Wellard v Nicol[2017] QCATA 77

REASONS FOR DECISION

Senior Member Stilgoe OAM

1. [1]
   In this appeal, the Appeal Tribunal comprised Member Kanowski and me. I have had the benefit of reading Member Kanowski’s reasons in draft. I agree with his reasons, his conclusions and the order he proposes.

Member Kanowski

Introduction

2. [2]
   Mr Nicol built an extension to Ms Wellard’s home in 2015. As construction proceeded, Ms Wellard paid a series of progress payments. In November 2015, Mr Nicol started a proceeding in QCAT seeking an order that Ms Wellard pay him $28,497.60. This figure mostly comprised $25,800 which Mr Nicol said remained owing under the building contract. On 1 August 2016 the tribunal decided the matter largely in Mr Nicol’s favour. The tribunal ordered that Ms Wellard pay $26,105 (including the $25,800 mentioned above) to Mr Nicol within 28 days.
3. [3]
   The main dispute between the parties was about the contract price. The written building contract specified a total price of $85,000. Ms Wellard, however, argued that there was a collateral oral contract between the parties limiting the price to a maximum of $65,000. She said the higher price of $85,000 was specified in the written contract simply so that she could obtain additional finance from a bank. Ms Wellard says she needed the additional $20,000 to purchase a kitchen kit and to meet certain other expenses.
4. [4]
   The tribunal, however, preferred Mr Nicol’s evidence that there was no such oral contract. Mr Nicol’s evidence was that there had been discussion before the contract was signed of a possibility of reducing the price from $85,000 to $65,000 if Ms Wellard elected to delete certain items. However, according to Mr Nicol, those items were not deleted and so the price remained $85,000 when the contract was signed.
5. [5]
   The tribunal’s decision reflected a finding that the binding price was $85,000 as specified in the written contract.
6. [6]
   Ms Wellard has now brought the matter to the appeal tribunal. She insists that the true price was $65,000.
7. [7]
   Ms Wellard has two grounds of appeal. The first is to the effect that the tribunal should have, but did not, obtain evidence from the person who witnessed the written contract, Mr Emmanuel Kerry. Ms Wellard says that Mr Kerry also witnessed the oral contract limiting the cost to $65,000. The second ground is that the tribunal disregarded relevant evidence namely the email she had provided from her mortgage broker, Mr Bernard O'Brien.

First appeal ground: the tribunal not obtaining evidence from Mr Kerry

8. [8]
   On 9 March 2016, some months prior to the hearing, the tribunal issued detailed written directions to the parties. These included directions for each party to file and give to the other party statements of evidence of each witness who was to give evidence for them at the hearing. Mr Nicol was to do this by 6 April 2016 and Ms Wellard by 4 May 2016.
9. [9]
   The written material lodged by Ms Wellard did not include a statement from Mr Kerry.
10. [10]
    At a directions hearing on 25 May 2016, the tribunal checked with the parties whether they were prepared to proceed to hearing with the existing evidence. They indicated that they were. The hearing then took place on 11 July 2016. Ms Wellard and Mr Nicol each gave oral evidence. Ms Wellard also called her father, Mr Kenneth Turner, as a witness.
11. [11]
    In its written reasons for decision, the tribunal noted that Ms Wellard contended that Mr Kerry would be able to back up her evidence of an oral contract for $65,000. The tribunal also noted evidence from Mr Turner that he had met with Mr Kerry after the QCAT proceeding was commenced. Mr Turner said that Mr Kerry told him that Mr Nicol had agreed to do the job for $65,000. The tribunal concluded that Mr Kerry had been available to be called by Ms Wellard as a witness. The tribunal noted that Mr Kerry was the only person (other than the parties) capable of shedding light on whether there was an oral contract for $65,000. The tribunal inferred from Ms Wellard’s failure to call Mr Kerry that his evidence would not have helped her case. The tribunal observed that most of the negotiations had taken place between Mr Nicol and Mr Kerry. The tribunal found that Ms Wellard had “merely presumed that Mr Nicol would build her extension for $65,000”.
12. [12]
    Ms Wellard has given the following explanation for not providing evidence from Mr Kerry: “I naively assumed that the statutory declaration provided by [my] father Kenneth Turner and the email from finance broker Bernard O'Brien would be sufficient evidence”. Ms Wellard also points out that she stated more than once during the hearing that Mr Kerry could be contacted by phone.
13. [13]
    In legal terms, Ms Wellard’s appeal ground might be framed in terms of a denial of procedural fairness along the following lines: as a self-represented party Ms Wellard had not appreciated the importance of producing direct evidence from Mr Kerry; she indicated at the hearing that evidence could be obtained from Mr Kerry by phoning him; and it was incumbent on the tribunal to phone Mr Kerry to ensure that Ms Wellard had a reasonable opportunity to present her case.
14. [14]
    The relevant procedural powers and obligations of QCAT are set out in sections 28 and 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). QCAT is required to act fairly. It is not bound by the rules of evidence, or any practices or procedures applying to courts of record. It may inform itself in any way it considers appropriate. It must ensure, so far as is practicable, that all relevant information is disclosed to it to enable it to decide the proceeding with all the relevant facts. QCAT must also take all reasonable steps to ensure that each party understands the practices and procedures of the tribunal.
15. [15]
    Whether the tribunal should have phoned Mr Kerry in an effort to obtain oral evidence from him turns on what was required to achieve procedural fairness in the circumstances. Procedural fairness is a “flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”.^[1]
16. [16]
    QCAT has inquisitorial powers. The use of inquisitorial powers by tribunals was explored by Associate Professor Matthew Groves in The Duty to Inquire in Tribunal Proceedings,^[2] which contains a thorough survey of Australian cases. Associate Professor Groves explained that overwhelmingly the courts have not imposed on tribunals a duty to inquire, but courts have acknowledged the possibility that such a duty could arise in particular statutory contexts. Associate Professor Groves also observed that assisting one party to present his or her case can conflict with the need for a decision-maker to preserve his or her neutrality.^[3]
17. [17]
    QCAT hears two main types of cases: administrative reviews and civil disputes. An administrative review occurs when an individual applies for a review of a decision of a government official. A civil dispute is one between individuals (or corporations), such as a building dispute. A stronger case for an inquisitorial approach by QCAT can be made in respect of administrative review proceedings. In such cases, the purpose is to reach “the correct and preferable decision”.^[4] The official who made the original decision must use his or her best endeavours to help QCAT in its decision-making.^[5] In light of this commonality of interest in reaching the correct and preferable decision, a more interventionist approach to assist the applicant for review to present his or her case may be appropriate.
18. [18]
    In a civil dispute, however, intervention by QCAT to assist one party runs the risk of compromising neutrality. Of course intervention may still be necessary in some cases in an effort to level the playing field: for example in providing assistance to a socially disadvantaged and unrepresented party who is struggling to respond to the case of a well-resourced and legally-represented opponent. However, a more cautious approach is warranted in cases, such as the present, where neither party is represented and there is no apparent imbalance in capacity.
19. [19]
    In my view, the approach adopted in the present case provided procedural fairness. Each party had been directed to file and give to the other party any witness statements well in advance of the hearing. This enabled each party to know the evidence they would be required to meet at the hearing. It also constituted a reasonable means of QCAT ensuring, so far as was practicable, that all relevant information was provided. Ms Wellard did not obtain a statement from Mr Kerry, even though she was aware that his evidence would be relevant.
20. [20]
    As QCAT had given Ms Wellard the opportunity to introduce evidence from relevant witnesses in a conventional way, it was not incumbent on the tribunal at the hearing to cure the deficiency in her case by seeking oral out evidence from Mr Kerry. Assisting Ms Wellard in that way would have been unfair to Mr Nicol. It was appropriate for the tribunal to proceed in the absence of evidence from Mr Kerry.
21. [21]
    Ms Wellard has not demonstrated error in the tribunal’s decision not to obtain evidence from Mr Kerry. Her first ground of appeal is not successful.  

The second ground: lack of regard to Mr O'Brien’s email

22. [22]
    Mr O'Brien’s email of 20 June 2016 outlined his involvement as the mortgage broker in obtaining Ms Wellard’s bank loan and in arranging the subsequent progress payments. Mr O'Brien believed that the payments to the builder would end up totalling approximately $65,000, based on comments that Ms Wellard made. It is apparent that Mr O'Brien regarded this cap as being consistent with the surrounding circumstances that he described.
23. [23]
    The transcript of the hearing shows that the tribunal member read Mr O'Brien’s email during the hearing. The tribunal did not, however, refer to the email in the reasons for decision. So while it is certainly possible that the tribunal did take the evidence into account, I will proceed on the assumption that it did not.
24. [24]
    Ms Wellard argues that the tribunal committed an error because Mr O'Brien’s email was “completely disregarded”. She says that the email “produced a clear history of the entire process of payments to Mr Nicol and is in total agreement with information provided by both myself and my father”.
25. [25]
    The essence of Ms Wellard’s complaint here is the tribunal’s finding that there was no oral contract was made without regard to relevant evidence pointing to the opposite conclusion. This ground involves a question of fact. An appeal on a question of fact can be brought only if the appeal tribunal grants leave.^[6] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?^[7] Is there a reasonable prospect that the applicant will obtain substantive relief?^[8] Is leave necessary to correct a substantial injustice to the applicant caused by some error?^[9] Is there a question of general importance upon which further argument, and an appellate decision, would be to the public advantage?^[10] 
26. [26]
    Mr O'Brien’s email served to corroborate Ms Wellard’s evidence about the loan, especially that the purpose of the loan was not only to pay for the building work but also to enable Ms Wellard to meet other commitments. There was also corroboration in Mr Turner’s evidence. This evidence provided context for Ms Wellard’s assertion of her keenness to contain the building costs to $65,000. Importantly, however, there is nothing in the tribunal’s reasons to suggest that it rejected this aspect of Ms Wellard’s case. Indeed the tribunal accepted that there had been discussions about keeping the price down to $65,000, and found that Ms Wellard presumed that Mr Nicol would do the work for that price. The tribunal found that, notwithstanding that background, the actual contract entered into by Ms Wellard and Mr Nicol involved a price of $85,000.
27. [27]
    Mr O'Brien’s email merely corroborated background facts that were uncontentious. Had the email been taken into account, the outcome of the case would not have been different.
28. [28]
    While it would have been desirable for the tribunal to have referred to Mr O'Brien’s email in its reasons, I do not consider that granting leave to appeal would be warranted. There was no injustice caused to Ms Wellard by the tribunal’s failure to take Mr O'Brien’s email into account. Nor is there any question of general importance that would warrant a grant of leave.

Conclusion

29. [29]
    Ms Wellard is not successful in this appeal proceeding. In respect of her first ground of appeal, she has not demonstrated that the tribunal made any error. In respect of the second ground, the tribunal’s failure to take Mr O'Brien’s email into account did not affect the outcome and so leave to appeal should be refused.