Blair Harding as Trustee v Huckstep Enterprises Pty Ltd [2022] QCATA 73

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Blair Harding as Trustee v Huckstep Enterprises Pty Ltd [2022] QCATA 73 PARTIES: BLAIR HARDING AS TRUSTEE OF THE BLAIR HARDING FAMILY TRUST (applicant\appellant) v HUCKSTEP ENTERPRISES PTY LTD (respondent) APPLICATION NO/S: APL028-21 MATTER TYPE: Appeals DELIVERED ON: 5 June 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: Leave to appeal is refused CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – CONTROL OVER PROCEEDINGS – PROCEDURAL FAIRNESS where the applicant failed to appear on the adjourned hearing of the application – where applicant notified the tribunal registry (Magistrates Court) he could not attend the resumed hearing just prior to the commencement of the hearing – where tribunal adjudicator was not notified of the request for an adjournment and continued the adjourned hearing and proceeded to make a decision – where applicant contends he has a defence to the respondent’s claim – where applicant changed its grounds for defence – where applicant sought to lead fresh evidence in the appeal – whether the applicant denied procedural fairness – whether new evidence was available at the primary hearing – whether any ground demonstrated to establish a denial of natural justice. Queensland Civil and Administrative Tribunal Act ss 139(5) and 142(3)(a)(i) Terera & Anor v Clifford [2017] QCA 181. Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39. Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 -- 1 of 6 -- 2 REPRESENTATION & APPEARANCES: 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] The substantive claim the subject matter of this appeal is a claim for work done at the Blair Harding Trust’s (“the Trust”) accommodation and recreation centre, Wings Hinterland Retreat at Tallai (‘the retreat’). Mr Harding is the trustee of the Trust. Mr Huckstep is the director of Huckstep Enterprises Pty Ltd (“Huckstep”). In 2017 Mr Huckstep carried out grinding, filling, and recoating of concrete services around the grounds of the retreat. He sought to recover the cost of the work from the Trust but no payment was forthcoming. Huckstep then commenced the proceeding in the minor civil disputes jurisdiction to recover the sum of $11,374. [2] At the initial hearing on 31 January 2020, there was no appearance by anyone for the Trust and despite that, Huckstep’s claim was dismissed. After appealing the tribunal's decision of 31 January 2020, the appeal tribunal set aside the decision and remitted the back to the minor civil disputed jurisdiction for a rehearing. [3] The proceeding was ultimately set down for hearing on 2 November 2020. Both parties appeared, Mr Harding for the Trust and Mr Huckstep for Huckstep. The new hearing commenced at 2. 07 pm and concluded about 4:50pm. During the course of the hearing both parties ventilated their positions in reliance on documents and with oral evidence/submissions. Mr Harding’s position in his filed response was that Huckstep’s claim had been compromised in an earlier proceeding between the parties, MCD602/18, and therefore his claim should be dismissed. Huckstep contended that the earlier claim was separate and distinct to the claim the subject of MCD387/19 and he was entitled to recover for the cost of the work carried out. [4] Some observations and consideration were given to this issue in the earlier appeal:1 It is readily apparent that the compromised proceeding (602/18) only related to the work the subject of the quotation of first invoice issued on 7 July 2017. Furthermore, the applicant was Mr Huckstep in person, and it is the current respondent who agreed not to take any further action against the applicant in respect of the work the subject of that proceeding. Although an appeal has been filed in respect of that matter it is not an appeal, but an attempt to include the applicant company as an applicant to that proceeding, because it is now contended that the compromise was with the company and not Mr Huckstep who sued in his personal capacity. The purpose of this is, obviously, to attempt to include the applicant company in the compromise agreement in MCD602/18, and not only for the first part of the work but also the second, which is the subject of the current proceeding under appeal, MCDQ387/17. This is consistent with the response filed in 387/19 which contends that the subject matter of that proceeding was determined and finalised by the compromise in 602/18. The effect of that is therefore, that the applicant is prohibited from further litigating the claim for the second part of the work. If the claim in 602/18 did include the second part of the work, the plea would be maintainable, but clearly it did not. 1 Huckstep Enterprises Pty Ltd t/as Global Coating Solutions v Harding AT of the Blair Harding Family Trust [2020] QCATA 140 at [13] -- 2 of 6 -- 3 [5] Much of the hearing was taken up on this point. Mr Harding continued to press his case of compromise with the learned adjudicator until finally she made it clear, but not necessarily a ruling, that she rejected his argument.2 She did so by examining the file in MCD602/18 and the terms of the compromise and found that the claim before her was a separate claim to that which was compromised. However, this was at the end of the day, after 4:30pm. She wanted to move onto the substantive claim and queried Mr Huckstep about his evidence in support of the work set out in the invoice. He produced a serious of photographs and they were shown to Mr Harding by the tribunal. Mr Harding’s response was that: I haven't actually prepared for it because I wasn't preparing to - I thought this would be dismissed two hours ago, so - based on what we've agreed so, to be honest with you, I haven't - I haven't actually got, like, 50 pages of an affidavit that I was - that I - you know, and emails of John agreeing that his product had failed, and he was going to try and claim it on his insurance, in his writing to me, that he was going to try and claim it. [6] In view of Mr Harding’s position that he was unprepared and had more evidence to produce that he didn’t have with him. Also, as time was running out that day the tribunal invited Mr Huckstep to provide additional proof, to establish that the work the subject of the disputed invoice, had in fact been carried out. Mr Harding was also given an opportunity to file the further evidence he had. To that end further directions were made, which relevantly included the following: (a) Huckstep Enterprises Pty Ltd must, by 4:00 PM on 11 November 2020, file in the tribunal and give to the Blair Harding all material on which he seeks to rely at the adjourned hearing. (b) The Blair Harding must, by 4:00 PM on 20 November 2025 in the tribunal I give it to the respondent or material on which he seeks to align in response. [7] Mr Huckstep complied with the directions and filed a serios of photos that related to the work he had undertaken. Copies were provided to Mr Harding prior to the resumed hearing. However, no further material was filed by Mr Harding or the Trust before 20 November 2020. [8] On the resumed hearing date, 23 November 2020 at about 12pm, Mr Harding did not appear. It is recorded in the transcript that: I note that Mr Harding hasn’t attended today. We’ve had no request for him to attend by phone or by any other means.3 [9] Mr Huckstep also informed the tribunal that he had not heard from Mr Harding. Nor had he received any material in response to the material he had filed and served. [10] Having regard to the transcript of the resumed hearing, in the absence Mr Harding or any material filed by the Trust, the only matter that had to be considered was whether Mr Huckstep’s further evidence satisfied the tribunal that the work had been carried out. This is made clear by the learned adjudicator:4 ….back on 2nd November when we were here we did spend quite a bit of time going through what had happened up to this point and it was clear to me and I made 2 Transcript of 02.11.2020 page 73-80. 3 Transcript of 23.11.2020 page 2 line 20. 4 Transcript 23 November 2020 page 3 line 5. -- 3 of 6 -- 4 findings on that date at Mr Harding did not have an adequate defence to the claim, that, in fact, the amount of money that you were seeking had nothing to do with the previous order of this tribunal with respect to return on money from Mr Harding to you in respect of some accommodation booked at the same premises [11] The tribunal then went onto consider the further evidence supplied by Mr Huckstep and gave reasons as to why she found for Huckstep. So, Mr Huckstep, I’m satisfied on the photographs you’ve shown me and the evidence you’ve produced today and in the absence of anything from Mr Harding to the contrary, its my view that you should have judgment in the amount that you seek. [12] In the reasons she then went onto comment that: I note that Mr Harding has not attended today. There doesn’t appear to be any good reason for his non-attendance. The hearing date was noted (sic) to him in the hearing that we had on 2 November and was sent out by a notice of hearing subsequently by the registry. [13] It is evident from the transcript that the learned adjudicator was unaware, as was Mr Huckstep, that Mr Harding had contacted the registry to say he could not attend the hearing due to the fact that he was concerned his wife was going into labour that morning. [14] There is some inconsistency as to just how Mr Harding contacted the tribunal. In his application to reopen, he said: The respondent sent an email to the tribunal and the applicant at 11:30am advising the tribunal of the foregoing (wife’s circumstances) and seeking an adjournment… it appears that the email was not brought to the attention of the adjudicator and the hearing on 23 November 220 proceeded in my absence and I was accordingly denied natural justice. [15] In his submissions in support of the appeal, Mr Harding was more specific in that he says that he “notified Lauren on the morning of the hearing and asked Lauren to notify the adjudicator that he was unable to attend the hearing”5. This is confirmed in the affidavit he filed in the appeal. In that affidavit he asserts that the hearing was listed for 11am (his email was at 11.31am). He then says he telephoned the registry and spoke to “Lauren” and explained the situation with his wife, and he would not be able to attend the hearing at 11am. Lauren told him that she would advise the adjudicator, which obviously never happened prior to commencement of the resumed hearing. [16] When one has regard to the email referred to in application to re-open in the minor civil disputes file, there was no reference to Lauren nor is there any reference to any conversation with any person in the registry. The email is simply addressed to the Southport Civil-QCAT with Mr Huckstep copied in. The time of the email was 11.31. It appears Mr Harding did have direct contact with “Lauren” but that seems to have been after the decision was delivered on 23 November 2020. [17] The point here is that there is no doubt that Mr Harding contacted the tribunal by email, however the inconsistency in the version given in support of his application to re-open and in both his submissions in the appeal and his affidavit leave some doubt as to his motives that morning. If he was of the view that the resumed hearing commenced at 11am, as he clearly was, and it is reasonable to assume that he must have been aware of 5 Applicant’s submissions paragraph 35. -- 4 of 6 -- 5 his wife’s condition before 11.31, why leave it to the last minute to seek an adjournment. Furthermore, if he believed the hearing was to commence at 11am, and he did in fact telephone the registry, he could have asked to be put through to the hearing room and briefly attend the hearing by phone to inform the tribunal of his situation. Although not relevant to the appeal, but to complete the background history, Mr Harding then sought to shore up his position on the re-opening application by having his general practitioner write a letter confirming he could not attend the tribunal on 23 November. Unfortunately, the letter is of no probative value as it simply recites what Mr Harding told the doctor about his circumstances. The doctor had no personal knowledge of what happened on 23 November 2020. [18] The only conclusion that can be reached with any certainty is that he simply informed the registry by email at 11.31am. In those circumstances it is not reasonable to expect that the hearing would be adjourned, particularly when he expected it to start at 11am. It follows that there is no basis to contend that the learned adjudicator should have adjourned the hearing when it is clear from the transcript and Mr Harding’s own evidence, that she was completely unaware of his circumstances and the request for an adjournment. In continuing to hear the matter and make a decision with reasons was not in the circumstances a denial of procedural fairness. [19] Turning then to the other grounds of appeal. Mr Harding relies on an affidavit which sets out the basis of the Trust’s defence to the claim. He contends that it has a good defence to Huckstep’s claim and to not permit him to agitate his defence is also a denial of procedural fairness or natural justice. Be that as it may, the Trust has insurmountable difficulties. [20] In his response and at the hearing, Mr Harding made a choice to defend Huckstep’s claim on the basis of the compromise made in MCD602/18. He could have, as an alternative, defended the claim on the basis of that which is contained in the affidavit. He chose not to lead any of that evidence at the primary hearing. Even so, he was given an opportunity to file any further material he sought to rely on by 20 December 2020 but chose not to do so and therefore lost that opportunity. Had he done so this would have been brought to the attention of the tribunal. Although he failed to attend the hearing, it seems for good reason, but having regard to the limited steps he took to advise the tribunal, no blame can be sheeted home to the adjudicator. He took the appropriate course to apply for a re-opening. That application for re-opening was dismissed. [21] Despite filing an application for leave to appeal the re-opening decision he subsequently realised that an appeal is not permitted on a re-opening decision6 there is no appeal from that decision. Rather than dismiss the appeal on a procedural ground, to ensure prodcureal fairness, the tribunal directed that the appeal proceed as though it was an appeal from the final decision and directed that the Trust amend the application for leave to appeal or appeal to include further grounds of appeal. [22] Because this is now an appeal from the minor civil disputes jurisdiction, leave to appeal is necessary under section 142(3)(a)(i) of the Queensland Civil & Administrative Tribunal Act 2009 (“QCAT Act”). Therefore to obtain leave to appeal the Trust must still establish there is a reasonable argument that the primary decision was attended by error, or an appeal is necessary to correct a substantial injustice caused by the error.7 An application for leave to appeal is not simply an opportunity to reiterate the arguments 6 QCAT Act s 139(5). 7 Terera & Anor v Clifford [2017] QCA 181. -- 5 of 6 -- 6 made at the hearing below in the hope of obtaining a different outcome.8 Put another way, it is not a rehearing on the merits of the matter that was before the primary decision maker, nor should it be taken as an opportunity to raise new arguments or evidence that was not relied on in the primary hearing. [23] Here, Mr Harding has sought to file an affidavit in the appeal, which contains submissions in support of his appeal, but it also contains fresh evidence going to the substance of his defence to the minor civil dispute. Fresh or new evidence will not be permitted in an appeal unless an application is made for leave to rely on it. One of the fundamental considerations in the exercise of discretion is whether the evidence was available at the time of the original hearing.9 Clearly, here it was and not used. Although no application had been made by the Trust, for leave to lead the evidence in the appeal, even if it was, the new evidence contained in Mr Harding’s affidavit would not be permitted. It was available for him to rely on at the primary hearing. He chose not to. [24] The Trust’s principal ground of appeal is a denial of procedural fairness in failing to adjourn the hearing because of his personal circumstances. For the reasons discussed above, the factual circumstances as to what occurred on the morning of the hearing do not demonstrate that the learned adjudicator engaged in any conduct which could be described as a denial of procedural fairness or natural justice. [25] As to the argument that the Trust has a defence to Huckstep’s claim, be that as it may, but the Trust chose to defend on the basis of the compromise and ran that argument vigorously before the learned adjudicator. When it was apparent that the compromise argument would fail, Mr Harding was given an opportunity to file further material in its defence, effectively as to the quality of the work carried out by Huckstep. Having failed to file any further evidence, and without notice of Mr Harding’s reasons for not attending the tribunal, the learned adjudicator proceeded to hear the matter further and make a final decision. [26] The learned adjudicator, quite properly, decided the claim on its merits on the evidence before her. The conclusions she came to were open to her on the evidence and there is no reason to interfere those findings. Again, there is no procedural error identified here which would warrant a grant of leave to appeal. [27] Accordingly, leave to appeal must be refused. 8 Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39. 9 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 6 of 6 --