QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Huckstep Enterprises Pty Ltd t/as Global Coating Solutions v Harding as trustee of the Blair Harding Family Trust [2020] QCATA 140	
PARTIES:	HUCKSTEP ENTERPRISES PTY LTD t/as global coating solutions	
	(applicant\appellant)	
	v	
	monique kim Harding as trustee of the blair Harding family trust	
	(respondent)	
APPLICATION NO/S:	APL047-20	
MATTER TYPE:	Appeals	
DELIVERED ON:	23 September 2020	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Member Richard Oliver	
ORDERS:	1.	Leave to appeal granted.
2.	Appeal allowed.
3.	The application is remitted to the Minor Civil Disputes list at Southport for determination by another adjudicator/member.	
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – leave to appeal – control over proceedings – procedural fairness – where respondent applied to substitute respondent and adjourn the hearing of the application – where tribunal summarily  dismissed the application without a hearing – whether the applicant afforded natural justice – whether the applicant given an opportunity to respond to matters raised by the tribunal – whether application should have been adjourned – whether applicant afforded procedural fairness.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13, s 28, s 142
Queensland Building and Construction Commission Act 1991 (Qld), s 76, s 77, Sch 2
Terera & Anor v Clifford [2017] QCA 181
Goldberg t/as Goldberg Constructions v Jogis [2019] QCAT 49 
Greystone Distributions (Qld & NSW) Pty Ltd & Ors v Rostron Carlyle Solicitors & Ors [2020] QCA 126
Port of Melbourne Authority v Anshun (1981) 147 CLR 589	
APPEARANCES & REPRESENTATION:	
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
[1]	The applicant commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming $11,374 against the respondent for the cost of grinding, filling and recoating external concrete surfaces in the grounds of the respondent’s accommodation and recreation centre, Wings Hinterland Retreat at Tallai (‘the Retreat’). When the matter came on for hearing, the learned adjudicator summarily dismissed the application in the absence of any application by the respondent or her appearance at the hearing. The applicant has appealed that decision. 
[2]	An appeal from the minor civil dispute jurisdiction is not an appeal as of right. Section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that in respect of a decision in a proceeding for a minor civil dispute an appeal may be made only if the party has obtained the appeal Tribunal’s leave to appeal. Leave to appeal will usually only be granted when there is a reasonable argument that the decision was attended by error, or an appeal is necessary to correct a substantial injustice caused by the error. Here the principal ground of appeal is a denial of procedural fairness which necessarily involves a question of law. For the reasons stated below leave to appeal is granted and the appeal is allowed.
[3]	It is now over 10 years since the commencement of the Tribunal and introduction of the minor civil disputes jurisdiction. This jurisdiction provided a novel way to deal with disputes between parties up to a monetary amount of $25,000. Consistent with the objects of the QCAT Act, it was intended that disputes be dealt with in a way that is ‘accessible, fair, just economical, informal and quick’. Also, s 13 of the Act sets out how a minor civil dispute should be decided by requiring the Tribunal to make orders ‘that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute’. The Tribunal can also make an order dismissing an application. 
[4]	To assist in achieving these outcomes, s 28 sets out how the Tribunal should conduct proceedings, in particular it must ‘observe the rules of natural justice’, can ‘inform itself in any way it considers appropriate’ and inter alia, is not bound by the rules of evidence. Parties are generally self-represented and therefore the presiding adjudicator must ensure there is fairness in conducting the proceedings. In Australian Furniture Relocations Pty Ltd v Eco Builder Pty Ltd, Member Hughes also provided insightful commentary as to how matters are dealt with in the minor civil disputes jurisdiction of the tribunal. He highlighted the sometimes onerous task of having to decide complex cases in a short amount of time and still ensure fairness to the parties.
[5]	It is against this background the question of procedural fairness is to be considered in the context of what occurred at the hearing of this matter. It is immediately apparent from the transcript of proceedings that the learned adjudicator took on the role as contradictor to the applicant’s claim in drawing attention to what he perceived to be fundamental difficulties facing the applicant. He concluded the difficulties were insurmountable and dismissed the application. The question arises as to whether that process was fair to the applicant.
Background to the Dispute
[6]	John Huckstep is a director of the applicant company which carries on business of supplying and applying protective coating products for external concrete surfaces. The products are designed to not only enhance the appearance of the surface but also to preserve the surface from wear and tear.
[7]	Monique Harding and Blair Harding, through the Blair Harding Family Trust,  effectively owned and operated the business of the Retreat, which is a large commercial resort style accommodation centre with various amenities including a swimming pool and tennis court. As the name suggests it is located in the Gold Coast hinterland. The Retreat is situated on Lot 24 on RP 183208 and registered in the name of Blair Harding as trustee.
[8]	 In 2017 Mr Huckstep had conversations with Mr Harding about the resurfacing of various concrete surfaces around the Retreat. Mr Huckstep prepared a quotation for all of the work as is set out in the quotation dated 7 July 2017. The work involved the grinding and filling of the concrete surfaces in and around the swimming pool area including the coping. There were also some staircases, paths, driveway and a carport concrete floor. After preparation of the surface three coats of the supplied product, described as  ‘flecked and sealed’ in the quotation, were applied. The total quoted cost was $20,250 excluding GST.
[9]	Mr Harding gave Mr Huckstep the go ahead to do some of the work which was that limited to the work in the invoice of 7 July 2017 and included, inter alia, the pool coping, pool surrounds, stairs, and block wall under the pool. The cost of that initial work was about $10,075.00. 
[10]	An arrangement was arrived at between Mr Huckstep and Mr Harding that in lieu of payment, Mr Harding would provide accommodation at the Retreat for a number of Mr Harding’s guests who were travelling to the Gold Coast to attend his 50th birthday, including visitors from overseas. Mr Huckstep says this was a personal arrangement between himself and Mr Harding.
[11]	After the first tranche of work was complete, Mr Harding asked Mr Huckstep to carry out the further work which is the subject of the invoice of 7 March 2018. The amount claimed for the second lot of work undertaken is $11,374.00 including GST. This work involved work to the surface of a new carport, paths and stairs in the same fashion; that is, grinding back, sealing, filling where necessary and then applying coats of the product supplied.
[12]	During the course of this second lot of work, Mr Harding reneged on the agreement to provide the accommodation in lieu of payment in respect of the first part of the work. As a result Mr Huckstep brought a proceeding, MCDQ602/18, in the minor civil disputes jurisdiction of the Tribunal to recover compensation because he had to accommodate his guests at another facility. That proceeding was compromised at the hearing. The terms of the compromise which appears on the file in that matter is noted as follows: 
In further consideration of the above agreement, the respondent agrees not to proceed with any action concerning the applicant and building works including ? spraycrete, ? carried out at 31 Red Oak Road. 
[13]	It is readily apparent that the compromised proceeding only related to the work the subject of the quotation for the first invoice issued on 7 July 2017. Furthermore, the applicant was Mr Huckstep in person and it is the respondent who agreed not to take any further action against the applicant in respect of the work the subject of that proceeding. Although an appeal has been filed in respect of that matter it is not an appeal against the decision, but an attempt to include the applicant company as an applicant to that proceeding. The rationale for this is because it is now contended that the compromise was with the company and not Mr Huckstep who sued in his personal capacity. The purpose of this strategy is, obviously, an attempt to include the applicant company in the compromise agreement in MCD602/18, not only for the first part of the work but also the second, which is the subject of the current proceeding under appeal, MCDQ387/18. This is also consistent with the response filed in 387/19 which contends that the subject matter of that proceeding was determined and finalised by the compromise in 602/18. The effect of that would be that the applicant is prohibited from further litigating the claim for the second part of the work. If the claim in 602/18 did include the second part of the work, the plea would be maintainable, but clearly it did not.
[14]	There is one other aspect to deal with, and that is the identity of the parties. In 602/18 the proceeding was commenced against Mr Harding as trustee of the Blair Harding Family Trust. After the proceeding was commenced Mr Huckstep ascertained that Mr Harding was an undischarged bankrupt. Because of the bankruptcy, Mr Harding had to discontinue as trustee and Mrs Harding was substituted as trustee instead. Mr Huckstep was advised by a tribunal adjudicator during a preliminary hearing that as Mrs Harding was the new trustee, she should be substituted as a respondent (in 602/18) and a direction was made on 17 August 2019 to remove Mr Harding as trustee, as a respondent and include ‘Monique Kim Harding as trustee for the Blair Harding Family Trust’.
[15]	On the basis of what occurred in 602/18, when it came time to commence proceedings to recover the cost of the second lot of work, the applicant included Mrs Harding, as trustee, as the respondent to 387/19 However, by the time the matter came on for hearing on 31 January 2020, Mr Harding had been discharged from bankruptcy and he had also been reinstated as trustee for the Trust. Because of this Mrs Harding filed a miscellaneous application on 30 January 2020, the day before the scheduled hearing,  seeking orders that she be removed as a respondent and Mr Harding as trustee be substituted as the respondent. She also sought a direction that ‘the hearing date scheduled 31/1/20 be vacated’. This application was to be heard on 31 January 2020 prior to the substantive hearing commencing.
The Hearing on 31 January 2020
[16]	At the commencement of the hearing it was apparent that there was no appearance by either Mr Harding or Mrs Harding. Mr Huckstep knew nothing about the application to substitute respondent or the application for the adjournment as he had not been served with a copy. He was given a copy of the application by the adjudicator. Attached to the application was a handwritten explanation in support of the orders sought. The explanation went to Mr Harding’s appointment as trustee and also stated that an appeal had been filed in 602/18 seeking orders that the applicant company be included as an applicant in 602/18. The grounds for the adjournment were that if the appeal was successful in 602/18 then the claim for the further work would be included in the compromise of that proceeding.
[17]	The application was not dealt with as a preliminary issue. Rather the learned adjudicator indicated that he wanted to ‘have some discussions with’ Mr Huckstep about the claim generally. 
[18]	The first matter the learned adjudicator raised was whether the work claimed was building work. If it was building work and fell within the definitions in the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) then s 77(2) of the Act may have application requiring a person to engage in a dispute resolution process established by the Commission to attempt to resolve the dispute. This is usually satisfied by the production of a certificate from the Commission to this effect. That has not been done here. Also, if the dispute is in fact a building dispute, as defined, it cannot be heard in the minor civil disputes jurisdiction, and an application needs to be filed in the Building List division of the Tribunal. These observations obviously presuppose that the claim made by the applicant is in fact a building dispute to which the QBCC Act applies. 
[19]	The second issue raised is that the applicant had commenced the proceeding against the wrong party. It seems to be accepted that all of Mr Huckstep’s communications were with Mr Harding, and not with Monique Harding and therefore by commencing the proceeding against Monique Harding there was no contractual basis to support a claim against her personally. However, if the claim was a valid claim against either of them as a trustee of the Trust, being the owner of the land and the beneficiary of the work undertaken by the applicant, then the question arises whether Mrs Harding was the correct respondent at the time the proceeding was commenced as she was the trustee of the Trust. Obviously the Trust is not a legal entity. It is not uncommon to add or substitute parties as the true facts of a situation emerge in ‘pre-court’ proceedings and in fact, as an example the Uniform Civil Procedure Rules make provision for this.
[20]	The third issue raised by the adjudicator was the application of an Anshun estoppel to the claim. Because the adjudicator took the view that the claim in 387/19 ought to have been included as part of the claim in 602/18, the principles of Anshun estoppel applied to prevent the applicant from bringing a further proceeding against the respondent. This purportedly amounted to a defence of the applicant’s claim.
[21]	The learned adjudicator summarised the problems he perceived with the applicant’s case as follows: 
Well that’s the difficulty – the difficulty you have is three-fold in this present proceeding. One is the Anshun estoppel, that is, you should have raised the claim with the other three nights as well in that application you brought was finally heard and resolved. That’s the first difficulty you have. The second difficulty you have, on the basis of what you told me earlier is that the relevant contract was not made with Monique Kim Harding. It was made with Blair Nathan Harding, so you got the wrong defendant in your second case, 387 of ’19. There is no contractual basis upon which I can make an order against Monique Kim Harding. That’s the second difficulty. 
The third difficulty is, in so far as this claim relates to building works and a dispute that [sic] building works, at least in part, it’s a claim that would first have to be mediated through the QBCC with a s 77 letter issuing to you saying that the dispute had been through mediation, that it was unresolved and that you could file proceedings.
[22]	Of course none of these issues were raised by the defendant as a defence to the claim save that it was alleged that all claims had been resolved in the compromise agreement in 602/18. 
[23]	It is obvious that Mr Huckstep was taken by surprise with respect to these matters raised for the first time during the course of the hearing. He attempted to explain how he came to include Monique Harding as a respondent but was unaware of the requirements of s 77 of the QBCC Act in respect of building disputes, and the notion of Anshun estoppel was foreign to him. 
[24]	Ultimately, the learned adjudicator dismissed the applicant’s claim and also dismissed the application filed by the respondent the day before the hearing. 
[25]	The appeal raises questions as to whether the applicant was afforded procedural fairness. This can be considered having regard to the three specific matters raised by the adjudicator being the grounds for summary dismissal. 
Building Dispute
[26]	The definition of a building dispute is set out in the dictionary to the QBCC Act, Schedule 2
building dispute means – 
(a)	a domestic building dispute; or 
(b)	a minor commercial building dispute.
[27]	As this work related to a commercial enterprise, it falls within the category of a ‘minor commercial building dispute’ which is further defined as a dispute where the claim is less than $50,000. 
[28]	‘Building work’ is also defined in the schedule and without listing all items, it does not include specifically the type of work engaged in by the applicant. However, there is a further definition to be considered and that is a ‘commercial building dispute’. The definition of the term means a dispute between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work. 
[29]	One then goes to the definition of ‘reviewable commercial work’ which means ‘tribunal work other than reviewable domestic work’. For the definition of ‘tribunal work’, one has to refer back then to s 75 and s 76 of the QBCC Act. Section 75 defines what is tribunal work and having regard to that section, the only subsection which has any relevance to the work undertaken by the applicant is subsection (e) which is: 
Any site work (including the construction of retaining structures, driveways, landscaping and construction of a swimming pool) related to tribunal work of a kind mentioned in paragraphs (a) to (d).
[30]	These subparagraphs refer to the erection, renovation, alteration, extension, improvement or repair of a building. That was not the case here.
[31]	Although the navigation of the various definitions in the QBCC Act is cumbersome, it seems relatively clear that the work as described on the quotations and invoices and summarised above is not tribunal work, and therefore it would appear that the requirement to comply with s 77 of the QBCC Act is unnecessary. 
[32]	Although it is prudent for the Tribunal to point out what might appear to be difficulties for an applicant, Mr Huckstep should have been given the opportunity to investigate this question before a final determination was made and also without giving him a proper opportunity to be heard. 
Anshun Estoppel 
[33]	The learned adjudicator came to the firm view that as the applicant did not include the claim made in 387/19 in the earlier proceeding of 602/18, the applicant could not succeed because of the principles laid down in Port of Melbourne Authority v Anshun, commonly referred to as Anshun estoppel: 
In these cases in applying the Henderson v Henderson principle to a plaintiff said to be estopped from bringing a new action by reason of the dismissal of an earlier action, Somervell LJ and Lord Wilberforce insisted that the issue in question was so clearly part of the subject matter of the initial litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding. Even then the abuse of process test is not one of great utility. And its utility is more evident when it is applied to a plaintiff’s new proceeding which is said to be estopped because the plaintiff  omitted to plead a defence in an earlier action. 
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.
[34]	There are two further matters to be considered when determining whether the principles of Anshun estoppel go to the defence of a claim. The first is that it is ‘a discretionary remedy when one consideration is whether the splitting of causes of actions is likely to contribute to conflicting judgments’. The second is unreasonableness. As the Court of Appeal said at [44] in Greystone Distributions: 
An Anshun estoppel will only arise upon a finding that it was unreasonable for a party to a second proceeding to fail to join all claims in its first proceeding.  Any complaint of unreasonableness must be made and established by the party who would seek to raise the estoppel… 
[35]	Applying those two questions to what occurred in this matter, there was no real consideration given by the learned adjudicator as to the reasonableness or otherwise of why Mr Huckstep did not include the second claim in the 602/18 proceeding. However, it is evident from the transcript, and the matters pleaded in the Statement of Claim annexed to the Application, that this is a separate invoice for different work to that initially undertaken and secondly, the remedy sought in both applications is different. As the first matter was compromised there would not be conflicting judgments with respect to the substance matter of the second claim.
[36]	Mr Huckstep obviously was not aware of the implications of not including the second claim in the first and furthermore, as a layperson, was not familiar with the Anshun principles and their consequences. This is apparent from the discussion in the transcript. There was no defence based on the Anshun  principles other than the whole of any claims that Mr Huckstep, or the applicant, had against the parties were incorporated in the 602/18 proceeding as sought to be agitated in the 602/18 appeal. This was clearly not the case. Furthermore, Mr Huckstep did have an explanation for not including the claim the subject of the current proceeding. 
The Proper Respondent
[37]	Mr Huckstep included in the initiating application, in the respondent’s details section, both Robert Blair Harding and the Trustee for Blair Harding Family Trust t/a the Wings Hinterland Retreat. It is certainly not unusual in any proceeding to include alternate defendants or respondents if there is uncertainty as to who the proper respondent is. At the hearing proper, a finding can be made by the Tribunal, based on the evidence, including the conduct of the parties and discussions had particularly in an oral agreement, or an agreement that is partly oral and partly in writing, as to the identity of the party if there is confusion. Furthermore, as mentioned above, because of the bankruptcy the new trustee, Monique Harding, was substituted. 
[38]	The learned adjudicator’s decision with respect to the identity of the respondent was based on Mr Huckstep’s evidence that all these discussions were with Mr Harding and not Monique Harding. However, that does ignore the point that Mr Harding was acting as the trustee of the Trust and contracted for the benefit of the Trust. He was the agent of the Trust. Then the identity of the trustee changed to Mrs Harding and then back to Mr Harding, when discharged from bankruptcy. It was never sought to make Mrs Harding personally liable for the debt only as trustee of the Trust because it is the Trust’s liability and it is not a legal entity. 
[39]	Making a decision that the claim could never succeed against Mrs Harding in her personal capacity seemed to have ignored that the claim was brought against her as trustee. Further, given the learned adjudicator’s concerns about the contractual relationship, this could have been remedied by determining the application to substitute and if need be adjourning the hearing for the applicant to give consideration to the concerns raised. The applicant here should not be denied the opportunity to recover for work done and materials supplied to the benefit of the Hardings and the Trust because of the respondent’s changes to the identity of the trustee. 
[40]	Finally the respondent has filed submission reiterating and relying on those matters raised by the learned adjudicator simply referring to the Anshun estoppel without any consideration of its application. He did not address the question of contracting parties as trustees. The reliance on s 77 of the QBCC Act is based on the assertion that this matter was a building dispute without any analysis of whether the work did fall within the Act. These are all matters that can be addressed at a further hearing of the application. They do not go to the question of procedural fairness. 
Discussion
[41]	The issues raised by the learned adjudicator were matters the applicant had not had an opportunity to prepare for or address prior to the hearing. Furthermore, there was an application for an adjournment of the hearing, and although one could assume it would have been initially opposed by the applicant, given the concerns raised by the learned adjudicator and if given the opportunity, Mr Huckstep may well have supported an adjournment of the hearing. 
[42]	More importantly Mr Huckstep had not been given an opportunity to properly consider and address the three issues raised by by the learned adjudicator for the first time at the commencement of the hearing and if necessary obtain legal advice, particularly on the Anshun estoppel point. Although it is reasonable for an adjudicator, in the very busy minor dispute jurisdiction to test the claims made by a party, it is not appropriate to actively promote the defences that might be rasied by the opposing party, particularly an absent party. Any intervention by an adjudicator must be measured, fair and not put a party at a disadvantage. 
[43]	I have therefore come to the conclusion that the applicant has been denied procedural fairness in the manner in which the hearing was conducted. As this has resulted in a substantial injustice to the applicant, and it involves a question of law, leave to appeal should be granted. The appeal should be allowed with a direction that the matter be remitted to the minor civil disputes tribunal for hearing by a different adjudicator.