Ray v Hope[2013] QCA 206

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:I agree with Holmes JA's reasons for refusing the application to adduce further evidence and the application for leave to appeal.

[2] HOLMES JA:  The applicant seeks leave to appeal a decision of a member of the Queensland Civil and Administrative Tribunal (QCAT) refusing leave to appeal an adjudicator’s order.  Section 150 of the Queensland Civil and Administrative Tribunal Act 2009 permits the appeal to this court only on a question of law and with leave.

[3] The applicant had brought a claim for a minor debt in the amount of $732.30 which consisted, in the main, of moneys expended while he and the first respondent, Ms Belinda Hope, were in a relationship, with a further sum for interest.  The exception was an amount of $48.00 for cigarettes and alcohol said to have been purchased for the second respondent, Mrs Rhonda Hope, the mother of the first respondent.  The adjudicator, preferring Ms Hope’s evidence, found that the amounts expended were gifts in the context of a relationship.  During the course of the hearing he declined to receive a recording of part of a telephone conversation which the applicant sought to tender, on the basis of his understanding that it was an offence to record a telephone call without the consent of the other participant.  He did, however, permit the applicant to give evidence of the content of the conversation.

[4] The applicant sought leave to appeal to the appeal division of QCAT on the ground that the adjudicator had wrongly refused to admit the tape-recording and that his decision was unfairly based on the age difference between the parties and contrary to the applicant’s evidence.  He also sought to adduce fresh evidence in the form of text messages and evidence from two witnesses.  The tribunal member refused leave to appeal, holding that there was nothing in the material presented to provide a basis for disturbing the adjudicator’s findings.  The adjudicator had given persuasive reasons for preferring the evidence of Ms Hope, and made findings of fact and credit which were clearly open on the evidence.  The tribunal member regarded as correct the adjudicator’s view that the recording was illegally made.

[5] The applicant now seeks leave to appeal that decision on the basis of error concerning the non-admission of the tape-recording and, on his submission, the affidavits of two witnesses, named Sokoli and Wilson, which he says were among 18 character references tendered but rejected on the application to the appeal division of QCAT.  He seeks leave to adduce further evidence by way of his transcript of telephone calls (although it was before the tribunal member and is already part of the record) and affidavits from Sokoli and Wilson.

[6] The tribunal member did not in fact refuse to receive the further witness evidence, instead describing it as “largely irrelevant”.  Neither of the proposed witnesses deposed to any direct knowledge of the making of loans, as opposed to what the applicant has had to say to them about matters, so that characterisation seems apt.  It certainly demonstrates no error of law.

[7]  The adjudicator’s apprehension about the illegality of the telephone recording plainly stemmed from section 7 of the Telecommunications (Interception and Access) Act 1979.  That section makes it an offence to intercept a communication passing over a telecommunication system which is done (by virtue of the definition in s 6 of that Act) when such a communication is recorded by any means in its passage over the telecommunication system without the knowledge of the person making the communication.  Section 77 of the Act renders information or a record obtained by interception (with exceptions not relevant here) inadmissible in all proceedings, including those in State courts and tribunals; so no question of a Bunning v Cross discretion would arise.

[8] The applicant did not, when the issue was raised by the adjudicator provide any evidence as to how he made the recording, nor did he when he appealed on the grounds of the adjudicator’s refusal to receive it.  Indeed, he still has not included any such explanation in his affidavits, instead confining himself to assertion in his submissions that it was by a device external to the phone.  Assuming, however, on the strength of his unsworn assertion, that the material was lawfully obtained, the question is whether its admission could have made any difference.  The adjudicator allowed him to give evidence of the content of the conversation, which he said was his last with the first respondent and occurred probably on 4 November 2010.  He now suggests that it was much earlier in 2010.

[9] According to the applicant’s transcription, there was some conversation about the first respondent’s paying unspecified money owed.  As transcribed it was as follows:

First respondent: Do you remember we talked about it and I said I was going to pay you before Christmas?

Applicant: Yes, I do. But, no disrespect, but, you know, you’ve been saying that for about five years to me – “I’ll pay you at the end of the year”, so, you know ...

First respondent: Yes, but I will this year.

[10] The applicant submitted to the adjudicator that the effect of it was that the first respondent had agreed that she had owed him money for five years.  The first respondent said in her evidence that she was accepting only that she owed him some money for rent, which, it was common ground, she had subsequently paid.  The applicant’s point here and before the adjudicator was that the rent was outstanding only for some two or three years, not five, so the first respondent must be admitting to owing something else for five years.

[11] The value of the first respondent’s answer as an admission depended on her being alive to the significance of the period the applicant identified, five years rather than two or three, which seems highly improbable.  The adjudicator accepted her evidence on the subject, as he was entitled to do.  The transcript adds nothing.  If there were any error on the part of the adjudicator, and correspondingly the tribunal member, in declining to receive the recording, it could have had no practical effect on the proceedings.

[12] The applicant asked this Court to receive not only a transcript of that conversation, but another one of November 2010.  Although he contended that he had tried to have three phone conversations admitted, it is clear from the transcript of proceedings that he did not seek to put that conversation before the adjudicator.  Nor did he mention it when invited to give evidence of the substance of what was taped.  At its highest it contains an acceptance that the first respondent owed the applicant “400 for buying rent and stuff”, with a firm rejection of the proposition that she owed him any money for a festival ticket for which he claimed.  The applicant relied on what he said was the significance of the words “and stuff” as constituting an admission that money was owed for more than rent.  It seems unlikely that the adjudicator would have regarded the first respondent’s use of the expression as persuasive.  In any event, the application before the appeal division of QCAT asserted error in the refusal to receive the evidence.  That assertion was unfounded, because no issue was raised about that conversation before the adjudicator.

[13] The applicant mounted an argument on a ground not included in his draft notice of appeal or alluded to in his application for leave, to the effect that the adjudicator and the tribunal member had wrongly applied a presumption, on the basis of his relationship with the first respondent, that they did not intend to enter into legal relations in respect of the moneys he spent on her behalf.  His argument largely turned on submitting that the adjudicator was wrong about the level of intensity of their relationship, a question of fact.  Neither the adjudicator nor the tribunal member applied any presumption; the adjudicator made findings about the nature of the parties’ relationship and their intentions in relation to the money spent.  The tribunal member, noting those findings, observed that in such situations there might be a promise to repay money without any intention to create a legal obligation, and in the absence of such an intention such a promise could not be enforced.  That was an entirely unexceptional statement.

[14] The application to adduce further evidence should be refused.  The application for leave to appeal should similarly be refused because the subject matter of the proposed appeal is of such minor proportions that it could not warrant leave and because, for the reasons I have perhaps unnecessarily traversed, it is without substance.

[15] MUIR JA:  I agree that the application to adduce further evidence should be refused and that the application for leave to appeal should be refused for the reasons given by Holmes JA.