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Pitt v Cull QCATA 89
Pitt v Cull  QCATA 89
On the papers
Senior Member Stilgoe OAM
20 July 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS OF FACT – where tribunal not satisfied the respondent caused the damage the subject of the claim – whether grounds for leave to appeal
ADMINISTRATIVE LAW – ADMINISTRATIE TRIBUNAL – QUEENSLAND CIVIL AND ADMINISTATIVE TRIBUNAL – JURISDICTION – where applicant filed a minor debt claim – where not a minor debt – where tribunal not satisfied respondent was a subcontractor – whether the tribunal had jurisdiction to hear the claim
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12(4)
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549;  HCA 84
Fox v Percy (2003) 214 CLR 118;  HCA 22
Pickering v McArthur  QCA 294
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- Aaron Pitt engaged Bradley Cull to do lawn mowing and yard work for clients who had contracted for Mr Pitt’s services. The nature of the relationship between Mr Pitt and Mr Cull – whether a subcontract arrangement or an employment contact – was one of the issues before the tribunal.
- One of Mr Pitt’s clients complained that Mr Cull had damaged a glass door when he was mowing. Mr Pitt claimed the cost of the door repair from Mr Cull. The tribunal dismissed Mr Pitt’s claim.
- Mr Pitt wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Mr Pitt says the tribunal erred in finding Mr Cull was an employee. He says the tribunal erred in finding that there was no evidence Mr Cull caused the damage to the door.
What was Mr Cull’s status and was it important?
- I note that Mr Pitt filed a minor debt claim. It is not a minor debt claim, as the amount owing was not a fixed sum or ascertainable from the terms of the contract. Mr Pitt’s claim might be a trader/trader claim, if Mr Cull was an independent contractor.
- The tribunal found:
Further evidence was given about the actual arrangement between Mr Pitt and Mr Cole (sic) as to whether he was actually a subcontractor or was a casual employee, and this brings into dispute as to whether or not the insurance requirement lies with the contractor, Mr Pitt, or whether it lies with the respondent, Mr Cull.
- The tribunal had a copy of a document headed ‘Independent Contractor Agreement’. Both parties signed the document. Relevantly, it states:
- The relationship was not an employment relationship. Mr Cull was an independent contractor, not an employee.
- Jobs are to be done to the customer’s satisfaction.
- Mr Cull is liable for his own insurances.
This is important for you to have in place in case anything does go wrong for example if someone is injured due to your negligence. Any damage to client’s belongings or property are to be fixed by either Brad (Cull) or his insurances.
- In the absence of evidence to the contrary, the agreement between Mr Pitt and Mr Cull clearly contemplated that Mr Cull was an independent contractor and that he was liable for any loss or damage that occurred as a result of his work.
- 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. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.
- A close reading of Mr Cull’s evidence shows that the tribunal was in error in questioning Mr Cull’s status as an independent contractor. Mr Cull spoke of a change in his working relationship with Mr Pitt:
Well, he wanted me to commence work after this.
They weren’t going to pay me until I commenced work with Aaron (Pitt).
- The text messages between the two parties at the time do not support Mr Cull’s view that he was an employee. Mr Cull asked Mr Pitt to cover the damage under his insurance. Mr Pitt declined, pointing out that it may affect Mr Cull’s independent contractor status. Mr Cull actually invited Mr Pitt to deduct the cost of the claim from future jobs. The proposed change in Mr Cull’s status came later, when Mr Cull did not want to pay for the damage to the door.
- At the time of the alleged damage, Mr Cull invoiced Mr Pitt for each job. He had an ABN. The terms of the agreement were clear. Mr Cull was a subcontractor.
- Because Mr Cull was a subcontractor and not an employee, Mr Pitt could file a trader/trader claim against him. The tribunal had jurisdiction to consider the claim.
- Although the tribunal erred in finding that Mr Cull was probably not an independent contractor, it is not an error that affects the result of the case.
Did the tribunal err in finding that there was no evidence Mr Cull caused the damage to the door?
- The tribunal had a statutory declaration from the owner of the house that the door was broken after Mr Cull mowed. Mr Cull told the tribunal that he didn’t think he caused the damage and that, when he finished, the owner came out and told him she was happy with the job. It appears that, because he gave evidence on oath, the tribunal accepted Mr Cull’s version of events.
- The tribunal had two different versions of events. It did not have the benefit of oral evidence from the home owner but it did not consider any of the contemporaneous documents, which might have given a different impression of Mr Cull’s truthfulness. Further, it is possible the tribunal’s finding that Mr Cull was an employee may have affected its findings about the cause of the damage.
- However, while I might have some doubts about Mr Cull’s evidence, or have come to a different view, that is not the test. The tribunal had sworn evidence to support its finding that Mr Cull was not responsible for the damage. The evidence to the contrary is not so compelling that I should set that finding aside.
- Leave to appeal should be refused.
 QCAT Act, s 142(3)(a)(i).
 Pickering v McArthur  QCA 294, .
 QCAT Act, s 12(4).
 Transcript page 1-18, lines 35 – 40.
 Transcript page 1-12, line 46 to page 1-13, line 13.
 Ibid, page 1-13, lines 15 – 16.
 Ibid, page 1-15, lines 23 – 26.
 Ibid, page 1-15, lines 21 – 30.
 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1, 10.
 Transcript page 1-12, line 43.
 Ibid, page 1-13, lines 11 – 12.
 Transcript page 1-7.
 Ibid, page 1-18, lines 24 – 34.
- Published Case Name:
Pitt v Cull
- Shortened Case Name:
Pitt v Cull
 QCATA 89
Senior Member Stilgoe OAM
20 Jul 2017