Hannah v Leer[2021] QCATA 18

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   An Adjudicator ordered Anthony Hannah and Samantha Hannah trading as ABC Termite and Pest Control pay to Clair and Michael Leer the sum of $2,086.00.^[1] Unfortunately, the final Order has a clerical error stating the amount as $2,080.00. The matter will therefore need to be remitted to the original Tribunal to correct this error under its correction powers.^[2]
2. [2]
   However, ABC has applied for leave to appeal the decision on other grounds: that it was denied procedural fairness and the learned Adjudicator’s findings of fact were not open on the evidence.
3. [3]
   In determining whether to grant leave, the Tribunal will consider established principles including:

   1. (a)
      whether there is a reasonably arguable case of error in the primary decision;^[3]
   2. (b)
      whether there is a reasonable prospect that the appellant will obtain substantive relief;^[4]
   3. (c)
      whether leave is needed to correct a substantial injustice caused by some error;^[5] and
   4. (d)
      whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.^[6]

Did the Tribunal afford ABC procedural fairness?

4. [4]
   ABC submitted that it did not receive a Notice of Hearing for 19 August 2019. Nothing turns on this. No hearing was scheduled for 19 August 2019. Rather, a mediation had been scheduled for 20 August 2019. The file shows that a Notice of mediation was sent to ABC on 25 July 2019. ABC did not attend the mediation.
5. [5]
   The purpose of a mediation is to promote settlement.^[7] The mediation was not a hearing to determine the dispute based on findings. Regardless of its non-attendance at the mediation and the reason, ABC had an opportunity to settle the proceeding throughout – including the learned Adjudicator giving it an opportunity during the hearing.^[8]  The hearing proceeded on 2 June 2020. ABC was not denied procedural fairness by not attending the mediation.
6. [6]
   ABC submitted the learned Adjudicator failed to call Ms Hannah and allow her to respond to Mr and Mrs Leer’s claims. It submitted that it was hindered by the telephone hearing by being unable to “layout (sic) evidence and challenged testimony”.^[9] It submitted that it was not given an opportunity to question Mr and Mrs Leer.
7. [7]
   The Tribunal must observe procedural fairness.^[10] However, this is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power.^[11] The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.^[12]
8. [8]
   The Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice^[13] is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.^[14] Within this context, the Tribunal is not bound by the rules of evidence,^[15] and may inform itself in any way it considers appropriate.^[16]
9. [9]
   The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.^[17] In furtherance of this mandate during COVID restrictions, the President of the Tribunal issued a Practice Direction providing for minor civil dispute hearings by telephone.^[18] ABC was sent a “Notice of Hearing – BY TELEPHONE” on 15 May 2020, no fewer than two weeks before the hearing. ABC was given an opportunity to, and did, file its material some ten months before the hearing.^[19] The learned Adjudicator had ABC’s material before him, referring to relevant parts where appropriate.^[20] ABC did not object to the hearing proceeding by telephone or apply for an adjournment, either before or during the hearing. 
10. [10]
    It was not incumbent upon the learned Adjudicator to call upon Ms Hannah to give evidence. ABC had an obligation to act in its own best interests by presenting its case and calling relevant witnesses:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘…the public as a whole, not merely the parties to the proceedings.’ Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.^[21]

11. [11]
    Ms Hannah attended the hearing. She had the opportunity to speak and did so.^[22] The learned Adjudicator asked relevant questions of the parties and gave them an opportunity to respond, referring to supporting material where appropriate. By doing so, he focused on the issues and used time and resources efficiently, consistent with the Tribunal’s mandate. Extending the requirements of procedural fairness beyond this is inconsistent with the QCAT Act and would make the minor civil disputes jurisdiction cumbersome. 
12. [12]
    ABC was given sufficient opportunity to present its case and respond, as shown by it not raising any concerns or seeking a short adjournment at the hearing.  ABC was afforded procedural fairness within the context of the Tribunal’s minor civil disputes jurisdiction. 
13. [13]
    This ground of appeal is dismissed.

Were the findings open on the evidence?

14. [14]
    ABC attached various documents to its submissions and sought to reargue its case by seeking to have evidence reconsidered. That is not the role of the Appeal Tribunal. The appeal process is not an opportunity for a party to again present its case.^[23] It is the means to correct an error by the Tribunal that decided the proceeding.^[24]
15. [15]
    In challenging the learned Adjudicator’s findings, ABC referred to various attachments in its submissions and in later undirected submissions referred to the following:

We also include the copy of Qld Government patient travel document signed with Dr provider No included and my own diary extract of the week June 10 to 16. We also include a copy of the telephone text messages supplied in evidence by the Leer’s (sic) in support of our consideration of Mrs Leers (sic) motivation and a copy of the email sent by the Leer’s (sic) Thursday 17^th September 2020…^[25]

16. [16]
    ABC filed this further submission outside the Appeal Tribunal’s Directions^[26] and without any Directions to do so from the Appeal Tribunal – despite already providing submissions both in its application and later as directed.^[27] ABC’s further unsolicited submissions could raise issues of procedural fairness for Mr and Mrs Leer, who have not been given an opportunity to respond. Making unsolicited submissions is contrary to the Tribunal’s mandate to observe the rules of natural justice and ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.^[28] 
17. [17]
    To the extent that this material is fresh evidence, it is not admitted. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an application for leave to adduce fresh evidence must satisfy three tests:^[29]

    1. (a)
       Could the parties have obtained the evidence with reasonable diligence for use at the trial?
    2. (b)
       If allowed, would the evidence probably have an important impact on the result of the case?
    3. (c)
       Is the evidence credible?
18. [18]
    ABC had an obligation to act in its own best interests, including providing all evidence at the hearing to support its case. ^[30] ABC did not provide any explanation for not providing or referring to this evidence at the hearing.  The onus was always upon ABC to present its case and file or refer to all relevant material at the hearing.
19. [19]
    Even if the evidence were admitted into evidence, it has little evidential weight and is unlikely to affect the outcome of the case. The photographs are not dated, nor is it clear by whom they were taken. Similarly, the text messages and diary notes are not attached to any sworn statement. Moreover, none of the evidence addresses the learned Adjudicator’s key findings that the work was not done in accordance with the contract and that Mr and Mrs Leer terminated the contract for a total failure of consideration.^[31] These findings were open on the evidence.
20. [20]
    The Appeal Tribunal is not satisfied that the evidence referred to by ABC in its submissions is sufficient to displace the learned Adjudicator’s findings of fact relating to the contract and its non-performance. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.^[32] An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.^[33]
21. [21]
    It is implicit that the learned Adjudicator preferred Mr and Ms Leer’s oral evidence and supporting documents over that of ABC. At most, the fresh evidence allows the drawing of a possible alternative inference.  But it does not prove this. Attempting to explain away the learned Adjudicator’s finding with a possible alternative inference does not demonstrate error. A decision cannot properly be called erroneous, simply because the learned Adjudicator preferred one conclusion to another possible conclusion.^[34] 
22. [22]
    The learned Adjudicator referred to the evidence to support his ultimate finding, which he was entitled to weigh accordingly.^[35] Having considered material filed with the application and oral evidence from both parties at the hearing, the learned Adjudicator was in the best position to assess credit and make findings accordingly. Nothing in the material or the transcript persuades the Appeal Tribunal that the learned Adjudicator’s findings were not open to him. His findings were open on the evidence. 
23. [23]
    The appeal process is not an opportunity for a party to again present its case.^[36] It is the means to correct an error by the Tribunal that decided the proceeding.^[37] The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.^[38] A party cannot expect a different outcome by simply re-arguing their case on appeal.
24. [24]
    The learned Adjudicator’s decision was therefore appropriate and the Appeal Tribunal can find no reason to come to a different view.
25. [25]
    This ground of appeal is dismissed.

Should the Appeal Tribunal grant leave to appeal?

26. [26]
    Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.^[39] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.^[40] An application for leave to appeal is not, and should not be, an attempt to reargue a party’s case at the initial hearing.^[41]
27. [27]
    Having read the transcript and considered the evidence, the Appeal Tribunal finds nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting their decision, or was influenced by irrelevant matters. The evidence was capable of supporting the learned Adjudicator’s conclusions.
28. [28]
    There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted.
29. [29]
    Leave to appeal is refused.