Ludwig v Blenkiron[2023] QCATA 2

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   In 2015, Katrina Blenkiron moved into a property owned by Richard Ludwig, and shared the house with Mr Ludwig and others until 2019. Mr Ludwig, a 'jack of all trades, master of none',^[1] helped resolve Ms Blenkiron's ongoing business dispute at the time. They also had a romantic relationship until its demise in 2019.
2. [2]
   Mr Ludwig wanted Ms Blenkiron to pay him for consultancy fees and the market value of furniture she took when she left. His claim was dismissed on the basis that, fundamentally, Ms Blenkiron never agreed to pay for Mr Ludwig's services or the furniture.^[2] There was no evidence of the parties ever agreeing on the amount for the goods or services.^[3]
3. [3]
   Mr Ludwig now wishes to appeal the tribunal's decision and have the matter reheard on that basis that the tribunal was not procedurally fair to him. He takes issue with the tribunal's; treatment of the statutory declaration of Detective Hardham; unfairness towards his witness; disregard of his invoice; and disregard of Ms Blenkiron's affidavit.
4. [4]
   Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.^[4] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.^[5]

Did the tribunal err in considering Detective Hardham's statutory declaration?

5. [5]
   The tribunal must facilitate procedural fairness by considering material relevant to resolving the dispute's fundamental issues.^[6]
6. [6]
   Fundamentally, Mr Ludwig was first tasked with establishing that Ms Blenkiron agreed to pay him for his services. He asked the tribunal to discard the statutory declaration of Detective Hardham which had been filed by Ms Blenkiron. No weight was given to the statutory declaration because it was irrelevant, and the detective was unavailable for cross-examination.^[7]
7. [7]
   Although this is what Mr Ludwig wanted, he now argues that the matter should be reheard with the detective's statutory declaration removed from the file as it was impossible for the tribunal to totally discard it after having read it.
8. [8]
   Just because a document is filed and read by the tribunal does not mean it sways the ultimate decision. No error was made in choosing to discard the document and it is certainly not grounds for a rehearing.

Was the tribunal unfair to Mr Ludwig's witness?

9. [9]
   Clint Glasgow was called to give evidence. Mr Glasgow was unprepared and did not have a copy of his short statutory declaration with him at the hearing. No adjournment was requested to obtain a copy. Questions were confined to matters within his statutory declaration.^[8]Little was gained from his oral examination, other than that he was not aware of the parties ever discussing a price for Mr Ludwig's services.^[9] It seems unlikely that Mr Glasgow would have provided better evidence if he had his statutory declaration before him.^[10] Again, the tribunal was not in error.

Should Mr Ludwig's invoice have been considered?

10. [10]
    Mr Ludwig refused to answer simple questions relating to the credibility of his invoice as evidence. He then voluntarily withdrew his reliance on his invoice, leading to the tribunal withdrawing it from evidence.^[11] Even if the invoice had not been removed from evidence, there was still no proof that Ms Blenkiron received the invoice or agreed to pay for Mr Ludwig's services.^[12]No error is apparent; no agreement between the parties could be established.

Does procedural unfairness arise from Ms Blenkiron's affidavit?

11. [11]
    Mr Ludwig next argued that the furniture he gave Ms Blenkiron was not a gift and that they had, in fact, agreed that she would pay him. They both wanted to rely on a single page - page 10 - of a 12 page affidavit deposed by Ms Blenkiron in separate proceedings. It was reluctantly accepted as an exhibit because, although it lacked context, each party wanted to use it to argue whether the furniture was, or was not, a gift.^[13]

12. [12]
    Mr Ludwig says the matter should be reheard with the full affidavit produced to provide full context to the tribunal.
13. [13]
    Leave to appeal may be granted where the evidence was not reasonably available at the hearing and had it been, an opposite result was likely, and the new evidence is credible.^[14]

14. [14]
    The fundamental issue was whether the parties agreed that money would be exchanged for the furniture. Ms Blenkiron unequivocally deposed that she never agreed to pay for the furniture - it was a gift from Mr Ludwig. The balance of the affidavit is unlikely to change the meaning of her statement. Even if Ms Blenkiron's affidavit were completely set aside, there is no evidence that she ever offered or agreed to pay for the furniture.^[15] The tribunal's finding that Ms Blenkiron accepted the furniture as a gift does not need to be disturbed.^[16]

Conclusion

15. [15]
    Mr Ludwig has not demonstrated that the tribunal was in error. Leave to appeal should be refused.

ORDER

1. Leave to appeal is refused.