Gedoun Constructions Pty Ltd v Mark Elliot Agius
[2023] QCATA 98
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- Unreported Judgment
- Gedoun Constructions Pty Ltd v Mark Elliot Agius[2023] QCATA 98
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Gedoun Constructions Pty Ltd v Mark Elliot Agius[2023] QCATA 98
Gedoun Constructions Pty Ltd v Mark Elliot Agius[2023] QCATA 98
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Gedoun Constructions Pty Ltd v Mark Elliot Agius [2023] QCATA 98 |
PARTIES: | gedoun constructions pty ltd (applicant/appellant) v mark elliot agius (respondent) |
APPLICATION NO/S: | APL060-22 |
ORIGINATING APPLICATION NO/S: | BDL308-18 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 12 July 2023 |
HEARING DATE: | 12 July 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown Member Howe |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where fresh evidence filed on application for leave to appeal – whether appropriate to allow fresh evidence – whether evidence reasonably available at first instance Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(2) Allen v Queensland Building and Construction Commission [2023] QCATA 66 CDJ v VAJ [1998] HCA 67 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Mr Somers instructed by Russells |
Respondent: | Mr Cooke instructed by Becker Watt Lawyers |
REASONS FOR DECISION
- [1]Both parties have filed applications to adduce fresh evidence in the appeal. The application by the respondent (Mark Elliot Agius) is said to be in response to the application by the appellant (Gedoun Constructions Pty Ltd). Mr Cooke for the respondent this morning said the respondent opposed the appellant’s applicant for fresh evidence and if that application failed, however, the respondent’s application in reply would not be pursued.
- [2]The appellant’s proposed fresh evidence supports a ground of appeal that the member below failed to consider all possible design pathways open to the appellant to meet the performance requirements and therefore the legislations requirements set by the National Construction Code (‘the NCC'), in respect of the design and construction of the house.
- [3]The appellant claims a performance solution assessment method was available which established compliance but the member turned her mind only to a deemed to satisfy solution by way of compliance with certain standards. The appellant submits that complying with the performance requirements through a performance solution was raised in the appellant’s written closing submissions at hearing and in oral submissions. The references relied on are at best oblique. Mr Cooke said there was no cross-examination of the experts below about a performance solution in lieu of deemed to comply solutions and that where the construction failed by a small margin to meet the standards, it was a matter of a fudge factor on the part of the appellant’s experts rather than a matter of an alternative performance solution in play.
- [4]The fresh evidence proposed to be led consists of an affidavit by Mr Messer, an engineer who proposes to give evidence of his involvement in the construction work as the engineer who prepared the engineering plans for the house. In the affidavit he sets out what steps he took to assess wind classification. He describes in detail what instructions he gave to his team in the course of that task and he exhibits copies of his calculations and how he drew his conclusions based on those calculations. Finally, he refers to the form 15 he executed, certifying the adequacy of the building design.
- [5]Mr Moran was the certifier involved in the project. He produces an expert report which explains the use of the guide to the NCC and, in a report dated 10 July 2023, addresses a number of issues clearly the subject of evidence in the hearing below. In that regard Mr Cooke challenges his expertise as certifier to make comment about a number of the subjects he refers to and also points out that in respect of his proposed evidence about the geometric limits set by standard AS4055 2012 and his view about this construction, his evidence conflicts with consensus reached at hearing below between the experts on measurements.
- [6]All the fresh evidence seems clearly evidence that could have been lead for the benefit of the member at the hearing below but was not, including Mr Moran’s evidence about the use of the NCC guide.
- [7]The initial directions on appeal included directions advising any party who seeks to adduce fresh evidence, that they should include with the application the following:
- (a)Why the fresh evidence was not available to the Tribunal below;
- (b)Why the fresh evidence is important; and
- (c)Why the fresh evidence should be accepted on appeal.
- (a)
- [8]Those same requirements directing the parties to make submissions addressing those things were made at a directions hearing on 7 September 2022 then again on the 19th of October 2022 when granting an extension of time to file any application for fresh evidence.
- [9]Despite those directions, the appellant does not address the most fundamental of requirements, which is to say why the fresh evidence was not available to the Tribunal below. Mr Somers, who it is acknowledged was not counsel at the hearing below, says he can offer no comment about that. Whilst the rules of evidence do not apply in the Tribunal, as stated by Judicial Member McGill in the recent decision Allen v Queensland Building and Construction Commission [2023] QCATA 66 at paragraph 3:
The Appeal Tribunal proceeds on the basis that the usual tests for fresh evidence, as set out for example in Clarke v Japan Machines (Australia) Pty 30 Ltd [1984] 1 Qd R 404 at 408, must be met for such evidence to be admitted on appeal under the Queensland Civil and Administrative Tribunal Act 2009 section 147(2), at least in relation to additional evidence relevant to an appeal on a question of fact, or of mixed law and fact.
- [10]And then at paragraph 5 the former judge says:
The reason why additional evidence on appeal is confined as set out in Clarke in cases where there has already been the opportunity to put forward evidence at first instance is that otherwise the significance of the first proceeding is diminished, and it becomes just a preliminary to an appeal, where the full range of evidence is mounted. That is contrary to the efficient use of resources, and the principle that there should be an end to litigation, both of which apply as much to the Tribunal as to a court. So parties to a proceeding in the Tribunal are expected to put forward full evidence at a hearing on the merits, and it is appropriate that the discretion in section 147(2) be exercised in accordance with the fresh evidence rules in such cases. So far as this appeal is concerned, I propose to apply the fresh evidence rules to the additional evidence sought to be relied on by the appellants.
- [11]In Clarke it was said that there were three conditions to be fulfilled for fresh evidence on appeal.
- (a)First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
- (b)Second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it not be decisive; and
- (c)Third, the evidence must be such as is presumably to be believed, or in other words it must be apparently credible, though it need not be incontrovertible.
- (a)
- [12]The directions given by the Tribunal on the three occasions above mentioned were all based on the Clarke conditions.
- [13]Mr Somers refers in his written submissions to the decision of the High Court in CDJ v VAJ [1998] HCA 67 where in considering rules allowing fresh evidence in appeals in the Family Court it was said that the power to adduce fresh evidence was discretionary and should be construed liberally and facilitates the avoidance of errors which cannot otherwise be remedied.
- [14]But the same court said at paragraph 108:
The discretion is more ample than the principles applicable in common law proceedings and applied in Wollongong Corporation. That, of course, does not mean that the discretion reposed in the Full Court by section 93A(2) is unfettered, a point recognised by the Full Court in In the Marriage of Abdo. Although the discretion to admit further evidence is not attended by any express words of limitation, the subject-matter, scope and purpose of the appeal provisions in Part 10 of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.
- [15]We adopt the comments made by Judicial Member McGill in Allen v Queensland Building and Construction Commission in that regard to refuse the appellant’s application to adduce fresh evidence. There has already been a hearing on the merits below. The evidence now sought to be adduced for the first time should have been led in the hearing below. There is no reason given or attempt to explain, again recognising that Mr Somers was not counsel in the heading below, why the evidence was not led below. That failure cannot be remedied by leading it as fresh evidence now in the appeal.
- [16]Not only is it a waste of the resources of the Tribunal in allowing that course to be adopted, it is unfair on the respondent to now face, after significant time spent in the hearing below, which time has been the subject of comment this morning, effectively a reopening of the evidence.
Orders
- [17]The application by the appellant for leave to adduce fresh evidence is refused.
- [18]The application by the respondent to lead fresh evidence in response is no longer necessary and is also, therefore, refused.