East Coast Construction Services Pty Ltd v Queensland Building and Construction Commission [2021] QCATA 31

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: East Coast Construction Services Pty Ltd v Queensland Building and Construction Commission [2021] QCATA 31 PARTIES: EAST COAST CONSTRUCTION SERVICES PTY LTD (applicant/appellant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISION (respondent) APPLICATION NO/S: APL189-20 ORIGINATING APPLICATION NO/S: GAR087-19 MATTER TYPE: Appeals DELIVERED ON: 12 February 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown Member Deane ORDER: Leave to appeal refused CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – ADMISSION OF EVIDENCE – where applicant performed building work for clients – where there were complaints that the building work was inadequate – where the respondent applied to adduce a statement from the client after the directed date for evidence to be filed – where the applicant opposed the adducing of the statement on the basis that, among other things, it would prejudice their right to a fair hearing– whether the learned Member erred in allowing the evidence to be adduced Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 21, s 95, s 142 House v The King (1936) 55 CLR 499 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 8 -- 2 REASONS FOR DECISION [1] This is an appeal by East Coast Construction Services Pty Ltd against an interlocutory decision of the tribunal permitting the Queensland Building and Construction Commission to adduce further evidence in review proceedings. [2] A party seeking to appeal a decision of the tribunal that is not the final decision in a proceeding must first obtain leave to appeal.1 Background [3] ECCS undertook building work at a property on the Gold Coast for Scott and Julie Gordon. On 10 September 2018 the QBCC gave a direction to rectify to ECCS in relation to certain items of building work (the reviewable decision). [4] On 6 March 2019 ECCS filed an application to review the reviewable decision. On 7 June 2019 the tribunal granted ECCS an extension of time to file the review application. On 27 June 2019 the QBCC filed its material in accordance with s 21(2) of the QCAT Act. ECCS was directed to file its statements of evidence by 2 August 2019. It did not do so. On 27 August 2019 the parties attended a compulsory conference and on 5 December 2019 they attended a second compulsory conference. Following the second conference ECCS was directed to file its statements of evidence by 9 January 2020. ECCS complied with the direction on 13 January 2020. The QBCC filed its further material on 14 February 2020. [5] On 6 May 2020 the QBCC filed an application seeking to adduce further evidence. The evidence is a statement by one of the building owners, Scott Gordon. On 9 June 2020 the tribunal gave leave to the QBCC to adduce the evidence of Mr Gordon. [6] It is against this background that the application for leave to appeal falls to be considered. [7] It is appropriate to pause here and say something about the building work undertaken by ECCS. On or about 28 April 2017 ECCS entered into a contract with the Gordons to build a house. Mr Gordon mobilises with the aid of a wheelchair. The house was designed, and constructed, to be wheelchair accessible. On 23 March 2018 the Gordons made a complaint to the QBCC about the building work performed by ECCS. By this stage, the building work had been completed. The Gordons complained that certain aspects of the work were defective. [8] There were 14 items of complaint. Additional items of complaint were subsequently identified by the Gordons after they received a report from an independent builder. A QBCC building inspector undertook an inspection of the works and prepared a report on 8 May 2019. The report identified 4 items of defective building work: (a) Floor tiling on rear upper and lower decks was not installed to an appropriate industry standard; (b) Aluminium window frames in the living room and beneath the lower rear deck were marked and stained; (c) Internal plaster board linings in studio linen cupboard not finished to an appropriate industry standard; 1 QCAT Act, s 142(3)(a)(ii). -- 2 of 8 -- 3 (d) Water supply to external hose tap not installed to an appropriate industry standard. [9] A direction to rectify in respect of items (a) and (b) was issued by the QBCC to ECCS on 10 September 2018. [10] The QBCC subsequently agreed to various extensions of time for ECCS to comply with the direction to rectify. [11] On 11 February 2019 the Gordons lodged a second complaint with the QBCC identifying an additional 16 items of building work. The QBCC arranged for a building inspector to undertake a further inspection of the property on 11 March 2019 and on 12 March 2019 a report was prepared by the inspector. The report identified that the works, the subject of the earlier direction to rectify, had not been satisfactorily remedied. The report also identified additional defective building works. [12] On 18 March 2019 the QBCC issued a second direction to rectify to ECCS. [13] For present purposes, both below and in this appeal, the relevant item of building work is the floor tiling on the rear decks (the tiling works). [14] A summary of the expert evidence in relation to the tiling works follows: (a) Incode Engineers, engaged by ECCS:2 Moisture and efflorescence appeared to rise through the grout joints between tiles. Dark shade tiles combined with local climate would provide high temperatures on the tiled surface causing expansion of the grout/tiles and cracking allowing moisture to enter. Ponding of water on the upper balcony indicative of inadequate fall. If installed as per the structural plans the joists would result in acceptable deflection following the installation of tiles, affecting the fall and allowing moisture ponding. The middle floor balcony frame layout would compromise the required fall to the joists; (b) Matthew Cornell, engineer engaged by QBCC: 3 Tile debonding has allowed water to pond between the tiles and the tile bed. The weight of a wheelchair with a user is estimated to be 250kg with the main axle of the wheelchair carrying up to 70% of the weight. The concentrated load from the main pair of wheelchair wheels would be in the vicinity of 175kg. It is probable that the top level deck floor joists have not been structurally overloaded by the wheelchair. There is a distinction between structural overloading and deflection overloading if the relative stiffness of the flooring is less than that estimated by the structural engineer, the load sharing to adjacent joists would be less than expected with the result that the uneven deflection would result in uneven flexing of the tile substrate which could lead to tile debonding. Uneven joist loading could cause tile debonding even if the design is structurally compliant. The deck joists of the mid level deck have not been constructed with fall; (c) Incode Engineers, engaged by ECCS:4 The rising and bubbling of moisture through the grout lines under pressure is indicative of significant moisture ponding. Ponding has likely occurred due to sagging/deflection of the joists and absence of additional blocking or stiffening required to handle additional balcony imposed and dead loads which could be possibly exacerbated by heavy 2 Report dated 1 March 2019. 3 Report dated 6 June 2019. 4 Report dated 9 January 2020. -- 3 of 8 -- 4 wheelchair concentrated loads. Joists have not been designed in consideration of the combined balcony imposed limits and brittleness of the tiles and would be considered practical deflection limits; (d) Darren Girling, QBCC building inspector:5 Tiles on upper and lower decks compressing when pressure applied when being stood on. Tiles flexing under foot however not loose enough to become detached at time of inspection. While applying pressure, water squelched up through grout joints. This occurred on a large number of tiles on the upper and lower decks. The absence of expansion joints to the decks may have contributed to the defect. Efflorescence stains were observed on the upper and lower deck tiles. Upon reinspection (following further works to the decks and tiles being undertaken by ECCS) water entrapment below the tiles had reoccurred, calcification stains had reoccurred on the tiles and stains had reoccurred on the walls and windows directly below the upper and lower decks. Tiles on the decks remained loose allowing moisture to form under the tiles which squirted out when load was applied. There may have been an underlying structural issue with the sub floor over flexing resulting in loosening of the tiles. The cause of the water being trapped beneath the tiles is likely due to poor drainage; (e) Robert Hughes, engineer engaged by the QBCC:6 The main cause of staining and debonding of the tiles on the decks is the lack of drainage slope in the decks. The main cause, if not the only cause, for the cracking of the mortar joints between the tiles is thermal movement as a result of expansion of the tiles. The absence of expansion joints would mean that thermally induced tile mortar cracking between tiles and de-bonding of tiles from the substrate would be more likely. Wheelchair weight or movement is not the cause of the tile mortar cracking or debonding. [15] We will now consider in more detail the further evidence the QBCC sought to adduce. [16] The statement of Scott Gordon is unsigned. In the statement, Mr Gordon says, inter alia: (a) He uses a power wheelchair; (b) Photographs of the deck, attached to the statement, and taken before Mr Gordon was able to access the deck using his wheelchair, showed extensive issues with the tiles; (c) He had used the same wheelchair for the previous 12 years. Older style power wheelchairs weigh approximately 120kg to 160kg; (d) He was in the process of transitioning to a new wheelchair weighing approximately 20kg more than his current wheelchair; (e) Current wheelchairs weigh approximately 160kg to 180kg; (f) ECCS had estimated the combined weight of Mr Gordon and his wheelchair at 250kg; 5 Statement dated 14 February 2020 6 Statement dated 14 February 2020 -- 4 of 8 -- 5 (g) The combined weight of Mr Gordon and his wheelchair was, at the relevant time, under 250kg; (h) The combined weight of Mr Gordon and his new wheelchair is approximately 260kg; (i) The calculations of the weight of the wheelchair relied upon by ECCS did not separate the left and right wheels from the front and back wheels. The two main drive wheels at the front of the chair are more than 600mm apart and are therefore always on at least 2 tiles with the total chair being on 3 tiles and the majority of the time the weight is spread over 4 tiles. Therefore, the point loads on any tile never exceed 95kg; (j) He has observed significantly more water squirting from between the tiles when an average sized man walks on the tiles. [17] In support of the application to adduce the statement by Mr Gordon, the QBCC said: (a) The QBCC had taken steps to obtain a witness statement from Mr Gordon as early as 14 January 2020. Mr Gordon was not available to provide a witness statement at that time. The QBCC was not able to obtain a statement from Mr Gordon by 14 February 2020 (the date by which the QBCC was directed to file any further material). Mr Gordon was now willing to assist the tribunal and provide a statement; (b) the matter was not listed for hearing; (c) the matter was listed for an experts conclave on 26 June 2020. It was proposed that the statement of Mr Gordon would be provided in sufficient time for the experts to consider his evidence before the conclave; (d) there was little prejudice to ECCS if the further evidence was allowed. [18] In response, ECCS said: (a) QBCC was refused leave to join proceeding BDL252-19 and was attempting to ‘subvert the order of the Tribunal by seeking that the information from that proceeding (or relevant to that proceeding) be incorporated by other means’; (b) The QBCC had continually attempted through the proceeding to introduce additional information and reports in circumstances where the review decision appeared to be lacking in merit; (c) The QBCC had continually changed position and attempted to formulate new grounds to justify their position; (d) If the QBCC was allowed to adduce the further evidence it would continue to do so at its ‘own whim’; (e) The QBCC was taking steps to put ECCS to considerable financial and personal stress; (f) The evidence was likely obtained as a result of the QBCC pressuring Mr Gordon; [19] On 9 June 2020 the tribunal gave leave to the QBCC to adduce the statement of Mr Gordon. -- 5 of 8 -- 6 [20] The relevant grounds of appeal relied upon by ECCS are: (a) The further evidence will introduce information not relevant to the issues in dispute; (b) The evidence will prejudice the ability of ECCS to have a fair trial as it is not independent or impartial, is supplied by a lay witness who has a significant vested interest in a finding being made against ECCS; (c) The means by which the further evidence has been obtained is questionable as it is likely the QBCC obtained it by requiring Mr Gordon to execute a document prepared by the QBCC failing which he would not be entitled to coverage under the statutory insurance scheme. [21] The submissions filed by ECCS in support of the application for leave to appeal are a recitation of the grounds of appeal and the submissions opposing the application by the QBCC in the proceedings below. Despite being directed to do so7 ECCS has not filed submissions addressing, inter alia, what it says is the error in the decision under appeal. [22] In response the QBCC says: (a) ECCS has failed to identify an error in the decision below; (b) The learned member did not err in the exercise of the discretion to allow the further evidence; (c) ECCS has not satisfied the threshold for leave to appeal to be granted and the appeal allowed; (d) In the absence of any identified grounds of error, ECCS is simply seeking to have the discretion to allow the further evidence re-exercised; (e) The concerns expressed by ECCS as to Mr Gordon’s impartiality are not relevant where the criterion for evidence in the tribunal is relevant rather than the rules of evidence. The concerns of ECCS go to the weight the tribunal may afford the evidence of Mr Gordon; (f) The evidence of Mr Gordon is relevant to the expert evidence and the proposed experts conclave to be held in the proceedings below. Consideration [23] At the outset it should be noted that the parties and the Appeal Tribunal do not have the benefit of reasons by the learned member for his decision. The parties were entitled to request reasons and did not do so. Accordingly we proceed in the absence of such reasons. [24] As the QBCC correctly observes in its submissions, the decision by the learned member to allow the further evidence involved the exercise of a discretion. What constitutes error in the exercise of a discretion was stated by the High Court in House v The King8: 7 Appeal Tribunal directions made 16 July 2020. 8 (1936) 55 CLR 499, 504 -- 6 of 8 -- 7 The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. [25] The purpose of the review of a reviewable decision is to produce the correct and preferable decision.9 The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.10 In a review proceeding the decision maker must use his or her best endeavours to help the tribunal so that it can make its decision.11 [26] In the review proceedings below, the issues the tribunal will be required to determine include the nature, cause and extent of the issues relating to the tiling on the rear decks. The parties have obtained expert evidence and a conclave is yet to be conducted. It is critically important that, before a conclave is held, the experts are provided with all information to permit them to reach a fully informed opinion about the relevant issues that are within their area of expertise. [27] It is readily apparent from the material filed in the proceedings below that one of the issues considered by the various experts is whether the issues relating to the tiling have been caused or contributed to by Mr Gordon’s use of his wheelchair. ECCS has filed a statement of evidence in the review proceedings by its director, Mr Eddy.12 Mr Eddy refers to the report of Matthew Cornell. As referred to earlier in these reasons, Mr Cornell has opined that the use of the wheelchair on the decks could lead to uneven joist loading resulting in tile debonding even though the deck design is structurally compliant. Mr Eddy states that the house was constructed in accordance with the plans and as an ordinary house. Mr Eddy estimates the total weight of the wheelchair and Mr Gordon as less than the estimate by Mr Cordell of 250kg. Mr Eddy states that any overloading of the deck by the Gordons ‘beyond this weight’ was at their risk and any resultant failure was not attributable to ECCS. [28] The QBCC has identified that Mr Hughes will attend the conclave. As referred to earlier in these reasons, Mr Hughes is an engineer. Mr Hughes opines that wheelchair weight or movement is not the cause of the tile mortar cracking or debonding. [29] The tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence.13 Having said this, and while the procedure for a proceeding is at the 9 QCAT Act, s 20(1). 10 Ibid, s 20(2). 11 Ibid. s 21(1). 12 Statement of Andrew Ross Eddy dated 9 January 2020. 13 QCAT Act, s 95(1)(a) -- 7 of 8 -- 8 discretion of the tribunal, the tribunal must observe the rules of natural justice. The two basic rules of natural justice are the fair hearing rule and the bias rule. The second is not relevant for present purposes. The fair hearing rule requires the tribunal to provide to parties a reasonable opportunity to present their cases and to answer any allegations against them. In review proceedings this requires the decision maker to ensure that it places before the tribunal all relevant material to assist the tribunal to reach the correct and preferable decision. Consistent with this obligation is the requirement that the tribunal ensure, as far as is practicable, that all material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. [30] It is clear that the experts will, at the conclave and at the final hearing, consider the issue of the use by Mr Gordon of the wheelchair. The statement of Mr Gordon goes some way to providing further evidence regarding the wheelchair, including its design and weight. Whether and to what extent the evidence impacts upon the opinions expressed by the experts is a matter for the experts. Irrespective, it is clear that the evidence is relevant to an issue in the proceedings. [31] There can be no suggestion that, in allowing the further evidence, there has been prejudice to ECCS. Firstly, the conclave has not been held. Indeed, ECCS has not yet identified the expert who will be attending the conclave. Secondly, there is ample opportunity for ECCS to provide a copy of Mr Gordon’s statement to its expert for consideration and comment. Thirdly, allowing the evidence is unlikely to have any adverse impact upon the progress of the review proceedings. Indeed, this appeal has achieved that outcome. Fourthly we do not accept that allowing the evidence will, as ECCS submits, permit the QBCC to adduce further evidence at its whim. If parties seek to adduce further evidence they must apply for leave to do so and any such application will be determined on its merits. Fifthly, the submission by ECCS that it will be prejudiced by the admission of the lay evidence of Mr Gordon is without substance. Mr Gordon’s evidence is largely confined to matters of fact regarding the design and weight of his wheelchair. As we have observed, whether and to what extent this is considered relevant by the experts is a matter for the experts. Ultimately it will be a matter for the tribunal to determine the weight to be given to the evidence. ECCS will have the opportunity to make submissions in relation to these matters at the time of the hearing. [32] As to the submission by ECCS that the evidence has been obtained by the QBCC in questionable circumstances we will say only this. The submission borders on scandalous and we consider it entirely without merit. [33] It follows that we are not persuaded that the learned member erred in exercising his discretion and allowing the further evidence. Conclusion [34] There has been no demonstrated error by the learned member. There is no other basis for leave to appeal to be granted. The appropriate order is that leave to appeal is refused. -- 8 of 8 --