Brownie & Anor v Penfold [2013] QCATA 182

CITATION: Brownie & Anor v Penfold [2013] QCATA 182 PARTIES: Dr Sharon Brownie Mr Sam Kurne (Applicants/Appellants) v Mr Mark Penfold (Respondent) APPLICATION NUMBER: APL373-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 17 June 2013 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – where applicants engaged respondent to renovate house – where applicants brought proceedings in the Tribunal – where applicants sought compensation for defective work and incomplete work, loss of rent and personal expenses – where Tribunal ordered the respondent to pay the applicants a fixed sum – where the fixed sum was less than the claim sought – where applicants seek to appeal that decision – where appeal based on questions of mixed law and fact – whether Tribunal erred in the way in which it assessed the applicants’ claim – whether Tribunal erred in making its findings of fact – whether leave to appeal should be granted PRACTICE AND PROCEDURE – ADDITIONAL EVIDENCE – where applicant seeks to rely on additional evidence – whether new evidence reasonably available at original hearing – whether unrepresented parties must exercise the same diligence in preparing case as -- 1 of 6 -- 2 represented parties – whether additional evidence should be accepted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c), s 29, s 43, s 142, s 147 Clarke v Japan Machines (Australia) Pty Ltd [1994] 1 Qd R 404, applied Cachia v Grech [2009] NSWCA 232, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’). REASONS FOR DECISION [1] Dr Brownie and Mr Kurne engaged Mr Penfold to undertake renovation work at a house they owned in Brisbane. The work was largely performed in 2009, with some rectification work in 2010. [2] Dr Brownie and Mr Kurne were not happy with the work, and the QBSA became involved. Eventually they began proceedings in QCAT in 2012 seeking compensation for defective and incomplete work, loss of rent and personal expenses they alleged they had incurred, in the total sum of $16,816.00. [3] The matter was heard and determined by a QCAT Senior Member on 6 September 2012. She ordered that Mr Penfold pay Dr Brownie and Mr Kurne the sum of $4,035.00. They are dissatisfied with that decision and wish to appeal. [4] They may appeal as of right on a question of law1 but need the leave of the Appeal Tribunal if they wish to appeal on questions of fact or mixed law and fact.2 As will be seen, their grounds of appeal involve mixed questions of law, and fact: whether the learned Senior Member was right or wrong in the way in which she chose to assess their claims for loss and damage (law) and whether the findings she made about their evidence in respect of their losses were correct, or incorrect (fact). Hence, although 1 QCAT Act s 142. 2 Ibid s 142(3)(b). -- 2 of 6 -- 3 their application signifies that they do not require leave, the correct position is that they do. [5] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?3 Is there a reasonable prospect that the applicant will obtain substantive relief?4 Is leave necessary to correct a substantial injustice to the applicant caused by some error?5 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?6 [6] Dr Brownie and Mr Kurne are not represented and, unsurprisingly, their application and subsequent written submissions do not address these niceties. By direction of the Appeal Tribunal the parties were ordered to exchange written submissions, and have done so. QCAT is required to conduct proceedings in an informal way7 and it is appropriate to consider the applicants’ submissions to discover if they have a point warranting a grant of leave (and, if so, to proceed and consider their appeal). [7] Their first complaint involves an allegation that they were, in effect, denied procedural fairness because Mr Penfold failed to comply with an earlier directions order, denying them sufficient time to collect information for their case. In context, I understand ‘information’ to mean, in effect, evidence. [8] The transcript of the proceedings shows that the hearing involved the consideration of several discrete issues making up their claim. They claimed a loss of rent of $5,236.00; $2,000.00 for the rectification of mismatching kitchen bench tops; $1,000.00 for a missing laundry tub; $1,500.00 for a missing window; $1,500.00 for travel costs; $3,300.00 for time off work (22 days at $150.00); $1,250.00 for the costs of obtaining an ‘alternative solution’; $330.00 for a building report; and, $500.00 for ‘postages, petty’s and incidentals’. [9] The learned Senior Member’s reasons (delivered orally) show that she dealt with each of these claims in turn, and in some detail. She reduced the claim for loss rent to $2,340.00 because, by her calculations, that was the proper measure of the period when problems caused by any defective workmanship of Mr Penfold prevented them from renting out the house. [10] The claim for repairs to the bench top was reduced to only $100.00, in the absence of a quotation for the actual replacement cost. The claim for the laundry tub was the subject of conflicting evidence and, for reasons she explained, the learned Senior Member allowed a figure of $500.00. She 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Cachia v Grech [2009] NSWCA 232 at 2. 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 6 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 7 QCAT Act s 4(c). -- 3 of 6 -- 4 made a similar finding in respect of the window for which, again, no quotations had been provided. [11] She was not persuaded that the applicants had made out the case for lost wages, or expenses. The learned Senior Member was not, she said, provided with any invoices, supporting documentation, or particulars of the actual travel costs and other expenses. This claim was also the subject of disputed evidence between the applicants, and Mr Penfold. [12] The claim for the ‘alternative building solution’ apparently arose from the fact that the work was performed without approval from the local authority, which was necessary. As the learned Senior Member observed, this was the responsibility of the owners. It is true, she went on to say, that Mr Penfold should not have undertaken the work without approved plans but found that ‘… the alternative solution would have been required in any event because there was not enough room between the floor and the ceiling unless some other and more expensive solution had been employed’. For that reason she disallowed the claim. She did allow the cost of the building inspection report. [13] Mr Penfold brought a counter-claim, which the learned Senior Member dismissed. [14] The applicants’ complaint about procedural fairness focuses upon Mr Penfold’s late compliance with an earlier directions order about an exchange of material. In the result, the applicants say, they were left with only one week to collate ‘further information and prepare our response’. [15] The difficulty with this submission is that, as the learned Senior Member’s reasons reveal, the applicants’ failure to achieve awards in the sums they sought for their various claims arose from their own failure to produce satisfactory evidence in the form of quotations, invoices for travel expenses, and the like. Their obligation to have that evidence ready for, and available at, the hearing was always present; it did not rest upon anything Mr Penfold might say or do. [16] The applicants now seek to produce that information to the Appeal Tribunal. The question is whether this Tribunal should allow them to do so. Under s 147 of the QCAT Act an appeal on the question of fact or mixed law and fact is to be decided by way of rehearing, ‘with or without the hearing of additional evidence as decided by the Appeal Tribunal’. [17] Ordinarily, special grounds are needed before additional evidence is received in an appeal. As Thomas J (as his Honour then was) observed in Clarke v Japan Machines (Australia) Pty Ltd8 it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; and that the evidence must be such that it would probably have an important influence on the result, although it need not be decisive; and, it must be apparently credible. 8 [1994] 1 Qd R 404 at 408. -- 4 of 6 -- 5 [18] It is the first of these tests which is relevant here. Dr Brownie and Mr Kurne have obtained new quotations in respect of the bench top; presented a large number of photographs in respect of the laundry tub and produced detailed evidence about their travel and other expenses including particulars of the number of trips, mileage claims, airfare and rental car costs and the like. [19] In respect of the latter they criticise the learned Senior Member for requiring proof of these matters but in a way which shows a lack of understanding of the nature of the proceedings, or the role of the Tribunal. They say ‘we are astounded that [the Senior Member] required more proof of these well known distances and public servants rates (she is a public servant herself) and wanted more evidence about this’. [20] It is not the task of the determining tribunal or court to seek out this evidence itself. Nothing in the applicants’ submissions is persuasive that the evidence which, in the view of the presiding Senior Member at the original hearing, was lacking in their case was not reasonably obtainable by them before the hearing took place. [21] QCAT has a statutory obligation to take all reasonable steps to ensure that each party to a proceeding understands its practices and procedures, and the nature of assertions made in the proceeding and its legal obligations.9 That statutory duty does not, on its face, extend to providing legal assistance to parties in the preparation of their cases. [22] Reduced to its essence, the applicants’ complaint arises from the fact that they did not have sufficient or adequate evidence to support their claims. In particular they did not have quotations, where the claim involved allegations of defective or incorrect building work. [23] They are not lawyers. The question, then, is whether or not lay persons are subject to the same test in terms of preparation for a hearing – i.e., are they under the same obligation to exercise reasonable diligence to consider, and prepare their cases in terms of obtaining appropriate evidence? [24] Nothing in Clarke suggests that the test only applies to parties who are legally represented. The QCAT Act turns its face against legal representation in the Tribunal10 but, also, requires it to provide some measure of assistance to parties.11 In that context, the question devolves to this: can the Tribunal reasonably expect that lay persons will understand and appreciate that, to prove their cases in actions of this kind, they should do things like obtain quotations, evidence to support claims for travel costs, and the like? 9 QCAT Act s 29. 10 Ibid s 43. 11 Ibid s 29. -- 5 of 6 -- 6 [25] An affirmative answer is compelling: the notion that a party in a building case might need supporting evidence for things like repair costs is hardly, to use a common phrase, rocket science. Nor is it unfair to suggest that parties, taking only a moment to reflect, would realise – as a matter of logic, and commonsense – that a claim for things like rectification costs is unlikely to attract a favourable award unless the Court or Tribunal is provided with a reliable, independent measure of that cost. [26] For these reasons, the additional evidence advanced by Dr Brownie and Mr Kurne should not be accepted. [27] Once these things are appreciated, there is no reasonably arguable case of error in the decision of the learned Senior Member and a grant of leave is not necessary to correct a substantial injustice to the applicants. No question of general importance arises. Finally, there is no reasonable prospect that the applicants, if granted leave, would then obtain substantive relief in an appeal. [28] For these reasons, application for leave to appeal must be refused. -- 6 of 6 --