Core Concrete Pty Ltd v Murtrack Pty Ltd t/as R & F Steel Building Cairns [2023] QCATA 3

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Core Concrete Pty Ltd v Murtrack Pty Ltd t/as R & F Steel Building Cairns [2023] QCATA 3 PARTIES: CORE CONCRETE PTY LTD (applicant/appellant) v MURTRACK PTY LTD T/AS R & F STEEL BUILDING CAIRNS (respondent) APPLICATION NO/S: APL057-21 ORIGINATING APPLICATION NO/S: BDL200-19 MATTER TYPE: Appeals DELIVERED ON: 23 January 2023 HEARING DATE: 31 May 2022 HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: Leave to rely upon fresh evidence is refused. The appeal is allowed. The decision of the Tribunal is set aside. The matter is returned to the Tribunal for the making of directions to progress the proceeding. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of submissions on the costs of the appeal, such submissions not to exceed three (3) pages in length, within fourteen (14) days. CATCHWORDS: APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where Tribunal failed to give reasons for final decision following non-attendance of party at compulsory conference ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant did not attend compulsory conference – where member -- 1 of 9 -- 2 presiding over the compulsory conference proceeded to a summary determination – failure to give reasons where there is a statutory duty to do so is an error of law – evidence of anything said or done during a compulsory conference is not admissible – procedural fairness required in a compulsory conference – application to adduce fresh evidence in an appeal – when fresh evidence is permitted – whether applicant was afforded procedural fairness in summary determination of the proceedings Acts Interpretation Act 1954 (Qld), s 27B Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2), s 28(3)(a), s 69, s 72, s 74(1), s 74(2), s 121(1), s 121(4), s 122(2), s 142(1), s 142(3)(b), s 146, s 147, s 147(2), sch 3 Amundsen v Queensland College of Teachers [2011] QCATA 2 Core Concrete Pty Ltd v Murtrack Pty Ltd t/as R & F Steel Building Cairns [2020] QCAT 427 Ericson v QBCC [2014] QCA 297 GDLA v GMG [2017] QCATA 18 King & Ors v Australian Securities and Investments Commission [2018] QCA 352 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 Moreton Island Development Group v Smith Development Pty Ltd [2012] QCATA 15 Pickering v McArthur [2005] QCA 294 Pickering & Anor v McArthur [2010] QCA 341 State of Queensland & Anor v Aigner [2013] QCATA 151 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Mr D McKinstry, solicitor, WGC Lawyers REASONS FOR DECISION [1] The applicant/appellant (Core Concrete) undertook building work for the respondent (Murtrack). Core Concrete commenced proceedings in the tribunal claiming an amount of $9,428.00 which it said remained owing by Murtrack. Murtrack counter- claimed for damages for breach of contract in the amount of $2,359.06. [2] A compulsory conference was held. Core Concrete failed to attend the conference. The tribunal member presiding at the conference made an order dismissing the claim by Core Concrete and allowing the counter-application by Murtrack. -- 2 of 9 -- 3 [3] Core Concrete applied to re-open the proceeding. The Tribunal found that while Core Concrete had not established a re-opening ground, there was a reasonably arguable case of error by the Tribunal in summarily dismissing Core Concrete’s claim and allowing the counter-application. The Tribunal ordered that the re-opening application proceed as an application for leave to appeal or appeal.1 Appeals – the statutory framework [4] A party to a proceeding may appeal a decision of the tribunal to the appeal tribunal.2 An appeal on a question of law is as of right. An appeal on a question of fact or mixed law and fact may only be made with the leave of the appeal tribunal.3 The principles governing the granting of leave to appeal are well established: is there a reasonably arguable case of error in the primary decision; is there a prospect that the applicant will obtain substantive relief; is leave necessary to correct a substantial injustice caused by error; and is there a question of general importance upon which further arguments and a decision of the Appeal Tribunal would be to the public advantage.4 [5] In deciding an appeal on a question of law or a question of fact or mixed law and fact, the appeal tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and remit the matter to the tribunal for reconsideration.5 An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.6 [6] In deciding an appeal on a question of law, the appeal tribunal may set aside a decision and substitute its own decision only if the result is the resolution of the appeal entirely in the appellant’s favour.7 Applications to adduce fresh evidence [7] Both parties seek to rely upon fresh evidence in the appeal. Fresh evidence may be permitted if all of the following requirements are satisfied: (a) The new evidence could not have been obtained with reasonable diligence for use at the original hearing; (b) If given, the new evidence would probably have an important influence on the result of the case (although it need not be decisive). (c) The new evidence is credible.8 [8] The decision of the Tribunal the subject of the present appeal was not one made at the conclusion of a contested hearing. The effect of the Tribunal’s decision was to summarily determine both the claim and the counter-claim in the absence of Core Concrete’s appearance at the compulsory conference. At the time the compulsory conference was held, the parties had not filed their statements of evidence. As such, while any further evidence the parties seek to rely upon in the appeal may be relevant 1 Core Concrete Pty Ltd v Murtrack Pty Ltd t/as R & F Steel Building Cairns [2020] QCAT 427. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1). 3 Ibid, s 142(3)(b). 4 Pickering v McArthur [2005] QCA 294 at [3] per Keane JA; Amundsen v Queensland College of Teachers [2011] QCATA 2 at [6]; GDLA v GMG [2017] QCATA 18. 5 Ibid, s 146, s 147. 6 Ibid, s 147(2). 7 Ericson v QBCC [2014] QCA 297 at [9] per Homes JA. 8 Pickering & Anor v McArthur [2010] QCA 341 at [22] per Chesterman JA. -- 3 of 9 -- 4 to the substantive merits of the claim and the counter-claim, it could not be said that such evidence would probably have had an important influence on the result of the case following the compulsory conference. There is nothing to suggest that the learned member engaged in a consideration of the merits of the parties’ respective cases and, as I set out later in these reasons, the learned member summarily determined the matter solely on the basis of Core Concreting’s failure to attend the compulsory conference. [9] There is a further aspect to the application by Murtrack to rely upon further evidence to which I will refer later in these reasons. [10] Accordingly, fresh evidence will not be permitted to be relied upon by either party in the appeal. Consideration [11] The appeal submissions largely the substantive merits of the parties’ respective claims. Neither party satisfactorily addresses the two issues central to the determination of the appeal: firstly, whether the learned member erred in summarily determining the claim and the counter-claim and, secondly, the failure by the learned member to give reasons for his decision. [12] In finally determining the proceeding at the compulsory conference, and despite the absence of reasons, it would appear that the learned member relied upon s 72 of the QCAT Act which provides: 72 Party fails to attend (1) If a party to a proceeding does not attend a compulsory conference— (a) the conference may proceed in the party’s absence; and (b) if the person presiding is a member or an adjudicator, and all the parties present agree, the person may— (i) make a decision adverse to the absent party and make any appropriate orders, including orders about costs; or (ii) order that the absent party be removed from the proceeding, and pay another party’s costs reasonably incurred by the other party as a result of the absent party’s involvement in the proceeding. (2) Subsection (1) applies only if the person presiding over the compulsory conference is satisfied the absent party has been given notice of the conference under section 67(2). (3) If a decision or order is made under subsection (1)(b), this Act applies to the decision or order as if— (a) the compulsory conference were a proceeding before the tribunal; and (b) the decision or order were a decision or order made by the tribunal constituted for the proceeding. (4) A person the subject of an order under subsection (1)(b)(ii) may apply to the tribunal to be reinstated as a party to the proceeding. -- 4 of 9 -- 5 (5) The tribunal may reinstate the person as a party to the proceeding if satisfied the person had a reasonable excuse for not attending the compulsory conference. [13] Moreton Island Development Group v Smith Development Pty Ltd9 was an appeal against a final decision by the tribunal following the failure by the appellant to attend a compulsory conference. In Core Concrete Pty Ltd v Murtrack Pty Ltd t/as R & F Steel Building Cairns10 I observed the following about the decision in Moreton Island Development Group: [27] The appeal … considered a number of issues relevant to the jurisdiction and powers of the tribunal including the power of the tribunal to make a decision pursuant to s 72(1)(b)(i) of the QCAT Act. The appeal tribunal considered: (a) Whether the tribunal at first instance was required to afford procedural fairness to a party before making a summary disposition in the nature of a default judgment; (b) If it was required to afford procedural fairness, whether the tribunal should have: (i) Considered options other than summary determination; (ii) Given the absent party an opportunity to be heard; (iii) Given notice of its intention to determine the matter; (iv) Complied with the QCAT Act; (v) Given reasons for its decision. [28] The appeal tribunal referred to s 28 of the QCAT Act and the requirement of the tribunal to act fairly and according to the substantial merits of the case and to observe the rules of natural justice. The appeal tribunal found that the tribunal is required to afford a party procedural fairness at every stage of a proceeding. [14] I also made the following observations regarding the substantive dispute between Core Concreting and Murtrack: There is clearly a dispute between the parties as to whether Core is entitled to recover the sum claimed; whether the building work was performed by Core in accordance with the terms of the contract and whether Murtrack is entitled to recover an amount in respect of the cost of rectification works; The matter had not progressed to the stage of the parties being directed to file their statements of evidence. This would presumably have occurred after the compulsory conference absent a resolution of the issues in dispute. Accordingly, the parties have not had the opportunity to put on their evidence or make submissions in relation to the claim and counter claim; In my view there is a real and substantial contest in relation to both Core’s claim and the counter application by Murtrack; As the proceedings stood at the time of the decision by the tribunal, the application by Core was not frivolous, vexatious or misconceived, lacking in 9 [2012] QCATA 15. 10 [2020] QCAT 427. -- 5 of 9 -- 6 substance or otherwise an abuse of process. These are the bases upon which a proceeding may be dismissed summarily pursuant to s 47 of the QCAT Act; There is no doubt a contest on the facts in relation to the claim by Core and the counter application by Murtrack.11 [15] Those observations remain pertinent for present purposes. Against this background, I will now proceed to consider the appeal. [16] The decision by the learned member dismissing the claim by Core Concrete and allowing the counter-application was a final decision. The tribunal must give its final decision in a proceeding in writing.12 The tribunal must give reasons for its final decision in a proceeding either orally or in writing.13 A ‘final decision’ is a decision that finally decides the matters the subject of the proceeding.14 A party may request written reasons for a decision, including a final decision.15 If an Act requires a tribunal, authority, body or person making a decision to give written reasons for a decision the reasons must also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.16 [17] A failure to give reasons where there is a statutory duty to do so is an error of law on the face of the record.17 [18] The learned member was obliged by the QCAT Act to give reasons for the decision. His failure to do so was an error of law. It is no answer to suggest that Core Concrete could have requested reasons for the decision. Indeed, it could have. However, the QCAT Act imposes a clear obligation on the tribunal to provide reasons for its final decision in a proceeding. On this basis alone, the appeal should be allowed. For the sake of completeness, I will nevertheless address Murtrack’s appeal submissions. [19] Murtrack says that Core Concreting has failed to establish that there was error by the learned member in dismissing the application and allowing the counter-application. [20] Murtrack says that Core Concrete must demonstrate something more than a failure by the learned member to give reasons for his decision and that Core Concrete must establish that the error has resulted in a substantial injustice to it. In addressing this submission, it should be observed that inadequacy of reasons does not necessarily amount to an appellable error.18 An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice.19 The present case falls into the first category – a failure to give reasons in circumstances where they were required by statute to be provided. 11 Core Concrete Pty Ltd v Murtrack Pty Ltd t/as R & F Steel Building Cairns at [34]. 12 QCAT Act, s 121(1). 13 Ibid, s 121(4). 14 Ibid, schedule 3. 15 Ibid, s 122(2). 16 Acts Interpretation Act 1954 (Qld), s 27B. 17 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [22] per French CJ, Crennan, Bell, Gageler and Keane JJ. 18 King & Ors v Australian Securities and Investments Commission [2018] QCA 352 at [41] per Morrison and McMurdo JJA and Applegarth J. 19 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 at [29] per Steytler, Templeman and Simmonds JJ. -- 6 of 9 -- 7 [21] Murtrack’s remaining submissions are directed largely to the failure by Core Concrete to address the substantive merits of the counter-application. Murtrack says that in the proceedings below, despite being directed to do so, Core Concrete failed to file a response to the counter-application. That may be so. Whether this was a matter taken into consideration by the learned member in making the final decision cannot be known in the absence of reasons. In any event, the directions made by the Tribunal required Core Concrete to file a response to the counter-application by the 11 th March 2020. The compulsory conference was convened 5 days later. It is difficult to apprehend how Core Concrete’s failure to comply with the direction could justify the approach taken by the learned member. [22] Murtrack says that when Core Concreting failed to attend the compulsory conference, it sought summary judgement and provided the learned member with copies of all invoices and other documents supporting the counter-application. These additional documents comprise the further evidence sought to be adduced by Murtrack. This submission is directed principally at the substantive basis for the learned member’s decision: that is, there was sufficient evidence before the learned member to justify the decision. [23] There are a number of things to be said about this submission. Firstly, evidence of anything said or done during a compulsory conference is not admissible at any stage in the proceeding.20 This prohibition extends to appeal proceedings arising out of the original proceeding.21 Accordingly, no regard may be had to the documents sought to be relied upon by Murtrack. Further, the provision of documents to the learned member at the compulsory conference is problematic and raises a number of issues. [24] It seems reasonably clear that the documents had not been filed by Murtrack prior to the compulsory conference. This is readily explicable – the parties had not yet been directed to file their statements of evidence. If Murtrack sought leave to rely upon the documents during the compulsory conference, it is difficult to conceive of how such leave could be given noting that evidence of anything said or done at the conference was not admissible at any stage in the proceeding.22 There is also the question of procedural fairness. The tribunal must at all times act fairly and according to the substantial merits of the case and must observe the rules of natural justice.23 It could not be said to be procedurally fair for the learned member to have permitted Murtrack to rely upon the additional evidence without ensuring Core Concrete was also provided with copies of the documents and given an opportunity to file evidence in response. If the learned member had reference to the documents in making his decision, and in the absence of reasons it is not possible to form a concluded view about this, then Core Concrete was denied procedural fairness and the learned member erred in law. [25] These are matters that were identified by the Appeal Tribunal in Moreton Island Development Group v Smith Development Pty Ltd.24 As the Appeal Tribunal observed, the tribunal is required to afford a party procedural fairness at every stage of a proceeding and that the incidents of procedural fairness expected in proceedings before the tribunal apply to compulsory conferences. 20 QCAT Act, s 74(1). 21 State of Queensland & Anor v Aigner [2013] QCATA 151 at [17]-[20]. 22 Nor would any of the exceptions set out in s 74(2) of the QCAT Act apply. 23 QCAT Act, s 28(2), s 28(3)(a). 24 [2012] QCATA 15 at [21]-[24]. -- 7 of 9 -- 8 [26] The learned member had the power to make the decision dismissing the application and allowing the counter-application but he was not required to do so. In deciding whether to make the final decision, the learned member was required to exercise the discretion found in s 72(1)(b)(i) of the QCAT Act. In exercising that discretion, the learned member was required to take into consideration a number of matters in determining whether it was appropriate, in the circumstances, to proceed to summarily determine the application and the counter-application: (a) The proceeding had commenced in July 2019. The response and counter application was filed in August 2019. In October 2019, after it became apparent that there was an issue with the naming of the correct respondent, directions were made for any application to join a party to be filed by 7 November 2019. Core Concrete filed an application to join Murtrack on 24 October 2019 and the tribunal made orders joining Murtrack on 18 December 2019. On 3 February 2020 the parties were given notice of the compulsory conference to be held on 16 March 2020 and on 21 February 2020 the tribunal made directions requiring Core Concrete to file a response to the counter-application and confirming the listing of the compulsory conference. Although Core Concrete was non- compliant with the direction to file a response to the counter-application, as I have noted, the compulsory conference took place only 5 days after the date the response was to be filed. Until the compulsory conference was convened the matter had proceeded in an entirely orthodox way. The originating application filed by Core Concrete disclosed, on its face, an arguable cause of action against Murtrack. Attached to the originating application were a number of documents including quotations and tax invoices and remittance advices rendered by Core Concrete, in addition to plans, photographs, and various email communications including demands for the payment of the amount claimed. In short, the application attached the various documents which would normally be appended to a statement of evidence in support of a claim for monies due and owing. On the other hand, the counter-application filed by Murtrack attached no documents. I have referred earlier in these reasons to the various documents Murtrack says it provided to the learned member at the mediation and to which the learned member may have had reference in making the final decision relating to the counter-application. It should have been apparent to the learned member that procedural fairness required Murtrack to provide copies of the documents to Core Concrete and for Core Concrete to be given the opportunity to respond. It was clear from the material filed by the parties that there was a real and substantial contest about the matters in dispute in relation to both the application and the counter-application; (b) The parties had not been directed to file their statements of evidence at the time the compulsory conference was held. The purposes of a compulsory conference include: identifying and clarifying the issues in dispute; identifying the questions of law and fact to be decided by the tribunal; promoting a settlement of the dispute; and if the dispute cannot be settled, making orders and directions appropriate to resolve the dispute.25 Where a dispute cannot be resolved, the compulsory conference is an opportunity for the presiding member to discuss with the parties the directions that will be made to progress the matter to a final resolution. This will often include directions for the parties to file statements of evidence. In the absence of pleadings, it is generally the statements of evidence 25 QCAT Act, s 69. -- 8 of 9 -- 9 filed by the parties that serve to identify the issues in, and the scope of, the dispute. It is difficult to apprehend how the learned member, in the absence of evidence filed by the parties, could proceed to summarily determine the application and the counter-application. As I have observed, the application filed by Core Concrete disclosed an arguable cause of action; (c) There were options available to the learned member other than proceeding to a summary determination. Whether the learned member attempted to contact Core Concrete by telephone, or considered adjourning the conference, or considered making directions for Core Concrete to provide a reasonable explanation for its non-attendance at the conference is not known. In the absence of any reasons, it must be assumed that there was no such consideration by the learned member; (d) As identified in Moreton Island Development Group the power to make an adverse decision at a compulsory conference is constrained. By s 72(1)(b) of the QCAT Act all parties present at the conference must agree to an adverse decision being made. In the absence of reasons by the learned member and submissions directly on this point by Murtrack, there is an absence of evidence that the required consent was obtained. [27] In the circumstances I am satisfied that the learned member erred in proceeding to summarily determine the matter. I am also satisfied that the learned member erred in failing to give adequate reasons for the final decision. These are errors of law. Conclusion [28] Leave to rely upon fresh evidence is refused. The appeal is allowed. The decision of the Tribunal is set aside. The matter is returned to the Tribunal for the making of directions to progress the proceeding. I will make directions for the parties to file submissions on the costs of the appeal. -- 9 of 9 --