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- Unreported Judgment
Links v McMahon QCATA 159
Links & anor v McMahon  QCATA 159
Jon Robert Links
Katherine Emma Nuttall
Philip John McMahon
On the papers
Senior Member Stilgoe OAM
25 October 2016
APPEAL – LEAVE TO APPEAL – PROCEDURAL FAIRNESS – OPPORTUNITY TO PRESENT CASE – where tribunal determined that minor debt should be heard as a building dispute – whether applicants heard on the issue – where tribunal later dismissed building dispute for lack of jurisdiction – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 32, s 48, s 62, s 95, s 116, s 122(3), s 230
Queensland Building and Construction Commission Act 1991 (Qld) s 77(2)
Public Records Act 2002 (Qld) s 7
Recording of Evidence Act 1962 (Qld) s 4, s 4A, s 5
Practice Direction 4 of 2011
Chambers v Jobling (1986) 7 NSWLR 1
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Hassard v McInnes  QCATA 21
Pickering v McArthur  QCA 294
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- In July 2014, Jon Links and Katherine Nuttall (the homeowners) engaged Philip McMahon to do some building work. On 31 October 2014, the homeowners terminated the contract, before all the work had been completed. They engaged new builders to finish the work.
- When the work was finished, the homeowners had a meeting with their architect, the new builders and Mr McMahon. Following this meeting, the parties exchanged correspondence which, in the homeowners’ view, amounted to Mr McMahon’s agreement that he would reimburse them for the cost of the new builder.
- Despite demand, Mr McMahon did not reimburse the homeowners, so they filed an application for minor debt. Eventually, the claim was listed for mediation in the tribunal. Mr McMahon did not attend mediation, so the claim was referred to an Adjudicator for further action. On 4 February 2016, the Adjudicator determined that the dispute was likely to be a building dispute, not a minor debt claim, so the claim was transferred to the building list.
- On 23 March 2016, in the building list, the homeowners’ claim was dismissed.
- The homeowners wants to appeal the Adjudicator’s decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will 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.
- The homeowners’ grounds of appeal all relate to a lack of procedural fairness. Specifically, they say that the Adjudicator should have allowed them to call or give evidence under s 95 of the QCAT Act. They say that the failure to provide a transcript of the hearing on 4 February 2016 is a breach of s 5 of the Recording of Evidence Act 1962 (Qld).They say that the tribunal conducted a process on 4 February 2016 that was not provided for under the QCAT Act, that it did not make and keep full and accurate records of its activities as required under s 7 of the Public Records Act 2002 (Qld) and this affected their ability to interpret what happened. They say that, by his failure to attend mediation, Mr McMahon caused them disadvantage and therefore, pursuant to s 48 of the QCAT Act, the Adjudicator should have made a decision in their favour. They say they received no notice of the hearing on 4 February 2016 as required by Practice Direction 4 of 2011. They say the tribunal has not complied with the objects of the QCAT Act. They say the Adjudicator’s reasons for decision were delivered late. They say the Adjudicator made an error of fact and law.
Lack of procedural fairness
Section 95 of the QCAT Act
- It is true that s 95(1)(a) of the QCAT Act states that the tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence. However, s 95(2) states that a tribunal may refuse to allow a party to call evidence on a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal.
- The issue for the Adjudicator was whether the homeowners’ claim was truly a minor debt matter or whether it was actually a building dispute. The homeowners’ evidence indicated an agreement had been reached but Mr McMahon asserted that the agreement, if it existed, was created unfairly.
- There was sufficient evidence before the tribunal to enable it to form a view that the parties were in dispute, and the dispute concerned a building contract. Further evidence, from either party, would have confirmed their particular view of the position and the fact that this was, probably, a building dispute. I understand why the tribunal did not call for further evidence on this issue.
The failure to provide a transcript/keep proper records
- Section 5(1) of the Recording of Evidence Act requires all relevant matters in a legal proceeding to be recorded. ‘Legal proceeding’ is defined to include any proceeding before a court or person in which evidence is or may be given. A legal proceeding takes place in a courtroom when a judicial person sits for the purposes of a legal proceeding. ‘Relevant matter’ means evidence given in a legal proceeding and a ruling or direction in a legal proceeding.
- The Adjudicator heard from the homeowners in a hearing room. Ordinarily, a transcript of the hearing should be available. Unfortunately, the hearing was not recorded, probably because the matter was put before the Adjudicator at short notice and outside the tribunal’s normal sitting times. The tribunal process was in error and steps should be taken to ensure such failures do not occur in the future.
- Section 7 of the Public Records Act states that a public authority must make and keep full and accurate records of its activities. ‘Public authority’ is defined: it does not include the tribunal. The tribunal’s obligation to maintain a record of proceedings is contained in s 230 of the QCAT Act. The homeowners have not detailed the way in which this record is deficient.
The Adjudicator’s process was not provided for under the QCAT Act
- The homeowners do not understand why an Adjudicator was able to transfer the proceeding to the tribunal’s building list but the Senior Member in charge of the building list was not able to hear the dispute because the tribunal lacked jurisdiction.
- The Adjudicator was looking at whether the dispute was truly a minor debt dispute. He determined that it was not; it was a building dispute.
- The Senior Member was deciding a different question: whether the tribunal had jurisdiction to hear a building dispute in light of s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld).
- The Adjudicator was exercising jurisdiction under s 62(1) of the QCAT Act: to do whatever was necessary for the speedy and fair conduct of the proceeding. The Senior Member was deciding a question of law – whether the tribunal had jurisdiction to hear the dispute – under s 116 of the QCAT Act. Both had the necessary power to make a decision.
Mr McMahon’s failure to attend mediation
- The homeowners say that Mr McMahon caused them disadvantage by failing to attend mediation, failing to file a response within the required time frame, and failing to provide any evidence to support his claim. They say that, pursuant to s 48 of the QCAT Act, the tribunal should have taken this into account in making a final decision in their favour.
- Section 48(1)(a) allows the tribunal to act if a party is not complying with a tribunal direction or order without reasonable excuse. The tribunal had accepted that Mr McMahon had a reasonable excuse for not filing a response within time. The file does not reveal whether Mr McMahon had a reasonable excuse for failing to attend mediation.
- Section 48(2)(b)(i) allows the tribunal to make a final decision in an applicant’s favour if the criteria in s 48(1) are established. The Adjudicator was not making a final order: he was making a procedural order about the future conduct of the dispute.
- Section 48(3) sets out the matters the tribunal must consider before making an order under s 48(2). It must have regard to the extent to which Mr McMahon was familiar with the tribunal practices, his capacity to understand and act on the tribunal orders, and whether he was acting deliberately. There was no evidence before the tribunal about any of these matters.
- The tribunal was not in error in failing to exercise its power under s 48.
No notice of hearing
- The homeowners refer to Practice Direction 4 of 2011. Paragraph 4 states that applications will be referred to mediation. Paragraph 7 states that, if the dispute is not resolved at mediation it will be listed for hearing. Paragraph 8 states that, unless otherwise ordered, the hearing will not be listed on the same day as the mediation.
- The homeowners say that they did not receive an order stating that the hearing would be on the same day as mediation.
- The homeowners did not receive an order stating that the hearing would be on the same day as mediation because the hearing of the substantive dispute was not on the same day as the mediation. At the homeowners’ insistence, the Adjudicator made a direction about the future conduct of the dispute. The Adjudicator did not hear, and made no order about, the substance of the dispute.
The objects of the QCAT Act
- Section 3(b) of the QCAT Act states that the tribunal should deal with matters in a way that is accessible, fair, just, economical and quick.
- The homeowners say that the tribunal’s handling of their claim has not met the objectives of s 3(b). They say that over eight months passed between the filing of their claim and the order dismissing it. They say that they presented their case, in detail, whereas Mr McMahon did not. They say that Mr McMahon’s unsubstantiated claims led to the dismissal of their claim and they are now required to start again in a different jurisdiction.
- The homeowners referred the appeal tribunal to Carmody J’s decision in Hassard v McInnes:
The stated objects of the tribunal are to deal with matters before it in a way that is accessible, fair, just, economical and quick. To achieve these ends the tribunal conducts proceedings, particularly minor civil dispute hearings, much more informally (but not casually) and effectively than traditional court proceedings.The tribunal is not bound by the customary rules of evidence and may inform itself in any way it considers appropriate. However, the requirements of natural justice must still be observed so that the alternative dispute resolution methods of the tribunal are not only fast and economical but are also accessible, fair and just.
- I agree that the decision of Hassard reflects the tribunal’s approach to s 3(b). I also agree that the process the homeowners experienced was not ideal. They did not know in advance that the Adjudicator was likely to transfer their claim to the building list. Nevertheless, the homeowners had the opportunity to, and did, address the Adjudicator about the issue of jurisdiction. I am not satisfied that the tribunal failed to provide the homeowners procedural fairness.
The late provision of reasons
- Section 122(3) of the QCAT Act states that the tribunal must provide written reason within 45 days of a request. The homeowners received their reasons nine days late. While not ideal, I do not consider a delay of that magnitude a failure to provide procedural fairness.
A mistake of law and fact?
- The homeowners say that the error of fact is the Adjudicator’s finding that the dispute arose from building works set out in a quote dated 17 June 2014. They say that the claim arose from a contract formed on 6 June 2015.
- The homeowners concede that Mr McMahon is disputing the terms of the contract. They submit, however, that this is not a ‘building dispute’ because it is not a dispute about the performance of reviewable domestic work.
- The homeowners say that the tribunal accepted their claim in an email advising of a date for hearing and, therefore, cannot change its mind. An email from the registry advising of a hearing date may be confirmation that the claim was accepted as a minor civil dispute but it is not confirmation that the claim was, in fact, a minor civil dispute. Only an Adjudicator, or tribunal member, could decide that point.
- I understand the homeowners’ frustration but the determination of whether the dispute is one about a contract or one about the performance of reviewable domestic work lies at the heart of the matter. The tribunal chose to deal with that issue sooner rather than later. The tribunal’s obligation under s 3(b) would not have been served by having a full hearing, hearing evidence and then deciding that, because of s 77(2) of the Queensland Building and Construction Commission Act, the tribunal had no jurisdiction to determine the dispute.
Should leave to appeal be granted?
- I am satisfied that the tribunal has erred. But I am also required to consider whether the homeowners have suffered a substantial injustice because of the error.
- I am not persuaded that the homeowners have suffered a substantial injustice. They did not appeal the Senior Member’s decision. They still have a right to pursue Mr McMahon, in the tribunal, after compliance with s 77(2) of the Queensland Building and Construction Commission Act. The delay in reimbursement can be addressed by an award of interest. The time and effort they have already spent preparing their claim will not be wasted. Although the tribunal may not have acted in strict compliance with its procedural obligations, the homeowners have lost no rights as a consequence.
- Leave to appeal should be refused.
- Published Case Name:
Links & anor v McMahon
- Shortened Case Name:
Links v McMahon
 QCATA 159
Senior Member Stilgoe OAM
25 Oct 2016