Habul v Mahoney

[2011] QCATA 130

CITATION: Habul v Mahoney [2011] QCATA 130

PARTIES:	Mr Omar Habul t/a Habul Building Group
v
Mr Alan M Mahoney

APPLICATION NUMBER:            APL362-10               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON:   27 May 2011

DELIVERED AT:   Brisbane

ORDERS MADE:      Leave to appeal refused.

CATCHWORDS: 

CONTRACTOR’S CLAIM – where contractor sought payment of unpaid invoices – where principal disputed terms of the contract and quality of workmanship – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, s 142(3)

ABSS Trust trading as Academy of Beauty, Spa and Sport v Nicholls [2011] QCATA 057
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 197 ALR 201

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Oliver

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me.  I have had the benefit of reading her reasons in draft.  I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

1. Mr Habul, a builder, regularly engaged Mr Mahoney to erect block work on building projects.  Some time in June 2010, the relationship between the parties broke down.  In July 2010, Mr Mahoney filed a claim in the minor civil disputes jurisdiction of the tribunal claiming unpaid invoices totalling $8,601.00.  That application was wholly successful.

1. Mr Habul has appealed the learned Adjudicator’s decision claiming:

a)    Bias;

b)    He was not given a reasonable opportunity to present his defence;

c)    The learned Adjudicator did not allow an adjournment as requested by Mr Habul;

d)    The learned Adjudicator did not give sufficient weight to the evidence of Mr Kitchen that Mr Mahoney’s work was unsatisfactory.

1. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary[1].  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

   [1] QCAT Act section 142(3).

1. Mr Habul says that the learned Adjudicator took an immediate dislike to him.  It is true that the learned Adjudicator was somewhat terse with Mr Habul.  I also note that the learned Adjudicator cautioned Mr Habul in relation to: talking over the top of the learned Adjudicator;[2] not listening to the learned Adjudicator’s question;[3] and not answering the learned Adjudicator’s questions[4].  As the learned Adjudicator pointed out at the beginning of the hearing, the minor civil disputes jurisdiction is a very busy one in which many cases are allocated a hearing on that day and adjudicators are required to determine matters as quickly and effectively as possible.  Being short with a party and requiring a party to comply with common rules of dialogue – that only one party speak at a time and that a person answers a question that is put to him – is not evidence of bias.  As Mr Habul does not point to any other evidence of bias, his submission in this regard must be rejected.

   [2]        Transcript page 16, line 7, page 18, lines 37-44; page 26, line 23.

   [3]        Transcript page 16, line 20.

   [4]        Transcript pages 25-28.

1. Mr Habul says that his ability to speak English is affected when he is agitated.  He says that the transcript does not record his responses to the learned Adjudicator because the transcriber may have had difficulty in understanding him.  It is true that the transcript does not record Mr Habul’s responses.  However, the record of the learned Adjudicator’s comments and conversation with Mr Habul shows that the learned Adjudicator had no difficulty understanding Mr Habul.  It is his understanding, not the transcriber’s that is important.

1. The learned Adjudicator signalled early in the proceedings that he would not be granting an adjournment.  Mr Habul says that he was aware immediately prior to the proceedings that he may need to request an adjournment to deal with matters that had recently come to his attention and that the learned Adjudicator’s comments at the start of the hearing indicated bias or unfairness.  I have read the transcript carefully:

a)    The learned Adjudicator’s comments in relation to an adjournment were by way of preamble, and directed to the fact that he would not adjourn the hearing before giving his decision.

b)    The hearing took place on 26 November 2010.  Mr Habul could not have shown the learned Adjudicator a copy of the letter from Mr Khan dated 29 November 2010 as he claims.

c)    Mr Habul did not ask for an adjournment until quite late in the course of the hearing.[5]  It is apparent from the learned Adjudicator’s comments that Mr Habul’s request for an adjournment had nothing to do with a letter from Mr Khan – it was not produced.  It appears that Mr Habul told the learned Adjudicator that he was not prepared for the hearing and had not brought his witnesses to Court.

[5]            Transcript page 27.

1. The tribunal, through its website, provides relevant information to parties attending tribunal hearings.  Relevantly, the website advises parties to bring all relevant documents and witnesses to the hearing.  Mr Habul made a conscious decision not to call witnesses; as the tribunal has already determined,[6] he must bear the consequences of that decision.

   [6]ABSS Trust trading as Academy of Beauty, Spa and Sport v Nicholls [2011] QCATA 057 at [7] & [8].

1. Mr Habul makes much of the point that the contract between him and Mr Mahoney nominates that all proceedings should be brought in the Court at Richlands.  This issue was ventilated at the hearing and Mr Habul conceded that he had received legal advice that the claim could legitimately be brought in the Sandgate Court.[7]  Accordingly, it is not a matter that can now be raised on appeal.

   [7]        Transcript page 29, lines 29-41.

1. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[8]  While I understand that Mr Habul urges a different view of the evidence, I am satisfied that the material before the learned Adjudicator was capable of supporting the conclusions he formed.  I can see no obvious error in the interpretation of the facts that would persuade me to a different view.

   [8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.

1. Mr Habul argues that the learned Adjudicator made an error of mixed fact and law.  In fact, the submissions reveal that the ground for appeal is that the learned Adjudicator wrongly interpreted documents.  That assertion must be considered in light of contrary evidence from Mr Mahoney.  It is only a question of fact, not a question of mixed fact and law, and, as I have already determined, the conclusions were open to the learned Adjudicator.

1. Finally, Mr Habul says he should be entitled to a set off in relation to Mr Mahoney’s allegedly defective work.  The tribunal will set off claims such as these where the respondent provides evidence which is sufficient to substantiate the claim.  It is clear from the transcript that the learned Adjudicator did not consider such evidence existed in this case.

1. There is no question of general importance to the public which requires the determination of the appeal tribunal; Mr Habul is not likely to obtain any substantial relief if leave was granted; there is no reasonably arguable case of error and Mr Habul cannot demonstrate that he will suffer a substantial injustice if leave is not given.

1. Leave to appeal should be refused.