Mills v Ethell[2024] QCATA 67

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an appeal from the decision of a Senior Member on 29 November 2021 in a domestic building dispute, that the appellant pay to the respondent $17,674.80 within twenty-eight days of that date.^[1]  The application for leave to appeal or appeal was filed on 3 March 2022; an extension of time within which to file the document was granted by a Senior Member on 12 August 2022.  Neither party sought an oral hearing.  The appellant submitted that there were errors of law in the reasons for the decision, which justify setting aside the decision.  The appellant did not seek leave to appeal, and accordingly is confined to an appeal against the decision on a question of law only.^[2] 

Grounds of appeal

2. [2]
   The grounds of appeal are incorporated into a written submission in support of the appeal attached to the application.  In essence, they are:

   1. The Senior Member failed to comply with the mandatory requirements of the QCAT Act s 48(3) when giving a decision under s 48.
   2. The Senior Member failed to consider whether the appellant had a reasonable excuse for a failure to take part in the proceeding, because of his medical condition. 
   3. The Senior Member should have acted on the existence of a defence under the Limitation of Actions Act 1974 (Qld). 
3. [3]
   Apart from this, the appellant submitted in paragraph (10) of that attachment that in a number of factual respects the conclusion that the appellant was responsible for damage suffered by the respondent was wrong, and that the evidence of those who had provided advice or quotes to the respondent ought not to have been accepted.  Save in one respect, these submissions do not raise questions of law only, and cannot be raised on an appeal under s 146.  The exception is that raised in paragraph 10.10, that the material from the individuals was unsworn and untested by cross-examination.  

Background

4. [4]
   The respondent was provided with a quote dated 16 January 2014 to do certain work for $4,500.  The document does not expressly identify by whom it was given, but has the address which matches the address of the appellant given on his affidavit sworn 24 February 2022, an email address, a website address and an ABN number.  The quote has endorsed on it a statement that the amount has been paid, signed by a “J Mills” with a signature which looks to me very like the signature on that affidavit. 
5. [5]
   According to the respondent, the work was done in late January and early February 2014.  The respondent said that there had been complaints to the appellant prior to 2018, but she had lost her phone and had no record of these.  The Senior Member had material to show that there was a complaint made to the Queensland Building and Construction Commission (“QBCC”) prior to September 2020, but that on 30 September the QBCC advised that it had closed the matter and would take no further action.  The claim for the domestic building dispute was filed in the Tribunal on 21 October 2020, and served personally on the appellant at his home on 5 November 2020.^[3]
6. [6]
   This proceeding was a building dispute under the Queensland Building and Construction Commission Act 1991 (Qld).  It was therefore a prescribed application under the Queensland Civil and Administrative Tribunal Rules 2009 (“the Rules”) s 44(6)(a), so that, under s 44(1) and (2), if the appellant wished to respond to the application he had to file a response in the approved form within fourteen days after he was given a copy of the application, that is, by 19 November 2020.  He failed to do so, before or after that date.  That this was required is clearly stated on the front page of the Application Form, under the heading “WARNING TO RESPONDENT/S”, together with notice that “If you choose not to respond to this application the tribunal may grant the orders sought by the applicant without further notice to you.” 
7. [7]
   One of the consequences of the failure to file a response with an address for service was that the appellant became subject to the Rules s 36, and because he also did not file a statement of address for service, the part of the application stating his contact details became his address for service.^[4]  That meant that documents required to be given to him could be given to him by post to that address: the Rules s 39. 
8. [8]
   On 20 January 2021 there was a directions hearing on the papers before a Senior Member, and directions were made, including that the appellant file and serve a response to the application by 24 February 2021.  As well, the respondent was directed to file and give to the appellant a document setting out various things.  In accordance with the usual practice of the Tribunal, a copy of these directions was sent to each of the parties, in the case of the appellant, by post.  The matter was also listed for a compulsory conference at a date to be advised.  The respondent filed a statement of evidence as required by the directions on 2 March 2021, and on 17 March 2021 filed an affidavit of service deposing that she had sent by post a copy of that document to the appellant’s address for service, his address as above. 
9. [9]
   Attached to that affidavit was a copy of the express post envelope, which had presumably been returned by the Post.  It had the appellant’s name and address on the front, which had been crossed out and “R.T.S.” written below it.  With it was the first page of the enclosed document filed on 2 March, with the words “Incorrect Entity” written on it.  As an exercise in avoiding service, this was ineffective. It demonstrated that the contents had not only been sent, but had been received. 
10. [10]
    The Compulsory Conference contemplated by the directions was set for 28 April 2021 at 9.30 am. It was a conference to be held by telephone.  Notice of the conference was sent by the Registry, by Express post, to the appellant at the address referred to earlier, on 12 April 2021, in an envelope identified as from the Tribunal.  It was returned on 15 April 2021.^[5]  The name and address had been crossed out, and there had been written on the front “R.T.S. Incorrect Entity”.  Again, the obvious inference was that the notice of the conference had not only been sent, it had been received by the appellant. 
11. [11]
    As a result of the return of the notice, on 21 April 2021 a case manager in the Registry telephoned the appellant at the number given in the original application.  The note made by the case manager of the conversation was as follows:

Rang respondent on 21/04/21 to enquire if we had contact details for him and whether he received initial directions.  He immediately stated he would not be taking any part in the QCAT process and that he is [sic, has] been in business for over twelve years and this must be a malicious complaint.  I asked him if the postal address we had was correct or whether he chose to return the mail back to us.  He stated he would not be answering that question.  I advised him of the upcoming compulsory conference – he stated he would not be attending.  I asked if he would like to provide me with an email address or another postal address to which he refused and again stated he would not be attending any hearings or taking part in the QCAT process in any way.

12. [12]
    The content of that conversation, in my opinion, clearly demonstrates that the appellant was deliberately refusing to engage with the Tribunal process, and was being deliberately uncooperative.  Later the same day, the appellant sent to the email address “enquiries QCAT” a message which said as follows: 

Carol Ethel has lodged a matter against me.  The entity is not me, it is the milbin group as it clearly states on the invoice.  I am in palliative care for kidney disease and will not be attending conferences.  John Bint of 25 Heydon road, Labrador was my business partner at the time.  He can respond on our behalf.  Again, I will not be attending any conferences due to hospital commitments.

13. [13]
    The enquiry form gave an email address “[email protected]” and a phone number which was the same as that given for the appellant on the original application.  The next day a client services officer replied, acknowledging receipt of the email, stating “Noted – this will be placed on file for the record.”  He was advised of a number if he needed to speak to a case officer in relation to the matter, and an email address. 
14. [14]
    The appellant did not attend the compulsory conference.  On that day directions were made that the appellant file and serve a written explanation for his failure to attend that conference, and comply with the direction made on 20 January 2021 to file a response to the application by 14 May 2021.  The directions also stated that if he failed to do this the respondent may be entitled to a final decision in the proceedings, conditional on the assessment of damages.  In accordance with the usual practice of the Tribunal, a copy of these directions was sent to each of the parties, in the case of the appellant, by email to the address given on the enquiry form. 
15. [15]
    The appellant did not comply with these directions, and on 21 October 2021 further directions were made, that the appellant comply with the direction made on 20 January 2021 by 4 November 2021, otherwise “there will be a final decision in favour of the” respondent.  In accordance with the usual practice of the Tribunal, a copy of these directions was sent to each of the parties, in the case of the appellant, by email to the address he gave on the enquiry form.  Again the appellant did not comply, or communicate with the Tribunal, and the decision in favour of the respondent was given by the Senior Member on 29 November 2021.  In accordance with the usual practice of the Tribunal, a copy of the decision and the reasons were sent to each of the parties.  Even then, the appellant did nothing until proceedings were taken in the Magistrates Court for enforcement of the decision. 

Legislation

16. [16]
    The QCAT Act provides in s 48 as follows:

Dismissing, striking out or deciding if party causing disadvantage

1. This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
   1. not complying with a tribunal order or direction without reasonable excuse; or
   2. not complying with this Act, an enabling Act or the rules; or
   3. asking for an adjournment as a result of conduct mentioned in paragraph (a); or
   4. causing an adjournment; or
   5. attempting to deceive another party or the tribunal; or
   6. vexatiously conducting the proceeding; or
   7. failing to attend conciliation, mediation or the hearing of the proceeding without reasonable excuse.
2. The tribunal may—
   1. if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out; or
   2. if the party causing the disadvantage is not the applicant for the proceeding—
      1. make its final decision in the proceeding in the applicant’s favour; or
      2. order that the party causing the disadvantage be removed from the proceeding; or
   3. make an order under section 102, against the party causing the disadvantage, to compensate another party for any reasonable costs incurred unnecessarily.

Note—

See section 108 for the tribunal’s power to order that the costs be paid before it continues with the proceeding.

3. In acting under subsection (2), the tribunal must have regard to the following—
   1. the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures;
   2. the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions;
   3. whether the party causing the disadvantage is acting deliberately.
4. The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal’s own initiative.
5. The tribunal’s power to act under subsection (2) is exercisable only by—
   1. the tribunal as constituted for the proceeding; or
   2. if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.

17. [17]
    In a decision of the Appeal Tribunal earlier this year, Csorba v Petka Investments Pty Ltd [2024] QCATA 12, Member Lember summarised the legislative context of s 48 as follows: 

[3] Parties are expected to take active steps to engage in^[6] and are obliged to act quickly in any dealing relevant to the proceeding.^[7]

[4] Section 48 of the QCAT Act permits the tribunal to dismiss or struck out a proceeding if it considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding.

….

[6] To “cause disadvantage” includes not complying with a tribunal order or direction without reasonable excuse.^[8]

18. [18]
    The Member also referred to the requirements of s 48(3), and referred to earlier decisions of the Tribunal as follows:

[7]  In other section 48 matters before it, the Tribunal has relevantly stated that:

(a) Section 48 is to be construed in the light of the statutory objects under the QCAT Act, which emphasise informality, the minimisation of costs to the parties, and expediting proceedings so far as is consistent with achieving justice.^[9]

(b) The unnecessary disadvantage must be of sufficient gravity to justify dismissal or a final decision.^[10]

(c) The fact that a claim has significant merit, will not preclude an exercise of section 48 discretion where a party has been recalcitrant or delinquent in their conduct of the proceeding to cause unnecessary disadvantage.^[11]  Matters relating to the substantive merits of a claim may in fact be irrelevant to a section 48 consideration.^[12]

(d) In determining a section 48 application in accordance with the tribunal’s obligations and objects under the QCAT Act, a balance should be struck between the need for quick procedure and the obligation to deal with matters in a way that is fair and accessible.^[13]

19. [19]
    The responsibility of litigants in the Tribunal to attend to their own interests was also emphasised by a former President of the Tribunal, Justice Wilson, in The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [9]-[10]: “The QCAT statutory regime itself places obligations upon parties to take care in dealing with tribunal matters ... The legislation and the demands upon public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it act in its own best interests, or accept the consequences.”^[14]  

Compliance with s 48(3)

20. [20]
    The appellant’s argument on this ground of appeal raises a question of the correct interpretation of the provision.  Is the effect of the subsection that, unless there is material before the Tribunal to demonstrate that the party causing the disadvantage does not suffer from any of these failings, the Tribunal cannot act under subsection (2)?  Or is it sufficient for the Tribunal to act under subsection (2) for there to be no indication, on the material before the Tribunal, that any of these matters do arise?  I am not aware of any authority on this point, although there are decisions of the Tribunal which assume that the Tribunal acts on the evidence before it in this matter.^[15]
21. [21]
    In the light of the statutory context referred to earlier, however, and the purpose of s 48, I consider that the correct interpretation is the latter.  The QCAT Act indicates that the Tribunal is supposed to be efficient in its operation,^[16] and it would not be consistent with this object if the exercise of the power in s 48 required some potentially extensive enquiries into the situation of the party causing the disadvantage.  As well, if a party was being uncooperative, it would be easy enough for that party to frustrate any attempt to gather such evidence, if the section had the former meaning.  When the legislature has provided a provision under which effective action can be taken against a party who is causing disadvantage to another or other parties, it would not be consistent with that legislative purpose to construe the section in a way which would tend to frustrate that legislative purpose. 
22. [22]
    I therefore conclude that s 48(3) on its true construction does not require any active investigation of the matters referred to in the subsection on the part of the Tribunal, but only that the Tribunal take them into account to the extent that they arise on the material before the Tribunal.  So whether the Senior Member erred in law in this respect must be tested by reference to the material then available to him.  This flows from the nature of an appeal against a decision to act under s 48; it depends on the existence of error in the context of the matter then being considered, not on whether, had there been any additional material before the Tribunal, a different result would have been appropriate.  That would only be appropriate for an application to reopen.^[17] 
23. [23]
    When considering the requirements of s 48(3) in this way, I consider that the material then before the Tribunal did not give rise to any factual issue as to the applicability of any of the requirements of the subsection.  There was simply no material as to the familiarity of the appellant with the procedures of the Tribunal, but the things required of the appellant had been spelt out clearly enough in the material provided to him.  The original application contained the “warning to respondents” referred to earlier, which warned of the consequences of a failure to comply with the requirement to file a response to the application.  The various directions repeatedly required him to do so, and in the final direction for him to do so, in October 2021, warned specifically that the consequence of non-compliance would be a final decision in favour of the respondent.^[18] 
24. [24]
    What was required of him was clear and simple enough.  There is a form for a response, and assistance was available to him from the QCAT website, or he could have asked at the registry.  He had even been given a telephone number to call if he needed assistance, on the one occasion he was telephoned by the Tribunal.  The notion that his returning correspondence from the Tribunal marked “incorrect entity” was the product of lack of familiarity with the processes of the Tribunal is fanciful.  There was nothing in the material before the Senior Member that suggested that the inactivity of the appellant was due to lack of familiarity with the processes of the Tribunal.  It was not a live issue. 
25. [25]
    As to the capacity of the appellant to understand and to act on the Tribunal’s orders and directions, the material then available to the Senior Member did not suggest any lack of capacity of this nature, rather than an obdurate refusal to engage with the processes of the Tribunal.  He was capable of making his position clear to the person who telephoned him, and in the email to the Tribunal, and there was no suggestion of any lack of capacity, just a refusal to cooperate.  He was able to put forward a defence, albeit a spurious one, that the respondent should be pursuing someone else, and perhaps also that the claim was “malicious”.  None of this suggests a lack of capacity.  Nor does the reference to “palliative care for kidney disease”.  That in itself does not demonstrate any relevant incapacity, and the content of his communications are to the contrary, indicating a refusal to cooperate rather than incapacity.  There was on this material no live issue under paragraph (b). 
26. [26]
    There was also no issue under paragraph (c); the actions referred to above, in the material then available to the Senior Member, make it clear that the appellant was acting deliberately in refusing to engage with the Tribunal.  In these circumstances, when there was nothing in the material before the Senior Member to raise any issue under any of the paragraphs of subsection (3), there was really nothing to consider.  As I have indicated, the requirement to consider these matters must arise only if there is material before the Tribunal showing that there is something to consider. 
27. [27]
    The obligation in giving reasons on a member of a tribunal is to explain how the decision of the tribunal was arrived at.^[19]  It does not require each and every bit of evidence to be recorded, or every argument of the parties to be dealt with, much less that issues which do not arise on the material before the tribunal be mentioned.  All that the Senior Member could have said in this matter was: “None of the matters listed in s 48(3) arise on the material” which does not serve to explain how the decision was arrived at.  I do not consider that there was any deficiency in the reasons of the Senior Member.^[20]  The mere fact that the Senior Member did not refer to an applicable provision does not mean that he did not apply the law.^[21]  I do not consider that this complaint is made out. 

Reasonable excuse

28. [28]
    In acting under s 48 the Senior Member found that the appellant had failed to comply with Tribunal directions without reasonable excuse.  This was a finding that s 48(1)(a) applied.  The directions of the Tribunal which had not been complied with were not identified in the reasons, but on the material before the Senior Member consisted of all of the directions directed to the appellant in the course of the proceeding, as discussed above.  These were the direction of 20 January 2021 to file and serve a response as required by the QCAT Act and Rules, the direction of 28 April 2021 to file and serve a written explanation for his failure to attend the compulsory conference, and to file and serve a response, and the direction of 21 October 2021, to comply with the first direction to file and serve a response. 
29. [29]
    The appellant argued that at the time he had a reasonable excuse, relying on a medical report from a nephrologist which spoke of the appellant’s medical condition.  This was kidney failure, as a result of which the appellant was receiving dialysis three times a week, and had been since September 2019; it was said that the appellant had now (in February 2022) attended the hospital on “more than 320+ occasions for palliative dialysis”.  The doctor referred to a number of symptoms experienced by the appellant, and expressed the opinion that: “The period 2020 to 2021 have been particularly debilitating for Jason and his capacity to function and engage in the usual activities of life has been significantly impaired if not non-existent.” 
30. [30]
    The doctor does not say that the appellant was at the relevant time incapable of managing his affairs, to the extent that he could not fill in a form and file and serve it, or communicate with the Tribunal, or that he was unable to speak on the phone at a compulsory conference.^[22]  It was not said that he was incapable of seeking an adjournment of the conference to a time when he was not undergoing dialysis.  Whatever his symptoms were at the relevant time, they did not prevent him from speaking on the telephone when he was rung by someone from the Tribunal, or from sending an email to the Tribunal that day.  That shows that he was not incapable of doing what was required of him.  It does not show that he was incapable of preparing, filing and serving the written explanation for his failure to attend the compulsory conference, as required by the second direction.  The conclusion is certainly open that this material does not show that the appellant had a reasonable excuse for failing to comply with the directions of the Tribunal. 
31. [31]
    None of that matters, however, because this material was not before the Senior Member, so he made no error of law in failing to take it into account.  If the appellant had complied with the second direction, that would have raised the issue of whether the appellant had a reasonable excuse for not complying with the directions, but as it was, the only material before the Senior Member which even hinted at any question of excuse was the reference in his email to “hospital commitments”.  That however provides in itself no reasonable excuse for failing to attend a compulsory conference at any time, and if the email had just been seeking to arrange a different time at which he would be able to speak on the telephone at a compulsory conference, it would have been worded very differently. 
32. [32]
    Again, nothing in the material before the Senior Member raised the issue of the existence of a reasonable excuse, so it was unnecessary for him to address it in his reasons.  The fact that he mentioned that the failure to comply was without reasonable excuse shows that he was conscious that the absence of reasonable excuse was potentially an issue, but it became a real issue only if there was something in the material before him to raise the possible existence of a reasonable excuse.  There was not, and the Senior Member committed no error of law in not expressly considering an issue not raised. 
33. [33]
    It was also submitted that it was reasonable for the appellant to infer, from the reply from the Tribunal that his email would be placed on file, that the Tribunal would have advised him of the hearing of the original application, and that he would be given the opportunity to cross-examine the respondent’s witnesses.  In my opinion such an inference is not reasonably open simply from a statement that the email would be placed on file, and he had no proper basis for any such belief.  But even if he had, he should have been disabused by the two subsequent directions made by the Tribunal. There is no substance to this argument.  The last direction should have made it clear that he was facing a decision against him if he failed to comply with the direction to file a response.  He did not comply, so a decision was made against him.  It was not a decision on the merits after a hearing; an order under s 48 is in the nature of a default decision if the situation is such that the requirements for the power arise, and it is exercised.  The Tribunal is entitled to act on its own motion under s 48(4), so there was no need for an application by the respondent to enliven the power. 
34. [34]
    There was no breach of natural justice in giving a decision under s 48.  The last direction made by the Tribunal, and sent by the Tribunal to the email address the appellant had used when he sent his email to the Tribunal, was sufficient notice that he was at risk of an adverse decision if he did not act within a limited time.  That gave him a reasonable opportunity to take the required action, or at least to start communicating with the Tribunal, but he did not do so.  I do not accept that it was reasonable for him to wait for something else to happen.  There is no substance to the second basis on which the decision of the Senior Member is challenged. 

Statute of Limitations

35. [35]
    The third basis was that the appellant had a defence to the respondent’s claim under the Limitation of Actions Act 1974 (Qld) s 10, because the proceeding was commenced six and a half years after the work was done.  If the respondent had a cause of action only for damages for breach of contract, that would be a good defence under that Act, but the Senior Member pointed out that the respondent had no cause of action in contract, but only in tort, where time does not run until some damage is suffered.  This for practical purposes is when some defect in the work done emerges, and there was no evidence before the Senior Member as to when that occurred.  The appellant in submissions argued that certain photographs which were then on the file showed that the work was defective from the time it was finished, but there is no evidence that the photographs showed the work in the state it was in immediately after it was finished. One list of defects gives dates that the defects were first noticed in October 2018. 
36. [36]
    None of this is to the point however, because a defence under the statute of limitations applies only if raised by the defendant, or, in the Tribunal, by the respondent.  Although there are not pleadings as such in the Tribunal, the appropriate place to raise it was in the response, which the appellant did not file, despite the repeated directions of the Tribunal.  There was therefore no error of law on the part of the Senior Member in ignoring any possible defence under the Limitation of Actions Act.  Besides, a final decision under s 48 is at least a summary decision, if not a default decision, and not a hearing on the merits.  There is no substance in this argument either. 
37. [37]
    There were some further submissions made by the appellant, largely directed to what were said to be deficiencies in the evidence acted on in relation to rectification costs.  Most of these are answered by pointing out that the Tribunal is not bound by the rules of evidence,^[23] and that the right to cross examine a witness applies only when there is a witness who gives oral evidence to the Tribunal.^[24]  As well, a decision under s 48(2)(b)(i) is really a species of default decision, not being a decision on the merits after a hearing.  To make a final decision in the applicant’s favour, in circumstances where there has been no hearing, must be a reference to giving the applicant the relief claimed.  When a default decision is made under the QCAT Act s 50, it is for “the amount claimed in the application”: s 50(2)(a). 
38. [38]
    I note that if a proceeding has been dismissed or struck out under s 47 or s 48, there is a power to reinstate that proceeding if the Tribunal considers that it was dismissed or struck out in error: s 49(5).  But there is no equivalent provision if a final decision in the proceeding in favour of the applicant has been made under those sections.  Whether this is a defect in the legislation is not a matter for me to consider. 
39. [39]
    The matters advanced on the appeal do not show that any error of law was made by the Senior Member, whose decision has not been shown to be in error.  In those circumstances, the appeal is dismissed.  It does not appear that the respondent has incurred any legal costs in the appeal, so there will be no order as to costs.