Contract Design Staff v Lomas

[2011] QCATA 150

CITATION: Contract Design Staff v Lomas [2011] QCATA 150

PARTIES:	Contract Design Staff
v
Mr Paul David Lomas

APPLICATION NUMBER:            APL042-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON:   21 June 2011

DELIVERED AT:   Brisbane

ORDERS MADE:      Leave to appeal refused.

CATCHWORDS: 

REOPENING – where application for reopening refused – where application for leave to appeal on same grounds as reopening

Queensland Civil and Administrative Tribunal Act 2009, ss 137, 138, 139(5), 142(3)

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 197 ALR 201

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

Mr Oliver

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me.  I have had the benefit of reading her reasons in draft.  I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

1. Mr Lomas engaged Contract Design Staff to prepare and submit plans to Council for the renovation of his property.  The plans were rejected by Council and Mr Lomas was unable to get Contract Design to alter the plans so that they would comply with Council’s requirements.  Mr Lomas brought proceedings in the minor civil disputes jurisdiction of the tribunal for a refund of the amounts paid by him to Contract Design and was wholly successful.

1. Contract Design has appealed the learned Adjudicator’s decision on these grounds:

a)    It did not appear at the hearing because it had not received the notice of hearing.

b)    Mr Lomas received plans in accordance with the agreement.  Contract Design had already provided two draft plans.

c)    Contract Design could not have been aware of the overland flow path problems until the plans were submitted to the certifier.

d)    Contract Design did not allow for “approved plans” in its costs or invoices.

1. Because this is an appeal from the tribunal’s minor civil dispute jurisdiction, leave is necessary.  The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1]  Is there a reasonable prospect that the applicant will obtain substantive relief?[2]  Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3]  Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]

   [1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]        Cachia v Grech [2009] NSWCA 232 at [13].

   [3]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

   [4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

1. Contract Design’s first ground of appeal is in effect, an application for leave to appeal the decision not to reopen the proceedings. Section 139(5) of the QCAT Act makes it clear, however, that no appeal lies from a decision about a reopening.

1. The balance of the appeal is an analysis of documents, not all of which were available to the tribunal at the hearing. The tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined: ss 137 and 138 QCAT Act. Contract Design has provided no explanation as to why this material was not available earlier save that it was not aware of the hearing. The tribunal has already indicated its view on this explanation. In the circumstances, the appeal tribunal will not allow Contract Design leave to file fresh evidence.

1. 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 underlining it.[5]

   [5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.

1. An examination of the transcript shows that the learned Adjudicator took care to examine Mr Lomas’ claim and satisfy herself that the amounts claimed had been paid.  The evidence available to the learned Adjudicator was capable of supporting her findings.  In particular, I note that the invoices from Contract Design refer specifically to lodgement with a certifier and filling in the necessary Council forms (invoice 2666 dated 17 February 2007) and certifiers and council’s fees (invoice 3004 dated 21 August 2007).  These documents alone tend to weigh against the explanation offered by Contract Design.

1. There is no reasonable case of error in the learned Adjudicator’s decision; there is no reasonable prospect that Contract Design will be granted substantive relief on appeal; leave is not necessary to correct a substantial injustice and there is no question of general importance for which the public requires a decision of the appeals tribunal.  Leave to appeal should be refused.