Stanton v Electrics Downunder Pty Ltd - [2019] QCAT 158

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Stanton v Electrics Downunder Pty Ltd [2019] QCAT 158

PARTIES: NOEL EDWARD STANTON

(applicant)

v

ELECTRICS DOWNUNDER PTY LTD

(respondent)

APPLICATION NO/S:

REO013-18

MATTER TYPE:

Building matters

DELIVERED ON:

10 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:
The application to reopen proceeding BDL231-16 is refused.

CATCHWORDS:
APPEAL AND NEW TRAIL – PROCEDURE- QUEENSLAND – POWERS OF COURT – where matter referred to tribunal under s 143A(2) of Queensland Civil and Administrative Tribunal Act 2009 (Qld) to decide whether to reopen – where hearing on the papers – whether a party can seek to reopen a matter based on not appearing at the proceedings

EVIDENCE – ADDUCING EVIDENCE – COURSE OF EVIDENCE – RE-OPENING CASES – BY COURT –where matter referred to tribunal under s 143A(2) of Queensland Civil and Administrative Tribunal Act 2009 (Qld) to decide whether to reopen – whether party can rely on reasons for tribunal decision as ‘fresh evidence’ to support application to reopen

Uniform Civil Procedure Rules 1999 (Qld) r 668
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139, s 140, 143A2, sch 3

David J. Williams v. Toyota Finance Australia Limited [2000] QDC 439
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Fairmont Suites and Hotels Pty Ltd v Duck Holes Creek Investments Pty Ltd & Ors [2009] QSC 98
R v Katsidis; ex parte A-G (Qld) [2005] QCA 229
Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417
Rockett & Anor v The Proprietors of “The Sands” BUP 82 [2002] 1 Qd R 307
Stanton v Queensland Building and Construction Commission [2017] QCAT (unreported)
Stanton v Queensland Building and Construction Commission [2018] QCAT 271

REPRESENTATION
Applicant:

Kelly Legal

Respondent:

McKays Solicitors

APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The background

Mr Noel Stanton entered into a contract with Mr Shaun Cook for the construction of a dwelling by Mr Stanton. Electrics Downunder Pty Ltd (‘Electrics Downunder’) performed electrical works at the dwelling.
Mr Stanton and Mr Cook and Mr Stanton and Electrics Downunder fell into dispute. Mr Stanton commenced proceedings in the tribunal claiming relief from payment of an amount of $3,443.37 to Electrics Downunder and damages in the amount of $5,000.[1] Electrics Downunder counterclaimed for an amount of $8,433.37 which it said was due and owing by Mr Stanton.[2] In essence, Mr Stanton claimed that he had not engaged Electrics Downunder to perform the electrical works and that Mr Cook had done so. Electrics Downunder said that it had been engaged by Mr Stanton to perform the works. I will refer to those proceedings as BDL231-16.
[1]Application for domestic building disputes filed 14 September 2016, BDL231-16.
[2]Response and counter-application filed 20 October 2016, BDL231-16.
The Tribunal made various directions from time to time in BDL231-16. The matter was listed for hearing in…

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.

Continue reading Stanton v Electrics Downunder Pty Ltd

Details

AGLC: Stanton v Electrics Downunder Pty Ltd [2019] QCAT 158
Case: [2019] QCAT 158
Decision Date: 10 June 2019

CaseChat Overview and Summary

In Stanton v Electrics Downunder Pty Ltd, the dispute arose from an application by Mr Stanton to reopen a decision made by the Queensland Civil and Administrative Tribunal (QCAT). The initial proceedings involved a claim by Mr Stanton against Electrics Downunder Pty Ltd, followed by a counterclaim by Electrics Downunder. The QCAT dismissed Mr Stanton’s application and ordered him to pay Electrics Downunder $9,309.14. Mr Stanton sought to appeal this decision, which was also dismissed. Subsequently, Mr Stanton applied to reopen the proceedings under section 136 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), citing new evidence and a reasonable excuse for not attending the original hearing.

The primary legal issue before the court was whether Mr Stanton's application to reopen the proceedings could succeed based on the grounds of new evidence and a reasonable excuse for non-attendance. The court had to determine whether the QCAT's decision dismissing Mr Stanton’s application and ordering him to pay the counterclaim constituted a "proceeding heard and decided" within the meaning of section 136 of the QCAT Act. Furthermore, the court needed to assess whether the new evidence presented by Mr Stanton was admissible and whether it constituted fresh evidence that could justify reopening the matter.

The court found that the QCAT's decision, which included the dismissal of Mr Stanton’s application and the order for him to pay the counterclaim, constituted a "proceeding heard and decided." Therefore, the reopening regime applied to this decision. The court also considered the nature and admissibility of the fresh evidence presented by Mr Stanton. It was noted that the fresh evidence, specifically a file note, was disputed by Electrics Downunder and conflicted with other evidence presented. The court concluded that even if the fresh evidence was accepted, it did not provide a valid basis for reopening the proceeding. The court emphasised the importance of finality in litigation and the limited circumstances under which a proceeding can be reopened. In light of these considerations, the court refused Mr Stanton's application to reopen the proceeding.

The court's final order was that the application to reopen proceeding BDL231-16 was refused.

Orders

Orders of the court

The application to reopen proceeding BDL231-16 is refused.

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

If an application for reopening is successful, the proceeding cannot be reopened again.[11][11]Ibid, s 140(6).The decision of the Tribunal, the subject of the reopening application It is appropriate to make some observations regarding the two decisions made by the Tribunal in BDL231-16. By the first decision, on 24 May 2017, Mr Stanton’s application was dismissed. By the second decision, on 27 June 2017, Mr Stanton was ordered to pay to Electrics Downunder the amount of $9,309.14 in respect of the counter-application. The application for leave to appeal or appeal identifies the second of the decisions as the decision under appeal. The order of the Appeal Tribunal in respect of REO013-18 is confined to the second decision. Mr Stanton’s submissions appear to conflate the first and second decisions. Mr Stanton submits that the second decision dismissed his application and allowed the counterclaim by Electrics Downunder. This submission is clearly incorrect for the reasons I have outlined. In the appeal submissions, Mr Stanton submits that the reasons in Stanton v Electrics Downunder Pty Ltd set out the reasons for both the first decision and the second decision. I do not accept this submission. The reasons relate only to the second decision. Insofar as the first decision is referred to, the reasons are a recitation of the history of the proceedings leading to the second decision. In the reopening submissions, Mr Stanton submits that on 27 June 2017 his application in BDL231-16 was dismissed and Electrics Downunder obtained judgment on the counter-application. This submission is clearly erroneous. The second decision was confined to the counter-application. The Appeal Tribunal directed that the following documents filed in the appeal be placed on REO013-18:(a)Submissions in support of the application to stay a decision filed 16 August 2018 (the stay submissions);(b)Submissions in support of the application to rely upon fresh evidence (the fresh evidence submissions);(c)Submissions in support of the application for leave to appeal or appeal (the appeal submissions). I have reference to these submissions in determining the application to reopen.What do the parties say? The parties were directed to file submissions in REO013-18 (the reopening submissions). Mr Stanton says that he can establish both of the reopening grounds set out in the definition of ‘reopening ground’ under the QCAT Act. Mr Stanton says that he has a reasonable excuse for not attending the hearing. He also says that he will suffer a substantial injustice if the proceeding is not reopened because significant new evidence has arisen which was not reasonably available when the proceeding was first heard and decided. In his reopening submissions Mr Stanton says:Notwithstanding that the Applicant’s position is that both of the alternative reopening grounds exist, these submissions will be limited to the issue of new evidence having arisen (the Applicant’s reasonable excuse for failing to attend the hearing was canvassed in the decision of Member Paratz in Stanton v Electrics Downunder Pty Ltd [2018] QCATA 106, wherein Member Paratz accepted the Applicant’s evidence as to his inability to appear at the hearing).

Ratio Decidendi

Legal Principle Established

As to the reliance by Mr Stanton upon fresh evidence, Electrics Downunder says:(a)It disputes the validity of the QBCC file note on the basis that it does not accurately reflect the discussion that took place;(b)The content of the file note is in direct contrast to other evidence including:(i) The building contract between Mr Stanton and Mr Cook which contains a provisional sum allowance for electrical works;(ii) Mr Stanton expressly instructed the director of Electrics Downunder to send all invoices relating to electrical works to him;(c)Mr Cook’s evidence at the hearing in the review proceedings was that he did not engage Electrics Downunder to perform electrical works as part of the building contract entered into between Mr Cook and Mr Stanton.Consideration In Ramke Constructions Pty Ltd v Queensland Building Services Authority (‘Ramke’)[14] the Tribunal held:In my opinion, for a proceeding to have been heard and decided by the tribunal it is necessary (unless the parties are agreed as to the order the Tribunal should make) for there to be a hearing of the proceeding rather than a hearing of some other matter connected with it. Usually in a hearing of the proceeding, the merits of the proceeding would be considered and assessed by the Tribunal, although this might not happen for example if the applicant does not appear and the Tribunal is satisfied that the application is no longer being pursued. But when a proceeding is dismissed or struck out for noncompliance nothing of this nature happens. Instead, all that is considered is whether it is just to dismiss or strike out for the non-compliance in all the circumstances of the case. On such a dismissal or strike out the proceeding is not heard, nor is a decision made as to the success or failure of the proceeding whether on its merits or otherwise. Therefore the proceeding is not “heard and decided” and the reopening regime does not apply to the decision to dismiss or strike out. [14][2012] QCAT 417, [14]. As the Tribunal held in Ramke, a hearing of a proceeding involves a determination on the merits. For the purposes of s 136 of the QCAT Act, ‘a proceeding heard and decided by the tribunal’ includes a proceeding decided on the papers. The decision, the subject of the application to reopen, is therefore a decision for the purposes of s 136. The power to reopen a proceeding is one of the limited exceptions to the application of the doctrine of functus officio found in the QCAT Act.. The power of the tribunal to reopen a proceeding is strictly circumscribed. There are sound policy considerations underpinning these constraints, principally the need to ensure that there is finality in litigation and that a party cannot ‘go behind’ a decision of the tribunal except in very limited circumstances. In D’Orta-Ekenaike v Victoria Legal Aid [15] the High Court held:A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet finds the reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. … As was said in the joint reasons in Coulton v Holcombe: “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.”[15](2005) 223 CLR 1, 17 [34] (citations omitted)..