Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93

CITATION: Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93 PARTIES: Mr Jolyon Ellis and Mrs Doris Grosskurth (Applicants/Appellants) v Queensland Building Services Authority (Respondent) APPLICATION NUMBER: APL143-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Peta Stilgoe, Member DELIVERED ON: 6 December 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. 2. Applications to file further material and/or written submissions dismissed. CATCHWORDS : DOMESTIC BUILDING DISPUTE – DIRECTION TO RECTIFY – LEAVE TO APPEAL – where the Authority refused to issue directions to rectify eighteen complaints – where the Member confirmed eight of the refusals but referred four back to the Authority for re-consideration – where the appellants allege that the Member erred in making his findings – whether the Member’s findings are supported by the evidence – whether the appellants satisfy the usual tests for granting leave to appeal – whether leave should be granted PROCEDURE – NEW EVIDENCE – where the appellants seek leave to admit new evidence – where the new material sought to be produced is responsive to matters already ventilated at the hearing – whether the appellants satisfy the -- 1 of 8 -- 2 test for admitting new evidence on appeal Queensland Civil and Administrative Tribunal Act 2009 ss100, 102, 142(3)(b) Queensland Building Services Authority Act 1991, s72(14) Bucknell v Robins [2010] QDC 40, cited Chambers v Jobling (1986) 7 NSWLR 1, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 197 ALR 201, cited Peoples & ors v Thornton & ors [1995] QCA 188, applied Tyler v Queensland Building Services Authority [2010] QDC 40, cited APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 REASONS FOR DECISION The Appeal Tribunal: [1] In June 2007, the Authority decided not to issue a direction to rectify eighteen complaints about the plumbing at the home of Mr Ellis and Ms Grosskurth (“the appellants”). The hearing of the proceeding started before the former Commercial and Consumer Tribunal in 2008, but was completed by a member of this Tribunal in May 2010. The learned Member confirmed the Authority’s decision in relation to eight complaints and referred four back to the Authority for re-consideration. The appellants have appealed that decision. [2] The appellants’ stated grounds of appeal focus primarily on questions of fact, or mixed fact and law, so leave to appeal is necessary: s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”). Leave to appeal [3] Leave to appeal will ordinarily only be granted where some question of general importance arises; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of 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 8 -- 3 [4] In Tyler v Queensland Building Services Authority1 the appellant argued that, if leave was not given, he would be required to complete work for which he had not been paid. Judge Ryrie did not consider that this amounted to “substantial injustice”. Similarly in Bucknell v Robins2 the Court of Appeal was of the view that financial disadvantage, in the absence of hardship did not amount to “substantial injustice”. [5] Despite extensive submissions, the appellants have not told the Appeals Tribunal why they will suffer substantial injustice if the learned Member’s decision is not overturned on appeal. They have provided no affidavit material as to the cost of the proposed items for rectification, they have not demonstrated hardship, nor have they demonstrated that the correction of any error of the learned Member in this proceeding is necessary, or would be of particular public advantage. [6] For these reasons, Ieave should not be granted. For completeness, however, we have gone on to consider whether there is any reasonably arguable case of error, and a reasonable prospect that the appellants could obtain substantive relief. It is also appropriate, as part of that exercise, to consider a number of ancillary applications the appellants have filed. The appellants’ miscellaneous applications [7] The appellants have filed two applications for leave to file further evidence. New evidence will ordinarily only be allowed if: it could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and, the evidence is apparently credible, although not necessarily incontrovertible.3 [8] We are not satisfied that the further evidence sought to be adduced by the appellants meets any element of this test. Much of the further evidence sought to be presented is in response to oral evidence at the hearing which contradicted the appellants’ understanding of the matters in issue. That does not mean that the evidence was not reasonably available to the appellants at the hearing; rather, it means that they did not appreciate its significance. That is not a ground for admitting fresh evidence.4 [9] The appellants are particularly concerned that the Appeals Tribunal should consider the statement of a Mr Denman, who inspected the appellants’ home on 20 August 2010. It is apparent that Mr Denman’s inspection was informed by the evidence that had been put before the learned Member. The appellants have given no reason why Mr Denman could not have been briefed and called to give evidence at the hearing. His report does not satisfy the tests for fresh evidence we have already 1 [2010] QDC 40 2 [2008] QCA 214 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, at 408 4 Peoples & ors v Thornton & ors [1995] QCA 188 -- 3 of 8 -- 4 mentioned. It is not in the interests of justice to allow fresh material such as this without giving the Authority an opportunity to respond. [10] The appellants also seek leave to file further written submissions. They say that further written submissions are necessary because: in 2008, the learned Member told them that they would have about two weeks after the hearing to file submissions; they were taken by surprise at the hearing, were rushed and made mistakes in their submissions. [11] The transcript shows that the learned Member alerted the appellants to his proposal for oral submissions before lunch on the second day of the hearing5. As he was obliged to do,6 the learned Member took the appellants through what was required in submissions, and how they might arrange their arguments and present them at the hearing. [12] The transcript shows that appellants’ submissions at the hearing are not without difficulty7 but that is always a risk for self-represented parties. The appellants were, it is apparent, able to draw the learned Member’s attention to all relevant documents, and the parts of those documents that they wanted to rely upon. Even though their precise arguments may not have been articulated as well as they may have wished, we are satisfied that the learned Member was sufficiently apprised of the appellants’ case. [13] In any event the appellants’ submissions in this appeal are, in effect, the further written submissions that they would have filed had the learned Member allowed. For reasons which follow, they are unlikely to have produced a different result. The Merits [14] 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 underlying them8. [15] An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case9. 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.10 5 At pages 2-72 to 2-81 6 S29 (1)(a)(i) QCAT Act 7 At pages 3-82 to 3-99 8 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208 9 Chambers v Jobling (1986) 7 NSWLR 1 at 10 10 Fox v Percy (supra) at 209 per Gleeson CJ, Gummow an Kirby JJ -- 4 of 8 -- 5 The appellants’ complaint that Mr Verrankamp did not appear at the hearing [16] Mr Verrankamp was served with a notice to attend the hearing. On the morning of the first day, the appellants told the learned Member that they were calling Mr Verrankamp but they didn’t know where he was.11 The learned Member said: “But if you can’t find him, you won’t be calling him?”, to which Mr Ellis replied “Obviously, yes. Yes.” [17] There is a copy of a facsimile on the tribunal file from the appellants to Mr Verrankamp dated 18 May 2010. It says: “We are most concerned that you did not attend today as your evidence is of great importance to our Case, The QCAT member has been advised of this and you are required to attend at 9.30 AM tomorrow, the 19 th May 2010.” [18] The hearing resumed on 19 May with Mr Hartnett being called as a witness. At the conclusion of Mr Hartnett’s evidence, the learned Member observed that all the evidence had finished and that the hearing would resume after lunch with the appellants’ submissions12. The appellants did not raise the matter of Mr Verrankamp’s attendance, or his absence. They did not ask the learned Member, as they were entitled13, for an adjournment of the proceedings, or for a warrant to be issued. In those circumstances they cannot now complain that they were denied the opportunity to present their case, and their evidence. The water hammer [19] The appellants say that the learned Member did not place sufficient weight on some evidence, and too much weight on other evidence about a problem involving a water ‘hammer’. The appellants have detailed the specific instances in which they say the learned Member erred in preferring the evidence of one witness to another. [20] The learned Member, in his reasons, noted the witnesses from whom he heard evidence and the transcript shows that the qualifications and expertise of each of them was disclosed at the hearing. [21] As to this issue – the ‘water hammer’ – the learned Member specifically stated14 that he preferred the evidence of Mr Woodruffe, a building inspector with the Authority, and Mr Hodgkinson, the co-coordinator of 11 Transcript, page 1-22 12 Transcript, page 2-73 13 QCAT Act s215 14 Supra at paragraph 81 -- 5 of 8 -- 6 plumbing services with the Moreton Bay Regional Council, over the evidence of Mr Hartnett, an hydraulic services design consultant. [22] The Member’s reasons also explain why he preferred the evidence of Messrs Woodruffe and Hodgkinson to Mr Hartnett. The witnesses were tested in cross-examination, and the appellants were able to put a number of contrary propositions to the witnesses, in many cases by reference to documents. The evidence is capable of supporting the learned Member’s conclusions, and we can see no instance where any of his conclusions are contrary to compelling inferences. [23] The appellants say that the evidence given by witnesses during the hearing was “wrong” or “new”. The appellants’ submissions in this regard traverse ground that was covered in cross-examination at the hearing, save that the appellants now have access to more documents, or different opinions. [24] That does not mean that the learned Member’s conclusions were wrong. He was required to rely on the evidence that was presented to him at the time. Through cross-examination, the appellants alerted the learned Member to their views about the correctness of some of that evidence. His decision shows that he took those matters into account15. The correctness of that decision cannot now be attacked by reference to material he did not see. [25] The appellants also complain that the learned Member did not read the material before the hearing, and this affected the conduct of the proceeding. The mere fact that a Member cannot readily recall, or bring to hand, a particular report during the hearing does not mean that he did not read it beforehand. [26] As the record shows, there were numerous reports filed in this proceeding. The appellants referred the learned Member to all the reports, and particular parts of reports, that they considered relevant. He recorded those references and had regard to them when writing his decision. If the learned Member did not read all of the reports prior to the hearing (and we do not accept that has been established) any disadvantage was remedied in his acknowledgement, and analysis, of the reports during the hearing, and in the exercise of writing his decision. Vent pipe, items over the tray and pipe passing through stud [27] The learned Member relied on the evidence of a Mr Boyle that the builder was ready to perform rectification of these particular works, but the appellants would not permit rectification unless the builder received a formal direction. The learned Member found that, having regard to s 15 Supra at paragraphs 39 to 42. -- 6 of 8 -- 7 72(14) of the Queensland Building Services Authority Act 1991 (“QBSA Act”), it would be unreasonable to direct rectification. [28] The appellants accept that there was an offer to rectify these defects but take issue with the learned Member’s interpretation of the evidence. Principally, the appellants dispute the nature and extent of the builder’s offer to rectify. The Appellants do not, however, dispute the finding that they refused to allow rectification unless it was the subject of a direction, although they do say there was good reason for that refusal. Further, they do not argue that the learned Member’s application of s 72(14) of the QBSA Act was wrong. The evidence is capable of supporting the learned Member’s findings and we can find no reason to set it aside. Overflow pipe size [29] The learned Member accepted the Authority’s submission that the appellants placed no evidence before the tribunal that the size of the stormwater pipes was inadequate. The appellants say that they did place evidence before the tribunal to demonstrate that the size of the stormwater pipes was inadequate. [30] The transcript shows16 that Mr Hartnett did tell the tribunal he thought the overflow pipes might be undersized so it is not the case that the appellants produced no evidence on this point. It is equally clear, however, that the learned Member concluded that the evidence did not persuade him that a direction to rectify was appropriate. The learned Member noted that Mr Hartnett’s view was formed on the basis of his experience, and without seeing the tanks in flood. Mr Hartnett told the hearing that he had not conducted any modelling or testing to see if the pipe size was inadequate17. Perhaps the learned Member erred in the phrasing of his reasons, but the evidence is capable of supporting the conclusion that the necessity for a direction to rectify had not been established. Installation of rain heads [31] The appellants’ complaint is that Mr Cole, acting for the Authority at the hearing, prevented a proper answer to the appellants’ question to a Mr Barrett as to whether less than a 50 mm clearance over a rainhead affected its performance. [32] It is true that Mr Cole intervened to prevent Mr Barrett answering a question but the transcript shows18 that the appellants were given a number of opportunities to frame a question to Mr Barrett that would elicit 16 At pages 3-31 and following 17 [2010] QCAT at paragraph 75 18 At pages 2-67 to 2-69 -- 7 of 8 -- 8 the required response. The learned Member provided assistance to the appellants in this regard. The appellants did not persist with the questioning, but moved on to another topic. They cannot blame the learned Member for their abandonment of the point. [33] The learned Member was entitled to find as he did and we can see no reason to overturn his decision on this point. Costs [34] The ability to award costs is covered by s 100 of the QCAT Act. The default position is that each party must bear that its own costs of the proceedings. The matters that a member is required to consider in determining whether to depart from the default position are set out in s 102(3) of the QCAT Act. [35] The only matter that the appellants point to in support of their application for costs is the delay in achieving finality. That is not a ground that is referred to in s 102(3). The appellants have not demonstrated that the proceeding has been conducted in a way that disadvantages them, and they have not commented on the nature and complexity of the proceeding or the relative strength of the parties’ claims. The learned Member adopted the default position in relation to costs and, again, we can see no warrant for disturbing that determination. Conclusion [36] The appellants have not demonstrated that there is an important question of law to be determined or that they will suffer a substantial injustice if leave to appeal is not granted. For these reasons, leave should be refused. [37] The appellants’ application for leave to file new material should also be refused. The material sought to be produced is responsive to matters ventilated at the hearing. The discretion to allow fresh material on appeal is limited and the appellants have not satisfied us that the material was not reasonably available to them at the time of the hearing. [38] Even if leave to appeal was granted, we are not satisfied that the learned Member’s findings are contrary to the inferences he drew from the evidence which seem to us to have been, in each instance, reasonably and fairly open. -- 8 of 8 --