Terera v Clifford

Case [2017] QCA 181

SUPREME COURT OF QUEENSLAND

CITATION:

Terera & Anor v Clifford [2017] QCA 181

PARTIES:

SANDRA PHYLLIS TERERA
(first applicant)
ROBERT BOLHAR
(second applicant)
v
ALAN CLIFFORD
(respondent)

FILE NO/S:

Appeal No 10580 of 2016
QCATA No 52 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2016] QCATA 25 (Senior Member O’Callaghan & Member Lumb)

DELIVERED ON:

18 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2017

JUDGES:

Morrison JA and Atkinson and Douglas JJ

ORDERS:

1.   The application for leave to adduce further evidence is refused.

2.   The application for leave to appeal the decision of the QCAT Appeal Tribunal made on 5 February 2016 and the QCAT Member made on 12 April 2016 is refused.

3.   The applicants pay the respondent’s costs of the application to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent had performed tiling work for the applicants – where the applicants complained to the Queensland Building and Construction Commission and rectification work was completed – where the applicants remained unsatisfied with the work and refused to pay for the work – where the dispute proceeded to the Queensland Civil and Administrative Tribunal (QCAT) and then the QCAT Appeal division (QCATA) – where the applicants were successful only in part, and a costs order was made against the applicants – where the applicants seek leave to appeal the QCATA decision and the costs order – where the applicants require an extension of time in which to appeal – whether an extension of time is necessary and appropriate – whether leave should be granted to allow the applicants to bring the appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 150, s 151

Berry v Commissioner of Police [2015] 1 Qd R 388; (2014) 244 A Crim R 518; [2014] QCA 238, cited
Pershouse v Queensland Police Service[2013] QCA 296, cited
Pickering v McArthur [2005] QCA 294, cited
Queensland Building and Construction Commission v Meredith[2014] QCA 62, applied
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
Underwood v Queensland Department of Communities (Qld) [2013] 1 Qd R 252; [2012] QCA 158, applied
White v Commissioner of Police [2014] QCA 121, cited

COUNSEL:

The applicants appeared on their own behalf
S Kelly for the respondent

SOLICITORS:

The applicants appeared on their own behalf
McCarthy Durie Lawyers for the respondent

  1. MORRISON JA:  Mr Clifford performed tiling work for Ms Terera and Dr Bolhar.[1]  The contract price was $5,337.  Rectification work was done after a complaint was made to the Queensland Building & Construction Commission (QBCC).[2]  Ms Terera remained unsatisfied with the work and a sum of $1,631 remained unpaid.

    [1]For ease of reference I will refer…

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Details
AGLC
Terera v Clifford [2017] QCA 181
Case
[2017] QCA 181
Decision Date

CaseChat Overview and Summary

The case of Terera v Clifford involves an appeal against the decision of the Queensland Civil and Administrative Tribunal (QCAT) and its Appeal Division (QCATA). The applicants, Terera and Bolhar, sought rectification work to be done by Clifford, a tiler. After the work was completed, the applicants complained to the Queensland Building and Construction Commission and refused to pay for the work. The dispute proceeded to QCAT and QCATA, where the applicants were successful only in part and a costs order was made against them. The applicants now seek leave to appeal the QCATA decision and the costs order and require an extension of time in which to appeal.

The legal issues in this case revolve around whether an extension of time is necessary and appropriate for the applicants to appeal the QCATA decision and the costs order, and whether leave should be granted to allow the applicants to bring the appeal. The applicants argue that they had financial difficulties and family tragedies that delayed their ability to file the appeal within the required time frame. They also argue that the QCATA decision was incorrect and that they have a reasonably arguable case of error in the primary decision.

The court examined the principles applicable to an application for extension of time and considered whether good reason for the delay has been shown and whether it is in the interests of justice to grant the extension. The court found that the delay was very long and there were unsatisfactory aspects to the explanation provided by the applicants. The court also examined the points raised in the proposed appeal and found that the Appeal Tribunal's finding was that the Member's findings were open on the evidence.

Ultimately, the court found that there being no identified questions of law, the proposed appeal did not satisfy s 150 and would fail for that reason. The application for leave to adduce further evidence was refused, as was the application for leave to appeal the QCATA decision and the costs order. The applicants were ordered to pay the respondent's costs of the application to be assessed on the standard basis.

Orders

Orders of the court

1. The application for leave to adduce further evidence is refused.

2. The application for leave to appeal the decision of the QCAT Appeal Tribunal made on 5 February 2016 and the QCAT Member made on 12 April 2016 is refused.

3. The applicants pay the respondent’s costs of the application to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Notwithstanding that conclusion, given that Ms Terera was self-represented in the QCAT proceedings and in this Court, I intend to examine the points raised in the proposed appeal.Non-acceptance of Mr Clifford’s evidence The Appeal Tribunal examined the basis upon which the Member dismissed Ms Terera’s application. It noted these features about the Member’s approach:(a)the photographs said to evidence the defects in tiling were found to be “not especially helpful”, and criticisms were made of their quality;[31](b)the applicants had the onus to adduce evidence which was satisfactory;[32](c)he accepted Mr Clifford’s evidence on one issue (lippage); on another he was not satisfied that he could make findings that defective work caused a fault (stainage);[33] and(d)on some areas there was no evidence or no expert evidence (bulging of walls and tiling issues).[34][31]Terera & Bohlar (sic) v Clifford [2016] QCATA 25 (QCATA Reasons) [44]-[45]. The Appeal Tribunal agreed with those descriptions: Reasons [46].[32]QCATA Reasons [47].[33]QCATA Reasons [49]-[50].[34]QCATA Reasons [51]-[52]. The Appeal Tribunal addressed the authorities that established the test for interference in a primary decision,[35] namely:“Is there a reasonably arguable case of error in the primary 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 of the appellate court or tribunal, would be to the public advantage?”[35]Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [29]; Bannink v Solar Energy Group Pty Ltd [2012] QCATA 148 at [16]. It was not suggested before this Court that the Appeal Tribunal proceeded on an incorrect view of the law as to their task. Having done so the Appeal Tribunal then reviewed the evidence, concluding that it was open to the Member to find as he did on the various issues.[36] The Appeal Tribunal concluded:[37]“For the reasons discussed above, we cannot be satisfied that the Applicants have demonstrated that there is a reasonably arguable case of error in the primary decision and that there is a reasonable prospect that the Applicants would obtain substantive relief if leave were granted. In our view, leave to appeal in relation to the matters raised in paragraphs 4, 5 and 7 of the Applicants’ written submissions should be refused.”[36]QCATA Reasons [56]-[60].[37]QCATA Reasons [61]. As is evident, the Appeal Tribunal’s finding was that the Member’s findings were open on the evidence. The submissions on the appeal by Ms Terera went into considerable detail as to the defects in the Member’s approach, and the contended deficiencies in the evidence, especially Mr Clifford’s evidence.[38] However, it was not a case where the Appeal Tribunal had to accept or reject the evidence of Mr Clifford, though it was plainly not persuaded that his evidence should be rejected.[38]AB 326-336.

Decision

Reasons for decision

Decision 4: on 14 April 2016, the Appeal Tribunal ordered that each party must bear their own costs of the appeal.[21][21] Terera & Bohlar v Clifford (No 2) [2016] QCATA 59; AB 373. On 28 April 2016, Ms Terera prepared an application for leave to appeal against the Member’s decision made on 12 April 2016 (Decision 3).[22] It seems that the Court of Appeal registry may have rejected the document when an attempt was made to file it on 30 April,[23] but it seems likely to have come to the attention of the solicitor for Mr Clifford. Ms Terera knew by 10 May 2016 that the document had not been filed, and had been rejected by the registry.[24] Thus, I intend to proceed on the basis that Mr Clifford had notice in late April 2016 of the intention to challenge the costs decision by way of appeal to this Court.[22]AB 316.[23]AB 408, paragraphs 6 and 7.[24]AB 408 paragraph 7. On 17 October 2016, a document was filed which comprised an application for leave to appeal against the decisions of the Appeal Tribunal (Decision 2) and the Member’s costs decision (Decision 3), a notice of appeal, and an application for an extension of time. Ms Terera requires an extension of time within which to file the application for leave to appeal against the Appeal Tribunal’s decision. The time period for filing an application expired on 4 March 2016,[25] and the application was filed on 17 October 2016, and thus about seven and a-half months late.[25]See s 151 of the QCAT Act.Extension of time The principles applicable to an application for extension of time are set out in paragraph [9] above. They require consideration of whether good reason for the delay has been shown, and whether it is in the interests of justice to grant the extension. That may require a provisional assessment of the strength of the proposed appeal, the prejudice to the respondent, and the length of the delay. Here, where the merits of the proposed appeals were heard at the same time as the application for an extension of time, the assessment of the strength of the case does not need to be provisional. The delay here is very long. The explanation[26] given is as follows:(a)Ms Terera and Mr Bolhar have had financial difficulties; he lost his job and was unemployed for 19 months; she was unemployed for three months;(b)there were family tragedies with financial implications, including the cost of Mr Bolhar’s father staying in a home in Germany;(c)because Mr Bolhar lives and works overseas they have the costs of two households to maintain;(d)they waited for the costs decision to be handed down, which occurred on 12 April 2016; and(e)Ms Terera unsuccessfully tried to file an application for leave to appeal, realising on 10 May that it had not been; she was overseas until 22 May 2016.[26]AB 408. It is not on oath, but Ms Terera is self-represented and may not have realised that was necessary. I intend to assume that if put to it Ms Terera would swear such an affidavit. There are unsatisfactory aspects to the explanation.

Ratio Decidendi

Legal Principle Established

There being no identified questions of law, the proposed appeal does not satisfy s 150, and would fail for that reason.Consideration of the appeal points Notwithstanding that conclusion, given that Ms Terera was self-represented in the QCAT proceedings and in this Court, I intend to examine the points raised in the proposed appeal.Non-acceptance of Mr Clifford’s evidence The Appeal Tribunal examined the basis upon which the Member dismissed Ms Terera’s application. It noted these features about the Member’s approach:(a)the photographs said to evidence the defects in tiling were found to be “not especially helpful”, and criticisms were made of their quality;[31](b)the applicants had the onus to adduce evidence which was satisfactory;[32](c)he accepted Mr Clifford’s evidence on one issue (lippage); on another he was not satisfied that he could make findings that defective work caused a fault (stainage);[33] and(d)on some areas there was no evidence or no expert evidence (bulging of walls and tiling issues).[34][31]Terera & Bohlar (sic) v Clifford [2016] QCATA 25 (QCATA Reasons) [44]-[45]. The Appeal Tribunal agreed with those descriptions: Reasons [46].[32]QCATA Reasons [47].[33]QCATA Reasons [49]-[50].[34]QCATA Reasons [51]-[52]. The Appeal Tribunal addressed the authorities that established the test for interference in a primary decision,[35] namely:“Is there a reasonably arguable case of error in the primary 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 of the appellate court or tribunal, would be to the public advantage?”[35]Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [29]; Bannink v Solar Energy Group Pty Ltd [2012] QCATA 148 at [16]. It was not suggested before this Court that the Appeal Tribunal proceeded on an incorrect view of the law as to their task. Having done so the Appeal Tribunal then reviewed the evidence, concluding that it was open to the Member to find as he did on the various issues.[36] The Appeal Tribunal concluded:[37]“For the reasons discussed above, we cannot be satisfied that the Applicants have demonstrated that there is a reasonably arguable case of error in the primary decision and that there is a reasonable prospect that the Applicants would obtain substantive relief if leave were granted. In our view, leave to appeal in relation to the matters raised in paragraphs 4, 5 and 7 of the Applicants’ written submissions should be refused.”[36]QCATA Reasons [56]-[60].[37]QCATA Reasons [61]. As is evident, the Appeal Tribunal’s finding was that the Member’s findings were open on the evidence. The submissions on the appeal by Ms Terera went into considerable detail as to the defects in the Member’s approach, and the contended deficiencies in the evidence, especially Mr Clifford’s evidence.[38] However, it was not a case where the Appeal Tribunal had to accept or reject the evidence of Mr Clifford, though it was plainly not persuaded that his evidence should be rejected.[38]AB 326-336.