Australian Alliance for Energy Productivity Ltd v Engineroom Infrastructure Consulting Pty Ltd [2023] QCATA 106

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Australian Alliance for Energy Productivity Ltd v Engineroom Infrastructure Consulting Pty ltd [2023] QCATA 106 PARTIES: AUSTRALIAN ALLIANCE FOR ENERGY PRODUCTIVITY LTD (applicant/appellant) v ENGINEROOM INFRASTRUCTURE CONSULTING PTY LTD (respondent) APPLICATION NO/S: APL188-22 ORIGINATING APPLICATION NO/S: MCD1336-21 MATTER TYPE: DELIVERED ON: HEARING DATE: HEARD AT: DECISION OF: ORDERS: CATCHWORDS: Appeals 15 August 2023 On the papers Brisbane Member Richard Oliver Leave to appeal is refused. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES –FRESH EVIDENCE – where applicant and the respondent entered into a contract for the respondent to provide a report for specific matters – where contract oral and not contested – where respondent provided the report but the applicant was not satisfied with the content – where the applicant failed to pay the balance of the contract amount – where applicant failed to file a response and comply with directions – where findings of fact – whether findings of fact open on the evidence – whether applicant be granted leave to lead fresh evidence. Queensland Civil and Administrative Tribunal Act 2009 s 143(3)(a)(i) Rintoul v State of Queensland & Ors [2018] QCA 20 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 Terera v Clifford [2017] QCA 181 -- 1 of 6 -- 2 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] Between 9 October 2020 and December 2020, the applicant and the respondent entered into an oral contract for the respondent to provide a report on network mapping in specific areas for the applicant at a total cost of $33,000. The detail of what was to be included in the report was discussed in various meetings and emails between the above dates. When the report was commenced the scope of work seemed to be settled between the parties. The report was to be provided to the applicant by 25 November 2020 however that date was extended to 20 December 2020. [2] When the report was provided in December 2020, the respondent issued an initial invoice for 25% of the contract price. This was paid without objection. [3] There were further discussions about the content of the report between December 2020 and March 2021. A further invoice was sent for 25% of the contract price and was paid, again without objection. [4] They were ongoing discussions between the parties about the content of the report which are again contained in many emails, and these emails also involved a representative of the NSW Department of Primary Industries who was to be the ultimate recipient of the report. However, there was no overt objection to the work that had been carried out by the respondent up to about June 2021. [5] As a result of these discussions the respondent provided a further report on 2 June 2021. This report included additional material and addressed concerns in respect of broader, state level, mapping. [6] Then, at a meeting on 11 June 2021 the applicant advised the respondent that it did not want any further work done on the report. Also, the respondent was told that the Department of Primary Industries did not want the report. [7] The respondent contends that after this it advised the applicant that it was prepared to address any areas of dissatisfaction concerning the report and engage with the Department for Primary Industries directly to achieve a satisfactory outcome. However, there was no further engagement with the applicant, or Department of Primary Industries. The respondent issued a final invoice for $16,500 being the balance of the agreed contract price. The applicant only paid $5,500 towards this invoice and left an outstanding balance of $11,000. [8] The respondent contends that it was never made aware of any concerns raised by the Department of Primary Industries when preparing the report prior to June 2021. It also contends that the report complied with all of the requirements of the scope of work as dictated by the applicant in the various meetings that were held in the latter part of 2020 and early 2021. [9] Because the balance sum had not been paid, the respondent commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal. The application has annexed to it, a document entitled "Pleadings” (“statement”) which sets out a comprehensive history of the negotiations between the applicant and the respondent. Attached to that document is a large bundle of email communications, copies of reports, and sundry documents attached to the emails which records the history of the dialogue between -- 2 of 6 -- 3 the parties. The respondent’s case was presented in thorough and coherent way to fully inform the Tribunal, and the applicant, not only as to the basis of the dispute, but also the evidence relied upon in support of the claim. [10] The application was served on the applicant on 24 December 2021. An affidavit of service deposing to service of the application was filed on 7 January 2022. The minor civil dispute application specifically informs the respondent to the application that if the application is contested, the respondent must file a response in the Tribunal. [11] The applicant failed to file any response. The respondent then filed and an application for a decision by default. The default decision was entered against the applicant on 7 February 2022 for the amount of the claim. [12] On receiving notice of the default decision the applicant then applied to set it aside. That application was successful and in an order of 21 April 2022, the Tribunal not only set aside the decision but also made the following directions: the parties are to file in the registry and serve on the other all material on which they intend to rely at the hearing at least seven days prior to that date. [13] Those orders were sent to the parties and a new hearing date was set for 25 May 2022. Despite those orders and directions, the applicant still did not file a response or any other material in reply to the respondent’s statement.1 In case there is any doubt about the applicant’s notice of the hearing, Mr Westmore, a principal of the applicant, emailed the Tribunal on 25 May 2022 to inform it that he was on standby waiting for a call to commence the hearing. [14] The hearing commenced before an adjudicator with the parties attending by telephone. Mr Westmore informed the Tribunal that the applicant had not filed any material but provided no reason not doing so. He also informed the Tribunal that he did not have any documents with him as he was attending a conference in Melbourne. He had not seen the material filed by the respondent despite the affidavit or the service confirming service of the application and the material in support. Also Mr Berry, of the respondent, had emailed all documents to the applicant days before the hearing to ensure compliance with the direction above. Furthermore, he was aware that the decision by default had been set aside because this was specifically raised by the learned adjudicator. [15] Although Mr Westmore did not have any of the material filed, he did not seek an adjournment of the hearing and was prepared to respond to specific parts of the respondents statement that were read out to him by the learned adjudicator. By and large he agreed with the content of the statements put to him and the emails, but his defence, if it can be called that even though no response or documents were filed, was that the report provided by the respondent was so deficient in the area of mapping, that it did not meet the requirements of the applicant’s client, Department of Primary Industries, and did not comply with the contact entered into between them. [16] Having given both parties ample opportunity to put forward their respective positions, the learned adjudicator made specific findings as follows: (a) The contract related largely to network mapping and identifying renewable farm-based generation opportunities that would be compatible with the grid; 1 Transcript page 22 line 15 -- 3 of 6 -- 4 (b) The scope of the report changed quite frequently; (c) The evidence indicated that the Department of Primary Industries was largely content with the report by the email responses from Ms Liz Hutton; (d) The applicant made payments of invoices without objection. [17] Although the reasons for the decision are in fairly short compass, when read with the transcript of evidence, it is easy to see how the learned adjudicator came to the decision she did. I would also observe that she gave the applicant, Mr Westmore, ample opportunity to put the case for the applicant by way of oral evidence, even by reference to documents which he never produced to the Tribunal or the respondent. [18] It is reasonable to draw the conclusion that the applicant never seriously engaged in the proceeding until the hearing because it had two opportunities to file a response but failed to do so. Even at the hearing Mr Westmore knew it was on and took no steps to properly inform himself of the issues so he could assist the Tribunal in hearing the matter. That was left to the adjudicator who was mindful not only of the fact that the applicant had filed no material but also the objects of the QCAT Act in s 3 to ensure that cases are dealt with in a way that is fair, just economical, informal and quick, [19] The learned adjudicator found for the respondent and ordered the applicant pay the respondent $11,775.98 which included interest and the filing fee. [20] Subsequent to that decision, on 27 June 2022 the applicant filed an application for leave to appeal or appeal. As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal (or permission) will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.2 Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles: The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show: (a) the appeal is necessary to correct a substantial injustice; (b) there is a reasonable argument that there is an error to be corrected. There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal. [21] The grounds of appeal essentially challenge the learned adjudicators findings of fact. Firstly, that the respondent provided the services in terms of the contract and secondly, what work that was performed was substandard. It also challenges the finding that the scope of work “changed quite frequently” during the contract contending the scope “remained the same and the respondent failed to provide services in accordance with that original scope”. No evidence, other than Mr Westmore’s testimony was produced in the hearing below to support this contention. 2 Terera & Anor v Clifford [2017] QCA 181. -- 4 of 6 -- 5 [22] Before dealing with the grounds of appeal, the Tribunal made the usual directions for the conduct of the appeal on 4 July 2022. Direction 4 of those directions relate to the reliance of fresh evidence, that is evidence that was not before the original decision maker. If fresh evidence is sought to be relied on the party must file and application seeking leave to rely on fresh evidence and state in the application: (a) why the fresh evidence was not available to the Tribunal below; (b) why he fresh evidence is important; and (c) why the fresh evidence should be accepted. [23] The direction then goes on to provide for submissions by the party seeking to rely on fresh addressing the above criteria. The material filed by the respondent in the appeal include the following: (a) The draft report by the applicant; (b) A draft report delivered by another sub-contractor (c) The final report prepared by the applicant; (d) Comments from the client about the respondent’s report; [24] Each of the above is fresh evidence. It is obvious having regard to the description of each of the documents they were available to the applicant at the time of the hearing below. Even assuming that the applicant had complied with the direction to rely on fresh evidence the application must be refused. The general principles for leading fresh evidence in an appeal are well established.3 Fresh evidence will only be accepted if the evidence was not reasonably available at the time the original proceeding was heard and determined. Ordinarily an applicant for leave to adduce such evidence must satisfy each of the following tests: (a) The evidence could not have been obtained with reasonable diligence for use at the trial; (b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); (c) That the evidence is credible though it need not be incontrovertible [25] The purpose of the direction is to address these principles. No application has been filed in accordance with the Directions and nothing has been put forward by the applicant to address this criteria. Clearly, there is no basis to admit fresh evidence. [26] As for the attack on the learned adjudicator’s findings of fact, again the general principles laid down by the High Court are against the applicant. The appeal is not another opportunity for the parties to re-argue the case that was before the original decision maker. The findings of fact made by the original decision maker will not be disturbed unless the findings were not open on the evidence before the Tribunal. The appeal tribunal will only disturb a finding of fact if there is good reason to do so, as the High Court said in Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 at [43]: A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] Qld R 404 at 408 -- 5 of 6 -- 6 for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings4. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences". [footnotes omitted]. [27] The transcript of the hearing demonstrates that the learned adjudicator listened carefully to both parties. She referred Mr Westmore to the emails which on their face demonstrated there was some shifting of ground in terms of the scope of the report. She was entitled make conclusions of fact on the information before her if they were open on the evidence. Clearly, she preferred the evidence of Mr Berry for the respondent and the evidence he filed in support of his application. [28] The applicant had two opportunities to put documentary evidence before the Tribunal but chose not to do so. It failed to file a response and comply with directions having gone to the trouble to set aside the default decision. It seems to have taken a somewhat cavalier approach to the primary application, and the appeal in failing to comply with the directions in both especially with respect to fresh evidence. That of itself is not a ground for refusing leave to appeal, but the point here is that the learned adjudicator was left with the evidence of Mr Westmore and had to weigh that up against the evidence of Mr Berry. In doing so, and having considered the evidence before her, the conclusions she reached were open to her and there is no basis for this appeal tribunal to interfere with her findings. This is particularly so with the changing scope of the work to be undertaken. [29] What the applicant is seeking to do in this appeal is argue the applicant’s case, in reliance on documents that it should have put before the Tribunal in the primary hearing. Even then it may not have been enough to achieve a different result having regard to Mr Berry’s evidence. [30] In the respondent’s submissions, orders are sought to increase the amount to be recovered from the applicant up to $13,559.00. Because I do not propose to give leave to appeal, and as there is no cross-appeal, there is no basis to vary the order below. [31] The applicant has not established any ground upon which leave to appeal can be granted, and therefore it is refused. -- 6 of 6 --