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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
L & V Project Pools Pty Ltd v Stephen N. Laffey Coastalite Pty Ltd  QCATA 170
L & V PROJECT POOLS PTY LTD
STEPHEN N. LAFFEY
COASTALITE PTY LTD
23 November 2020
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicant applied for leave to appeal – where applicant sought to introduce evidence fresh evidence from two witnesses – whether evidence should be admitted – where witness’ evidence relied upon at original hearing – where allowing further evidence would be contrary to Tribunal’s mandate – where incumbent upon applicant to procure evidence and arrange attendance of other witness before original hearing – where applicant cannot seek to introduce rebuttal evidence after Tribunal delivered its findings – where fresh evidence unlikely to have impact on case
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate Tribunal – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – where allegation of denial of procedural fairness – where Tribunal has mandate to deal with matters quickly – where Adjudicator applied correct legal test – where appellant did not raise any concerns or seek adjournment at hearing – where applicant had enough time to consider evidence and respond – where appellant was afforded procedural fairness within context of Tribunal’s minor civil disputes jurisdiction
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 143
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Armstrong v Kawana Island Retirement Village  QCATA 324
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd  QCATA 69
Cachia v Grech  NSWCA 232
Chambers v Jobling (1986) 7 NSWLR 1
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Creek v Raine & Horne Mossman  QCATA 226
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
Harris v Foxworth Pty Ltd  QCATA 133
King v ASIC  QCA 352
Kioa v West (1985) 159 CLR 550
Laffey & Coastalite Pty Ltd v L & V Project Pools Pty Ltd  QCAT 238
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 12
Selvanayagam v University of the West Indies  1 All ER 824
Slater v Wilkes  QCATA 12
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
M Williams of MacGregor O’Reilly Nash Solicitors
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
What is this appeal about?
- On 29 May 2019, an Adjudicator ordered L & V Project Pools Pty Ltd pay Coastalite Pty Ltd the sum of $25,000.00 plus filing fee of $338.20.
- Project wants to appeal that decision. Because this is an appeal from a minor civil dispute, leave is required. In determining whether to grant leave, the Tribunal will consider established principles including:
- (a)whether there is a reasonably arguable case of error in the primary decision;
- (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;
- (c)whether leave is needed to correct a substantial injustice caused by some error; and
- (d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.
Should the Appeal Tribunal admit fresh evidence?
- Project sought leave to file the following fresh evidence with its appeal:
- (a)Affidavit of Michaela Laffey sworn 20 December 2019; and
- (b)Affidavit of David Faulkner sworn 3 February 2020.
- The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:
- (a)Could the parties have obtained the evidence with reasonable diligence for use at the trial?
- (b)If allowed, would the evidence probably have an important impact on the result of the case?
- (c)Is the evidence credible?
- Project submitted that this evidence was not available earlier because it was seeking to protect Ms Laffey, while Mr Faulkner was not aware of the matter until the Tribunal delivered its decision.
- However, Project was given the opportunity to adduce Ms Laffey’s evidence for use at the original hearing. It in fact filed Affidavit evidence of Ms Laffey that was relied upon at the original hearing. After Project informed the learned Adjudicator that it would be seeking to call Ms Laffey on a limited basis, she then gave her evidence. Allowing Project a further opportunity would be contrary to the Tribunal’s mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice.
- If Project was seeking to rely upon Mr Faulkner to give evidence, then it was incumbent upon it to procure his evidence and arrange his attendance before the original hearing. Project cannot rely upon its own failure to properly prepare its case as a reasonable explanation for not adducing evidence earlier.
- Project cannot seek to introduce rebuttal evidence after the Tribunal has delivered its findings at a hearing. The onus is always upon Project to present its case and bring all relevant material to the hearing. The choice to limit Ms Laffey’s evidence is not a reasonable basis to allow fresh evidence from her. Project had an obligation to act in its own best interests:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources,
“… the public as a whole, not merely the parties to the proceedings”.
Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.
- Moreover, the Appeal Tribunal is not satisfied that the affidavits would impact the result of the case. The affidavits do not prove that any payments received by Mr Laffey or his company related to caring for his brother while in hospital. At most, the fresh affidavits allow the drawing of a possible alternative inference. But they do not prove it.
- The compensation already paid was also referable to Mr Stephen Laffey’s work on his brother Michael Laffey’s greyhounds. Attempting to explain away the learned Adjudicator’s findings with a possible alternative inference does not demonstrate error. The affidavits are not contemporaneous and are compromised by being given with the knowledge and benefit of the earlier contrary evidence, together with the learned Adjudicator’s decision and findings. In these circumstances, they have little evidential weight and would not be sufficient to displace the learned Adjudicator’s original findings. Those findings were supported by evidence given at the time of the hearing and which was duly tested under cross-examination.
- The application seeking leave to rely upon fresh evidence is refused and the appeal is to proceed on the basis of the evidence before the learned Adjudicator.
What is the context within which the Appeal Tribunal considers the grounds of appeal?
- Project’s grounds of appeal about the learned Adjudicator not making certain findings, not referring to all the evidence and not providing reasons for not accepting evidence favourable to its own case do not align with the Tribunal’s mandate to conduct proceedings in a way that is fair, just, economical, informal and quick, or with established principle:
Where one set of evidence is accepted over a conflicting set of evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear.
Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance.
… it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations… the content required of a statement of reasons is to be measured against the burden that the provision of reasons imposes on the judicial system. The reason for this is that the giving of overly elaborate reasons can serve to undermine public confidence in the judiciary and in the judicial system in the same way that insufficient reasons can… an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system.
It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them an in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.
- This reasoning applies a fortiori to the Tribunal, which is statutorily mandated to conduct proceedings in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice. The primary reasons need only refer to the relevant evidence, material findings of fact (and reasons for those findings) and the applicable law and reasons for applying it.
- Similarly, an appellable error is not demonstrated by identifying other possibilities not mentioned or not apparently considered - the Tribunal may decide the case in a way that does not require the determination of a particular submission and can therefore be simply put aside. The Tribunal may have unexpressed findings of fact.
- It is within this context that the primary reasons and grounds of appeal are considered.
Was the evidence capable of supporting the Tribunal’s findings and were its reasons adequate?
- Most of Project’s grounds of appeal focused on the learned Adjudicator’s findings about an agreement for Project to pay Coastalite $40 plus GST per hour for the time that Stephen Laffey spent with his brother to care for him while in hospital. In particular, Project submitted:
- (a)The learned Adjudicator failed to provide any reasoning that the agreement was not made in a commercial context but between two family members and therefore not intended to create a legally binding agreement;
- (b)The learned Adjudicator interchanged the parties / did not adequately differentiate between the contracting parties / did not establish who the parties were to the agreement;
- (c)The learned Adjudicator failed to consider whether the agreement was limited to the sale of the greyhound business, the importance of chronological events and the context in which Michael Laffey requested Stephen Laffey attend his home to discuss the sale of the greyhound business;
- (d)In accepting corroborative evidence of the agreement, the learned Adjudicator failed to address the dichotomy between the witness’s status as an employee of Project and Stephen Laffey’s relationship as a brother of Michael Laffey, a director of Project; and
- (e)The learned Adjudicator erred in finding that the Tax Invoice was still valid and payable where it lacked substantiation and itemisation.
- The learned Adjudicator cited case law about agreements in familial and commercial settings, correctly noting that ‘the outcome in each case turns on its own facts’. The learned Adjudicator’s findings about the agreement and its surrounding circumstances are findings of fact. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. An Appellate Tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.
- The learned Adjudicator’s findings about the agreement were based on sworn evidence from Stephen Laffey and other witnesses, a Deed of Acknowledgement, tax invoices and payment records - referred to extensively throughout the learned Adjudicator’s reasons. He gave reasons why he accepted this evidence. He also gave reasons for not accepting evidence from Project and witnesses where it conflicted with other evidence.
- Project did not seek to challenge or cross-examine Stephen Laffey on the hours, dates, times, activities and services claimed to have been provided. The appeal process is not an opportunity for a party to again present their case. It is the means to correct an error by the Tribunal that decided the proceeding. Having considered material filed with the application and oral evidence from the parties and their witnesses at the hearing, the learned Adjudicator was in the best position to assess credit and make findings accordingly. A decision cannot properly be called erroneous, simply because the learned Adjudicator preferred one conclusion to another possible conclusion.
- The Appeal Tribunal is not satisfied that Project’s evidence is sufficient to displace the Tribunal’s finding of fact of a commercial agreement between Project and Coastalite, rather than natural love and affection between two brothers. The learned Adjudicator preferred the sworn evidence of Stephen Laffey and his witnesses together with his supporting documents over Project and its witnesses. The learned Adjudicator referred to the evidence to support his ultimate finding, which he was entitled to weigh accordingly.
- Project’s grounds of appeal about the learned Adjudicator’s reasons not addressing selected arguments or items of evidence do not demonstrate an appellable error. If the learned Adjudicator’s reasons do not specifically refer to an item of evidence, it does not mean it was overlooked. Rather, it is reasonable to infer that the learned Adjudicator did not consider it relevant or sufficient to outweigh the evidence upon which findings were made.
- It is not an error for the learned Adjudicator to not explain away each and every item of evidence not considered relevant or of sufficient weight. This is particularly so in in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year and the Tribunal’s statutory mandate, to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice, is at its most acute. It is sufficient that the learned Adjudicator’s reasons set out the evidence he considered relevant and the basis for his findings. The learned Adjudicator’s reasons do this.
- The learned Adjudicator’s findings about the existence of the agreement and its parties and terms were open on the evidence. Nothing in the material or the transcript persuades the Appeal Tribunal that the learned Adjudicator’s findings were not open. It is not an error to prefer one version of facts to another.
- The learned Adjudicator’s decision was therefore appropriate, and the Appeal Tribunal can find no reason to come to a different view.
- These grounds of appeal are dismissed.
Did the Tribunal give Project natural justice?
- Project submitted that the learned Adjudicator erred in failing to observe natural justice and provide Project with a fair hearing. This ground of appeal was framed within the context of the learned Adjudicator erroneously shifting the burden of proof onto Project and erring in his reliance on the inability of Project to prove that an agreement did not exist, as evidence of an agreement. Project also submitted that evidence was not disclosed to it before the hearing.
- The Tribunal must observe procedural fairness. However, this is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power. The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.
- The Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice, is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year. Within this context, the Tribunal is not bound by the rules of evidence, and may inform itself in any way it considers appropriate.
- The learned Adjudicator did not erroneously shift the burden of proof. To the contrary, he expressly noted the question as whether Stephen Laffey and Coastalite had ‘discharged the onus which they bear to prove on the balance of probabilities the contract, the performance of services (hospital care) pursuant to the contract, and the liability in debt of [Project] to Coastalite’.
- The learned Adjudicator then considered evidence supporting an agreement and evidence relied upon by Project. Referring to the equivocality of much of Project’s evidence, the learned Adjudicator noted that it did not prove the absence of an agreement. Within this context and Project’s bare denial of the agreement, the learned Adjudicator’s reasoning reveals an open inference rather than an error of law. The learned Adjudicator ultimately found that Stephen Laffey and Coastalite had ‘discharged the onus of proving the agreement on which the claim is based.’ The learned Adjudicator applied the correct legal test.
- Project was not denied procedural fairness by the non-disclosure of evidence before the original hearing. The minor civil disputes jurisdiction requires Adjudicators to deal with matters fairly, quickly and economically. This means that parties may not be aware of all of the material relied upon by their opponent before the hearing. The learned Adjudicator gave Project an opportunity to present its material to prove its case and to rebut Project's evidence. Project had enough time to consider the evidence and respond, as shown by it not raising any concerns or seeking an adjournment at the original hearing.
- At the original hearing, the learned Adjudicator asked the parties relevant questions and gave them an opportunity to respond, referring to supporting material where appropriate. By doing so, he focused on the issues and used time and resources efficiently, consistent with the Tribunal’s mandate. Extending the requirements of procedural fairness beyond this is inconsistent with the QCAT Act and would make the minor civil disputes jurisdiction cumbersome.
- The Tribunal gave Project procedural fairness within the context of the Tribunal’s minor civil disputes jurisdiction.
- This ground of appeal is dismissed.
Should the Appeal Tribunal grant leave to appeal?
- Leave will not be granted where a party seeks to re-argue the case on existing or additional evidence. A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case. An application for leave to appeal is not, and should not be, an attempt to reargue a party’s case at the initial hearing. A party who does not provide all their relevant evidence at the hearing cannot expect a different outcome by re-arguing their case on appeal.
- Having read the transcript and considered the evidence, the Appeal Tribunal finds nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting his decision, or was influenced by irrelevant matters. The evidence was capable of supporting his conclusions.
- There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal is refused.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41 (‘QUYD v Marvass’).
Cachia v Grech  NSWCA 232, 2.
QUYD v Marvass.
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577, 577, 580.
Appeal Tribunal Directions dated 17 September 2020.
Submissions of Applicant filed 9 October 2020; Submissions of Respondent filed 5 and 9 October 2020.
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404, 408.
Affidavit of Michaela Laffey sworn 22 November 2018; Laffey & Coastalite Pty Ltd v L & V Project Pools Pty Ltd  QCAT 238,  to  (‘Laffey & Coastalite v L & V Project Pools’).
Transcript dated 22 January 2019, page 1-26, lines 36 to 45; page 1-27, lines 1 to 5.
Laffey & Coastalite v L & V Project Pools, , , .
QCAT Act, s 4(c).
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 12,  (‘Rayner & Anor v Elders Redcliffe’); Harris v Foxworth Pty Ltd  QCATA 133, ; Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd  QCATA 69, .
Creek v Raine & Horne Mossman  QCATA 226,  (‘Creek v Raine & Horne Mossman’), citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 (citations omitted).
Laffey & Coastalite v L & V Project Pools,  to .
QCAT Act 2009 (Qld), s 3(b).
King v ASIC  QCA 352, citing with approval Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
QCAT Act, s 4(c).
Armstrong v Kawana Island Retirement Village  QCATA 324, .
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, .
QCAT Act, s 28(2).
Ibid s 28(3)(a).
Ibid s 28(3)(d).
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270 (‘Soulemezis v Dudley’).
Laffey & Coastalite v L & V Project Pools,  to .
Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-16.
Chambers v Jobling (1986) 7 NSWLR 1, 10.
See for example, Laffey & Coastalite v L & V Project Pools, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , .
See for example, Ibid , , , , , , , , , , , , , , .
See for example, Ibid , , , , , , , .
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39,  (‘Bradlyn Nominees v Saikovski’).
Slater v Wilkes  QCATA 12,  (‘Slater v Wilkes’), citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611.
Selvanayagam v University of the West Indies  1 All ER 824, 826.
Soulemezis v Dudley.
QCAT Act, s 4(c).
Soulemezis v Dudley.
Slater v Wilkes, .
Statutory Declaration of Ross Salter sworn 3 January 2019.
Written submissions filed 2 January 2020, .
QCAT Act, s 28(3)(a).
Kioa v West (1985) 159 CLR 550, 584-5.
Creek v Raine & Horne Mossman,  (Wilson J).
QCAT Act, s 4(c).
Rayner & Anor v Elders Redcliffe,  (Wilson J).
QCAT Act, s 28(3)(b).
Ibid s 28(3)(c).
Laffey & Coastalite v L & V Project Pools, .
Ibid  to ,  to ,  to , ,  to , .
Ibid , .
QCAT Act, ss 3 and 4.
Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152,  (Wilson J).
Bradlyn Nominees v Saikovski.
- Published Case Name:
L & V Project Pools Pty Ltd v Stephen N. Laffey Coastalite Pty Ltd
- Shortened Case Name:
L & V Project Pools Pty Ltd v Stephen N. Laffey Coastalite Pty Ltd
 QCATA 170
23 Nov 2020