Doman v Percival
[2014] QCATA 343
•16 December 2014
| CITATION: | Doman v Percival & anor [2014] QCATA 343 |
| PARTIES: | Geoffrey Ian Doman (Applicant/Appellant) |
| v | |
| Ross Percival Steve Ensor (Respondents) |
| APPLICATION NUMBER: | APL264 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Deputy President Stilgoe OAM |
| DELIVERED ON: | 16 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE –where oral contract for building work – where rate agreed – where dispute about hours worked - whether grounds for leave to appeal MEDIATION – where mediation agreement – where parties agreed to withdraw dispute if compliance with mediation agreement – where non-compliance – where applicants asked tribunal to enforce mediation agreement – where tribunal heard dispute and made fresh decision – whether grounds for leave to appeal EVIDENCE – where letters produced to tribunal without statutory declarations or authors available to give evidence – where tribunal did not accept letters – whether error – whether grounds for leave to appeal EVIDENCE – where evidence of terms of settlement agreement not accepted – whether error – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 82 83 Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Doman is a cabinet maker. Messrs Percival and Ensor are builders. Mr Doman agreed with Messrs Percival and Ensor that they would build a shed for him at an hourly rate of $60. Predictably, at the end of the job, they disagreed about the price. Messrs Percival and Ensor filed an application for payment of their final invoice. Mr Doman said he had been overcharged.
A Magistrate, sitting as a member of the tribunal in its minor civil disputes jurisdiction, ordered Mr Doman pay Messrs Percival and Ensor $7,461.38.
Mr Doman wants to appeal that decision. He says the parties had an agreement to settle the dispute for $3,000 but that Messrs Percival and Ensor refused to accept his cheque for that amount.
In his submissions in support of the application for leave to appeal, Mr Doman, in between repeating the submissions he made before the learned Magistrate, also:
a) Takes issue with the learned Magistrate’s comment that he wanted a ‘cheap job’.
b) Says that Mr Ensor gave incorrect evidence at the hearing.
c) Supplied certified copies of documents the learned Magistrate refused to accept at the hearing.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The learned Magistrate could have accepted the letters and quote that Mr Doman filed even though they were not attached to, or in the form of, a statutory declaration. The tribunal is not bound by the rules of evidence[3] and it can inform itself in any way it considers appropriate[4]. The tribunal must proceed with as little formality and technicality as the requirements of the QCAT Act, and a proper consideration of the dispute, allow[5].
[3]Section 28(3)(b).
[4]Section 28(3)(c).
[5]Section 28(3)(d).
However, the learned Magistrate rightly observed[6] that the authors of the documents were not at the hearing so they could not be cross-examined. Because they were giving evidence about the number of hours Messrs Percival and Ensor worked, and that was a central issue in the dispute, the learned Magistrate was right to give the letters little, or no weight.
[6]Transcript page 1-12, lines 29 – 33.
Mr Doman now wants the opportunity to put the same evidence before the learned Magistrate but this time, ‘certified by a JP’. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. This is not a valid ground for appeal.
Mr Doman’s examples that Mr Ensor gave incorrect evidence are not relevant to the issues the learned Magistrate had to decide: - what were the terms of the agreement and did Messrs Percival and Ensor comply with the terms of the agreement. The terms of the agreement were not really in dispute. Mr Doman engaged Messrs Percival and Ensor to build a shed at $60 per hour for one tradesman and a labourer plus materials.
Mr Doman may not like the learned Magistrate’s comments that he wanted a cheap job but it is an understandable inference from Mr Doman’s own comments that he wanted Messrs Percival and Ensor to ‘look after him’[7]. It has no impact on the validity of the learned Magistrate’s decision.
[7]Letter Doman to Ensor dated 18 September 2013.
Mr Doman’s real complaint is that Messrs Percival and Ensor reneged on a settlement agreement.
The learned Magistrate told the parties that she could not take evidence about what happened during a mediation[8]. Section 83(1) of the QCAT Act states that evidence of anything said or done during a mediation is not admissible at any stage of the proceeding.
[8]Transcript page 1-2, line 34.
But there are some exceptions. If the parties agree to settle a proceeding, the mediator must notify the principal registrar of that fact[9]. There is a mediation certificate on file that shows the dispute was resolved. The terms of the settlement are also on file. They are not expressed to be confidential and they require some action from the tribunal in the future. Other terms of the agreement, which do not appear on the tribunal file, were confidential.
[9]Section 82(2).
There was sufficient material before the learned Magistrate to enable her to consider the fact of the settlement agreement. The critical term of the agreement, the term that Mr Doman allegedly breached was, however, confidential to the parties.
Paragraph 6 of the settlement agreement states that the order for withdrawal was to take effect in April 2014 unless the parties advise that the agreement was not complied with. By letter of 3 April 2014 Messrs Percival and Ensor informed the tribunal that Mr Doman had not complied with the terms of settlement. The letter states:
‘We now seek the assistance of QCAT, with regard to:
Failure to adhere to the QCAT Payment Agreement Section 3, Part A, as signed 20/1/14, …
For whatever reason, Mr Doman breached the mediation agreement. The terms of settlement made it clear that the proceeding was on foot until such time as the parties complied with the agreement. Because Mr Doman did not comply with the agreement, the proceeding was revived and the learned Magistrate could hear the dispute in full.
The learned Magistrate gave Mr Doman another opportunity to resolve the dispute without a hearing[10]. She warned him that a hearing put him at risk of paying a greater sum[11]. She told him that she had to hear the case ‘from scratch’[12].
[10]Transcript page 1-3, lines 32 – 35.
[11]Transcript page 1-3, lines 39 – 41.
[12]Transcript page 1-2, line 9; page 1-3, lines 33 – 35.
Mr Doman chose to proceed. He chose to proceed on an oral contract where he did not dispute the hourly rate or the quality of the work. He chose to proceed on an oral contract when he is a man of considerable commercial experience who should have known better.
Leave to appeal is refused.
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