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- Leeds v Turner t/as design2BUILD[2021] QCATA 85
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Leeds v Turner t/as design2BUILD[2021] QCATA 85
Leeds v Turner t/as design2BUILD[2021] QCATA 85
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Leeds v Turner t/as design2BUILD [2021] QCATA 85 |
PARTIES: | CHRISTINE JOY LEEDS (applicant/appellant) |
v | |
CHRIS TURNER T/AS DESIGN2BUILD (respondent) | |
APPLICATION NO: | APL255-20 |
ORIGINATING APPLICATION NO: | BDL290-19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 25 June 2021 |
HEARING DATE: | 9 June 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where the applicant had hired the respondent to perform building work – where the applicant claims that the building work was left incomplete – where, due to the COVID-19 pandemic, the Tribunal hearing was conducted via telephone – where the applicant presented their evidence but then their phone connection to the Tribunal disconnected – where applicant did not hear the evidence of the respondent and had no opportunity to cross-examine or make final submissions – where learned member found that there was insufficient evidence to allow the applicant’s claim – whether the applicant was denied natural justice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 142, s 146, s 147 Ericson v Queensland Building Services Authority [2013] QCA 391 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Harrison & Anor v Meehan [2017] QCA 315 Kehl v Board of Professional Engineers Queensland [2010] QCATA 58 Nobarani v Mariconte (2018) 265 CLR 236 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self represented |
Respondent: | Self represented |
REASONS FOR DECISION
- [1]On the 5th August 2020 the tribunal dismissed Ms Leeds’s application for a domestic building dispute.[1] Ms Leeds has appealed the decision.
The proceedings below
- [2]Ms Leeds claimed that the parties entered into a building contract on 11 February 2019, that the contract price was $25,000.00, that the building works commenced on 24 October 2018 and that the works remained incomplete. Ms Leeds sought orders that Mr Turner refund to her the amount of $25,000.00 or alternatively that the tribunal ‘rewrite the contract as per the Master’s (sic) Builders request to Christopher Turner.’ Ms Leeds said the reason the orders should be made was ‘As attached especially ‘unfair terms’ due to constant unauthorised changes to the contract’. Attached to the application were a number of documents. The documents did not greatly assist in clarifying the various claims and assertions made by Ms Leeds.
- [3]Mr Turner agreed that the parties had entered into a building contract. He said that the building works had been completed and that, after Ms Leeds had made a complaint, the Queensland Building and Construction Commission investigated and determined that no further work was required to be undertaken by him. Attached to Mr Turner’s response was a QBCC building inspection report identifying four items of complaint. Two of the items were identified as contractual issues and one of the items was identified as being outside the ambit of building work under the Queensland Building and Construction Commission Act 1991 (Qld). The QBCC declined to deal with these three items. In respect of the remaining item, the QBCC concluded that there was no evidence of defective construction practices by Mr Turner.
- [4]The proceedings below progressed in the usual fashion. Following a compulsory conference, the tribunal made directions for the filing of statements of evidence by the parties.
- [5]The hearing took place on 3 August 2020. At this time the tribunal had in place specific arrangements to manage the exigencies of the COVID-19 pandemic. These arrangements required the parties to attend the hearing by telephone. Ms Leeds and Mr Turner gave evidence. Attempts were made during the hearing to telephone a witness relied upon by Ms Leeds. I will return to this issue later in the reasons.
- [6]After Ms Leeds had finished giving her evidence her phone line disconnected from the conference call being managed from the hearing room. Several attempts by the tribunal hearing support officer to reconnect Ms Leeds were unsuccessful. The learned member then continued the hearing in the absence of Ms Leeds. Mr Turner gave evidence following which the learned member reserved his decision.
- [7]At the appeal hearing Ms Leeds was asked about being disconnected from the teleconference. Ms Leeds said that she had been experiencing problems with her telephone service provider ‘for months’.
- [8]The learned member gave his decision on the 5th August 2020.
- [9]The learned member found:
- (a)The parties had entered into an agreement for the performance by Mr Turner of domestic building work;[2]
- (b)
- (c)No cogent or credible evidence of defective building work was provided by Ms Leeds to establish a breach of the agreement between the parties or a breach of duty;[4]
- (d)No evidence of causation had been adduced;[5]
- (e)The only independent evidence of the standard of workmanship was a report from the Queensland Building and Construction Commission that did not identify any defective workmanship;[6]
- (f)Ms Leeds provided no evidence of the value of the alleged defective work;[7]
- (g)No cogent evidence had been placed before the tribunal to support a claim by Ms Leeds for total failure of consideration or a claim for liquidated or unliquidated damages;[8]
- (h)Ms Leeds had failed to establish her claim to the requisite standard of proof.[9]
- (a)
- [10]It is against this background that I now turn to consider the grounds of appeal.
Grounds of appeal
- [11]Ms Leeds relies upon the following grounds of appeal:
- (a)Deliberate deceit by the learned member;
- (b)Failure by the learned member to find that photographs on a USB device filed as part of Ms Leeds’s evidence were sufficient evidence of Mr Turner’s non-compliance with the contract.
- (a)
- [12]Attached to the Application for leave to appeal or appeal is a statutory declaration by Ms Leeds. The document is in part a somewhat meandering series of allegations regarding misconduct by the tribunal, the QBCC and Mr Turner which are unrelated to the decision and in part an attempt by Ms Leeds to re-argue her case including by adducing fresh evidence. Attached to Ms Leeds’s statutory declaration are a number of documents including a copy of the learned member’s reasons for decision. Ms Leeds has made various notations on the document, marking various passages of the reasons ‘true’ and ‘false’ and striking through the cases cited with the words ‘irrelevant and undue influence’.
- [13]The first ground of appeal appears to be based solely on Ms Leeds’s disagreement with the learned member’s finding that there was no cogent or credible evidence to support the allegations of defective building work. In relation to the second ground of appeal, Ms Leeds asserts that the photographs on the USB device ‘prove the contract was unlawfully varied without any legitimate variation … and the work is incomplete.’ She also says that the learned member did not ‘adequately cite or quote from my information in his decision.’
- [14]Ms Leeds’s appeal submissions offer no real assistance in understanding the grounds of appeal, being in large part a series of confusing, baseless, and in some cases scandalous, allegations regarding a range of persons and matters wholly unconnected with the substantive issues.
- [15]At the hearing of the appeal Ms Leeds was given the opportunity to clarify the grounds of appeal and to identify what she asserted was error in the decision below. Ms Leeds again referred to the asserted error by the learned member in not referring to the photographs contained on the USB device and the inability of a witness, Mr Corrin, to attend the hearing. Beyond these matters, Ms Leeds’s oral submissions were of little assistance.
Appeals – the statutory framework
- [16]
- [17]In deciding an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter to the tribunal (either as originally constituted or differently constituted) for reconsideration.[12]
- [18]Subject to leave to appeal being granted, if an appeal is against a decision on a question of fact only or a question of mixed law and fact, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal.[13] In deciding the appeal, the appeal tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the tribunal (either as originally constituted or differently constituted) for reconsideration.[14]
- [19]The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?;[15] is there a reasonable prospect that the applicant will obtain substantive relief?;[16] is leave necessary to correct a substantial injustice to the applicant caused by some error?;[17] is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[18]
- [20]If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the tribunal for reconsideration.[19]
- [21]If different grounds of appeal raise questions of law and questions of fact or mixed law and fact, it is appropriate to address first those grounds involving questions of fact or mixed law and fact. If leave to appeal is granted then the appeal must be decided by way of rehearing and all of the matters the subject of the grounds of appeal should be dealt with in the rehearing, although the Appeal Tribunal is not required to address distinctly each question raised by an appellant.[20] It is sufficient that the reasons of the Appeal Tribunal explain how its conclusion is reached.[21]
Consideration
- [22]The way in which the hearing was conducted raises the question of whether Ms Leeds was afforded procedural fairness.
- [23]As I have observed, after Ms Leeds finished giving her evidence, and before Mr Turner commenced giving his evidence, the telephone call to Ms Leeds was terminated. Just how and why this situation came to pass is not clear.
- [24]The learned member said this at the commencement of the hearing:
Now, Ms Leeds and Mr Turner, I will tell you both that I have the read the material and submissions that both of you have filed with the tribunal. How we will proceed is that, Ms Leeds, you will give your evidence first, and then your witness will give their evidence, and then, Mr Turner, you will give your evidence, and then, Ms Leeds, you’ll make your submissions, and then, Mr Turner, you’ll make your submissions, then, Ms Leeds, you’ll make final submissions.[22]
- [25]After Ms Leeds had finished giving her evidence, the learned member asked Ms Leeds to remain connected to the conference call while Mr Turner gave evidence.[23] Shortly after Mr Turner had been affirmed, the tribunal hearing support officer brought to the attention of the learned member that Ms Leeds was no longer connected to the hearing room conference call.[24] The learned member asked the hearing support officer to attempt to telephone Ms Leeds.[25] The hearing support officer responded by advising that he had attempted to telephone Ms Leeds on two occasions.[26] A further attempt by the hearing support officer to telephone Ms Leeds was unsuccessful.[27] At this point the learned member stated: ‘All right. Well, we have tried.’[28]
- [26]The hearing then continued in the absence of Ms Leeds.
- [27]
- [28]It is the application of the fair hearing rule that is relevant for present purposes. What fairness requires will depend on the circumstances of the particular case. The fair hearing rule requires that a party has the opportunity to know the case against them, the opportunity to present their case, the opportunity to cross examine witnesses and the opportunity to make submissions. The right to a fair hearing is recognised in the Human Rights Act 2019 (Qld).[31]
- [29]As I have observed, the hearing below was conducted by telephone against the background of the impact of the COVID-19 pandemic upon the operation of the tribunal. The learned member clearly set out at the commencement of the hearing the way in which the proceedings would be conducted. He noted that Ms Leeds would give her evidence followed by Mr Turner and that each party would then be given the opportunity to make submissions. As events transpired, Ms Leeds was denied the opportunity to cross examine Mr Turner and make final submissions.
- [30]Ms Leeds has not raised denial of procedural fairness as a ground of appeal and neither party has made submissions regarding the way in which the hearing was conducted. I will return to this issue later in the reasons.
- [31]Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach, or the decision may have turned on an issue different from that which gave rise to the breach of natural justice.[32]
- [32]
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact: Supreme Court Rules O.58 rr.6 and 14. However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.[34]
- [33]In this case, Ms Leeds did not have the opportunity to either cross examine Mr Turner or to make final submissions.
- [34]It might be suggested that, noting the manner in which Ms Leeds conducted the proceedings below, including the hearing, it was unlikely cross examination of Mr Turner or the opportunity to make final submissions might have had a bearing upon the final outcome. However a note of caution must be sounded in approaching the issue of the denial of procedural fairness by reference to what might have happened at the hearing. In Nobarani v Mariconte[35] the High Court stated that it would be an error for an appellate court (or in this case, a tribunal) to attempt to assess the impact of a denial of procedural fairness by conducting a hypothetical trial.[36]
- [35]Once it became apparent that Ms Leeds was no longer connected to the hearing conference call and could not be reconnected, it was open to the learned member to have adjourned the hearing. Ms Leeds had, until the time she was disconnected from the conference call, participated fully in the hearing. There was little reason to suppose that Ms Leeds had simply chosen to abandon her attendance at the hearing. At that stage of the hearing Mr Turner had yet to give his evidence and there was every reason to suppose that Ms Leeds would want to cross examine Mr Turner. Ms Leeds was denied the opportunity to cross examine Mr Turner about the alleged defective and incomplete work and to make final submissions to the learned member.
- [36]The procedure adopted by the tribunal below failed to afford Ms Leeds a fair opportunity to be heard. It follows that, unless it can be shown that the failure did not deprive Ms Leeds of the possibility of a successful outcome, a denial of procedural fairness is established.[37]
- [37]In the reasons for decision the learned member referred to the absence of evidence regarding defective building work. The learned member referred to the building inspection report by the QBCC. However the QBCC report dealt only with defective work. It did not address contractual issues or work that was not ‘building work’ under the QBCC Act. There is a distinction to be drawn between ‘domestic building work’ on the one hand and ‘building work’ on the other. Depending upon the relevant facts of the particular case, the former may be broader in scope than the latter. Accordingly, the QBCC report was not determinative of whether building work undertaken by Mr Turner had been carried out in conformity with the contract.
- [38]In the reasons for decision, the learned member stated that Ms Leeds had not provided any evidence of the value of the alleged defective work. Presumably this was a reference to the cost of rectification. The learned member held that the tribunal cannot award amounts claimed without proof of the amount and how it has been calculated and found that there was insufficient evidence to support the claim by Ms Leeds. However, in deciding a building dispute the tribunal is not confined to awarding damages. The tribunal may order rectification or completion of defective or incomplete building work.
- [39]The finding by the learned member that there was an absence of evidence in relation to the various claims by Ms Leeds does not force the conclusion that the outcome would not have been different had Ms Leeds been given the opportunity to cross examine Mr Turner. Cross examination may have elicited evidence of items of building work that did not conform with the terms of the contract or evidence regarding items of building work in relation to which the tribunal’s power to order rectification may have been enlivened. It follows that Ms Leeds was deprived of the possibility of a successful outcome and that in proceeding with the hearing in her absence, Ms Leeds was denied procedural fairness.
- [40]Earlier in these reasons I referred to the issue of the denial of procedural fairness not being raised by Ms Leeds as a ground of appeal. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd[38] the High Court considered an appeal from the New South Wales Court of Appeal. The Court of Appeal had decided an appeal based upon an independent ground not pleaded or argued before the trial judge or on appeal. The High Court had this to say:
… The relevant part of the Court of Appeal’s judgment would have come as a complete surprise to all parties. The Court of Appeal said that the question of restitution-based liability “was not specifically exposed in any detail by the parties but nevertheless warrants consideration as it bears upon the true foundation of the first limb of Barnes v Addy upon which Say-Dee did clearly rely”. The true position, as counsel for the respondent accepted with commendable candour and straightforwardness during argument on the special leave application, is that the question was not discussed at all — specifically or non-specifically, in detail or not in detail. It is conceivable that the appellants might have wished to defeat restitution-based liability, not merely by advancing argument about its want of intellectual merit and its inconsistency with Australian authority, but also by calling evidence to show, for example, a change of position.
And the relevant part of the Court of Appeal’s judgment was also unjust to the respondent, which might have wished to say something against deciding the case on that basis, or in that particular way. The judgment, which states no reason why restitutionary liability should be recognised, conveys the impression that the result was so foreordained and so inevitably correct that it was not necessary to seek any assistance, however modest, from the respondent. For its part, the respondent, which has its own good reasons for being aggrieved about the step which the Court of Appeal took, offered only the most lukewarm of support for the reasoning in this Court, and then only “very much as a subsidiary argument”. The Court of Appeal’s conduct contrasts with that of Hansen J in Koorootang Nominees Pty Ltd v Australia and New Zealand Banking Group Ltd: although he said he favoured strict liability based on restitution, he declined to decide the point in issue in view of the fact that the plaintiff in that case had not conducted its case on that basis.[39]
- [41]Farah Constructions Pty Ltd can, in my view, be distinguished for present purposes. Firstly, this is not a case where the ground of appeal in question involves an issue which could have been agitated at first instance. Secondly, any submissions which might be made by the parties on the issue must be confined to the impact of Ms Leeds not being given an opportunity to cross examine Mr Turner and make final submissions on the final outcome and the possibility of whether the outcome of the matter might have been different. As I have noted, it would be impermissible to undertake a hypothetical trial and therefore what the parties have to say about what Mr Turner’s evidence might have been cannot be speculated upon nor taken into consideration. Thirdly, procedural fairness is the fundamental entitlement of every person appearing before this tribunal and is of such singular importance to the rights of parties that the denial of procedural fairness to Ms Leeds must be remedied.
- [42]The failure to afford Ms Leeds procedural fairness denying Ms Leeds the possibility of a different outcome in the proceedings below was an error of law.
- [43]For the foregoing reasons the appeal must be allowed, the decision below set aside and the matter returned to the tribunal for reconsideration according to law and in accordance with these reasons.
Footnotes
[1] Leeds v Turner t/as design2BUILD [2020] QCAT 300.
[2]Reasons at [5].
[3]Reasons at [5].
[4]Reasons at [6].
[5]Reasons at [6].
[6]Reasons at [6].
[7]Reasons at [7].
[8]Reasons at [7].
[9]Reasons at [13].
[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(1).
[11]Ibid, s 142(3)(b).
[12]QCAT Act, s 146.
[13]Ibid, ss 147(1), (2).
[14]Ibid, s 147(3).
[15] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[16] Cachia v Grech [2009] NSWCA 232, [13].
[17] Kehl v Board of Professional Engineers Queensland [2010] QCATA 58.
[18] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.
[19] Ericson v Queensland Building Services Authority [2013] QCA 391.
[20] Harrison & Anor v Meehan [2017] QCA 315.
[21]Ibid, per McMurdo JA at [50].
[22]T1-2, lines 12 to 19.
[23]T1-11, line 8.
[24]T1-12, line 10.
[25]T1-12, line 17.
[26]T1-12, line 20.
[27]T1-12, line 25.
[28]T1-12, line 27.
[29]QCAT Act, s 28(2).
[30]Ibid, s 28(3)(a).
[31]Section 31(1).
[32] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
[33](1986) 161 CLR 141.
[34]Ibid, 145.
[35](2018) 265 CLR 236.
[36]Ibid, [41].
[37]per Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [60]; Stead v State Government Insurance Commission [1986] 161 CLR 141.
[38](2007) 230 CLR 89.
[39]Ibid [132]-[133].