Sharma v Swift [2025] QCATA 125

Applications for leave to appeal under the QCAT Act

• [7] Pursuant to s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), Mr Sharma requires leave to appeal. In determining whether to grant leave, the Appeal Tribunal must be satisfied that:

(a) there is a reasonably arguable case of error in the primary decision;[3]

(b) there is a reasonable prospect that they will obtain substantive relief;[4] and

(c) leave is needed to correct a substantial injustice caused by the error;[5] or

(d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[6]

• [8] Procedural fairness results from a fair hearing. Whether a matter has been dealt with fairly depends on what is fair in the circumstances of the case[7] and whether a party was given a reasonable opportunity to present their case.
• [9] As observed by Member Gordon in Ritson v Ryan [2021] QCATA 100 (emphasis added):

[36] ...I accept the important principle that, unless a contrary direction is given in extraordinary circumstances, a decision maker acting in a judicial capacity like an Adjudicator hearing a minor civil dispute should not take into account any material about which the other side is not aware, and if the material is significant without allowing the other side to comment upon it.

[37] I also accept that it is normally bad practice for either party to send material to the tribunal without also sending it to the other side.

[38] The tribunal and its registries have to deal with an enormous amount of such material on a daily basis. The tribunal and its registries do not act as a post box, and there is no obligation to ensure that everything which comes in is passed to other parties. In that respect the tribunal will often assume that this has been done already. However, parties do need to rely on the tribunal and its decision makers ensuring that anything which could sway the decision one way or the other is in front of other parties and they have been given an opportunity to comment on it.

• [10] It is apparent from the transcript of the 10 February 2025 hearing that:

(a) the content of the expert report determined the outcome of Ms Swift's claim, and

(b) the adjudicator relied on the report to decide the claim before taking any submissions on it and in the knowledge that Mr Sharma had not seen it.

• [11] For example, the adjudicator opened the adjourned hearing by stating that he had read the report and - without taking any submissions from the parties - opined that it established "poor craftsmanship, poor quality and in my opinion breach the contract and expectations at the time of the agreement".[8]
• [12] He went on to say that he was "satisfied with the report" and - despite his first instance remarks that he "didn't really have anything to go on" - that the report "confirms what my issues were with this" and concluded that Ms Swift was entitled to a refund.[9]
• [13] Finally, when the adjudicator asked Mr Sharma if there was anything he would like to say, Mr Sharma questioned the veracity of the report, at which time the following exchange occurred:

ADJUDICATOR: Well, did you read the report?

MR SHARMA: Sorry?

ADJUDICATOR: Did you read ‑ ‑ ‑

MR SHARMA: No. I haven't got it. I never got the report.

ADJUDICATOR: The report was put on the file. So you had access to the report.

MR SHARMA: No. I only got the notice ‑ ‑ ‑

ADJUDICATOR: Okay.

MR SHARMA: ‑ ‑ ‑ from the QCAT ‑ ‑ ‑

ADJUDICATOR: No. I ‑ ‑ ‑

MR SHARMA: ‑ ‑ ‑ to do the ‑ ‑ ‑

ADJUDICATOR: No. But it's on the file.

MR SHARMA: Yep.

ADJUDICATOR: I - and I've read the report ‑ ‑ ‑

MR SHARMA: Yep.

ADJUDICATOR: ‑ ‑ ‑ outlined to the court.

• [14] Without further interaction, the adjudicator delivered his decision with accompanying reasons, namely, that the evidence established that the cabinet was not of acceptable quality, and that Ms Swift was entitled to a refund.
• [15] The transcript further reveals that after Mr Sharma left the hearing room, the adjudicator also awarded Ms Swift the filing fee, without taking any submissions or giving any reasons for departing from the usual position that each party bear their own costs under s 100 of the QCAT Act.
• [16] As Senior Member Brown observed in Bunting v S Drakos Real Estate Pty Ltd [2025] QCATA 31 (footnotes omitted):

In the very busy minor civil disputes jurisdiction multiple matters are listed to be heard within constrained time periods. Tribunal adjudicators are required to exercise a tighter degree of control in conducting a hearing in these circumstances than might otherwise be the case in the Tribunal's other jurisdictions. The procedure at the hearing was at the discretion of the adjudicator. The adjudicator was required to observe the rules of natural justice and to act with as little formality and technicality and with as much speed as the requirements of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the [enabling Act] and a proper consideration of the matters before the Tribunal permitted.

• [17] According to the transcript of the hearing, Mr Sharma was clearly denied a fair hearing as the decision was made on 'expert' evidence that the adjudicator was aware Mr Sharma had not been given, and no opportunity was allowed to Mr Sharma to read the report or to respond to it in any way.
• [18] The consequential denial of natural justice to Mr Sharma is an incurable error of law.

• [19] Leave to appeal is granted to Mr Sharma because:

(a) there is a clear error of law infecting the decision of the Tribunal below,

(b) it is inevitable that Mr Sharma will obtain substantive relief in the appeal, and

(c) the error is a matter of substantial injustice to Mr Sharma.

• [20] The appeal is allowed for the same reasons and returned to the minor civil dispute jurisdiction to determine, because the evidence filed must be served and properly contested in a fair hearing before a decision on Ms Swift's claim can be made.[10]

• [21] The decision of the Appeal Tribunal is therefore that:

(a) Leave to appeal is granted.

(b) The appeal is allowed.

(c) The decision in MCD Q273-24 made 10 February 2025 is set aside.

(d) The application in MCD Q273-24 is returned to the minor civil dispute jurisdiction for rehearing before a differently constituted Tribunal with the following directions:

(i) Elisha Swift must give a copy of the photographs and report of Simon Hay dated 18 November 2024 that were filed in MCD Q273-24 to Navin Sharma by 4pm on 6 January 2026.

(ii) Simon Hay must be available for cross-examination at the final hearing and may appear by telephone to do so.

(iii) Each party must file in the Tribunal and give a copy to the other party of any further evidence (documents) that they wish to rely on in the final hearing for application MCD Q273-24, by 4pm on 20 January 2026.

(iv) The application in MCD Q273-24 will be listed for a final hearing on a date to be fixed after 27 January 2026.

[2] Application for leave to appeal or appeal filed 14 February 2024, part C 'Grounds of appeal' and part D 'Orders sought'.

[3] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[4] Cachia v Grech [2009] NSWCA 232, 2.

[5] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[6] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

[7] Kioa v West (1985) 159 CLR 550, 612.

[8] Transcript, page 1-2, from line 21 onwards.

[9] Transcript, page 1-5, at lines 9-10.