Strategic Developments Logan Pty Ltd v Brian Johnston Plan Design Pty Ltd
[2023] QCATA 37
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- Unreported Judgment
- Strategic Developments Logan Pty Ltd v Brian Johnston Plan Design Pty Ltd[2023] QCATA 37
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Strategic Developments Logan Pty Ltd v Brian Johnston Plan Design Pty Ltd[2023] QCATA 37
Strategic Developments Logan Pty Ltd v Brian Johnston Plan Design Pty Ltd[2023] QCATA 37
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Strategic Developments Logan Pty Ltd v Brian Johnston Plan Design Pty Ltd [2023] QCATA 37 |
PARTIES: | Strategic Developments LOGAN Pty Ltd (appellant) v Brian Johnston Plan Design Pty Ltd (respondent) |
APPLICATION NO/S: | APL305-21 |
ORIGINATING APPLICATION NO/S: | MCDO516/20 (Brisbane) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 6 April 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where the appellant seeks to appeal against a decision made by a tribunal Adjudicator in a minor civil dispute – where the appellant puts fresh evidence before the Appeal Tribunal on an informal basis – whether appeal could succeed |
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
- [1]This is an appeal brought by Strategic Developments Logan Pty Ltd against a decision made by a tribunal Adjudicator in a minor civil dispute.
- [2]Strategic says that the Adjudicator made a number of errors and omissions both factual and technical.
- [3]The Adjudicator made the decision after hearing the parties and reading their documents in a hearing on 15 July 2021. What transpired at the hearing can be understood from a transcript obtained by the Appeal Tribunal. Strategic was represented at the hearing by Alan Thompson who was a director of that company, and the applicant in the minor civil dispute, Brian Johnston Plan Design Pty Ltd, was represented by its director Brian Johnston.
- [4]Prior to the hearing, each party had submitted written material to the tribunal.[1] At the hearing, each party gave evidence. Strategic handed to the Adjudicator a further document.[2] Despite this, the Adjudicator decided that more evidence was needed to enable a fair decision to be made. The Adjudicator offered the parties a further hearing when such additional material could be considered, but Mr Thompson said that he did not want to attend a further hearing but preferred to have the matter dealt with on the papers after submitting further evidence and making further submissions.[3] This proposal was agreed, and the Adjudicator made an order that each party was able to submit further material by 30 July 2021.
- [5]The hearing lasted for one hour and thirty minutes and over that time all the issues between the parties were identified and discussed at length – it was clear from this exactly what material would need to be submitted to the tribunal for a fair decision to be made.
- [6]Each party did send in its material. For Strategic, Mr Thompson submitted a statement and submissions setting out its case, with a number of documents attached.
- [7]On 5 October 2021 the Adjudicator made a final decision in the claim and gave reasons in writing, which were published.[4] The Adjudicator found in favour of Brian Johnston Plan Design Pty Ltd and ordered Strategic to pay that company a total of $7,896.05.
Name of appellant incorrect
- [8]In this appeal it became apparent for the first time that Strategic’s name was given incorrectly in the tribunal below in the originating application on Form 3 and also in the formal response to the claim on Form 7. Strategic’s name should have been given as Strategic Developments Logan Pty Ltd. Instead it was given as Strategic Developments Pty Ltd which is a different company. The same error arose in the record of the Appeal Tribunal. Through directions made by the Appeal Tribunal on 17 January 2023, the parties were consulted about this. Not surprisingly, Mr Johnston wanted the name to be correct whereas Mr Thompson wanted the order made in the minor civil dispute to be set aside because it was made against the wrong party.
- [9]Neither party informed the Adjudicator about the error, but instead were prepared to argue the dispute on the merits despite the error. In those circumstances I am satisfied that the wrong name was a misnomer and does not invalidate the appeal. The error is therefore corrected in the order made in this appeal.
- [10]I understand that the tribunal below is also of the view that the error was a misnomer and does not invalidate the decision made, for the same reasons. Therefore the tribunal below intends to correct the name of the respondent to the minor civil dispute proceedings from Strategic Developments Pty Ltd to Strategic Developments Logan Pty Ltd.
The appeal
- [11]In its appeal submissions, Strategic says:[5]
The QCAT Adjudicator at the tribunal hearing 5 October 2021 was fair with the evidence she had at hand. This fresh evidence was not available and proves that (Brian Johnston Plan Design Pty Ltd) did not undertake the work correctly as quoted and claimed.
- [12]Strategic attached a statutory declaration to the appeal submissions and provided the Appeal Tribunal with a number of documents. The difficulty with this approach is that there is no explanation why Strategic did not put these documents before the Adjudicator for the hearing of 15 July 2021 or after that hearing when it had an opportunity to do so. Looking through the documents, most of them pre-date that hearing date and so would have been available to Strategic at those times.
- [13]There are two more recent documents, however. One is a report by surveyors dated 14 February 2022 giving an opinion about an earlier survey and another is a letter dated 3 March 2022 from a third party stating that it had been paid in December 2018 for a geotechnical report. There is no suggestion that either of these more recent documents could not have been obtained for the hearing of 15 July 2021 or put before the Adjudicator after that hearing as had been permitted.
- [14]The difficulty for the Appeal Tribunal is that if a party wishes to put evidence before the Appeal Tribunal, and that evidence was not before the original decision maker, the usual rule is that this is not permitted unless the appellant can show that the evidence could not have been obtained for the original hearing and therefore that it is necessary for the Appeal Tribunal to consider the evidence to avoid a miscarriage of justice. For this reason the Appeal Tribunal always gives directions about fresh evidence, and in this appeal these directions were given:[6]
If either party seeks leave to rely upon evidence or a document that was not before the Tribunal below (‘fresh evidence’) they shall file in the Tribunal one (1) copy and serve on the other party one (1) copy of an application for leave to rely upon fresh evidence, together with a copy of the fresh evidence. The application shall include
- why the fresh evidence was not available to the Tribunal below;
- why the fresh evidence is important; and
- why the fresh evidence should be accepted.
- [15]The directions then deal with how such an application should be dealt with – allowing submissions from the respondent to the appeal and for determination of the application for leave to rely on the fresh evidence.
- [16]Such an application was not made and therefore is not before me in this appeal. It would be wrong for me to regard it as before me in this appeal on an informal basis, bearing in mind that the respondent to the appeal has not been asked to make submissions about the fresh evidence and also bearing in mind that none of the fresh evidence appears really to be ‘fresh’, because it appear that the evidence could have been put before the Adjudicator and taken into account in the hearing itself.
- [17]This means that Strategic’s statement that:
The QCAT Adjudicator at the tribunal hearing 5 October 2021 was fair with the evidence she had at hand is fatal to this appeal. It has been said repeatedly by the Appeal Tribunal that the appeals process is not an opportunity for a losing party to have another opportunity to win a case by improving on its evidence. The appeals process is to correct errors made by the original decision maker on the evidence received at the original hearing. If no error can be identified, then that is the end of the matter.
- [18]There is a good reason for this. If a losing party were able to put a better case before another decision maker (the Appeal Tribunal) in the absence of an error from the original decision maker then, potentially, each claim would require two hearings: the first on the evidence before the original decision maker and the second to give the parties an opportunity to have another go.
Conclusion
- [19]In these types of appeal, leave to appeal is necessary. Leave to appeal will only be given if the appeal is reasonably arguable or there is some other reason to grant leave. I refuse leave to appeal. The appeal therefore fails.
Footnotes
[1]In the case of Strategic, in addition to the formal response it can be seen from the file that material was provided to the tribunal on 8 June 2021 (survey plan), 15 June 2021 (various documents said to show that the applicant to the minor civil dispute claim had failed to perform its obligations), four emails on 8 July 2021 (with statutory declaration made by a town planner, and other documents), 11 July 2021 (with copy brochure and project summary statement).
[2]A quotation: transcript 1-6.
[3]Transcript 1-39.
[4]Published at that time as Brian Johnston Plan Design Pty Ltd v Strategic Developments Pty Ltd [2021] QCAT 342. The respondent’s name in that published decision was incorrect and stands to be amended.
[5]Submissions in the appeal received on 4 April 2022.
[6]On 22 December 2021.