Clarke v Langham and Anor [2011] QCATA 286

CITATION: Clarke v Langham and Anor [2011] QCATA 286 PARTIES: Mr Peter Anthony Clarke t/as Peter Anthony Painting and Plastering v Mr Geoffrey Langham Ms Dianne Sharon Earnshaw-Grice APPLICATION NUMBER: APL110-11 MATTER TYPE: Appeals HEARING DATE: 4 October 2011 HEARD AT: Brisbane DECISION OF: Kerrie O’Callaghan, Senior Member Peta Stilgoe, Acting Senior Member DELIVERED ON: 4 October 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: BUILDING – where contractor not granted legal representation – where homeowner a solicitor – where contractor not a sophisticated man – where contractor had ill-health – whether procedural fairness – where contractor walked out of hearing – whether member should have adjourned hearing – whether member entitled to rely on set of photos tendered at the hearing Kioa v West (1985) 159 CLR 550 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 R v Abrahams (1895) 21 VLR 343 APPEARANCES and REPRESENTATION (if any): APPLICANT: A George of Counsel RESPONDENT: Mr Langham -- 1 of 8 -- 2 REASONS FOR DECISION [1] Mr Langham and Ms Earnshaw-Grice engaged Mr Clarke to paint their house. He was also engaged to do some gardening work and repair a jetty at the rear of the house. Mr Clarke was not licensed by the Queensland Building Services Authority and he did not provide a written contract as required. [2] Towards the end of the contract, the parties fell into dispute. Mr Langham and Ms Earnshaw-Grice withheld $3,000. Mr Clarke walked off the job. Mr Langham and Ms Earnshaw-Grice brought proceedings in the tribunal claiming compensation for defective work. [3] The hearing of the dispute was set down for three days. At the end of the second day, Mr Clarke was the only witness who had not given evidence. He wanted time to consider photographs that Mr Langham and Ms Earnshaw-Grice had tendered on the first day of the hearing. The learned Member gave Mr Clarke that time. [4] On the morning of the third day, 17 February 2011, the learned Member invited Mr Clarke to give his evidence and make submissions. Mr Clarke gave the tribunal written submissions, made some comments about the course of the tribunal proceedings and then left the hearing room. The learned Member reserved his decision and on 3 March 2011, determined that Mr Clarke should pay Mr Langham and Ms Earnshaw-Grice $29,489 compensation. [5] Mr Clarke has appealed the learned Member‟s decision on a number of grounds. At the hearing, Counsel for Mr Clarke focussed on these three: a) Mr Clarke was denied legal representation in circumstances where there was a clear imbalance in experience and ability to run the case. b) The learned Member should not have relied on the photos tendered by Mr Langham and Ms Earnshaw-Grice because they were not tested. c) Mr Clarke was denied the opportunity to give evidence or make submissions about the proceeding. The learned Member should have adjourned the hearing when Mr Clarke left, rather than continue to a determination. [6] Because this is an appeal on questions of fact and law, leave is necessary1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive 1 Section 142(3)(b) QCAT Act. -- 2 of 8 -- 3 relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? Legal representation [7] The tribunal dismissed Mr Clarke‟s application for legal representation on 7 February 2011. Mr Clarke did not appeal the tribunal‟s decision. [8] A tribunal order refusing leave for legal representation does not mean that lawyers cannot assist parties in the preparation of their case and it is apparent from the file that Mr Clarke did have such assistance. In an email dated 7 February 2011, Ms Brown, of Nautilus Law records: a) The witnesses that Mr Clarke intended to call at the hearing. b) That she will be available to further assist Mr Clarke in collating his case and that any communications relating to the case be to her office. [9] It cannot be said that the tribunal‟s refusal to grant legal representation had any adverse effect on Mr Clarke‟s preparation for hearing. [10] Counsel for Mr Clarke says that he should have had legal representation at the hearing because: Mr Langham and Ms Earnshaw-Grice are professional people; Mr Clarke is a 61-year old tradesperson in ill-health; the Court (sic) had recommended that he seek legal representation; and natural justice would be served by the grant of legal representation. They are the same reasons that were advanced in the application in February 2011. [11] The learned Member observed2 that: …the Tribunal had done everything possible to ensure a fair hearing to both parties. The fact that the male applicant was a solicitor did not prejudice the Respondent at the hearing. As frequently happens with self-represented parties, the Respondent failed to put his case to the Applicants‟ witnesses and had difficulty in cross-examining them. The Tribunal asked the witnesses questions where their evidence needed clarification. [12] An examination of the transcript shows that this is an accurate summary of the way the learned Member conducted the hearing: a) On a number of occasions, the learned Member encouraged Mr Clarke to ask questions of the witnesses rather than make declamatory statements.3 b) The learned Member reframed Mr Clarke‟s questions so that the witness could provide an answer.4 2 Langham & Anor v Peter Anthony Painting & Plastering [2011] QCAT 80 at [61]. 3 Transcript 15.02.11 page 44, lines 8-9; page 46, lines 36-41; page 54, lines 25-27; page 55, lines 5-6; page 69, line 15. 4 See, for example, transcript 15.02.11 page 44, lines 46-48; page 45 lines 1-17. -- 3 of 8 -- 4 c) The learned Member directed Mr Langham to answer questions when he was being cross-examined by Mr Clarke.5 d) The learned Member took over cross examination of witnesses.6 e) The learned Member cautioned Mr Clarke there would be no second chances if he did not put questions to a witness.7 f) The learned Member took Mr Langham to task about a number of procedural issues, which Mr Langham has acknowledged in his submissions. [13] In fact, the transcript show that, with the learned Member‟s assistance, Mr Clarke was conducting his case in a way that demonstrated he understood the issues to be determined and the evidence before the tribunal on each of those points. Mr Clarke did not complain about the lack of representation at the start of the hearing and expressed the view that “we‟ve got enough evidence”.8 [14] Things started to go awry on the afternoon of the second day when Mr Clarke‟s expert witness was giving evidence. The learned Member did not allow Mr Clarke to ask the expert questions that were not the subject of his evidence in chief. Only at that point did Mr Clarke complain about the lack of fairness in the proceeding.9 The complaint was in the context of Mr Langham and Ms Earnshaw-Grice having eight witnesses whereas Mr Clarke had only one witness “that can come forward enough”. [15] As the learned Member observed, and the file confirms, Mr Clarke had assistance from a lawyer in the preparation of his case. If his witnesses did not assist him in the hearing, it is doubtful that legal representation at the hearing would have been able to rectify that situation. [16] When he entered the witness box later on Day 2 of the hearing, Mr Clarke started to complain about the process. He stated he was disorganised but his primary complaint was that he had been bombarded with witnesses.10 Mr Clarke and the learned Member then had a discussion about the evidence which concluded with the learned Member telling Mr Clarke that he was going to order something for the cost of rectification.11 Only then does Mr Clarke complain about the lack of legal representation.12 The complaint came too late and, in our view, was simply a refusal to acknowledge some unpleasant news from the learned Member. 5 See, for example, transcript 15.02.11 page 44, lines 41-42. 6 See, for example, transcript 15.02.11 page 47, lines 1-15. 7 See, for example, transcript 15.02.11 page 59, lines 41-42. 8 Transcript 15.02.11 page11, lines 10-16. 9 Transcript 16.02.11 page 47, lines 24-28. 10 Transcript 16.02.11 page 51, lines 37-46. 11 Transcript 16.02.11 page 52, lines 5-7, 17-19, 23-34. 12 Transcript 16.02.11 page 59, lines 19-23. -- 4 of 8 -- 5 Reliance on the photos [17] Counsel for Mr Clarke says that the learned Member should not have relied on the photos tendered by Mr Langham because Mr Clarke had not tested them. The submission is that Mr Clarke intended to speak to the photos on the third day of the hearing but he could not continue due to ill- health and left the witness box. [18] There is a difference between Mr Clarke not testing the photos and Mr Clarke not having the opportunity to test the photos. Here, though, the difference is probably immaterial as Mr Clarke both had the opportunity, and did, test the photos. [19] Mr Langham tendered the photos on the first day of the hearing. He spent some time taking the learned Member through each photo.13 Immediately after that exercise, Mr Clarke was given the opportunity to cross examine Mr Langham. He referred to the photos and pointed out discrepancies to the learned Member.14 He made the point that Mr Langham‟s expert had not seen the photos.15 [20] The photos were not new to Mr Clarke. He had seen them about 20 months before when they were tendered in proceedings before the Small Claims Tribunal.16 [21] Mr Clarke still disputes the date on which the photos were taken even though the date was established by Ms Earnshaw-Grice on the first day of the hearing.17 Mr Clarke may not like the photos, they may have been taken some time after the work was completed, but he cannot dispute the date on which they were taken. [22] The learned Member allowed Mr Clarke a further indulgence on Day 2 by asking Ms Earnshaw-Grice to date and number each of the photos and then allowing Mr Clarke the opportunity to respond to the photos when giving evidence on the morning of Day 3. [23] On the morning of Day 3, the learned Member took care to ensure Mr Clarke had an opportunity to present his case and to go through the photos one-by-one to explain them to the tribunal.18 The learned Member explained that he wanted to hear Mr Clarke‟s side of the story.19 The learned Member encouraged Mr Clarke to get into the witness box and go 13 Transcript 15.02.11 pages 33-38. 14 Transcript 15.02.11 page 42, lines 17-19; page 43 lines 36-46; page 51, lines 36-37. 15 Transcript 15.02.11 page 56, lines 10-26. 16 Transcript 15.02.11 page 54, lines 1-12. 17 Transcript 15.02.11 page 63, line 22-44. 18 Transcript 17.02.11 page 3, lines 13-21. 19 Transcript 17.02.11 page 3, lines 31-32, 37, 41-42. -- 5 of 8 -- 6 through each of the photos.20 At least initially, Mr Clarke intended to go through the photos.21 [24] Mr Clarke chose not to test the photographic evidence any further. The learned Member did not deny him that opportunity. A party has a right to be heard in a proceeding but a party may waive that right.22 There is no basis for Mr Clarke‟s assertion that the proceeding was unfair or contrary to the principles of natural justice. The failure to adjourn the proceeding [25] Mr Clarke left the hearing on Day 3 without being cross examined and without making submissions. His Counsel submits that Mr Clarke was unable to continue on Day 3 because of: the inequality between the parties; Mr Clarke‟s inferior financial situation; his need for legal representation; his ill-health and the fact that his wife had also fallen ill and was not present that morning. [26] The transcript reveals that Mr Clarke‟s real complaint was that he was not prepared for the hearing. He says that: a) He only had seven days to prepare for the hearing.23 b) Two weeks ago, he had “no court files, nothing, all lost”.24 c) He had to get documents from the tribunal, at a cost of $110, and he had little time to prepare once those documents were delivered.25 d) He‟d been absolutely "jipped" (gypped?) about by the tribunal.26 [27] The file shows that Mr Clarke‟s lawyer requested a copy of the tribunal file by letter dated 29 November 2010. The tribunal provided a copy of the file in early December 2010. After a directions hearing in February, Mr Clarke‟s lawyer became aware that she did not have copies of some affidavits. The tribunal forwarded copies by email that day. All the documents requested by Mr Clarke‟s lawyer were documents that were filed in the proceeding or in the Small Claims proceeding. It is not the tribunal‟s responsibility to serve parties with material, or to ensure that parties keep copies of material served on them. If Mr Clarke was not prepared for the hearing, the fault did not lie with the tribunal. In fact, Mr Clarke‟s lawyer thanked the registry staff for their cooperation and assistance in providing documents promptly.27 20 Transcript 17.02.11 page 3, lines 46-48. 21 Transcript 17.02.11 page 4, lies 15-16. 22 R v Abrahams (1895) 21 VLR 343 at 346. 23 Transcript 17.02.11 page 4, line 35-36. 24 Transcript 17.02.11 page 5, line 28. 25 Transcript 17.02.11 page 5, line 30-37. 26 Transcript 17.02.11 page 9, lines 29-30. 27 Email 7 February 2011. -- 6 of 8 -- 7 [28] Tellingly, the transcript reveals that Mr Clarke‟s ability to conduct his case failed at about the time he realised that the learned Member was going to make an order against him: And when we asked you yesterday about payment, you obviously know at this stage that I‟ve got to pay something, which I feel has knocked me off track a bit and I don‟t know.28 [29] Mr Clarke did not want to be cross examined29 and he wanted the proceeding to be finished30. He did not ask for an adjournment and, given his comments immediately prior to leaving the hearing room, the learned Member‟s decision to continue on and determine the proceeding was reasonable. [30] Counsel for Mr Clarke submitted that the learned Member improperly continued with the hearing after Mr Clarke left. Counsel could not point to any specific conversation that occurred after Mr Clarke‟s departure that indicated the learned Member acted improperly. That is a proper concession. The learned Member noted that it was not appropriate for him to continue talking to Mr Langham31 and simply received Mr Langham‟s submissions. [31] As Mason J (as he then was) observed in Kioa v West,32 procedural fairness is a term which conveys the notion of a flexible obligation to adopt fair procedures which are appropriate, and adapted to, the circumstances of the particular case. Taking all of the circumstances into account, and from a close reading of the transcript, we are satisfied that the learned Member did ensure procedural fairness in the hearing. [32] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.33 [33] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.34 As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.35 28 Transcript 17.02.11 page 8, lines 30-32. 29 Transcript 17.02.11 page 10, line 7. 30 Transcript 17.02.11 page 10, line 13. 31 Transcript 17.02.11 page11, line 1-2. 32 (1985) 159 CLR 550. 33 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 34 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 35 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 7 of 8 -- 8 [34] The legitimacy of the photos was tested and the learned Member was satisfied that he could rely upon them. However, the learned Member also accepted the evidence of Mr Englert and found that the defects the expert identified required rectification. That finding is independent of any finding about the photos. Even if Mr Clarke was right about the photos, the learned Member‟s findings of fact could still be supported by the evidence and we can find no compelling reason to come to a contrary view. [35] There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Member was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 8 of 8 --