Davis v Gray

Case [2018] QCATA 147

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Davis v Gray [2018] QCATA 147

PARTIES:

VICKI DAVIS
(applicant/appellant)
v

JOHN NORMAN GRAY

(respondent)

APPLICATION NO/S:

APL133-17

ORIGINATING APPLICATION NO/S:

BDL067-16

MATTER TYPE:

Appeals

DELIVERED ON:

28 September 2018

HEARING DATE:

8 November 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding
Member Howe

ORDERS:

1.   The appeal is allowed.

2.   The Tribunal’s decision dated 31 March 2017 is set aside.

3.     (a)   The Appeal Tribunal reserves the making of further orders in disposition of the appeal pending further submissions from the parties;

(b)    Both parties must file and serve any submissions to be relied upon in respect of  the appropriate disposition of the proceeding, including in response to the issues set out by the Appeal Tribunal in paragraphs 67 and 69 of its reasons for decision dated today, by 4.00 pm on 19 October 2018;

(c)    Unless otherwise ordered, the Appeal Tribunal will make its further final orders on the papers and without a further oral hearing, not before 4.00pm on 19 October 2018.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – where the Tribunal determines issues for decision from the materials before it – where cases presented by the parties unclear as to issues for determination – where the learned member makes comment as to potential cause of action not clearly raised by parties – whether natural justice accorded to parties in not directing the parties to address on the matter – where issue determined on the basis of the matter raised by the tribunal – whether error of law – whether breach of natural justice

Queensland Building and Construction Commission Act 1991(Qld) schedule 1B, schedule 2

Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321
Davis v Gray [2017] QCAT 120
Fraser Property Developments P/L v Sommerfeld & Ors [2005] QCA 134
Hope v Bathurst City Council (1980) 144 CLR 1
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Sand & Surf Design Pty Ltd v Surrey & Anor [2014] QCATA 225

APPEARANCES & REPRESENTATION:

Applicant:

Ms J M Hewson of Counsel, instructed by Centric Law

Respondent:

Self-represented

REASONS FOR DECISION

  1. Ms Davis engaged a company called Qualitybuild Pty Ltd (Qualitybuild) to do some building and car park renovation for her at her property at Buccan. It was a commercial venture.

  2. Mr Gray was the sole director and shareholder of Qualitybuild. Ms Davis and Qualitybuild entered into two contracts, the first on 20 December 2012 and the second on 10 February 2014.  Work was delayed under the first contract while assessments and insurance arrangements were put in place, but began in December 2013. The second contract was treated by the parties as replacing the first contract. It was a cost plus contract. Both contracts provided for regular payments by Ms Davis.[1] The second contract provided for weekly payments.

    [1]Response to Minor Civil Dispute – Minor Debt filed by the respondent, attachment entitled Page 1.

  3. The work was not…

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Details
AGLC
Davis v Gray [2018] QCATA 147
Case
[2018] QCATA 147
Decision Date

CaseChat Overview and Summary

In Davis v Gray, the applicant, Ms Davis, appealed against the decision of the Tribunal which had dismissed her claim for damages against the respondent, Mr Gray. The Tribunal had determined the matter on the basis of a cause of action not clearly raised by the parties. The applicant sought a differently constituted Tribunal to hear a different claim, contending that the Tribunal's approach amounted to an error of law and a breach of natural justice.

The central legal issues were whether the Tribunal's determination constituted an error of law and whether it breached natural justice by not directing the parties to address a potential cause of action not clearly raised in their submissions. The appeal tribunal considered the fairness of the Tribunal's decision-making process, particularly whether the applicant was given a fair opportunity to address the issues before the Tribunal.

The tribunal concluded that the Tribunal's decision contained errors of law and breached natural justice. The Tribunal had determined the matter on the basis of a cause of action not clearly raised by the parties, without providing them an opportunity to address it. The tribunal set aside the Tribunal’s decision and allowed the appeal. However, it proposed to dismiss the application for a commercial building dispute as misconceived, pending further submissions from the parties on the appropriate disposition of the proceeding.

The tribunal made orders for the appeal to be allowed, the Tribunal's decision to be set aside, and directed the parties to file and serve any submissions in respect of the appropriate disposition of the proceeding by a specified date. The tribunal reserved making further orders pending these submissions.

Orders

Orders of the court

1. The appeal is allowed.

2. The Tribunal’s decision dated 31 March 2017 is set aside.

3. (a) The Appeal Tribunal reserves the making of further orders in disposition of the appeal pending further submissions from the parties;

(b) Both parties must file and serve any submissions to be relied upon in respect of the appropriate disposition of the proceeding, including in response to the issues set out by the Appeal Tribunal in paragraphs 67 and 69 of its reasons for decision dated today, by 4.00 pm on 19 October 2018;

(c) Unless otherwise ordered, the Appeal Tribunal will make its further final orders on the papers and without a further oral hearing, not before 4.00pm on 19 October 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Here, Ms Davis seeks orders that the proceeding go to a differently constituted Tribunal, to have a different claim than the one made, decided. It is arguably more appropriate for Ms Davis to make a fresh application for an MCD if she wishes to do so. In doing so, it would be hoped that with the benefit of legal advisors, or if she no longer retains them, at least the benefit of the Tribunal’s and Appeal Tribunal’s deliberations, she would now provide evidence and submissions that are directed to that new claim, rather than the poorly articulated and unfocussed material presented in the building claim. It is arguably fairer to Mr Gray if this occurs, so that Mr Gray also provides material that is responsive to a clearly articulated claim. It would also ensure tribunal resources are most effectively used in further deciding the issues.Conclusions and orders Given the errors of law identified, the Tribunal’s decision made on 31 March 2017 should be set aside and the appeal allowed. However, our preliminary view is that our only other order should be dismissing the application for a commercial building dispute on the basis that it is misconceived. Before we proceed to take this step, we propose to invite the parties to make any submissions they wish to rely upon in relation to this proposed course. We make orders and directions accordingly.

Ratio Decidendi

Legal Principle Established

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