Exit Distraction Free Reading Mode
- Unreported Judgment
Maffey v Mueller QCATA 19
Maffey v Mueller  QCATA 19
12 January 2016
22 January 2016
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – where the applicant sought leave to appeal against a decision of a Magistrate refusing the applicant’s original application for loss of bargain damages regarding “handyman” services provided by the applicant to the respondent under a contract for services – whether leave should be granted.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 8, 26, 27, 142, sch 3
Recording of Evidence Act 1962 (Qld), s 10
Blair v Harbrew Pty Ltd  QCATA 19
Bruce Moon v Office of State Revenue (unreported, Queensland Civil and Administrative Appeal Tribunal, APL213-15, 4 December 2015, Carmody J)
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Chambers v Jobling (1986) 7 NSWLR 1
Council of City of Greater Wollongong v Cowan (1955) 93 CLR 435
Dearman v Dearman (1908) 7 CLR 549
Devries v Australian National Railways Commission (1993) 177 CLR 427
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Eileen Reed v Department of Public Housing and Works (unreported, Queensland Civil and Administrative Appeal Tribunal, APL484-15, 20 November 2015, President Thomas)
Ericson v Queensland Building and Construction Commission  QCA 391
Ericson v Queensland Building and Construction Commission  QCA 297
Estate of Conroy (1895) 1 ALR 25
Fox v Percy (2003) 214 CLR 118
Gomez v Commonwealth of Australia  AATA 647
Hampton Court Ltd v Crooks (1957) 97 CLR 367
Hip Foong Hong v Heotia & Co  AC 888
Horne v Commissioner of Main Roads (Qld)  2 Qd R 38
Maddestra v Penfolds Wines Pty Ltd (1993) 44 FCR 303
McCann v Parsons (1954) 93 CLR 418
McIntosh v Williams  2 NSWLR 237
Mobile Building System International Pty Ltd v Hua  QCATA 336
Orchard v Orchard (1972) 3 SASR 89
Orr v Holmes (1948) 76 CLR 632
R v Maniadis  1 Qd R 593
R v Verrall  QCA 72
Ratten v The Queen (1974) 131 CLR 510
Re Vines  St R Qd 68
Reihana v Beenleigh Show Society  QCATA 170
Rowell v Pratt  AC 101
Summerville v Robinson (1909) 26 WN (NSW) 50
APPEARANCES and REPRESENTATION (if any):
K Maffey (self-represented)
S Mueller (self-represented)
REASONS FOR DECISION
- This is an application for leave to appeal filed by the applicant on 4 March 2015. The appeal relates to a decision of Acting Magistrate Hillan, exercising the minor civil dispute jurisdiction of QCAT, on 13 February 2015.
- The applicant filed an application for $2,792.50 against the respondent on 24 June 2014. The respondent did not file a counter-application.
- The applicant claimed that he performed certain works for the respondent. The respondent resisted the claim on the basis that the works performed by the applicant were deficient. The work involved the erection of, and modifications to, a garage door and other miscellaneous tasks.
- The application was heard on 9 January 2015 and 13 February 2015. Although the applicant attended the proceedings on 9 January 2015, the applicant failed to appear on 13 February 2015.
- The Magistrate heard evidence from the applicant on 9 January 2015. The Magistrate heard evidence from the respondent on 13 February 2015. This included testimony of the respondent and witnesses.
- The Magistrate delivered reasons ex tempore on 13 February 2015 dismissing the claim of the applicant. The applicant did not file an application under s 122 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) for written reasons, or obtain a copy of the transcript.
- The applicant and respondent were provided with a copy of the transcript in the course of proceedings.
- The applicant filed an application to reopen the proceedings under s 138(1) of the QCAT Act on 17 February 2015. This application was filed within the prescribed 28 day time limit under s 98 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’).
- On 19 February 2015 the Acting Registrar informed the applicant that QCAT had declined to receive the application to reopen because the Magistrate gave a decision on the matter on the basis it was partially heard. According to the Acting Registrar, it was not dismissed for non-appearance.
- Therefore, the application was invalid because it failed to properly articulate a reopening ground under s 138(2)(a) of the QCAT Act.
- The applicant subsequently filed an application for leave to appeal and appeal (APL077-15) against the decision of the Magistrate, exercising the jurisdiction of the Tribunal, on 13 February 2015 to dismiss his claim. This forms the foundation of the present application for leave to appeal.
- The applicant will require leave because the applicant is appealing a decision of the Tribunal exercising its minor civil dispute jurisdiction.
- The grounds of appeal nominated by the applicant are questions of law only.
GROUND OF APPEAL
- The applicant enumerated only three grounds of appeal:
- the Magistrate erred by relying on certain quotes provided by the respondent to the applicant to establish that the workmanship performed in respect of the garage door was defective;
- the Magistrate erred in failing to provide the applicant natural justice or procedural fairness; and
- the Magistrate erred by failing to refuse himself by reason of being disqualified for bias.
First Ground of Appeal
- The applicant contends that two quotes adduced by the respondent were incorrectly used by the Magistrate to establish that the works performed by the applicant were deficient and required rectification.
- The applicant has adduced new evidence in the application for leave to appeal, in the form of statutory declarations by the tradespersons providing the original quotes, that the quotes did not relate to the rectification of work performed by the applicant. The respondent has adduced a further estimate from Mr Iain Salmond, not adduced in the first hearing, for the rectification of work performed by the applicant.
- The applicant and respondent are not entitled to adduce new evidence on appeal without leave of the Appeal Tribunal.
- The Appeal Tribunal draws a distinction between two categories of evidence – “fresh” and “new” evidence. For evidence to be “fresh” evidence, the applicant must show that:
- the evidence could not have been obtained at the original hearing with the exercise of reasonable diligence;
- the evidence would have had an important, although not necessarily decisive, influence on the result of the hearing; and
- the evidence must be credible and reliable, although not necessarily incontrovertible or otherwise indisputable.
- The statements obtained by the applicant regarding the purpose for which the quotes were rendered could have been obtained at the original hearing with the exercise of reasonable diligence. The reasons for decision of the Tribunal, delivered, in the absence of the applicant, on 13 February 2015, demonstrate that the Magistrate found that the workmanship was defective not on the basis of the quotes, but on the basis of photographic evidence and oral testimony of the respondent. Therefore, the statements would not have an important or decisive impact on the disposition of the proceedings.
- Leave should not be granted to admit the new evidence of the applicant.
- The additional quotes obtained by the respondent could also have been obtained before the original hearing with the exercise of reasonable diligence. As a result of the Magistrate’s critical path of reasoning, the quotes would not have had an important or decisive impact on the disposition of the proceedings.
- Leave should not be granted to admit the new evidence of the respondent.
- The Magistrate did not conclude that the applicant represented himself as a registered builder. The Magistrate found that the applicant represented himself as a general handyman. The Magistrate found that the applicant’s workmanship was defective on the basis of oral testimony and photographic evidence. The Magistrate was not misled by, or did not otherwise improperly rely on, the quotes which had been adduced by the respondent.
- Indeed, the quotes were relied on by the respondent for the purposes of establishing a claim for compensation for the costs associated with rectifying the defective workmanship of the applicant. As the Magistrate disallowed this claim for compensation, reliance on the quotes cannot constitute an appealable error for the applicant.
- The Appeal Tribunal is reasonably satisfied that the Magistrate’s finding of defective workmanship was correct. The conclusions of the Magistrate were open on the evidence, and are not contrary to compelling inferences, glaringly improbable, or otherwise unreasonable.
- Leave to appeal should be refused on this ground of appeal.
Second Ground of Appeal
- The applicant submits that the Magistrate erred by denying the applicant procedural fairness by deciding the application on 13 February 2015 in the absence of the applicant.
- The applicant claims this deprivation of natural justice precluded the applicant from cross-examining the respondent or his witnesses.
- The applicant has tendered a statutory declaration of his wife, dated 13 February 2015, that the applicant was late to attend the tribunal proceedings because their motor vehicle’s battery was depleted and needed to be jump-started. The applicant asserts that he attended at the Magistrates Court on the day, but the matter had already been dismissed.
- The applicant claims that he failed to contact the Magistrates Court to inform the Magistrate of the delay because, at the conclusion of the hearing on 9 January 2015, the Magistrate stated their matter would be heard after all other claims that morning. The applicant not produced evidence to establish that any such statement was made by the Magistrate.
- At page 70, Lines 20 to 32, of the Transcript Acting Magistrate Hillan stated that:
BENCH: I’m going to adjourn this matter to another day. You’ll have to come back, because this is going to take too long. You’re just going on and on. So there’s no chance of finishing it today by the way you’re going, and especially when this fellow hasn’t finished his evidence, and there’s still another witness to come. So I’m going to adjourn it to 9.15 am on the 13th of February 2015 for continuation of the hearing. There is always an opportunity in the interim to see if it can resolved and you need not to need to attend if it’s been resolved. But that’s a matter for you people. But certainly, if it’s not resolved you’ll need to come back, and we’ll continue. But you’ve seen the types of matters that are dealt with this morning that went on all day. It may be that you may not get on till the last matter, and then you can appreciate the length of time taken in a trial. But that’s a matter for you people. So you’ve got note of that date: 9.15 am on the 13th of February for continuation. All right. We’ll close for the day. (emphasis added)
- In the application for leave to appeal hearing, the applicant asserted that this is not his recollection of the Magistrate’s statement. Section 10(2) of the Recording of Evidence Act 1962 (Qld) provides that:
A document purporting to be a transcription of a record under this Act, produced by a recorder, is to be received by a court or judicial person as evidence of anything recorded in the document, except to the extent the document is shown not to be an accurate transcription of the record.
- The Appeal Tribunal received the Transcript as evidence of the statements made by the Magistrate in the course of the proceedings. To the extent that the applicant claims the Transcript is inconsistent with his recollection of the proceedings, the Appeal Tribunal prefers the evidence of the Transcript, which appears to be an accurate record of the proceedings, and does not appear to have been modified or amended. The applicant did not assert, or adduce evidence to establish, that the Transcript was inaccurate in any material particular.
- The Magistrate did not make any representation that MCDO40-15 would not be heard until later on the adjourned date. The Magistrate merely observed that other civil matters, if listed before MCDO40-15, might cause a delay in the commencement of the proceedings. This was intended as a courtesy to the parties so that they could anticipate that there might be some delay in hearing MCDO40-15 on the adjourned date.
- The Notice of Hearing states that the applicant was required to attend proceedings at 9:15AM on 13 February 2015. The Magistrate’s suggestion that there might be a delay in the commencement of the hearing cannot operate to override the later Notice of Hearing, or excuse the applicant for non-attendance or late attendance.
- The applicant claims he was 20 minutes late to attend the proceedings. The Transcript demonstrates the proceedings opened at 9:30AM, 15 minutes later than the nominated commencement time in the Notice of Hearing. The proceedings closed at 9:43AM, 28 minutes later than the nominated time in the Notice of Hearing. The Magistrate checked to see if there were any messages or letters on the file.
- In such circumstances, it is unreasonable for the applicant not to have contacted the Tribunal. As held by Justice Wilson in Blair v Harbrew Pty Ltd  QCATA 19, albeit in a different context:
The [QCAT Act], and the demands on public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences.
- In any event, the applicant was given a reasonable opportunity to present his case on 9 January 2015. The Transcript on 13 February 2015 shows that the witnesses the respondent intended to call failed to appear. The respondent made no further substantive submissions to the Tribunal in the absence of the applicant. The respondent did not give oral testimony on 13 February 2015. The respondent had already been partly cross-examined by the applicant at the earlier hearing on 9 January 2015.
- The applicant was not denied an opportunity to cross-examine the respondent, or any witnesses of the respondent. The applicant was not denied the opportunity to hear the submissions of the respondent, as the respondent gave no further submissions on 13 February 2015. The applicant had already closed his case on 9 January 2015. The applicant merely lost the opportunity to be present for judgment delivery.
- The applicant was not informed that his matter would be heard last, or late in the morning, on 13 February 2015. The applicant failed to act in his own best interests by not contacting the Tribunal to inform the Tribunal of his late attendance. The Tribunal administers a busy jurisdiction and is not required to delay hearings for unexplained non-appearances, especially if the applicant had been given a reasonably opportunity to be heard.
- The applicant has failed to establish that attendance on 13 February 2015 would supplied him with a better opportunity to present his case, or would have had an important impact on the disposition of the proceedings.
- The applicant was not denied natural justice as a result of ex parte judgment delivery. Leave to appeal should be refused.
Third Ground of Appeal
- The applicant submits that the Magistrate erred by failing to recuse himself on the ground that the Magistrate was disqualified for bias.
- The principles governing judicial recusal are well established. The applicant must show either: (a) actual bias; or (b) apprehended bias.
- To prove actual bias, the applicant must adduce evidence which establishes, or from which a reasonable inference may be drawn, that the decision-maker did not, in fact, bring an impartial mind to the resolution of the question the decision-maker was required to decide.
- To prove apprehended bias, the applicant must establish that:
a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide...
[This] requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
- Therefore, the applicant must demonstrate:
- the fact, circumstance or event which constitutes the source of the bias or prejudice;
- a feared deviation as a result of the bias or prejudice; and
- a logical connection between the source of the bias or prejudice and the feared deviation as a result of the bias or prejudice.
- The applicant appears to allege that the Magistrate was infected by actual bias, not apprehended bias. Nevertheless, because of the lack of clarity in the written and oral submissions of the applicant, the Appeal Tribunal will assume that the applicant assert both actual and apprehended bias.
- The applicant identifies the source of the bias as an email tendered by the respondent to the Magistrate. The email records correspondence sent from the applicant to the respondent. The email is replete with expletives, and appears to be vilifying the respondent by reason of his race or ethnicity.
- To avoid further embarrassment or prejudice to the applicant or respondent, the correspondence will not be reproduced in these reasons for decision. The applicant and respondent can both be assured, however, the Appeal Tribunal properly considered the subject matter of the email.
- The Magistrate received the correspondence into evidence at pp 51 – 52 of the Transcript. The email appears to have been adduced as evidence of the claimed duration of work performed by the applicant under the contract for services, and also of attempts to mediate or resolve the dispute.
- The applicant complains that the Magistrate did not provide the applicant with an opportunity to explain the subject matter of the email. The applicant refers to pp 9 – 10 of the Transcript, where the following exchange occurs:
MR MAFFEY: … Now, there is a matter in this case which involves the police. Some charges have been laid against me by the police.
BENCH: I’m not interested in them.
MR MAFFEY: Right. Well, okay. That’s...…
BENCH: I’m only interested in your claim which you are alleging for services rendered and goods supplied.
MR MAFFEY: Okay.
BENCH: I’m not interested in the side issues.
MR MAFFEY: That’s fine. I agree.
BENCH: We’ll be here all day, and I’ll be – it’ll go in one ear and out the other, because I’m not interested.
MR MAFFEY: Right. Very good...
- The Appeal Tribunal finds that email does not appear to have been adduced by the respondent to damage the reputation or credibility of the applicant. Even if it was, there is no evidence it was used for this purpose by the Magistrate. The applicant has not furnished evidence tending to indicate that the Magistrate did not, in fact, bring an impartial mind to the resolution of the subject matter in dispute.
- The applicant has failed to establish that the Magistrate was disqualified for actual bias.
- The applicant has identified the source of the alleged bias. The applicant claims that evidence of the alleged bias is the fact that the Magistrate declined to receive the applicant’s explanation of the email.
- The problem with this submission is that the Magistrate declined to receive the applicant’s explanation before the email was tendered into evidence. On the applicant’s argument, the asserted deviation took place before the Magistrate could have been prejudiced. This argument fails because an effect cannot be a temporal antecedent of its cause.
- Examining the applicant’s broader argument, he appears to contend that the Magistrate was prejudiced by receiving the evidence of the email, which caused the Magistrate to determine the application against the applicant.
- This argument does not establish a logical connection, or causative relation, between the alleged deviation and the source of the bias. The applicant cannot reason, post hoc, ergo propter hoc, that merely because the adverse decision eventuated after the receiving of the email, that the adverse decision was caused by the email.
- Magistrates – trained judicial officers administering a busy jurisdiction, commonly frequented persons accused of heinous criminal behaviour – are not so delicate so as to give rise to any reasonable inference, by a fair-minded observer, that the mere disclosure of an inappropriate email would cause the Magistrate to fail to bring an impartial mind to the dispute. If this were not so, it would be impossible to administer any criminal jurisdiction, where judges are, by necessity, exposed to the artefacts of opprobrious or criminal behaviour before making their decisions.
- The special training, knowledge, and experience of judicial officers ensures that, in ordinary circumstances, judges will set aside their personal biases, beliefs or values, in determining litigation. Therefore, it is only in exceptional circumstances that the Appeal Tribunal would be willing to infer the existence of actual bias, or find apprehended bias, on the basis of such limited and quotidian evidence.
- The applicant has failed to establish that the Magistrate was disqualified for actual or apparent bias.
- Leave to appeal should not be granted on this ground.
- The applicant has failed to establish a reasonably arguable case that the decision of the Magistrate was infected by legal, factual, or mixed error.
- Leave to appeal should be refused.
- It is the decision of the Appeal Tribunal that leave to appeal is refused.
 See the definition of “reopening ground” under s 137 of the QCAT Act.
 See: Mobile Building System International Pty Ltd v Hua  QCATA 336; Eileen Reed v Department of Public Housing and Works (unreported, Queensland Civil and Administrative Appeal Tribunal, APL484-15, 20 November 2015, President Thomas); Bruce Moon v Office of State Revenue (unreported, Queensland Civil and Administrative Appeal Tribunal, APL213-15, 4 December 2015, Carmody J); Reihana v Beenleigh Show Society  QCATA 170.
 QCAT Act, s 142(1). Note that s 8 and Sch 3 of the Act define “judicial member” to exclude a Magistrate.
 Ibid, s 142(3)(a)(i). “Minor civil dispute” is defined in s 8 and sch 3 of the QCAT Act. “Prescribed amount” is defined in s 8 and sch 3 of the Act as $25,000.
 Ericson v Queensland Building and Construction Commission  QCA 391, -.
Ibid; Ericson v Queensland Building and Construction Commission  QCA 297.
Ratten v The Queen (1974) 131 CLR 510; R v Maniadis  1 Qd R 593; R v Verrall  QCA 72; Gomez v Commonwealth of Australia  AATA 647.
 Horne v Commissioner of Main Roads (Qld)  2 Qd R 38; Estate of Conroy (1895) 1 ALR 25; Summerville v Robinson (1909) 26 WN (NSW) 50; McIntosh v Williams  2 NSWLR 237 (CA); Orchard v Orchard (1972) 3 SASR 89; Re Vines  St R Qd 68.
 Rowell v Pratt  AC 101; Hip Foong Hong v Heotia & Co  AC 888, 894. In Maddestra v Penfolds Wines Pty Ltd (1993) 44 FCR 303.
 Orr v Holmes (1948) 76 CLR 632; McCann v Parsons (1954) 93 CLR 418; Council of City of Greater Wollongong v Cowan (1955) 93 CLR 435; McIntosh v Williams  2 NSWLR 237.
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337, , .
- Published Case Name:
Kevin Maffey v Stefan Mueller
- Shortened Case Name:
Maffey v Mueller
 QCATA 19
22 Jan 2016