Alexandria v Thiele [2018] QCATA 174

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Alexandria v Thiele [2018] QCATA 174 PARTIES: DIERDRE ALEXANDRIA (appellant) v SHAWN THIELE (respondent) APPLICATION NO: APL076-18 ORIGINATING APPLICATION NO/S: MCDO19 of 2017 (Beaudesert) MATTER TYPE: Appeals DELIVERED ON: 19 November 2018 HEARING DATE: 13 November 2018 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member ORDERS: The application for leave to appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL – GENERAL PRINCIPLES – minor civil dispute – new evidence on appeal – whether new evidence should be admitted – whether evidence fresh – where interlocutory order against new evidence – where new evidence would be contrary to interlocutory order – where new evidence contrary to the `one expert rule’ – nature and limitations of application for leave to appeal – whether appellable error shown – where appellable error not shown Queensland Civil and Administrative Appeals Tribunal Act 2009 (Qld), s 3, s 4, s 143 Queensland Civil and Administrative Tribunal Practice Direction No 4 of 2009 Queensland Civil and Administrative Tribunal Regulation 2009 (Qld), s 8, s 10 Uniform Civil Procedure Rules 1999 (Qld), r 423 Allianz Australia Insurance Limited v Mashagheti [2017] -- 1 of 6 -- QCA 127; [2018] 1 Qd R 429 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Cosgrove v Johns [2002] 1 Qd R 57; [2002] QCA 157. Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Lawless v The Queen (1979) 142 CLR 659 Pearce v Western Australia [2014] WASCA 156 R v Sharkey [2013] QCA 259 Snell v Morgan [2011] QCATA 316 Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION [1] This dispute concerns the supply and installation of rain water tanks at Pearson Court, Cedar Grove by the respondent (`Thiele’), a licensed plumber, on the property of the appellant (`Alexandria’) in January-February 2017. [2] In December 2016 or January 2017 two metal tanks on the property, and a related pump, were irretrievably damaged by hail. Thiele issued two quotations to Alexandria and her insurer on 23 January 2017. He offered to replace the tanks for $6.875 and the pump for $925 (including GST). [3] These quotations were accepted by the insurer, which credited the appropriate amounts to Alexandria’s account. [4] To this point there was no mention of the material – metal or PVC – of which the new tanks would be made. However, when Thiele presented his account for $7,231.001 on 22 February 2017 the new items were described as `Poly Rain water tank[s]’. [5] Some two weeks later Alexandria complained that the concrete slabs on which the old tanks had rested were not large enough to accommodate the new ones.2 Meanwhile she 1 With the addition of extra labour and small amounts for `materials’. 2 Letter Alexandria to Thiele 10 March 2017. -- 2 of 6 -- retained the insurance moneys in her account. On 21 March 2017 Thiele demanded payment within 7 days.3 Still unpaid, he initiated these proceedings on 29 May 2017.4 [6] Alexandria filed a Response on 14 Jul 2017 alleging: I am not the party who is liable to pay. The invoice is directed to [my] insurance company. I did not contract [the] plumber, [the] insurance company did. Tanks supplied were not in accordance with the quote ... The plumber installed them incorrectly ... [7] Alexandria consulted the Queensland Building and Construction (QBCC) which arranged for an inspection on 15 May 2017.5 [8] It was then that different versions of the contract emerged. Alexandria told the QBCC inspector that she was `expecting metal tanks’, while Thiele maintained that `tanks [were] installed as per agreement’.6 [9] The QBCC inspector noted that Thiele’s quotation of 22 February 2017 specified polyester tanks. That quotation was accepted by the insurer. [10] The inspector reported that `[t]he defects identified are considered to be minor and easily repairable’.7 Subsequently the QBCC advised Alexandria: The defects which exist at your property are ... non-structural defects. Non-structural defects do not adversely affect the structural integrity or performance of the building [sic], and do not constitute a health or safety issue.8 [11] On the other hand, there is a brief report of Parallel Plumbing and Gas, dated 29 August 2017 and tendered by Alexandria, which recommends complete replacement of the tanks at an estimated cost of $14.000. [12] Two other reports, more attuned to Alexandria’s case, were made by C & P Engineers Pty Ltd on 16 January 2018 (6 weeks after the hearing) and by structural engineer Gary Booth, on 20 March 2018 (more than 3 months after the hearing). The Application for leave refers to both reports9, without formally seeking leave to refer to them at this stage. The question of new evidence is considered below. [13] The trial was held at Beaudesert on 30 November 2017. In his judgement the adjudicator accepted the report of the QBCC, preferring it to the evidence of Parallel Plumbing: `I conclude that any defects associated are minor defects, and certainly the bulk of the work done and the supply of the goods must be paid for by Ms Alexandria.’10 As to Alexandria’s 3 Letter Theile to Alexandria 21 Marc 2017. 4 Application for Minor Civil Dispute filed 29 May 2018, Beaudesert registry. 5 Letter QBCC to Alexandria 12 April 2017. 6 QBCC Initial Inspection Report 16 May 2017 page 2. 7 Ibid. 8 Letter QBCC (Trohear) to Dierdre Alexandria, 19 May 2017. 9 Application for leave to appeal filed 29 March 2018, page 3, paragraphs 25 and 26. 10 Transcript of hearing 30 November 2017 (`T’) page 40 lines 36-38. -- 3 of 6 -- expert evidence, the adjudicator referred only to the Parallel Plumbing report, for the good and simple reason that it was the only such evidence before him. [14] However, by way of compensation for the `minor defects’ it was ordered that $500 be deducted from Thiele’s claim. [15] The tribunal ordered: 1 Application dismissed as against Commonwealth Insurance Limited. 2 The respondent Dierdre Alexandria must pay the applicant the sum of $7,656 for claim plus filing fee of $112.50 within 14 days of the date hereof. [16] Alexandria now seeks leave11 to appeal that decision. [17] While Alexandria still insists that she asked for metal tanks12, the application for leave accepts that the agreement was to `replace with Poly tanks of a similar size’,13 and the tribunal so found.14 However, it is now alleged that there was a major failure to fulfil the agreement, within the meaning of the Competition and Consumer Act 2011 (Cth),15 and that, in consequence, Alexandria is entitled to a replacement or refund.16 [18] In essence Alexandria’s case on appeal is that, in finding that there was no `major failure’ the adjudicator fell into appellable error. The implication is that he was erred in preferring the opinion of the QBCC inspector - `a very detailed investigation’17 - to the brief report by Parallel Plumbing. [19] A curious feature of this case that each of the two conflicting reports in evidence was obtained by the same party. With professional assistance, I suspect that a different course may have been taken. New Evidence Tendered [20] Alexandria now seeks to introduce new evidence, namely the C & P report of 16 January 2018 and the report of Gary Booth, dated 20 March 2018. [21] This material is `new’, in the sense that it was not in evidence before the primary tribunal. But generally, to be admissible at this stage evidence must not only be `new’ but also `fresh’. Evidence, to be `fresh’, must have been non-existent at the time of the trial, or not then discoverable by reasonable diligence.18 There is no attempt to show that the evidence 11 As required by QCAT Act s 142(3)(a)(i). 12 Submissions filed 16 July 2018. 13 Application for leave to appeal filed 4 April 2018 (extension of time granted). 14 T page 40 lines 14-15. 15 Schedule 2, s 260. 16 Grounds of application paragraphs 13, 15. 17 T page 41 lines 1-2. 18 Cosgrove v Johns [2002] 1 Qd R 57; [2002] QCA 157; R v Sharkey [2013] QCA 259 at [8]; Lawless v The Queen (1979) 142 CLR 659 at 674-676; Pearce v Western Australia [2014] WASCA 156 at [27]-[28]. -- 4 of 6 -- of C & P, or of Booth, satisfies those tests. Indeed, it is apparent that they deal with matters that were easily examinable before the trial, and were so examined by the QBCC and Parallel Plumbing. [22] When directions were given for the conduct of this appeal it was expressly ordered that `[n]either party will be allowed to rely on any evidence which was not before the original decision maker without leave of the appeal tribunal.’19 This is an implicit recognition of the general law on new evidence. [23] Furthermore, if the new evidence were admitted, it would contravene the `one expert per party’ rule20, which applies in this tribunal as in the courts.21 That rule is entirely consonant with the tribunal’s statutory duty to follow procedures that are `economical, informal and quick’.22 Besides, law suits are not to be won by a mere head count of witnesses. Applicant’s Submissions on Appeal [24] In oral argument on appeal, Alexandria made two main submissions, emphatically and repetitively: First, that her insurer treated her unfairly. That is an issue between her and the insurer, not between her and Thiele. If she wishes to pursue this issue without legal expenses, she might resort to the insurance industry’s complaints bureaux.23 [25] Second, that the adjudicator should not have accepted the QBCC report, because `to the best of [Alexandria’s] knowledge and belief, the author of the QBCC report was neither a licensed plumber or plumbing inspector’24. This point was not raised, let alone pressed at the trial. No credible source for this assertion is given, and no suitably qualified expert was called to support it. Nor was any attempt made to bring the inspector before the adjudicator to comment on this aspersion. This belated submission, based on nothing but hearsay, is rejected. Nature and Limits of Applications for Leave [26] It is pertinent to consider the nature and limitations of an application for leave to appeal. [27] An application for leave to appeal is not a retrial de novo. It is not an occasion to repeat or reargue evidence rejected by the trial judge, or to present material that could have been led at first instance, but was not.25 This is an understandable and common error of unrepresented parties, but it is misconceived. A complaint that the adjudicator erred in law 19 Appeal Tribunal Directions 14 June 2018 paragraph 4. 20 Uniform Civil Procedure Rules 1999 (Qld) r 423(d); Allianz Australia Insurance Limited v Mashagheti [2018] 1 Qd R 429; [2017] QCA 127 at [50]. 21 QCAT Practice Direction 4 of 2009. 22 QCAT Act s 3(b), s 4(c). 23 Namely her insurer’s Internal Dispute Resolution Process or, on appeal, the Australian Financial Complaints Authority. 24 Application for leave annexure page 3 paragraph 22. 25 Snell v Morgan [2011] QCATA 316 at [10]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28]. -- 5 of 6 -- when he accepted the opinion of the QBCC in preference to the Parallel Plumbing is a classic example. [28] The legislative policy of the QCAT Act is that primary decisions, particularly in minor civil disputes, should usually be final. That is why leave to appeal in a minor dispute is necessary. An applicant for leave must show that it is reasonably arguable that the decision in question is affected by legal error, or exhibits a finding of fact or credit unsupported by any evidence, or is `glaringly improbable’.26 Findings on credit – that is, judicial assessments of the relative weight of competing evidence - are seldom disturbed.27 Fact- finding is the prerogative of the primary judge; that is his task. [29] It is not legal error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. That is a trial court’s prerogative. There is no legal error in merely making a decision with which other reasonable minds may differ.28 Findings will not be disturbed where, as here, they have rational support in the evidence, even if another reasonable view is available.29 It cannot be said that the present finding is unreasonable, or unsupported by evidence, or is `glaringly improbable’. Resolution [30] The appellant has not demonstrated any appellable error in the primary decision, nor do I discern any. There was evidence upon which the adjudicator was entitled to act as he did, and it is not for the appeal tribunal to interfere by effectively re-trying the case. The application for leave to appeal must be dismissed. ORDER [31] The application for leave to appeal is dismissed. 26 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844. 27 Fox v Percy (2003) 214 CLR 118 at 127. 28 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. 29 Fox v Percy, above, at 125-126. -- 6 of 6 --