Brunner v Kelley [2011] QCATA 201

CITATION: Brunner v Kelley [2011] QCATA 201 PARTIES: Mr Adam Brunner v Mr Paul Kelley trading as Outside Designs APPLICATION NUMBER: APL167-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 18 July 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS : MINOR CIVIL DISPUTE – where dispute about paving – where adjudicator ordered compensation – where adjudicator was told of offer to settle – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 s83 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] Mr Kelley laid some pavers for Mr Brunner. The parties agree that the result is defective as there is excessive stepping between the pavers in some places. Mr Brunner had a quote for $9,200 to rectify the paving and he was seeking this amount from Mr Kelley. At the hearing, Mr Kelley produced quotes for relaying the pavers that were in the vicinity of $4000. The learned Adjudicator ordered that, upon receipt of a paid invoice from Mr Brunner, Mr Kelley was to pay $5000 in compensation for the defective paving. [3] Mr Brunner has appealed the learned Adjudicator‟s decision on these grounds: a) The learned Adjudicator failed to exercise natural justice in that he continuously expressed preconceived bias by stating that, in his opinion/experience, claimants seek to enrich themselves. b) Mr Kelley didn‟t give his material to Mr Brunner until the end of the hearing, even though it was available at mediation. c) The learned Adjudicator failed to accept Mr Brunner‟s written submissions which contained extensive detail. d) The learned Adjudicator erred in his assessment because the alternative quotes were provided by contractors who had not visited the site. e) The learned Adjudicator erred in the calculation of the compensation. f) The learned Adjudicator had reference to an offer of settlement, which should not have been available to him. [4] Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. 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 relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? -- 2 of 4 -- 3 [5] Mr Brunner‟s assertion that the learned Adjudicator “continuously expressed preconceived bias by stating that, in his opinion/experience, claimants seek to enrich themselves” is an exaggeration. The transcript reveals that the learned Adjudicator made that comment once1 but there is simply no evidence that the learned Adjudicator “continuously expressed” this view, nor is there any evidence of bias on the part of the learned Adjudicator or that Mr Brunner was not afforded natural justice. [6] It is true that Mr Kelley did not provide copies of the alternative quotes until quite late in the proceedings but Mr Brunner has conceded that they were available to him at mediation. It is clear from the transcript2 that Mr Brunner was able to speak to the quotes and he does not appear to have been taken by surprise by their contents. [7] While it is true that the learned Adjudicator did not accept Mr Brunner‟s written submissions, the transcript does show that the learned Adjudicator considered Mr Brunner‟s original submissions3, invited Mr Brunner to take him through the further written submissions4 and gave Mr Brunner ample opportunity to put his case. I do not consider that Mr Brunner was not afforded natural justice by the learned Adjudicator‟s failure to accept the further written submissions. [8] The transcript reveals that the learned Adjudicator was aware that the contractors who provided the alternative quotes had not visited the site.5 The learned Adjudicator‟s assessment of the differing quotes was based on other grounds; that is, that Mr Brunner‟s quote was for paving to be laid on a concrete base whereas the alternative quotes were for paving to be laid on a compacted gravel base. [9] The learned Adjudicator did have reference to an offer of settlement. It is not clear whether the offer was made at mediation or prior to Mr Brunner filing these proceedings. Section 83 of the Queensland Civil and Administrative Tribunal Act 2009 provides that evidence of anything said or done at mediation is not admissible in the proceeding unless the parties have agreed that it may be admitted into evidence. I note that Mr Brunner did not object to Mr Kelley‟s evidence of the offer6. More importantly, however, the transcript reveals that the learned Adjudicator arrived at his calculation of the appropriate compensation by alternative means. The revelation of the offer did not have a material effect on the outcome. [10] Mr Brunner‟s primary complaint is the learned Adjudicator‟s calculation of the compensation that should be paid. 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 1 Transcript page 5, lines 9-11 2 Transcript page 18, lines 34-38 3 Transcript page 2, lines 31-35 4 Transcript page 3, lines 11-14 5 Transcript page 18, lines 34-38, page 19, line 45 6 Transcript page 16 -- 3 of 4 -- 4 conclusions, and there is evidence capable of supporting any inferences underlining it.7 [11] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.8 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.9 [12] It is not the appeal tribunal‟s task to determine whether a better decision should have been made; rather the task is limited to whether the decision that was made can be supported by the evidence. I find that the learned Adjudicator‟s finding as to the appropriate amount of compensation can be supported by the evidence and there is no compelling reason to come to a different view. [13] There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator 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 7 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 8 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 9 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 4 of 4 --