Fife v Steve Coates Constructions
[2012] QCATA 21
•16 February 2012
| CITATION: | Fife v Steve Coates Constructions [2012] QCATA 21 |
| PARTIES: | Francis Fife (Applicant/Appellant) |
| v | |
| Steve Coates Constructions (Respondent) |
| APPLICATION NUMBER: | APL350-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 16 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – PROCEDURAL FAIRNESS – where the Applicant claimed there existed a contract for building services in excess of the sums paid – where the Respondent denied the existence of any contract beyond the payment of the hourly rate – whether the Tribunal denied the Applicant procedural fairness – whether the Tribunal provided the Applicant with a fair hearing – whether the Tribunal failed to observe statutory requirements to ensure relevant material was available and disclosed – whether the Applicant was allowed a reasonable opportunity to present evidence or make submissions APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – QUESTION OF LAW– where the Applicant claimed there existed a contract for building services in excess of the sums paid – where the Respondent denied the existence of any contract beyond the payment of the hourly rate – whether the Tribunal erred in determining that the parties could not have entered into a contract because the Applicant did not possess the relevant licence APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – QUESTION OF FACT– where the Applicant claimed there existed a contract for building services in excess of the sums paid – where the Respondent denied the existence of any contract beyond the payment of the hourly rate – whether the Tribunal erred in finding that the contract was based on an hourly rate Queensland Building Services Authority Act1991, s 42 Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Fife undertook landscaping work including in particular, the construction of rock walls associated with work on a large and expensive residential dwelling at 51 Woongara Scenic Drive, Kelly’s Beach near Bargara. Mr Steven Coates, who trades as Steve Coates Constructions, was the building contractor.
Mr Fife brought proceedings in QCAT’s Minor Civil Disputes jurisdiction claiming $13,448.00 (plus interest) which, he said, was owed to him under an agreement between the parties whereby Mr Fife would design and construct the works at, Mr Fife alleged, an agreed price of $30,000.00 plus expenses.
Mr Coates agreed that he approached Mr Fife about landscaping work including rock walls and other features at the property, and that Mr Fife provided some plans and an ‘estimate’, but says that in subsequent telephone conversations it was agreed that Mr Fife would do the work at a rate of $56.00 per hour for his labour, plus reasonable accommodation costs; and, that Mr Coates would provide all other materials and labour necessary to perform the work. In particular, Mr Coates denies there was any contract for the payment of any sum greater than Mr Fife’s hourly rate of $56.00.
The matter came on for hearing before a Magistrate, sitting as a QCAT Ordinary Member, in Cairns on 29 August 2011. In short, the learned Magistrate was not persuaded there was any contract between the parties save one which required the payment to Mr Fife of the agreed hourly rate of $56.00. In doing so he impliedly accepted Mr Coates’ evidence that he could not have contracted with Mr Fife for sums of the order of $30,000.00 because Mr Fife did not hold the relevant BSA Licence.
Mr Fife seeks leave to appeal that decision. By direction, the application for leave to appeal (and the appeal, if leave is granted) is to be heard and determined on the papers. Both parties are legally represented and their lawyers have filed and exchanged written submissions.
Mr Fife’s submissions advance, in effect, three grounds. Firstly, that he did not receive a fair hearing and was denied procedural fairness, and the Tribunal failed to observe statutory requirements to ensure that relevant material was available and disclosed, or allow Mr Fife a reasonable opportunity to present evidence or make submissions. Secondly, that the learned Magistrate fell into error in determining that the parties could not have been entered into a contract because Mr Fife did not have the necessary BSA Licence. Thirdly, that the Tribunal’s critical decision of fact, namely that the contract was based on an hourly rate, was wrong, and not supported by evidence.
The transcript of the proceedings before the learned Magistrate provides no support for the first contention. Under s 3(b) of the QCAT Act, the Tribunal is obliged to deal with the matters before it fairly, and justly. Under ss 28(3)(b) and (e) of the QCAT Act, the Tribunal is not bound by the rules of evidence but must ensure, so far as practicable, that all relevant material is disclosed to it. Under s 95(1) of the QCAT Act, the Tribunal must allow a party reasonable opportunity to call or give evidence, and make submissions. These particular provisions are mentioned because they are specifically referred to in Mr Fife’s solicitor’s outline.
Otherwise, the outline advances, in support of the submissions, the contentions that Mr Fife is of limited education; that the learned Magistrate failed to adequately explain the proceedings to him, with the result that he was prevented from adequately stating his case; that there was an interruption in the proceedings with the result that they were cut short and the Tribunal failed to ensure that all material and facts were disclosed before making its decision; and, as a result, that Mr Fife was denied natural justice.
The transcript shows, however, that the learned Magistrate took care to ensure that each party was allowed full opportunity to make submissions in support of its case, and to present evidence. Both parties presented documentary evidence. Both parties had good and sufficient opportunity to speak to the issues, and the learned Magistrate took care to explain to Mr Fife what he perceived were the difficulties in Mr Fife’s case.
The business involving interruption occurred because of the presence of other parties waiting for the learned Magistrate to hear and determine their case. Those parties came into the hearing room during this hearing and indicated that they could not reach agreement, and the Magistrate simply told them that he couldn’t deal with their matter that day, and went on to hear the present proceeding. The interruption could not, and apparently did not, impede this hearing or disadvantage the parties.
While Mr Fife made statements from time to time suggesting he had limited education, at no point is there anything in the transcript indicating that he did not understand what was being said, or the nature of what was occurring in the hearing room. He presented documentary evidence in support of his case which was relevant to it, and in doing so signified that he understood what the issues were, and what he must do. When the Magistrate raised concerns about aspects of his evidence, he addressed them in a relevant way. These grounds of appeal are not made out.
Mr Fife admitted he does not hold any relevant BSA Licences. It is alleged, on his behalf, that his trade is unique and does not fit into any ‘class’ of licence required under the BSA legislation and, in particular, s 42 of the Queensland Building Services Authority Act1991.
As the respondent’s submissions point out, however, under Part 51 Regulation 2 of the Queensland Building Services Authority Regulation2003 Mr Fife’s particular trade or skill falls neatly within the ‘structural landscaping (trade)’ licence, because the works he was engaged to undertake involved preparing and erecting ornamental structures, being concrete rocks, and site preparation.
It is said in the alternative that the learned Magistrate was wrong to conclude that Mr Fife was not a subcontractor of Mr Coates. Rather, the implied finding was that a contractual relationship was, indeed, what existed between them. However, its only relevant term involved an agreement to pay an hourly rate for labour of $56.00.
That finding, in light of the evidence the learned Magistrate heard from Mr Fife and Mr Coates, was reasonably open to him. As he explained in the course of the hearing to the parties, it was a compelling inclusion from documents which Mr Fife himself produced. In particular, a quotation and an estimate that repeatedly referred to that hourly rate, and from which it could reasonably be inferred that references to a figure of $30,000.00, upon which Mr Fife relied for his claim, represented the maximum anticipated charge payable under that rate – ie, it reflected about the maximum number of hours the job could possibly take, at the hourly rate of $56.00.
The transcript also makes clear that the learned Magistrate preferred Mr Coates’ oral evidence that, after receiving the quote and estimate, Mr Fife and Mr Coates agreed, in a telephone conversation, that because the plans for the project had changed significantly, and because of the owner’s own wishes and needs, Mr Coates would supply all materials, plant and equipment, and Mr Fife would simply be paid at the hourly rate and provided with his accommodation. That conclusion was also supported by other evidence from, in particular, the owner.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Finding 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.[1]
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
It is not enough that the Appeal Tribunal comes to the view that, had its members been sitting in the matter originally, they may have reached a different conclusion. It must be shown that there has been a mistake in assessing the factual evidence, like a failure to take some material evidence into account, before the Appeal tribunal can interfere.[2]
[2] Lovell v Lovell (1950) 81 CLR 513.
An Appellate Tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[3] As the High Court said in Fox v Percy:
‘In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.’[4]
[3] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[4] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Magistrate accepted Mr Coates’ evidence, and nothing in the transcript suggests that doing so involved any error including, in particular, an error in weighing the evidence. There was, with respect, plausible evidence available to the learned Magistrate to support the findings he made, and it cannot be said at the discretion he exercised in doing so miscarried in any way. Nothing in the case calls for interference by this Appeal Tribunal, on the lines suggested in Fox v Percy.
It is appropriate to observe, with respect, that the documents upon which Mr Fife relied were inherently confusing. They do not, on their face, provide support for his contention that what they contained was a quotation to do the work for $30,000.00 plus expenses. Certainly, as Mr Fife agreed, there was nothing in writing to establish a contract reflecting the acceptance of his ‘estimate’ or his ‘quotation’ on that basis. Both parties agreed that their contract was made orally, and the learned Magistrate preferred the evidence of Mr Coates as to its terms.
For these reasons, leave to appeal must be refused.
In the submissions from Mr Coates’ solicitor costs of $770.00 are also sought. It is said that the application for leave to appeal is frivolous and without substance and simply reiterates arguments about the evidence which were ventilated before the learned Magistrate. No submissions have been received from Mr Fife’s solicitors about that claim for costs.
The QCAT Act turns its face, generally, against costs orders, while leaving the Tribunal with a jurisdiction to award costs if it considers the interests of justice require it. While Mr Fife’s application for leave to appeal has failed, it cannot be said that it was entirely unmeritorious. The QCAT Act, it might be said, generally discourages applications for leave to appeal in the Minor Civil Disputes jurisdiction, where leave to appeal is universally required, but that statutory matrix does not carry an inference that Parliament intended that failed applicants for leave should receive, in effect, the additional punishment of a costs order. In any event, because the application was at least arguable, I do not think this is the case in which a costs order is appropriate.
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