James v Tottman[2021] QCATA 90

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Adam James filed an application for leave to appeal or appeal a decision of the Tribunal made on 26 May 2020 in proceeding BDL120-18.
2. [2]
   The stated grounds of appeal are three-fold. Doing the best I can, based on the application, they are briefly summarised as follows:

   1. (i)
      An alleged error of law in failing to consider that Mr Tottman has the benefit of the works at no cost and by ‘windfall’ and been unjustly enriched;
   2. (ii)
      An alleged error of law in failing to take into account the cost of materials; and
   3. (iii)
      An alleged error of fact and law in, it appears, failing to consider whether Mr Tottman failed to mitigate his loss by watering turf as instructed.
3. [3]
   On 11 May 2021, I refused an interlocutory application by the applicant, Mr Adam James, to access an electronic document stored on a USB which had been sealed under a Tribunal order in proceeding BDL120-18.  Mr James has requested reasons for my decision.  My reasons follow.

Background

4. [4]
   In May 2018, Greg Tottman, filed an application for domestic building dispute in the Tribunal, naming Adam James as the respondent. 
5. [5]
   A variety of procedural directions were made by the Tribunal. Mr James was repeatedly non-compliant with directions. On 30 January 2019, another Senior Member held a directions hearing which both parties attended. Among other matters, the Tribunal and the parties discussed various documents that were with the Tribunal’s file.  It is apparent from the recording that Mr James was unable to clearly explain how various documents came to be with the file, nor when and whether he had sent certain documents to the Tribunal or to Mr Tottman. The Senior Member canvassed the matter with the parties. It is apparent that he concluded that the USB formed a part of certain documents handed up to a Member who chaired a Compulsory Conference on 13 August 2018.  Evidence of anything said or done during a compulsory conference for a proceeding is not admissible at any stage in the proceeding.^[1]
6. [6]
   Among other directions made on 30 January 2019, the Tribunal directed as follows:

…

2. 2.If Adam John James fails to comply with Direction 1, Greg Tottman will be entitled to a final decision in the proceeding.

…

7. 7.The USB “stick” and accompanying documents provided by Adam John James to the Tribunal at the Compulsory Conference are to be placed in a sealed envelope marked “Not to be opened without order of the Tribunal, or by a Member, including a Senior Member and Judicial Member, of the Tribunal” and the envelope placed on the Tribunal file. 

7. [7]
   Mr James did not appear to take issue either with the USB and documents having been handed up at the Compulsory Conference, or Direction 7 made by the Tribunal.  He did not seek to appeal the Tribunal’s Direction 7. Indeed later, on 30 May 2019, he made an application for miscellaneous matters seeking to retrieve the USB. The application was refused.^[2] Mr James did not seek to appeal the Tribunal’s order refusing his application.
8. [8]
   As it transpired, Mr James did not comply with direction 1 dated 30 January 2019, nor the Tribunal’s other directions made on that day. Subsequently, the Senior Member listed the domestic building dispute for an oral hearing to assess the amount payable by Mr James.^[3]
9. [9]
   The proceeding was heard on 26 June 2019 by a Member of the Tribunal.  Mr James did not attend the hearing, and it proceeded in his absence. By its decision dated 26 May 2020, the Tribunal ordered that Mr James pay to Mr Tottman an amount of $18,167, plus costs of $326, within 28 days.
10. [10]
    Mr James then filed his application seeking leave to appeal and/or appeal the Tribunal’s decision.
11. [11]
    On 21 January 2021, Mr James filed an application for miscellaneous matters in APL230-20 seeking access to the USB sealed under Tribunal order in BDL120-18, on the basis of his claims that the evidence contained on the USB is crucial variously, to his ‘case’, ‘submissions’, to ‘gather all evidence that is missing that is relevant’ and, his ‘defence submission’.^[4] 
12. [12]
    On 11 February 2021, I made directions in respect of the miscellaneous application, (among others) as follows:

1. 1.Adam James must file in the Tribunal one (1) copy and give to Greg Tottman one (1) copy of any submissions in support of his application for miscellaneous matters filed on 21 January 2021, explaining:

1. (i)
   why he says the documents in the sealed envelope are relevant to the appeal proceeding, given that it was not evidence before the Tribunal below in proceeding BDL120-18;

2. (ii)
   it appears the documents were provided for the purposes of a Compulsory Conference and evidence of anything said or done during a Compulsory Conference is inadmissible, as set out in section 74 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (with exceptions as set out); and

3. (iii)
   any other matters he says are relevant to the Appeal Tribunal’s determination as to whether access to the documents should be granted, by:

4:00pm on 26 February 2021.

2. 2.Greg Tottman must file in the Tribunal one (1) copy and give to Adam James one (1) copy of any written submissions in response, by:

4:00pm on 12 March 2021.

3. 3.Unless otherwise ordered by the Appeal Tribunal, the application for miscellaneous matters filed on 21 January 2021 will be heard and determined on the papers, not before:

4:00pm on 12 March 2021.

13. [13]
    Mr James filed submissions to the effect that the USB contains evidence of a conversation between himself and another person, a Mr Weies, which is relevant to Mr James’s defence to the substantive matters of the dispute (namely, that he was a third party with respect to a contract with Mr Tottman, rather than a party to the contract).  Mr James states that the ‘sealed envelope’ was actually posted to the Tribunal after the Compulsory Conference.^[5]
14. [14]
    In response, Mr Tottman submits that Mr James’ defence has already been refused by the Tribunal at initial hearing based on other evidence.  Otherwise, Mr Tottman’s submissions generally say that Mr James’ submissions lack relevance or that he is unaware of the matters contained in them.^[6]
15. [15]
    Before the application for miscellaneous matters was determined, I conducted a Directions Hearings in the matter on 31 March 2021.  By directions made that day, I gave both parties a further opportunity to file supplementary submissions in relation to the miscellaneous application before it was to be determined not before 4.00pm on 16 April 2021.
16. [16]
    Mr James filed further submissions on 8 April 2021.  These submissions are  more clearly expressed, but in essence repeat his earlier contentions; namely, that the USB was not actually filed at the Compulsory Conference, explaining the nature of the evidence (as earlier set out) the USB is said to contain, and the relevance of the evidence to Mr James’s substantive defence. Mr James further asserts that he attempted to file the USB evidence in the Tribunal, that he is unaware of how it came to be considered to have been filed at a Compulsory Conference; that had he realised it was being treated in that way, he would have taken steps to adduce the evidence on it in another manner; and that it is in the interests of justice that he be given access to the USB for the purposes of filing and serving it and relying upon it in the proceeding.  Further, Mr James submits that he lacks experience in matters of law and has a general lack of sophistication, and that this combined with the history set out explains that it was not due to a lack of reasonable diligence on the part of Mr James that the USB was not before the Tribunal.  Mr James submits that, had the USB been before the Tribunal, it would have resulted in a different outcome to the hearing.
17. [17]
    Mr Tottman filed a letter on 16 April 2021 stating that he had received no submissions.  By email on 21 April 2021, Mr Tottman complained that he received Mr James’ submissions of 8 April 2021 late, on 19 April 2021 at 7:23pm.  He did not otherwise file any submissions in response.

Consideration

18. [18]
    An appeal may be made from a final decision of a non-judicial member of the Tribunal on a question of law alone without leave.^[7] However, on a question of fact or mixed law and fact, an appeal may be made only if the party has obtained the appeal tribunal’s leave to appeal.^[8]
19. [19]
    Assuming for the moment that Mr James has correctly characterised grounds of appeal (i) and (ii) as questions of law, an appeal on a question of law is an appeal in the strict sense and must proceed pursuant to s 146 of the QCAT Act.^[9] If these grounds of appeal, or either of them, were successful (but no error of fact or mixed law of fact was found), there is no element of rehearing in determining an appeal in the strict sense. Consistent with the nature of such an appeal, there is also no provision for leave to be granted for a party to rely upon additional evidence in s 146. On that basis, the miscellaneous application appears to be misguided.
20. [20]
    Now, assuming for the moment that leave to appeal is given in respect of an error of fact or mixed law and fact, the appeal would be decided pursuant to s 147 of the QCAT Act by way of rehearing. In this circumstance, the appeal tribunal may in its discretion allow a party to rely upon additional evidence which was not before the Tribunal when it made the decision appealed.^[10]
21. [21]
    However, the appeal process is for correcting error made by the Tribunal in making its decision. It is not available merely so that a party may make a better case, in the hope of a different result, than it did when the matter was first decided. Parties have a responsibility to conduct their proceedings in their own interest. The QCAT Act provides that a party to a proceeding must act quickly in any dealing relevant to the proceeding.^[11] Finite Tribunal resources for the resolution of disputes are for the benefit of the public as a whole; not only the parties to particular proceedings.^[12]
22. [22]
    By his application for miscellaneous matters, Mr James in effect seeks, in appeal proceedings, to make a better case that he could have made, but did not, in BDL120-18 at first instance. He failed to comply with Tribunal directions to file material and failed to attend the Tribunal hearing.  Although he had in that proceeding belatedly made an unsuccessful application to ‘retrieve’ the USB for use in evidence, he did not seek to appeal the Tribunal’s decision refusing leave to allow him to do so, nor take steps to adduce the evidence in another manner.
23. [23]
    The proceeding was determined on the basis of the evidence before the Tribunal. Mr James’ submissions now assert that he didn’t know, that, or it seems, why, his USB was treated as not being in evidence before the Tribunal. This is patently not so, having regard to the history of the proceeding as set out herein. He attended the Directions Hearing before the Senior Member on 30 January 2019, engaged in a lengthy discussion about the USB, and was present when the Senior Member made the direction about the USB and other documents, requiring that they be placed in a sealed envelope and only opened by order of the Tribunal. Mr James also then made an unsuccessful application on 30 May 2019 seeking access to the USB. I make the observation here that the Tribunal refers, in its reasons for decision dated 26 May 2020, to having regard to other material filed by Mr James, namely an Affidavit of Mr James that was before it, despite his non-appearance at the hearing. ^[13]
24. [24]
    Mr James also says in his most recent submission, that had he been aware the USB was not in evidence, he would have taken steps to adduce the evidence on it in another manner. Plainly, he was aware, and plainly he did not take steps to adduce the evidence in another manner in BDL120-18. 
25. [25]
    Here also, the grounds of appeal sought to be relied upon by Mr James do not include any alleged error said to have been made by the Tribunal in finding that Mr James was the contractor. Further, the recording on the USB is said to confirm, through a recording of dialogue between Mr James and Mr Weies, that Mr James was not the contractor. In Mr James’ affidavit that the Tribunal had regard to, Mr James denied being the contractor. The evidence sought to be adduced from the USB, if Mr James correctly summarises it, would be inconsistent with the direct evidence of Mr Weies that was given before the Tribunal at the hearing.^[14] Mr James’ opportunity to challenge Mr Weies’ evidence, through adducing inconsistent evidence and through cross-examination, was at the hearing. He did not appear at the hearing. It seems he seeks instead now on appeal to do so, despite having failed to act in his own interests to-date, at the expense of Tribunal resources and inconvenience and disadvantage of Mr Tottman.
26. [26]
    Finality in litigation is an important principle.^[15] I have concluded that Mr James has not acted quickly, or in a manner so as to protect or advance his interests, throughout the proceedings.
27. [27]
    I am not satisfied that it is in the interests of justice to grant the application for miscellaneous matters. The application should be refused.

Orders

28. [28]
    I make orders accordingly.