Body Corporate for Evilina v Guinan

[2018] QCATA 23

CITATION: Body Corporate For Evilina v Guinan [2018] QCATA 023

PARTIES:	Body Corporate For Evilina CTS 2606 (Applicant)
V
Anthony Guinan & Marian Guinan (Respondent)

APPLICATION NUMBER: APL221-17

MATTER TYPE: Appeals

HEARING DATE: 31 January 2018

HEARD AT:

DECISION OF: I. Hanger AM QC

DELIVERED ON: 31 January 2018

DELIVERED AT: QCAT
259 Queen Street
Brisbane

ORDERS MADE:    

1.    Leave to the appellant to file the documents described as BC19 – BC26.

2.    Leave to appeal and amend grounds of appeal to add:

(a)   the appellant was deprived of natural justice in that the respondent provided to the Adjudicator documents identified as BC19 to BC26 without providing copies thereof to the appellant and without advising the appellant that he had done so.

3.    Leave to appeal is granted.

4.    Appeal allowed.

5.    Set aside the decision of the Adjudicator and remit the matter to the Adjudicator for reconsideration, taking into account any submissions the appellant may make in relation to documents BC19 – BC26, together with any new evidence that the Adjudicator decides to admit in relation to the said documents.

CATCHWORDS:  Natural justice

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Body Corporate for Evilina CTS 2606

RESPONDENT: Anthony Guinan & Marian Guinan

REASONS FOR DECISION

1. This is an application for leave to appeal and appeal by a Body Corporate from the decision of an Adjudicator.  The Adjudicator ordered the Body Corporate to engage a contractor to undertake certain work in relation to waterproofing.

2. The parties were self-represented and had each filed their submissions on the application for leave to appeal and appeal.  At the outset of the hearing today, Ms Nino, representing her Body Corporate, complained about the fact that she had not been provided with certain documents which the respondent had provided to the Adjudicator prior to his giving his decision.  She handed up a bundle of documents which contained the reference numbers BC19, BC20, BC21, BC22, BC23, BC24, BC25 and BC26.  (The documents).  She says that she did not receive the documents until after filing the Notice of Appeal.  She was somewhat vague about BC19, which is a document addressed to her so she probably did receive it.  The same comment applies to BC21, but it is common ground that the respondent, Mr Guinan, sent certain of the documents to the Adjudicator without providing a copy of them to the appellant.  These documents contain some material that might be considered relevant by the Adjudicator and a great deal that might be considered irrelevant.  The content of the documents might have been the subject of a challenge in evidence or in final submissions, but the Appellant was deprived of the opportunity to make submissions or rebut or challenge material in the documents. Of course, the Adjudicator probably did not know of the fact that the documents had not been provided to the other party.  Further, I make no criticism of Mr Guinan for his behaviour, he did not know any better.

3. However, the plain fact of the matter is that there was a denial of natural justice.

4. Having read the documents, I am unable to say that the content of the documents would have had no effect on the Adjudicator.  None of this had been raised in the appeal, although Ms Nino told me that she raised it on a directions hearing.  I am mindful of the fact that the parties are unrepresented and I take account of the objects of the QCAT Act. 

5. I give leave to the Applicant to file the documents which she presently identifies as BC19 to BC26.  I give leave to the Applicant to add a ground of appeal as follows:

   a)   the appellant was deprived of natural justice in that the respondent provided to the Adjudicator for his consideration documents identified as BC19 to BC26 without providing copies thereof to the appellant and without advising the appellant that he had done so.

6. I allow the application for leave to appeal and the appeal on this ground.  I set aside the decision of the Adjudicator and remit the matter to the Adjudicator for reconsideration, taking into account any submissions the appellant may make in relation to documents BC19 – BC26, together with any new evidence that the Adjudicator decides to admit in relation to the said documents.

7. The respondent had no objections to the orders I propose to make.

   .....................................................................

   Signed: I. Hanger AM QC

   Member