Till v Rose[2016] QCA 127

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the orders proposed by Philip McMurdo JA and with the reasons given by his Honour.
2. PHILIP McMURDO JA:  The applicants, Mr and Mrs Till, own a rural property near Brisbane.  The respondent, Mr Rose, is an earthmoving and fencing contractor.  In January 2015 they agreed that Mr Rose would clear a fence line and supply and install a fence at their property.  The agreed price was $26,950 (including GST) and a deposit of $10,000 was paid.
3. The respondent engaged a subcontractor, a Mr Kirk, to supply and install the fence.  The price payable to Mr Kirk was $14,985, of which Mr Kirk has been paid at least $10,000.
4. A dispute arose between the applicants and the respondent, which the applicants took to the Queensland Civil and Administrative Appeals Tribunal.  They sought to be relieved from payment of the balance of the contract price.  The respondent cross‑applied for an order that they pay that price.  There was a hearing before an adjudicator at which each side was legally represented.  The adjudicator gave his decision at the conclusion of the hearing.  He held that the respondent had substantially performed the contract although there was a small number of trees still to be removed, for which an amount of $800 should be allowed in the applicants’ favour.  He held that the respondent was otherwise entitled to the balance of the price and ordered the applicants to pay to him the sum of $16,150 (the balance of the contract sum less $800).
5. The applicants sought leave to appeal against that decision to the Queensland Civil and Administrative Appeal Tribunal.  Their complaint was one which they had not argued before the adjudicator.  It was that neither the respondent nor Mr Kirk had a necessary licence for the performance of this work under the Queensland Building and Construction Commission Act 1991 (Qld) (which I will call the Building Act).  If that was correct, then by s 42 of the Building Act, the respondent was not entitled to any monetary consideration for the performance of the work the subject of the contract except according to s 42(4) which relevantly provides as follows:

“(4)A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed—

(a)is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and

(b)does not include allowance for any of the following—

(i)the supply of the person’s own labour;

(ii)the making of a profit by the person for carrying out the building work;

(iii)costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred…”

The applicants appeared to concede that the respondent was entitled to retain the deposit of $10,000.  But they argued that he was not entitled to any further payment.

6. By s 142(3) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) this adjudicator’s decision could be appealed only with the leave of the Appeal Tribunal.  That was not only because it was “a decision in a proceeding for a minor civil dispute”,^[1] but also because it was a proposed appeal on a question of fact, or a question of mixed law and fact, namely the question of the amount of remuneration to which the respondent had been entitled.
7. The Appeal Tribunal, constituted by Senior Member Stilgoe, gave a written decision refusing leave to appeal.  She held that leave to appeal would usually be granted “where there is a reasonable argument that the decision is attended by error and an appeal is necessary to correct a substantial injustice to the applicant caused by that error”, citing Pickering v McArthur.^[2]  She said that in considering whether to grant leave, the Appeal Tribunal starts from the following proposition:^[3]

“It is elementary that a party is bound by the conduct of his case.  Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”

She noted that the applicants had not explained why this was “an exceptional case”.

8. She then referred to the decision of this Court in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd^[4] for the proposition that the need for a further hearing, if an appeal was to be allowed on an issue not raised before the original tribunal, could be a sufficient reason to refuse leave to appeal.  She held that success for the applicants in their proposed appeal would result in the original tribunal having to hear further evidence to assess the respondent’s entitlement according to s 42(3) Building Act.  She remarked that in this case, where the applicants were legally represented, the applicants could look to their advisors for compensation in the event that the advisors were at fault for not raising the point before the tribunal.
9. The application for leave to appeal having been refused, the applicants now seek leave to appeal to this Court under s 150 of the QCAT Act.  By s 150(3) an appeal to this court may be made only on a question of law and only with the court’s leave.
10. Before going to the suggested errors of law, something more should be said about the case as it was presented by the parties to the Appeal Tribunal.  The parties’ submissions were made in writing.  The respondent made detailed submissions, by reference to the Building Act, by which he disputed that he was obliged to hold a licence.  Those submissions were not immediately compelling.  But if leave to appeal was to be granted, they had to be considered and that had the potential to raise factual questions.  There were also potential factual questions in the quantification of the respondent’s entitlement under s 42(4) of the Building Act, if s 42 applied.  A relevant limitation upon the amount which could be claimed by the respondent would have been the amount paid by him to Mr Kirk.^[5]  When the dispute was before the adjudicator, Mr Kirk had been paid $10,000.  But Mr Kirk had not abandoned his claim for the balance of his price and the Appeal Tribunal could not have known whether anything further had been paid to him.  There was also a potential factual question as to what remuneration would have been reasonable for the respondent.^[6]  In their written submissions to the Appeal Tribunal, the applicants conceded that $10,000 would be a reasonable remuneration.  But they did not make the same concession in respect of any further sum which the respondent might have paid to Mr Kirk.
11. Consequently, Senior Member Stilgoe was correct to apprehend that if leave to appeal was granted and the appeal was allowed, there would have to be some further hearing on factual questions.  And she correctly identified the relevance of that circumstance.
12. Of course the Appeal Tribunal had to bear in mind the possibility that the adjudicator’s decision had not been according to law.  But that was not the only consideration.  There was also the desirability of finality in the resolution of disputes, especially where the amount in dispute was likely to be a little more than the potential costs of litigating again the respondent’s claim.  And there was the absence of a satisfactory explanation for this argument not having been raised before the adjudicator.
13. I go then to the suggested errors of law of the Appeal Tribunal.  The first is that it erred in failing to hold that the respondent bore an onus of proving that he was entitled to the payment which was ordered in his favour.  The Appeal Tribunal said nothing about that burden of proof.  But it did not have to do so, in reasoning as it did.  There was no such error of law.
14. It is suggested that the Appeal Tribunal “impliedly found or assumed that the respondent, or Mr Kirk, held the necessary licence” and determined the application for leave to appeal upon that assumed fact.  That cannot be accepted.  There is nothing in the reasons of the Appeal Tribunal to indicate such an assumption or a finding.
15. It is submitted that the Appeal Tribunal did not consider the further evidence, namely that the respondent and Mr Kirk were each unlicensed.  Again, that cannot be accepted: the Tribunal did not overlook that evidence.  But it also had the extensive submissions for the respondent about whether any licence was necessary which, as I have noted, had at least the potential for a factual dispute.
16. It is said that the Appeal Tribunal erred in law in considering that it had insufficient evidence to assess for itself the reasonable compensation recoverable by the respondent under s 42(4) Building Act.  As I have discussed, the Appeal Tribunal apprehended that there were further facts to be found in that respect.  That apprehension was reasonable and involved no error of law.
17. It is submitted that there was an error of law in the observation by the Appeal Tribunal that the applicants could look to their legal advisors for compensation for not taking this point before the adjudicator, because those lawyers would be immune from suit.^[7]  But the position between the applicants and their lawyers could not be fairly assessed within the present application.  And in any case, this observation was not critical to the Appeal Tribunal’s conclusion.
18. It is submitted that the Appeal Tribunal misunderstood the proper exercise of the discretion which it was exercising under s 142 QCAT Act, in that it failed to give due effect to certain provisions of the QCAT Act.  One of those provisions is said to be s 3(b), which provides that an object of the Act is “to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.”  It is said that fairness and justice were overlooked by the Appeal Tribunal in this case.  But what was fair and just in the present case was affected by the several matters considered by the Appeal Tribunal and not simply by whether, as the applicants argued but the respondent disputed, s 42 of the Building Act should have been applied.  And the considerations of economy and expedition, also expressed as objects in s 3(b), favoured the conclusion of the Appeal Tribunal.  The same can be said of another of the provisions upon which the applicants rely, namely s 4(c) which requires the tribunal “to ensure proceedings are conducted in an informal way that minimises cost to parties, and is as quick as is consistent with achieving justice”.
19. The applicants suggest that the Appeal Tribunal did not give proper effect to s 28(2) QCAT Act, which requires the tribunal to act fairly and according to the substantial merits of the case.  It cannot be said that the Appeal Tribunal acted unfairly.  And the “substantial merits” which it was to consider were those of the application for leave to appeal, not of the proposed appeal itself.
20. Lastly reference is made to s 28(3)(b), which provides that the tribunal is not bound by “practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures”.  The argument here seems to suggest that the Appeal Tribunal should not have been influenced by the statements of principle in the cases which it cited, because they reflected the practices or procedures of courts.  That submission cannot be accepted.  Section 28(3)(b) is not a legislative dictate to ignore considerations such as the desirability of finality and proportionality in dispute resolution.
21. In my conclusion the discretionary decision of the Appeal Tribunal was not the result of any arguable error of law, for which this court could or should grant leave to appeal.  It was open to the Appeal Tribunal, in weighing the considerations which it identified, to refuse leave to appeal.
22. I would order that this application for leave to appeal be refused and the applicants pay the respondent his costs of the application.
23. APPLEGARTH J:  I agree with the reasons of Philip McMurdo JA and with the orders proposed by his Honour.