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Stanton v Electrics Downunder[2020] QCATA 142

Stanton v Electrics Downunder[2020] QCATA 142

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Stanton v Electrics Downunder [2020] QCATA 142

PARTIES:

NOEL EDWARD STANTON

 

(applicant/appellant)

 

v

 

Electrics Downunder pty ltd

 

(respondent)

APPLICATION NO:

APL245-17

ORIGINATING

APPLICATION NO:

BDL231-16

MATTER TYPE:

Appeals

DELIVERED ON:

1 October 2020

HEARING DATE:

9 March 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member

Member Burke

ORDERS:

  1. The Appeal Tribunal’s direction numbered 2 dated 20 September 2018 is vacated.
  2. The application for miscellaneous matters filed by Noel Edward Stanton on 18 July 2019 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – SCOPE AND EFFECT OF APPEAL – proper construction of statute - effect of referral of a matter as a reopening application in appeal proceeding – where reopening application refused – where appeal proceeding stayed pending reopening – whether right of appeal constrained by statute following referral – whether referral of a matter to tribunal dispenses with appeal proceeding– whether ground of appeal is res judicata – whether application for leave to rely upon fresh evidence is res judicata – where appeal against adverse order due to non-compliance and failure to engage with proceeding – where appeal of order to award counter-claim to respondent due to conduct of applicant - whether leave to rely upon fresh evidence should be granted – where fresh evidence is only basis for appeal – where appeal falls away if leave to rely upon fresh evidence not granted – whether fresh evidence probative of facts asserted – public interest in conduct of proceedings – duty of parties to act in their own interest

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 36, s 48, s 133, s 135, s 136, s 138, s 138A, s 139, s 140, s 141, s 142, s 143, s 143A, s 147, sch 3

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Brakatselos v ABL Nominees (2012) 36 VR 490

Clarke v Japan Machines Pty Ltd [1984] 1 Qd R 404

Fox v Percy (2013) 214 CLR 118

Lindgren v Aaron Trigg Painting [2011] QCATA 267

Mulholland v Mitchell [1971] AC 666; [1971] All ER 307

Pickering v McArthur [2005] QCA 294

Radnedge v GIO (NSW) (1987) 9 NSWLR 235

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

APPEARANCES &

REPRESENTATION:

 

Applicant:

McLennan S, counsel instructed by Kelly P of Kelly Legal

Respondent:

Ritchie T, counsel instructed by McKays Solicitors

REASONS FOR DECISION

Senior Member Howard:

  1. [1]
    The history and background to the dispute, the orders made in the building dispute, and the orders previously made by this Appeal Tribunal are sufficiently set out in Member Burke’s draft reasons for decision which I have read, as are the submissions of the parties, and in large part, the relevant provisions of the QCAT Act, as far as the Preliminary Point is concerned. I repeat them only to the extent necessary to discuss them.
  2. [2]
    For the reasons that follow, I do not agree in all respects with the learned Member’s reasoning about the Preliminary Point. Further, in case I am wrong about the Preliminary Point, I make observations about the application for leave to appeal and application for leave to rely upon additional evidence.

The Preliminary Point: operation of the appeal and reopening provisions in the QCAT Act

  1. [3]
    This Appeal Tribunal made orders on 20 September 2018 whereby it referred the application for leave to appeal to the tribunal pursuant to s 143A of the QCAT Act to decide whether the proceeding should be reopened because it appeared the reasons for the application for leave to appeal may constitute a reopening ground. Further, we directed that, pending determination of the application to reopen, the appeal proceeding was stayed to be brought on by either party on 14 days’ notice. The reopening was subsequently refused by the Tribunal.
  2. [4]
    Electrics Downunder submits effectively that, in making its orders on 20 September 2018, the Appeal Tribunal dealt with the appeal proceeding and it may not entertain the same application because it was taken to be an application for a reopening pursuant to s 143A(3) of the QCAT Act; and, in deciding the reopening, the Tribunal decided not to allow reliance on the new evidence and the matter is therefore res judicata because no appeal is allowed from a reopening application.[1]
  3. [5]
    Mr Stanton submits that s 147(2) specifically provides for additional evidence and that the test on appeal for allowing fresh evidence differs from the test on reopening. He argues that Electrics Downunder’s submissions would result in a two-tier system of justice depending upon whether evidence was reasonably available at the time of the original tribunal hearing and whether s 143A is invoked or not. Further, he submits that when exercising its discretion not to refer, pursuant to s 143A, the appeal tribunal would apply the same test as set out in the definition of reopening ground, when the appeal tribunal consistently applies the test in Clarke v Japan Machines when deciding whether to give leave to rely upon fresh evidence in appeal proceedings. 
  4. [6]
    The issues raised concern the proper construction of the relevant provisions of the QCAT Act.

The reopening and appeal provisions in the QCAT Act

  1. [7]
    The reopening provisions are contained in the QCAT Act in Chapter 2, Part 7, entitled ‘Decisions and enforcement’.  Chapter 2, Part 7, Divisions 5, 6 and 7 respectively concern applications for renewal; correction; and reopening of tribunal decisions. None of these applications, that is, for renewal or correction or reopening, may be made by a party in relation to a final decision that is the subject of appeal.[2]
  2. [8]
    Division 7, entitled ‘Reopening’, applies to a proceeding except to an appeal under Part 8, Division 1 that has been heard and decided by the tribunal.[3] A party may apply for a proceeding to be reopened, as provided for in s 138, as follows:

138  Application to reopen

  1. (1)
    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.
  1. (2)
    The application must—
  1. (a)
    state the reopening ground on which it is made; and
  1. (b)
    be made within the period and in the way stated in the rules; and
  1. (c)
    be accompanied by the prescribed fee (if any).
  1. (3)
    The party must give a copy of the application to—
  1. (a)
    each other party to the proceeding; and
  1. (b)
    each other person to whom notice of the application is required to be given under an enabling Act or the rules; and
  1. (c)
    any person the tribunal directs to be given notice of the application.
  1. (4)
    Subsection (3) does not require the party to give a copy of the application to a person if the principal registrar has given or undertaken to give a copy of the application to the person.
  1. (5)
    A party can not make an application under this section in relation to a decision the subject of an appeal, or an application for leave to appeal, under part 8.
  1. (6)
    Subsection (5) applies whether or not the appeal or application has been decided.
  1. [9]
    If a party makes an application under s 138, s 139 applies. It provides for the tribunal to decide the reopening application as follows:

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. (2)
    Each party to the proceeding must be given an opportunity to make, within the period stated in the rules, written submissions about the application.
  1. (3)
    The tribunal—
  1. (a)
    must consider any written submissions made under subsection (2) about the application; and
  1. (b)
    may decide whether or not to reopen the proceeding entirely on the basis of documents, without a hearing or meeting of any kind.
  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.
  1. (5)
    The tribunal’s decision on the application is final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise.
  1. [10]
    In particular, the tribunal may grant a reopening only if a reopening ground exists for the applicant and the ground can be effectively or conveniently dealt with by reopening the proceeding, whether or not an appeal may also be started on the basis of the ground.[4] The tribunal’s decision on a reopening application is final and cannot be challenged or appealed.[5]
  2. [11]
    Reopening ground is defined,[6] for a party to a proceeding, to mean:
  1. (a)
    the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
  1. (b)
    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.
  1. [12]
    If the tribunal decides to reopen the proceeding under s 139, s 140 provides for the tribunal to then conduct a fresh hearing on the merits in determining the relevant issues. It is in the following terms:

140 Effect of decision to reopen

  1. (1)
    If, under section 139, the tribunal decides a proceeding should be reopened, the tribunal must decide the issues in the proceeding that must be heard and decided again.
  1. (2)
    The issues must be heard and decided by way of a fresh hearing on the merits, and subsection (1) does not prevent the tribunal from hearing and deciding other related issues in the proceeding.
  1. (3)
    The hearing and deciding of the issues and any related issues are taken to be a part of the original proceeding.
  1. (4)
    The tribunal may—
  1. (a)
    confirm or amend the tribunal’s previous final decision in the proceeding; or
  1. (b)
    set aside the tribunal’s previous final decision in the proceeding and substitute a new decision.
  1. (5)
    For this Act or an enabling Act, the decision of the tribunal as confirmed, amended or substituted under subsection (4) is the tribunal’s final decision in the proceeding.
  1. (6)
    The proceeding can not be reopened again under this division.
  1. [13]
    If an application has been made for reopening pursuant to s 138 ‘about the tribunal’s final decision in the proceeding’, an application for leave to appeal or appeal cannot be made until the application for reopening is finally dealt with under Division 7.[7] Final decision relevantly ‘means the tribunal’s decision that finally decides the matters the subject of the proceeding’.[8] Therefore, if a reopening is granted, an application for leave to appeal or appeal may not be made until after rehearing of the relevant issues on the merits as provided for in s 140. If the reopening application is refused, the final decision of the tribunal must be the decision made by it before the reopening application was made (and which was sought to be disturbed as a consequence of the reopening application).
  2. [14]
    Part 7, Division 7 does not provide for the tribunal to initiate a reopening application on its own initiative. A party must make an application for reopening.
  3. [15]
    Chapter 2, Part 8 is entitled, ‘Appeals etc.’ Chapter 2, Part 8, Division 1 of the QCAT Act provides for ‘Appeals to the appeal tribunal’. Section 142 provides that a tribunal decision may generally be appealed to the appeal tribunal (if a judicial member did not constitute the tribunal for the proceeding), subject to a number of exceptions and, in respect of specified decisions, subject to leave of the appeal tribunal. Section 143 provides for applications for leave to appeal or appeal to be filed within 28 days of the ‘relevant day’.[9] Relevant day is a defined term for the section.[10] In particular, s 143(5) provides that if a person makes an application under Part 7, Divisions 5, 6, or 7 about the decision, the relevant day is the day that application is finally dealt with under the division.
  4. [16]
    As a matter of statutory construction, the QCAT Act provides that if an application for leave to appeal or appeal has been filed, an application may not be made to reopen the subject decision.[11] Conversely, any application made for reopening of a final decision must be finally dealt with under Division 7 before a person may file an application for leave to appeal or appeal.[12] A person’s appeal rights in respect of the decision need not be exercised until 28 days after the reopening application is finally dealt with under Part 7, Division 7.[13] For present purposes, it is noted that s 143(5) does not limit the right of a person to appeal following a reopening application to a person whose reopening application was successful (and therefore, followed by a rehearing of relevant issues on the merits).
  5. [17]
    Further, after a reopening application is determined, the decision which may be the subject of any later appeal proceeding is the decision in the original proceeding about the substance of the dispute made by the tribunal. The decision to grant or refuse the reopening application may not be challenged.[14]
  6. [18]
    If a reopening application is refused, the decision of the tribunal in the original proceeding is the decision that was, in effect,[15] the subject of the reopening application. If a reopening application is granted, the issues to be heard and decided again must be decided by the tribunal by way of fresh hearing on the merits pursuant to s 140.[16] The ‘hearing and deciding of the issues and any related issues are taken to be part of the original proceeding’.[17] That is, the rehearing on the merits is taken to be part of the original proceeding. For the QCAT Act or an enabling Act, the decision of the tribunal on the rehearing is the tribunal’s final decision in the proceeding.[18]
  7. [19]
    In conclusion, whether or not a reopening application is granted or refused, a party may exercise its appeal rights in respect of the original tribunal’s final decision and remains ‘in time’ to do so under s 143(5) within 28 days after the ‘relevant day’ (as defined in s 143(5) and provided for in s 143(3)). To be clear, it is the decision to grant or refuse a reopening application that cannot be challenged and which is not appellable in any circumstances pursuant to s 139(5). However, the decision that was in effect the subject of the reopening application remains appellable in the event that the reopening application is refused. Whereas, if the reopening application is granted, the decision made by way of fresh hearing on the merits pursuant to s 140 is the appellable decision.
  8. [20]
    In the circumstances set out in s 142(3), an appeal may only be made if the appeal tribunal grants leave to appeal. Whether leave to appeal should be granted is determined according to established principles. If leave to appeal is granted, then the method of determining the appeal varies according to the nature of the appeal. Appeals in the strict sense on a question of law only are to be determined pursuant to s 146 of the QCAT Act. Appeals on a question of fact only or a question of mixed law and fact must be determined pursuant to s 147 by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.
  9. [21]
    Section 143A provides that when an application for leave to appeal or appeal has been filed the appeal tribunal may refer a matter to the tribunal to consider whether to reopen the proceeding. It is considered in detail below.
  10. [22]
    The remaining provisions in Part 8, Division 1 are not relevant here.

Referral of an Appeal proceeding for reopening under s 143A and the effect on the appeal proceeding

  1. [23]
    The QCAT Act was amended to insert s 143A in 2013.[19] Pursuant to s 143A(2), the appeal tribunal may ‘refer the matter’ to the tribunal to decide whether to reopen the proceeding. The provision applies if an application for leave to appeal or appeal is filed under s 143, in circumstances where the appeal tribunal considers that the reason for the application for leave to appeal or appeal may constitute a reopening ground and that it could be more effectively or conveniently dealt with as an application under Part 7, Division 7 as a reopening application.[20] If the appeal tribunal ‘refers’ ‘the matter’ under the provision, the applicant or appellant is ‘taken’ to have made an application for a reopening under s 138 and ‘taken’ not to have made an application or appeal under s 143.[21]  In effect, the appeal tribunal is empowered to initiate a reopening application based on the applicant or appellant’s reasons for bringing the appeal proceeding.
  2. [24]
    ‘The matter’ is not a defined term. In the context of s 143A, reading s 143A(1) and (2) together, ‘the matter’ refers to the reasons for the application or appeal. If ‘the matter’ is referred to the tribunal then s 143A(3)(a) applies, with the consequence that the applicant is taken to have made a reopening application, and not an application for leave to appeal or appeal.
  3. [25]
    Section 143A(3), by providing that the applicant or appellant is taken to have made a reopening application and not an application for leave to appeal or appeal in the event of referral to the tribunal to decide whether the proceeding should be reopened, circumvents the prohibitions in s 138(5) and (6) (that is, that a reopening application can not be made by a party in respect of a decision which is the subject of an application for leave to appeal or appeal whether or not the appeal has been decided). Once referred by the appeal tribunal the applicant or appellant is taken to have applied for a reopening (although they filed an application for leave to appeal or appeal).  Further, s 139(1) applies and the tribunal must decide the reopening application. If the reopening is granted, s 140 applies.  In accordance with s 141, an application for leave to appeal or appeal can not be made in respect of a final decision until the reopening application is finally dealt with under Part 7, Division 7. That is, the reopening application is decided, and if granted, any rehearing is decided.
  4. [26]
    The question arises here whether the appeal proceeding remains on foot following the referral.
  5. [27]
    Perhaps, in light of some lack of clarity about what constitutes and the extent of ‘the matter’ referred under s 143A(2), s 143A(3)(a) could be read down as operating for the purposes of the section. If that was the proper construction, if the reopening application is refused, as here, the applicant would be able to proceed with the application for leave to appeal or appeal, should he, she, they or it, so desire, without filing a fresh application for leave to appeal or appeal.
  6. [28]
    Alternatively, following a referral to the tribunal pursuant to s 143A by the appeal tribunal, an application for leave to appeal or appeal is taken to be an application for reopening and not an application for leave to appeal or appeal for all purposes. If so, the appeal proceeding is finalised by the referral by the appeal tribunal. 
  7. [29]
    Despite, perhaps, a degree of uncertainty about the scope of ‘the matter’ that is referred to the tribunal under s 143A(2) and whether it encompasses the entirety of the appeal proceeding, Parliament has not sought to limit the application of s 143A(3)(a). I conclude that on a proper construction, the Parliament intended s 143A(3)(a) to apply for all purposes for Division 8, Part 1.

Did the appeal tribunal determine the application for leave to appeal (or appeal) and application for leave to rely upon fresh evidence by making a referral under s 143A and what is the effect of s 139(5)?

  1. [30]
    I turn to the submission of Electrics Downunder to the effect that, in any event, Mr Stanton may not seek leave to appeal relying upon the additional evidence not accepted by the tribunal in support of a reopening ground. It says that the Appeal Tribunal is res judicata and therefore unable to consider an application for leave to rely upon the additional evidence in an appeal proceeding.
  2. [31]
    Electrics Downunder says that the application for leave for leave to rely upon fresh evidence was determined in referring the matter to the tribunal to consider whether to reopen the proceeding. Mr Stanton says that cannot be so because the tests are different in each case.
  3. [32]
    I accept, as Mr Stanton submits, that the test in each case is different. In any event, I find that the application for leave to rely upon fresh evidence was not determined by the Appeal Tribunal in making the referral pursuant to s 143A. In deciding to make the referral, the Appeal Tribunal did no more than refer ‘the matter’ to the tribunal, on the basis that the reasons for the application or appeal may constitute a reopening ground and that it may be more effectively dealt with if it was taken to be a reopening application.
  4. [33]
    Further, the Appeal Tribunal in making the referral did not determine the application for leave to appeal under Part 8, Division 1. Whether leave to appeal should be granted for the appeal to proceed on the questions of fact raised in the appeal proceeding was not determined. The appeal could only proceed if leave was granted. If leave is granted, in deciding an appeal on a question of fact, the appeal tribunal must proceed under s 147, in which case it has power to allow additional evidence. In this case, although the proceeding was listed for hearing on 20 September 2018, the Appeal Tribunal did not determine the application for leave, nor proceed under s 147, because it did not decide the application or appeal.
  5. [34]
    Instead, the Appeal Tribunal referred the matter to the tribunal to decide whether the proceeding should be reopened. 
  6. [35]
    Electrics Downunder further argues that the application for leave to rely upon additional evidence was decided in the reopening application and was refused. It says that to allow it to be re-enlivened in these proceedings would be effectively to allow the reopening decision to be appealed, which is prohibited by s 139(5). As discussed, the test in determining a reopening on the basis of significant new evidence and the test in determining whether to grant leave to rely upon additional evidence in support of an appeal are not identical.
  7. [36]
    Further, as discussed above, s 139(5) operates only to preclude an appeal in respect of a decision to grant or refuse to reopen a proceeding.
  8. [37]
    It follows that in any event, if the application for leave to rely upon the additional evidence is properly before the Appeal Tribunal, we would be entitled to consider it.

Is there an application for leave to appeal (and an application for leave to rely upon additional evidence) before the Appeal Tribunal?

  1. [38]
    Here, it follows from the construction adopted, that the appeal proceeding was finalised by the making of the Appeal Tribunal’s orders on 20 September 2018 referring the matter to the tribunal to decide whether to reopen the proceeding. There is no appeal proceeding currently on foot.
  2. [39]
    Accordingly, the Appeal Tribunal erred, when referring ‘the matter’ pursuant to s 143A, in making a direction to the effect that the appeal proceeding is stayed pending the determination of the reopening, to be brought back on by either party on 14 days’ notice. On a proper construction, following the referral, there was no appeal proceeding to be brought on, irrespective of the outcome of the reopening application. 
  3. [40]
    That said, Mr Stanton was entitled to again file an application for leave to appeal or appeal and an application for leave to rely upon the additional evidence after the reopening application was refused, but he was obliged to file fresh applications in compliance with the provisions of the QCAT Act.
  4. [41]
    On 10 June 2019, the Tribunal issued its decision refusing the reopening application. The decision was sent to the parties on 14 June 2019. On 24 June 2019, the Appeal Tribunal directed that unless an application was made to bring on the appeal proceedings by 19 July 2019, the application for leave to appeal or appeal may be dismissed without further notice to the parties.
  5. [42]
    Mr Stanton filed an application on 18 July 2019, seeking directions for the conduct of the appeal proceeding including for the filing of any further material by the parties, and the bringing on of the application for leave to appeal or appeal. The Appeal Tribunal made directions and listed the proceeding for hearing.
  6. [43]
    If it was necessary to do so, in view of the Appeal Tribunal’s error, I would treat Mr Stanton’s application filed on 18 July 2019 as an application for leave to appeal or appeal and an application to extend the time for the filing of the application, as well as, an application for leave to rely upon the additional evidence. In respect of the granting of an extension of time, Electrics Downunder cannot be said to surprised or prejudiced by the fresh application for leave or appeal. Further, Mr Stanton’s delay in making it outside of the 28 day period from the date of the Tribunal’s decision in the reopening proceeding was precipitated by the Appeal Tribunal’s directions requiring him to file an application by 18 July 2019, several days outside of the prescribed period in s 143 following the final determination under Chapter 2, Part 2, Division 7. The delay is short and, having regard to the history and circumstances of the proceeding, inconsequential. Further, if it was necessary to do so, I would grant leave extending the time for Mr Stanton to file the application for leave to appeal to 18 July 2019.
  7. [44]
    That said, it is unnecessary to do so, because for the reasons explained in the following paragraphs, the application for leave to appeal would be refused.

Observations about whether Mr Stanton would be granted leave to appeal if the proceeding was properly before the Appeal Tribunal

  1. [45]
    Mr Stanton’s grounds of appeal, as articulated in Counsel’s submissions, allege errors of fact: namely, incorrect conclusions of fact and failure to consider evidence affecting credit of Mr Cook’s evidence and the weight attributed to it (a third ground, alleging error of law by way of breach of procedural fairness in failing to provide an opportunity to cross-examine witnesses by holding an on the papers hearing was abandoned at hearing). His application for leave to appeal, and if successful, his appeal, rely upon the additional evidence upon which he seeks leave to rely.
  2. [46]
    The Tribunal’s decision that is the subject of the appeal proceeding was made  pursuant to s 48 of the QCAT Act in favour of Electrics Downunder. Section 48 applies if the tribunal considers a party to a proceeding is acting in a way which causes unnecessary disadvantage to another party to the proceeding. This followed a protracted period during which Mr Stanton had failed to comply with the Tribunal’s directions to progress the proceeding to hearing. It had already dismissed Mr Stanton’s application for orders in respect of the domestic building dispute, leaving Electrics Downunder’s counter-application to be determined.
  3. [47]
    In acting pursuant to s 48(2) of the QCAT Act, the Tribunal concluded that Mr Stanton’s failure to engage in the proceeding and comply with the directions since December 2016 was deliberate and that it was appropriate to make a final decision in favour of Electrics Downunder pursuant to s 48(2)(b)(i). Beforehand, it had made directions for the filing and service on Mr Stanton of a statement by Electrics Downunder as to the amount of money alleged to be outstanding. It made findings based on the evidence before it. It ordered that Mr Stanton pay Electrics Downunder the amount of $9,309.14.
  4. [48]
    Mr Stanton’s Counsel concedes that the fresh evidence sought to be relied upon is the basis for the application for leave to appeal and appeal, and further, that the appeal falls away if leave is not granted to him to rely upon it. In submissions, he contended that, if successful, there should be a remission of the proceeding to the tribunal so that Mr Cook could be cross-examined on the transcript and for Mr Henry to explain the file note.
  5. [49]
    Leave to appeal will usually be granted where an appeal is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected.[22]
  6. [50]
    The discretion to allow additional evidence may be exercised in the interests of justice: in keeping with the public interest in finality in litigation, it is not to be exercised lightly.[23] Evidence freshly discovered of matters occurring before the judgment but not discovered until after it will not generally be admitted unless the failure to produce it was not due to a lack of reasonable diligence of the unsuccessful party, it would be reasonably likely to have produced an opposite result, and there is a satisfactory explanation for the party’s conduct at first instance.[24] The scope of the discretion to admit evidence of facts occurring after the decision has been considered to be broader.[25] That said, there is not a precise formula to be applied in exercising the discretion.[26]
  7. [51]
    The additional evidence sought to be relied upon consists of an affidavit of Kacey Maree Zarb sworn 14 May 2018 which attaches a transcribed copy of the file note of Nicola White and a copy of the transcript of oral evidence given by Mr Cook, the homeowner, during cross-examination in a QBCC review proceeding. Mr Stanton says it is to the effect that Mr Cook engaged contractors, including Electrics Downunder, without reference to Mr Stanton.
  8. [52]
    The transcribed copy of a QBCC file note dated 5 September 2016 of Nicola White, records the following:
  • 05/09/2016 – File note by Nicola White
    • Electrician presented to the Mackay office QBCC front counter on Friday 2 September 2017.  He advised the writer he and another sub-contractor were owed a substantial amount of money for electrical work and other works performed on site for by builder Noel Stanton.  The writer asked which property this was for and the electrician advised her that it was for a Mr Shaun Cook.
    • The writer asked if he had a sub contractor agreement in place for the works performed for Mr Noel Stanton and the electrician advised he did not as he was contract by Mr Shaun Cook and then told to send all invoices to Mr Noel Stanton “the builder” on this project.  The writer asked that he 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 is gets a little messy”.  The writer advised the electrician to put a monies owed complaint form in and to tool into the possibility of being able to lodge a BCIPA claim.  The electrician advised he would lodged a monies owed complaint and encourage the other tradespersons to do so also.
  1. [53]
    In essence, Mr Stanton submits that the file note confirms that Electrics Downunder did not have a sub-contractor agreement in place with him and that Electrics Downunder was engaged directly by Mr Cook as he (Mr Stanton) alleged.
  2. [54]
    The file note of Nicola White existed at the time of the Tribunal’s decision in the proceeding on 27 June 2017. Mr Stanton says that he had made all reasonable attempts to obtain relevant documents from QBCC in a timely manner through a formal request on 13 February 2017 and later a right to information request, but did not know of or see the file note in question until 14 May 2018.
  3. [55]
    He submits that it is important evidence because it contradicts an affidavit of the homeowner, Mr Cook, stating that Mr Stanton engaged Electrics Downunder, and an affidavit of the director of Electrics Downunder, Mr Henry, that Mr Stanton told him to send invoices to him for processing.  This evidence from Mr Cook and Mr Henry informed the Tribunal’s finding that there was an agreement between Mr Stanton and Electrics Downunder, which Mr Stanton says it would not have found if it had the benefit of the file note. He submits that the file note is credible because it was a contemporaneous note of a conversation between an independent person employed by QBCC and the electrician.
  4. [56]
    Electrics Downunder concedes that its director had a conversation with Nicola White, but disputes that he said he was contracted by Shaun Cook. Electrics Downunder says rather that he said he was contacted by Mr Cook.
  5. [57]
    The file note, made contemporaneously, although some three days after the conversation said to be noted, is not a verbatim account. Despite the passing of almost two years since the file note came to light, Mr Cook has not sought to obtain a statement or affidavit from its author, Ms White. In any event, it seems that she has advised Electrics Downunder that she has no recollection of the discussion. As Electrics Downunder contends, the meaning of some matters referred to in Ms White’s file note are not clear. It argues that although from a disinterested person, as against the sworn material from Mr Cook and Mr Henry, it could be accorded only limited weight. The file note is just one piece of evidence that could be considered in the fact-finding process.
  6. [58]
    In relation to the fresh evidence by way of the transcript of Mr Cook’s cross‑examination, it is apparent that it was not in existence at the time of the determination of the building dispute. Mr Cook subsequently gave the evidence in a separate review proceeding. His evidence was to the effect that he engaged some tradespersons without reference to Mr Stanton.[27]
  7. [59]
    Mr Stanton submits that the evidence would have led the Tribunal to conclude that Mr Cook was an unreliable witness; that his evidence should be disregarded; and there was no contractual relationship between Mr Stanton and Electrics Downunder; and that Mr Stanton was not indebted to Electrics Downunder.
  8. [60]
    Whereas Mr Cook may not have been an impressive witness, having regard to his cross-examination overall, he did not accept that he engaged Electrics Downunder as Mr Stanton submits.  Throughout his evidence he maintained that Mr Stanton had engaged his (Mr Cook’s) friend, Mr Henry, of Electrics Downunder as the electrician.[28]
  9. [61]
    Although the additional evidence by way of the file note sought to be relied upon by Mr Stanton may not tend to support the Tribunal’s finding of an agreement between the parties, it is only one piece of the evidence and for the reasons explained it could be given limited weight. Further, Mr Cook’s cross-examination, although not impressive, does not clearly support the finding for which Mr Stanton contends.
  10. [62]
    It is implicit in the submission of Counsel for Mr Stanton that remission of the proceeding to the tribunal is appropriate (so that Mr Cook and Mr Henry may be cross‑examined), that the additional evidence sought to be relied upon is of itself inadequate to support alternative findings on rehearing of the proceeding by the appeal Tribunal as envisaged under s 147 of the QCAT Act. I agree. It is not apparent that admitting the additional evidence would result in a different outcome. It is not directly probative of the facts it is said to support. At best, the additional evidence raises the possibility, not the probability, of a different outcome.
  11. [63]
    But further to that, as discussed, the Tribunal made its final orders pursuant to s 48 of the QCAT Act following a sustained failure of Mr Stanton to engage in the proceedings. There is no argument in the appeal proceeding that the Tribunal erred  in proceeding pursuant to s 48. Mr Stanton did not act in his own interests in a timely manner in the proceeding before the decision was made, as he was obliged to do under the QCAT Act.[29] He had failed on numerous occasions to attend tribunal events or provide a reason for his failure to do so. Having not taken the opportunity to defend himself against the counter-claim, Mr Stanton belatedly seeks to have the decision overturned and a different decision made.
  12. [64]
    The Tribunal’s resources serve the public as a whole, not merely the parties to proceedings.[30] Parties must act in their own best interest or accept the consequences. It is not in the interests of justice that Mr Stanton have leave to rely upon additional evidence that alone is insufficient to affect the outcome of the proceeding, in the hope that he may achieve a different result at this late stage.
  13. [65]
    The Tribunal’s findings were available on the evidence before it. They are rationally defensible findings,[31] even having regard to the additional evidence sought to be relied upon by Mr Stanton.
  14. [66]
    For these reasons, even if I was wrong about the Preliminary Point, I would refuse the applications for leave to appeal and for leave to rely upon additional evidence.

Conclusions and orders

  1. [67]
    As there was not an appeal proceeding to be determined after the referral under s 143A of the QCAT Act, our direction made on 20 September 2018 staying the appeal proceeding pending the determination of the reopening application, to be brought on by either party on giving 14 days’ notice, was beyond power. It should be vacated.
  2. [68]
    Further, as the proceeding was finalised by the referral, the miscellaneous application filed by Mr Stanton on 18 July 2019 is dismissed.
  3. [69]
    Orders are made accordingly.

Member Burke:

  1. [70]
    This appeal arises out of a dispute between the applicant (“Stanton”) and the respondent (“Electrics Downunder”) regarding electrical works carried out by Electrics Downunder at a dwelling owned by Mr Shaun Cook (“Cook”). Stanton is alleged to have engaged Electrics Downunder pursuant to a subcontract for the electrical works before the contract between Stanton and Cook was terminated.
  2. [71]
    On 14 September 2016, Stanton filed an application seeking relief from Electrics Downunder for an amount of $3,443.37 alleged to be owed for the electrical works and an amount of $5,000.00 in damages.
  3. [72]
    On 20 October 2016, Electrics Downunder filed a counter application claiming the amount of $8,433.37 for an outstanding invoice.
  4. [73]
    On 27 June 2017, after dismissing Stanton’s application on 24 May 2017, the tribunal ordered Stanton to pay Electrics Downunder the sum of $9,309.14 in satisfaction of the counter-application with interest.
  5. [74]
    It is the tribunal’s decision dated 27 June 2017 (“the original decision”) which is the subject of the present application for leave to appeal or appeal.
  6. [75]
    On 27 July 2017, Stanton filed an application for leave to appeal or appeal the tribunal’s original decision.
  7. [76]
    Subsequently, a number of applications were filed on behalf of both Stanton and Electrics Downunder for leave to admit fresh evidence. Those applications were filed on various dates including 28 November 2017, 4 December 2017, 5 February 2018, 21 February 2018, 11 April 2019, 18 May 2018, 11 July 2018, 12 July 2018, 20 August 2018 and 31 August 2018.
  8. [77]
    A number of the applications for leave to admit fresh evidence were abandoned except the application relating to the following alleged new evidence for which leave has been sought by Stanton to be introduced on the appeal:
    1. (a)
      an internal Queensland Building and Construction Commission (“QBCC”) file note concerning an interaction between the QBCC and Electrics Downunder; and
    2. (b)
      the transcript of the hearing of proceeding GAR121-17 (Stanton v Queensland Building and Construction Commission [2018] QCAT 271) relating to oral evidence from Mr Shaun Cook during the course of a QBCC review proceeding heard on 16 May 2018.[32]
  9. [78]
    On 20 September 2018, the application for leave to appeal or appeal and the application for leave to admit fresh evidence were brought on for hearing before this appeal tribunal.
  10. [79]
    The appeal tribunal raised with counsel for the parties that it appeared that the matter was one whereby there was a possibility of reopening grounds existing and suggested that directions be made to refer the matter back to the tribunal to consider whether grounds for a reopening existed. No objection to this course by the parties was recorded.
  11. [80]
    The following orders were made by this appeal tribunal on 20 September 2018:

Because the reasons for the application by Noel Edward Stanton may constitute a reopening ground, and the application by Noel Edward Stanton can be more effectively dealt with if it is taken to have made an application for reopening under s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (“the Act”) and not an application for leave to appeal or appeal under s 143 of the Act, it is the order of the appeal tribunal that:

  1. (i)
    In the interim the operation of the order dated 27 June 2017 in BDL231-16 is suspended pending further order of the Tribunal.
  2. (ii)
    The application filed on 27 July 2017 is referred to the Tribunal to decide whether BDL231-16 should be reopened.
  1. [81]
    The appeal tribunal made further directions regarding the provision of submissions in the reopening application and further directed:
  1. Pending the outcome of the application to reopen, this appeal is stayed to be brought on by either party at 14 days notice.
  1. [82]
    The application to reopen proceeding BDL231-16 directed by the appeal tribunal was heard on the papers. On 10 June 2019, the tribunal delivered a decision regarding the reopening application (“the reopening decision”). The application to reopen the original proceeding was refused.
  2. [83]
    By consent of the parties, the appeal tribunal subsequently dismissed a number of applications for miscellaneous matters filed by the parties. The appeal tribunal made further directions that the parties provide further and updated written submissions in relation to the application for leave to appeal or appeal and the application for leave to rely upon fresh evidence.[33]
  3. [84]
    The hearing of the original application for leave to appeal or appeal and the application for leave to rely upon fresh evidence has been brought back on for hearing before the appeal tribunal and is now the subject of this appeal tribunal’s consideration.
  4. [85]
    Amended submissions were filed on behalf of Stanton on 18 October 2019, incorporating the original written submissions dated 3 September 2018 (filed on 11 September 2018). Supplementary submissions in response to the matters raised by Electrics Downunder relating to the application for leave to rely upon fresh evidence were provided at the hearing.
  5. [86]
    Amended submissions were filed on behalf of Electrics Downunder on 15 November 2019 and supplementary submissions were provided at the hearing relating to the application for leave to rely upon fresh evidence.

Preliminary Point

  1. [87]
    Counsel for Electrics Downunder, Mr Ritchie, submits that the appeal has been dealt with by this appeal tribunal by its orders on 20 September 2018 and therefore Stanton is prevented from re-agitating the same application before this appeal tribunal.
  2. [88]
    Mr Ritchie relies upon two grounds:
    1. (a)
      first, the application for leave to rely upon new evidence is not an appeal which is presently before the appeal tribunal. Relying upon s 143A(3) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), Electrics Downunder submits that the applicant is taken to have made an application for the proceeding to be reopened under section 138 of the QCAT Act and not to have made an application or appeal under section 143; and
    2. (b)
      secondly, the tribunal decided in the reopening decision that Stanton cannot rely upon the new evidence and the matter is therefore res judicata. Further, no appeal is allowed from a reopening decision pursuant to s 139(5) of the QCAT Act.
  3. [89]
    Thus, Electrics Downunder submits that it would be contrary to the scheme of the QCAT Act for this appeal tribunal to consider the issue of new evidence again.
  4. [90]
    Counsel for Stanton, Mr McLennan, submits that the argument raised by Electrics Downunder ignores the specific powers of the appeal tribunal to consider additional evidence as provided in s 147(2) of the QCAT Act.
  5. [91]
    Mr McLennan refers to the appeal tribunal’s reliance upon the test in Clarke v Japan Machines Pty Ltd[34] when considering whether new or additional evidence should be allowed on appeal, namely:
    1. (a)
      it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
    2. (b)
      the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
    3. (c)
      the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.
  6. [92]
    Further, Mr McLennan refers this appeal tribunal to the test to be applied in considering new evidence in a reopening application.
  7. [93]
    ‘Reopening ground’ is defined in the dictionary at Schedule 3 of the QCAT Act as meaning:
    1. (a)
      the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
    2. (b)
      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. [94]
    Mr McLennan submits that it is highly relevant that the drafting of the definition of ‘reopening ground’ does not duplicate the test in Clarke v Japan Machines, concluding that:
    1. (a)
      the submissions relied upon by Electrics Downunder cannot be correct because if they were then two different tests would be applied depending on the discretion exercised by the appeal tribunal in that:
      1. if the appeal tribunal remits the application relating to new evidence to the tribunal for reopening then the test regarding a ‘reopening ground’ would be applied for the purpose of assessing the admissibility of the new evidence;
      2. whereas, if the appeal tribunal exercises its discretion not to refer the new evidence application back to the tribunal as a reopening application, then the appeal tribunal would consider the new evidence as additional evidence applying the test in Clarke v Japan Machines.
  9. [95]
    It must follow that Mr McLennan submits that the appeal tribunal does not lose its right to exercise its discretion to consider the application to admit new evidence based on the Clarke v Japan Machines test in circumstances where there has been no application to reopen the proceedings below or in circumstances where an application to reopen the proceedings has been refused by the tribunal.

Relevant Legislation

  1. [96]
    An appeal to the appeal tribunal is made pursuant to ss 142 and 143 in Part 8, Division 1 of the QCAT Act.
  2. [97]
    Section 147 of the QCAT Act applies to appeals before the appeal tribunal against a decision on a question of fact only or on a question of mixed law and fact.
  3. [98]
    Subsections (2) and (3) of s 147 of the QCAT Act relevantly provide:
  1. (2)
    The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.
  1. (3)
    In deciding the appeal, the appeal tribunal may –
  1. (a)
    confirm or amend the decision; or
  1. (b)
    set aside the decision and substitute its own decision; or
  1. (c)
    set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration.
  1. [99]
    Pursuant to s 143A of the QCAT Act, the appeal tribunal may refer the matter to the tribunal to decide whether the matter should be reopened.
  2. [100]
    Section 143A provides:

143A Referring matter to tribunal to consider reopening

  1. (1)
    This section applies if –
    1. an application or appeal is filed under section 143; and
    2. the appeal tribunal considers –
      1. (i)
        the reasons for the application or appeal may constitute a reopening ground for the applicant or appellant in the proceeding to which the application or appeal relates; and
      2. (ii)
        the application or appeal could be more effectively or conveniently dealt with if it were taken to be an application under part 7, division 7 for a proceeding to be reopened.
  2. (2)
    The appeal tribunal may refer the matter to the tribunal to decide whether the proceeding should be reopened.
  3. (3)
    If the appeal tribunal refers the matter –
  1. (a)
    the applicant or appellant is taken –
  1. (i)
    to have made an application for the proceeding to be reopened under section 138; and
  1. (ii)
    not to have made an application or appeal under section 143; and
  1. (b)
    the appeal tribunal must give notice of the referral to –
  1. (i)
    each party to the proceeding; and
  1. (ii)
    any other person the tribunal reasonably considers should be give notice of the referral.
  1. [101]
    By reference to s 143A(3)(a)(i), an applicant or appellant is taken to have made an application for the proceeding to be reopened under s 138.
  2. [102]
    Section 138 of the QCAT Act relevantly provides:
  1. Application to reopen
  1. (1)
    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.
  2. (2)
    The application must –
    1. state the reopening ground on which it is made; and
    2. be made within the period and in the way stated in the rules; and
    3. be accompanied by the prescribed fee (if any).
  3. (3)
    ……………….
  1. [103]
    The effect of an application under s 138 on the original decision in the proceeding is set out in s 138A. There is no need to set this section out in full.
  2. [104]
    Section 139 sets out the process followed by the tribunal in hearing a reopening application. The circumstances in which the tribunal will grant the application are set out in subsection (4) as follows:

139 Deciding whether to reopen

…

  1. (4)
    The tribunal may grant the application only if the tribunal considers –
  1. (a)
    a reopening ground[35] exists for the applicant party; and
  2. (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.
  1. [105]
    Section 139(5) provides:

139 Deciding whether to reopen

…

  1. (5)
    The tribunal’s decision on the application is final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise.
  1. [106]
    The effect of the decision to reopen is set out in s 140 of the QCAT Act, providing that, in the event that the tribunal decides that a proceeding should be reopened, the tribunal must decide the issues in the proceeding by way of a fresh hearing on the merits.[36]
  2. [107]
    Further subsections (3) and (4) of s 140 provide that the hearing and deciding of the issues and any related issues on reopening of the proceeding are taken to be part of the original proceeding and the tribunal may:
    1. (a)
      confirm or amend the tribunal’s previous final decision in the proceeding; or
    2. (b)
      set aside the tribunal’s previous final decision in the proceeding and substitute a new decision.
  3. [108]
    Upon hearing the reopening issues, the decision of the tribunal as confirmed, amended or substituted is the tribunal’s final decision in the proceeding and the proceeding cannot be reopened again under Division 7.[37]
  4. [109]
    Finally, s 141 of the QCAT Act provides that an appeal, or an application for leave to appeal, against the final decision cannot be made until the application under s 138 is finally dealt with under Division 7.

Jurisdiction of Appeal Tribunal to consider application to admit Fresh Evidence after Refusal of Application to Reopen Proceeding

  1. [110]
    The application for leave to appeal or appeal and the application for leave to admit fresh evidence were brought pursuant to s 143 of the QCAT Act and the hearing commenced before this appeal tribunal on 20 September 2018.
  2. [111]
    Pursuant to s 147(2) of the QCAT Act, the applications were brought on for hearing to be decided by way of rehearing, with or without the hearing of additional evidence.
  3. [112]
    From the outset, it must be born in mind that Stanton did not make an application to reopen the proceedings pursuant to s 138 of the QCAT Act but rather filed an appeal against the tribunal’s original decision and included in that appeal an application for leave to adduce fresh evidence. To this effect, upon appealing the original decision Stanton lost his right to make an application to reopen the proceedings.[38]  Had Stanton chosen to make an application to reopen the proceedings, his right to appeal would not have been triggered until the reopening application had been determined and a final decision in the proceeding made by the tribunal.[39]
  4. [113]
    In determining whether additional evidence should be considered on appeal, the appeal tribunal concluded that the reasons for the application or appeal may constitute a reopening ground for the applicant, Stanton, and determined that the application could be more effectively or conveniently dealt with if it were taken to be an application under Part 7, Division 7 of the QCAT Act. The appeal tribunal exercised its discretion under s 143A(1)(b) in accordance with the guidelines set out therein.
  5. [114]
    Accordingly, pursuant to s 143A(2) the appeal tribunal determined that the matter should be referred to the tribunal to decide whether the proceeding should be reopened, taking into account the two limbs of s 143A(1)(b), as follows:
    1. (i)
      the reasons for the application or appeal may constitute a reopening ground for the applicant or appellant in the proceeding to which the application or appeal relates; and
    2. (ii)
      the application or appeal could be more effectively or conveniently dealt with it is were taken to be an application under part 7, division 7 for a proceeding to be reopened.
  6. [115]
    In those circumstances, in accordance with s 143A(3)(a)(i), Stanton is taken to have made an application for the proceeding to be reopened under s 138 of the QCAT Act and the requirements of s 138 are therefore applicable.
  7. [116]
    Thus, the matter was referred to the tribunal for a decision to be made whether a reopening ground existed. The reopening decision was provided on 10 June 2019. The application to reopen the proceedings was refused on the basis that no reopening ground existed for the purpose of s 139(4). The tribunal considered:
    1. (a)
      whether “fresh evidence” existed;
    2. (b)
      whether the evidence was significant; and
    3. (c)
      whether the evidence was not reasonably available when the proceeding was first heard and decided.
  8. [117]
    The effect of the application made pursuant to s 138 of the QCAT Act on the operation of the original decision is set out in s 138A(i) to (iii).
  9. [118]
    Pursuant to s 140, had the tribunal decided that the proceeding should be reopened, the tribunal would have decided the issues in the proceeding which must be heard and decided again by way of a fresh hearing on the merits.[40]  The hearing and deciding of the issues and any related issues would form part of the original proceeding.[41]
  10. [119]
    Once the reopening application is determined and granted there exists a new final decision. That new final decision may be in one of the following forms:
    1. (a)
      the same as the tribunal’s previous final decision in circumstances where the original decision is confirmed; or
    2. (b)
      an amended form of the tribunal’s previous final decision; or
    3. (c)
      a new final decision which sets aside the previous final decision and substitutes a new decision.[42]
  11. [120]
    In circumstances where the reopening application is refused, there exists a new final decision which is the same as the tribunal’s previous final decision.
  12. [121]
    In all scenarios, the new decision is the final decision (“new final decision”)
  13. [122]
    The legislation does not make any distinction dependent on the outcome of the reopening application. Whether the reopening application is granted or refused, there is a new final decision which may be the subject of an appeal.
  14. [123]
    Section 141 provides that there is no appeal, or an application for leave to appeal against a final decision, until the reopening application is finally dealt with and a new final decision has been provided by the tribunal. The operation of s 141 is not dependant on whether an application for reopening is allowed or refused. It is expressly stated that no appeal can be made until the reopening application is finally dealt with by the tribunal.
  15. [124]
    Further, s 143A(3)(a)(ii) specifically provides that once a referral has been directed by the appeal tribunal, Stanton is taken not to have made an application or appeal under s 143 of the QCAT Act.[43] This must mean Stanton is taken not to have made an application for leave to admit fresh or additional evidence or an application for leave to appeal or appeal under s 143.
  16. [125]
    Given the prescriptive framework of the legislation in s 143A(3), it must follow that this appeal tribunal has no jurisdiction to further hear any application for leave to appeal or appeal as the appeal has been taken not to have been made under s 143 of the QCAT Act.
  17. [126]
    To find otherwise would ignore the specific consequences expressly outlined in s 143A(3)(a)(ii).
  18. [127]
    It cannot be the case that an appeal stays on foot pending the outcome of the reopening application. The legislation expressly provides for the converse in s 141.
  19. [128]
    Had the reopening application been successful, Stanton would have had the opportunity to appeal against the new final decision of the tribunal pursuant to ss 140 and 141 of the QCAT Act as this decision, in whatever form provided in s 140(3), would have been the new final decision for the purpose of an appeal under the QCAT Act.
  20. [129]
    Compounding the restriction on Stanton to raise again before an appeal tribunal the application for leave to admit fresh evidence is the prohibition in s 139(5) of the QCAT Act prescribing that the tribunal’s decision on a reopening application is final and cannot be challenged, appealed against, reviewed, set aside or called in question in another way.
  21. [130]
    Stanton’s renewal or revival of the original appeal can only be seen as either:
    1. (a)
      an appeal of the tribunal’s decision not to reopen the proceedings to allow the fresh evidence; or
    2. (b)
      a challenge to the tribunal’s decision that no significant new evidence has arisen; or
    3. (c)
      a way of calling into question the tribunal’s decision that no significant new evidence has arisen (and whether that evidence was not reasonably available when the proceeding was first heard); or
    4. (d)
      a re-agitation of the application for leave to admit fresh evidence which has already been determined by this appeal tribunal by referring the matter to the tribunal pursuant to s 143A.
  22. [131]
    Propositions (a) to (c) are prohibited by s 139(5) of the QCAT Act.
  23. [132]
    Proposition (d) is prohibited by s 143A(3)(ii) as a referral of a matter by the appeal tribunal to the tribunal to make a decision regarding a reopening ground automatically results in the applicant not having made an application or an appeal under s 143.
  24. [133]
    The discretionary power of the appeal tribunal to consider additional evidence in an appeal pursuant to s 147(2) does not take precedence in circumstances where the legislation specifically provides that an application or an appeal is taken not to have been made under s 143.
  25. [134]
    Section 143A(3) reconfirms the status of any appeal. If the matter is referred to the tribunal to be dealt with under Part 7, Division 7 for a proceeding to be reopened, it is expressly stated that the applicant is taken to have made an application for the proceedings to be reopened under s 138 and the applicant is taken not to have made an application or appeal under s 143.
  26. [135]
    The only logical result is that there is no appeal on foot until the applicant/appellant makes a further application for leave to appeal or appeal the new final decision.[44]
  27. [136]
    It follows that the referral of the matter by the appeal tribunal put an end to the appeal against the original final decision and this appeal tribunal had no jurisdiction to hear the matter further until an appeal or application for leave to appeal was made against the new final decision after the determination under s 138. [45]
  28. [137]
    It is further arguable that, in the present circumstances, this appeal tribunal has exercised its discretion to consider the additional evidence and determined the application for leave to admit fresh evidence by referring the application to the tribunal to consider the matter as a reopening ground.
  29. [138]
    In the circumstances, this appeal tribunal has no jurisdiction to hear again the application for leave to admit fresh evidence.
  30. [139]
    Counsel for Stanton submitted that it was accepted by the applicant that if the appeal tribunal does not favour the applicant’s argument in relation to the admission of fresh evidence, then the appeal falls away. There are no other grounds of appeal separate from the grounds reliant upon the admission of fresh evidence.
  31. [140]
    Counsel for Stanton, whilst not directly addressing the jurisdictional issues raised above, relies upon the discretion of the appeal tribunal in s 147(2) as the over-arching power of the appeal tribunal to consider any fresh evidence as additional evidence. This argument ignores the specific prohibition in s 143A(3)(ii) and the fact that the fresh evidence issue has already been determined by this appeal tribunal by the exercise of the discretion to refer the matter to be considered for reopening of the proceeding under s 143A(1)(b) and (2).
  32. [141]
    Counsel for Stanton submits that the respondent’s interpretation of the legislation is not logical for the following reasons:
    1. (i)
      the result would be a two-tier system of justice depending on, firstly, whether evidence was reasonably available at the time of the initial hearing and, secondly, whether s 143A is invoked or not; and
    2. (ii)
      the result would be that the appeal tribunal, when exercising its discretion not to refer the matter for a reopening pursuant to s 143A, would apply the same test as that set out in the definition of a ‘reopening ground’ when in fact all the cases consistently apply the test in Clarke v Japan Machines when considering the admission of additional evidence.
  33. [142]
    I do not accept the conclusions reached in the submissions relied upon by Counsel for Stanton. The submission ignores the fact that the appeal tribunal has reached a determination regarding the application for leave to admit fresh evidence and determined that it would be better dealt with as part of a reopening application.
  34. [143]
    Further, I do not accept that it follows that the appeal tribunal would determine the application for leave to rely upon fresh evidence by reference to the test relating to a ‘reopening ground’. The main reason for this conclusion is that the appeal tribunal does not consider reopening grounds as part of the exercise of its discretion to consider additional evidence as s 136 of the QCAT Act specifically states that Part 7, Division 7, which deals with reopening of proceedings, applies to a proceeding other than an appeal under Part 8, Division 1. It follows that an appeal tribunal is not obliged to apply the ‘reopening grounds’ test applicable to a proceeding heard and decided by the tribunal.
  35. [144]
    The course proposed by Stanton to require this appeal tribunal to further hear the application for leave to admit fresh evidence is equivalent to attempting to have another hearing of an application which already has been dealt with by the appeal tribunal on 20 September 2018. Alternatively, Stanton is attempting to appeal the reopening decision of 10 June 2019; a course which is prohibited by legislation.  Stanton cannot attempt such an appeal under the guise of the appeal tribunal’s jurisdiction to consider additional evidence.
  36. [145]
    Stanton’s argument appears to rely upon there being a distinction whether the reopening application is successful or not.
  37. [146]
    Stanton concedes that, in the event of a reopening application being successful, the tribunal must decide the matter on the merits and make a determination in the form of a new final decision, being the original final decision in either a confirmed, amended or substituted form. This new final decision may be the subject of another appeal. Stanton does not argue that in the case of the reopening application being granted, the new final decision is the subject of the appeal which remains on foot.
  38. [147]
    Yet, in the event of a reopening application being refused, Stanton argues that the appeal of the original decision remains on foot and the original final decision remains the subject of the appeal. In the circumstance of the refusal of the reopening application, the application to admit fresh evidence is revived as part of the appeal of the original final decision.
  39. [148]
    There is nothing in the legislation to support this distinction.
  40. [149]
    In contrast, s 141(2) expressly states that an appeal or an application for leave to appeal against a final decision cannot be made until the application under s 138 is finally dealt with by the tribunal.
  41. [150]
    Further support for there being no distinction based on the outcome of the reopening application is to be found in s 143A(3)(ii), which provides that in the event of a referral of the matter by the appeal tribunal to have an application for the proceeding to be reopened determined by the tribunal, the applicant or appellant is taken not to have made an application or appeal under s 143.
  42. [151]
    It has always been open to Stanton to appeal the new final decision, but this would not include an application to introduce the same fresh evidence as additional evidence under s 147(2) of the QCAT Act. Once the fresh evidence has been considered in the reopening application it has been dealt with finally and the same fresh evidence cannot be considered the subject of the appeal.
  43. [152]
    Having formed the view that Stanton cannot attempt to revive the original appeal due to the consequences of a referral of the matter to be reopened under s 138 as set out in s 143A(3)(ii), it follows that the present applications for leave to appeal or appeal and for leave to admit fresh evidence must be dismissed.
  44. [153]
    If, contrary to my determination above, it is the case that this appeal tribunal has jurisdiction:
    1. (a)
      to enliven the application for leave to admit fresh evidence and the application for leave to appeal and appeal the original final decision; or
    2. (b)
      to consider Stanton’s appeal filed on 18 July 2019 as an appeal of the new final decision and as part of that appeal to consider the application for leave to admit fresh evidence

then it would be necessary for this appeal tribunal to address the application to admit fresh evidence in accordance with its discretionary power to consider additional evidence under s 147(2) of the QCAT Act.

  1. [154]
    I have had the benefit of reading the draft reasons of the Senior Member regarding the fresh evidence which Stanton would seek to rely upon in the appeal and the issues relevant to the application to adduce fresh evidence. I agree with the Senior Member’s reasons and with the conclusion that the application should be refused.

Footnotes

[1]  QCAT Act, s 139(5).

[2]  QCAT Act - for renewal application see ss 133(6) and (7); correction application see ss 135(4) and (5); and reopening application see ss 138(5) and (6).

[3]  QCAT Act, s 136. An appeal tribunal has posited, although considering it was not clearly so, that an appeal which has been summarily dismissed, rather than heard and decided on its merits, may be reopened (although the appeal tribunal made its decision on another basis): Lindgren v Aaron Trigg Painting [2011] QCATA 267.

[4]  QCAT Act, s 139(4).

[5]  QCAT Act, s 139(5).

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

[7]  QCAT Act, s 141.

[8]  QCAT Act, sch 3 (definition of ‘final decision’).

[9]  QCAT Act, s 143(3) and (4).

[10]  QCAT Act, s 143(5).

[11]  QCAT Act, s 138(5) and (6).

[12]  QCAT Act, s 141.

[13]  QCAT Act, s 143(5)(a).

[14]  QCAT Act, s 139(5).

[15]  A proceeding, rather than a decision, is sought to be reopened.

[16]  QCAT Act, s 140(1) and (2).

[17]  QCAT Act, s 140(3).

[18]  QCAT Act, s 140(4) and (5).

[19]Justice and Other Legislation Amendment Act 2013 (Qld), s 154.

[20]  QCAT Act, s 143A.

[21]  QCAT Act, s 143A(3).

[22]Pickering v McArthur [2005] QCA 294.

[23]Mulholland v Mitchell [1971] AC 666, 679; [1971] All ER 307, 312.

[24]Brakatselos v ABL Nominees (2012) 36 VR 490; per Redlich JA.

[25]Radnedge v GIO (NSW) (1987) 9 NSWLR 235, 251 per Mahoney JA.

[26]  Ibid, 251-3.

[27]  Transcript 16 May 2018, page 9 lines 12- 35 painter; page 17 lines 4- 43 (glazier).

[28]  Transcript 16 May 2018, page 21, lines 23-29.

[29]  QCAT Act, s 36.

[30]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.

[31]  C.f. Fox v Percy (2013) 214 CLR 118, per Gleeson CJ, Gummow and Kirby JJ at 125-129.

[32]  Refer to amended written submissions by applicant dated 18 October 2019 and amended submissions by respondent filed 15 November 2019.

[33]  Directions dated 18 September 2019.

[34]  [1984] 1 Qd R 404 (‘Clarke v Japan Machines’).

[35]  Reopening ground is defined in the dictionary Schedule 3 of the QCAT Act.

[36]  Subsection 1 of s 139 does not prevent the tribunal from hearing and deciding other related issues in the proceeding. See ss 140(1) and (2) of the QCAT Act.

[37]  QCAT Act, ss 140(5) and 140(6).

[38]  QCAT Act, s 138(5).

[39]  QCAT Act, s 141(2).

[40]  QCAT Act, s 140(1)-(3).

[41]  QCAT Act, s 140(3).

[42]  QCAT Act, s 140(4) and (5).

[43]  Section 143A(3)(a)(ii).

[44]  In the case of the grant of the reopening application, the appeal will relate to the new final decision in the form provided in s 140(4). In the case of the refusal of the reopening application, the appeal will relate to the new final decision which will be in the same form as the original decision provided by the tribunal.

[45]  See s 141(2) of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    Stanton v Electrics Downunder

  • Shortened Case Name:

    Stanton v Electrics Downunder

  • MNC:

    [2020] QCATA 142

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Burke

  • Date:

    01 Oct 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Brakatselos v ABL Nominees Pty Ltd (2012) 36 VR 490
2 citations
Jump To
Cite 1 - (2012) 36 VR 490
Cite 2 - (2012) 36 VR 490
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 404
Cite 2 - [1984] 1 Qd R 404
Fox v Percy (2013) 214 CLR 118
2 citations
Jump To
Cite 1 - (2013) 214 CLR 118
Cite 2 - (2013) 214 CLR 118
Lindgren v Aaron Trigg Painting [2011] QCATA 267
2 citations
Jump To
Cite 1 - [2011] QCATA 267
Cite 2 - [2011] QCATA 267
Mulholland v Mitchell (1971) AC 666
2 citations
Jump To
Cite 1 - (1971) AC 666
Cite 2 - (1971) AC 666
Mulholland v Mitchell [1971] All ER 307
2 citations
Jump To
Cite 1 - [1971] All ER 307
Cite 2 - [1971] All ER 307
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235
3 citations
Jump To
Cite 1 - (1987) 9 NSWLR 235
Cite 2 - (1987) 9 NSWLR 235
Cite 3 - (1987) 9 NSWLR 235
Stanton v Queensland Building and Construction Commission [2018] QCAT 271
2 citations
Jump To
Cite 1 - [2018] QCAT 271
Cite 2 - [2018] QCAT 271

Cases Citing

Case NameFull CitationFrequency
Hall v Queensland Building and Construction Commission [2024] QCAT 5822 citations
1

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