Till and Till ATF The Till Family Trust t/as Mt Cotton Truck Hire v Rose

[2015] QCATA 173

CITATION: Till and Till ATF The Till Family Trust t/as Mt Cotton Truck Hire v Rose [2015] QCATA 173

PARTIES:	Robert Till and Saleshni Till ATF The Till Family Trust t/as Mt Cotton Truck Hire (Applicant/Appellant)
v
Jonathon Rose (Respondent)

APPLICATION NUMBER: APL314 -15

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 14 December 2015

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where new issue introduced at appeal  - whether appeal tribunal should consider new issue – whether exceptional circumstances exist to justify consideration of new issue – whether grounds for leave to appeal

Suttor v Gundowda Pty. Ltd(1950) 81 CLR 418
University of Wollongong v Metwally (No. 2)[1985] HCA 28
Coulton v Holcombe [1986] HCA 33
Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 075
Pickering v McArthur [2005] QCA 294

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

1. Robert and Saleshni Till engaged Jonathon Rose to clear their property fence line of trees and supply and install 260 metres of Colorbond fencing. The total price for the job was $26,950. Mr Rose required, and received, a deposit of $10,000.

2. Part way through the job, the parties fell into dispute about the amount of clearing necessary and the location of the fence. Mr and Ms Till applied to the tribunal for relief from payment of the balance of the contract price. Mr Rose filed a counter application for payment of the balance. The tribunal ordered Mr and Ms Till pay the balance, $16,950.

3. Mr and Ms Till want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act, s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

4. Even though both parties were legally represented at the hearing, the parties did not address the tribunal on a significant issue – whether Mr Rose was required to hold a licence under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). That issue, and the potential consequences, is the subject of the appeal.

Can the appeal tribunal consider an issue not raised at the hearing?

1. Mr Rose submits that the appeal tribunal cannot consider the question of whether he should be licenced, because it was not an issue raised at the hearing.

2. The subject matter of the appeal is a matter for the exercise of the appeal tribunal’s discretion[3], even though the appeal tribunal is not the final avenue of appeal[4]. In considering whether to exercise that discretion, the appeal tribunal starts from this proposition[5]:

   It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

   [3]Coulton v Holcombe [1986] HCA 33 at [8]

   [4]Ibid at [9]

   [5]University of Wollongong v. Metwally (No. 2)[1985] HCA 28 at p 71.

3. Mr and Ms Till have not favoured me with any submissions as to why this is an exceptional case.

4. The Court of Appeal considered what might be an exceptional case in another dispute about the application of s 42(4) of the QBCC Act in Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L)[6]. Apart from considering whether there was merit in the new issue, Fraser JA[7] concluded that the need for a new hearing, if the appeal point was successful, was a reason to refuse to allow a party to rely on new points on appeal. That approach has been confirmed by the High Court[8].

   [6][2009] QCA 075.

   [7]Ibid at [155].

   [8]Coulton v Holcombe supra at [10]; Suttor v. Gundowda Pty. Ltd(1950) 81 CLR 418, at p 438.

5. The tribunal did not have evidence before it that would have enabled an assessment of the reasonable compensation to which Mr Rose would be entitled if he was subject to s 42 of the QBBC Act. Mr and Ms Till concede that they do not know whether the $10,000 already paid to Mr Rose is reasonable compensation. They also submit, however, that ‘It is not worth the powder and shot to have the matter referred back to the Adjudicator with directions to determine that sum. It is the applicant’s preferred course to abandon what entitlements they may have…’

6. That approach may suit Mr and Ms Till but it does not necessarily provide justice to Mr Rose. If the appeal is successful, the proceeding should be remitted to the tribunal for rehearing, with further evidence. Consistent with the reasoning of the High Court and Court of Appeal, that is why I should not entertain the new issue.

7. If, as is often the case in the tribunal, both parties were self-represented and only obtained legal advice after the hearing, I might be inclined to deal with an issue that was not raised at the hearing. I have already observed that both parties were represented.  There is, therefore, no excuse for the Till’s failure to take the point. If the legal representatives failed to argue relevant legal issues before the tribunal then, presumably, Mr and Ms Till have a right of action against their advisers.

1. Leave to appeal should be refused.