Betnale Pty Ltd t/a Superior Granny Flats v Jameson - [2023] QCATA 154

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Betnale Pty Ltd t/a Superior Granny Flats v Jameson [2023] QCATA 154

PARTIES:

BETNALE PTY LTD T/A SUPERIOR GRANNY FLATS

(applicant/appellant)

v

DALE ANTHONY JAMESON

(respondent)

APPLICATION NO:

APL238-22

ORIGINATING APPLICATION NO:

MCD 50021 of 2022

MATTER TYPE:

Appeals

DELIVERED ON:

5 December 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member WA Isdale

ORDERS:

Application for leave to appeal dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an application was made claiming invoices paid by the applicant were fraudulently submitted by the respondent – where the Adjudicator adjourned the initial hearing to a later date to allow the respondent more time to submit evidence to the Tribunal – where the applicant/appellant seeks leave to appeal on the grounds of fresh evidence – where fresh evidence is that which could not have been provided at the time of the initial hearing

R v Sharkey [2013] QCA 259

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The company seeks leave to appeal a decision by an Adjudicator dismissing its application for the return of money paid to Mr Jameson, a carpenter.
The trading name of the company describes what it produces. Mr Jameson provided invoices to the company which it paid. It maintained that it ended the contractual relationship with Mr Jameson and that he submitted invoices fraudulently. Accordingly, it claims that the money it paid in regard to invoices tainted by fraud should be returned to it, with interest and costs incurred. The totally amount is a little less than $10,000.
The matter came before the Adjudicator on 18 July 2022. At that time Mr Jameson was given further time to respond to material from the company and the matter was adjourned to 1 August 2022.
The proceedings on 18 July 2022 and on 1 August 2022 were conducted by telephone link and the transcripts record what was said.
On 18 July 2022, the Adjudicator told the parties that they each bear the onus of establishing their case.[1]
[1]Transcript of Proceedings, 18 July 2022, 1-8, lines 41 to 43.
On 1 August 2022, the Adjudicator asked Mr Bull, who represented the company, if there was a statutory declaration from Mr Ryan Cook, who might have been able to provide relevant evidence.[2] Mr Bull replied that he did not have one, but he could get one.[3]
[2]Ibid, 1-5, line 41.
[3]Ibid, 1-5, line 43.
The Adjudicator then made it clear that there would not be any further adjournment and that a decision would be given on that day. In relation to evidence from Mr Cook, Mr Bull later said that “We didn’t think it’d be relevant at the time. Like, we thought we had enough with all the evidence.”[4]
[4]Ibid, 1-8, lines 24 to 25.
After hearing the evidence that the parties chose to put before the Tribunal at the adjourned hearing, the Adjudicator gave a decision.
The decision deals comprehensively and clearly with the matter before the Adjudicator and exposes the reasoning process that was followed. The Adjudicator was not satisfied, on the evidence put forward, that it had been established to the required standard of proof that Mr Jameson, “was a dishonest individual who had fraudulently produced invoices for payment.”[5]
[5]Ibid, 1-23, lines 31 to 32.
The Adjudicator specifically referred to, “… the incompleteness and insufficiency of the evidence in this case…”.[6]
[6]Ibid, 1-23, lines 38 to 39.
The Adjudicator noted the allegation of fraud or dishonesty,[7] allegations not made in most civil disputes.[8]
[7]Ibid, line 43.
[8]Ibid, 1-23, lines 42 to 43.
The allegations were serious, and the Adjudicator was not satisfied that there was sufficient proof of such conduct. Accordingly, the application was dismissed.[9]
[9]Ibid 1-23, lines 44 to 45.
The company will require leave to appeal this finding and has provided material in support of it.
The notice of appeal contains grounds the effect of which is that as the Adjudicator gave an adjournment for the benefit of Mr Jameson on 18 July 2022, it should have been given one on 1 August 2022 for it to obtain some more evidence. It seeks to have the opportunity to introduce the evidence it has now provided.
On 16 September 2022, this Tribunal gave directions in this matter. Among them was the following:
(a)If either party seeks leave to rely upon evidence or a document that was not before the Tribunal below (‘fresh evidence’), they shall file in the Tribunal one (1) copy and serve on the other party one (1) copy of an application for leave to rely upon fresh evidence, together with a copy of the fresh evidence. The application shall include submissions about:
(i)      Why the fresh evidence was not available to the Tribunal below;
(ii)      Why the fresh evidence is important; and
(iii)     Why the fresh evidence should be accepted.
(b)If an application for leave to rely upon fresh evidence is filed, any other party may file and serve written submissions in response within 21 days of the application for leave to rely upon fresh evidence is filed.
(c)Unless otherwise ordered, any application for leave to rely upon fresh evidence will be heard and determined together with the application for leave to appeal/appeal.
On 20 October 2022, the company provided, by e-mail, its proposed material. In order to be brought into account in this dispute it must be “fresh evidence”. Fresh evidence is evidence that did not exist at the time of the hearing or could not have then been discovered with reasonable diligence.[10]
[10]R v Sharkey [2013] QCA 259 at [8].
The material includes the following Statutory Declarations as well as other material:
1.   Justin S Kean  dated 13 October 2022
2.   Mitchell McMillan              dated 29 September 2022
3.   Judd Brown  dated 5 October 2022
4.   Brad Goffman  dated 28 September 2022
5.   Ryan Cook  dated 20 October 2022
6.   Mark Bullock  dated 27 September 2022
7.   Alex Sela  dated 6 October 2022
8.   Brian Wills  dated 28 September 2022
There is nothing provided about why this evidence was not available to the Tribunal on 1 August 2022. There is no explanation of why it could not, with reasonable diligence, have been provided to the Tribunal on 1 August 2022.
As Mr Bull said on 1 August 2022, “Like, we thought we had enough…”.[11]
[11]Transcript of Proceedings, 1 August 2022, 1-8, lines 24 to 25.
The Adjudicator made clear on 18 July 2022 that the applicant bears the onus of proving its case.[12] Both parties had the benefit of the adjournment on 18 July 2022 and must bear the responsibility for how they chose to use the time until the hearing on 1 August 2022. It is not relevant that Mr Jameson produced material close to the hearing date as the application was brought by the company and it had to prove its case.
[12]T (n 1), 1-8, line 41.
The material provided by the applicant does not make a case for why the material now sought to be relied on was not available at the hearing.
The hearing has come and gone and cannot be re-run when a party may regret the decision of what evidence to rely on.
The Tribunal, for the reasons which have been given, has no basis upon which to grant the application for leave to appeal. The evidence must remain as it was before the Adjudicator.
Accordingly, the application for leave to appeal received on 15 August 2022 in this matter is dismissed.

Order

Application for leave to appeal dismissed.