James v Tottman (No.2)

[2022] QCATA 10

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

James v Tottman (No.2) [2022] QCATA 10

PARTIES:

ADAM JAMES

(applicant/appellant)

v

GREG TOTTMAN

(respondent)

APPLICATION NO/S:

APL230-20

ORIGINATING APPLICATION NO/S:

BDL120-18

MATTER TYPE:

Appeals

DELIVERED ON:

2 February 2022

HEARING DATE:

13 December 2021

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.       Appeal (so far as it was an appeal on a question of law) from the decision of the Tribunal of 26 May 2020 dismissed.

2.       Application for leave to appeal from the decision refused.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – unlicenced person doing building work – prohibition of remuneration – still liable for damages for breach of contract

EVIDENCE – ADMISSIBILITY – EXCLUSIONS: IMPROPERLY OBTAINED EVIDENCE – recording of telephone conversation using mobile phone – whether excluded from evidence by statute

Queensland Building and Construction Commission Act 1991 (Qld) s 42(3).

Invasion of Privacy Act 1971 (Qld) s 45(2)(b)

Telecommunications (Interception and Access) Act 1979 (Cth) s 7, s 63(1)(b).

Bellgrove v Eldridge (1954) 90 CLR 613
Chapel of Angels Pty Ltd v Hennessy Builders Pty Ltd [2020] QCA 219
Cook’s Construction Pty Ltd v SFS 007 298 633 Pty Ltd [2009] QCA 75
Coulton v Holcombe (1986) 97 CLR 1
Ellis v Queensland Building Services Authority [2010] QCATA 93
Gunter v Wilkins [2021] QCA 274
PCR v R [2013] VSCA 224
Ray v Hope [2013] QCA 206
Wilkins v Gunter (No 2) [2021 QCATA 42

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

1. This is an appeal, or application for leave to appeal, from the decision of a Member of the Tribunal in a building dispute. The respondent was the owner of residential premises at which the appellant did some work in late 2017 and early 2018, which led to the dispute before the Tribunal. That came on for hearing on 26 June 2019, but the appellant did not appear. He told me that at the time he was working in New South Wales, and made a mistake about the date; he accepted that it was his fault that he did not attend the hearing. The Member proceeding with the hearing in the absence of the appellant,[1] hearing oral evidence from the respondent and a witness, and on 26 May 2020 gave a decision in favour of the respondent, ordering the appellant to pay him $18,167 for the claim and $326 by way of costs.

   [1]Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) s 92(2). If the appellant did not have a reasonable excuse for not attending the hearing, there was no reopening ground for the purposes of QCAT Act s 138.

The decision of the Member

1. The Member found that there was a contract between the parties for the appellant to do certain work for the respondent: prepare for and lay turf in the yard front and back; tile around the swimming pool; and construct a deck. This was a…