Alderton v Wide Bay Constructions Pty Ltd [2017] QCATA 147

CITATION: Alderton & Anor v Wide Bay Constructions Pty Ltd [2017] QCATA 147 PARTIES: Sally Alderton Simon Alderton (Applicants/Appellants) v Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay (Respondent) APPLICATION NUMBER: APL131-17 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Howard DELIVERED ON: 24 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave is granted for both parties to be legally represented in the proceeding. 2. The application of Sally Alderton and Simon Alderton for leave to file fresh evidence is refused. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought – where leave for legal representation was granted in the original proceeding – where there is some complexity in the grounds of appeal – where the applicants submit that they will be disadvantaged – whether leave should be given for parties to have legal representation APPEAL AND NEW TRIAL –– APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – where applicants seek leave to adduce new evidence on appeal – whether the evidence could have been available -- 1 of 10 -- 2 with reasonable diligence in the original proceeding – whether the fresh evidence is credible Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 29, s 43, s 146, s 147 Albrecht v Ainsworth & Ors [2015] QCA 220 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Ericson v Queensland Building and Construction Commission [2014] QCA 297 John Urquhart t/as Hart Renovations v Partington [2016] QCA 87 Lida Build Pty Ltd v Miller [2010] QCATA 17 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION Sally Raub (now known as Sally Alderton) and Simon Alderton filed an application for a domestic building dispute against Widebay Constructions Pty Ltd t/as Dixon Homes Hervey Bay (Widebay Constructions). The Tribunal determined that application and final orders were made by the Tribunal on 28 March 2017. Subsequently, Mr and Ms Alderton filed an application for leave to appeal or appeal the Tribunal’s decision. That application has not yet been determined. In the course of the appeal proceedings, Widebay Constructions filed an application seeking leave for legal representation. I made orders granting leave for both parties to be legally represented in the proceeding.1 Mr and Ms Alderton also filed a miscellaneous application seeking leave to rely upon fresh evidence. I made orders refusing that application.2 1 Appeal Tribunal Directions dated 18 October 2017. 2 Appeal Tribunal Directions dated 24 November 2017. -- 2 of 10 -- 3 Both determinations were made on the basis of the evidence and submissions filed by the parties and without an oral hearing. Mr and Mrs Alderton have now sought reasons for my decision in respect of those matters. The application for leave for legal representation Leave for legal representation is sought by Widebay Constructions on the basis that the matter involves complex issues of law. The parties’ submissions Widebay Constructions makes a number of submissions in support of its application. It contends that the question of whether the applicants’ appeal raises issues of law, fact or mixed law and fact must be determined. Further, it submits that in part the application for leave to appeal or appeal raises decision/s that would otherwise be out of time. Widebay Constructions also says that whether or not the Tribunal has, or had at the relevant time, jurisdiction to hear and determine an application for relief under the Competition and Consumer Act 2010 (Cth) and whether or not that issue was dealt with by the Member appropriately in the course of the proceedings is in issue. Finally, Widebay Constructions says that the applicants have filed a large volume of material and made submissions which it submits are unsupported by the evidence. It argues that legal representation will narrow the issues and assist with the efficient conduct of the matter.3 Mr and Ms Alderton filed submissions objecting to the granting of leave for legal representation. They did so on the basis that they contend the matter does not involve complex issues of law outside of Widebay Constructions’ expertise in the building industry. Further, they argue that the facts of the matter are outlined in the expert evidence and joint expert’s report, and that law behind the matter had been outlined in their submissions.4 Mr and Ms Alderton also submit that they have raised mixed questions of law and fact, but that characterisation of the grounds of appeal does not raise complex issues of law. Further, they argue that the matter raised by Widebay Constructions is not out of time. It seems that this was a live argument between the parties in the original proceeding as the appeal itself was filed within time. They suggest that, what they refer to as trade practices related issues, were not decided by the Tribunal in the original proceeding and that that application remains unresolved before the Appeal 3 Respondent’s application for leave to be represented filed on 23 October 2017, Annexure A, 5. 4 Applicants’ submissions in reply filed on 9 November 2017, 1. -- 3 of 10 -- 4 Tribunal. They contend that legal representation would not assist the Appeal Tribunal.5 They further say that the preparation of the appeal book has substantially reduced the volume of material to be considered and that their various submissions are supported by the evidence.6 Mr and Ms Alderton submit that they will be disadvantaged if there is a complex issue of fact to be determined in the event that Widebay Constructions is allowed to be legally represented, because they will not be legally represented as the associated costs are beyond their means. They express concern about being overwhelmed at the hearing if a legal representative presents arguments for Widebay Constructions. Further, they contend that legal representation will allow Widebay Constructions to ignore the matter at hand and that a representative will undermine the matters which need to be raised at a hearing.7 The Aldertons express some concern that Widebay Constructions has engaged legal representation without permission of the Appeal Tribunal, which they consider does not comply with the Tribunal’s rules and which they suggest in some way prejudices them. Finally, they contend that if Widebay Constructions is granted leave for legal representation it must be in the interests of justice for the respondent to bear their own costs. They consider that they have been unnecessarily disadvantaged by the respondent’s legal representation.8 My decision I make the observation that leave for legal representation was granted to Widebay Constructions and the Aldertons in July 2016 in the original proceeding. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that generally parties must represent themselves in the tribunal, unless the interests of justice require otherwise.9 The Tribunal may, in its discretion,10 grant leave to a party to be represented by a legal representative or another appropriate person. In deciding whether to grant a party leave to be represented the Tribunal may consider some circumstances as supporting the giving of leave. These 5 Ibid. 6 Ibid. 7 Ibid. 8 Ibid. 9 QCAT Act, s 43(1) and (2). 10 Lida Build Pty Ltd v Miller [2010] QCATA 17. -- 4 of 10 -- 5 circumstances include that the proceeding is likely to involve complex questions of fact or law.11 Since its inception, QCAT has considered whether legal representation should be allowed in the particular circumstances of many cases. Section 43 is appropriately considered in the context of the QCAT Act as a whole. In particular, the Tribunal has often referred to the objects of the QCAT Act set out in s 3, and the requirements of s 28 and s 29 in considering the construction of s 43. However, the interests of justice in the particular case will ultimately determine whether leave is granted in the particular case. Widebay Constructions is a company which cannot represent itself. It must be represented by a person. An officer of the corporation could represent it under the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules).12 In relation to complexity, I observe that the grounds of appeal, as framed by the Aldertons, include an issue of lawfulness, which (although not entirely clear) relates to the Queensland Building and Construction Commission (QBCC) complaint process. The grounds of appeal otherwise appear to raise various issues of law and fact including: a) The alleged incorrect application of silicon glue resulting in water leaks through the roof; b) The nature of the rectification works undertaken; c) Maintenance obligations of owners of premises; d) The conduct of the respondent’s expert in the original proceeding when inspecting the roof; e) Statutory warranty time limits; and f) Issues relating to the Experts’ Conclave and the manner in which it was undertaken. There were in the original proceeding and hearing a variety of issues of some complexity raised. In determining the current application, I do not need to seek clarity about the grounds of appeal or satisfy myself that all of them arise from the decision appealed. Suffice it to say that there is some lack of clarity occasioned by the manner in which they are currently framed and that clarification will be necessary at the hearing. This might be expected to result in a degree of complexity in the appeal proceeding, in circumstances when issues raised and dealt with in the original proceeding 11 QCAT Act, s 43(3)(c). 12 QCAT Rules, r 54. -- 5 of 10 -- 6 remain contentious. Further, characterisation of the grounds of appeal affects the manner in which the appeal tribunal must proceed.13 I do not accept, as submitted by the Aldertons, that Widebay’s building industry expertise or experience ensures Widebay can adequately deal with all of the issues raised in the appeal proceeding. I observe that hearing arguments presented by legal representatives for Widebay Constructions may assist the Aldertons in focussing their own submissions and enabling them to provide more comprehensive submissions in support of their application. In that manner, the involvement of legal representatives for one or more of the parties may in this case ensure that both parties ultimately provide more helpful submissions addressing all of the relevant issues. In this regard, although the Tribunal has obligations to provide procedural fairness under s 28 and steps to facilitate parties understanding under s 29 of the QCAT Act, it is not able to assist a party to make its case. In relation to the Aldertons’ submission that they will be disadvantaged because they cannot afford representation, I am not satisfied that the Aldertons’ stated inability to obtain or afford legal representation can weigh heavily in favour of denying Widebay leave for legal representation if it is otherwise in the interests of justice to grant leave. In all of the circumstances, I am satisfied in the exercise of my discretion that it is in the interests of justice for Widebay Constructions to be granted leave for legal representation. That being so, the Aldertons are not required to obtain legal representation if they do not wish to or are unable to do so. However, I consider it is in the interests of justice to also grant leave for them to obtain legal representation so that they can, should they decide to do so, at a later stage in the appeal proceeding. The Aldertons make submissions to suggest that Widebay has acted inappropriately in obtaining legal advice in the absence of leave for legal representation to date. A party is entitled to take legal advice at any stage. The Aldertons also appear to submit that an order should be made that Widebay must bear its own costs if granted leave for representation. The question of costs will be a question for the appeal tribunal at the hearing of the substantive appeal proceeding, if any application for costs is made. The application for leave to adduce fresh evidence The Aldertons seek the Appeal Tribunal’s leave to rely upon a report said to be from a Mr Tony Rourke of Roof Pride Professional Roof Restoration.14 He has had no previous involvement in the proceeding. If leave is granted, 13 QCAT Act, s 146, s 147; See also Ericson v Queensland Building Services Authority [2014] QCA 297; Albrecht v Ainsworth & Ors [2015] QCA 220; John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 87. 14 Applicants’ application for miscellaneous matters filed 3 October 2017. -- 6 of 10 -- 7 his report is said to provide new expert evidence. It came into existence after the original hearing in the tribunal. Whether he is appropriately qualified to provide such an expert report is not apparent. A copy of a document said to be his report is attached to the application. It is an undated, unsigned one page pro forma document on letterhead of Roof Pride. Handwritten comments have been endorsed on the pro forma. On its face, it purports to be about roof condition and states that the condition of tiles is average; that spaces between tiles are too wide in places and filled with leaves; and that pointing ridges are ‘bad’. Other than that, it contains handwritten comments to the effect that watercourses are blocked with silicon from leaf guard installation, and that the gutter profile is too small, slots in the gutter are too small, spaces between the tiles are too wide in places, the ridge caps are moving and the pointing is cracked due to movement. It also states that battens are rotten or collapsed in places. Full restoration is recommended.15 The Aldertons’ submissions The Aldertons submit that the fresh expert evidence was not available to the original Tribunal because it was difficult for them to obtain an expert to provide a report about the adequacy of the guttering, as most of the experts they had approached had been unaware of guttering system requirements at the time the dwelling was constructed. The Aldertons were satisfied in presenting their case that the inadequate guttering system outlined in the expert report of Laurence Eves relied upon by them was sufficient. However, they have now concluded that even though they were aware of all of the defects outlined in the new expert evidence, after perusing the documentation before the Tribunal, they realise there was no document before the Tribunal which outlined how the guttering system was inadequate or that referred to the presence of silicon glue from the leaf guard installation.16 The Aldertons say the fresh evidence is important because it confirms there was a defect dating back to completion in November 2008 and identifies water courses blocked with silicon from the leaf guard installation, as well as identifying that the gutter profile is too small and the slots in the gutter are too small. They say the silicon from the leaf guard installation has been in place since 2008. They submit that as a result it is apparent that the leaf guard installation was not carried out in an appropriate and skilful manner or with reasonable care and was not suitable for the purpose.17 They also say that the new evidence should be accepted because it supports item 19 of the joint experts’ report and, they say, determines the question raised at item 20 in the joint report, wherein the experts noted that 15 Ibid, 8. 16 Ibid, Attachment A, 9. 17 Ibid, 9-10. -- 7 of 10 -- 8 they could not determine whether the leaks affecting the soffit resulted from water entering via the tiles or via the guttering. Further, they say it is the only expert evidence made available since the completion of the respondent’s rectification works in December 2015 following the QBCC’s rectification order that Widebay Constructions rectify the silicon glue adhering the gutter guard. They argue that Mr Rourke’s report indicates that rectification was never fully completed.18 The miscellaneous application seeking leave to rely upon fresh evidence further seeks directions requiring that Widebay Constructions produce documents and information about the gutter specifications for the subject dwelling, consequent upon the matters outline in the reports of Mr Eves and Mr Rourke.19 They further state that they requested that information during the QBCC complaint process in 2015 but it was not made available.20 Widebay Constructions’ submissions Widebay Constructions opposes the application to rely on fresh evidence on the basis that the report is ‘not ….. an expert report’ and does not otherwise deal with the issues canvassed in the Experts’ Conclave. Additionally, they submit that the report does not indicate that the writer was briefed with the expert’s reports from the Tribunal proceedings or the joint report that resulted from the Conclave.21 Additionally, Widebay Constructions contend that the comments contained at the conclusion of the report do not express the opinions referred to in the Aldertons’ submissions about why leave should be granted for fresh evidence, but rather reflect the Alderton’s assessment of the expert material even though that is contradicted by findings of the Experts’ Conclave. They say the application should be dismissed.22 The Aldertons in reply submit that Mr Rourke does not contradict, depart from or qualify the an opinion about an issue the subject of agreement in the joint expert report, but rather supports items 19 and 20 of that report. They consider Widebay Constructions’ submission vexatious for suggesting that that their expert evidence has been acquired unjustly.23 In relation to the requested direction for production of the requested documents about the guttering, they submit that if that is unavailable, the secondary evidence by Mr Rourke will be the only document that refers 18 Ibid. 19 Ibid, Attachment B, 11, 20 Referring to pages 320 and 321 of their statement of evidence. 21 Respondent’s submissions in response filed 18 October 2017, 1. 22 Ibid. 23 Applicants’ submissions in reply filed on 9 November 2017, 1. -- 8 of 10 -- 9 specifically to the dwellings’ guttering system and the only document about the condition of the roof after the rectification works.24 My decision In QCAT, if an appeal is allowed on a question of law only, the appeal tribunal may not rehear the proceeding.25 An appeal allowed on a question of fact or mixed law and fact, proceeds by way of rehearing before the appeal tribunal.26 Fresh evidence may be allowed in appeal proceedings that proceed by way of rehearing, but only in limited circumstances. Although I am not determining the application for leave to appeal or the appeal, I observe some relevant underlying principles. The appeal process is for correcting error made by the original decision-maker. It is not an opportunity for a party to present their case again in order to achieve a different outcome, or reargue it, merely because the party does not like or agree with the outcome/decision of the original tribunal.27 Where required, leave to appeal will generally only be granted when there is a reasonably arguable case of error in the primary decision; reasonable prospects of substantive relief and there is a necessity to grant leave to correct a substantial injustice. 28 The principle of finality in litigation counts against admitting fresh evidence on appeal. Parties are expected to act in their own interests and make their own case fully in the first hearing. In an application for leave to rely upon fresh evidence concerning evidence that did not exist at the time of the original hearing, to succeed, an applicant must generally show as follows:29 a) That the evidence could not have been available with reasonable diligence for the original hearing; b) That if it was allowed to be relied upon it probably would have had an important impact on the result of the case; and c) That the evidence is credible. The Tribunal’s final hearing in this matter was conducted on 28 March 2017. Therefore, it is apparent that there was ample time for the Aldertons to seek to obtain the documents now sought to be produced and introduced in 24 Ibid. 25 QCAT Act s 146; Albrecht v Ainsworth [2015] QCA 220 and Ericson v Queensland Building and Construction Commission [2014] QCA 297. 26 QCAT Act s 147; John Urquhart t/as Hart Renovations v Partington [2016] QCA 087. 27 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. 28 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Cachia v Grech [2009] NSWCA 232. 29 Clarke v Japan Machines (Australia) [1984] 1 Qd R 404 at 408. -- 9 of 10 -- 10 evidence regarding the gutter specifications following the completion of the rectification works at the end of 2015. Further, it was open to the Aldertons to obtain expert opinion about the issues purportedly addressed in Mr Rourke’s report. The original file, BDL100-15, reveals that on 4 November 2015 at a Directions Hearing, directions were made for the Aldertons to file their statements of evidence, including expert evidence by late 2015. Directions at that stage were also made for the listing of the matter for an Experts’ Conclave in February 2016. However, that date was later vacated and ultimately the Experts’ Conclave did not occur until late 2016. That is, there was more than adequate time for steps to be taken to obtain the report which the Aldertons only now seek leave to introduce. Although they do make vague assertions about difficulty obtaining an expert report, the Aldertons’ submissions confirm that they did not earlier obtain the report (or other evidence going to the issue) because they were satisfied with the evidence as it stood. However, since the decision of the tribunal they have reached the view that they should have filed further material in support of their claim. I am satisfied that evidence sought to be introduced by way of produced documents and by way of Mr Rourke’s report could have been obtained with reasonable diligence for the original hearing. In any event, it is not apparent that the report is could be given any significant weight. It is unsigned, undated and prepared by a person who may or may not be an expert, who may or may not have been on notice of all relevant issues and evidence when he prepared the report. Assuming that the appeal is an appeal in which a rehearing may proceed if leave to appeal is granted, I am not satisfied in my discretion that leave to rely upon and adduce the fresh evidence of the Aldertons should be granted. The application is refused. Orders I make orders accordingly. -- 10 of 10 --