More v Ford[2018] QCATA 149

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is an application for leave to appeal from a decision of an adjudicator in two related minor civil disputes.^[1]  The adjudicator dismissed the applicant’s claim and, in the respondent’s claim, the adjudicator ordered that the applicant pay the respondent $1,860 plus her filing fee.
2. [2]
   Because the primary decision was in a proceeding for a minor civil dispute, the applicant may only appeal from the decision if he obtains the tribunal’s leave to appeal.^[2]
3. [3]
   The question whether or not leave to appeal should be granted is usually addressed according to established principles.  Is there a reasonably arguable case of error in the primary decision?^[3]  Is there a reasonable prospect that the applicant will obtain substantive relief?^[4]  Is leave necessary to correct a substantial injustice to the applicant caused by some error?^[5]  Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?^[6]
4. [4]
   The applicant (Dr More^[7]) promotes and provides health and wellbeing education and materials to members of the public.  The respondent (Ms Ford) enrolled to attend three of his seminar courses and to obtain associated materials, for prices totalling $3,600. She agreed to pay for them over time, utilising a service known as Ezypay.  After paying a total of $1,860, she stopped making payments.  Dr More sued her for the balance of $1,740.  Ms Ford made what was effectively a counter-application for a refund of the amounts she had paid.^[8] 
5. [5]
   In response to Ms Ford’s application, Dr More filed a response that the adjudicator referred to as really in the nature of a counter application, which is how he treated it.  In that response, Dr More sought orders that Ms Ford:

   1. (a)
      pay “all costs” in the matter;
   2. (b)
      pay “punitive damages” for public and professional defamation;
   3. (c)
      be “fined” $1,000 for each point of alleged perjury in her allegations;
   4. (d)
      pay $24,999 for all “costs, defamation and work done replying to her”; and
   5. (e)
      pay all outstanding invoices for the natural health education course.
6. [6]
   The adjudicator declined to make any of those orders.  The first and last were dealt with in his resolution of Dr More’s principal application and Ms Ford’s application.  He found (correctly) that he had no jurisdiction to entertain an application for, or to make, the second, third and fourth. 
7. [7]
   The grounds on which Dr More wishes to appeal are described in his application as follows:

   1. (a)
      the findings were not supported by the evidence;
   2. (b)
      irrelevant considerations were considered as relevant;
   3. (c)
      relevant considerations were not considered;
   4. (d)
      the decision was not based according to law  …  I was not in a position to appreciate what my true legal rights were and therefore all steps have not been taken lawfully;
   5. (e)
      the decision was not fair or reasonable.
8. [8]
   Dr More attached to his application in excess of 100 pages that effectively comprised submissions and evidence on which he wished to rely.  Much of it was repeated, together with additional submissions and references to facts or evidence, in submissions filed by him later.  This volume of material filed for this application, which is itself large, is considerably less than the extraordinary volume of material provided to the adjudicator.  I mention the volume of material because it is unfortunate that such a large volume has been produced in a minor civil dispute and in an application for leave to appeal from the decision in such a dispute.  It makes it very hard for the adjudicator, and now for the appeal tribunal, to resolve the dispute “in a way that is accessible, fair, just, economical, informal and quick.”^[9]

Evidentiary considerations

9. [9]
   I propose to address the first three grounds together, as they all concern matters of evidence.

The TGA Issue

10. [10]
    Dr More complains that he was not permitted to demonstrate to the adjudicator, by evidence that he wished to obtain from the Therapeutic Goods Administration (TGA), that the TGA had never investigated his conduct.  Thus, he says, he was unable to demonstrate that Ms Ford perjured herself in asserting that he had been investigated by the TGA.
11. [11]
    In fact, Ms Ford tendered a letter from the TGA to her, which was referred to by the adjudicator, that said expressly that it had no jurisdiction to investigate a complaint about Dr More’s products.  The clear implication is that it had never investigated Dr More and there was no evidence before the adjudicator that it had investigated him.  The adjudicator concluded at [129] that Dr More was not under investigation.  He went on to find that Ms Ford was in error, an error that may affect her credibility as a witness, but it was not evidence of dishonesty or criminality on her part.
12. [12]
    Dr More sought leave to tender in this application documents that he had obtained from the TGA and which he said were of the nature of evidence that he had wanted to tender before the adjudicator.  But those documents do not in any material way to the evidence before the adjudicator, nor could they have affected the conclusion that the adjudicator reached.  In the absence of evidence that he had ever been investigated by the TGA, and in the light of the TGA’s expressed view that it had no jurisdiction, any inability of Dr More to obtain these documents for the hearing could make no difference to the result.  The administrator proceeded on the basis that he had not been investigated by the TGA, so Dr More’s aim (to demonstrate that he had not been investigated) was unnecessary.

Witnesses, books and videos

13. [13]
    Dr More says that the adjudicator did not allow him to tender, or ignored:

    1. (a)
       affidavits from some of his other clients, attesting to events when Ms Ford was at seminars conducted by Dr More and to the health benefits they had received from the methods he taught;
    2. (b)
       evidence to demonstrate, by weighing the box returned to him by Ms Ford, that she had not returned to him all the items she claimed to have purchased;
    3. (c)
       the covers of 17 books written by him, on which he notes his qualification as a doctor of philosophy, not medicine; and
    4. (d)
       videos of his seminars in which he disclaimed being a medical doctor or that his methods would cure all manner of illnesses.
14. [14]
    In fact, most of that material appears to be in the evidence that was tendered by Dr More before the adjudicator.  In the case of the weight of the box, Dr More made his submissions and included photographs of the box on scales.  The fact that the adjudicator did not appear to consider it in his reasons, or appeared to dismiss its weight during the hearing, does not mean that he dismissed it entirely, except to the extent that he considered it unnecessary to see it to add to the bulk of the evidence (for example, the videos).
15. [15]
    This evidence would not, in my view, have been likely to have altered the decision.  The adjudicator recorded that:

    1. (a)
       he accepted that Dr More did not mischaracterise himself as a medical doctor;
    2. (b)
       Dr More admitted that at least one of the packs of literature and stones he sold represented, expressly or at the very least, implicitly, a return to wellbeing and instant family wellness;
    3. (c)
       Ms Ford swore (and he accepted) that she had followed the instructions and was no better after attending the seminar courses and undertaking the remedial therapies that Dr More sold to her;
    4. (d)
       Dr More’s evidence, as the adjudicator understood it, was that, using a particular stone with a particular affirmation in accordance with the instructions would, through the unconscious mind, change one’s biology to achieve the particular health and wellbeing outcome represented in the literature;
    5. (e)
       Dr More admitted that he claims that affirmations heal specific conditions when used correctly;
    6. (f)
       Dr More had not proved that there was any scientific basis for the health benefits he claimed could be achieved by using his methods;
    7. (g)
       in his literature, Dr More states in respect of affirmations, stones and claimed results, that “This works brilliantly”;
    8. (h)
       he referred in particular to, and quoted from, a number of leaflets and what Dr More claimed in them;
    9. (i)
       each leaflet contained a disclaimer that “We make no curative claims about this information or product”.
16. [16]
    The adjudicator then concluded that

    1. (a)
       Dr More’s claims of therapeutic benefits were illusory;
    2. (b)
       the leaflets, seminar services and stones provided by Dr More to Ms Ford did not match up to the statutory guarantees for consumer purchases under the Australian Consumer Law.
17. [17]
    The adjudicator also recorded the following:

168. [168]I have, in what is already a disproportionately long decision relative [to] the amounts directly in issue in this case, confined myself to the primary affidavits and oral evidence of Dr More and Ms Ford.
169. [169]I have read and considered all of the other affidavit material filed by Dr More and Ms Ford respectively, including the affidavits of their respective witnesses. That evidence does not change my findings of fact and conclusions in this case.

18. [18]
    Clearly, in saying he had confined himself to certain evidence, the adjudicator was saying that he had confined himself to dealing with that evidence in his reasons.  However, he had taken into account all the other evidence, which did not alter his conclusions from the primary evidence.
19. [19]
    I consider the adjudicator’s approach to the evidence to be entirely reasonable, having regard to the very large volume of material before him, the issues with which he was concerned, and that the claims before him were minor civil disputes.  It does not mean that he ignored evidence or failed to take it sufficiently into account.  The weight that an adjudicator gives to evidence is a matter for the adjudicator.
20. [20]
    Dr More also asserts that the adjudicator failed to take into account Dr More’s facial deformity which, Dr More contends, inevitably results in any human automatically disbelieving him.  The only way to overcome this natural response to his deformity is to watch a slow motion video of him.  He asked the adjudicator to watch such a video but the adjudicator refused.
21. [21]
    I do not consider that to be an error by the adjudicator.  He made it clear at the hearings and in his reasons that he would not be taking (and had not taken) the parties’ demeanour into account, but would (and did) consider only the oral and documentary evidence.  That was an appropriate course for him to take.
22. [22]
    I therefore consider that none of the first three grounds on which Dr More seeks leave to appeal could be made out on an appeal.

Decision not according to law

23. [23]
    I understand this ground to be that the adjudicator did not sufficiently explain to Dr More that Ms Ford’s application required him to put in a response and entitled him to call evidence in response to her claim.  In particular, he did not realise that he was facing a claim by Ms Ford against him which was being dealt with at the same time as his claim.
24. [24]
    I do not consider that this ground has any prospects of success.  Ms Ford served her claim on him, following which the hearing was adjourned for a considerable period; he filed a response; the claim and response raised similar issues to those raised in Dr More’s claim and Ms Ford’s response to it; and the evidence clearly related to all the matters.  The adjudicator considered his response, noting that it was in the nature of a “counter application” because it sought additional orders against Ms Ford.  The adjudicator treated it as such an application even though it was not made on the correct form, nor had any filing fee been paid in respect of it.  He considered each claim by Dr More and dismissed them all. 
25. [25]
    If Dr More’s complaint is that he did not file a defensive response to Ms Ford’s application, both applications raised the same issues and were dealt with together.  No written defensive response could have raised any matters that were not dealt with in the course of the hearing and the decision.
26. [26]
    In the hearing before me, Dr More said that, if he had known he was defending a claim, he would have obtained evidence from the TGA.  As I have concluded above, no such evidence would have affected the outcome.

Decision not fair and reasonable

27. [27]
    This apparently “catch all” ground is not a proper ground of appeal. I cannot discern any basis for any other ground of appeal in the submissions made by Dr More.

Conclusions

28. [28]
    There is no question of law, nor of fact, on which Dr More has any arguable prospects of success in an appeal.
29. [29]
    I see no basis for disagreeing with the adjudicator’s conclusions that Dr More’s teachings and products did not live up to the statutory guarantees. 
30. [30]
    There is no reasonably arguable case of error in the adjudicator’s decision.  There is no reasonable prospect that Dr More will obtain substantive relief in an appeal.
31. [31]
    No injustice has been caused to Dr More by the decision.
32. [32]
    No question of general importance is raised by the proposed appeal.
33. [33]
    I do not consider that there are any grounds to grant Dr More leave to appeal from the adjudicator’s decision.  Even if I had granted leave, any appeal would be unsuccessful.  I cannot discern any errors in the adjudicator’s reasons, nor his conduct at the hearing. 
34. [34]
    The application will be dismissed.