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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Mascord & Anor v i8LM Pty Ltd  QCATA 121
i8LM pty ltd
ORIGINATING APPLICATION NO/S:
MCDO 61234/18 (Brisbane)
21 August 2020
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tribunal panel found that landowners were liable to pay the full contract price for landscaping works even if the works were done in the wrong place, on the basis that the landowners’ method of marking the ground for the works was flawed – where the panel failed to make a finding about the contractual obligation to do the landscaping works and other issues necessary to determine the dispute – whether there was an error of law requiring remission on appeal
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where tribunal panel refused to hear from one of the parties – whether so procedurally unfair that the appeal should be allowed on that basis
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 95
Assistant Commissioner Brian JA Wilkins & Anor v Gunter  QCATA 101
Self-represented by a director, Daryl Baumgartner
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- This appeal is from a decision of a panel of two justices of the peace in which they ordered Terri Mascord and her husband Bernie Mascord to pay to i8LM Pty Ltd the sum of $1,000 within 28 days.
- I8LM had quoted for work at Mr and Mrs Mascord’s property for $4,000 including GST. Soon after receiving and accepting the quote but before work started, Mr and Mrs Mascord paid $3,000 to i8LM. In the application before the tribunal, i8LM claimed that it had completed the work, and so it claimed the remaining $1,000, plus interest of $350 and the filing fee, a total amount of $1,470.50.
- The claim was brought as a minor debt claim on Form 3. Such a claim requires a written response to be filed and Mr and Mrs Mascord did so. They said that they resisted the claim on the basis that the work did not accord with the quote, was unfinished, was defective, and the materials were of inferior quality. They said that this had been raised with i8LM’s director Mr Baumgartner, and it was agreed at a site meeting on 28 April 2018 that i8LM would stop work and nothing further would be paid.
- A statement made by Mrs Mascord and inscriptions on some photographs were filed with the response form. These explained the defence to the claim in more detail.
- The dispute was heard on 6 March 2019. The Appeal Tribunal has obtained a transcript of the hearing. Mrs Mascord gave evidence and made submissions for herself and Mr Mascord, and Mr Baumgartner did the same for i8LM.
- The main issues were clear from the paperwork filed in advance of the hearing and from what was said at the hearing. In this appeal, I am going to use the words ‘make a track’ to describe the work that i8LM was required to do. This differs from the words ‘construct walking paths’ in the quote itself, but as can be seen below the precise description of the work may be controversial.
- One issue was whether i8LM made the track in the correct place. In this respect, the parties described the land as follows:
- (a)Northern section. This was where i8LM had been engaged by the Ipswich River Improvement Trust (IRIT) to clear some trees. It was dense and unpassable without some clearing. This was a separate contract between i8LM and IRIT which was to start about the same time as the contract between i8LM and Mr and Mrs Mascord.
- (b)Southern section (also called the ‘middle section’). This section had been cleared previously by Mr and Mrs Mascord sufficient to be passable. Mr and Mrs Mascord had marked the track with loose logs.
- It was common ground that prior to the quote for the work, Mr Baumgartner and Mrs Mascord walked through the site and she pointed out to him where she wanted the track to be made. Mrs Mascord said she pointed out the southern section as being where the work was required and showed Mr Baumgartner the loose logs marking the route. But Mr Baumgartner said she pointed out the northern section.
- It was also common ground that i8LM worked only in the northern section, where it was clearing trees for IRIT, and that it made a track in that section. Since parts of track passed over land which was very steep, i8LM made some steps as well.
- Mr Baumgartner said that Mrs Mascord regularly came down to the site and saw the work being done, and never questioned that it was in the wrong place. But Mrs Mascord said that she assumed that the work that was being done in the northern section was all for the IRIT. This explains, she said, why it was not until a site meeting on 28 April 2018 that she questioned why no work was being done in the southern section.
- Unfortunately the quote did not specify whether the track was to be made in the northern section or the southern section.
- The second issue concerned what was said at the meeting on 28 April 2018.
- Mrs Mascord said that when she realised that i8LM had made the track in the wrong place she asked Mr Baumgartner whether the $3,000 already paid covered the work that had been done and it was agreed between them that i8LM would leave site and not claim any more money. Then three months later i8LM sent a bill for the $1,000, to which she responded with an email referring to what had been agreed at the meeting.
- Mr Baumgartner’s recollection of the meeting on 28 April was quite different. He said that when he realised that Mrs Mascord had misunderstood where the contract obliged i8LM to make the track, he offered to place some star pickets on the track in the southern section and they agreed on that. It seems that he assumed that he would then be paid the remaining $1,000. But the next day Mrs Mascord changed her mind and said she did not want him to do any further work and that she would not be paying him the remaining $1,000.
- The important difference between the parties about the 28 April discussion was that Mrs Mascord was claiming that the dispute between them had been settled by agreement, but this was denied by i8LM.
- The third issue was whether the work done by i8LM in the northern section was defective. Mrs Mascord said that the steps were too high and were unsafe. They had not been made in accordance with the contract. This was because they had been made using lightweight pine fence palings mounted edgewise attached to reinforcing bar with plastic cable ties, instead of hardwood railway sleepers fastened to star pickets. Also there were no side supports to hold the timber steps or their infill in place.
- Mr Baumgartner maintained that the work was not defective or unsafe. He said that Mrs Mascord knew from email correspondence he was going to use treated pine for the steps and not hardwood and she did not object to this. Mr Baumgartner said that the northern section was very steep and Mrs Mascord understood this.
- Mrs Mascord said that after the discussion on 28 April she engaged another contractor and paid him $1,000. Attached to the response was a statement from the contractor criticising the steps that had been made, but which was otherwise unclear about the work done.
- Contrary to what Mrs Mascord said, Mr Baumgartner said that the work had been substantially completed. He said that the only work outstanding at the time of the conversation on 28 April was the mulch on the track surface, but i8LM did do that work soon after. Hence it was said the whole of the contract sum was due.
- The issues for determination for the tribunal were therefore (taking them in a logical order for decision making):
- (a)Was there agreement to settle the dispute between the parties on 28 April 2018?
- (b)In the objective intention of the parties, where did the contract require the track to be made? Or was the contract void for uncertainty on this question?
- (c)Was the track made where the contract required?
- (d)Was the work defective because it failed to comply with the contract, or was it unsafe or otherwise defective having regard to the Australian Consumer Law guarantees?
- (e)Was the contract work completed?
- (f)Was i8LM entitled to the additional $1,000 bearing in mind the answers to issues (a) to (e) and any work done by the other contractor?
- The panel reserved the decision but gave its decision in writing a few days later with reasons. Unfortunately it appears from the file that the decision and reasons were not sent to the parties until November 2019.
- The panel did not make findings on issues (a) to (d) and may not have made a finding on (e).
- Instead, the panel resolved the dispute in a different way. The panel decided that Mrs Mascord’s method of marking the route of the required track in the southern section with loose logs was flawed because the logs could reasonably be mistaken for ‘natural geographical and vegetation surrounding’. The panel decided that i8LM ‘cannot be held liable’ for this mistake.
- In effect, the panel was saying that a contractor is entitled to be paid for unwanted work where the landowner’s instructions are unclear. However, it is difficult to understand the principle of law on which this approach was based. Certainly the tribunal would have no jurisdiction to resolve the dispute on this basis because its jurisdiction is limited to the recovery of a debt or liquidated demand of money or to contractual claims in these circumstances.
- The panel did begin to deal with issue (d) (the defective work) by deciding that the quote was for a ‘walking track’ and not for a ‘walkway’. Hence the expected quality of work required by the contract was ‘far less’ than if it had been for a walkway. The panel did not expressly find that the work was therefore not defective and not unsafe and in accordance with the contract, but did state that therefore the panel ‘was not satisfied that (i8LM) had failed to deliver on its intended construction work’. The exact finding here is unclear.
- In the appeal, Mr and Mrs Mascord repeated their case and asked for a ‘review’ of the decision. However, this is not the function of an appeal. The Appeal Tribunal directed that Mr and Mrs Mascord set out the way in which the panel was in error, and they provided further submissions in response. One point made in the submissions is that the issue identified by the tribunal for resolution, as to whether the quote was for a walkway or a walking path was ‘not particularly relevant’ because their case was that the materials used and the method of construction was wrong.
- On the question of whether the track was made in the correct place, the appeal submissions acknowledge that the panel was at a disadvantage because of the poor photographic evidence. The submissions attempt to improve the information by giving the route in more in detail and providing new photographs. This is ‘fresh’ evidence and the Appeal Tribunal is unable to consider it.
Failing to deal with the issues
- It is clear from the above description of the issues and the way the panel dealt with the dispute that the panel failed to deal with the issues properly. The Appeal Tribunal does not require perfection in this respect, but the decision making process needs to be sufficiently clear and thorough for a reasoned decision to be made.
- Leave to appeal will be given and the appeal allowed.
Refusing to hear from Mr Mascord
- Mr Mascord was a party to the application brought by i8LM, and indeed has been ordered to pay to i8LM the sum of $1,000 as a result of the hearing.
- Despite this, on three occasions during the hearing the panel refused to permit Mr Mascord to say something when he asked permission to do so. On the first occasion the panel explained that they regarded him only as a support person. On the second the panel did not intervene when Mrs Mascord told him that it was because he had not been sworn in. On the third occasion, the panel again explained that he was a support person. On this third occasion which was at the end of the hearing, Mr Mascord insisted on being heard, to which the panel replied that it would be ‘inappropriate – highly inappropriate’. Mr Mascord did manage to say a few words before proceedings closed.
- Judging from the transcript it seems possible that the panel thought that Mr Mascord should be treated only as a witness and not as a party. This possibility appears from this passage from the transcript at the beginning of the hearing when the parties were being sworn in. The panel said:
Is he going to be called as a witness or is he going to be giving any statement? Because if he’s going to be giving a statement as a witness, we’ll have to put him outside, but if he’s going to support you ...
- In civil proceedings, there is no rule that a witness should not hear the evidence of other witnesses. It will be a matter of practice for the panel to decide in each case. In a case where the witness is also a party to the proceeding, then excluding that person from the hearing when others are giving evidence is highly problematical when they are unrepresented. This is because a party is entitled to hear the evidence which is being given and indeed, a party is entitled to cross-examine witnesses subject to the tribunal’s control.
- It is a fundamental principle of natural justice, underlined by the provisions of section 95 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), that a party should have a reasonable opportunity to give evidence and to make submissions. The tribunal has unlimited powers to restrict a party’s role in a proceeding but only where the tribunal is satisfied it is necessary for the speedy and fair conduct of the proceeding and this cannot be used to override the principle of procedural fairness.
- This is not a point made in this appeal, but it seems likely from their submissions, which are otherwise comprehensive, that Mr and Mrs Mascord are not aware of the breach of procedural fairness at the hearing shown by these unsuccessful interventions. In the circumstances, particularly bearing in mind that I am allowing this appeal on other grounds, it is right that it should be allowed on this ground also.
Conclusion in the appeal
- The way this appeal has been dealt with is by deciding that the tribunal panel did not deal with the issues which needed to be resolved, and that the panel failed to provide Mr Mascord a fair hearing. These are errors of law.
- The Appeal Tribunal is unable to repair these errors by substituting its own decision because of the absent required findings of fact. In the circumstances there is no alternative but to set aside the order which was made and to remit the matter back to the tribunal for reconsideration.
- Directions have been made to make it easier to resolve this dispute at the remitted hearing.
 Respectively transcript 1-9 line 8 and 1-13 line 12.
 Transcript 1-11 line 1.
 Transcript 1-11 line 23.
 Transcript 1-5 line 10.
 Transcript 1-12 line 43.
 Transcript 1-4 line 34.
 Transcript 1-23 line 40.
 Reasons ,  and .
 The Appeal Tribunal directed that any application for it to hear fresh evidence should be made formally and explain why the evidence was not available to the tribunal below, why it was important and why it should be accepted. No such application was made.
 Transcript 1-23 line 20.
 Transcript 1-27 line 15.
 Transcript 1-29 line 20.
 Transcript 1-2 line 42.
 Section 95 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
 Assistant Commissioner Brian JA Wilkins & Anor v Gunter  QCATA 101, .
- Published Case Name:
Terri Mascord and Bernie Mascord v i8LM Pty Ltd
- Shortened Case Name:
Mascord v i8LM Pty Ltd
 QCATA 121
21 Aug 2020