Miller v Hull & Hull, Re
[1996] QDC 343
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
- Miller v Hull & Hull, Re[1996] QDC 343
- Add to List
Miller v Hull & Hull, Re[1996] QDC 343
Miller v Hull & Hull, Re[1996] QDC 343
DISTRICT COURT | No 170 of 1996 |
CIVIL JURISDICTION
JUDGE BOYCE QC
IN THE MATTER OF SECTION 94(1) OF THE QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991
and
IN THE MATTER OF MARK DAVID MILLER AGAINST MERVYN HULL AND JOANNE HULL
BRISBANE
DATE 22/11/96
JUDGMENT
HIS HONOUR: This is an appeal pursuant to section 94 of the Queensland Building Services Authority Act 1991. I propose to give reasons for judgment ex tempore, I reserve the right to revise these reasons for judgment in due course.
The decision appealed against was given on 24 November 1995. It was a dispute in relation to some extensions to a dwelling house. The owners, Mr and Mrs Hull, in effect, wished to construct a deck at the back of their house together with cladding on the back walls. The parties ultimately signed a Queensland Building Services Authority standard building contract schedule. There was a dispute at the hearing as to what was the contract price. The Tribunal ultimately concluded that the contract price ought to be treated as $18,000.
Various reports from persons with expert knowledge in this area were placed before the Tribunal at the hearing, the Tribunal observed in relation to a report from Mr Griffiths as follows:
“Mr Griffiths who prepared a report on behalf of the owners states in effect that the initial plan could have been made to work if the works were done properly. Mr Griffiths was not required for cross-examination by Mr Miller. This does not means his opinions are uncontested, it simply means they are untested.
Mr Harry Edwards is an inspector with the Queensland Building Services Authority. He provided two reports in this matter and has made some estimates about costings. He was comprehensively cross-examined. Sometimes, when experts are cross-examined, the cross-examiner's case is even further diminished. I will never know in respect of Mr Griffiths' evidence. I was very impressed with Mr Edwards, I have no doubt he was impartial and independent.”
The Tribunal concluded, “I rely particularly on Mr Edwards' evidence.” The Tribunal then concluded that Mr Edwards' estimate of $7,791.25 to rectify defects should be accepted. The Tribunal further concluded that there should be a further deduction in favour of the owner in the sum of $3,333.33. There was therefore a total deduction in favour of the owners of $11,124.58. The Tribunal then concluded there was a balance outstanding to the builder of $3,275.42. A small amount of interest was allowed to the builder on that sum.
On one view of the matter, there was significant success for the home owners in that a substantial sum was deducted from the claim of the builder for rectification work. The Tribunal made no order as to costs. Mr Zillman has urged all that can be urged on behalf of the appellants who are the home owners, Mr and Mrs Hull. The builder has not appeared on the hearing of this appeal.
It is submitted that the Tribunal was in error in rejecting the evidence of Mr Griffiths and Mr Morris, and it is submitted that the Tribunal erred in preferring the opinions of Mr Edwards in this situation.
I note that a analogous situation does arise on many occasions in personal injury cases. It is quite common for medical reports to be tendered by consent without the doctors being required to give evidence. It does not follow that, at the end of the day, the Court, in making findings, must accept the opinions set out in the reports simply because the writer of the report was not called for cross-examination. The Court has to assess the matter on the whole of the evidence at the end of the day. In this case, the Tribunal saw and heard the witness, Edwards, and was obviously impressed by the evidence that he gave. In this situation, the Tribunal enjoys an immense advantage denied to an appellate Court which acts only on the record.
The way the statute is worded places considerable obstacles in the path of any appellant. Section 87, sub-section 3 provides that the proceeding is to be conducted with as little formality and technicality and with as much speed as the requirements of the Act and proper consideration of the matters before the Tribunal permit. Further, the section provides that the Tribunal is not bound by the rules of evidence but may inform itself in any way that it considers appropriate.
The appeal section is section 94 and provides for an appeal by leave of the District Court. The construction of this section was considered recently by the Court of Appeal in the case of Why Wait P-T-Y L-T-D and Mays v. Davison, (Court of Appeal number 184 of 1995, judgment delivered 4 June 1996).
The Court observed as follows:
“Under section 94 subsection 1 of the Queensland Building Services Authority Act 1991, an appeal is not stated to be an appeal de novo in which the appellate Court is completely free to draw inferences different from those arrived at below or to make findings inconsistent with those reached by the Tribunal.
On the contrary, the Court's appellate function is limited in the manner explained in decisions such as Clarke v. Trevelyan 1963 Queensland Weekly Notes 11, Callinan v. Boyne Smelters 1984 2 QR 501, Aitken Transport v. Voysey 1991 QR 510, the Court specifically approved the observations of Kimmins DCJ in Ashmore Constructions Pty Ltd v. Queensland Building Services Authority [February 1993 District Court Appeal Number 11/95].”
The Court of Appeal further observed:
“With respect, His Honour's judgment to that effect appears correct. It also has the merit of restricting the scope of appeals on matters of fact which may be brought from the Tribunal which, having regard to the provisions of the Act of 1991, was evidently designed to provide a more informal and less expensive procedure and forum for determining domestic building disputes than are generally believed to be available in ordinary litigation.”
In Callinan v. Boyne Smelters [Supra] Mr Justice Connolly observed:
“The appeal not being by way of rehearing, the findings may be set aside only if they are manifestly wrong, Clarke v. Trevelyan 1963 QWN 11. In other words they are equated to the verdict of a jury.”
In Aitken Transport v. Voysey [Supra] Mr Justice Kelly SPJ observed:
“In this case the findings of the learned District Court Judge equated to the verdict of a jury and so will be disregarded only if it is shown that they are manifestly wrong. Clarke v. Trevelyan 1963 QWN 11.”
One must observe that the general intent of the legislation appears to be that a determination of the Tribunal should, in the ordinary course, bring the dispute to an end and that the dispute should not be protracted by further litigation. Notwithstanding an able argument from Mr Zillman for the appellant, I am not satisfied that any ground has been made out for interfering with the decision of the Tribunal.
I am not satisfied that the reasons given by the Tribunal are manifestly wrong. In the circumstances, I dismiss the appeal and I make no order as to costs.