James v Tottman (No.2)[2022] QCATA 10

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an appeal, or application for leave to appeal, from the decision of a Member of the Tribunal in a building dispute. The respondent was the owner of residential premises at which the appellant did some work in late 2017 and early 2018, which led to the dispute before the Tribunal. That came on for hearing on 26 June 2019, but the appellant did not appear. He told me that at the time he was working in New South Wales, and made a mistake about the date; he accepted that it was his fault that he did not attend the hearing. The Member proceeding with the hearing in the absence of the appellant,^[1] hearing oral evidence from the respondent and a witness, and on 26 May 2020 gave a decision in favour of the respondent, ordering the appellant to pay him $18,167 for the claim and $326 by way of costs.

The decision of the Member

2. [2]
   The Member found that there was a contract between the parties for the appellant to do certain work for the respondent: prepare for and lay turf in the yard front and back; tile around the swimming pool; and construct a deck. This was a contract to do building work, and the appellant was not a licenced builder; as a result he was not entitled to recover or retain any remuneration in respect of the work.^[2] The appellant had been paid $11,000, which was recoverable as a result. The contract was enforceable by the respondent, so that the appellant was liable for damages for breach of the contract. The laying of the turf had been defective, in various respects, and the Member allowed $250 for the cost of killing nut-grass in the soil, and $4,417 for laying fresh turf. There had been damage to a retaining wall which would cost $750 to repair, and the site had to be cleaned up, at a cost of $7,750. There was also a finding that the contract had been terminated.
3. [3]
   As the Member noted, the appellant disputed that the contract was with him, and said that it was with a Mr Weies, for whom he had done some work. Mr Weies was called as a witness, and denied entering into a contract with the respondent; he said he just passed on an email from the appellant to the respondent, and some other information. That was also the evidence of the respondent, who put before the Tribunal some emails from the appellant, and tendered an invoice and a covering letter, sent in May 2018: Exhibits 6, 7. This evidence was accepted by the Member.

Leave to appeal

4. [4]
   In the Application for leave to appeal or appeal filed by the appellant on 31 July 2020 he raised a number of matters. The first was that, under the decision of the Member, the respondent received a “windfall” and was “unjustly enriched”. This was the same argument addressed to the Court of Appeal in Cook’s Construction Pty Ltd v SFS 007 298 633 Pty Ltd [2009] QCA 75, and rejected by that Court, on the basis that that was the result of the operation of legislation put in place specifically to deter people from undertaking building work unless they held the relevant licence under the Act.^[3] The adverse effects of that prohibition are mitigated by the operation of s 42(4) of the Act, which provides a limited form of relief in respect of unlicenced work, but the Court held that it was a matter for the builder to claim and prove the amount recoverable under s 42(4), which that builder had not done.
5. [5]
   In that respect, the appellant is in the same position. He did not pursue a claim under s 42(4), which should have been pursued by filing a Counter-application under the Rules.^[4] That could have been formulated as a conditional application, advanced if he were found to be the party to the contract, which he disputed. Had he done so, he may have been able to recover some of the cost of materials supplied to the site. He told me he spent more than the $11,000 paid to him on materials, and a number of invoices were attached to an affidavit by him which the member did consider.^[5] On the respondent’s case, some of those materials were defective; for example, the soil under the turf, which was said to have been contaminated by nut grass. This is the answer to the second point, and also to the sixth point, raised by the appellant in the Application for leave to appeal and appeal, that no consideration was given by the Member to the cost of materials supplied.
6. [6]
   The third point was that the respondent had failed to mitigate his loss in respect of the damage to the turf, in that he had failed to water it after it was laid. The difficulty with this argument is that it was not advanced at the hearing. Although someone claiming damages for breach of contract has a duty to mitigate, it is the responsibility of the party against whom the claim is made to raise that issue, and prove it, and the appellant neither filed a Response to the claim raising the issue of failure to mitigate, nor raised it in other material placed before the Tribunal before the hearing. Again, this was just not an issue at the hearing, so there was no error in not dealing with it. In any case, the evidence of the turf supplier was that, when the turf was delivered as arranged, the ground had not been prepared to receive it, so that laying it, rolling it and watering it was delayed, which would have been bad for it in hot weather.
7. [7]
   The next point raised in the Grounds of Appeal attached to the Application was that the Member had failed to consider that the definition of building work in the Act excluded excavation and earthworks under the relevant regulations.^[6] The prohibition in the Act s 42(3) applies only to “building work” which is not covered by a licence, so to the extent that the appellant did work which was not “building work” he may well have had a claim for reasonable remuneration for such work, which would not have been subject to the limitation imposed by s 42(4).^[7] But again this issue was not raised by the appellant before the hearing, by way of Counter-application, so it was not in issue at the hearing, and there was therefore no error on the part of the Member in not considering it. As well, he provided no evidence of the reasonable value of such excavation work and earthworks that he did.
8. [8]
   The next point was an alleged error of fact, as to who the parties to the contract were. This was the matter of substance argued before me, advancing the proposition that it was really Mr Weies who had entered into the contract with the respondent. In order to advance this argument, the appellant requires leave to appeal, because it involves a question of fact.^[8] No criticism could be made of the finding of the Member on the basis of the evidence before him at the hearing. The appellant seeks to rely on additional evidence not before the Member at the hearing. In that respect he also faces difficulties, in that, although the QCAT Act s 147(2) gives the Appeal Tribunal a discretion to receive additional evidence not at the original hearing, it is well established that this will be allowed on limited grounds only.

Additional evidence on appeal – the law

9. [9]
   The basic approach to additional evidence on appeal is conditioned on the proposition that the hearing at first instance is the time for the parties to put forward their best cases, and should not be regarded as some sort of preliminary round, before a fuller hearing on appeal.^[9] Additional evidence on appeal about matters occurring before the hearing is accordingly usually only allowed when:

   1. (a)
      there is some good reason why the evidence was not used at the original hearing, such as that it became available to the party seeking to rely on it only after the original hearing, and it could not with due diligence have been secured before the hearing;
   2. (b)
      The evidence be apparently cogent; and
   3. (c)
      The evidence would be likely to have a significant effect on the outcome.^[10]
10. [10]
    For practical purposes, the reasons why the evidence now sought to be relied on by the appellant was not put before the original hearing are that the appellant did not attend that hearing, and that (not having legal assistance) he did not prepare properly for it, by filing in advance relevant documents and submissions. Indeed, there has been a theme of persistent failure to comply with the procedures and directions of the Tribunal in this matter. 

Evidence at the hearing

11. [11]
    At the hearing the respondent gave evidence that he hired the appellant to do certain work around his premises, building a deck for the swimming pool, tiling around the pool and preparing for and laying turf: p 3. He said the appellant represented that he was a builder, and provided a quote to construct a deck around a swimming pool. The quote was attached to the application, and does not identify that it was a quote, or that it was by the appellant. The respondent said the appellant handed him a copy, and referred to it as a quote: p 6. He believed he was contracting with the appellant: p 7. The appellant asked him to pay $11,000 as a deposit to an account, details of which were provided (pp 9-12), and he did so, as shown by a copy of a bank statement: Exhibit 3. He asked for an invoice number for this, but did not receive an invoice: p 52. Materials were delivered and some work was done, but on 6 February 2018 he discovered that the appellant had removed his tools from the site, and the appellant did not return: p 37, p 59. In May he received from the appellant an invoice (Exhibit 6) and a covering letter Exhibit 7. He also gave evidence relevant to damages.
12. [12]
    The Member took him through the appellant’s affidavit filed 25 September 2018, which gave him the opportunity to deny the appellant’s allegations in it. The respondent called as a witness Mr Weies, who denied that he had entered into the contract with the respondent (p 19) and said all he did was introduce the parties,^[11] and help the appellant with his quote which he prepared and emailed: p 42, 43. He denied doing any of the relevant work: p 24. When asked by the member about the wording of the email, and the use of “we”, Mr Weies said that was because he was there to help the appellant if needed, but he was not a party to the contract: p 42, 43.^[12] Mr Weies said that he saw the damage to a wall that the appellant had caused (p 26, 27), and that the appellant had cut an electricity conduit to the pool with his excavator: p 28. He was there when the soil and turf were delivered: p 30. The appellant claimed to have been in the building industry for twenty years: p 20, 21.

Appellant’s proposed additional evidence

13. [13]
    There was therefore ample evidence to support the findings of the Member. Indeed, on this evidence, any other finding would have been surprising. The appellant sought to rely on appeal on the following additional evidence:

    1. (a)
       The print-out of a large number of text messages between him and Mr Weies.
    2. (b)
       Various receipts for materials purchased by him.
    3. (c)
       An affidavit by a person who can say he heard the respondent use a particular expression to the appellant, which he denied using in evidence.
    4. (d)
       Information about the durability of the particular wood delivered for the deck, relied on to show that it would not have rotted in the relevant time.
    5. (e)
       A USB containing a recording of a telephone conversation between the appellant and Mr Weies, in which he says Mr Weies admitted that he had the contract with the respondent.
14. [14]
    Most of these can be dealt with quickly. There were a number of receipts for material purchased by the appellant attached to his affidavit which the Member looked at, so they were clearly before him. They are not additional evidence. The affidavit by the witness about the expression was a peripheral issue, relevant only to the credibility of the respondent, and not the sort of thing admitted as additional evidence on appeal. The information about the timber was also not of great importance, since the respondent did not claim for, and was not awarded, the cost of replacement timber, and the only effect on the amount awarded was that it would have contributed (to an unknown degree) to the cost of “rubbish removal”. The respondent’s point was that the first lot of timber was not used because the builder who finally built the deck was not prepared to use it, as he could not certify it. So items (b), (c) and (d) will not be admitted.
15. [15]
    I should also mention that there was, with these submissions, copies of some emails from Mr Weies. Relevantly, there was the email which was sent with the “quote”, which was expressed in a strange way if he were not a party to it. This was before the Member, who asked Mr Weies (and the respondent) about it, and was conscious of its strangeness. There was an email when Mr Weies passed on an invoice from a hire company for hire of a turf cutter and trailer, for which charges Mr Weies sought reimbursement. This is if anything more consistent with the respondent’s case than with the appellant’s.
16. [16]
    As for the text messages, the position there is much the same. Most are consistent with the contract being with the appellant, or at least not inconsistent with such a situation. On 3 December 2017 Mr Weies passed on a text from the respondent asking “What company does Adam own, is it a building company” to which the appellant replied “Just tell him I own an excavator company called Chevron Industries, tell him I’ve been in the building industry for 20+ years but had to find a different business because of a back injury”. On 18 December 2017 there was a text from Mr Weies speaking about how much he was going to charge, apparently to the appellant for work done. If it was about this job, it was inconsistent with some evidence where Mr Weies said he did not do any of the work (p 1-24), but consistent with the appellant having the contract, and Mr Weies doing this work for him.
17. [17]
    There are copies of texts from the respondent, apparently to Mr Weies, complaining about how long the job was taking, which Mr Weies passed on to the appellant on 22 December 2017. In response there was a text from the appellant which included the statement that he had told “him”, presumably the respondent, that “I was doing it all.” That does not support the appellant’s case. The last text from Mr Weies, on 16 September 2018, was one advising he will not provide a statement, on legal advice. I cannot see how any of this material assists the appellant’s case.

Recording of telephone conversation

18. [18]
    That leaves only the USB, supposedly containing the recording of the conversation. At the moment it is in a sealed envelope, not to be opened except by a Member. The appellant applied previously for it to be returned to him, he said so he could use it in evidence, but a Senior Member refused the application. I have seen the reasons for that refusal, and they are essentially that the appellant had failed to comply with various directions before the hearing, and the time to provide evidence was at or before that hearing, so that the recording should not be available to be used in evidence now. The Senior Member noted that the USB had been provided during a compulsory conference, and that at the end of the conference a direction was made that the USB be placed in a sealed envelope and placed on the file, not to be opened except by the direction of a Member. The reasons why that direction were made do not appear.
19. [19]
    It is true that evidence cannot in general be given of what occurs at a compulsory conference,^[13] but that does not mean that evidentiary documents produced on that occasion, as a means of showing the strength of a party’s case, are somehow sterilised so they cannot be used at a hearing. It may be however that there was another reason why it was sealed up. During the hearing before me the respondent submitted that the recording could not be used as it had been made in breach of the Privacy Act. The relevant Queensland legislation is the Invasion of Privacy Act 1971 (Qld), but that provides that a telephone conversation may lawfully be recorded by a party to it: s 43(2)(a). Such a recording can be used in legal proceedings,^[14] so there is no obstacle to its use under that Act.
20. [20]
    This however is subject to the overriding effect of the relevant Commonwealth legislation, the Telecommunications (Interception and Access) Act 1979 (Cth), which by s 7 prohibits the interception (which includes recording) of a telephone call during transmission. Under s 63(1)(b) of that Act, evidence obtained in breach of that prohibition is inadmissible in legal proceedings.^[15] I understand that the sounds generated by the telephone can be recorded by a recording device without breaching that prohibition, so a device which records the sounds produced by the speaker, and the voice of the person speaking, does not infringe the prohibition in s 7.^[16] Such recording is regarded as occurring after the transmission.
21. [21]
    The appellant claimed that he used a piece of software on his mobile phone which records a call being made.  I expect such software would be recording the electronic impulses generated by the receiver on their way to the speaker, rather than the sound produced by the speaker, and so would be an interception during transmission, made in breach of s 7. In any case, there was no evidence to show that the recording on the relevant USB was not obtained in that way. In the circumstances, it appears to me that it is not admissible in the Tribunal, because of the terms of the Commonwealth Act. If the recording was produced in breach of s 7, and the appellant had appeared at the hearing, and sought to cross-examine Mr Weies using it, he would not have been entitled to do so, and it could not have been tendered by him as a prior inconsistent statement by Mr Weies. Accordingly, this part of the additional evidence the appellant seeks to put before the Appeal Tribunal should not be received.

Conclusion

22. [22]
    On the evidence before the Tribunal on the hearing the proposition that the contract was with the appellant was compelling. In particular, there was the invoice sent later for additional payment, and the covering letter, which were clear admissions that the appellant had been engaged by the respondent. It is difficult to believe that the Fair Word Commission would have suggested such an approach unless the appellant gave them an account consistent with there being a contract between him and the respondent. The additional material sought to be relied on which I have looked at did not provide any persuasive offsetting evidence. I suspect that Mr Weies was more involved in this job than he admitted at the hearing, but that is not sufficient to give rise to any real concern that the finding of the Member was in error.
23. [23]
    Leave to appeal should therefore be refused, on the basis that on the admissible evidence there is no plausible argument that the decision of the Member was in error. Accordingly both the appeal on questions of law and the application for leave to appeal fail.