Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd
[2011] QCATA 102
•21 April 2011
| CITATION: | Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd [2011] QCATA 102 |
| PARTIES: | Tilecorp Pty Ltd (Applicant/Appellant) |
| v | |
| Pinnacle Seal Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL056-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 21 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Appeal on question of law refused. 2. Application for leave to appeal on questions of fact or mixed questions of law and fact refused. |
| CATCHWORDS: | BUILDING DISPUTE – DECISION IN ABSENCE OF PARTY – APPEAL ON QUESTION OF LAW – where applicant filed response but failed to attend compulsory conference due to error of its own – where learned Member did not stand matter down or adjourn proceedings – where learned Member determined matter in accordance with s 72 of the Queensland Civil and Administrative Tribunal Act 2009 – whether learned Member erred in law BUILDING DISPUTE – LEAVE TO APPEAL – QUESTIONS OF FACT OR MIXED LAW AND FACT – where applicant filed response but failed to attend compulsory conference due to error of its own – where learned Member determined the matter in its absence – whether learned Member gave insufficient or too much weight to certain evidence Queensland Civil and Administrative Tribunal Act 2009, ss 32, 137, 142 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 cited Guss v Law Institute of Victoria Ltd [2006] VSCA 88 followed Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd [2011] QCAT 052 cited Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450 followed |
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 (QCAT Act).
REASONS FOR DECISION
This commercial building dispute was set down for a compulsory conference before a QCAT Member, Professor Adrian Ashman, on 22 October 2010. Tilecorp Pty Ltd did not appear at the conference and the learned Member decided to proceed under s 72 of the QCAT Act and made a decision in the matter.
He did so, and ordered that Tilecorp Pty Ltd pay Pinnacle Seal Pty Ltd $10,912.00 and, also, ordered that Pinnacle Seal was relieved from paying Tilecorp an amount of $12,240 it was claiming.
Tilecorp then applied through Mr David Mullan (who described himself as the ‘owner of the company’) for an order that the proceeding be reopened.
QCAT can order reopening if it is satisfied that a party had a reasonable excuse for not attending a hearing (including a compulsory conference); or, would suffer substantial injustice if the proceeding was not reopened, because significant new evidence has arisen which was not reasonably available when the proceeding was first heard and decided.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009, s 137.
In his submissions in support of the re-opening Mr Mullan says he ‘…missed the original compulsory conference which was set down for 22/10/2010 at 3:30 pm because I had wrongly entered the date of the hearing into my calendar. This was a mistake on my part.’
The reopening application was determined by another QCAT Member[2] who held that simply missing the date of hearing through an error or inadvertence was not a ‘reasonable excuse’ such as to entitle a party to a reopening, under the legislation.[3]
[2] Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd [2011] QCAT 052.
[3]Following Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69.
Undaunted, Tilecorp then:
a)Requested, under, s 122 of the QCAT Act, written reasons for Professor Ashman’s decision;
b)Requested written reasons for the decision refusing the reopening; and
c)Sought leave to appeal Professor Ashman’s decision.
The reasons were not sought until 28 January 2011. The learned Member was on leave at the time but the reasons were ultimately delivered in early March. The reasons for refusal of the reopening had been delivered earlier, on 11 February 2011.
On 8 March 2011 this Appeal Tribunal ordered that the application for leave to appeal (and the appeal, if leave is granted) would be determined ‘on the papers’[4] by written submissions according to a timetable. The parties have filed and exchanged submissions.
[4]A phrase with a particular meaning under s 32 of the Queensland Civil and Administrative Act 2009.
[10] Leave to appeal is necessary unless the appeal is brought upon a question of law.[5] The submissions in support of Tilecorp’s application were delivered and signed by its solicitors.
[5] Queensland Civil and Administrative Tribunal Act 2009, s 142.
[11] It is said that the learned Member erred in law when he determined to proceed with the matter rather than adjourn it, or stand it down to contact Mr Mullan by telephone. It is also said that, in the light of material which had already been provided to QCAT, to proceed without one of the parties involved non-compliance with s 4(c) of the QCAT Act (which requires that the Tribunal ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice).
[12] Section 72 of the QCAT Act specifically addresses the consequences, and what the Tribunal can do, if a party fails to attend a compulsory conference. In particular, it provides that the conference can proceed in the party’s absence and that the presiding Member can reach a decision adverse to the absent party and make ‘… any appropriate orders including orders about costs.’
[13] In his reasons the learned Member referred, specifically, to s 72 and explained, in some detail, how and why he came to be satisfied that Mr Mullan knew of the time, date and place of the compulsory conference. He then set out, in 18 numbered paragraphs under the heading ‘Consideration of the matter pursuant to s 72 of the Act’ why and how he concluded, on the evidence before him, that:
a)The applicant had established an entitlement to the sum of $10,912.00; and
b)Pinnacle Seal ought to be relieved of any obligation to pay Tilecorp $12,240.00, which it was claiming.
[14] The learned Member specifically refers to documents supporting Pinnacle Seal’s case and exposes, in detail, the process of reasoning which led him to both these conclusions.
[15] In their submissions Tilecorp’s lawyers refer, in particular, to ss 3(b), 4(c) and 69 of the QCAT Act. Section 3(b) requires that the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. The terms of s 4(c) have already been recited. Section 69 sets out the purposes of a compulsory conference: to identify issues in dispute, promote settlements, identify questions of fact and law to be decided, make orders and give directions about the conduct of a proceeding, and make any other orders thought to be necessary to resolve the dispute.
[16] These provisions are plainly to be read in light, in the present circumstances, of s 72. This is a case in which a party failed to attend a compulsory conference, without a reasonable excuse. As the learned Member’s reasons point out, Mr Mullan had been contacted about two weeks before the hearing, and on that occasion he confirmed that he had received notice of the compulsory conference set down for 22 October 2010.
[17] There was no compelling reason for the learned Member to exercise his discretion, under s 72, in any way different from the course he chose. Nothing in the circumstances, or the applicant’s submissions, is persuasive that the way the Member actually exercised that discretion was inconsistent with ‘achieving justice’, as that term is used in s 4(c) – or that there is any apparent error of law in the decision.
[18] It is then said that the learned Member made findings of fact that were inconsistent with, and against the weight of evidence, before the Tribunal. It is plain from his lengthy and detailed reasons that the Member took pains to investigate, and consider, the documents that had been filed by both parties in the proceedings including, in particular, a response and/or counter application filed by Tilecorp.
[19] It is said, nevertheless, that he failed to give proper weight to certain documents, and was wrong in his conclusion that there was insufficient evidence to determine what amount, if any, of compensation Tilecorp might be entitled to.
[20] Again, the learned Member was very careful to expose his process of reasoning. He chose to place more weight on some other evidence than upon that relied upon by Tilecorp. This Tribunal will only interfere with findings of fact if it can be seen that the only reasonable conclusion open on the evidence was different from that reached by the learned Member, such that his determination must have involved some legal error.[6] It has also been said that an appellate body might interfere if there was no evidence to support a conclusion, or if the conclusion is so contrary to the available evidence it can only be described as perverse.[7]
[6] Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450.
[7] Guss v Law Institute of Victoria Ltd [2006] VSCA 88.
[21] These questions must also be considered, too, in the context of s 28 of the QCAT Act which provides that the Tribunal is not bound by the rules of evidence, and can inform itself in any way it considers appropriate. That is not to suggest there was any informality about the approach Professor Ashman took; as it is appropriate to repeat, he was careful to explain how and why he reached his conclusions, and to make specific reference to the evidence he relied upon for them.
[22] Tilecorp’s submissions in this respect are unpersuasive, and are not supported by the evidence to which the learned Member referred. There is no apparent error in the process by which he analysed, and came to prefer, evidence which was unfavourable to Tilecorp. There is, therefore, no basis upon which leave to appeal should be granted.
[23] It is said, for Pinnacle Seal, that Tilecorp’s application is out of time. Under s 143, an application for leave to appeal must be filed within 28 days after the ‘relevant day’ which, for present purposes, means the day upon which the applicant is given written reasons for the decision being appealed against. The delay between the time of the compulsory conference and the delivery of the learned Member’s reasons did not involve time running against Tilecorp.
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