Leeds v Turner t/as design2BUILD - [2021] QCATA 85

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Leeds v Turner t/as design2BUILD [2021] QCATA 85

PARTIES: CHRISTINE JOY LEEDS

(applicant/appellant)

v

CHRIS TURNER T/AS DESIGN2BUILD

(respondent)

APPLICATION NO:

APL255-20

ORIGINATING APPLICATION NO:

BDL290-19

MATTER TYPE:

Appeals

DELIVERED ON:

25 June 2021

HEARING DATE:

9 June 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.       Appeal allowed.

2.       The decision of the Tribunal made 5 August 2020 is set aside.

3.       The matter is remitted to the Tribunal for reconsideration according to law.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where the applicant had hired the respondent to perform building work – where the applicant claims that the building work was left incomplete – where, due to the COVID-19 pandemic, the Tribunal hearing was conducted via telephone – where the applicant presented their evidence but then their phone connection to the Tribunal disconnected – where applicant did not hear the evidence of the respondent and had no opportunity to cross-examine or make final submissions – where learned member found that there was insufficient evidence to allow the applicant’s claim – whether the applicant was denied natural justice

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 142, s 146, s 147

Ericson v Queensland Building Services Authority [2013] QCA 391

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Harrison & Anor v Meehan [2017] QCA 315
Kehl v Board of Professional Engineers Queensland [2010] QCATA 58
Nobarani v Mariconte (2018) 265 CLR 236
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Stead v State Government Insurance Commission (1986) 161 CLR 141

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Self represented

REASONS FOR DECISION

On the 5^th August 2020 the tribunal dismissed Ms Leeds’s application for a domestic building dispute.[1] Ms Leeds has appealed the decision.
[1]Leeds v Turner t/as design2BUILD [2020] QCAT 300.
The proceedings below
Ms Leeds claimed that the parties entered into a building contract on 11 February 2019, that the contract price was $25,000.00, that the building works commenced on 24 October 2018 and that the works remained incomplete. Ms Leeds sought orders that Mr Turner refund to her the amount of $25,000.00 or alternatively that the tribunal ‘rewrite the contract as per the Master’s (sic) Builders request to Christopher Turner.’ Ms Leeds said the reason the orders should be made was ‘As attached especially ‘unfair terms’ due to constant unauthorised changes to the contract’. Attached to the application were a number of documents. The documents did not greatly assist in clarifying the various claims and assertions made by Ms Leeds.
Mr Turner agreed that the parties had entered into a building contract. He said that the building works had been completed and that, after Ms Leeds had made a complaint, the Queensland Building and Construction Commission investigated and determined that no further work was required to be undertaken by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCATA 85
Decision Date: 25 June 2021

CaseChat Overview and Summary

In the case of Leeds v Turner t/as design2BUILD, the applicant, Ms Leeds, appealed against a decision of the Tribunal which dismissed her claim against the respondent, Mr Turner, for the failure to complete building work. The Tribunal's hearing was conducted via telephone due to the COVID-19 pandemic, and the applicant's phone connection to the Tribunal was lost after she presented her evidence. As a result, she was unable to hear the respondent's evidence, cross-examine him, or make final submissions. The Tribunal found that there was insufficient evidence to support Ms Leeds' claim.

The court was required to determine whether Ms Leeds was denied procedural fairness due to the manner in which the hearing was conducted. The learned member outlined the intended process for the hearing at its commencement, but after Ms Leeds finished giving her evidence, her phone connection to the conference call was terminated. Despite attempts to reconnect, the hearing continued in her absence. The court examined whether the fair hearing rule was breached in this instance. The fair hearing rule requires a party to have the opportunity to know the case against them, present their case, cross-examine witnesses, and make submissions.

The court found that the manner in which the hearing was conducted raised questions of whether Ms Leeds was afforded procedural fairness. The court concluded that the Appeal Tribunal must act fairly and according to the substantial merits of the case and observe the rules of natural justice. In this instance, it was the application of the fair hearing rule that was relevant. The court determined that the applicant was denied procedural fairness as she was unable to hear the respondent's evidence, cross-examine him, or make final submissions. Consequently, the court allowed the appeal, set aside the Tribunal's decision, and remitted the matter to the Tribunal for reconsideration according to law.

Orders

Orders of the court

1. Appeal allowed.

2. The decision of the Tribunal made 5 August 2020 is set aside.

3. The matter is remitted to the Tribunal for reconsideration according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

If different grounds of appeal raise questions of law and questions of fact or mixed law and fact, it is appropriate to address first those grounds involving questions of fact or mixed law and fact. If leave to appeal is granted then the appeal must be decided by way of rehearing and all of the matters the subject of the grounds of appeal should be dealt with in the rehearing, although the Appeal Tribunal is not required to address distinctly each question raised by an appellant.[20] It is sufficient that the reasons of the Appeal Tribunal explain how its conclusion is reached.[21][20]Harrison & Anor v Meehan [2017] QCA 315.[21]Ibid, per McMurdo JA at [50].Consideration The way in which the hearing was conducted raises the question of whether Ms Leeds was afforded procedural fairness. As I have observed, after Ms Leeds finished giving her evidence, and before Mr Turner commenced giving his evidence, the telephone call to Ms Leeds was terminated. Just how and why this situation came to pass is not clear. The learned member said this at the commencement of the hearing:Now, Ms Leeds and Mr Turner, I will tell you both that I have the read the material and submissions that both of you have filed with the tribunal. How we will proceed is that, Ms Leeds, you will give your evidence first, and then your witness will give their evidence, and then, Mr Turner, you will give your evidence, and then, Ms Leeds, you’ll make your submissions, and then, Mr Turner, you’ll make your submissions, then, Ms Leeds, you’ll make final submissions.[22] [22]T1-2, lines 12 to 19. After Ms Leeds had finished giving her evidence, the learned member asked Ms Leeds to remain connected to the conference call while Mr Turner gave evidence.[23] Shortly after Mr Turner had been affirmed, the tribunal hearing support officer brought to the attention of the learned member that Ms Leeds was no longer connected to the hearing room conference call.[24] The learned member asked the hearing support officer to attempt to telephone Ms Leeds.[25] The hearing support officer responded by advising that he had attempted to telephone Ms Leeds on two occasions.[26] A further attempt by the hearing support officer to telephone Ms Leeds was unsuccessful.[27] At this point the learned member stated: ‘All right. Well, we have tried.’[28][23]T1-11, line 8.[24]T1-12, line 10. [25]T1-12, line 17.[26]T1-12, line 20.[27]T1-12, line 25.[28]T1-12, line 27. The hearing then continued in the absence of Ms Leeds. In all proceedings the tribunal must act fairly and according to the substantial merits of the case[29] and must observe the rules of natural justice.[30] The rules of natural justice comprise:(a)The rule against bias; and (b)The fair hearing rule.[29]QCAT Act, s 28(2).[30]Ibid, s 28(3)(a). It is the application of the fair hearing rule that is relevant for present purposes. What fairness requires will depend on the circumstances of the particular case. The fair hearing rule requires that a party has the opportunity to know the case against them, the opportunity to present their case, the opportunity to cross examine witnesses and the opportunity to make submissions. The right to a fair hearing is recognised in the Human Rights Act 2019 (Qld).[31] [31]Section 31(1).

CITATION:	Leeds v Turner t/as design2BUILD [2021] QCATA 85
PARTIES:	CHRISTINE JOY LEEDS
(applicant/appellant)
v
CHRIS TURNER T/AS DESIGN2BUILD
(respondent)
APPLICATION NO:	APL255-20
ORIGINATING APPLICATION NO:	BDL290-19
MATTER TYPE:	Appeals
DELIVERED ON:	25 June 2021
HEARING DATE:	9 June 2021
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	1. Appeal allowed. 2. The decision of the Tribunal made 5 August 2020 is set aside. 3. The matter is remitted to the Tribunal for reconsideration according to law.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where the applicant had hired the respondent to perform building work – where the applicant claims that the building work was left incomplete – where, due to the COVID-19 pandemic, the Tribunal hearing was conducted via telephone – where the applicant presented their evidence but then their phone connection to the Tribunal disconnected – where applicant did not hear the evidence of the respondent and had no opportunity to cross-examine or make final submissions – where learned member found that there was insufficient evidence to allow the applicant’s claim – whether the applicant was denied natural justice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 142, s 146, s 147 Ericson v Queensland Building Services Authority [2013] QCA 391 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Harrison & Anor v Meehan [2017] QCA 315 Kehl v Board of Professional Engineers Queensland [2010] QCATA 58 Nobarani v Mariconte (2018) 265 CLR 236 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Stead v State Government Insurance Commission (1986) 161 CLR 141
APPEARANCES & REPRESENTATION:
Applicant:	Self represented
Respondent:	Self represented