Capable Consulting (Aust) Pty Ltd v Garget [2009] QDC 404

DISTRICT COURT OF QUEENSLAND CITATION: Capable Consulting (Aust) Pty Ltd v Garget [2009] QDC 404 PARTIES: CAPABLE CONSULTING (AUST) PTY LTD and PARTRECK MUTOKOYI Appellants AND PETER DOUGLAS GARGET Respondent FILE NO/S: Appeal 1822/09 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 18 December 2009 DELIVERED AT: Brisbane HEARING DATE: 3 November 2009 JUDGE: McGill DCJ ORDER: Leave to appeal; appeal allowed; decision of the Tribunal of 29 May 2009 annulled; case remitted to the Tribunal for rehearing, in accordance with the following directions: (a) the rehearing is to take place before a person other than the member of the Commercial and Consumer Tribunal who conducted the original hearing; (b) on the rehearing the Tribunal is to disregard the purported order of 6 October 2008. Order the respondent to pay the appellant’s costs of the appeal to be assessed. CATCHWORDS: INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – duty to give reasons – whether reasons adequate – whether leave to withdraw part of counterclaim properly given JUDGMENTS AND ORDERS – Statement of Reasons for Decision – whether adequate – conclusions only stated – error of law Commercial and Consumer Tribunal Act 2003 ss 62, 65(2). -- 1 of 15 -- 2 Ansett Transport Industries (Operations) Pty Ltd v Wraith(1983) 48 ALR 500 – cited. Bawden v ACI Operations Pty Ltd [2003] QCA 293 – cited. Beale v GIO of NSW (1997) 48 NSWLR 430 – cited. Camden v McKenzie [2007] QCA 136 – cited. Clements v Flower [2005] QDC 50 – followed. Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 – applied. Drew v Makita (Australia) Pty Ltd [2009] QCA 66 – applied. Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 – applied. Paulger v Hall [2003] 2 Qd R 294 – applied. Pioneer Industries Pty Ltd v Baker [1997] 1 Qd R 514 – applied. Poiner v Quirk [2007] QDC 299 – followed. RES 1 v Medical Board of Queensland [2008] QCA 152 – cited. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 – cited. Suncorp Insurance and Finance v Hill [1998] QCA 112 – cited. COUNSEL: J.P. O’Regan for the appellants D.H. Katter for the respondent SOLICITORS: Maunsell Pennington for the appellants Vanderleur & Todd for the respondent [1] This is an application for leave to appeal from a decision of the Commercial and Consumer Tribunal dated 29 May 2009. The respondent before me had applied to that tribunal for an amount payable under building contract, damages for breach of the contract, costs and interest. The appellants defended and counterclaimed for costs of rectification and/or completion of contract works and loss of rent; credit was given for the unpaid final payment of the contract price. On 29 May 2009 the Tribunal, after a three-day hearing in January that year, gave judgment. The counterclaim was allowed in part but only to the extent of $3,600; judgment was given for the unpaid final instalment of $17,720, less this amount, a balance of $14,120.1 [2] The appellants seek leave to appeal. The proposed grounds are that the Tribunal Member failed to take into account all relevant considerations, erred in law in failing to give proper and sufficient reasons for the decision, and erred in law in failing to have regard to that part of the appellants’ counterclaim by which they claimed for loss of rent. The latter was put on two bases in the alternative, that there was an error of law in finding that the counterclaim had been withdrawn, or in the alternative, that the Tribunal erred in failing to determine the appellants’ application to amend the counterclaim to reintroduce it. 1 The actual order refers to $14,129; that appears to result from an error in transcription, since it is based on the withheld final instalment being $17,729. -- 2 of 15 -- 3 [3] Leave is required to appeal under s 100 of the Commercial and Consumer Tribunal Act 2003, and the appeal can be only on error of law or excess or want of jurisdiction. The test laid down by Wilson DCJ in Clements v Flower [2005] QDC 50, that the appellants must show there is a reasonable prospect of demonstrating error of law on the part of the learned member who constituted the tribunal and that it could have materially affected the decision, has frequently been followed, including by me in Poiner v Quirk [2007] QDC 299, where I noted that it may also be relevant in a particular case to consider the gravity of the case, the amount in dispute, any public interest in the result of the particular case, or whether any question of law raised is one of wider importance than between the parties to the immediate dispute. As is my preferred practice, and I understand the usual practice in the court, the application for leave was argued together with the appeal. It is sufficient to say that an examination of the reasons was sufficient to demonstrate that there were reasonable prospects of demonstrating an error of law in the form of inadequate reasons; that Tribunals ought to give proper reasons for their decisions may be said to give rise to some principle of general importance. It is therefore appropriate to give leave to appeal. Reasons for decisions: the law [4] Section 91(1)(b) of the Act requires that a decision of the Tribunal that finally decides the matter the subject of the proceeding must state the reasons for the decision. In any case, given the nature of the process conducted by the Tribunal, and the existence of a right of appeal, there would be an obligation arising at common law to give reasons.2 Inadequacy of reasons constitutes an error of law. 3 The content of the requirement to give reasons was considered by the Court of Appeal in Drew v Makita (Australia) Pty Ltd [2009] QCA 66. Muir JA with whom the other members of the court agreed, set out at [58] the various justifications given for the requirement to give reasons, including that their absence leaves the losing party with a justifiable sense of grievance through not knowing or understanding why that party lost, and to facilitate or not frustrate a right of appeal. His Honour recognised that what is required will vary according to the circumstances but cited with approval the statement of McHugh JA4 that: “It is necessary that the essential ground or grounds upon which the decision rests should be articulated.” [5] He also cited a passage in the judgment of Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith5 that the decision-maker “should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning process which led him to those conclusions.” He quoted a passage from a judgment6 where Meagher JA identified three fundamental elements of a statement of reasons: “First, a judge should refer to relevant evidence. … Secondly, a judge should set out any material findings of fact and any 2 cf RES 1 v Medical Board of Queensland [2008] QCA 152 at [70]. 3 Camden v Mckenzie [2007] QCA 136 at [29]. 4 In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280. 5 (1983) 48 ALR 500 at 507. 6 Beale v GIO of NSW (1997) 48 NSWLR 430 at 443-4. -- 3 of 15 -- 4 conclusions or ultimate findings of fact reached. … Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.” [6] His Honour noted that that approach did not have to be applied rigidly, but it provided useful guidance. In that particular matter the appeal succeeded on the ground that the reasons given by the trial judge for his finding on the issue of liability were inadequate, and a new trial on that issue was ordered. That was an industrial accident case where the plaintiff had no recollection of just how the accident happened, and depended upon the evidence of various experts who put forward various theories as to how the accident could have happened. His Honour said at [45] of the reasons in that matter: “The primary judge made no reference to and did not discuss: any inconsistencies in the evidence of any witness; the reliability, weakness or strength of the evidence of any witness; whether the evidence of one expert was to be preferred over the other and if so, why.” [7] The fact that the reasons are those of a Tribunal required to conduct its proceedings with as little formality and technicality and with as much speed as the requirements of the Act and a proper consideration of the matters before it permit (s 47(3) of the Act), is a relevant consideration in determining whether the reasons given by the Tribunal were adequate: Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462. The majority in a joint judgment said at p 485: “The question whether reasons are ‘adequate’ falls to be considered in the context afforded by the nature of the question which has to be decided and other factors, including the functions, talents, and attributes of the tribunal members or the individual in whom the duty of deciding questions of that kind has been vested.” [8] In the present case, the Tribunal Member was a senior member of the junior Bar. This is not a case therefore where the reasons are those of someone lacking legal qualification, who might not be expected to be as familiar with the content of the obligation to give reasons. [9] It may be noted as well that in the same case Fitzgerald P, who dissented, said at p 477 of the various statements of principle in this area: “There have been many attempts to elaborate; indicating for example, the need for findings of fact, usually related at least in broad terms of the evidence on which each finding is based, and an explanation of the reasoning process; vague general statements, or unexplained conclusions are not sufficient.” [10] That passage was cited with approval by the Court of Appeal in Suncorp Insurance and Finance v Hill [1998] QCA 112 at pp 14-15 and in Bawden v ACI Operations Pty Ltd [2003] QCA 293 at [29]. -- 4 of 15 -- 5 The Tribunal’s reasons [11] The reasons in the present case contained an introduction which very briefly summarised the competing positions, then set out some factual matters said to be undisputed by way of background, and identified (without resolving) a dispute as to who was responsible for ensuring that relevant plans and specifications were provided and that the result satisfied legal requirements. There was then a summary, headed “Scope of the Works”, of some other factual matters leading up to the work, and to the development of the dispute after the point when the respondent considered he had brought the works required under the contract to completion. [12] This recorded that in the course of the development of the dispute, an issue emerged between the parties as to whether the works were defective because they had been constructed in a way which did not leave a minimum of two metres of head height (that is, two metres clearance between the floor and any part of the roof) at a particular point. After giving more details of the development of the dispute, the Tribunal Member said at [45]: “This proceeding presents a number of issues for determination by the Tribunal. Some have been formulated by the applicant and are set out herein. For the reasons which follow it is not necessary for me to consider all of them.” [13] The first issue identified was “when was the final instalment amount intended to become due and payable by the first respondent to the applicant.” Reference was made to the terms of the contract which provided that “an amount due [under the contract] is to be paid within 14 days after the [respondent] gives the [appellants] written notice that the stage is complete.” Various submissions by the respondent were recorded, including that the relevant notice was constituted by either the giving of the final inspection certification by All Construction Approvals (“ACA”) or service of the application and the statement of claim of the proceeding in the Tribunal, on 11 January 2008. [14] ACA appears to have been first mentioned in the Reasons at [9], where it was said that at the time of the contract between the parties the respondent was instructed to liaise with that firm throughout the course of structural repair works and for building certification purposes. The Tribunal had earlier said, and presumably found, that a representative of ACA had issued a final inspection certificate on 26 April 2007 ([26]), although on 6 July 2007 ACA purported to revoke the final certificate: [31]. The reasons record that the appellants “contend that the head height as constructed did not comply with the contractual obligations, the final inspection certificate was revoked and the applicant is not entitled to be paid.” The Tribunal Member then said at [52]: “In my view it was a term of the contract that the final instalment was due and payable 14 days after written notice of completion is given to the first [appellant]. The giving of the final inspection certificate was such written notice.” [15] The Tribunal Member then went on to the next issue. As a means of determining the first issue identified by the Tribunal Member, paragraph 52 leaves something to be desired. In the first place, it does not contain a finding of when the final -- 5 of 15 -- 6 instalment amount became due and payable to the respondent. It may be possible by reference to other things said in the reasons to work out a date from what was said in paragraph 52, but that strikes me as unsatisfactory. It also does not contain any explanation of how the conclusion was arrived at, that the notice of completion issued by ACA amounted to the respondent’s giving the appellants written notice that the stage was complete. It may be that the Tribunal Member was saying that the contract did not require notice be given by the respondent, but that it was sufficient that someone gave notice to the first appellant, and that was what had occurred. If so, no explanation was given as to the reasoning process by which that interpretation was derived from the terms of the contract. [16] In addition, the Tribunal Member has said nothing to indicate why he rejected the submissions advanced by the respondents, as recorded in [51]. Presumably they were rejected, but no reasons were given for rejecting them. The submissions raise two issues which are at least potentially of some substance: that the work was not completed because of a significant departure from the requirements of the plans (the head height point), so that money under the contract was not payable regardless of whether the certificate was given, and that the certificate had subsequently been revoked. The former would appear to require some analysis of the terms of the contract, while the latter some consideration of whether, if the effect of the contract was that an entitlement to payment was dependent upon the grant of a certificate by a third party, the third party was able to revoke a certificate which had been granted, and what effect that would have on any entitlement to payment. Those matters were not addressed in the reasons. [17] The second issue was then identified as “whether, in the events that happened, the final instalment amount should be deemed, on the true construction of the contract or as a matter of law, to have become contractually due and payable by the first [appellant] to the [respondent].” It is not entirely clear what issue was identified here; the reasons in paragraphs [53]-[63] sets out various submissions of the respondent, which appear to involved the development of an argument that he was entitled to be paid the contractual sum anyway even if the work had not been completed because any deficiency in the work was the fault of the appellants rather than his fault. No submissions in relation to this issue on the part of the appellants are recorded, but it appears that the Tribunal Member considered this issue did not have to be determined, since he said at [64]: “In my view the notice spoken about earlier is the trigger for payment and since I have found that notice was given the applicant is entitled to the final progress payment.” [18] The next issue identified was: “whether the head height works formed part of the works originally contracted to, or whether they were a variation of those works.” This appears to be a reference to the issue between the parties identified earlier, as to when a particular notation was placed on the plans which identified the work to be done. One of those plans, Plan 3A, 7 has a handwritten note on it “minimum head height to be 2 m[etres]” with an arrow going from another note “check compliance of roof clearance to head height” to a particular point. [19] The work involved repairs to a two-storey wooden building (flats) which was of slightly unusual construction; the basic structure was essentially square, with what appears to be a partly enclosed balcony on one side with a two-storey “ablution 7 Statement of respondent: Exhibit PDG16. -- 6 of 15 -- 7 block” constructed on the outside of the balcony. The main structure had a hipped roof, but there was a separate hipped roof over the ablution block, with the result that the two rooves met at a valley which ran between the main structure and the ablution block.8 The reference to a minimum head height was no doubt to ensure that, however the valley was constructed, there was a minimum clearance of two metres between whatever was built there as part of or to support the valley and the floor of the veranda at that point. [20] The Tribunal said [19] that “there is some conflict in the evidence as to when the notation concerning the minimum head height in fact came to be made on Plan 3A.” 9 Reference was made to some documents, one of which suggested that the notation was made as part of the certification and approval of the plans by ACA (as a private certifier under the Building Act 1975) [20], and another that suggested the notation was present on a version of the drawings that appeared to precede that endorsement: [21]. No reference was made to the evidence of any witnesses in relation to this point, though there was such evidence before the Tribunal. 10 [21] The reasons under this heading contain a reference to some matters which do not appear to be relevant to this issue, but rather relate to the development of the dispute between the parties, then record at [74] the contention of the appellants that under the initial contract the respondent was to ensure that the roof would achieve the minimum height clearance of two metres, and at [75] the respondent’s assertion that the requirement did not come to be made until some six weeks after the initial contract was signed. The Tribunal Member then said at [76]: “In my view the contract did not include the additional work such that the roof would achieve a minimum head height clearance of 2 metres. On the evidence I accept the head height was introduced after the contract was formed and is properly to be regarded as a variation.” [22] That is a finding in favour of the respondent, but it seems to me that it is devoid of any expression of reasons. There is no identification of what the relevant evidence was, or any reasons given for accepting the evidence, that this annotation to the plan was made after the contract was formed, which was said to have been accepted. This seems to me an excellent example of an “unexplained conclusion”, which has been said to be inadequate as a statement of reasons. There were really two issues that arose here: was this note on the plans at the time the contract between the parties was made, and (given that the plans had not been certified and approved at that stage) 11 what was to occur if the plans as certified differed from the plans attached to the contract. 8 See also Plan 4A within Exhibit PDG18, which (for what it is worth) seems to me to show something different from what, according to the drawing of the engineer, attached to Exhibit B3, was actually constructed. 9 See also reasons [78] where a submission by the respondent that there was a “real inconsistency in the evidence” on this point was noted, but the inconsistent evidence was not identified, nor was its substance recorded. 10 e.g. Statement of respondent para 62. I expect there was also some oral evidence about this, although presumably the best person to say when this was done was Mr Maddocks, the engineer, and I do not know if he gave evidence. 11 This appears to follow from the finding that the contract was made on or about 7 December 2006 and the certification and approval occurred on 22 January 2007. -- 7 of 15 -- 8 [23] Since a building is required to be constructed in accordance with approved plans, logically the plans should be approved before the contract to enter into the building work is made, so that the contract can identify the work by reference to plans which have been approved. This appears to have been the issue raised earlier, but not as far as I can see resolved by the Tribunal: was it the respondent’s obligation to construct the works in accordance with plans as approved, so that in effect the respondent ran the risk that additional requirements might be introduced prior to approval of the plans, or was any additional requirement introduced prior to approval of the plans to amount to an extra for which the appellants were responsible? That issue does not seem to have been resolved nor any justification given for not resolving it; that is a further deficiency in the reasoning process. [24] The next issue identified was: “Whether, by their entry into the contract, the parties objectively intended that the applicant would ensure that the configuration of the reconstructed roof would achieve a minimum head height clearance of 2 metres around the perimeter of the roof.” [25] Again, I have some difficulty in identifying just what the true issue was here. The Tribunal Member appears to have treated it as an issue of whether the effect of constructing the works in accordance with the original plans without the annotation in relation to head height clearance was that less than two metres head height clearance would be provided at this point. The reasons record submissions from the respondent that such head height would not be achieved by building in accordance with those plans, and that that was shown by the fact that the building constructed in accordance with those plans did not achieve the two metre head height clearance, both of which propositions were said to have been accepted by the Tribunal Member: [79]. This was said to support the respondent’s submission as to the term of the contract, as was the proposition that the detail subsequently provided by the engineer to achieve the stipulated clearance showed a different configuration was necessary. That argument was also accepted. The Tribunal Member did not record any submissions in relation to these matters by the appellants, but simply stated at [81]: “I find that the contract properly construed did not cover minimum head eight of the two notices.”12 [26] This seems to be simply a finding that putting the note about a minimum head height clearance of two metres on the plan had the effect of changing it in some way, that is, required that something be done differently in order to satisfy that requirement from simply constructing the rooves in the way indicated by the plan. If this were the only deficiency in the reasons, I do not think that this deficiency is so inadequate as to amount to an error of law; the major practical difficulty lies in identifying just what it is that the Tribunal has decided. [27] The next issue identified was expressed as: 12 sic – presumably this is “properly construed” as a finding that the plans in their original form did not lead to a state of construction which produced a minimum head height clearance of two metres. -- 8 of 15 -- 9 “whether, by their entry into the contract, the parties must be taken to have agreed that the applicant would ensure that all components and other materials employed in the reconstruction of the roof would be new components and materials supplied by the applicant.” [28] This appears to relate to an issue arising under of the counterclaim, where it was alleged that some of the work done was defective because material had been reused. I should say perhaps by way of background that the work involved repair work, particularly the reconstruction of the roof, on the appellant’s property, which repairs had been made necessary by damage caused by Cyclone Larry. Again under this heading the Tribunal Member summarised various submissions by the respondent (no submissions on behalf of the appellants were identified), before the Tribunal concluded at [84]: “In my view the contract properly construed provided for a new fully trussed roof structure with tie-down rods that complied with the current Building Code. That is the tie-down requirements and trusses complied with the Code. [85] In my view the materials which the contract covered are goods supplied by the applicant and did not require the use of new material which was otherwise available.” [29] Again, this amounts to an unsupported conclusion, without any explanation of how that interpretation was arrived at. For example, one issue which arises from the terms of the contract, which was not addressed, was that Clause 1(c) of the contract conditions13 provides that “the trade contractor [ie the respondent] must supply everything necessary to carry out the trade works.” The term “trade works” was defined in Clause 19 as “the work to be carried out by the trade contractor as described in the Schedule.” This seems relevant to the effect of Clause 4(ii) by which the respondent warranted that “materials supplied by it would be suitable, new and free of defects”,14 and the respondent’s submission to the Tribunal that this only applied to materials in fact supplied. Consideration ought to have been directed to the question of whether the effect of Clause 1(c) was that the respondent was required to supply everything necessary to do the work, so that everything necessary to do the work was required to be (relevantly) new. In circumstances where the process of reasoning which led the Tribunal to the conclusion stated in paragraphs 84 and 85 has not been exposed, it is not clear whether that conclusion was based on the interpretation of the contract, and in what way (a matter of law), or on some finding of fact on the part of the Tribunal. This is a matter of some importance given the limited nature of the appeal available under s 100 of the Act. Again, I regard this aspect of the reasons as inadequate. [30] The next issue identified was “whether the minimum roof clearance head height of 2 metres stipulated on the plan was in fact achieved.” The Tribunal Member said that he did not find it necessary to decide this issue: [86]. Given the implicit finding that, if there was a head height of less than two metres, it was the appellants’ problem, that was probably strictly correct, though in the circumstances it strikes me as the sort of finding which ought to have been made on a precautionary basis.15 It 13 Taken from Exhibit PDG-05 to the statement of the respondent before the Tribunal. 14 Emphasis added. 15 In any case, if two metres clearance had been achieved, issues (c) and (d) became irrelevant. -- 9 of 15 -- 10 seems surprising that there should be any real difficulty about such a point; it should be obvious to anyone standing on the site where the lowest point was, and a tape measure should reveal the answer quickly and easily. In spite of that, the respondent advanced a submission that the evidence was unclear, which was accepted by the Tribunal. If there was an issue was to what was required by the annotation on the plan, that ought also to have been determined. [31] The Tribunal Member then addressed the counterclaim. Details of the claim and the make up of the asserted costs of remediation were set out, reference was made to the evidence relied on by the appellants in quantifying these costs, and then at paragraphs [90] to [96], extending over almost three and a half pages of single-line typed reasons, the submissions of the respondent were set out in some detail. There was no recording of any submission made by the appellants in response, or even any identification of issues relating to the counterclaim. [32] Somewhat confusingly, there are occasional statements scattered through this recitation of submissions to indicate that some particular submissions have been accepted, usually without any explanation; the one exception to that was the finding in paragraph [96](g) that the claim in relation to securing a ceiling height with a clearance of two metres was rejected “based on my earlier finding … .” The Tribunal Member at paragraph [96](a) accepted the submission that the appellants had withdrawn their claim for economic loss, at paragraph [96](d) there was a statement accepting a submission that there was no breach of contract on the part of the respondent in relation to the adequacy of bracing walls throughout the upper level of the building, and at paragraph [96](f) there was an acceptance of the proposition that “the inference is readily open that” a particular issue had been resolved between the parties, though again without any explanation for why that position was adopted, nor even a finding that the Tribunal Member in fact drew that inference. This approach is particularly puzzling, because the final conclusions suggest that the submissions which were expressly stated to be accepted were not the only submissions accepted, although ordinarily if there is a list of submissions and some are expressly said to be accepted, one would assume that the others have not been accepted. [33] The Tribunal member then stated at paragraph [97]: “In my view the counterclaim should be allowed to the following extent: (a) the cost of the supply and installation of stoves in flats 1 and 2, in the sum of $2,000; (b) the sum of $1,000 for cost of repairing damaged awnings; (c) the sum of $500 for the provision of keys for each unit; and (d) the sum of $100 for the cost of box doors and a lock on the electrical power.” [34] It would be difficult to imagine a balder statement of a conclusion, or one more bereft of reasoning. There was no reference to the basis upon which any of those findings were made, nor was there any explanation of why substantial parts of the counterclaim were rejected. It must be said that to some extent the counterclaim involved rebuilding part of the roof to overcome the problem of a lack of two metres head height, and the rejection of that part follows from the findings made -- 10 of 15 -- 11 earlier, but this is only a relatively small part of the counterclaim. The major part of the counterclaim was the cost of supplying an entirely new roof. No reason was given for the rejection of that part of the counterclaim. There may well have been a good reason for doing so, but the appellants are justifiably entitled to complain in circumstances where the bulk of the counterclaim was rejected without a word of explanation. [35] In respect of some of the items in the reasons, it cannot even be said that the explanation is simply that the Tribunal has accepted everything the respondent said. For example, the amount claimed for the cost of ensuring that a unique key was provided to each unit was $5,000; according to the reasons, the respondent’s response was that the estimate referred to an amount of $500 not $5,000, and that a reasonable allowance should not exceed $200; it is not clear that the respondent conceded that unique keys had not been provided. The Tribunal Member allowed $500 without any explanation as to why neither the appellants’ claims nor the respondent’s submission was adopted. In relation to the question of the stoves, there was no explanation for the rejection of the respondent’s point that there was no evidence that the stoves which were there were not functioning adequately. [36] Overall the reasons in relation to the counterclaim are in my opinion hopelessly unsatisfactory. I find that there was a failure to comply with the requirements of the Act and the common law obligation to give reasons, even to the extent appropriate in the circumstances given the nature of the tribunal, the nature of the proceedings, and the qualifications of the member constituting the Tribunal. It follows therefore that the matter must be reheard by the Tribunal, or rather by the Queensland Civil and Administrative Tribunal which has now superseded it. Given that the reasons consisted largely of a recitation of the respondent’s submissions, with occasional express acceptance, and with little recognition or acknowledgement of the appellants’ arguments, I think that this is one of those cases where it is appropriate that the rehearing take place before someone other than the member of the old tribunal who conducted the earlier hearing. [37] I should say one other thing about this ground before passing on to the issue about the way in which the claim for economic loss was dealt with. There were no specific submissions addressed to me as to whether the issues identified by the Tribunal as the matters appropriate for determination were in fact the matters appropriate for determination in the light of the pleadings between the parties, the evidence that was before the Tribunal, and the course of proceedings before the Tribunal. No doubt that was in part because although the record provided by the Tribunal to the court includes a CD which is supposed to contain a recording of the trial, but no transcript of this was available. Accordingly it is not possible for me to know what the course of the proceeding before the Tribunal actually was.16 [38] In the circumstances, however, I have no confidence that the Tribunal correctly identified the matters in fact in issue between the parties, nor that the Tribunal dealt with all of the issues which ought to have been dealt with. The identification of the relevant issues for determination should be done by reference to the pleadings, the 16 I have not tried to play the CD; in a previous appeal, attempts to play such a CD on such software as is available through the court computer system have been unsuccessful, and I understand that in spite of a request to the then Tribunal to provide the record of the proceeding in a form which was actually useable by the appellate court, no more useable version was provided. -- 11 of 15 -- 12 evidence and the conduct of the hearing before the Tribunal. A list of issues from one party’s submissions should not simply be accepted uncritically. That is particularly the case when the Tribunal is confronted with a proceeding where one party is represented by counsel17 and the other party is a litigant in person. When confronted with a litigant in person, it may be more difficult than usual for a court (and Tribunal) properly to identify all the matters which really are in dispute which require resolution, but that does not remove or reduce the obligation to do so. Withdrawal of the counterclaim for economic loss [39] The practical reason why the Tribunal member in making the orders made on 29 May 2009 proceeded on the basis that the counterclaim, so far as it was a claim for economic loss (ie loss of rental during the period when the premises were unavailable for rent), had been withdrawn, was that another member of the Tribunal had on 6 October 2008 made an order in the following terms: “Upon consideration of correspondence received on behalf of both respondents dated 29 September 2008, the Commercial and Consumer Tribunal makes the following orders: 1. Both respondents are granted leave to withdraw their counterclaim for loss of rent. 2. The application is to be listed for a three-day hearing in Innisfail at a time and date to be advised to the parties by the registry.” [40] Section 62 of the Act provides: “A respondent may withdraw all or part of the defence or counterclaim only with the Tribunal’s leave.” [41] Clearly therefore a respondent can withdraw a counterclaim, or part of a counterclaim. Presumably if a counterclaim includes a claim for economic loss, the claim for economic loss is part of the counterclaim which may therefore be withdrawn by the respondent. Leave, however, is required. Section 65(2) of the Act provides: “A withdrawal for which the Tribunal’s leave is required is effected by the order giving leave and a notice of withdrawal is not required.” [42] The formulation of these provisions seems to lead to the conclusion that, although the Tribunal is required to express itself in terms that it gives leave to withdraw, it is the order of the Tribunal which effects the withdrawal of, relevantly, the part of the counterclaim rather than any action on the part of the respondent. [43] The difficulty that arises in the present case, however, is that the leave to withdraw given by the order of 6 October 2008 was expressly based upon the appellants’ correspondence dated 29 September 2008. There was on the Tribunal’s file no correspondence from the appellants dated 29 September 2008. There was, however, 17 At least to the extent of preparation of submissions; the submissions on behalf of the respondent on the Tribunal file, which run for 24 pages, are signed by someone as “Counsel for the applicant”. -- 12 of 15 -- 13 a letter dated 3 October 2008 from the director of the Tribunal to the appellants referring to “your correspondence received 29 September 2008” (emphasis added) which said inter alia “It is noted that you have withdrawn your counterclaim in relation to the loss of rental income. An order recording this is enclosed.” [44] There is a letter from the second appellant, said to be on behalf of both appellants, dated 25 September 2008, which has a stamp of the Tribunal on it dated 29 September 2008. That letter was headed “Notification of withdrawal of rental income witnesses”, and the first paragraph read: “Due to time and costs involved in requesting witnesses for rental estimates, the financial hardship suffered by the respondents, the respondents have made a decision to rely on Exhibit E1A, E2A, E3A and withdraw Exhibits E4A and E5A. Consequently, no witnesses will be required for rental estimates and the amount being claimed will be adjusted and forwarded to the Tribunal by 6 October 2008.” [45] The letter then went on to deal with other matters, although it noted that the respondents were not legally represented due to financial hardship and that the loss of income from the property had significantly contributed to that situation. [46] I have looked at that correspondence, and it seems to me clear enough not only that that correspondence did not involve an attempt on the part of the appellants to withdraw any part of their counterclaim, but that no reasonable interpretation of that correspondence could have led to a conclusion that the appellants were in fact seeking leave to withdraw part of their counterclaim. The relevant part of the correspondence was concerned with the withdrawal of some evidence in support of the claim for economic loss. [47] The Tribunal file includes, among materials filed by the “respondents” (ie the appellants), Exhibit E1A, copies of four general tenancy agreements for various dates, apparently for flats in the building, Exhibit E2A which is a letter from a loss adjustor to the second appellant dated 6 October 2006 concerning an insurance claim for loss of rent, Exhibit E3A, three documents covering cheques by way of remittance to one or other appellant, said to have been reimbursement for loss of rent, Exhibit E4A, a valuation of the property as at 23 October 2007 prepared by a valuer which was based on rental income achieved for similar types of units, and containing a reference to market rental for the units, and Exhibit E5A which was an appraisal by a real estate agent of the property which had some handwritten annotations on it in relation to rent. [48] In the circumstances therefore the letter of 25 September 2008 seems to me to be abundantly clear. The appellants were giving notice that in relation to their counterclaim for loss of rent they were proposing to rely only on documents that in effect they could prove themselves, rather than documents which depended upon statements of opinion expressed by others, presumably on the basis that the ability to rely on those documents was dependent upon those others being produced as witnesses, and the appellants could not afford to do that. There is, however, nothing in the letter which indicates that they seek to withdraw that part of the -- 13 of 15 -- 14 counterclaim; 18 the position was simply that the appellants were withdrawing some of the evidence otherwise relied on. That may well have made it more difficult for the claim to succeed, but that was not a matter which justified the claim being in effect struck out summarily. I therefore cannot understand on what basis the order of 6 October 2008 was made by the Tribunal. There were no reasons given, other than the reference to the letter. [49] The question then is what the effect of the order getting leave to withdraw a part of the counterclaim was, in circumstances where there was no application for leave to withdraw part of a counterclaim. There are I think two possibilities: the order may simply be a nullity on the basis that the power to give leave to withdraw part of a counterclaim is exercisable only when there is a request from a respondent to take that step, and that did not exist, so there was no power to make the order with the consequence that the purported order is a nullity. In the alternative, the order was made on a plainly erroneous basis. Even if the question of whether there is an application by a respondent to withdraw a part of a counterclaim is a question of fact, a finding that there is such an application in circumstances where no reasonable tribunal would have reached that conclusion involves an error of law on the part of the tribunal. [50] No appeal was brought specifically against the order of 6 October 2008.19 Plainly, however, the order was interlocutory, and it affected the final decision of the Tribunal, since the Tribunal Member proceeded on the basis that because of it that part of the counterclaim had been withdrawn.20 It follows that the appellants are entitled to challenge the correctness of the interlocutory order on an appeal from the final order.21 If the order of 6 October 2008 was a nullity, of course it follows that the Tribunal Member erred in having regard to it when finally determining the counterclaim. If the order was merely wrong, there may well have been no separate error of law on the part of the Tribunal Member who finally determined the counterclaim, but in the circumstances the earlier error of law provides in my opinion a sufficient basis for setting aside that decision. [51] Even if it were not appropriate to set aside the whole of the decision anyway because of the inadequacy of the reasons, the decision on this part of the counterclaim ought to be set aside. For the purposes of the rehearing, it is sufficient if I record my finding that the order of 6 October 2008 was either a nullity or wrong in law, and direct that on the rehearing it be disregarded by the Tribunal. [52] With regard to the alternative basis advanced before me, it is I think not at all clear that the appellants ever did apply to reinstate that part of the counterclaim. The difficulty is that I have no way of knowing what happened during the hearing. Certainly there was later correspondence from the appellants to the Tribunal consistent with the counterclaim for loss of rent being still on foot. There was no concession from the respondent that there ever was an application to reinstate this 18 For what it is worth, the appellants in later correspondence appear to have proceeded on the basis that the claim for loss of rent was continuing. 19 I will assume for the purposes of this analysis that it is possible to appeal under s 100 against an order other than an order that finally decides matters the subject of the proceeding before the Tribunal. 20 Reasons para [87] note 2. 21 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [6]; Pioneer Industries Pty Ltd v Baker [1997] 1 Qd R 514; Paulger v Hall [2003] 2 Qd R 294 at [27]. -- 14 of 15 -- 15 part of the counterclaim. Although it may be said that perhaps the Tribunal Member should have been more proactive about the matter, I think it is difficult to say that there was an error of law on the part of the Tribunal Member in failing to do something which he was not asked to do. Assuming as I must that there never actually was an application to the Tribunal Member to reinstate this part of the counterclaim, there can have been no error of law in failing to take such a step. [53] Nevertheless, for the reasons stated the appeal must be allowed, the order of the Tribunal of 29 May 2009 is annulled, and the case is remitted to the Tribunal for rehearing, in respect of which I make the following directions: (a) the rehearing is to take place before a person other than the member of the Commercial and Consumer Tribunal who conducted the original hearing; (b) on the rehearing, the Tribunal is to disregard the purported order of 6 October 2008. [54] As between the parties, the respondent must pay the appellants’ costs of the appeal to be assessed. Given that it was hardly the respondent’s fault that the reasons of the Tribunal were so inadequate, I would be willing if asked to give the respondent an indemnity certificate under the Appeal Costs Fund Act. -- 15 of 15 --