Michael and Erica McKewin t/as MEM Fencing v Payne
[2016] QCATA 165
•2 November 2016
CITATION: | Michael and Erica McKewin t/as MEM Fencing v Payne [2016] QCATA 165 |
PARTIES: | Michael and Erica McKewin t/as MEM Fencing |
| v | |
| Christine Payne (Respondent) | |
APPLICATION NUMBER: | APL118-16 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Endicott |
DELIVERED ON: | 2 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave to appeal is refused. |
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – where minor civil dispute heard by Adjudicator - whether any reasonably arguable grounds of appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142 |
APPEARANCES: |
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
Sitting in the Tribunal’s minor civil dispute jurisdiction, an Adjudicator heard a claim brought by Christine Payne against Michael and Erica McKewin trading as MEM Fencing. The claim was for $1,600 plus the formal costs of bringing the claim.
In her claim, Ms Payne said that MEM Fencing had erected two metal gates at her premises, but the work was defective. She said that it had already cost her $935 partially to repair the defects and to get a report, and it was going to cost a further $1,210 to complete the repairs. Despite these amounts, she limited the claim to $1,600 which was what she had paid MEM Fencing to supply and erect the gates.
Both sides attended the hearing, gave evidence, submitted documents and argued the matter. The Adjudicator decided that Ms Payne’s claim should succeed and awarded her the sum that she claimed.
Mr and Mrs McKewin trading as MEM Fencing now appeal. They say that they did not realise that the Tribunal was going to determine the matter at the hearing, so that they were unprepared with their own evidence. They ask for another opportunity to defend the claim. They also say that Ms Payne and a contractor engaged by her had got various things wrong.
On 13 April 2016 the Appeal Tribunal directed Mr and Mrs McKewin to state in what way the Adjudicator had made errors of fact and/or law. They responded to this direction on 16 May 2016. The response however, did not identify any way in which the Adjudicator had been in error. Instead, it explained the way in which Ms Payne and her contractor had been in error in presenting the case to the Tribunal.
An appeal to the Appeal Tribunal can only be made in a minor civil dispute claim (like this one) if leave is given for the appeal to be brought; also, an appeal on a question of fact may only be brought if leave is given for the appeal.[1]
[1]Section 142(3) of the QCAT Act.
Here it would be of some concern if it were true that Mr and Mrs McKewin had been misled into thinking that they would not need to be ready with their evidence at the hearing of the matter. This could be a matter of procedural unfairness which could result in the Appeal Tribunal allowing the appeal.
However, when Ms Payne started the claim, she attached to her application all the evidence and documents on which she relied. The application form that she used, Form 3, required a response from Mr and Mrs McKewin if they were to avoid a default decision being made against them. In their response to the claim, Mr and Mrs McKewin said they wanted the Tribunal “to hear both sides of the case” because the affidavit was “incorrect in many areas”. However they did not at that time, go into detail.
After Mr and Mrs McKewin filed their response, the Tribunal sent out a notice of hearing to both sides. This stated on the front “Take notice that the hearing of this claim will take place in the Queensland Civil and Administrative Tribunal at” (and then the date and time and place of the hearing was given).
The notice then said just below:-
This matter will be heard by the Tribunal at the place, date and time stated in this notice. Please be aware that a number of matters are set for this timeslot, and your hearing may be delayed. If you do not attend the hearing, the Tribunal may hear and decide the matter in your absence, including making orders against you.
Mr and Mrs McKewin and Ms Payne attended the hearing. At the outset the Adjudicator stated that he would be hearing the matter and if either party wished to ask for an adjournment or to seek further time to prepare for the hearing they ought to raise it then. He asked whether the parties were ready to commence and proceed with the hearing. Mrs McKewin confirmed that this was so.[2]
[2]These things appear from the transcript which is on the Appeal Tribunal’s file: page 1-3 line 35.
At the hearing, Mr and Mrs McKewin produced a witness statement from a contractor who attended the site of the work at the same time as Mr McKewin. The statement was to contradict something said by Ms Payne in her evidence about what happened on that occasion.
After some discussion about that document, the Adjudicator again told both parties that he would be deciding the matter after hearing the evidence and submissions. He asked if either side had any questions, and Mr and Mrs McKewin said they did not.
After hearing some lengthy evidence given by both sides under oath and after giving the parties an opportunity to question each other and to make submissions, the adjudicator reached his conclusion and gave his reasons in full.
It is surprising therefore, that Mr and Mrs McKewin say in this appeal that they did not know that the Tribunal was going to determine the matter at the hearing and that they were unprepared with their own evidence. Because Ms Payne started the claim on Form 3 and attached her evidence and all her supporting documents, Mr and Mrs McKewin had to consider their defence to the claim at a very early stage when they filed their response document. It ought to have been clear to Mr and Mrs McKewin upon receiving the notice of hearing that the Tribunal was going to determine the matter on the day of the hearing. They did not suggest to the Adjudicator that they needed more time to prepare their defence, despite having opportunities at the hearing to say this. The fact that they came to the hearing with a statement from a witness about what happened at the meeting on site also belies that they had insufficient opportunity to prepare their defence.
We return to the question whether leave to appeal should be given in this case. In this type of case, leave to appeal will only be given where it can be reasonably argued that an order should be made on appeal to correct an error in the original decision which has caused substantial injustice.
It is clear from the above that there was no procedural unfairness which could result in the Appeal Tribunal allowing the appeal.
The only other point made by Mr and Mrs McKewin in their appeal application and in their submissions made on appeal is that they would like the matter reheard. In their submissions, they have argued why they should succeed in their defence to the claim after all. An appeal in this sort of case is not an opportunity to try to have a matter reheard in the absence of a clear mistake by the original decision maker. Mr and Mrs McKewin are unable to show that there was any such mistake.
In the circumstances leave to appeal is refused.
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