DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against a decision of the Queensland Building Tribunal on 14 November 2002.  The notice of appeal was filed on 12 December 2002.  For reasons given in Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131, the appeal is an appeal by way of rehearing in the usual sense.

Course of the appeal

2. [2]
   The matter initially proceeded reasonably expeditiously; outlines of argument were filed on behalf of the appellant and both respondents by early February 2003. On 13 March 2003 leave was given to amend the notice of appeal, and an amended outline of argument was filed on 15 April 2003.  There were then some difficulties in getting a certificate of readiness filed, and on 7 May 2003 orders were made by another judge that the appeal be struck out unless the appellant within certain specified times did various things.  A certificate of readiness was then filed, and subsequently the matter was listed for hearing before me on 19 August 2003.

3. [3]
   On that occasion counsel for the respondents appeared but sought an adjournment, for reasons which I need not go into. That application was opposed, and without deciding it definitely it appeared to me that it would be better to hear the submissions on behalf of the appellant, and then see whether the respondent should be given further time before having to respond. In the course of hearing those submissions, it emerged that it was desirable if possible to find out what had occurred at two directions hearings, the significance of which I will explain below. Accordingly, it was convenient anyway after hearing the submissions on behalf of the appellant to adjourn the further hearing of the appeal to a date to be fixed, after I had available details of what had occurred on the directions hearings, by which time counsel for the respondents should be in a position to respond fully to the appeal.^[1] 

4. [4]
   Attempts were then made to obtain the building tribunal record of the directions hearings on 5 August 2002 and 12 September 2002.  Initially a CD was provided which was supposed to include those directions hearings, but proved to be unplayable.   After further efforts by my associate and the registrar of the Court, eventually two tapes were provided.  I was told that the difficulty and delay associated with this was that the Commercial & Consumer Tribunal, which had taken over the records of the building tribunal when that tribunal was abolished and replaced with the new tribunal on the commencement on 1 July 2003 of the Commercial & Consumer Tribunal Act 2003 (see s 161), sought that it be paid by the Court (or at least by someone) for the provision of this record to the Court for the appeal. 

5. [5]
   It is implicit in s 92(4) of the Queensland Building Tribunal Act 2000 that the tribunal keep a record of its proceeding, and in practice the tribunal has always kept a record of its proceeding;  transcripts are often referred to in appeals from the tribunal.  In such circumstances, there was an obligation on the tribunal, and there is an obligation on the new tribunal, to produce all of its relevant records to the District Court for the purpose of the District Court exercising its appellate function under the Queensland Building Tribunal Act 2000, and indeed under the new Act.  Rule 784(3) of the Uniform Civil Procedure Rules applies, and clearly requires recordings of a proceeding in the tribunal to be provided to the District Court if such a recording is available and relevant to the appeal.  There is no question therefore but that the tribunal is required to provide to the District Court any records it has which are relevant to an appeal.

6. [6]
   Apparently the new tribunal referred to s 100(8) of the 2003 Act, which provides:  “The appellant must pay the costs of the appeal, including the costs of any transcript.”  Apart from the fact that the present appeal is under the 2000 Act, not under the 2003 Act, so this subsection could have no application, what is in issue is the record (that is the recording) of the tribunal, not any transcript.  I was not asking the tribunal to produce a transcript, just the record that it held.  Whatever the subsection means^[2] it clearly does not provide any modification or qualification of the obligation imposed on the tribunal under the Uniform Civil Procedure Rules, and provides no justification for a refusal by the tribunal to provide records to the District Court unless the Court pay for that access.  The idea that the District Court should be required to pay to access records of a tribunal over which it exercises appellate jurisdiction is an absurd proposition, and could only be justified by the clearest statutory provisions.  The resolution in this appeal was significantly delayed by the wholly unjustified delay in the provision by the new tribunal of the relevant records.

History of the dispute

7. [7]
   Mr and Mrs Beard^[3] entered into a building contract with Mr Gamble^[4] dated 24 April 1995 for the construction of a residence on a particular lot.  The second respondent is the brother of the female first respondent, and the contract provided for the first respondents to assist with the construction, and that the work would be done “labour free without profit” by the second respondent.  However, it does not seem to me that this is of any particular significance in the outcome of the dispute, or the appeal, although it may have contributed to one of the matters which was in issue before the tribunal at some point. 

8. [8]
   The work involved the construction of a concrete slab on the ground, and in accordance with the ordinary requirements for such construction the ground under the slab was to be treated chemically to prevent termite infestation. This is referred to in the material as a “part A termite treatment”. The appellant before me, Mr Ball,^[5] was retained to apply the part A termite treatment, and certified that he had done so.^[6] 

9. [9]
   The first respondents moved into the property in December 1995. They first noticed a termite problem approximately eleven months later. Mr Beard spoke to the second respondent and was told to get a pest controller to deal with the job. He contacted a particular person, who attended the house and attempted to deal with the termites on approximately 15 occasions, but eventually told him that the termites were unstoppable and that they were originating from under the slab. In the course of this attempt to control the termites, the pest controller treated the ground around the perimeter of the house, what is referred to in the material as a “part B termite treatment”.^[7]  The house was built with pine frames, and these have been substantially eaten away, and Mr Beard believes that the only way to deal with the problem is to demolish the house and rebuild it.

10. [10]
    In 2001 the first respondents commenced a proceeding in the tribunal seeking to recover the costs of demolition and reconstruction of their home from the second respondent. A concreter who was at one time a second respondent in the proceedings before the tribunal^[8] and the appellant were joined at the instance of the second respondent.  The first respondent’s claim, which was for damages for breach of contract, was always in the tribunal only against the second respondent.^[9]  However the second respondent sought an indemnity.  The tribunal ordered that these additional parties be joined on 30 July 2001.^[10]  At the hearing when the order for joinder was made the appellant was represented by counsel.  There was also a direction for a mediation, and if this were unsuccessful, for the filing and serving of statements of witnesses, including by the appellant, who was to file and deliver statements by him and his witnesses, with relevant documents, within 14 days from receipt of the concreter’s material.  The order included the warning, “These statements and documents should prove all of the issues involved in your defence and counter-claim, if any.”  There was a mediation before a mediator, but that did not resolve the dispute.  The mediator reported on 10 October 2001 that the matter had not settled.

11. [11]
    There was a further directions hearing on 19 October 2001 before a member of the tribunal, at which hearing the appellant was again represented by counsel.  Directions were made including that the appellant file a statement by himself and all witnesses to give evidence for him at the hearing of the matter, with the statements to attach any relevant documents, by 4.00pm on 16 November 2001.  The same warning appeared on this order as on the order of 30 July 2001.  There was then to be a pre-hearing conference on 7 December 2001.

12. [12]
    The directions hearing on 19 October 2001 was before the then chair of the tribunal.  In the course of that directions hearing she referred to the direction about filing statements from witnesses and relevant documents, and the second respondent (who appeared in person) stated that he was under the impression that his solicitor had already done that.  There was a one page affidavit on the file from him, and the chair also referred to a report from the Department of Primary Industries and said among other things, “Basically what you would be relying on then at the hearing is what is effectively an expert report from M J Kennedy of Forest Products Chemistry and the Department of Primary Industries.  Now, it would be quite appropriate for you to call him as an expert and rely on what he said.  Effectively that’s a second statement we would treat that as that you can rely on but if there’s anything more that you want to add by way of explanation or a bit of history or an account of what happened you need to put that into writing.”  In other words, the chair of the tribunal was explaining what was meant by the paragraph in the directions order which had been made previously.

13. [13]
    It was submitted on behalf of the appellant that this involved a denial of natural justice and procedural fairness because this assistance was provided to the second respondent who was self-represented, but no such assistance was provided to the appellant at another stage in connection with the evidence of the appellant’s expert, Mr Langley. It is true that at that hearing there was no such explanation provided to the appellant, although the appellant was present in person and, insofar as this involved an explanation of the procedures of the tribunal, would have been in a position to obtain the benefit of it. But the appellant at that stage had legal representation, and at that stage it was reasonable for the tribunal chair to proceed on the basis that the appellant’s lawyers would understand the effect of the direction which had been made, and that insofar as it was necessary for that to be explained to the appellant personally,^[11] the lawyers would be able to, and would, do so. 

14. [14]
    There was no breach of natural justice or procedural fairness involved in not giving the equivalent explanation at that time to the appellant, in circumstances where he was legally represented, and where for that matter he was present and had heard the earlier statement made to the second respondent. There was a time later in the proceeding when the appellant was not legally represented, but the fact that this was said to another party on this occasion does not mean that there was any particular obligation on some other member on a later occasion to give any particular advice about the procedure of the tribunal to the appellant. No breach of the rules of natural justice by the tribunal has been shown, and this ground of the appeal is not made out. In any case, this ground appears to be based on the proposition that the evidence of Mr Langley, the relevant expert, was disregarded because he was not called to give oral evidence before the tribunal. As I shall explain below, that was not what occurred, and for that reason as well there is no substance in this ground.

15. [15]
    There was a pre-hearing conference on 7 December 2001, again before the then chair of the tribunal.  Again the appellant was represented by counsel.  A direction was made that the first respondents obtain an expert’s report regarding termite infestation and in particular access point or points and effectiveness and timing of preventative and treatment measures, and file two copies of the report and serve one copy on each of the respondents by 4.00pm on 14 January 2002.  There were then directions for any report or statement in response to the expert’s report to be filed and served within 21 days of receipt of the report, and within that same time limit each party was to file any additional witness statement or other document on which he intended to rely at the hearing.  There was a date fixed for a further directions hearing on 15 February 2002. 

16. [16]
    On 12 February 2002 the concreter applied to be released from the proceeding, and on 15 February 2002 a direction was made that that application be heard on 18 March 2002, unless by 22 February 2002 the second respondent consented to its being released from the proceeding, in which case the concreter was released as a respondent before the tribunal.^[12]  There were also directions for the respondents before the tribunal, including the present appellant, to file and serve copies of any report or statement in response to the report of Dr French by 4.00pm on 11 March 2002, by which time each party was to file any additional witness statement or other document.  At this directions hearing the appellant appeared in person, having filed a notice of that on 14 February 2000.  The matter was set down for a two day hearing commencing 9.30am on 8 April 2002.

17. [17]
    Notwithstanding that the appellant was present when the direction for the hearing was given, a notice of the hearing was sent by the registrar to the parties including the appellant on 22 March 2002 giving the date and place of the hearing.  The notice included a note which said among other things:  “Your witnesses (ie all persons who have provided statements) are also required to attend at the hearing unless the other party advises that they are no required for cross-examination.  You are required to bring to the hearing your copies of all statements and documents relevant to the dispute.”  One of the matters submitted on behalf of the appellant was that he was unaware that he was required to have his witnesses at the hearing.  If he was unaware, it was not for want of trying on the part of the tribunal to make him aware.  There is no substance to this submission.

18. [18]
    Prior to the hearing there was an application heard on 4 April 2002 for four witnesses to give evidence before the tribunal by telephone.  The appellant appeared in person on the hearing of that application, and consented to two of the witnesses giving evidence by telephone, but sought to have the other two witnesses appear in person,^[13] and the tribunal required those witnesses to appear in person to give oral evidence.  It noted that the appellant would be self-represented at the hearing, as would the second respondent.  The hearing date was confirmed.

The hearing

19. [19]
    At the hearing the appellant appeared in person. Evidence was given by Dr French, an expert for the first respondents who had prepared a report dated 24 January 2002 which became Exhibit 1.  Dr French found active termites at the time of his inspection on 23 January 2002;  the report gives a detailed description of what was seen in the various places, and where they were found.  The report notes that organochlorins were banned for control of termites in Australia at the end of June 1995, just after the property was treated.  Dr French concluded that an effective termite proofing operation had not been carried out.  He was not surprised that subsequent treatment with arsenic dust had not succeeded in eradicating an existing termite infestation in the building.  He considered that the termites were entering from under the slab.  He was not in a position to comment on the manner in which the initial treatment had been applied but for whatever reason there had been a breach of the chemical barrier within 17 months. 

20. [20]
    Dr French also gave some oral evidence, including that the termites were coming up between the block wall and the slab edge; he saw eight examples of that. He saw no instances of termites coming in from outside over the edge. He expressed the opinion that the part B termite treatment would have made no difference whatever. Dr French then began to refer to a report from Mr Langley,^[14] and the tribunal member stopped him since the report had not been filed.  The solicitor for the first respondents said that it had been served.  After further searching the tribunal member realised that she had it, and the matter continued.  Dr French disagreed with a statement by Mr Langley as to whether the species of termite concerned forms only one nest or a number of nests.  He said there could have been an external nest but they had apparently set up three sub-nests in the house itself:  p.20.  He also expressed the view that if cracker dust rather than sand had been used under the slab that might have reduced the effectiveness of a treatment using Heptachlor.

21. [21]
    Dr French was cross-examined by Mr Gamble, who asserted that there was not cracker dust under the slab, and asked about whether an area near a drain could have been treated (Dr French said it could have been). Then Dr French was cross-examined by the appellant. In the course of this he asserted that part of the area under the slab had not been treated because it was next to a retaining wall at the foot of which there was an agricultural drain, and in accordance with the prevailing standard the chemical could not be applied in an area where it could find its way into the agricultural drain. Accepting that this was the situation, Dr French did not change his opinion, since he said that there were indications of termites coming up from under the slab in areas which should have been treated, that is areas other than where the drain was. He said that the area above the pipe not being treated ought not to have been a problem, because of the actual layout; there were physical barriers, and the other areas which were supposed to have been treated.

22. [22]
    Dr French also expressed the opinion that the effective life of the chemical used, Heptachlor, was very difficult to ascertain, because it could vary in different situations, and there had been no useful experimental work on it. He said however that it was generally regarded as more durable than the chemicals which had become available since it had been banned.

23. [23]
    There was some questioning from the tribunal member, including about the timing and significance of the part B treatment. On re-examination Dr French said that the part B treatment was perimeter treatment which was supposed to prevent entry under the building, but if they do get in the part A treatment was a fallback, if it had been done. When asked to account for the presence of termites getting in from under the slab if the part A treatment had been done, he offered the explanation that perhaps a small amount might have been missed: p. 24. The inference is that if a proper part A treatment had been applied under the slab the termites would hot have been entering the house from under the slab. But when pressed further about the matter he did say that there were situations where termites for whatever reason could breach these barriers. He added, “I think this is one case we are looking at here.” (p. 26). I would interpret that as being an answer given on the hypothesis put to him in the question, which was the assumption that a part A treatment had been carried out properly under the slab. Whether that had occurred was the matter in issue before the tribunal, but as a result of this evidence the tribunal was certainly alive to the possibility that there could be the termite entry notwithstanding the proper application of a part A treatment.

24. [24]
    The tribunal member asked Dr French about the difference of opinion between Mr Langley and Dr Kennedy. Dr French said that he needed to have a lot more soil samples but you might expect to find some trace, presumably some trace in the samples that were undertaken. He said that the question of how many samples to take was a very very fluffy area. It does not seem to me that his responses at pp. 26-7 involve a clear opinion one way or another on the question of whether Dr Kennedy had taken sufficient samples. But clearly the tribunal was alive to the conflict on this point between Dr Kennedy and Mr Langley. At pp. 29-32 he was questioned further about whether Dr Kennedy took sufficient samples. He said at one point, “To be sure, you would have taken more samples. Obviously the more samples you take the more sure you are but he got no trace in any of the six samples.” Ultimately it did not seem to me that Dr French said anything more helpful than that about the question of whether or not Dr Kennedy took sufficient samples.

25. [25]
    The appellant was then allowed to ask Dr French some further questions. He was asked about the possibility of termites coming through a brick wall because of a poor mortar joint, but said that he could not see any evidence of any termites coming through the mortar at all. Dr French accepted that it was possible for the termites to have entered in the manner described by the appellant, although it does not seem to me that he would attribute any great likelihood to that explanation: p. 29. At p. 32 he said that if the wall was built with interlocking H blocks it was less likely that termites were entering through a bad mortar joint.

26. [26]
    After the morning break the tribunal member raised the question of the Queensland Building Services Authority involvement. Apparently a claim had been rejected by the Authority, but the matter had proceeded further and at that stage the solicitor for the first respondents thought that the file was still active. The tribunal member suggested that it might be in the interest of the first respondents to go back to see what findings were sought which were relevant to any insurance claim.

27. [27]
    Then Mr Beard gave evidence. Three statements by Mr Beard also went into evidence, as Exhibits 6, 7 and 8:  p. 54.  He said that most of the subcontractors were arranged by the builder, including the concreter:  p. 38.  He understood that the concreter had arranged for the appellant to carry out his work.  He found termites about six months later.  He notified the builder (that is the second respondent), who told him just to get a pest controller to deal with the job:  p. 39.  Mr Beard could recall the area under the lower slab being sprayed, but he could not recall being there when the area under the upper slab was sprayed:  p. 40.  He gave some description of investigations that had been made, including making holes in walls and block work, and what was found, in the course of the attempt at eradication by the pest controller.  His conclusion was that the termites were coming up between the concrete slab and the wall:  p. 42.  At p. 44 Mr Beard described how the samples were taken;  no water was used at the end of the drilling, and the last bit of the hole was broken out rather than drilled through, with the plastic membrane underneath not being broken.

28. [28]
    When cross-examined by the second respondent, Mr Beard agreed that he had chased up and paid the subcontractors to save the second respondent’s workload: p. 46. Mr Beard said on cross-examination that the termites seemed to be coming from under both slabs, and there were signs that they were coming under the garage slab and up the corners of the retaining wall, where engaged piers were removed: p. 48. He was then cross-examined by the appellant. He said that he had discussed with the second respondent using Heptachlor on the building because he did not trust the life expectancy of the new products which were to replace it: p. 48. He did not discuss any other form of termite protection: p. 49. He said that organising to have this done was left to the builder and the concreter: p. 49. He had no direct dealings with the appellant. He referred to evidence from the other pest controller suggesting that a termite track had come over the footings and in through the brickwork of the house, and was cross-examined about whether there were termites established under the garage slab.

29. [29]
    There was some cross-examination with a view to showing that the termites might have entered in a particular way which would bypass a chemical barrier, which seems to me to involve questions of expert evidence and to which Mr Beard understandably could not respond: p. 52. Reference was also made to the proposition that no termite treatment could render a house 100 percent termite-proof, to which Mr Beard responded, perhaps understandably enough, by asking whether this meant that the treatment was ineffective and was a waste of time: p. 53. Although nothing useful was elicited from these questions, they did raise the issue of whether the termite problem had been caused by some failure in relation to the part A treatment, or whether the termite problem could well have been present anyway even if the part A treatment had been properly applied. The appellant had no other questions at that time; the tribunal member indicated that he could speak later if need be. Mr Beard was then excused.

30. [30]
    The second respondent gave evidence, and two statements by him went into evidence: Exhibit 9, Exhibit 10.  There was a problem about cross-examining the second respondent, because the first respondent’s solicitor did not have a copy of one of the statements which went into evidence.  Accordingly he did not cross-examine until after lunch, but the tribunal member asked some questions, including whether there was cracker dust under the slab;  he said that he believed it was actually sand, and that that was what had been used by this concreter on other occasions.  He had no direct dealings with the appellant, and gave the concreter no instructions about what termite treatment was to be used;  he expected that the appellant would have been engaged, because the concreter was using him to treat under slabs:  p. 58.  He regarded the appellant as the subcontractor of the concreter:  p. 59. 

31. [31]
    Under cross-examination by the solicitor for the first respondents, the second respondent conceded that if something went wrong he was liable because he was the builder: p. 62. He would have expected the retaining wall to be termite proof. The part B treatment had not been done at the time the termite infestation first appeared, because there was still work going on at that site; the first respondents had moved in before work had been finished on the site: p. 63. He said he told Mr Beard to get the part B treatment done. He knew that Mr Beard had already made contact with another pest control man, whereas he had had no dealings directly with the appellant, and he did not think it mattered whether it was the appellant or another pest controller who did the work: p. 64. He assumed the termites were coming from outside because the part B treatment had not been done: p. 64. The appellant did not ask him any questions. There were some further questions asked by the tribunal member, particularly in relation to how subcontractors were engaged. He gave some evidence about being present when the spray was applied to what was to be the upper part of the slab, and could recall the odour from the spray: p. 68. He said the first respondents had paid the subcontractors direct: p. 69. There were a few more questions asked by the solicitor for the first respondents, and then the second respondent stood down.

32. [32]
    Dr Kennedy then gave evidence by telephone; a report by him had already been provided to the tribunal, and became Exhibit 10.  He was from the Department of Primary Industries.  Six samples were taken from the soil to 100mm deep where possible on 6 November 2000.  All samples were tested for Heptachlor and contained less than the detection limit for the equipment, .05grams per square metre.  An application at the concentration specified in the Australian Standard, and allowing for degradation on the basis of what Dr Kennedy described as a conservative half life of three years, ought to have produced a concentration of about 6 grams per square metre by the date of sampling.  On the basis of the testing he concluded that an effective sub-slab termite barrier did not exist in the areas of the building sampled. 

33. [33]
    Dr Kennedy said it was sufficient to take about half a dozen samples for the area of interest, and that was something he had done on many occasions in the past: p.73. He had no note of whether the soil samples obtained consisted of cracker dust: p.75. Neither the second respondent nor the appellant asked Dr Kennedy any questions; there were some questions asked by the tribunal member who asked whether if cracker dust had been present that would have impacted on the degradation of the product; Dr Kennedy did not think it would make much difference at all. He was asked about why there was so much less found than what would be expected, and in effect his answer, which was quite lengthy, comes down to the proposition that it probably was not put there in the first place: p.76.

34. [34]
    The appellant gave evidence, and three statements of his became Exhibits 11, 12 and 13.  He said there that his business was employed by the concreter to provide the part A treatment, which was actually performed by a named individual by whom part A certificates were issued.  He was not notified of any additional alleged infestation until the joinder application, and that if he had been contacted earlier his business would have acted appropriately regarding treatment and prevented further damage.^[15]  He stated in Exhibit 11 an intention to call an independent expert on pest control and an independent expert to assess damage to the property and the cost of [rebuilding].^[16]  In Exhibit 12 he referred to a statement of Mr Langley, but this further statement contains nothing else in the way of evidence.  Exhibit 13 is a statement in response to the inspection report by Dr French, however this statement is argumentative rather than evidentiary.  It does say however that because it was not possible to treat the area at the back of the retaining wall because of the presence of an agricultural drain, “Termites could quite easily bypass any under slab treatment by entering the retaining wall or using water joints to gain entry to the building.”  That certainly raised the issue that the presence of termites in the property did not necessarily mean that there had been a failure to apply the part A treatment in accordance with the requirements of the Australian Standard.

35. [35]
    Exhibit 12 concluded by saying:  “I adopt the first defendant’s expert on costs of damages, costings but do not admit the extent, or at all of the damages.”  This is rather puzzling;  there was no evidence in relation to these subjects placed before the tribunal by the second respondent (the first respondent before the tribunal).  This was the subject of some not very enlightening cross-examination at pp.80-1.  On the former page it appeared at one point that the appellant was accepting the figures on costs, but it is not clear which figures they were.

36. [36]
    The appellant gave evidence, but in chief merely verified the statements. He was cross examined about the theory of the termites coming in via the unprotected area at the rear of the retaining wall. As to there being holes in the wall, he conceded that it was a possibility but not a probability: p.81. He said his account had been paid by the concreter, and he provided the part A certificate to the concreter who he expected would have passed it on to the appropriate person:  p.82.  The appellant said he had not been able to locate the man who actually did the work:  p.83.  The appellant thought he might have returned to England.  He said that there had been no problems with any other work he did before and afterwards:  p.85.  The appellant was not able to offer any explanation for the absence of any detectable amount of Heptachlor in the samples taken by Dr Kennedy. 

37. [37]
    After he had completed his evidence, there was some discussion about whether the quantity surveyor who was giving evidence as to quantum had to be called. The solicitor for the first respondents summarised the effect of his evidence, that the cost of demolishing the house and reconstructing it, which was seen to be the only viable course, came to $268,000 plus $5,000 per year for ten years for ongoing termite treatment. It also included temporary accommodation for the first respondents while their house was being rebuilt. The tribunal member then spoke to the appellant as follows (p.87):

The tribunal member then said that the evidence would have to be called.  There was some discussion about other witnesses, in the course of which the tribunal member asked the appellant whether he was calling any other witnesses, and he replied that he was not:  p. 91.

38. [38]
    The following day evidence was given by someone from the Queensland Building Services Authority in relation to an insurance claim in respect of these matters, then the quantity surveyor was called by the first respondents to verify his report, which became Exhibit 14.  His figure came to a total of just under $268,000, calculated in about 1999 or 2000;  he said there had been price increases since then which would justify an increase to December 2001 of 2.86 percent:  p. 103.^[17]  They were the most recent figures then available.  He said that he understood from people in the industry that termite control using the new and less effective materials would cost $3,000 to $6,000 and that it now must be inspected and possibly treated on an annual basis:  p. 104.  Hence he had allowed a total of $50,000 for this.  He was not asked any questions by anyone.  The tribunal member asked the appellant whether he had any questions to which he replied:  “No, not really.  I have to accept whatever …” (p. 104). 

39. [39]
    Evidence was then given by Mr Raw, the person from the concreting company who laid the slabs: p. 106. He said he was engaged to do the work by the second respondent, and was asked to arrange a pest spray and he arranged the appellant to do that. He understood he was paid by the owners: p. 107. He was given certificates of part A treatment, and passed them on to the owners when he was paid.  Mr Raw could not remember what the material the under slab was, whether or not it was cracker dust:  p. 108.

40. [40]
    Mr Short, the pest control operator initially called in by the first respondents, gave evidence; a statement by him was Exhibit 16.  He said in that statement that it was quite apparent to him that the termites were coming from under the slab.  He had provided a brief report on 17 July 2001, which included a statement that in November 1996 an inspection “found a large termite track travelling over the footing and in through the brickwork of the house.  I proceeded to do an outside perimeter treatment to the house where accessible.”  He referred to some of the work that had been done to treat the infestation, and gave his opinion that the major problem was that termites were able to travel under the slab and into the house in numerous places.  He confirmed that opinion in the witness box, and explained a little further as to how he had been reached:  p. 111.  He referred to the difficulty with the presence of the drain behind the retaining wall (p. 113), so that was something he was conscious of.  He was asked about future termite treatment, and referred to various treatments available but said that a split level house with a block wall with backfill was probably the worst scenario to termite proof:  p. 114.  He did not give any figures as to the cost involved in doing so.  He referred to some of the things he had done to try to eradicate the termites.  He was asked about the possibility of other treatments which had not been tried which might have been available, but he could not suggest anything in particular. 

41. [41]
    Cross-examined by the appellant, Mr Short said he did not regard the block wall as a physical barrier because it had joints: p. 117. He said that the termites were not coming through the block work, but where the blocks abutted two strengthening piers on either corner there was a gap behind them when they were taken down and there were termites there: p. 118. He expressed the opinion that this strengthening block work on either corner provided a method by which the termites were able to find an entry point which involved their going underneath the chemical treatment. He did say that in his opinion if the area under the slab had been properly treated it should stop termites being able to travel under it although there was a risk that after the material had been treated some further work would be done on it before the slab was actually poured: p. 120. There was no evidence that that had occurred in this particular case. He said that it was possible for the termites to travel if there was a shrinkage gap between the slab and the footing itself: p. 121. He could not comment on the suitability of Termi-mesh as a preventative measure.

42. [42]
    At p. 122 the appellant was asked again whether he had any other witnesses, and said no. There was then some further cross-examination of him by the solicitor for the first respondents. He confirmed that his guarantee was for a period of 12 months which he understood was the industry standard:  p. 122.  This problem arose more than 12 months after the work was done.  The solicitor for the appellant then sought to tender a valuation showing the value of the house now and the value that it would have had if the termite infestation had not been present.  The valuer gave evidence and his report became Exhibit 17.  In answer to a question from the second respondent, he expressed the opinion that it would probably be cheaper in the long run just to rebuild from scratch:  p. 130.  The appellant did not ask any questions of the valuer.  At the conclusion of the hearing that day, the parties were invited to put in submissions in relation to the matter.  The second respondent sought to raise an argument about quantum, and he was told by the tribunal member that that was a matter which he could address in his submissions:  p. 132.  The tribunal then adjourned.

43. [43]
    Mr Langley’s report was not made an exhibit, but it is in the files of the tribunal with the exhibits. The report does not provide details of Mr Langley’s expertise. He referred to the inability to treat the area in the vicinity of the retaining wall because of the presence of the drainage system. Reference was also made to the presence of cracker dust as the bedding material under the slab, which he said was not a suitable material for treatment, the exposing of some of the external perimeter footings which prevented effective soil chemical treatment, and the failure to provide a part B treatment until after the infestation occurred.  On the occasion of his inspection (on 2 November 2001) he found some termite activity from a particular species of termite, the most common in Australia of economic importance.  He doubted whether the primary colony was under the concrete slab, and suggested that untreated soil behind the external retaining walls could be the main area for concealed access and entry point through water joints and the external cement block foundations. 

44. [44]
    Mr Langley did not dispute the test results of Dr Kennedy, but questioned any conclusions based on them. He said the limited amount of samples taken over the treated area was not sufficient and consideration had to be given to the bedding materials used having degraded the chemical and diminished the test results. In his opinion the construction methods used meant that a chemical termite protection system alone would not provide an effective barrier. He was not persuaded that an established colony of subterranean termites had formed under the concrete floor slab. He found it unusual that no detectible level of chemical residue could be recorded, knowing residual properties of the chemical group, but attributed this to the use of cracker dust as a bedding medium under the slab. He suggested further tests to determine whether they confirmed an absence of detectible pesticide. He expressed the view that the problem was principally attributable to the builder’s construction methods.

Post-hearing matters

45. [45]
    At the conclusion of the second day of hearing on 9 April 2002, the tribunal ordered that the parties file written submissions by 3 May 2002.  Attention was directed to submissions in relation to the particular matters relevant to the claim on the Queensland Building Services Authority under the insurance policy, but there was nothing confining the submissions to that matter.  The parties were also given express liberty to apply to the registrar for a further time and date for hearing to address their submissions, but unless there was such an application brought by 10 May 2002 the tribunal would prepare reasons for decision on the basis of the written submissions.  Submissions were received on behalf of the first respondents on 2 May 2002, and a submission signed by the appellant was received on 3 May 2002. 

46. [46]
    The appellant’s submission stressed that only a part A treatment had been provided, and that the appellant was not responsible if the termites were coming through the retaining wall because the area behind the wall could not have been treated in accordance with the Australian Standard, because of the drain. This was said to be supported by the evidence of Mr Short, whose evidence was also inconsistent with Dr French’s claim that the retaining wall was a physical barrier. The appellant disputed Dr French’s knowledge of termite control, although relying on his evidence about other possible explanations for the absence of the chemical in the tested samples. Other points made were that it was strange that six years of treatment had been unable to control the termites in this property, that initially the termites were seen apparently entering the building in an area near some water tanks, and that the amount of disturbance in the property over the years had made it difficult to work out exactly what had originally happened.

47. [47]
    There were also some brief submissions as to quantum, although this was limited to the proposition that the figures must be grossly exaggerated because a house which cost $85,000 six years ago could not now cost $275,000, and there must be parts of the house which are able to be salvaged. It was also submitted that the first respondents had failed to mitigate their losses, and the appellant had not been asked to give advice as to the appropriate method of termite control before construction started. For these reasons the appellant submitted that he was not responsible for the losses suffered by the first respondents.

48. [48]
    On 23 May 2002 the tribunal member delivered her decision.  She noted that the quantum assessment was at that stage disputed by the respondents:  p.2.  She noted that the appellant was querying the figure given by the quantity surveyor as the cost of demolition and rebuilding the house:  para 67.  She summarised the evidence of the various witnesses, in a way with which I could find no fault.  Reference was made to the report of Mr Langley which had been filed in the tribunal.  As to this the tribunal member said at para 76:  “Mr Langley was however not called to give oral evidence in relation to his report.  I have however considered his report in the context of other evidence I have taken into account in arriving at my findings in this matter.”  She then went on to quote the conclusions stated by Mr Langley.  On the question of cracker dust, she was unable to reach any concluded position having regard to the limited evidence before her about it.  She accepted that overwhelmingly the technical evidence before her at the hearing was that the termite entry was not external and that the performance of a part B treatment whenever it occurred did not affect the termite infestation that had already commenced:  para 35.

49. [49]
    At para 83 the tribunal member made a number of specific findings:  (i) the absence of a part B treatment was not the cause of the termite entry;  (ii) there had been a failure to perform a part A treatment in compliance with the standard;  (iii) termite entry is occurring from under the slab;  (iv) the second respondent was really the builder on the site, and this was not a case where he had lent his licence to the first respondents.  Reference was made briefly to the evidence on which these findings were founded.  There was evidence to support all of them. 

50. [50]
    In relation to the proposition that the termite entry was coming from under the slab, the contrary evidence of Mr Langley was specifically rejected in favour of the evidence of Dr French and Mr Short. That reflected the resolution of a conflict in expert evidence which was open on all the material before the tribunal, and indeed on the basis of my own review of the evidence seems to me to be the appropriate way to resolve that conflict. Overwhelmingly the evidence of those people who have some particular familiarity with the actual situation in this house, whether expert or not, indicated that the termites were coming from under the slab, rather than from outside. On the evidence before the tribunal member, such finding was clearly open, as were the other findings made.

51. [51]
    The tribunal rejected the counter-claim of the second respondent. She found that the appellant was engaged as the second respondent’s subcontractor through the agency of the concreting subcontractor: p.86. This was a reasonable and indeed appropriate analysis of the legal situation on the basis of the evidence of all the parties as to how the work undertaken by the appellant had been arranged. She went on to find on the whole of the evidence that the appellant had failed to perform a part A treatment in accordance with the Standard so that he was in breach of the subcontract agreement which was (impliedly) to provide a part A treatment which did comply with the Standard.  Similarly she found the second respondent in breach of his obligations to the first respondents to provide a complying part A treatment to the site. 

52. [52]
    The tribunal member noted that the only evidence in relation to damages was that led by the first respondents’ quantity surveyor, but went on to say that she proposed to make specific findings in relation to matters of interest to the Queensland Building Services Authority and then allow the authority to reach a decision in relation to the insurance claim on the basis of those answers before she considered the matter of any orders which might be made against the first and third respondents. Accordingly she went on to make a number of findings, and adjourned the matter to see what the authority would do, and if necessary to receive further submissions from the parties before delivering final reasons. At that stage therefore all that had really been done was that a number of findings which were thought to be relevant to the QBSA in relation to the pending insurance claim, were made in the hope that that authority would deal with that issue. This was for the entirely practical reason that it appeared likely that any money payable under the insurance policy would be the most promising source from which the first respondents might actually receive anything in relation to this house.

53. [53]
    A further directions hearing was held on 5 August 2002 but at that stage the QBSA had not completed consideration of the insurance claim.  At that directions hearing there was a solicitor appearing for the appellant.  The appellant and second respondent were directed to make submissions in relation to the extent of liability which they ought to bear by 30 August 2002, with the matter being listed for further directions on 12 September 2002. 

54. [54]
    On 30 August 2002 nine pages of submissions were lodged on behalf of the appellant.  Reference was made to the duty on the owner or the builder to mitigate their losses which was said to be the basis of the submissions, and there was a complaint about the failure to contact the appellant promptly, either to complete a perimeter treatment or to undertake any investigation when the termites first appeared.  It was noted there was no findings as to whether the termite entry in July 1996^[18] caused damage or that the termites entered the house at that time from under the slab.  It was submitted that there was no evidence of quantum of damages provided with regard to the damage existing in July 1996, when the presence of termites was first noted.  It was submitted that the appellant was not liable for any damages which occurred after the termites were discovered in July 1996.  It was submitted that had this occurred the appellant would have had the obligation to eradicate the termites and pay for any rectification work required which it was submitted would have been very mild at worst.  Accordingly it was submitted that the builder should only be entitled to recover such damage as had occurred as at July 1996, something which had not been proved by the evidence.

55. [55]
    These submissions are entirely unpersuasive. There was simply no evidence from any independent expert, or even from the appellant for that matter, that there was anything which he could and would have done had he been contacted which the other pest controller did not do. There is certainly no evidence to support the proposition that had the appellant been consulted in July 1996 he would have successfully and speedily eradicated the termite infestation. There was nothing even suggested to the other pest controller in cross-examination as to what he might have done wrong, or that there was some other particular course which he could and should have followed but had not. The argument that the loss would have been less if the appellant had been brought into the matter in July 1996 depends entirely on the proposition that the outcome would have been different had that occurred, and there is simply no evidence to support that conclusion before the tribunal.

56. [56]
    In these circumstances, the argument based on the failure to get the appellant involved at an early stage cannot be sustained on the basis of mitigation of damages, or for that matter on any other basis. If it is shown that the current state of the house is the result of termite infestation which in turn was caused by a failure to apply a proper part A treatment under the slabs when the house was being constructed, then whatever loss flows from that state of affairs is recoverable as damages for breach of contract.  Leaving aside the question of whether the action of the first and second respondent in leaving the matter in the hands of some other licensed pest control operator who specialised in termites was unreasonable (and there is no reason at all to think that it was) any argument based on mitigation must depend on evidence to show that the situation would have been different had the step which it is submitted ought to have been taken by the parties suffering the loss in fact been taken.  There is simply no evidence of that in the present case.

57. [57]
    There was a further directions hearing on 12 September 2002.  Again the appellant was represented by a solicitor, Mr Tubaro.  There was some discussion about submissions which had or had not been delivered, and whether any further hearing for oral submissions needed to be provided, or whether the matter could be decided on the papers.  At that stage also the tribunal member was concerned to identify just what matters remained in issue, and expressly raised the issue of quantum.  I was, as I indicated, eventually provided with a tape of this directions hearing.  In the course of the hearing the following exchange occurred: 

The tribunal member then went on to a different topic and fixed a timetable for further submissions to be lodged.

58. [58]
    My own reading of the tribunal decisions is that in the preliminary reasons reference was made to the state of the evidence, but there was no specific finding about quantum. It would still have been open at that stage for the appellant to have sought the opportunity to make further submissions about quantum, and perhaps to have sought to reopen the evidence for the purposes of leading further evidence on quantum. But neither of those courses was followed. On the contrary, the response of the solicitor for the appellant indicated that he was not proposing to take the issue of quantum any further. Unless the appellant was proposing to lead contrary evidence himself about the estimates of costs or some aspect of them, that was reasonable enough.

59. [59]
    The only evidence before the tribunal was the evidence of the quantity surveyor, and that evidence has neither been contradicted nor effectively challenged in cross-examination by or on behalf of the appellant, or for that matter the second respondent. Certainly some submissions have been addressed to the proposition, but they really did not go beyond saying that the final result appeared just too high. Unsurprisingly, that was not regarded as providing a satisfactory basis for rejecting evidence of a duly qualified expert, which perhaps to some extent was supported by some valuation evidence. Once the directions hearing on 12 September 2002 had passed without either of the respondents seeking to take the issue of quantum any further, the tribunal was in my opinion entitled to treat the issue of quantum as closed, and to proceed on the basis of the evidence which had been referred to in the preliminary reasons.

60. [60]
    There were then some further submissions received from the appellant on 9 October 2002, ten pages provided on his behalf by a solicitor.  These submissions were based on the proposition that the appellant’s responsibility ended after 12 months from the date of treatment because the guarantee in the certificate issued was for 12 months.  So the only duty remaining to the first respondents was that of the second respondent.  The balance of the submissions in relation to the claim for indemnity from the second respondent were really a rehash of arguments advanced previously, based on the proposition that the appellant ought to have been advised of the problem as soon as it arose.  There were also submissions made in relation to a direct tortious claim against the appellant by the first respondents, which I need not consider because no such claim was advanced.^[19]  There was however nothing advanced in the written submissions directed to the issue of quantum;  that was consistent with the attitude expressed on behalf of the appellant on 12 September 2002.

61. [61]
    After receiving these and other submissions, on 14 November 2002 the tribunal member delivered the final decision in respect of the substantive claims.  Reference was made to the findings made in the earlier reasons, and to the fact that the applicant before the tribunal (the first respondents) were claiming only against the builder, not against the pest control operator (the appellant), against whom the only claim brought was that by the builder seeking indemnity:  para 5.  At paragraph 9 the tribunal member identified the issues:  “The tribunal is requested to decide the quantum of the applicants’ damages and the liability, or proportion of liability for that loss which should be borne by the first and third respondents.”  She considered and rejected an argument advanced on behalf of the second respondent that the first respondents should obtain a judgment directly against the appellant. 

62. [62]
    She referred to the appellant’s submissions, and identified two central features of them, pointing out why it was no answer to the claim to say that no problem had emerged within the 12 month period of the guarantee.  She went on to accept, on the basis that it was uncontested, the evidence of the quantity surveyor, which she found to be truthful and accurate on the basis of which the proper amount for the cost of demolishing and rebuilding was $268,000.  That could actually be a finding which was more favourable to the appellant than the state of the evidence required, which was that, brought up to December 2001, the cost was $275,000.  There was also said, accurately, to have been no serious challenge at the hearing to the appropriateness of demolition and reconstruction, nor any evidence to support an alternative and less expensive approach. 

63. [63]
    On this basis the finding was made that the damages suffered were quantified at $268,000, and that the first respondents were entitled to judgment against the second respondent in that amount in respect of their claim. This was for the second respondent’s breach of contract in failing to provide an effective part A treatment to the site.  She went on to conclude that the second respondent had acted reasonably in relying on the part A certificates provided to him, and that the appellant was in breach of his subcontract agreement with the second respondent, and that that failure had caused the second respondent to be in breach of his building contract with the first respondents.  Accordingly he was liable as damages for breach of contract to indemnify the second respondent in respect of the second respondent’s liability to the first respondents.  On this basis she ordered that the second respondent pay the first respondents $268,000, and that the appellant indemnify the second respondent in respect to his liability to pay the first respondents in the sum of $268,000.  Directions were given for submissions in relation to costs. 

64. [64]
    Submissions were received from counsel for the appellant on 12 December 2002.  These however were not directed to costs, but sought to ventilate again arguments in relation to liability and mitigation of damages which had already been made and already rejected;  the complaint was advanced yet again about the failure to notify the appellant promptly when the termites were first identified.  It was submitted that the appellant had tried to assist the tribunal at all times and was powerless to do anything about the first respondents’ loss.  On 19 December 2002 the tribunal exercised its discretion and ordered that the second respondent and the appellant be jointly and severally liable to pay the first respondents their costs to be assessed on the Supreme Court scale.  The matter does not appear to have been taken further than that;  no actual assessment appears on the file.

Grounds of appeal

65. [65]
    I have already dealt with the ground added by amendment by order of another judge on 13 March 2003.  The notice of appeal challenged the finding that the appellant was the subcontractor of the second respondent.^[20]  As I have indicated there was evidence as to the circumstances under which the appellant was required to do the work, and the tribunal member characterised what occurred in the situation where the concreting contractor, acting on behalf of the second respondent, retained the appellant to do the work.  Plainly the work was to be done by someone, and it was convenient for the concreter to arrange someone who would work with him because of the importance of the spray being applied just before the slab was poured (to minimise disturbance of the sprayed material).  It may well be that as a matter of convenience the appellant’s account was sent to the concreter, and in that way passed on to the first respondents who were paying subcontractors directly.  But the characterisation appears to me to be entirely appropriate, and certainly one which was open to the tribunal member on the evidence.  The absence of a written contract does not mean that there was no contract between the parties, and does not mean that the appellant cannot be liable for damages for breach of contract.

66. [66]
    There was a challenge to the assessment of quantum, which proceeded on two bases. First, the appellant sought to introduce fresh evidence in the form of an estimate from someone experienced in the building industry that the total cost of demolition and reconstruction of the house was only $165,138.79: this evidence was in the form of an affidavit of Mr Williams filed on 16 May 2003.  Under s 92(4) the appeal to this Court is to be “on the material before the tribunal and any further evidence allowed by the District court.”  That clearly indicates that the Court has a discretion in relation to the admission of further evidence, and that discretion in my opinion should be exercised in accordance with the ordinary principles applicable in the case of an appeal by way of rehearing in the ordinary sense, for the reasons set out in more detail in Pointon (supra).^[21]  

67. [67]
    The position here is that there is no material whatever to show that the evidence of Mr Williams could not have been obtained and put before the tribunal at the appropriate time. The appellant for most of the time when the proceedings were pending in the tribunal had the benefit of legal assistance, and apart from that there was ample notice in the form of directions, notices and other material that evidence in support of his case should be put before the tribunal in the appropriate way. No proper explanation or excuse for failure to do this has been advanced, and in my opinion there is none. There is simply no reason why this evidence could not have been put forward at an appropriate time, and it is now too late to do so. The existence of an appeal by way of rehearing does not mean that a party is entitled to delay putting forward evidence until the appeal stage, or gather additional evidence at the appeal stage which the party has not bothered to put before the tribunal at the original hearing. In my opinion there is no good reason to admit further evidence on the hearing of the appeal, and I will not have regard to the affidavit of Mr Williams.

68. [68]
    In relation to the issues of quantum otherwise, the appellant had ample opportunity to dispute this issue, and indeed at one stage was disputing it, although without any proper evidentiary basis, or in any systematic way. The appellant’s argument really came down to the proposition that it all just seemed too much, but in circumstances where the estimate was supported by expert evidence more than that was required effectively to counter the first respondents’ case. Issues of salvage were not raised with the quantity surveyor in the course of cross-examination, nor was there any evidence about them put before the tribunal. It is not enough simply to assert that some of this material could have been saved and reused. On the evidence before the tribunal, to which I have referred, the most appropriate way to deal with the existing problem was to demolish the house and start again. There was no expert evidence to the contrary, so it was almost inevitable that the tribunal would arrive at the conclusion that that was the appropriate course. In those circumstances it was clearly open to the tribunal to accept the uncontradicted evidence led on behalf of the first respondents.

69. [69]
    I had been concerned at one stage, just as a result of reading the two sets of reasons prepared by the tribunal member, that it appeared that the issue of quantum had on the first occasion been put off until a later day, and on the second occasion treated as already resolved. But a closer reading of the reasons on the second occasion reveals the actual decision in relation to quantum on that occasion. Although in earlier submissions some point had been taken in relation to quantum, the tribunal was entitled to have regard to the statement at the directions hearing on 12 September 2002 from the solicitor for the appellant that he could not ask the tribunal to reopen the question of quantum.  Plainly at that stage the tribunal was willing to receive at least further submissions, and possibly even further evidence, in relation to the question of quantum, but the appellant with the benefit of legal advice elected expressly not to take the question of quantum any further.  In those circumstances it was plainly appropriate for the tribunal member to make the finding that she did in relation to quantum, and that cannot now be challenged on appeal simply because the appellant has apparently changed his mind about wanting to dispute the point.

70. [70]
    The next ground was that the tribunal erred in failing to accept the conclusions of Mr Langley in his report. Indeed it was submitted that the tribunal had disregarded his evidence, which plainly it did not. It is clear from the first set of reasons that the tribunal member had regard to his evidence notwithstanding that the appellant had omitted to put his report in evidence or call him to give oral evidence, but rejected his evidence because it was in conflict with that of other witnesses. The tribunal member was plainly entitled to reject Mr Langley’s evidence without his being called. If the tribunal member had accepted his evidence in circumstances where the first respondents had wanted to cross-examine him and he was not produced for cross-examination, there would have been difficulties about whether the tribunal had acted in accordance with proper procedure and the rules of natural justice.  But Mr Langley was not called by the appellant even though he had ample notice in the form of a notice of hearing of the need to have his witnesses available, and it must have been also obvious that the whole purpose of the hearing was to hear the witnesses who were going to give evidence for the various sides. 

71. [71]
    He even took part in an interlocutory dispute about whether or not some of the first respondents’ witnesses would give evidence in person, so the idea that people would actually come along to give evidence in the course of this hearing was not one which could possibly have been foreign to him. If he had really wanted to call Mr Langley he had ample opportunity to do so at the hearing, and there is no reason to attribute his failure to do so to anything other than the fact that he did not bother. In view of the whole course of the proceeding prior to the hearing, it must have been readily apparent to him that witnesses he wanted to call should be available to give evidence at the hearing unless they were not required for cross-examination by the other parties. It is apparent from some of the points that the appellant was making that he is an intelligent man, well able in my assessment to appreciate something as fundamental as the need to have a witness at the hearing if he wanted the witness to give oral evidence. I reject any suggestion that the appellant was in any way disadvantaged in relation to the calling of Mr Langley to give oral evidence, or that that was the fault of anyone other than himself.

72. [72]
    Insofar as there was a conflict between Mr Langley and other expert witnesses, and indeed other evidence of people who were not expert, the tribunal member was entitled to accept the evidence of the witnesses other than Mr Langley, which evidence was plainly reasonable and presented a consistent picture. This is not a case where there could be any question of the finding being against the weight of the evidence. I am not persuaded there was any error in failing to accept Mr Langley’s conclusions.

73. [73]
    I have already said something about the issue of failure to mitigate. In the absence of any evidence that the appellant would have been able to fix the problem which Mr Short was not able to fix, this ground is doomed. Apart from that, I reject the proposition that in circumstances where a problem has arisen, consulting anyone other than the tradesman initially responsible for the work on the house amounts to unreasonable behaviour on the part of the homeowner, or for that matter the builder. Mr Short gave a reasonable and plausible explanation for why his efforts to deal with the termite problem ultimately provide unsuccessful. If the situation was that he was trying to deal with a house where a chemical barrier had not been effectively placed under the slabs, and where a termite nest had developed under a slab, it is unsurprising that his efforts were unsuccessful. There was simply no evidence that the appellant could have done any better, and in those circumstances the argument about failure to mitigate could not succeed. No error of law has been shown in this respect.

74. [74]
    The next ground sought to dispute the failure of the tribunal to make certain findings of fact. The first was in relation to the use of cracker dust as the material laid under the slab. But there was very little evidence about whether cracker dust had been used; even Mr Langley’s report does not involve an unequivocal assertion that there is cracker dust present on the basis of his direct observations. Whether there was cracker dust used would of course have been readily apparent to the appellant’s employee at the time the spray was applied, because that would have been what he was spraying. The tribunal member has I think acted entirely appropriately in saying that she was unable to make a finding about the presence or absence of cracker dust.

75. [75]
    The next issue was in relation to the failure to ensure that a part B treatment was provided, but in the light of the finding that the absence of a part B treatment was irrelevant, because the termites were coming from under the slab, this argument must fail because the absence of a part B treatment was not causally related to the damage.  There was certainly an issue before the tribunal as to whether the problem arose because of the absence of an effective part A treatment, and whether the absence of an effective part B treatment permitted the entry of termites.  But whether or not a timely part B treatment would have prevented the entry of the termites, they became a major problem with this house not because of the absence of a part B treatment, but because of the absence of an effective part A treatment, and that was therefore the cause of the real loss and damage suffered by the first respondents.  If the builder was in error in failing to ensure that a part B treatment to the perimeter was done, that was not relevant to the appropriate basis of liability of both the second respondent and the appellant.

76. [76]
    The notice of appeal raised again the issue of failure to notify under this heading, about which I need say no more, and then referred to the retaining wall being built in a porous fashion without interlocking H blocks. There is no evidence that that had occurred. The evidence of the witnesses other than Mr Langley was that the termites were not penetrating the retaining wall. Some of the witnesses had acknowledged that this was a possibility, but even the appellant referred to it as a possibility rather than a probability: p.81 line 23. There was as far as I can see no evidence that the retaining wall was built other than in a conventional and appropriate fashion, and that it was expected to be a physical barrier although the possibility existed that it might not operate as one.

77. [77]
    The final ground advanced in the notice of appeal was that there had been a failure to ascertain the extent of the damage when the termites were first discovered and from where the termites first originated. But that was not the relevant issue. What mattered was whether the damage which the dwelling was now suffering was caused by a failure to apply a proper part A treatment.  It was the first respondents’ case in the tribunal that that was what had occurred, and that was what the tribunal accepted.  Once that proposition is accepted, the question of what damage was suffered by July 1996 becomes irrelevant.

78. [78]
    The fundamental issue which the tribunal had to resolve in this matter was whether the disastrous termite infestation in the home of the first respondents was something which had arisen notwithstanding the application of a proper part A treatment in accordance with the Standards, reflecting the fact that such a treatment is not necessarily a guarantee against any possibility of termite infestation, or whether it was present because of a failure to apply a proper part A treatment.  That was an issue to be resolved on the balance of probabilities, and insofar as it is appropriate to talk in terms of onus for a proceeding in an administrative Tribunal, the first respondents had the onus on that issue.  But there was ample evidence to support the conclusion of the tribunal that this was a case where the problem was caused because a proper part A treatment was not applied, for whatever reason. 

79. [79]
    The test results showed an absence of any detectable amount of the chemical supposedly applied at a relatively high concentration over the whole of the material under the slab. This is highly suggestive. Even if it is true to say, as it is always true to say in scientific matters, that the level of confidence in the outcome will be increased by increasing the number of samples and tests, the absence of any detectable chemical residue at any point is suggestive of an absence of effective treatment. There is also the consideration that, not only was there an extensive and persistent termite infestation in the house, but the history of treatment indicated that the termites appeared to be capable of travelling freely under the slab, because they had persistently come up between the slab and the wall, indicating that they were coming from under the slab, and this had occurred in a range of different locations. Further the difficulty in effective treatment in itself suggested that there was not a proper foundation for treatment in the form of an effective part A treatment before the slabs were poured.  It was not possible in the evidence before the tribunal to make a precise scientific finding as to exactly what went wrong, but in  my opinion there was ample evidence to support a finding on the balance of probabilities that the infestation was due to an absence of effective part A treatment.  That amounted to a breach of contract by the second respondent, and a breach of the contract between the second respondent and the appellant.

80. [80]
    In the outline of argument in relation to the issue of natural justice there is some further criticism about the way the tribunal behaved towards the appellant. It was submitted that the appellant was unrepresented on “all five days”, a reference to the two days of the hearing and three days on which directions hearings were held. Apart from the fact that on two of the directions hearings mentioned in paragraph 13 of the outline, 19 October and 7 December 2001, the appellant was not unrepresented but represented by counsel, this submission does not reflect the significant period, both before and after the actual hearing, when the appellant did have the benefit of legal advice.

81. [81]
    I have already dealt with the proposition that the appellant was unaware that he was required to bring his witnesses to the tribunal hearing. How anyone could have been unaware of that is beyond me, but if that was the case it was not because of any failure on the part of the tribunal. It was also submitted that he was not advised he could seek to obtain the adjournment until the required witnesses were available. But he did not raise any problems about unavailability of witnesses in the course of the hearing before the tribunal. A person who does not suggest that he wants to call any witnesses should not have an adjournment pressed on him by the tribunal, to see whether during the adjournment he might find somebody whom he might actually decide that he wants to call. Plainly this is not a case of someone who was trying to make an effective defence but was not able to do so because of matters beyond his control, and who was not being treated appropriately by the tribunal. The tribunal did not raise any question of an adjournment because there was not the slightest suggestion from the appellant at the hearing that there were any witnesses that he wanted to call, either then or at some time in the future.

82. [82]
    My impression from reading the transcripts is that the tribunal member behaved in a careful and appropriate fashion bearing in mind that there were in the course of the hearing two unrepresented parties appearing before her. It was certainly not a case where she simply sat back and allowed it to go wrong. Indeed she seems to me to have adopted quite an active role during the course of the hearing, asking numerous questions of the various witnesses, not inappropriately but in a way which indicated that she was actively exploring the factual matters relevant either directly or by way of background to the dispute before her. In my opinion the criticisms in the appellant’s submissions of the way in which the tribunal member conducted the hearing are entirely unjustified.

83. [83]
    Overall there is no substance to this appeal, which is dismissed with costs.