to raise such a ground (and no application to amend was made to this court) the finding by the appeal tribunal was plainly a finding of mixed fact and law. The applicants have not identified how an appeal ground could be formulated to seek to persuade this court of that the finding was erroneous which would not itself inevitably invite this court to examine questions of fact or mixed fact and law.
As the applicants have not been able to formulate a ground of appeal which if leave was granted would give rise to an appeal only on a question of law, I would refuse to grant leave to appeal.
Conclusion
The order which should be made is that the application for leave to appeal is refused, with costs.
BROWN JA: I agree with Bond JA.
Monsour v C & R Darvill Pty Ltd [2022] QCAT 302. ↩
For example, solicitors acted for the applicants when they had issued a purported notice of termination of their contract with the respondent on 30 June 2016. ↩
Nolan v Clifford (1904) 1 CLR 429 at 431; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [4] and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [78]. ↩
Allen v Queensland Building and Construction Commission (2024) 18 QR 79 at [16]. ↩
Allen v Queensland Building and Construction Commission (2024) 18 QR 79 at [19]-[20]. ↩
Allen v Queensland Building and Construction Commission (2024) 18 QR 79 at [23]. ↩
University of Wollongong v Metwally (1984) 158 CLR 447. ↩
Hope v Bathurst City Council (1980) 144 CLR 1, 7. ↩
Monsour
C & R Darvill Pty Ltd [2026] QCA 3
(1984) 158 CLR 447
(2002) 209 CLR 478
(1904) 1 CLR 429
(2011) 244 CLR 427
(1980) 144 CLR 1
The application for leave to appeal was refused, with costs.