Bakker & Kramer v Haylock [2013] QCATA 257

CITATION: Bakker & Kramer v Haylock [2013] QCATA 257 PARTIES: Mr Jan Bakker Ms Anna Kramer (Applicants/Appellants) V JW & MM Haylock (Respondent) APPLICATION NUMBER: APL322-12 MATTER TYPE: Appeals HEARING DATE: 6 May 2013 HEARD AT: Brisbane DECISION OF: R Oliver, Senior Member B Cullen, Member DELIVERED ON: 24 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The Applications in BDL266-11 is listed for a directions hearing on 2 October 2013, the purpose of which is to make directions for a fresh hearing in the matter. CATCHWORDS: Domestic Building Dispute – termination of swimming pool contract, home-owners found to have wrongfully terminated – appeal allowed, new hearing on the merits ordered. APPEARANCES and REPRESENTATION (if any): The parties were self-represented. -- 1 of 4 -- 2 REASONS FOR DECISION Mr Oliver, Senior Member [1] In this matter the Appeal Tribunal consisted of Dr Cullen, QCAT Member, and me. I have had the benefit of reading her reasons in draft. I agree with her reasons and conclusions, and the order she proposes. Dr Cullen, Member [1] Jan Bakker and Anna Kramer are from a non-English speaking background and have filed an appeal in this Tribunal. The appeal relates to a contract they entered into with Haylock Pty Ltd for the construction of a lap pool, which they were found to have wrongfully terminated. [2] In application BDL236-10, Mr Bakker and Ms Kramer contended that they were entitled to terminate the contract with Haylock, as they said that the pool was built to an incorrect level. In that application, Mr Bakker and Ms Kramer sought the costs of the defective work, and the removal of the pool, in the amount of $21,400.05. In that application, the learned Member found that they were not entitled to terminate the contract with Haylock, as the finished pool level could have been made level with the patio as requested, and dismissed their application. [3] In a separate and subsequent proceeding, application BDL266-11, the pool builder, Haylock Pty Ltd, sought payment for the balance owing on the contract of $15,613.00, claiming that Mr Bakker and Ms Kramer wrongfully terminated the contract between them. Haylock relied, in part, upon the decision made in BDL236-10 that Mr Bakker and Ms Kramer were not entitled to terminate. [4] Ultimately, the learned Member hearing BDL266-11 ordered that Mr Bakker and Ms Kramer pay Haylock the amount claimed of $15,513.00, taking into account a minor discrepancy between the filing costs claimed by Haylock, and the actual filing costs in the Tribunal. Unfortunately, Mr Bakker and Ms Haylock were not able to attend the hearing in BDL266-11 due to a medical emergency. [5] Now, before this Appeal Tribunal, Mr Bakker and Ms Kramer seek to appeal from the decision made by the Tribunal in BDL266-11. Mr Bakker and Ms Haylock say that they have lodged the appeal “for the chance to defend (their) case” on the basis that they were not able to do so, in the face of allegedly false evidence given to the Tribunal below by Haylock. The earlier termination decision made in BDL236-10 is not under appeal. [6] On the Tribunal form, it is apparent that Mr Bakker and Ms Kramer struggled to understand the information being sought from them. This is not a criticism, but rather is reflective of the difficulties that self- represented litigants, particularly persons from a non-English speaking -- 2 of 4 -- 3 background, face in acting for themselves even before a Tribunal that endeavours to simplify the nature of the proceedings before it. By way of example, underneath the form boxes asking whether Mr Bakker and Ms Kramer are seeking leave to appeal, they have ticked next to it and written “this one may be ?”. Then, the form asks whether leave to appeal has already been granted by the Tribunal, and if so, requests that the appellant insert the date. Mr Bakker and Ms Kramer have written “again no idee!! We are not lawyers”. This matter should be reheard by way of a fresh hearing [7] The need to grant leave to appeal, and allow the appeal arises out of the directions that were given by the Tribunal to the parties following a compulsory conference that took place on 25 January 2012. [8] Those directions required that the parties simultaneously file and serve all of the evidence they intended to rely upon vis-à-vis their cross- applications within 28 days of the scheduled hearing date. Whilst this is a practical step, it unintentionally did not afford procedural fairness to the parties, in that it did not provide Mr Bakker and Ms Kramer the ability to understand and respond to the case Haylock brought against them before filing their response. [9] Mr Bakker and Ms Kramer should have been put in a position where they understood the basis upon which Haylock sought to recover from them, particularly given the challenge for them of being non-native English speakers. As they also were unable to attend the hearing, the magnitude of the error in affording them procedural fairness was compounded. They may have been able to respond further to Haylock’s arguments at a hearing, but they were unable to do this. The fact that the submissions were simultaneous meant that there was effectively no information on the Tribunal file that was filed by Mr Bakker and Ms Kramer after they were fully apprised of the case they had to meet. This is not acceptable, particularly where the Tribunal ultimately made its decision in their absence. [10] Overall, the miscarriage of justice in this matter is, for Mr Bakker and Ms Kramer, substantial. They must be afforded the opportunity to have a fresh hearing on the merits, where they can put forward their arguments in relation to the relief sought by Haylock. There is, of course, no guarantee that those arguments will be successful. However, in circumstances where a party has not been afforded procedural fairness, and in part due to the directions made by the Tribunal, this must lead to a new hearing. The rehearing should be by way of a fresh hearing on the merits before a new Tribunal Member. Conclusion [11] Leave to be appeal should be granted in view of the denial of procedural fairness to Mr Bakker and Ms Haylock, and the appeal allowed such that a new hearing is ordered. In these particular circumstances, the -- 3 of 4 -- 4 simultaneous exchange of evidence and submissions did not place them in a position where they could have fairly been apprised of the arguments surrounding the quantum of the relief sought from them, in particular. Orders [12] Leave to appeal is granted, and the Application and Counter-Application in BDL266-11 is listed for a directions hearing on 2 October 2013, the purpose of which is to make directions for a fresh hearing in the matter. -- 4 of 4 --