Alexandria v Conohan [2011] QCATA 354

CITATION: Alexandria v Conohan [2011] QCATA 354 PARTIES: Deirdre Alexandria (Applicant) v Owen Conohan (Respondent) APPLICATION NUMBER: APL118-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, A/Senior Member Michelle Howard, Member DELIVERED ON: 6 October 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. That the application of Ms Alexandria for leave to appeal is granted; 2. That the decision of 14 February 2011 is confirmed. CATCHWORDS: APPLICATION FOR LEAVE TO APPEAL – minor civil dispute – where tribunal did not consider certain evidence filed by applicant APPEAL – where application for new evidence – where evidence reasonably available at date of hearing Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4,28, 142, 147 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Cachia v Grech [2009] NSWCA 232 -- 1 of 6 -- 2 Georgalis v Andonaras (1993) 113 FLR 196 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Cicic v Snowy Mountains Hydro-Electric Authority [1964-65] NSWR 178 APPEARANCES and REPRESENTATION (if any): This proceeding was heard on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Peta Stilgoe, A/Senior Member: [1] I have read the draft reasons for decision of Ms Howard, and I agree with her reasons and the orders she proposes. Michelle Howard, Member: [2] On 14 February, 2011, the tribunal made orders dismissing an application by Ms Alexandria seeking orders that Mr Conohan refund some $6,424.38 to her in respect of plumbing work undertaken by him at her home in early 2006. [3] Essentially, Ms Alexandria claimed that not all of the work agreed to be done was done by Mr Conohan and that therefore she was entitled to a refund. Specifically, Ms Alexandria claimed that two water tanks were to be installed within the price quoted of $8,877, but they were not. [4] Mr Conohan told the tribunal that the quote, which was signed by Ms Alexandria, did not include two water tanks. He said the work had been completed in accordance with the contract between the parties and paid for in full by Ms Alexandria. [5] Ms Alexandria acknowledged that the work set out in the quote had been done. She said that the discussions of the parties had included the water tanks, and that she had not read the quote when she signed it, and had only looked at the price. [6] The tribunal accepted the signed quote as evidence of the agreement reached between the parties. The tribunal found that the work had been done as quoted. It considered that the fact that payments had been made in full suggested that Ms Alexandria was satisfied with the work that was done in accordance with the quote. It rejected Ms Alexandria’s evidence that additional work was also to be done for the price quoted. Finally, it found that Mr Conohan was not liable for any refund to Ms Alexandria. [7] Ms Alexandria has filed an application for leave to appeal the decision of the tribunal. The grounds of appeal are specified as ‘QCAT advised me -- 2 of 6 -- 3 the amount charged by Conohan was excessive to the amount of work done. Appeal for refund. This was not dealt with at the hearing.’ Further, in orders sought, Ms Alexandria states ‘ACS Legal have informed me a sworn affidavit from another plumber was in QCAT’s possession at the time of the hearing-QCAT Rep at hearing denied above document was in his possession.’ The Legal Considerations [8] Leave is required to appeal the decision under section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) because the original decision involves a minor civil dispute. If leave to appeal is granted, the intended appeal is on questions of fact. [9] Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;1 there is a reasonably arguable case that the primary decision-maker made an error2 and there are reasonable prospects that the applicant would be granted orders in its favour;3 or to correct a substantial injustice to the applicant caused by error.4 [10] Under section 147(2) of the QCAT Act, an appeal on a question of fact must be decided by way of rehearing. The Appeal Tribunal may make its decision with or without the hearing of additional evidence, as it sees fit. Accordingly, the parties to the appeal are not entitled as of right to adduce additional evidence on the hearing of the appeal, although the Appeal Tribunal may, in its discretion, admit additional evidence. [11] The appeal jurisdiction is not generally the proper forum to receive evidence on disputed facts.5 Generally for additional evidence to be admitted, it must be shown that the additional evidence sought to be relied upon at appeal was not available and could not have been obtained with reasonable diligence for use at the hearing; that it is highly probable that if admitted there would be a different result; and that it is credible.6 Discussion and Decision [12] Ms Alexandria’s grounds of appeal are confusing. [13] However, as best I can understand them, she contends that the tribunal made findings that the amount charged for the work was excessive, but then failed to make orders in favour of Ms Alexandria for any refund. 1 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, 578 and 580. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 See discussion in Georgalis v Andonaras (1993) 113 FLR 196; Doherty v Liverpool District Hospital (1991) 22 NSWLR 284. 6 Cicic v Snowy Mountains Hydro-Electric Authority [1964-65] NSWR 178. -- 3 of 6 -- 4 [14] The transcript reveals that during the hearing, Ms Alexandria said that another person at QCAT had told her that she had been charged too much. Comments as alleged were not made by the tribunal member who heard this proceeding. [15] On the contrary, the learned tribunal member found that the contract had been performed in accordance with the quote and paid for in full, suggesting that Ms Alexandria was satisfied with the work. Specifically he found that Mr Conohan was not liable for any refund to Ms Alexandria and dismissed the application. The tribunal did not make the findings Ms Alexandria contends. [16] The other ground of appeal raised appears to be that the tribunal failed to take into account evidence which Ms Alexandria had provided to the tribunal and relied upon. The transcript reveals that Ms Alexandria provided to the tribunal a copy of the quote prepared by Mr Conohan and a copy of a letter she sent to Mr Conohan in May 2008 complaining about some aspects of the work done, but which did not mention the water tanks. [17] At one stage, Ms Alexandria told the tribunal that another plumber from WaterPac had advised that Mr Conohan had overcharged for the work he did. When the tribunal member asked whether written evidence had been provided to the tribunal, Ms Alexandria said that ‘They were in contact with the solicitor who done up all of the paper work.’ She did not refer the tribunal member to any document that had been filed and the tribunal member did not deny having any such document. [18] The tribunal file reveals that Ms Alexandria had earlier in the proceedings engaged ACS Legal Solutions who filed some documents, including the application, on her behalf. An affidavit of David Crollick, a plumber was filed in September 2010. [19] The affidavit sets out work done by Mr Crollick for Ms Alexandria in 2008 and 2009. It states that he understood that another plumber had done work on the premises prior to him. Further, before commencing work at her property, he prepared a report for her outlining his findings and assessment of work previously done for her. His report is said to be exhibited to the affidavit, but it is not attached. [20] Interestingly, although Ms Alexandria did not attach a copy of the affidavit, she provided with her written submissions to the Appeal Tribunal, a copy of a document prepared by David Crollick dated 21 February 2008 and addressed to the QBSA which refers to having inspected some work done by previous plumbers at Ms Alexandria’s property and recommending that certain steps be taken. [21] Several other documents were also filed with the initial application, including a medical report dated 20 August 2010 which Ms Alexandria does not complain about in her grounds of appeal. However, she has -- 4 of 6 -- 5 also provided a copy of the medical report with her submission in the appeal proceedings. [22] Should the learned tribunal member have ascertained what documents were on the file given Ms Alexandria’s oral evidence? If so, is this an error in respect of which leave to appeal should be granted? [23] Under the QCAT Act, the tribunal’s charter is to deal with matters in a way that is accessible, fair, just and informal.7 It is to be responsive to the needs of diverse persons coming before it.8 It is not bound by procedures applying in courts and may inform itself in any way it considers appropriate.9 However, as the High Court of Australia recently observed ‘resolution of disputes serves the public as a whole, not merely the parties to the proceedings’.10 Therefore, parties must take care in their dealings in tribunal matters and act in their own interests throughout the conduct of the proceeding. [24] Ms Alexandria represented herself at the tribunal hearing. She had a responsibility to make her case at the hearing and alert the tribunal to documents she wished to rely upon. In a court, she might be expected at the outset of the hearing to formally identify those documents on the file she sought to rely upon. However, the tribunal is required to operate in an informal and accessible manner. She endeavoured to alert the tribunal to evidence about the issue, but unfortunately did not suggest that it may be on the file. [25] That aside, the affidavit she refers to in her grounds of appeal had been filed and was available to the tribunal. In the circumstances, balancing Ms Alexandria’s responsibilities against those of tribunal to operate in an accessible way, I consider that it was incumbent upon the learned tribunal member to be aware of the documents filed in the proceedings by the parties. [26] Therefore, I consider the tribunal erred in not taking in to account the affidavit of David Crollick. I would grant leave to Ms Alexandria for her appeal. [27] Turning then to consider the rehearing of the matter, the evidence before the Appeal Tribunal is the evidence at the hearing, together with the affidavit of David Crollick and other documents filed by Ms Alexandria with her initial application including the medical report. [28] It seems Ms Alexandria seeks also to rely upon the report of David Crollick which she has provided on appeal, but which was not filed with the initial application. 7 QCAT Act, s 3(b). 8 QCAT Act, s 4(e). 9 QCAT Act, s 28(3)(b) and (c). 10 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. -- 5 of 6 -- 6 [29] As discussed above, this Appeal Tribunal has the discretion to admit new evidence in appropriate circumstances. However, David Crollick’s report is dated 2008. It was available at the date of the hearing and if Ms Alexandria wanted to rely upon it she should have provided it to the tribunal at the hearing of the proceeding in February. In any event, even if the report was admitted, I do not consider that it would influence the result of the rehearing given that it was prepared several years after Mr Conohan did work on the property and it is apparent from Mr Crollick’s report itself, as well as the transcript from the hearing, that Mr Conohan was not the only plumber who had done work for Ms Alexandria. [30] Ms Alexandria also provided with her written submissions on the appeal application, a copy of correspondence from Beaudesert Shire Council dated 18 July 2005. Again this document was clearly available at the date of the hearing. A party has a responsibility to make their case at the hearing. The appeal process is not for providing a second opportunity to present a party’s case. It is for correcting errors made. I would not allow into evidence either of these documents. [31] In my view, the essential facts are that there was a contract for work to be done by Mr Conohan for Ms Alexandria. A quote was prepared by Mr Conohan setting out the work to be done and the price which both parties signed. It did not include the water tanks. The work was done. Payment was made in full by Ms Alexandria. I consider it is reasonable to infer, and I would draw the inference from the payment, that Ms Alexandria was satisfied with the work. It seems that any complaints arose some years later, and when they did, there was no reference to water tanks forming part of the works that were to be undertaken for the price. The affidavit of David Crollick and other material attached to the initial application does not challenge these facts. [32] Therefore, I would find that the contract between the parties was performed as agreed. I would further find that there are no monies owing from Mr Conohan to Ms Alexandria. [33] Accordingly, I would confirm the tribunal’s decision. -- 6 of 6 --