CITATION:	Hotrod Mobile Welding Services v Suncity Holdings Qld Pty Ltd [2013] QCATA 170	

PARTIES:	Hotrod Mobile Welding Services
(Applicant/Appellant)	
	v	
	Suncity Holdings Qld Pty Ltd
(Respondent)	

APPLICATION NUMBER:	APL014-13	

MATTER TYPE:	Appeals	

HEARING DATE:	On the papers	

HEARD AT:	Brisbane	

DECISION OF:	Justice Alan Wilson, President	

DELIVERED ON:	13 June 2013	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	Leave to appeal granted.
2.	Appeal allowed.
3.	The orders made herein on 30 November 2012 are set aside.
4.	The matter is remitted to the Tribunal for rehearing. 	

CATCHWORDS:	APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant did not attend hearing – where Tribunal decided matter adversely to the applicant – where applicant sought to reopen proceedings by reason of failure to receive notice of the hearing – where reopening hearing listed – where applicant to attend by remote conferencing refused, but later granted – where Tribunal granted reopening and proceeded to rehear matter – where Tribunal decided matter against applicant – where applicant seeks to appeal that decision – where applicant claims they were not given sufficient time to prepare case – whether Tribunal provided the applicant with a fair hearing – whether Tribunal breached the rules of natural justice

PRACTICE AND PROCEDURE – REOPENING – FRESH HEARING – where Tribunal found reopening ground existed – where Tribunal decided proceeding should be reopened – where s 140 of the Queensland Civil and Administrative Tribunal Act 2009 provides the issues must be heard and decided by way of a fresh hearing on the merits – whether Tribunal must adjourn the rehearing to a later date 

Acts Interpretation Act 1954 (Qld), s 14A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 28(2), s 28(3)(a), s 28(3)(b), s 28(3)(d), s 62(1),  s 139(3)(b), s 140(1), s 140(2),

Cachia v Grech [2009] NSWCA 232, cited
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited
Marshall v Director General, Department of Transport (2001) 205 CLR 603, cited
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited

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. 

REASONS FOR DECISION

[1]	This appeal concerns the Tribunal’s capacity to correct its own error when, because of that error, it has failed to discharge its statutory function.
[2]	In 2011, Suncity Holdings Qld Pty Ltd engaged Hotrod Mobile Welding Services to build and install a water tank on the back of its truck. The truck was returned to Suncity in January 2012. 
[3]	Shortly after using the truck, Steve McLachlan from Suncity contacted Hotrod regarding ‘warranty work’. In an email to Dwayne Robertson, dated 25 January 2013, Mr McLachlan provided a list of repairs that he believed needed to be done to the truck.  In particular, Mr McLachlan sought more holes in the baffles ‘to let the water to the pump when the tank still has a foot of water in it’; additional baffles to be installed which Mr McLaughlin contends he ‘was told… would be going in’; and for the tank to be repositioned to the rear of the chassis to reduce overloading the front axle. 
[4]	On 27 January 2013, Kylie Cornwell, on behalf of Mr Robertson, replied to Mr McLachlan’s email. She wrote that Hotrod could add more holes to the baffles ‘even though the holes that are in it are currently more than adequate’. As for the centre baffles, Ms Cornwell wrote that they were not installed because to do so would restrict access inside the tank. Ms Cornwall also claimed that the tank was ‘mounted as far back as it can possible go due to there being no where near enough support for the tank if it were fitted any further back.’ To avoid the front axle of the truck from being overloaded, Ms Cornwell contends Mr McLachlan had been advised that he must either extend the chassis of the truck or only fill the tank up to a ‘suitable fill level’. Ms Cornwell finished her email by saying that all of these points had been made aware to Mr McLachlan throughout the entire build process.   
[5]	On 1 February 2012, Mr McLachlan replied: ‘Your lack of reply suggests you do not intend to attend to the repairs required to our water tank.’ In that email, he attached a quote to rectify the problems he claimed needed to be done. 
[6]	Ms Cornwell replied on 3 February 2012:
You supplied the vehicle and contracted with us to build a chassis mounted 13,000 litre water tank, and that is what we have done per the drawings you supplied. Our work was to the highest standard.
…
Any costs you incur in making modifications to your vehicle or the tank are yours, and we have no liability to you in that regard. There are no defects with what we produced.
[7]	Suncity then engaged Russcott Rural Maintenance to reposition the tank ‘to relieve the burden of overweight on front axle’; install additional baffles  ‘to counter body roll when tanker half full’; install supports ‘to alleviate [the] collapsing tank’; ‘and, install perforated plates ‘to slow water flow through [the] baffles’. 
[8]	In a letter of demand to Hotrod, dated 6 March 2012, Mr McLachlan, on behalf of Suncity, sought payment for the work done by Russcott and ‘lost time costs’.
[9]	On 10 April 2012, Suncity brought proceedings in QCAT’s Minor Civil Disputes jurisdiction against Hotrod, claiming that it was indebted to it for $25,131.25.
[10]	Those proceedings went to hearing before a Magistrate at Roma, sitting as an ordinary Member of the Tribunal, in October 2012. The learned Magistrate ordered that Hotrod pay Suncity the sum of $25,131.25 within 14 days. No representatives of Hotrod attended the hearing. 
[11]	Mr Robertson filed an application for reopening of the proceeding under s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’). He had, under that section, the right to apply if he considered that a reopening ground existed. Section 137 defines ‘reopening ground’ to mean that a party who did not appear at a hearing had a reasonable excuse, or would suffer a substantial injustice if the proceeding was not reopened because significant new evidence had arisen, and that evidence was not reasonably available when the matter was heard and decided. 
[12]	According to his application and attached affidavit filed in support of it, neither Mr Robertson, nor any other representative of Hotrod, attended the hearing at the Roma Courthouse in October 2012 because the Notice of Hearing had not been received. 
[13]	A Notice of Hearing of Reopening was subsequently issued by the Tribunal notifying the parties that a hearing to decide the reopening application would take place on 26 November 2012. 
[14]	On 16 November 2012, an application by Mr Robertson to attend the reopening hearing by telephone was received by the Tribunal, and subsequently refused. The reasons for refusal of the application were:
[T]he issues raised by the original application are potentially complex. This is a case involving the design and construction of a water tank located on the back of a truck. Engineering evidence is attached to Suncity Holding’s application. It would not be possible to conduct a hearing which is fair to both parties if one of them is in attendance by remote conferencing. It would not be possible in such a case to fairly cross examine a witness using documents in the courtroom if the witness is not also present. Also, this case may turn on findings of credit. It is notoriously difficult to make satisfactory findings of credit concerning a witness when the tribunal never sees the witness. 
[15]	On the day of the reopening hearing, the Tribunal contacted Hotrod advising it that a representative could attend by telephone. 
[16]	At the hearing, the learned Magistrate heard Mr Robertson’s explanation of why neither he nor any other representative of Hotrod attended the original hearing, accepted the explanation, and, reopened the hearing. 
[17]	The learned Magistrate then proceeded to conduct the rehearing. After taking evidence from Noelene McLachlan (who, it appears, is the wife of Steve McLachlan) and Mr Robertson, the learned Magistrate set aside the original decision and reserved his decision.  
[18]	On 30 November 2012, the learned Magistrate gave his decision.  He ordered that Hotrod pay Suncity the sum of $15,539.25 within 14 days. In doing so, as the reasons show, the learned Magistrate relied heavily upon an engineering report from Syngineering, dated 28 March 2012, to conclude:
1.	The positioning of the tank on the truck caused the front axle to be overloaded when the tank was full.
2.	Hotrod always knew this was going to be a problem.
3.	By moving the tank bank, some of this overloading problem was reduced.
It follows that I am satisfied the tank was located in the wrong position on the truck.
[19]	Hotrod seeks leave to appeal that decision. Leave is necessary under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009.
[20]	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?  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?
[21]	The Appeal Tribunal directed that the application for leave to appeal (and the appeal itself, if leave is granted) would be determined on the papers by an exchange of written submissions from the parties. Both parties have filed written submissions. 
[22]	Hotrod’s submissions in support of its application for leave to appeal may be summarised as:
1.	An allegation that it was denied natural justice by not being afforded more time to prepare its case. 
2.	The wrongful admission and subsequent reliance, by the Magistrate, of evidence which, in Hotrod’s submission, was unreliable. 
3.	An error on the part of the Magistrate arising out of his acceptance that there was an agreement between the parties requiring Hotrod ‘to do anything other than build a water tank and place it on the truck in accordance with [Suncity’s] instructions’.
4.	The Magistrate’s finding that, by moving the water tank the overloading problem was reduced, was not supported by evidence. 
[23]	It is unnecessary to consider the second, third and fourth grounds because, for reasons which follow, I am persuaded that the first must succeed. 
[24]	Under s 3(b) of the QCAT Act the Tribunal must deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick’.’ It must ensure proceedings are ‘conducted in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice’.  It is not bound by the rules of evidence or the practices or procedures of courts, and must act with as little formality and technicality and with as much speed as it can; and, it can do ‘whatever is necessary for the speedy and fair conduct of the proceeding’.  
[25]	This emphasis on expedition and informality does not, however, allow the Tribunal to pursue speedy resolution at all costs. In all proceedings it must ‘act fairly and according to the substantial merits of the case’ and ‘observe the rules of natural justice’.  
[26]	The Tribunal in this instance did not do so.
[27]	Under s 139(3)(b) of the QCAT Act, the Tribunal may decide whether or not to reopen a proceeding entirely on the basis of written submissions without a hearing. If the Tribunal considers a reopening ground exists and decides the proceeding should be reopened, it must decide the issues in the proceeding again. Those issues must be decided by way of a fresh hearing on the merits. 
[28]	In this matter, the learned Magistrate held, dismissing Hotrod’s application to appear by telephone, that the issues in the proceeding were ‘potentially complex’ and ‘[i]t would not be possible to conduct hearing which is fair to both parties if one of them is in attendance by remote conferencing.’ In spite of that earlier decision, the Tribunal allowed Mr Robertson to appear by telephone on the day of the hearing, reopened the hearing, and reheard the matter that same morning. 
[29]	The issue that arises, in this appeal, concerns the capacity of the Tribunal to proceed in that way.
[30]	There is nothing in the QCAT Act which requires that, once the Tribunal had decided a proceeding should be reopened, the rehearing must be adjourned to a later time and date. The term ‘fresh hearing’ is not defined in the QCAT Act and has no fixed legal meaning independent of the statutory context in which it is found. In the absence of a clear definition, the basic rule of statutory construction is that legislative provisions are to be construed according to their natural and ordinary meaning; and, in a way that will best achieve the purpose of the relevant Act. 
[31]	I am persuaded the natural and ordinary meaning of the term, and the context in which it is found in the QCAT Act, means that the rehearing of the proceeding should not be heard at the hearing of reopening – i.e., immediately upon the reopening order being made.
[32]	Fairness and justice, in the context of s 3(b), is a procedural, rather than substantive, concept. A failure to comply with a procedural requirement does not always result in invalidity. In this matter, however, it does. It is clear from the transcript of the proceeding that the learned Magistrate was correct in finding ‘[i]t would not be possible to conduct hearing which is fair to both parties if one of them is in attendance by remote conferencing’ and erred in proceeding to rehear the matter after granting the application to reopen. 
[33]	In the present case there was a breach of natural justice. By not, after allowing the reopening, then adjourning the matter for a rehearing to a time which would allow the parties to prepare for it the learned Magistrate breached the common law fair hearing principle. As a result, the Tribunal denied Hotrod the opportunity to sufficiently prepare its case; and, in consequence, it dealt with the matter in a way that was ‘quick’ but not ‘just’ or ‘fair’. 
[34]	In those circumstances, the learned Magistrate’s decision was inconsistent with the QCAT Act.
[35]	It follows that leave to appeal must be granted, the appeal allowed, the orders made herein on 30 November 2012 set aside, and the matter remitted to the Tribunal for rehearing.