Australian Furniture Relocations Pty Ltd v Eco Builder Pty Ltd [2020] QCATA 106

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Australian Furniture Relocations Pty Ltd v Eco Builder Pty Ltd [2020] QCATA 106 PARTIES: AUSTRALIAN FURNITURE RELOCATIONS PTY LTD (appellant) v ECO BUILDER PTY LTD (respondent) APPLICATION NO/S: APL178-19 ORIGINATING APPLICATION NO/S: MCDO 180/19 MATTER TYPE: Appeals DELIVERED ON: 13 July 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes ORDERS: 1. Leave to appeal refused. 2. The Application to adduce and rely upon fresh evidence is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where allegation of denial of natural justice – where Tribunal has mandate to deal with matters quickly – where appellant was given opportunity to present case and rebut respondent’s case – where appellant had obligation to prove its case – where appellant was given natural justice within context of Tribunal’s minor civil disputes jurisdiction APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicant applied for leave to appeal – where applicant sought to introduce evidence not adduced at first instance – whether evidence should be admitted – whether evidence capable of supporting findings – where new evidence not sufficient -- 1 of 6 -- 2 weight to displace original findings – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 143 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 069 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Creek v Raine & Horne Mossman [2011] QCATA 226 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Harris v Foxworth Pty Ltd [2013] QCATA 133 Kioa v West (1985) 159 CLR 550 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 Slater v Wilkes [2012] QCATA 12 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 appeal about? [1] Australian Furniture Relocations Pty Ltd (AFR) has applied for leave to appeal1 the Tribunal’s decision of 28 June 2019 for it to pay to Eco Builder Pty Ltd (Eco) the sum of $25,337.00, on the ground that it was denied procedural fairness. [2] In determining whether to grant leave, the Tribunal will consider established principles including: whether there is a reasonably arguable case of error in the primary decision;2 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3) (QCAT Act). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 2 of 6 -- 3 whether there is a reasonable prospect that the appellant will obtain substantive relief;3 whether leave is needed to correct a substantial injustice caused by some error;4 and whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.5 [3] The essence of AFR’s appeal is that it did not present all its evidence at the original hearing because it – mistakenly – believed the Applicant was an incorrect entity. AFR submitted that it was denied procedural fairness because: The Tribunal did not allow AFR to put on further evidence; The Tribunal did not adjourn the hearing to allow AFR to amend its response and put on further evidence; and The Tribunal allowed Eco to refer to evidence not served on AFR or provided to AFR during the hearing. [4] The Tribunal must observe procedural fairness.6 However, this is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power.7 The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.8 [5] The Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice,9 is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.10 Within this context, the Tribunal is not bound by the rules of evidence,11 and may inform itself in any way it considers appropriate.12 [6] The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.13 This means that parties may not be aware of all of the material relied upon by their opponent before the hearing. [7] Although the application incorrectly named the director of the lessee as applicant, this was rectified by Order of the Tribunal on 30 April 2019. Relevantly, AFR submitted the following: 3 Cachia v Grech [2009] NSWCA 232, 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. 6 QCAT Act, s 28(3)(a). 7 Kioa v West (1985) 159 CLR 550, 584-585. 8 Creek v Raine & Horne Mossman [2011] QCATA 226, [15] (Wilson J). 9 QCAT Act, s 4(c). 10 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [46] (Wilson J). 11 QCAT Act, s 28(3)(b). 12 Ibid s 28(3)(c). 13 Ibid, s 3, s 4. -- 3 of 6 -- 4 Regrettably, when that decision was posted to the Applicant, it was mis-filed without being brought to the attention of the director of the Applicant, Paul Fowles. The matter was set down for mediation on 6 June 2019. The Applicant attended that mediation and discussed matters on the basis that the applicant in that matter was still Dr Csiki-Bege. It was not pointed out to the Applicant that the Tribunal had granted the application to change the name of the applicant to Eco-Builder.14 [8] However, by sending its decision to AFR, the Tribunal discharged its obligation to keep the parties informed of its decision. AFR cannot rely upon its “misfiling” error and failure to properly prepare its case as a basis for a denial of procedural fairness: In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences; and that mistakes like those made here, while attracting sympathy, can no longer prevail over statutory and practical constraints on available resources for dispute resolution. When these matters are appreciated, it will be seen that a party’s own fundamental error in misreading a document cannot be categorised as a ‘reasonable excuse’ for the purpose of revisiting proceedings which were otherwise correctly and legitimately brought to an end.15 [9] Regardless, AFR’s preparation of its case did not depend on being aware of the decision to amend the name of the applicant. This is because the nature of the claim that AFR was required to meet was readily apparent from the original ‘Application for minor civil dispute – minor debt’ filed on 11 March 2019. That application referred to the bond and attached a copy of the lease naming the lessee. [10] Moreover, during the hearing AFR confirmed its willingness to proceed after the Tribunal addressed its submission about the correct applicant: I can defend ourselves straight away. Rightio.16 [11] AFR then proceeded to raise its defence that the bond was to be applied to make- good.17 As part of this, it was incumbent upon AFR to prove liability for, and the amount of, its alleged loss. The Tribunal gave AFR an opportunity to present its material to prove those elements and to rebut Eco’s evidence.18 [12] The Tribunal asked relevant questions of both parties and gave them an opportunity to respond, referring to supporting material where appropriate. By doing so, the Tribunal focused on the issues and used time and resources efficiently, consistent with the Tribunal’s mandate. Extending the requirements of procedural fairness beyond 14 Affidavit of Paul Anthony Fowles sworn 6 September 2019; Submissions filed 12 September 2019. 15 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 069, [12], [13]. 16 Transcript, page 1-6, line 22. 17 Transcript page 1-6, lines 22 to 30, 42 to 47; page 1-7, lines 1 to 41; page 1-9, lines 42 to 47; page 1- 10 lines 12 to 32, 36 to 42; page 1-11, lines 1 to 3. 18 Transcript page 1-6, lines 22 to 30, 42 to 47; page 1-7, lines 1 to 41; page 1-9, lines 42 to 47; page 1- 10 lines 12 to 32, 36 to 42; page 1-11, lines 1 to 3. -- 4 of 6 -- 5 this is inconsistent with the QCAT Act and would make the minor civil disputes jurisdiction cumbersome. [13] The appeal process is not an opportunity for a party to again present their case.19 It is the means to correct an error by the Tribunal that decided the proceeding.20 The Tribunal gave AFR procedural fairness within the context of the Tribunal’s minor civil disputes jurisdiction. [14] AFR also applied to adduce and rely upon fresh evidence.21 The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:22 Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible? [15] AFR submitted that it was not aware that the fresh evidence was required to be put on before the hearing because it was not aware of the Tribunal’s decision to amend the name of the applicant. However, the reason for its lack of awareness was due to its “misfiling” of the Tribunal’s decision. AFR cannot rely upon its own error for its failure to properly present its case. The onus is always upon AFR to present its case, comply with Tribunal directions and bring all relevant material to the hearing.23 AFR had an obligation to act in its own best interests, including providing all evidence to support its defence: The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. 24 [16] This alone is sufficient to not allow the fresh evidence. [17] Moreover, none of the evidence addresses the Tribunal’s key finding on mitigation. At most, the evidence allows the drawing of possible alternative inferences relating to causation and quantum. But it does not prove these. The photographs are not dated. 19 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. 20 Ibid. 21 Application for miscellaneous matters filed 12 September 2019. 22 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 23 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 12, [47]; Harris v Foxworth Pty Ltd [2013] QCATA 133, [18]; Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, [18]. 24 Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 (citations omitted). -- 5 of 6 -- 6 The work assessment / estimate, invoices and receipts are not attached to statements sworn by their authors. [18] Attempting to explain away the Tribunal’s findings with possible alternative inferences does not demonstrate error. A decision cannot properly be called erroneous, simply because the Tribunal preferred one conclusion to another possible conclusion.25 An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.26 The Appeal Tribunal is not satisfied that the fresh evidence would be sufficient to displace the Tribunal’s findings. [19] Leave to appeal will not be granted where a party simply desires to re-argue the case on existing or additional evidence.27 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.28 An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.29 [20] There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. [21] Leave to appeal is refused. [22] The application to adduce and rely upon fresh evidence is dismissed. 25 Slater v Wilkes [2012] QCATA 12, [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. 26 Chambers v Jobling (1986) 7 NSWLR 1, 10. 27 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 28 Ibid. 29 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. -- 6 of 6 --