Queensland Building and Construction Commission v King t/as King Architectural
[2014] QCATA 11
•16 January 2014
| CITATION: | Queensland Building and Construction Commission v King t/as King Architectural [2014] QCATA 011 |
| PARTIES: | Queensland Building and Construction Commission (Applicant) |
| v | |
| Mr Mark King t/as King Architectural Engineering (Respondent) |
| APPLICATION NUMBER: | APL471-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 13 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President Senior Member Oliver |
| DELIVERED ON: | 16 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – INTERIM DECISION – where applicant applied to reopen its case and adduce further evidence after the conclusion of the evidence but before judgment – whether respondent raised a new issue of bias during cross-examination without notice to the applicant – whether cross-examination only went to credit – whether there has been a denial of natural justice – where the Tribunal considered the application under ss 139 and 140 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether the sections applied in these circumstances – where consideration of principles of reopening – whether prejudice to the respondent Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 139, s 140, s 142(3)(a)(ii) Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr M. Cooke of counsel, instructed by Holding Redlich |
| RESPONDENT: | Self represented |
REASONS FOR DECISION
President
In this matter the Appeal Tribunal was comprised of Mr Oliver and me. I have had the advantage of reading his decision in draft. I agree with his conclusions and the order he proposes.
Senior Member Oliver
The substantive proceeding from which this appeal originates is an application made by King Engineering to review a decision by the Queensland Building Services Authority, as it was then named,[1] to issue to it a Scope of Work for Defective Building Work and a Notice of Potential Debt (‘the Scope of Work’). The Scope of Work decision was made on 23 June 2011. Without going into too much unnecessary detail the Scope of Work relates to rectification/replacement of a footing system in a residential dwelling at Newtown.
[1]The Queensland Building Services Authority Amendment Act 2013 (Qld) changed the name of the Authority to the Queensland Building and Construction Commission (‘the Commission’).
The hearing of the review application commenced on 19 November 2012, went into a second day, and was then adjourned to be finished on the 29th January 2013. The hearing of all the evidence was concluded and the final decision of the Tribunal was reserved. At the conclusion of the hearing directions were made for the parties to file final written submissions. The Commission was given an extension of time to file its written submissions to 12 April 2013.
Then, on 20 May 2013 the Commission filed an application for leave to reopen its case to adduce fresh evidence. The evidence sought to be led was from two additional experts to support the evidence of Mr Van de Hoef, an engineer engaged by the Commission to provide an expert report, as well as an employee of the Commission about the Commission’s processes in engaging experts to provide reports about tribunal work. The reason for this will be dealt with later. Directions were made for the parties to file submissions in the application to reopen. The application was to be determined on the papers by the presiding Member. On 16 October 2013 the presiding Member dismissed the application to reopen.
On 28 October 2013 the Commission appealed the decision of the learned Member. The grounds of appeal are that the learned Member made an error by proceeding to hear the reopening application under ss 139 and 140 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and therefore misdirected herself as to the principles to be applied in a reopening application.
Because this is an appeal from an interim application that is, a decision that is not the Tribunal’s final decision in the proceeding, leave to appeal is necessary[2]. This is conceded by the Commission. The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]
[2] QCAT Act s 142(3)(a)(ii).
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at [13].
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The Commission contends that leave to appeal should be granted, firstly, because there was an error of law in that the learned Member should not have applied the reopening provisions of the QCAT Act and, secondly, on the grounds of substantial injustice.
The reason the Commission wanted reopen its case to lead the fresh evidence was as a result of some observations made by the presiding Member about the evidence of Mr Van de Hoef. Adopting the submissions of the Commission, it complains that during the cross-examination of Mr Van de Hoef, his credit and impartiality was attacked on the basis that he was not truly independent and his evidence was biased in favour of the Commission. The basis of the allegation of bias was that Mr Van de Hoef was a member of the Commission’s “panel” of consulting engineers regularly engaged by it to provide engineering services and reports about building work. King Engineering’s submissions in writing at the conclusion of the case contended that because of his association with the Commission his evidence should not be accepted. The submissions were also “severely critical of Mr Van de Hoef”[7].
[7] Applicant’s submissions paragraph 15.
Further and in support of the application to reopen, the Commission relies on an exchange between counsel for the applicant and the Member, where comments were made by her about Mr Van de Hoef’s association with the Commission, suggesting that Mr Van de Hoef was in a “difficult position”.
It was because of these comments about Mr Van de Hoff and the tenor of his cross-examination that the Commission applied to reopen its case so it could submit further evidence from another engineer, it seems, just in case Mr Van de Hoef’s evidence was rejected on the grounds of bias or unreliability. It was in these circumstances that the learned Member proceeded to consider the application to reopen.
The reopening provisions in Part 7, Division 7 of the QCAT Act have limited application. Under s 136, the Tribunal can only reopen a proceeding that has been heard and determined by the Tribunal. Clearly that is not the case here because there has been no final determination of the substantive proceeding. Unfortunately the learned Member fell into error in considering the application under these provisions.
There are two reopening grounds set out in s 137. The first ground is that a party did not attend a hearing and had a reasonable excuse for not attending. The second ground is that a party would suffer substantial injustice because significant new evidence had arisen and that evidence was not available when the proceeding was first heard and determined. The second ground, insofar as it relates to substantial injustice, reflects the principles that need to be considered under the general law on any application to reopen a party’s case to lead further evidence after the conclusion of the evidence but before judgment.
Reopening after the evidence is closed, although not novel, will only be allowed in limited circumstances. The usual circumstances for granting leave to reopen the evidence will be when: the material interests of justice require it; where new evidence would probably produce a different result; and, where the evidence could not have been discovered before the trial[8]. There is also the question of prejudice to the other party to the proceeding to be considered. Questions of prejudice cannot simply be addressed with orders that the party applying pay the costs thrown away if the application is granted. There are other considerations which include, perhaps, the need for a party to reshape the whole case the party might have to meet because of the new evidence[9]. There are also other matters which are discussed later in these reasons.
[8] Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 at 89.
[9] Londish v Gulf Pacific Pty Ltd (1993) 45 FCR128.
In considering the question of substantial injustice it is evident from the reasons of the learned Member that she did have regard to the above matters. She noted that the new evidence to be adduced included a new building report prepared by Interlara Pty Ltd dated 14 June 2013 and a new geotechnical report prepared by Douglas Partners dated 6 June 2013. The Member observed that the Commission could have engaged these experts at any point and the evidence they were to give was not new in that it was always available to the Commission prior to the conclusion of the evidence. Even though she referred to the legislation, her reasons reflect the usual discretionary matters to be taken into account under the general law.
The general principles about reopening are not designed to accommodate a litigant who wishes it had done things differently in adversarial litigation. It is not to be used as an opportunity to repair damage as a result of cross-examination or to shore up a case where there are evidentiary deficiencies. The respondent was clearly entitled, during cross-examination to attempt to discredit the Commission’s expert it if was to the advantage of King Engineering.
The Commission in the appeal says that the cross-examination went further than just an attack on credit. It submits that the primary purpose of the cross-examination was to show that Mr Van de Hoef was biased in favour of the Commission because of the special relationship. It contends that this raised a collateral issue of fact and it ought to have been given an opportunity to lead evidence in response to it in accordance with the principles of natural justice.
In support of this contention the Commission relied on the judgments of Gleeson CJ and Callinan J in Goldsmith v Sandilands and Others[10]. The issue that arose for consideration in that case was whether a refusal of the trial judge to allow a plaintiff to adduce evidence after the closure of his case on matters going only to his credit resulted in a miscarriage of justice such as to require a retrial[11]. The general rule is that a cross-examiner is bound by the answer to a question that goes only to credit[12]. The collateral issue here was the location of a cricket centre the plaintiff attended some days before he was involved in a car accident and injured his back. It was alleged that after playing indoor cricket at the centre he said to the first respondent that he had “stuffed my back….playing cricket”. There was cross-examination of the plaintiff about the location of the cricket centre, the responses to which were vague and hence his credit came into question. There was an application to reopen so evidence could be led about this issue, and reopening was refused. In the course of his judgment Callinan J said:
The detail about the location of the cricket centre was a collateral matter. The first respondent was entitled to cross-examine the appellant about it if it went to credit, as I think it did. Within the normal ambit of re-examination the appellant would have been entitled to give evidence about it at that stage had he wished. The occasion for doing so did not, however, arise because of his assent in cross-examination to the address put to him and his inability to confirm or deny the physical features that the address possessed. The argument of the parties really betrays a misunderstanding of the proper course of the trial and the distinction between what a witness may be asked in chief and what he may be asked in cross-examination. All that the plaintiff need do, and ordinarily should be confined to doing, in chief, is prove his case. A cross-examiner is given much greater latitude. Subject to some statutory and other inhibitions which it is unnecessary to discuss here, a cross-examiner may ask about any matters reasonably going to a witness’ credit. Ordinarily, however, the cross-examiner will be bound by the witness’ answer. That means he must accept it. He should not in his case be permitted to go into evidence, as counsel for the first respondent did here, of details of a matter going to credit only, with a view to contradicting the answers that he has received in cross-examination…[13]
[10] (2002) 190 ALR 370.
[11] Ibid 394 [85] per Callinan J.
[12] Ibid 372 [3] per Gleeson CJ.
[13] Ibid 397 [95] per Callinan J.
The effect of this discussion is that if the cross-examination is confined to credit issues then there is no opportunity for the party, or the party’s witness who was the subject of the cross-examination, to lead evidence to contradict or address the matters raised in the cross-examination. So the question here is whether the matters upon which Mr Van de Hoef was cross-examined raised a new “issue” or do they simply go to credit, or do they go to both credit and a new issue. The new issue, the Commission submits, being an allegation of bias.
I have read the transcript of the cross-examination of Mr Van de Hoef prepared by the Commission’s lawyers. The cross-examination starts on page 20 when Mr Van de Hoef is asked about his contract with the Commission. He informed the Tribunal that it is a two year contract covering a specific geographical area. He then went onto explain his role as an independent expert, his understanding of his duty to the Tribunal as an independent expert witness and to provide information to assist and inform the Tribunal. He indicated he has been involved in a number of QCAT matters. I should say that at this point this line of questioning was objected to by counsel for the Commission. There was then a discussion about payment for the reports prepared by NJA Consulting, Mr Van de Hoef’s business. Mr Van de Hoef freely admitted he got paid for producing further reports. He was then asked:
And was it the case that you got paid more as a consequence of having identified what you say are necessary rectifications than you would have had [had] you not identified that necessary rectification.[14]
[14]Transcript of Proceedings, King Architectural Engineering v Queensland Building Services Authority (QCAT, GAR190-11, Member Roney, 29 January 2013) 31.
At this point counsel for the Commission again objected and the learned Member allowed the question because “the relationship with the [Commission] and the extent to which he might be prepared to give different evidence for different reasons is… relevant however uncomfortable”.[15] Mr Van de Hoef then said he was “not uncomfortable with the question” and went on to explain the fees he generated from doing work for the Commission.[16] There was no further cross-examination on the relationship.
[15] Ibid.
[16] Ibid.
It was never put to Mr Van de Hoef that he was biased in favour of the Commission, nor was it put to him that his reports were prepared in a way to ensure further work from the Commission. It may be that from the questions and answers an inference might be drawn as to the nature of the relationship, but if bias was to be a discrete issue one would expect this to be specifically raised with Mr Van de Hoef during the cross-examination.
Following the cross-examination, counsel for the Commission did take the opportunity re-examine Mr Van de Hoef about his work with the Commission and in response to one question he said, inter alia,
My engagement is not to pander to their needs and provide reports around their requirements and I have had those direct instructions with the [Commission] on numerous occasions where I have advised them you may get a report that you don’t like and I always get the same response, we just want to know what the true situation is. So, it is impossible that I would provide a report that would be specifically designed to provide designs or conclusions that were catered around their needs as opposed to what I believe was the true situation and, as I said before, I believe an engineer doing such, that would be basically unprofessional and the type of engineering that could lead to conduct investigations and complaints.[17]
[17] Ibid 65.
It was abundantly clear at this point, before the evidence had concluded, that the Commission was or ought to have been alive to the very issue they now want to agitate in the reopening. It could have applied then to lead further evidence to rebut any suggestion of bias or lack of independence on the part of Mr Van de Hoef or sought an adjournment of the hearing. It effectively elected to proceed; presumably satisfied with Mr Van de Hoef’s responses to the questions put to him, with no suggestion of bias being raised in the re-examination.
From the general nature of the questioning, together with the re-examination is seems clear that the purpose of the cross-examination was to discredit Mr Van de Hoef so that Eric Fox’s evidence would be preferred by the Tribunal. There was a significant difference in their opinions as to the cost of rectification. According to Mr Van de Hoef the cost was about $90,000.00 as opposed to some thousands of dollars according to Mr Fox, so it is apparent the creditability of the experts was an important consideration for the respondent. If Mr Fox’s evidence was accepted then the decision about the Scope of Work would be set aside, presumably with the Tribunal substituting its own decision. This approach when the issue only goes to credit accords with the observations of Callinan J in Goldsmith.
We were also referred to Smith v New South Wales Bar Association[18]. This is a case where a proceeding was reopened. The question of whether a party should be allowed to call further evidence depends on whether the evidence goes to the central issue in the case. This is of little assistance in view of the finding that the issue here was not a “new issue” in the case.
[18] (1992) 176 CLR 256.
Similarly because of this finding that a new issue was not raised during cross-examination, the question of whether the Commission was denied natural justice is also irrelevant.
There is one other aspect to this case. The learned Member’s observations about Mr Van de Hoef’s evidence are just that, observations. They are not evidence nor are they findings of fact. They do not suggest she is going to make any adverse finding, however, as a collateral issue going to credit, she was entitled to raise it as a matter for the parties to address in their final submissions.
The question whether to reopen a case to allow a party to lead fresh evidence is discretionary. The discretion must be exercised in accordance with principle having regard to the circumstances of the case. As mentioned above a relevant consideration is prejudice to the respondent. Here there can be no doubt that there is prejudice.
The objects of the QCAT Act are to ensure that all matters are dealt with in a way that is accessible, fair, just, economical, informal and quick.[19] To achieve that end the Tribunal has put in place practices and procedures to ensure that parties have an opportunity to resolve the proceeding through alternate dispute resolution processes – for example, the compulsory conference before the hearing. Where experts are involved, as here, Practice Direction No 4 of 2009 limits to one the number of experts a party may call for each area of expertise. The experts are then required to attend a conclave to identify areas of agreement and disagreement and produce a joint expert report to assist the parties and the Tribunal. Once all the parties have complied with the directions for filing material and a joint experts report has been prepared the matter is listed for, and will proceed to a hearing. As a regular participant in proceedings in this Tribunal the Commission is well aware of these practices.
[19] See s 3(b) of the QCAT Act.
To grant the application to reopen would effectively permit the Commission to re-litigate its case with new expert evidence. The respondent would have to be given an opportunity to respond to the new reports, there would necessarily have to be a further expert’s conclave in accordance with the requirements of the practice direction and the hearing resumed. Save for some very good reason, not simply because a party is fearful that inroads have been made into their case through a thorough cross-examination, to reopen would fly in the face of what this Tribunal is trying to achieve in discharging its responsibilities under the Act. Also, it is well recognised that finality in litigation is highly desirable because further action beyond the hearing can be costly and unnecessarily burdensome on the parties, particularly, in this case the respondent.[20] These matters cannot simply be addressed by an order for costs[21].
[20] Fox v Percy (2003) 214 CLR 118 at 128.
[21]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Even though the learned Member was in error in the manner in which she dealt with the application, after considering the evidence and the principles involved in an application to reopen under the general law, there has been no substantial injustice demonstrated in the circumstances of this case. Leave to appeal is refused.
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