Core Concrete Pty Ltd v Murtrack Pty Ltd t/as R & F Steel Building Cairns [2020] QCAT 427

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Core Concrete Pty Ltd v Murtrack Pty Ltd t/as R & F Steel Building Cairns [2020] QCAT 427 PARTIES: CORE CONCRETE PTY LTD (applicant) v MURTRACK PTY LTD T/AS R & F STEEL BUILDING CAIRNS (respondent) APPLICATION NO/S: REO007-20 MATTER TYPE: Building matters DELIVERED ON: 26 October 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: The application for reopening, correction, renewal or amendment filed 31 March 2020 will proceed as an application for leave to appeal or appeal subject to the payment by Core Concrete Pty Ltd of the prescribed fee. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure – reopening – where applicant did not attend compulsory conference - where member presiding the compulsory conference proceeded to a summary determination – where failure to attend a compulsory conference the result of administrative error not a reasonable excuse for non- attendance – whether applicant was afforded procedural fairness in summary determination of the proceedings – where application for reopening to proceed as application for leave to appeal or appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 32(1), s 47, s 61(1), s 67(1), s 70(4), s 72(1), s 72(3), 73(1)(a), s 121(1), s 138(1), s 139, s 140, sch 3 Booij & Multiply Plus Pty Ltd v Roper [2015] QCATA 157 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 -- 1 of 7 -- 2 Du v Batra & Anor [2017] QCATA 138 Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor [2014] QCAT 359 Lillas & Loel Lawyers Pty Ltd v Celona & Ors [2014] VSCA 19 Moreton Island Development Group v Smith Development Pty Ltd [2012] QCATA 15 Warren v Queensland Law Society Inc [2016] QCAT 310 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 What is this application about? [1] Core undertook concreting work for Murtrack. Core says that Murtrack failed to pay for the works undertaken. Core filed an Application for commercial building disputes.1 Murtrack responded to the application and made a counter application.2 Core subsequently failed to attend a compulsory conference scheduled on 16 March 2020. As a result of Core’s failure to attend the conference, the member presiding at the conference dismissed Core’s application and made a final decision in favour of Murtrack in respect of the counter application. [2] Core has applied to reopen the proceedings.3 Compulsory conferences and the power of the tribunal to make a final decision in the absence of a party [3] The tribunal may direct the parties to a proceeding to attend a compulsory conference.4 [4] Section 28, s 29 and s 32(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) apply to a compulsory conference as if the conference were a proceeding before the tribunal.5 Sections 28 and 29 set out, inter alia, the duties of the tribunal in the conduct of proceedings. [5] If a party to a proceeding does not attend a compulsory conference, the conference may proceed in the party’s absence.6 The member presiding at the conference may, if the parties present agree, make a decision adverse to the absent party and make any appropriate orders, including orders about costs.7 1 Application filed 25 July 2019. 2 Response and counter application filed 11 February 2020. 3 Application for reopening, correction, renewal or amendment filed 31 March 2020. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 67(1). 5 Ibid, s 70(4). 6 Ibid, s 72(1)(a). 7 Ibid, s 72(1)(b)(i). -- 2 of 7 -- 3 [6] If the tribunal makes a final decision in the absence of a party, the QCAT Act applies to the decision or order as if the compulsory conference were a proceeding before the tribunal and the decision or order were a decision or order made by the tribunal constituted for the proceeding.8 Reopening proceedings [7] A party to a proceeding that has been heard and decided by the tribunal may apply for the proceeding to be reopened if the party considers a reopening ground exists for the party.9 [8] For the purposes of the provisions of the QCAT Act relating to reopening proceedings, a ‘hearing’ includes a compulsory conference if the person presiding over the conference decides the proceeding under s 72(1)(b). [9] A reopening ground is defined and means: (a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.10 [10] The tribunal may reopen a proceeding.11 If the tribunal decides that a proceeding should be reopened, the tribunal must decide the issues in the proceeding that must be heard and decided again.12 There must be a fresh hearing on the merits.13 Discussion [11] The power of the tribunal to reopen a proceeding is a limited exception to the doctrine of functus officio. The reopening procedure has been described as a quick and easy way of achieving QCAT’s stated objects, via a statutory process of reviewing a decision without the delay and inconvenience of having to appeal that the ‘functus officio’ doctrine would otherwise prevent.14 [12] It is important however to distinguish between an application to reopen a proceeding and an appeal. The former may or may not involve error in the decision by the tribunal at first instance while the latter requires an appellant to establish error in the decision at first instance. [13] Another important distinction between the power to reopen a proceeding and an appeal is that the grounds upon which a proceeding may be reopened are strictly circumscribed. Error by the tribunal in making a final decision is not a reopening ground. [14] The parties were directed to file submissions in respect of the reopening application. 8 QCAT Act, s 72(3). 9 Ibid, s 138(1). 10 Ibid, sch 3 – Dictionary. 11 Ibid, s 139. 12 Ibid, s 140(1). 13 Ibid, s 140(2). 14 Warren v Queensland Law Society Inc [2016] QCAT 310. -- 3 of 7 -- 4 [15] Core filed no submissions. I am limited therefore to a consideration of the matters set out by Core in the reopening application. Ms Lane, who is a director of Core, says that she erred in noting the time of the compulsory conference. She says that she attended at the Cairns Courthouse at 2.00pm on 16 March 2020 expecting the conference to commence at 2.30pm. In fact, the conference had been scheduled for 1.30pm. Ms Lane says in the application for reopening that she ‘immediately called the office to inform them of my error’ and was advised to ‘wait for a decision’. I assume that the reference to ‘the office’ is a reference to the QCAT registry and that Ms Lane spoke with a registry officer. [16] As to Murtrack’s submissions, it is sufficient to observe that Murtrack says Core has failed to identify a reopening ground. [17] Failure by a party to arrange their affairs to ensure that they attend a compulsory conference or a hearing will not, generally speaking, be a reasonable excuse for non- attendance. [18] In Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor15 the tribunal considered an application by the CCC to reopen a proceeding in circumstances where a representative of the CCC failed to attend a compulsory conference and a final decision was subsequently made by the tribunal dismissing a review application. The failure by the CCC to have a representative attend the conference was the result of an administrative error. The tribunal accepted that, during the course of the conference, the CCC was contacted by the tribunal registry and the absence of a representative queried. The tribunal accepted that the CCC had, while the conference was still in progress, been advised by a member of the tribunal registry that the conference was to be adjourned to another date. The tribunal found that at the time this conversation took place, the tribunal had not proceeded to hear and determine the matter in accordance with s 72(1)(b) of the QCAT Act. The tribunal found that when the presiding member subsequently proceeded to make the decision pursuant to s 72(1)(b), the CCC had a reasonable excuse for its failure to attend, namely, the reasonable and mistaken belief that the conference was to be adjourned to another date. [19] In Gollschewski the CCC relied upon Victorian authority for the proposition that the ‘I forgot’ explanation might be a reasonable excuse for not attending a compulsory conference.16 There is however ample authority in this tribunal that failing to properly record and thus remember to attend a hearing is not a reasonable excuse for non- attendance.17 [20] In the absence of submissions in support of the reopening application, how and why Core came to mistake the time for the conference is unknown. The tribunal record reveals that notice of the compulsory conference was forwarded by email to the parties on 3 February 2020. The notice specified the time, date and location of the conference. On 21 February 2020 the tribunal made directions confirming the time and date of the compulsory conference. The directions were sent to the parties by email on the same day. Given that the parties were given notice of the compulsory conference on two 15 [2014] QCAT 359. 16 Lillas & Loel Lawyers Pty Ltd v Celona & Ors [2014] VSCA 19. 17 See for example: Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69; Du v Batra & Anor [2017] QCATA 138; Booij & Multiply Plus Pty Ltd v Roper [2015] QCATA 157. -- 4 of 7 -- 5 separate occasions, it is difficult to accept Core’s excuse for its failure to attend the conference as reasonable. [21] It also seems apparent that by the time Ms Lane attended at the Cairns courthouse, the compulsory conference had concluded. This is therefore not a case such as Gollschewski where Ms Lane had communicated with the tribunal registry before the final decision was made by the presiding member pursuant to s 72(1)(b) of the QCAT Act. [22] I am not satisfied that Core has established a reasonable excuse for failing to attend the compulsory conference. Core does not rely upon the second reopening ground and I will consider this aspect of the matter no further. [23] The foregoing reasons are sufficient to dispose of the application for reopening. [24] However the manner in which the proceedings came to an end raises the question of whether the learned member erred in proceeding to make a final decision in respect of the application and the counter application. [25] In Moreton Island Development Group v Smith Development Pty Ltd18 the QCAT appeal tribunal considered the power of the tribunal to make a final decision following the failure by a party to attend a compulsory conference. Despite being aware of the conference, MIDG (the respondent in the proceedings at first instance) failed to attend. The tribunal made a final decision in favour of Smith Development and dismissed MIDG’s counter application. The tribunal subsequently made a further decision on application by Smith Development to renew the final decision. [26] MIDG appealed both the final decision and the renewal decision. The appeal against the renewal decision is not relevant for present purposes and will not be considered further. [27] The appeal against the final decision 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 18 [2012] QCATA 15. -- 5 of 7 -- 6 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. [29] A decision made pursuant to the powers conferred by s 72(1)(b)(i) is a ‘final decision’ as that term is defined.19 This is apparent as a matter of statutory construction upon a consideration of the provisions of Chapter 2, Part 7, Division 7 of the QCAT Act. The tribunal must give reasons for its final decision in a proceeding either orally or in writing.20 [30] No reasons for the final decision were provided by the learned member. In the absence of such reasons why the learned member considered it appropriate to proceed to summarily determine the application and the counter application is not known. [31] A number of observations can however be made about the building dispute proceedings. Firstly, the claim by Core is one for monies said to be due and owing by Murtrack for concreting work performed at a commercial building site. Attached to the application filed by Core are a number of documents from which it appears, inter alia: (a) Core complained to the Queensland Building and Construction Commission regarding what it said was Murtrack’s failure to pay for concreting work performed by Core; (b) Various tax invoices were rendered by Core in respect of the concreting work; (c) There were various email communications between the parties in relation to the non-payment of tax invoices. [32] Secondly, the response and counter application filed by Murtrack asserts that the work was not performed by Core in accordance with the contract between the parties. In the counter application Murtrack claims what it says were the costs incurred in having Core’s building works rectified. [33] As was observed in Moreton Island Development Group: [35] Other factors, however, should be considered before the Tribunal proceeds to summary determination. These include the nature and scope of the dispute, whether it is appropriate to determine the matter without an oral hearing and whether the parties have had the opportunity to make submissions about the issues in contest. [36] Importantly, in this case there was a real and substantial contest. A decision by default was21 open. MIDG had filed a response and counterapplication and substantial material in support of both. [37] Further, it would not have met the test for striking out or dismissing the counter-application: that it is frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process. [38] The decision made in favour of Smith Development was analogous to summary judgement in civil courts, however, this case did not meet the relevant test: no real prospect of successfully defending all or part of the claim and no need for a trial. 19 QCAT Act, sch 3 – Dictionary. 20 QCAT Act, s 121(1). 21 It appears that the word ‘not’ has been omitted from the reasons. -- 6 of 7 -- 7 [39] There were contests on the facts that required findings, at least in part, of issues of credit. MIDG also raised a defence based on the application of section 42 of the Queensland Building Services Authority Act 1991, which deals with what remuneration an unlicensed builder may claim. If successful, that argument presents an answer to a large part of the claim made by Smith Development.22 (footnotes omitted) [34] Addressing the matters referred to in Moreton Island Development Group: (a) 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; (b) 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; (c) In my view there is a real and substantial contest in relation to both Core’s claim and the counter application by Murtrack; (d) 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 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; (e) There is no doubt a contest on the facts in relation to the claim by Core and the counter application by Murtrack. [35] These are matters that cannot be ventilated and determined in an application for reopening. [36] The procedure for a proceeding is at the discretion of the tribunal, subject to the QCAT Act, the QCAT rules and any relevant enabling Act. The tribunal must also act with as little formality and technicality and with as much speed as the requirements of the QCAT Act and rules and an enabling Act, and a proper consideration of the matters before the tribunal, permit.23 The tribunal may also waive compliance with another procedural requirement under the QCAT Act an enabling Act or the rules.24 [37] In all the circumstances the appropriate order is that the application for reopening filed 31 March 2020 will proceed as an application for leave to appeal or appeal subject to the payment by Core of the appropriate prescribed fee. A filing fee has already been paid by Core in respect of the reopening application however that may have been less than the prescribed fee in respect of an application for leave to appeal or appeal. No doubt the registry will advise Core of the prescribed fee in respect of the application for leave to appeal or appeal in a timely fashion. [38] It will thereafter be a matter for the Senior Member in the appeals jurisdiction to make such further directions as may be necessary to progress the matter. 22 Moreton Island Development Group v Smith Development Pty Ltd [2012] QCATA 15, [35]-[39]. 23 QCAT Act, s 28. 24 Ibid, s 61(1). -- 7 of 7 --