Gold Coast Tree Houses Pty Ltd v Lander
[2022] QCATA 100
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- Gold Coast Tree Houses Pty Ltd v Lander[2022] QCATA 100
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Gold Coast Tree Houses Pty Ltd v Lander[2022] QCATA 100
Gold Coast Tree Houses Pty Ltd v Lander[2022] QCATA 100
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Gold Coast Tree Houses Pty Ltd v Lander [2022] QCATA 100 |
PARTIES: | GOLD COAST TREE HOUSES PTY LTD (applicant) v JILL LANDER (respondent) |
APPLICATION NO/S: | APL366-21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 27 June 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Lumb |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought by respondent to minor civil dispute – where leave for legal representation was refused – where respondent has applied for leave to appeal the decision APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – where leave sought to adduce fresh evidence on appeal – whether the evidence could have been available with reasonable diligence at the original application – where non-publication orders sought – whether leave to adduce fresh evidence should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 142, s 146 Alderton & Anor v Wide Bay Constructions Pty Ltd [2017] QCATA 147 Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98 Ericson v Queensland Building Services Authority [2013] QCA 391 Kerr v Paku and Anor [2011] QCATA 157 Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222 State of Queensland and Green v Leadbeatter [2011] QCATA 60 |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
Introduction
- [1]This is an Application for miscellaneous matters filed by the applicant (GCTH) on 28 March 2022 (the Miscellaneous Application). The Miscellaneous Application is brought in an appeal matter commenced by an Application for leave to appeal or appeal filed by GCTH on 20 December 2021 (the Appeal Application). The respondent to both applications (Ms Lander) is the applicant in an Application for minor civil dispute – consumer dispute filed on 13 January 2021 in the Tribunal (the MCD Application).
- [2]By the Appeal Application, GCTH seeks leave to appeal against an interlocutory order made by the Tribunal (constituted by an Adjudicator) on 9 December 2021 (the Order). By the Order, the Tribunal refused leave to GCTH (and the second respondent to the MCD Application, Stayz Pty Ltd) to be legally represented by the attorney for GCTH appointed by an Enduring Power Attorney dated 8 December 2021. The attorney (Mr Ellis) is a practising lawyer at the Gold Coast, Queensland. The Adjudicator did not provide reasons for the making of the Order. The Tribunal’s file indicates that no application for reasons was made by any party.
- [3]The Appeal Application challenges the Order only insofar as GCTH is concerned.
- [4]As here, an appeal against a decision of the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.[1]
- [5]By the Miscellaneous Application, GCTH seeks (in summary) leave to rely upon fresh evidence on the Appeal Application and for non-publication orders in respect of some of that evidence.
- [6]The progress of the MCD Application awaits the determination of the Appeal Application.
The dispute the subject of the MCD Application
- [7]By the MCD Application, Ms Lander seeks a refund of $2,909.40 together with payment of a filing fee of $125.40. The primary amount claimed is said to comprise the cost of seven nights holiday accommodation at a retreat operated by GCTH in the Gold Coast hinterland. Ms Lander claims the primary amount by reason of what she says was a “forced cancellation”. The stay appears to have come to an end after two days. This was the result of a dispute between Ms Lander and the sole director of GCTH (the Director), the catalyst for which appears to have been that one of Ms Lander’s dogs was off the leash within the grounds of the retreat. The grounds of Ms Lander’s claim include (but are not limited to) an alleged failure to comply with statutory guarantees under the Australian Consumer Law, including that GCTH did not provide services with due care and skill and that the services were not fit for the disclosed purpose (of being pet friendly and pet tolerant).
- [8]GCTH opposes the claim in its entirety.
The directions sought by GCTH on the Miscellaneous Application
- [9]By the Miscellaneous Application, GCTH seeks the following directions:
- (a)GCTH be given leave to rely upon fresh evidence in the appeal (as detailed in the Miscellaneous Application);
- (b)GCTH be given 28 days and to obtain fresh evidence from the doctors of the Director which “specifically relate to the issue of the interests of justice in this Appeal”;
- (c)the medical reports and medical evidence pertaining to the Director be subject to a “non-publication/production/privacy order” and only be filed in the Tribunal but not served upon Ms Lander in view of the “sensitive and confidential nature” of the material in the medical reports;
- (d)GCTH also seeks to adduce a copy of text messages from Ms Lander to GCTH (the text messages evidence) from the online platform of the second respondent alleged to confirm that Ms Lander is an enrolled law student and “very experienced in breach of contracts” and also adduce evidence being a copy of a web page from Lander Solicitors Queensland stating “As a family-owned and operated firm, we are a husband and wife team who provide attention to detail for our clientele” and listing Ms Lander’s photo as “Jill Lander Practice Manager” (the web page evidence).
- (a)
- [10]The fresh evidence falls into two general categories, namely medical evidence in relation to the Director’s underlying conditions, and evidence of what is said to demonstrate what I would broadly describe as Ms Lander’s legal skill.
- [11]The Miscellaneous Application is opposed by Ms Lander.
Should leave to adduce the fresh evidence be granted?
- [12]In assessing the basis upon which GCTH seeks to adduce the fresh evidence, I consider a useful starting point is the content of the Grounds of Appeal set out in the Appeal Application. The Grounds are stated as follows:
[The Director] is the Sole Director of [GCTH] and [GCTH] is the party to the accommodation agreement between the parties in this matter. [GCTH] is a legal person at law.
A company can only act through its duly appointed officers. It is lawfully able to be, & entitled to be represented in any tribunal or court by its Directors and Attorneys. S124 of the Corporations Act 2001 (Cth) grants companies the legal capacity and powers of an individual, both in Australia and overseas. A company is authorised to appoint an attorney or an agent on terms determined by the company. The attorney or agent can be either another company or an individual. [Mr] Ellis is the duly authorised attorney for the company and is entitled at law to represent the company in any tribunal or court in Australia, and in these proceedings.
The Corporations Act, 2001 (Cth) is a Federal Act of parliament & it is binding in Queensland and throughout all states & territories of Australia. QCAT is bound to follow Australian laws that apply in its jurisdiction. The Corporations Act, 2001 (Cth) is binding on QCAT.
- [13]In my view, these Grounds raise a question of law. No reference is made to the medical issues faced by the Director nor to Ms Lander’s legal skill.
- [14]In the appeal submissions of GCTH filed on 25 February 2022, GCTH submits that the Director is a “widower” [sic, “widow”] and the mother of an eight month old baby who is time poor and frequently very tired from attending to the business responsibilities and those of the mother and single parent of a young baby and because of her tiredness and lack of time to be able to deal properly with the proceedings, the Director has sought the support of the attorney for GCTH, Mr Ellis.
- [15]Subsequently in the appeal submissions, GCTH refers to the Director suffering from dyslexia and that her dyslexia makes it difficult in times of stress and tiredness to be able to comfortably deal with business for other issues.
Applicable principles in relation to adducing fresh evidence
- [16]In relation to the applicable principles, I respectfully adopt the following observations of Senior Member Howard in Alderton & Anor v Wide Bay Constructions Pty Ltd:[2]
[37] In QCAT, if an appeal is allowed on a question of law only, the appeal tribunal may not rehear the proceeding. An appeal allowed on a question of fact or mixed law and fact, proceeds by way of rehearing before the appeal tribunal.
[38] Fresh evidence may be allowed in appeal proceedings that proceed by way of rehearing, but only in limited circumstances. Although I am not determining the application for leave to appeal or the appeal, I observe some relevant underlying principles. The appeal process is for correcting error made by the original decision-maker. It is not an opportunity for a party to present their case again in order to achieve a different outcome, or reargue it, merely because the party does not like or agree with the outcome/decision of the original tribunal. Where required, leave to appeal will generally only be granted when there is a reasonably arguable case of error in the primary decision; reasonable prospects of substantive relief and there is a necessity to grant leave to correct a substantial injustice.
[39] The principle of finality in litigation counts against admitting fresh evidence on appeal. Parties are expected to act in their own interests and make their own case fully in the first hearing.
[40] In an application for leave to rely upon fresh evidence concerning evidence that did not exist at the time of the original hearing, to succeed, an applicant must generally show as follows:
a) That the evidence could not have been available with reasonable diligence for the original hearing;
b) That if it was allowed to be relied upon it probably would have had an important impact on the result of the case; and
c) That the evidence is credible.
(citations omitted)
- [17]The Tribunal’s power to allow fresh evidence (on appeal) is not a mechanism by which parties can repair the holes in their original case.[3]
- [18]I will now address each of the categories of fresh evidence in turn.
The medical evidence
- [19]In a written reply by GCTH filed on 31 March 2022, signed by Mr Ellis as “Attorney & Lawyer” for GCTH, reference was made to a further letter that would be sent to the Tribunal submitting medical reports about the Director which, it was submitted, would explain how the conditions suffered by the Director impacted on her life and added to the stress she was under. Reference was also made to GCTH seeking to place before the Tribunal a further medical report which had been requested (but not received).
- [20]The Tribunal file indicates that on 31 March 2022, Mr Ellis emailed a copy of two separate medical reports in relation to the Director. The first was dated 9 September 2004. The second was dated 19 February 2011.
- [21]It appears from the Tribunal file that the foreshadowed further report has not been provided by GCTH to date.
- [22]With respect to the medical reports presently provided by GCTH, I consider that GCTH should not be granted leave to adduce such evidence for each of the following reasons.
- [23]First, GCTH has failed to demonstrate that this evidence could not have been available with reasonable diligence at the date of the original application pursuant to which the Order was made. Given the date of the respective reports, it seems apparent that this could not have been demonstrated.
- [24]Second, in the absence of reasons for the making of the Order, I infer from the Grounds of Appeal and the content of both the original appeal submissions and the reply by GCTH, that GCTH did not rely on the Director’s dyslexia (or a related condition) as a ground upon which the Tribunal should give leave for GCTH to be legally represented by Mr Ellis. In its reply, GCTH submits that it was only when Ms Lander delivered her response to the “Appeal decision” that GCTH became aware that Ms Lander was going to suggest that a person had to be of “impaired capacity” to be legally represented in the Tribunal. However, if there is substance in Ms Lander’s submission (and I express no concluded view in this regard), GCTH’s application to adduce further evidence appears to amount to an attempt to repair holes in its original case. As observed by Senior Member Howard in Alderton, the appeal process is for correcting error made by the original decision-maker and is not an opportunity for a party to present their case again in order to achieve a different outcome, or reargue it, merely because the party does not agree with the outcome or decision.
- [25]Third, GCTH seeks to rely upon the medical reports yet also seeks to preclude Ms Lander from being provided with those reports. Given that GCTH seeks to rely upon the reports to demonstrate that it is in the interests of justice that GCTH be legally represented, I consider that it would be contrary to the rules of natural justice[4] to deny Ms Lander access to the evidence said to support GCTH’s case in this regard. Further, without expressing any view about the merits of the Appeal Application, it is unclear how the Director’s underlying conditions (said to be addressed by the medical reports) would justify GCTH being given leave to be represented by Mr Ellis rather than another person who is not an Australian legal practitioner (or government legal officer).[5] This is not to suggest that there could never be circumstances in which a party to an application could be denied access to evidence sought to be relied upon by another party; rather, in this case, I consider that Ms Lander would be denied natural justice because she would be deprived of the opportunity to consider and make submissions in relation to, for example, the weight to be attributed to those reports, including whether they could justify an order that GCTH be legally represented.
- [26]Fourth, as the Grounds of Appeal set out in the Appeal Application presently stand, the medical evidence would not be relevant to the appeal (or admissible in any event). In my view, such evidence would not be relevant to the question (or questions) of law raised by GCTH. In terms of admissibility, if leave to appeal were granted, the appeal would be determined pursuant to s 146 of the QCAT Act on a question of law. Such an appeal is not by way of rehearing and, in my view, fresh evidence would not be admissible in that event.[6]
- [27]For the above reasons, I consider that leave to adduce the fresh evidence comprising the medical reports should be refused.
- [28]Insofar as the orders sought on the Miscellaneous Application relate to a medical report or medical evidence still to be obtained, I consider that, on any view, the making of a prospective order in the terms sought would not be appropriate. In my view, any application to adduce fresh evidence must necessarily identify the specific evidence to be relied upon to enable the Tribunal to address the relevant factors as to whether leave to adduce such evidence should be granted.
The non-medical evidence
- [29]With respect to the text messages, GCTH submits, in the “Amended Applicant’s Appeal Submissions” dated 28 March 2022, that the texts were sent to the Director on 21 December 2020 and, further, formed part of the material Ms Lander filed with her MCD Application. Even if it were assumed that such material cannot be considered by the Appeal Tribunal on the hearing of the Appeal Application (and I express no view in this regard), it is plain that such evidence was reasonably available to GCTH at the date of the application for leave to be represented. For this reason alone, I consider that leave to adduce such evidence should be refused. Further, I am not satisfied that GCTH relied upon an argument before the Adjudicator that leave to be legally represented should be granted because of some legal skill (be it through education or experience) obtained by Ms Lander. This provides a further basis to refuse leave.
- [30]With respect to the evidence of the web page said to be from the Lander Solicitors Queensland website, I consider that GCTH has also failed to establish that this material was not reasonably available as at the date of the interlocutory application in the MCD proceeding. Further, I am not satisfied that such evidence, even if adduced, probably would have had an important impact on the result of the case. Such evidence does not support a conclusion that Ms Lander has any legal education or legal experience, much less that it is of such a nature as would persuade the Tribunal that GCTH should be legally represented by Mr Ellis (a practising lawyer) at the hearing of the MCD Application. I also repeat and rely upon the matters set out at paragraph [26] above. For these reasons, I consider that leave to adduce such evidence should be refused.
Conclusion
- [31]For the reasons set out above:
- (a)the application for leave to adduce the fresh evidence (as presently identified) is refused;
- (b)there is no proper basis for making an order giving GCTH 28 days (or any other period) to obtain further medical evidence;
- (c)given the refusal of leave, the question of making non-publication (or similar) orders does not arise; and
- (d)the Miscellaneous Application should be dismissed.
- (a)
Order made
- [32]The Application for miscellaneous matters filed on 28 March 2022 is dismissed.
Footnotes
[1]See s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
[2][2017] QCATA 147 at [37]-[40].
[3]Kerr v Paku and Anor [2011] QCATA 157 at [7], cited with approval in Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222 at [9].
[4]It is a mandatory requirement of the QCAT Act that the Tribunal must observe the rules of natural justice: see s 28(3)(a).
[5]I note that both parties are entitled to obtain and benefit from legal assistance, without leave, in advance of (but not at) the final hearing of the MCD Application: State of Queensland and Green v Leadbeatter [2011] QCATA 60 at [20]; Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98 at [6].
[6]See Ericson v Queensland Building Services Authority [2013] QCA 391 at [11]-[13].