O'Brien v Queensland Building and Construction Commission
[2014] QCATA 177
•15 July 2014
| CITATION: | O’Brien v Queensland Building and Construction Commission [2014] QCATA 177 |
| PARTIES: | John Frank O’Brien (Applicant/Appellant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | APL051-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver Member Deane |
| DELIVERED ON: | 15 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal or appeal is dismissed. |
| CATCHWORDS: | APPEALS – leave to appeal or appeal – no error in tribunal’s reasoning demonstrated – additional evidence sought to be relied upon – no evidence it was not reasonably available at date of hearing Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 143, s 147 Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158 |
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 O’Brien made a number of complaints in respect of building work, which he contended was defective. The predecessor to the Queensland Building and Construction Commission (the Commission) made decisions[1] essentially not to issue directions to rectify to the builder who performed work at Mr O’Brien’s house. Mr O’Brien applied to the Tribunal to review the decisions. On 24 December 2012 the Tribunal confirmed the decisions except in relation to 4 specified complaints. Mr O’Brien applies for leave to appeal or appeal against the Tribunal’s decision.
[1]3 May 2011 and 18 May 2011.
Where grounds of appeal contend there has been an error of fact or mixed law and fact leave to appeal is necessary.[2]
[2]QCAT Act s 142(3)(b).
There are well established principles as to when leave should be granted.[3] Is there a reasonably arguable case of error in the decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument and a decision the Appeal Tribunal would be to the public advantage?
[3]Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219.
Mr O’Brien’s application and submissions are not particularly helpful in addressing these principles. It appears his position is that the Tribunal was in error in making the findings it did and so it should be reversed. On that basis he contends that there were errors of fact or mixed law and fact and so leave is required.
In his submissions he seeks to reargue the case he made at the hearing and challenges the evidence of Mr Lees, the building inspector, upon which the learned Member relied in making many of her findings. As has been previously observed by the Appeal Tribunal[4]
The appeal process is not for rearguing the case; it is for correcting errors made in the decision of the tribunal.
[4]Gemview Jewellery v Florian Stafleu [2011] QCATA 276 at [15].
At the hearing Mr O’Brien relied solely upon evidence that he gave and did not seek to present any independent expert evidence of the matters he raised. In those circumstances the learned Member preferred the evidence of Mr Lees in many instances in view of Mr Lees’ building expertise.
Mr O’Brien has filed documents which were not in evidence at the original hearing, including a report prepared by Jeffrey Hills & Associates Pty Ltd dated 17 April 2013. By filing these documents he is effectively seeking leave to rely upon additional evidence that was not before the Tribunal. There is no material before this Appeal Tribunal as to why this evidence could not reasonably have been obtained and presented at the original hearing.
Additional evidence is generally not received on appeal. It is important that litigation be brought to a conclusion. Often submissions that additional evidence should be allowed are attempts to re-litigate a matter based on a hope of a different outcome.
We are not satisfied that the additional evidence should be received by the Appeal Tribunal.
Section 143 of the QCAT Act which provides for applications for leave to appeal does not expressly provide that additional evidence may be considered. In contrast if the Appeal Tribunal grants leave to appeal then the appeal against a decision on a question of fact or a question of mixed law and fact is to be decided by way of rehearing with or without additional evidence[5]. The Court of Appeal[6] recognised that whether additional evidence is to be allowed on a rehearing is a discretionary matter. His Honour Lyons J[7] in a dissenting judgement considered that there was no reason why
the approach to the admissibility of evidence in such an application is to be more restrictive than the approach to the admissibility of further evidence on an appeal.
[5]QCAT Act s 147.
[6]Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158 at [43] per Muir JA with Dalton J concurring.
[7]Ibid at [91].
In considering whether to allow the additional evidence to be considered in support of the application for leave we have reviewed the documents in light of the evidence before the Tribunal set out in the original file, the transcript provided to this Appeal Tribunal and the learned Member’s reasons. It can be seen that many of the matters raised were matters within Mr O’Brien’s knowledge, raised at the original hearing at least in a general way, considered by the learned Member and rejected. In these circumstances we consider that the additional evidence is unlikely to have ‘an important influence on the result of the case’[8].
[8]Ibid at [44] and [48].
Mr O’Brien has not identified an error in the Tribunal’s reasoning as distinct from disagreeing with the findings.
Nothing in the submissions or in the transcript or the reasons of the learned Member suggest any error of fact or law or that any finding was not reasonably open on the evidence.
We are not satisfied that there is a demonstrated error and therefore there is no basis for leave to appeal.
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