Leach v Island Curtains `N Verticals Pty Ltd
[2022] QCATA 9
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Leach v Island Curtains `N Verticals Pty Ltd[2022] QCATA 9
- Add to List
Leach v Island Curtains `N Verticals Pty Ltd[2022] QCATA 9
Leach v Island Curtains `N Verticals Pty Ltd[2022] QCATA 9
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Leach v Island Curtains `N Verticals Pty Ltd [2022] QCATA 9 |
PARTIES: | dennis leach (applicant) v island curtains `n verticals pty ltd (respondent) |
APPLICATION NO: | APL371-20 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 14 January 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: |
|
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – CONSUMER DISPUTE – where agreement for provision of curtains and similar furnishings – where respondent delivered statement of case on eve of hearing – where applicant alleges no or no sufficient opportunity to be heard – where reserved decision foreshadowed but not delivered – whether due process observed – where primary decision set aside and rehearing ordered Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 102 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 Clements v Independent Indigenous Advisory Committee (2003) 37 AAR 309; [2003] FCAFC 143 Edelstein v Wilcox (1988) 83 ALR 99 Escobar v Spindaleri (1987) 7 NSWLR 51 Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 John v Rees [1970] Ch 345 Maloney v NSW National Coursing Association Ltd [1978] 1 NSWLR 161 Malupo v Minister for Racing, Gaming and Licensing (2002) 170 FLR 111; [2002] NTSC 51 Police (SA) v Lymberopoulos (2007) 98 SASR 433; [2007] SASC 247 R v Essex Justices; Ex parte Perkins [1927] 2 KB 475 Ridge v Baldwin [1964] AC 40 Ryan v Kings Cross RSL Club Ltd [1972] 2 NSWLR 79 Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435; 23 FCR 162 |
APPEARANCES & REPRESENTATION: | 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]The applicant (`Leach’) is proud owner of a canal estate residence at Banksia Beach, Bribie Island. In or about September 2019 he engaged the respondent (`Island’) to supply and fit curtains and shutters for three of his rooms. He dealt mainly with the respondent company’s secretary, Deborah Nell (`Nell’).
- [2]Initially delighted with Island’s service, Leach soon found fault with the fitting of his curtains, blinds and shutters, complaining that the curtains, due to an insufficient `overlay’ obstructed the `beautiful view out of my bedroom and out of the dining room’.[1]
- [3]A lengthy exchange of emails followed. Notwithstanding Leach’s insistence that his dealings with Nell were at all times `polite and respectful’,[2] interpersonal friction generated considerable heat. At the hearing each party accused the other of lying[3] and Leach urged the tribunal `to charge [Nell] with perjury’.[4] There was even an allegation of assault.[5]
Primary proceedings
- [4]Leach commenced these proceedings on 15 April 2020, claiming $9,169.50 and pleading that `on 3/9/19 I paid [Island] to install motorised curtain tracks which were installed incorrectly and they will not fix the problem or refund to me the amount paid’.
- [5]The hearing took place on 30 October 2020. Leach’s pre-trial statement was served on 14 September, while Island’s response was delivered[6] just a few hours before the hearing began.
- [6]Nell’s pre-trial statement for Island includes these passages:
At the time of completion of installation [Leach] was ecstatic and terribly excited with our service. ... It was not until the follow [sic] days [he] contacted us with a complaint. I reminded him that he had gone against my recommendation of stacking back of 500mm in his master bedroom and we would not be held responsible for his judgment. ... [Leach] was fully informed, advised and recommendations were made, on more than one occasion at consultation as well as using a tape measure to illustrate (as I always do) the stacking back and track extension of the window should be 500mm on both sides.
- [7]And at the hearing Nell gave this evidence:
He was very specific with what he wanted. In his master bedroom he has a very large oversized window. I explained to [him] it was not 250, it was 500 millimetres that I recommended off the window, it’s called stacking back, and I recommended 500 millimetres on both sides. I measured in front of him. His walls on both sides were 600 millimetres on both sides. I recommended to him that he has a hotel effect and went from wall to wall. He didn’t want that. I recommended no less than 500 millimetres on each side. He told me that he wanted to keep costs down. He told me that he was planning on putting a swimming pool in. He asked me what the least amount would be acceptable, and I told him that he could go from architrave to architrave if he wanted.
There is no rule of thumb on any of this. There is no supplier that would sell him anything less. I recommended 500 and he said no, he wanted to go 200.[7]
I cannot argue with what a customer wants. I can make recommendations and he didn’t accept any of it.[8]
Surprise?
- [8]Leach emphatically denies that Nell said anything to him about a 500mm overlap until 30 October 2020, the day of the trial:
The email that I got about three or four hours ago has – has evidence in it that hasn’t been raised before and the fact that she said she quoted – told me that I should have 500 mil – that’s completely wrong. She did not ever recommend 500.[9]
This is probably the biggest dishonest statement. I have proved beyond reasonable doubt that she did not recommend a 500mm overlap. She untruthfully states that I did not accept her 500mm overlap recommendation.[10]
Orders made and revised
- [9]While the adjudicator explicitly preferred the credit of Nell to that of Leach[11], the latter was not sent empty handed away. At the conclusion of the hearing the adjudicator announced:
[M]y decision will be that – and I will provide this in writing within the next few days – is that you be paid $500 for the cost of power point installation in respect to two of those motorised curtain motors, that the [Island] will change over eight of the roller blind chains to 1500 length chains, that the plantation shutters will be modified so that all openings are uniform.[12]
- [10]It was not until 8 December 2020 that the following formal orders were made:
[Island] is to modify the roller blinds it installed for [Leach] by replacing the control chains with chains of equal length (standard size) between 1200 and 1500 as determined by [Leach].
[Island] is to modify the plantation shutters it installed for [Leach] so that all of the shutters open uniformly.
[Island] is to install or have installed by a suitably qualified tradesman electric power points for the motorised curtain tracks it installed for [Leach] at locations determined by [Leach] adjacent to the curtain motors.
- [11]It will be seen that the latter orders differ from those foreshadowed at the hearing in two respects: (a) they mention no sum of money; and (b) the permissible length of the control chains is varied.
- [12]Nevertheless, Leach is not content with the formal order in his favour; he reasserts his original claim, and seeks leave to appeal.
The `500 issue’
- [13]At this stage of the proceedings, the dispute is focused intensively, if not obsessively, on the fitting of the curtains, and Island’s advice on the appropriate overlap. When the order was taken, did Nell advise Leach that he should have an overlap of 500mm, or did she not?
- [14]In view of the somewhat peculiar form of this appeal the `500 issue’ (as I shall describe it) is now the prime question to consider. Leach has simply reasserted his original claim, without any indication of a substantive error at first instance.
Due process question
- [15]Whether or not he realised it, Leach raises a natural justice (or due process) issue when he submits -
[Island] filed [its] defense [sic] in an untimely manner ... I did not have sufficient time to find evidence to refute [the] untruthful statement that [Nell] recommended a 500mm overlap. I only had less than 2 hours to find evidence previously sent in emails where she confirmed that she recommended a 250mm overlap. Her late and untruthful statement goes to the heart of this dispute and I now have had time to find irrefutable evidence that he defense [sic] statement is untruthful.[13]
- [16]The pleading is pertinent, albeit adorned with the hyperbole that drew comment from the adjudicator.[14]
- [17]It is evident that these orders do not resolve the `500 issue’, and Leach now seeks leave to appeal[15] on these grounds:
[Island] filed [its] defense [sic] in an untimely manner – contrary to Court Requirements. I believe the late filing was deliberate so that I did not have sufficient time to find evidence to refute her untruthful statement that she recommended a 500mm overlap. I only had less than 2 hours to find evidence previously sent in emails where she confirmed that she recommended a 250mm overlap. Her late and untruthful defense [sic] goes to the heart of the dispute and I now have had time to find irrefutable evidence that her defense statement is untruthful.
The decision maker did not have all this information as I didn’t have time to prove that in her late statement where she changed to say she recommended a 500mm overlap is not true.[16]
- [18]In substance these are submissions that Leach was denied natural justice, in that he was given no adequate opportunity to present his case on the overlap issue, contrary to the audi alteram partem principle.
Consequences of due process breach
- [19]Ironically, as it may seem, if this plea succeeds, the sage advice `be careful of what you wish for’ comes to mind. A breach of natural justice is a radical error of law[17] which deprives a court of jurisdiction and renders its decision and proceedings void.[18] Success for the present plea will mean that all existing orders disappear, and that, absent a sensible settlement, a trial de novo will be needed.
Has an adequate hearing been denied?
- [20]Leach did not formally seek an adjournment. He did however, draw attention to the last-minute appearance of Dell’s disputed statement[19], and made it clear that was surprised and that he rejected it.[20] Dealing with a party who was no lawyer and who said that he had `never been to court before’[21] the tribunal, with respect, might well have asked him if he desired an adjournment. That was not done.
- [21]The position, in my view, is analogous to that of an unrepresented party who is unaware of the rule that objections to suspected bias should be made forthwith.[22] The rule of practice is more leniently applied in such cases[23], and I see no reasons why the same approach should not be taken to adjournments for surprise in this tribunal. As the adjudicator candidly stated Leach (understandably) appeared to be unable to marshal his evidence efficiently and to present it quickly in response to adverse testimony.[24]
- [22]Leach would rely mainly on two emails from Island to refute Dell’s last minute evidence on the `overlap issue’.[25] It is debateable whether this material supports Leach’s version so strongly as he claims, but that is not a question for this appeal tribunal to decide. The present point is that Leach did have some evidence to meet Dell’s version which, as he says, took him by surprise.
- [23]It is no answer to a claim of denial of due process to say that, even if the complainant’s case had been fully and fairly considered the result would have been the same.[26] All that matters is that the party relying on due process was `never given an opportunity to ... answer’[27]. As a distinguished English judge explained:
It may be that there are some who would decry the importance which the courts attach to the observance of rules of natural justice. ‘When something is obvious’, they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard?’ … Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered …[28]
Resolution
- [24]I am satisfied that Leach did not have a sufficient opportunity to answer the allegation that, early in the piece, Nell warned him that a curtain overlap of 250mm would be insufficient to ensure the full view that he desired, and that a 500mm overlap would be required.
- [25]It is unnecessary, to deal with the complaint that a summons to a potential witness was not pursued. That is not a task for the tribunal, but for the party concerned. As the adjudicator pointed out more than once: it is your case’.
Costs
- [26]In the circumstances of this case, particularly the very late delivery of Island’s case summary, it is in the interests of justice[29] that Island pay Leach’s costs of filing his application for leave. There will be an order to that effect.
Failure to give reasons
- [27]Natural justice aside, a failure to give adequate reasons may invalidate a judicial decision.[30] It is true that tribunals, in that regard, are not expected to attain the standards of the superior courts.[31] Judicial sympathy has been extended to `overloaded’ tribunals.[32] In this case, however, no reasons are articulated for non-acceptance of the original claim, or for the grant of substantial relief to Leach despite a decided preference for Nell’s evidence:
I find Ms Nell to be a forthright witness, confident of her facts. On the contrary I find Mr Leach, where your grasp of the issues was not in any way to the same degree as Ms Nell had ... But because I want to take some time to give the reasons, I will reserve my decision.[33]
- [28]But it does not appear that the promised reasons were given. Diligent enquiries by registry staff have discovered only the bare orders of 8 December 2000. For this additional reason, the primary proceedings cannot stand.
Disclaimer
- [29]Nothing in this decision is to be taken as an assessment of Leach’s substantive case. That is a matter for the retrial, if any.
ORDERS
- The application for leave to appeal is allowed.
- The appeal is allowed.
- The orders made herein on 30 October 2020 and 8 December 2020 are set aside.
- The matter is remitted to the registry to be heard and determined by a different adjudicator on a date and at a place to be fixed.
- The respondent shall pay to the applicant Leach the amount of the filing fee on the application for leave, namely $352, within 14 days.
Footnotes
[1]Transcript of hearing 30 October 2020 (`T’) page 8 line 10, page 41 line 28.
[2]Leach’s submissions filed 19 April 2021 page 6.
[3]T page 15 line 33 (Leach), page 22 line 19, page 23 line 46 (Leach), page 26 line 34 (Nell).
[4]Leach’s submissions filed 19 April 2021 page 19.
[5]Leach’s submissions filed 19 April 2021 page 11.
[6]It was sent to Leach and QCAT by email late at night on 29 October 2020.
[7]T page 13 line – page 14 line 7.
[8]T page 16 line 41.
[9]T page 15 lines 23-26 (Leach).
[10]Leach’s submissions filed 19 April 2021 page 13 paragraph 4.
[11]T page 44 line 45.
[12]T page 44 lines 28-33.
[13]Application for leave to appeal filed 11 December 2020.
[14]T page 18 line 27.
[15]Application for leave to appeal filed 11 December 2020.
[16]Submissions of Leach filed 19 April 2021 page 11.
[17]Escobar v Spindaleri (1987) 7 NSWLR 51 at 57, 59, 60; Clements v Independent Indigenous Advisory Committee (2003) 37 AAR 309; [2003] FCAFC 143 at [8], [35], [41].
[18]Ridge v Baldwin [1964] AC 40; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Malupo v Minister for Racing, Gaming and Licensing (2002) 170 FLR 111; [2002] NTSC 51; Police (SA) v Lymberopoulos (2007) 98 SASR 433; [2007] SASC 247; Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 at 277; Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421.
[19]T page 9 line 26.
[20]T page 15 line 23.
[21]T page 20 line 4.
[22]Maloney v NSW National Coursing Association Ltd [1978] 1 NSWLR 161 at 172.
[23]R v Essex Justices;Ex parte Perkins [1927] 2 KB 475 at 489; Ryan v Kings Cross RSL Club Ltd [1972] 2 NSWLR 79 (failure to challenge invalid notice of meeting).
[24]Member: `You’re not very good at providing evidence’.(Page 10 line 9); Leach:` I don’t know what I’m alleging’. Member: `It’s your case’, (T 39 line 19); `The more I hear from you, Mr Leach, the more I think that you’re not really sure what’s going on here’ (T 41 line 24).
[25]Submissions of Leach filed 19 April 2021 page 6.
[26]Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435; 23 FCR 162.
[27]Edelstein v Wilcox (1988) 83 ALR 99 at 116 per Burchett J.
[28]John v Rees [1970] Ch 345 at 402 per Megarry J.
[29]QCAT Act s 102.
[30] Attorney-General v Kehoe [2001] 2 Qd R 350; Sutton & Ors v Tomkins [2017] QCATA 34; Res 1 v Medical Board of Queensland [2008] QCA 152.
[31]Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 291-292; Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462.
[32]Absolon v NSW Technical and Further Education Commission (1997) 75 IR 47; [1999] NSWCA 311; Manonai v Burns [2011] WASCA 165 at [56]; State of Queensland v Mahommed [2007] QSC 18 at [34].
[33]T page 44 line 48ff.