Alexandria v Thiele

Case [2018] QCATA 174

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Alexandria v Thiele  [2018] QCATA 174

PARTIES:

DIERDRE ALEXANDRIA
 (appellant)
v

SHAWN THIELE

(respondent)

APPLICATION NO:

APL076-18

ORIGINATING APPLICATION NO/S:

MCDO19 of  2017 (Beaudesert)

MATTER TYPE:

Appeals

DELIVERED ON:

19 November 2018

HEARING DATE:

13 November 2018

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL – GENERAL PRINCIPLES – minor civil dispute – new evidence on appeal – whether new evidence should be admitted – whether evidence fresh – where interlocutory order against new evidence – where new evidence would be contrary to interlocutory order – where new evidence contrary to the `one expert rule’ – nature and limitations of application for leave to appeal – whether appellable error shown – where appellable error not shown

Queensland Civil and Administrative Appeals Tribunal Act 2009 (Qld), s 3, s 4, s 143
Queensland Civil and Administrative Tribunal Practice Direction No 4 of 2009
Queensland Civil and Administrative Tribunal Regulation 2009 (Qld), s 8, s 10
Uniform Civil Procedure Rules 1999 (Qld), r 423

Allianz Australia Insurance Limited v Mashagheti [2017] QCA 127; [2018] 1 Qd R 429
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Cosgrove v Johns [2002] 1 Qd R 57; [2002] QCA 157.
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Lawless v The Queen (1979) 142 CLR 659
Pearce v Western Australia [2014] WASCA 156
R v Sharkey [2013] QCA 259
Snell v Morgan [2011] QCATA 316
Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. This dispute concerns the supply and installation of rain water tanks at Pearson Court, Cedar Grove by the respondent (`Thiele’), a licensed plumber, on the property of the appellant (`Alexandria’) in January-February 2017.

  2. In December 2016 or January 2017 two metal tanks on the property, and a related pump,  were irretrievably damaged by hail.  Thiele issued two quotations to Alexandria and her insurer on 23 January 2017. He offered to replace the tanks for $6.875 and the pump for $925 (including GST).

  3. These quotations were accepted by the insurer, which credited the appropriate amounts to Alexandria’s account.

  4. To this point there was no mention of the material – metal or PVC – of which the new tanks would be made. However, when Thiele presented his account for $7,231.00[1] on 22 February 2017 the new items were described as `Poly Rain water tank[s]’.

    [1]With the addition of extra labour and small amounts for `materials’.

  5. Some two weeks later Alexandria complained that the concrete slabs on which the old tanks had rested were not large enough to accommodate the new ones.[2] Meanwhile she retained the insurance moneys in her account. On 21 March 2017 Thiele demanded payment within…

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Details
AGLC
Alexandria v Thiele [2018] QCATA 174
Case
[2018] QCATA 174
Decision Date

CaseChat Overview and Summary

In the case of Alexandria v Thiele, Alexandria sought leave to appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT). The dispute originated from a civil matter, with Alexandria appealing the QCAT’s decision that dismissed her claim against Thiele. The primary issues before the court were whether new evidence presented by Alexandria should be admitted into the appeal and if the adjudicator erred in accepting the Queensland Building and Construction Commission (QBCC) report. The court had to determine the admissibility of new evidence and the limitations of applications for leave to appeal.

The court found that the new evidence presented by Alexandria, consisting of reports from C & P and Gary Booth, was not admissible because it did not meet the criteria for being fresh and was contrary to the tribunal’s directions prohibiting reliance on evidence not before the original decision maker. Moreover, admitting this evidence would have violated the 'one expert per party' rule, which the tribunal adheres to for economical, informal, and quick procedures. The court also dismissed Alexandria’s argument regarding the qualifications of the QBCC report’s author, noting that this issue was not raised during the trial and lacked credible evidence or qualified expert support.

The court concluded that Alexandria's application for leave to appeal did not demonstrate an appellable error. Therefore, the application for leave to appeal was dismissed. The court emphasized that the nature and limitations of applications for leave to appeal should be strictly observed, and the tribunal’s directions regarding new evidence were correctly followed.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A curious feature of this case that each of the two conflicting reports in evidence was obtained by the same party. With professional assistance, I suspect that a different course may have been taken.New Evidence Tendered Alexandria now seeks to introduce new evidence, namely the C & P report of 16 January 2018 and the report of Gary Booth, dated 20 March 2018. This material is `new’, in the sense that it was not in evidence before the primary tribunal. But generally, to be admissible at this stage evidence must not only be `new’ but also `fresh’. Evidence, to be `fresh’, must have been non-existent at the time of the trial, or not then discoverable by reasonable diligence.[18] There is no attempt to show that the evidence of C & P, or of Booth, satisfies those tests. Indeed, it is apparent that they deal with matters that were easily examinable before the trial, and were so examined by the QBCC and Parallel Plumbing.[18]Cosgrove v Johns [2002] 1 Qd R 57; [2002] QCA 157; R v Sharkey [2013] QCA 259 at [8]; Lawless v The Queen (1979) 142 CLR 659 at 674-676; Pearce v Western Australia [2014] WASCA 156 at [27]-[28]. When directions were given for the conduct of this appeal it was expressly ordered that `[n]either party will be allowed to rely on any evidence which was not before the original decision maker without leave of the appeal tribunal.’[19] This is an implicit recognition of the general law on new evidence.[19]Appeal Tribunal Directions 14 June 2018 paragraph 4. Furthermore, if the new evidence were admitted, it would contravene the `one expert per party’ rule[20], which applies in this tribunal as in the courts.[21] That rule is entirely consonant with the tribunal’s statutory duty to follow procedures that are `economical, informal and quick’.[22] Besides, law suits are not to be won by a mere head count of witnesses. [20]Uniform Civil Procedure Rules 1999 (Qld) r 423(d); Allianz Australia Insurance Limited v Mashagheti [2018] 1 Qd R 429; [2017] QCA 127 at [50].[21]QCAT Practice Direction 4 of 2009.[22]QCAT Act s 3(b), s 4(c).Applicant’s Submissions on Appeal In oral argument on appeal, Alexandria made two main submissions, emphatically and repetitively: First, that her insurer treated her unfairly. That is an issue between her and the insurer, not between her and Thiele. If she wishes to pursue this issue without legal expenses, she might resort to the insurance industry’s complaints bureaux.[23][23]Namely her insurer’s Internal Dispute Resolution Process or, on appeal, the Australian Financial Complaints Authority. Second, that the adjudicator should not have accepted the QBCC report, because `to the best of [Alexandria’s] knowledge and belief, the author of the QBCC report was neither a licensed plumber or plumbing inspector’[24]. This point was not raised, let alone pressed at the trial. No credible source for this assertion is given, and no suitably qualified expert was called to support it. Nor was any attempt made to bring the inspector before the adjudicator to comment on this aspersion. This belated submission, based on nothing but hearsay, is rejected.[24]Application for leave annexure page 3 paragraph 22.Nature and Limits of Applications for Leave

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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