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Stanton v Electrics Downunder Pty Ltd[2019] QCAT 158

Stanton v Electrics Downunder Pty Ltd[2019] QCAT 158

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Stanton v Electrics Downunder Pty Ltd [2019] QCAT 158

PARTIES:

NOEL EDWARD STANTON

 

(applicant)

 

v

 

ELECTRICS DOWNUNDER PTY LTD

 

(respondent)

APPLICATION NO/S:

REO013-18

MATTER TYPE:

Building matters

DELIVERED ON:

10 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The application to reopen proceeding BDL231-16 is refused.

CATCHWORDS:

APPEAL AND NEW TRAIL – PROCEDURE- QUEENSLAND – POWERS OF COURT – where matter referred to tribunal under s 143A(2) of Queensland Civil and Administrative Tribunal Act 2009 (Qld) to decide whether to reopen – where hearing on the papers – whether a party can seek to reopen a matter based on not appearing at the proceedings

EVIDENCE – ADDUCING EVIDENCE – COURSE OF EVIDENCE – RE-OPENING CASES – BY COURT – where matter referred to tribunal under s 143A(2) of Queensland Civil and Administrative Tribunal Act 2009 (Qld) to decide whether to reopen – whether party can rely on reasons for tribunal decision as ‘fresh evidence’ to support application to reopen

Uniform Civil Procedure Rules 1999 (Qld) r 668

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139, s 140, 143A2, sch 3

David J. Williams v. Toyota Finance Australia Limited [2000] QDC 439

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Fairmont Suites and Hotels Pty Ltd v Duck Holes Creek Investments Pty Ltd & Ors [2009] QSC 98

R v Katsidis; ex parte A-G (Qld) [2005] QCA 229

Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417

Rockett & Anor v The Proprietors of “The Sands” BUP 82 [2002] 1 Qd R 307

Stanton v Queensland Building and Construction Commission [2017] QCAT (unreported)

Stanton v Queensland Building and Construction Commission [2018] QCAT 271

REPRESENTATION

 

Applicant:

Kelly Legal

Respondent:

McKays Solicitors

APPEARANCES:

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

The background

  1. [1]
    Mr Noel Stanton entered into a contract with Mr Shaun Cook for the construction of a dwelling by Mr Stanton. Electrics Downunder Pty Ltd (‘Electrics Downunder’) performed electrical works at the dwelling.
  2. [2]
    Mr Stanton and Mr Cook and Mr Stanton and Electrics Downunder fell into dispute. Mr Stanton commenced proceedings in the tribunal claiming relief from payment of an amount of $3,443.37 to Electrics Downunder and damages in the amount of $5,000.[1] Electrics Downunder counterclaimed for an amount of $8,433.37 which it said was due and owing by Mr Stanton.[2] In essence, Mr Stanton claimed that he had not engaged Electrics Downunder to perform the electrical works and that Mr Cook had done so. Electrics Downunder said that it had been engaged by Mr Stanton to perform the works. I will refer to those proceedings as BDL231-16.
  3. [3]
    The Tribunal made various directions from time to time in BDL231-16. The matter was listed for hearing in Mackay on 24 March 2017. Mr Stanton failed to attend the hearing. The Tribunal made directions for Mr Stanton to provide a written explanation, satisfactory to the Tribunal, for his failure to attend the hearing failing which his application may be dismissed and Electrics Downunder may be entitled to a final decision in the counter-application.[3] Mr Stanton failed to comply with the directions.
  4. [4]
    On 28 April 2017 the Tribunal made further directions in BDL231-16 including that Mr Stanton comply with the previous directions made by the Tribunal regarding his failure to attend the hearing, failing which Mr Stanton’s application would be dismissed and Electrics Downunder would be entitled to a final decision in the counter-application.[4] Mr Stanton failed to comply with the directions.
  5. [5]
    On 24 May 2017 the Tribunal dismissed Mr Stanton’s application[5] and made directions for Electrics Downunder to file a statement of evidence in support of the counter-application.
  6. [6]
    On 27 June 2017 the Tribunal made a final decision in the counter-application. Mr Stanton was ordered to pay Electrics Downunder $9,309.14 (the decision).[6] The Tribunal gave reasons for the decision.[7]
  7. [7]
    On 27 July 2017 Mr Stanton filed an application for leave to appeal or appeal in respect of the decision.
  8. [8]
    On 20 September 2018 the Appeal Tribunal ordered that the application for leave to appeal or appeal be referred to the tribunal to decide whether BDL231-16 should be reopened. I will refer to the reopening proceedings as REO013-18.

Reopening – the statutory framework

  1. [9]
    By s 138(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) a party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party. A reopening ground means:
  1. the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
  2. the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.[8]
  1. [10]
    The provisions of the QCAT Act dealing with applications to reopen a proceeding are contained in Chapter 2, Part 7, Division 7. By s 136 of the QCAT Act, Division 7 applies to a proceeding, other than an appeal, that has been heard and decided by the tribunal.
  2. [11]
    The tribunal may grant an application for reopening only if the tribunal considers:
  1. a reopening ground exists for the applicant party; and
  2. the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started.[9]
  1. [12]
    If the tribunal decides to grant an application to reopen, the tribunal may:
  1. confirm or amend the tribunal’s previous final decision in the proceeding; or
  2. set aside the tribunal’s previous final decision in the proceeding and substitute a new decision.[10]
  1. [13]
    If an application for reopening is successful, the proceeding cannot be reopened again.[11]

The decision of the Tribunal, the subject of the reopening application

  1. [14]
    It is appropriate to make some observations regarding the two decisions made by the Tribunal in BDL231-16. By the first decision, on 24 May 2017, Mr Stanton’s application was dismissed. By the second decision, on 27 June 2017, Mr Stanton was ordered to pay to Electrics Downunder the amount of $9,309.14 in respect of the counter-application.
  2. [15]
    The application for leave to appeal or appeal identifies the second of the decisions as the decision under appeal. The order of the Appeal Tribunal in respect of REO013-18 is confined to the second decision.
  3. [16]
    Mr Stanton’s submissions appear to conflate the first and second decisions. Mr Stanton submits that the second decision dismissed his application and allowed the counterclaim by Electrics Downunder. This submission is clearly incorrect for the reasons I have outlined. In the appeal submissions, Mr Stanton submits that the reasons in Stanton v Electrics Downunder Pty Ltd set out the reasons for both the first decision and the second decision. I do not accept this submission. The reasons relate only to the second decision. Insofar as the first decision is referred to, the reasons are a recitation of the history of the proceedings leading to the second decision. In the reopening submissions, Mr Stanton submits that on 27 June 2017 his application in BDL231-16 was dismissed and Electrics Downunder obtained judgment on the counter-application. This submission is clearly erroneous. The second decision was confined to the counter-application. 
  4. [17]
    The Appeal Tribunal directed that the following documents filed in the appeal be placed on REO013-18:
    1. (a)
      Submissions in support of the application to stay a decision filed 16 August 2018 (the stay submissions);
    2. (b)
      Submissions in support of the application to rely upon fresh evidence (the fresh evidence submissions);
    3. (c)
      Submissions in support of the application for leave to appeal or appeal (the appeal submissions).
  1. [18]
    I have reference to these submissions in determining the application to reopen.

What do the parties say?

  1. [19]
    The parties were directed to file submissions in REO013-18 (the reopening submissions).
  2. [20]
    Mr Stanton says that he can establish both of the reopening grounds set out in the definition of ‘reopening ground’ under the QCAT Act. Mr Stanton says that he has a reasonable excuse for not attending the hearing. He also says that he will suffer a substantial injustice if the proceeding is not reopened because significant new evidence has arisen which was not reasonably available when the proceeding was first heard and decided.
  3. [21]
    In his reopening submissions Mr Stanton says:

Notwithstanding that the Applicant’s position is that both of the alternative reopening grounds exist, these submissions will be limited to the issue of new evidence having arisen (the Applicant’s reasonable excuse for failing to attend the hearing was canvassed in the decision of Member Paratz in Stanton v Electrics Downunder Pty Ltd [2018] QCATA 106, wherein Member Paratz accepted the Applicant’s evidence as to his inability to appear at the hearing).  

  1. [22]
    It is necessary to make an observation about this submission. In the passage of the Appeal Tribunal’s reasons for decision relied upon by Mr Stanton, the Appeal Tribunal was not referring to the hearing in BDL231-16. Rather, the Appeal Tribunal was referring to the hearing of the appeal on 27 April 2018. 
  2. [23]
    Mr Stanton says that since the hearing of BDL231-16 he has come into possession of fresh evidence in the form of:
    1. (a)
      Internal Queensland Building and Construction Commission (‘QBCC’) file notes concerning an interaction between the QBCC and Electrics Downunder; and
    2. (b)
      Oral evidence from Mr Shaun Cook during the course of the QBCC Review Proceeding.[12]
  3. [24]
    The QBCC Review Proceeding is a reference by Mr Stanton to an application by him to review a decision by the QBCC that Mr Cook had validly terminated the building contract between Mr Cook and Mr Stanton. In Stanton v Queensland Building and Construction Commission[13] the Tribunal set aside the decision of the QBCC and disallowed Mr Cook’s claim for non-completion under the statutory insurance scheme.
  4. [25]
    Mr Stanton says that, in making the second decision, the Tribunal in BDL231-16 relied upon the evidence of Mr Cook and Electrics Downunder that Mr Stanton entered into an agreement with Electrics Downunder for Electrics Downunder to perform electrical contracting works at Mr Cook’s residence. The fresh evidence, says Mr Stanton, contradicts this.
  5. [26]
    Mr Stanton says that the QBCC file note, upon which he relies, was not made available to him until 14 May 2018.
  6. [27]
    Mr Stanton says that the decision in Stanton v Queensland Building and Construction Commission is also fresh evidence, having been handed down after the second decision.
  7. [28]
    In his fresh evidence submissions Mr Stanton says that Mr Cook has admitted engaging contractors, including Electrics Downunder, without reference to Mr Stanton.
  8. [29]
    Electrics Downunder says that Mr Stanton is unable to rely upon the first reopening ground on the basis that he has provided no explanation for his failure to attend the hearing in BDL231-16.
  9. [30]
    As to the reliance by Mr Stanton upon fresh evidence, Electrics Downunder says:
    1. (a)
      It disputes the validity of the QBCC file note on the basis that it does not accurately reflect the discussion that took place;
    2. (b)
      The content of the file note is in direct contrast to other evidence including:
      1. The building contract between Mr Stanton and Mr Cook which contains a provisional sum allowance for electrical works;
      2. Mr Stanton expressly instructed the director of Electrics Downunder to send all invoices relating to electrical works to him;
    3. (c)
      Mr Cook’s evidence at the hearing in the review proceedings was that he did not engage Electrics Downunder to perform electrical works as part of the building contract entered into between Mr Cook and Mr Stanton.

Consideration

  1. [31]
    In Ramke Constructions Pty Ltd v Queensland Building Services Authority (‘Ramke’)[14] the Tribunal held:

In my opinion, for a proceeding to have been heard and decided by the tribunal it is necessary (unless the parties are agreed as to the order the Tribunal should make) for there to be a hearing of the proceeding rather than a hearing of some other matter connected with it. Usually in a hearing of the proceeding, the merits of the proceeding would be considered and assessed by the Tribunal, although this might not happen for example if the applicant does not appear and the Tribunal is satisfied that the application is no longer being pursued. But when a proceeding is dismissed or struck out for noncompliance nothing of this nature happens. Instead, all that is considered is whether it is just to dismiss or strike out for the non-compliance in all the circumstances of the case. On such a dismissal or strike out the proceeding is not heard, nor is a decision made as to the success or failure of the proceeding whether on its merits or otherwise. Therefore the proceeding is not “heard and decided” and the reopening regime does not apply to the decision to dismiss or strike out.

  1. [32]
    As the Tribunal held in Ramke, a hearing of a proceeding involves a determination on the merits. For the purposes of s 136 of the QCAT Act, ‘a proceeding heard and decided by the tribunal’ includes a proceeding decided on the papers.  The decision, the subject of the application to reopen, is therefore a decision for the purposes of s 136.
  2. [33]
    The power to reopen a proceeding is one of the limited exceptions to the application of the doctrine of functus officio found in the QCAT Act.. The power of the tribunal to reopen a proceeding is strictly circumscribed. There are sound policy considerations underpinning these constraints, principally the need to ensure that there is finality in litigation and that a party cannot ‘go behind’ a decision of the tribunal except in very limited circumstances. In D’Orta-Ekenaike v Victoria Legal Aid [15] the High Court held:

A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet finds the reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. 

… As was said in the joint reasons in Coulton v Holcombe: “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.”

  1. [34]
    The reopening provisions of the QCAT Act are, in some respects, analogous to r 668 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) which empowers a court, if satisfied as to certain matters, to set aside a judgment where facts arise or are discovered after the trial.
  2. [35]
    Rule 668 provides:

668 Matters arising after order

  1. (1)
    This rule applies if –
  1. (a)
    facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
  1. (b)
    facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person's favour or to a different order.
  1. (2)
    On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
  1. (3)
    Without limiting subrule (2), the court may do one or more of the following –
  1. (a)
    direct the proceedings to be taken, and the question or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;
  1. (b)
    set aside or vary the order;
  1. (c)
    make an order directing entry of satisfaction of the judgment to be made.
  1. [36]
    Rule 668 is expressed in different terms to the reopening grounds found in the QCAT Act and, specifically, the second reopening ground. Whereas r 668 is concerned with ‘facts’, the second reopening ground under the QCAT Act is concerned with ‘new evidence’. Both r 668 and the second reopening ground refer, respectively, to facts or new evidence that ‘arise’ or ‘has arisen’ after a final order is made. While r 668 refers to facts ‘discovered’ after an order is made, the second reopening ground does not. Rule 668 applies to facts that come into existence after an order is made.[16] Importantly, in order for r 668 to apply, the court must be satisfied that the new facts entitle a person against whom an order is made to be relieved from the order or to be entitled to a different order.[17] Rule 668 operates only for the benefit of the party against whom an order is made. The reopening procedures under the QCAT Act are not so restricted.
  2. [37]
    The words ‘entitle’ and ‘entitlement’ under r 668(1) have been held to be capable of referring to instances in which the person seeking relief has to depend on a favourable exercise of discretion and claims no absolute right to relief.[18]
  3. [38]
    In Rockett & Anor v The Proprietors of “The Sands” BUP 82 (‘Rockett’)[19] the Court of Appeal considered r 668(1)(a) of the UCPR.  McPherson JA, referring to the decision of Griffith CJ in Woods v Sheriff of Queensland (1895) 6 QLJ 163, held:[20]

I am, however, in no doubt that it was not the intention of the learned Chief Justice so to enlarge the provisions of O 45, r 1 that it superseded or afforded an optional alternative to the appeals procedure which had been introduced in 7 1877 by the Judicature Act of 1876 and enlarged by the Rules of 1900. His careful observations in Woods v Sheriff of Queensland drew a firm distinction between a claim to relief from a judgment or order that was challenged as erroneous as distinct from one that was accepted as being correct at the time it was made. It is only in the latter case that relief may be sought under Rule 668(1)(a) by reason of facts arising after the order was made or the judgment was given. Otherwise it is the procedure by way of appeal that must be resorted to. In saying this I leave out of account the possibility that Rule 668(1)(b) may have some operation in relation to applications for new trials on the basis of the discovery of fresh evidence. That is not a question that arises here.

  1. [39]
    At first blush it might appear that the reopening procedure is, like the procedure under r 668 of the UCPR, only available in circumstances where the correctness of the original decision at the time it was made is not impugned. If error is asserted in respect of the original decision it might be thought that it is the appeals procedure, and not the reopening procedure, that must be followed. By s 138(5) of the QCAT Act, a party is not permitted to make a reopening application if the final decision is the subject of an appeal or an application for leave to appeal. By s 141(2) an appeal or an application for leave to appeal cannot be made until any application under s 138 has been finally dealt with. By s 143A(1) of the QCAT Act, the appeal tribunal may refer a matter to the tribunal to decide whether the proceeding should be reopened if the appeal tribunal considers the reasons for the appeal may constitute a reopening ground and the appeal could be more effectively or conveniently dealt with if it were taken to be a reopening application. If the appeal tribunal refers a matter, by s 143A(3)(a) the applicant is taken to have made a reopening application and not to have appealed the original decision. This latter provision overcomes the effect of the prohibition found in s 138(5) to which I have referred.
  2. [40]
    However s 139(4)(b) of the QCAT Act clearly contemplates that a reopening ground may also be an appeal ground. Section 139 provides:

139 Deciding whether to reopen

  1. (1)
    This section applies if a party (the applicant party) to a proceeding makes an application under section 138 for a proceeding to be reopened.

  1. (4)
    The tribunal may grant the application only if the tribunal considers—
  1. (a)
    a reopening ground exists for the applicant party; and
  1. (b)
    the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started. (emphasis added)
  1. [41]
    A consideration of the provision reveals that the reopening procedure is available in matters where error in the primary decision is asserted and that a reopening ground may also be relied upon as an appeal ground. An appeal ‘relating to the ground’ is clearly a reference to an appeal that has reference to, or is concerned or connected with, a reopening ground. When read together, the reopening provisions in Chapter 2 Part 7 Division 7 and the powers of the appeal tribunal set out in s 143A of the QCAT Act provide a mechanism to deal with what might be an appeal ground in a manner consistent with the objects of the QCAT Act and the functions of the tribunal in achieving the objects set out in the Act.[21]  
  2. [42]
    By s 140(1) of the QCAT Act, if the tribunal decides that a proceeding should be reopened, the tribunal must decide the issues in the proceeding that must be heard and decided again. By s 140(2) the issues must be heard and decided again by way of a fresh hearing on the merits. The tribunal may however hear and decide other related issues in the proceeding.
  3. [43]
    Section 140 of the QCAT Act therefore does not permit a hearing de novo. A fresh hearing on the merits conducted in accordance with s 140(2) is limited to the ‘issues in the proceeding that must be heard and decided again.’ This is a reference to the issue or issues arising out of an established reopening ground. There may be issues in the proceeding that are not required to be heard and decided again because, for example, the determination by the tribunal of those issues in the original decision are not contentious.
  4. [44]
    I turn now to a consideration of the reopening grounds set out in the QCAT Act. The first reopening ground is:

the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing.[22]

  1. [45]
    The first reopening ground is only available where there has been an oral hearing. The words ‘appear at the hearing’ and ‘attending the hearing’ have an obvious and common sense meaning. Unlike an oral hearing, when a matter is decided on the papers the parties do not ‘appear’ nor do they ‘attend’ a hearing. Any attempt to construe the words to give the first reopening ground a meaning that extends to a determination on the papers would involve considerable linguistic and interpretational gymnastics. Such a construction would have the result that a party, who might have a reasonable excuse for not filing documents, might argue that they had not ‘appeared’ at, or ‘attended’ at, the hearing. I do not accept that such a construction is available on a plain reading of the provision.
  2. [46]
    The second decision was made on the papers. Accordingly, I conclude that the first reopening ground is not available to Mr Stanton.
  3. [47]
    The second reopening ground is:

the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.[23]

  1. [48]
    It is necessary to consider the meaning of ‘new evidence’ and ‘arisen’. In R v Katsidis; ex parte A-G (Qld)[24] McMurdo P (as her Honour then was) held:

Australian courts have long recognised a distinction between admitting fresh evidence and new evidence on the hearing of an appeal. Fresh evidence is evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered. New or further evidence is evidence on which a party seeks to rely in an appeal which was available at the trial or which could with reasonable diligence then have been discovered. The distinction between fresh and new evidence remains important not only in civil trials but also in criminal trials.

  1. [49]
    In my view ‘new evidence’ in the second reopening ground should not be construed as meaning new evidence in the strict sense as I have outlined above. The second reopening ground refers to new evidence that ‘has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.’ New evidence in the strict sense is evidence which was available at the trial or which could have, with reasonable diligence, been discovered. ‘New evidence’ in the context of the second reopening ground is evidence not reasonably available when the proceeding was first decided including evidence that has ‘arisen’ since the matter was decided. To this extent, ‘new evidence’ in the second reopening ground is, in my view, fresh evidence as described in R v Katsidis.[25]
  2. [50]
    The evidence Mr Stanton seeks to rely upon in support of the second reopening ground is:
    1. (a)
      The QBCC file note dated 5 September 2016;
    2. (b)
      Evidence given by Mr Cook at the hearing of the review proceedings on 16 May 2018.
  1. [51]
    Mr Stanton says that the fresh evidence contradicts the evidence of Mr Cook and the respondent in BDL231-16 which was to the effect that Mr Stanton engaged the respondent to undertake electrical works during the construction of Mr Cook’s home.
  2. [52]
    The evidence before the Tribunal at the time of the decision may be summarised as follows:
    1. (a)
      Mr Russell Henry, a director of the respondent, deposed to the following:
      1. Mr Stanton accepted the respondent’s quotation for the performance of electrical contracting works and was told by Mr Stanton to forward invoices to him for processing;[26]
      2. The building contract between Mr Stanton and Mr Cook included a provisional sum for electrical works of $8,500;
      3. The respondent did not carry out the electrical works under the direction of Mr Cook.
    2. (b)
      Mr Shaun Cook deposed to the following:
      1. Mr Stanton accepted the respondent as Mr Cook’s preferred electrical sub-contractor;
      2. Mr Stanton engaged the respondent;
      3. The only directions given by Mr Cook to the respondent in respect of the performance of electrical contracting works was at the request of Mr Stanton.
  3. [53]
    Evidence relied upon to support a reopening ground must be:
    1. (a)
      ‘Fresh’ evidence, as I have outlined above;
    2. (b)
      Significant;
    3. (c)
      Not reasonably available when the proceeding was first heard and decided.
  4. [54]
    Evidence in the context of a reopening ground is ‘significant’ if it is cogent and plausible or credible and may have had an important influence on the outcome of the particular case.  I accept that the QBCC file note is credible evidence.
  5. [55]
    Was the QBCC file note available when the second decision was made? It cannot be contentious that the file note was in existence at the time of the second decision. Was it evidence that was not reasonably available at the time of the second decision? Mr Stanton says that in the course of the review proceedings he sought from the QBCC information including ‘all submissions made by or on behalf of the site owner and all reports and notes on your file relating to these matters to enable our client to properly prepare submissions in response.’ Mr Stanton says that this request of the QBCC was made on 13 February 2017. I note that the request was made prior to the decision the subject of the present application. Mr Stanton says that the QBCC did not respond to the request. Mr Stanton says that he did not become aware of the existence of the file note until 14 May 2018 when, in the course of the review proceedings, the QBCC served an affidavit by a QBCC officer, Ms Zarb, attaching a copy of the file note. 
  6. [56]
    Whilst the request for information was made by Mr Stanton prior to the decision the subject of the reopening application, the request related not to BDL231-16 but rather to the review proceedings. Indeed, there is no suggestion that in making the request for information from the QBCC Mr Stanton had given any thought to the potential relevance of the information in BDL231-16. Notwithstanding that the request for information by Mr Stanton to the QBCC was unrelated to BDL231-16, I am prepared to accept that even if the request for information had been made in those proceedings, the information sought would not have been provided by the QBCC. While acknowledging Mr Stanton’s failure to engage in BDL231-16 (leading to the decision being made), I am prepared to proceed on the basis that had Mr Stanton been provided with the file note he would have taken steps in response to the respondent’s counter-application. I therefore accept that the file note was evidence not reasonably available when the decision was made.
  7. [57]
    I turn to the issue of whether the file note is cogent evidence which may have had an important influence on the second decision. I make a number of observations about the file note:
    1. (a)
      The file note makes no mention of, or reference to, the respondent;
    2. (b)
      The file note records that the (unnamed) ‘electrician’ stated that he was ‘owed a substantial amount of money for electrical work and other works performed on site for by (sic) Noel Stanton.’
    3. (c)
      The file note records that the (unnamed) ‘electrician’ stated that ‘he was contracted by Mr Shaun Cook and then told to send all invoices to Mr Noel Stanton “the builder” on this project. The file note further records that ‘the writer’ (presumably the author of the file note) ‘asked that he (the electrician) would need to have something to demonstrate he was contracted by Noel Stanton to do the work and the electrician advised “Yes I know there is where it gets a little messy”.’
  8. [58]
    The respondent says a number of things about the file note:
    1. (a)
      The relevant conversation occurred on 2 September 2016, not 2 September 2017 as recorded in the file note;
    2. (b)
      The file note is dated 3 days after the conversation took place;
    3. (c)
      The director of the respondent says that he told the QBCC officer that he was contacted not contracted by Mr Cook.
  9. [59]
    I would observe in relation to the latter submission there is no sworn evidence before the Tribunal in support of the respondent’s contention.
  10. [60]
    The file note is said to be by ‘Nicola White’. There is no statement or affidavit by Ms White. The file note is not a statement by a witness. The file note is Ms White’s recollection of a conversation with an unnamed electrician in which the electrician referred to entering into a contract with Mr Shaun Cook.  The file note may be evidence of a conversation between the unnamed electrician and Ms White during which the unnamed electrician stated that he did not have a sub-contractor agreement in place for the works performed for Mr Noel Stanton. Against this is the clear evidence given by both Mr Henry and Mr Cook in BDL231-16 that Mr Stanton engaged the respondent and instructed the respondent in the performance of the electrical works. I do not accept that the file note is evidence that may have had an important influence on the outcome of the second decision. It follows that I do not accept the file note is significant new evidence.
  11. [61]
    The second piece of new evidence relied upon by Mr Stanton is said to be the evidence given by Mr Cook at the hearing in the review proceedings.  What is apparent from Mr Stanton’s submissions is that he relies, not on the evidence given by Mr Cook, but on the Tribunal’s reasons for decision in the review proceedings.
  12. [62]
    Mr Stanton relies upon the following passage from the reasons in Stanton v Queensland Building and Construction Commission:[27]

The QBCC called Mr Cook to give evidence. At the hearing, Mr Cook appeared by telephone. He had previously successfully sought leave to do so for reasons that were not evident to the tribunal at the date of hearing. In any event, Mr Cook did provide some evidence which assisted the tribunal in this matter. Initially, Mr Cook said that he did not ‘organise the trades’, but soon contradicted himself. Mr Cook was equivocal in his evidence, suggesting that he could not recall the name of a contractor, whom he paid in cash, without paperwork. Mr Cook then accepted that he did engage contractors without reference to Mr Stanton. Mr Cook conceded that he engaged a painter, a glazier and an electrician.

  1. [63]
    Mr Stanton relies upon the passage to support his submission that Mr Cross admitted under cross examination that Mr Cross engaged the respondent without Mr Stanton’s knowledge.
  2. [64]
    The respondent relies, not upon the Tribunal’s reasons, but rather the transcript of the evidence given by Mr Cook at the hearing. The respondent says that Mr Cook gave the following evidence:
    1. (a)
      He admitted he engaged a painter;[28]
    2. (b)
      He admitted he engaged a glazier;[29]
    3. (c)
      He stated that Mr Stanton engaged the respondent;[30]
    4. (d)
      He admitted he signed a quotation list prepared by Mr Stanton which included an allowance for electrical work to be performed by the respondent.[31]
  3. [65]
    Mr Stanton, in his reply submissions, also seeks to place reliance upon the transcript of the hearing in the review proceedings as further fresh evidence.
  4. [66]
    Firstly, I do not accept that the reasons for the Tribunal’s decision is evidence for the purposes of a reopening ground. McPherson JA held in Rockett [32]:

I am, however, not persuaded that the reasons of the Court on appeal in Anthony v Rockett [1999] QCA 434 can simply be transposed in this fashion from one defendant to the other. Doing so involves treating as a "fact" or "facts" under Rule 668(1)(a) not only the judgment as such but also the reasons for that judgment. Judicial reasons for a decision are not facts, but opinions; and even if the opinions of experts (as Judges of Appeal presumably are) may for some purposes assume the character of facts, it is not that function that is served by judicial reasoning. Its function is to justify the decision or judgment arrived at in the particular proceedings before the court. 

  1. [67]
    In my view the reasoning of McPherson JA applies in the present circumstances.
  2. [68]
    At the hearing of the review proceeding, and contrary to Mr Stanton’s submission, Mr Cook did not give evidence that he had directly engaged the respondent. Indeed Mr Cook denied ‘engaging electrical work’ to be undertaken and advising the contractor to ‘send the bill to Mr Stanton.’[33]
  3. [69]
    There is nothing in the transcript of the evidence given at the hearing of the review proceedings that would have had an important influence on the second decision. Mr Cook maintained that it was Mr Stanton, and not Mr Cook, who had engaged the respondent to undertake the electrical work. There was no evidence given by Mr Cook that he had engaged the respondent to undertake the electrical works the subject of the second decision. Indeed, he expressly rejected the proposition.
  4. [70]
    Neither the reasons in Stanton v Queensland Building and Construction Commission nor the evidence given by Mr Cook at the hearing of the review proceedings constitute significant new evidence.
  1. [71]
    For the reasons outlined I am not persuaded that the evidence relied upon by Mr Stanton is ‘significant new evidence’.
  2. [72]
    Mr Stanton has not established a reopening ground for the purposes of s 139(4) of the QCAT Act. The reopening application is refused.

Footnotes

[1]  Application for domestic building disputes filed 14 September 2016, BDL231-16.

[2]  Response and counter-application filed 20 October 2016, BDL231-16.

[3]  Directions made 24 March 2017.

[4]  Directions made 28 April 2017.

[5]  Decision made 24 May 2017.

[6]  Decision made 27 June 2017.

[7] Stanton v Electrics Downunder Pty Ltd [2017] QCAT (unreported).

[8]  QCAT Act, sch 3 (definition of ‘reopening ground’).

[9]  Ibid, s 139(4).

[10]  Ibid, s 140(4).

[11]  Ibid, s 140(6).

[12] Stanton v Queensland Building and Construction Commission [2018] QCAT 271.

[13]  Ibid.

[14]  [2012] QCAT 417, [14].

[15]  (2005) 223 CLR 1, 17 [34] (citations omitted)..

[16] David J. Williams v. Toyota Finance Australia Limited [2000] QDC 439.

[17]  UCPR r 668(1).

[18] Fairmont Suites and Hotels Pty Ltd v Duck Holes Creek Investments Pty Ltd & Ors [2009] QSC 98.

[19]  [2002] 1 Qd R 307.

[20] [2002] 1 Qd R 307, 312 [15].

[21]  Specifically QCAT Act, s 3(b), s 4(c).

[22]  QCAT Act, sch 3 (definition of ‘reopening ground’).

[23]  Ibid.

[24]  [2005] QCA 229 [2] (citations omitted).

[25]  Being evidence that existed at the time of the original hearing which could not then with reasonable diligence have been discovered. or evidence that came into existence after the original hearing.

[26]  Statement of Russell Henry filed 12 January 2017.

[27]  [2017] QCAT (unreported) [33].

[28]  Transcript of Proceedings, Stanton v Queensland Building and Construction Commission (QCAT, GAR121-17, Member Milburn, 16 May 2018) 9, lines 12-14.

[29]  Ibid, 17, line 5.

[30]  Ibid, 21, line 28-29

[31]  Ibid, 21, line 28-29

[32]  [2002] 1 Qd R 307, 310 [8].

[33]  Transcript of Proceedings, Stanton v Queensland Building and Construction Commission (QCAT, GAR121-17, Member Milburn, 16 May 2018) 26, line 15.

Close

Editorial Notes

  • Published Case Name:

    Stanton v Electrics Downunder Pty Ltd

  • Shortened Case Name:

    Stanton v Electrics Downunder Pty Ltd

  • MNC:

    [2019] QCAT 158

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    10 Jun 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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