Stock & AG Services Pty Ltd v Rose Park Stud Pty Ltd
[2018] QCATA 155
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- Stock & AG Services Pty Ltd v Rose Park Stud Pty Ltd[2018] QCATA 155
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Stock & AG Services Pty Ltd v Rose Park Stud Pty Ltd[2018] QCATA 155
Stock & AG Services Pty Ltd v Rose Park Stud Pty Ltd[2018] QCATA 155
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Stock & AG Services Pty Ltd v Rose Park Stud Pty Ltd [2018] QCATA 155 |
PARTIES: | STOCK & AG SERVICES PTY LTD (appellant) |
| v |
| ROSE PARK STUD PTY LTD (respondent) |
APPLICATION NO/S: | APL404-17 |
ORIGINATING APPLICATION NO/S: | MCDO24-17 (Ipswich) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 9 August 2018 |
HEARING DATE: | 8 August 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes, Member |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – goods sold and delivered – deliveries on several occasions – fact of delivery common ground – whether respondent bound to pay price of goods – whether goods explicitly or impliedly purchased by respondent – whether time for filing application to appeal should be extended Limitation of Actions Act 1974 (Qld), s 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 61, s 95, s 97, s 123, s 143 Res 1 v Medical Board of Queensland [2008] QCA 152 Adamson v Queensland Law Society [1990] 1 Qd R 498 Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Hoskins v Repatriation Commission (1991) 32 FCR 443 Kermanioun v Comcare (1998) 55 ALD 503 Osmond v Public Service Board of NSW [1984] 3 NSWLR 447 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Self-represented |
REASONS FOR DECISION
Extension of time for filing application for leave
- [1]On 2 January 2018 the appellant Stock & AG Services Pty Ltd (‘Stock’) applied for an extension of time to seek an extension of time to file its application for leave to appeal the decision of the primary tribunal, delivered on 3 October 2017 (‘the extension application’).
- [2]By order dated 15 December 2017 it was directed that the extension application be determined on the papers, in conjunction with the application for leave to appeal.
- [3]The extension application is not accompanied by evidence on affidavit,[1] but several of the crucial dates, as stated by the appellant Stock, are readily verifiable by inspection of the tribunal’s file.
- [4]That record confirms the date of the original decision, and the date on which the application for leave was filed, namely 14 December 2017.
- [5]The extension application alleges that a request for written reasons was made on 4 October 2017, and that Stock received a CD[2] containing the same on 10 November 2017.
- [6]The time limited for seeking leave to appeal is ‘within 28 days after the relevant day’[3] – here, ‘the day the [appellant] is given written reasons for the decision being appealed against.'[4] As stated in the extension application, that was 10 November 2017. In the light of experience in this tribunal I have no reason to doubt that preparation, postage and delivery of the CD took 6 days. In the absence of any evidence to the contrary, I accept the claim that in this instance, it did.
- [7]Accordingly, the normal time for filing the application for leave to appeal ran from 10 November 2017. The time between that date and the actual filing date - 14 December 2017 - is 34 days, a mere 6 days (or 4 business days) outside the normal time limit.
- [8]As appears below, the course of the trial gives rise to an important question of law, which should not swept aside by a trivial delay of 6 days. Section 61 of the QCAT Act enables the tribunal to extend the time for filing an application for leave to appeal. On that issue I respectfully adopt the approach of Mr Thomas QC in Crime and Misconduct Commission v Chapman & Anor,[5] particularly his references to the potential strength of the case, the ‘length of the delay, noting that a short delay is usually easier to excuse than a lengthy one’ and, overall, the interests of justice. There is no evidence that a 6-day extension would cause any significant prejudice or detriment to the respondent Rose Park.[6] I note, incidentally, that Rose Park was given the benefit of a reopening order after an initial judgment in default of appearance.
- [9]I propose to order that the time for filing the application for leave to appeal be extended to 14 December 2017.
The Substantive Application
- [10]At all relevant times Stock carried on business at Laidley as a provider of animal fodder and supplements, and the respondent Rose Park Stud Pty Ltd (‘Rose Park’) bred horses at nearby Lower Mt Walker.
- [11]The misnomer of the appellant as ‘Bremer Stockfeeds Pty Ltd’ was corrected by order of the tribunal on 29 August 2017.[7]
- [12]
- [13]
Vital Witnesses
- [14]Essentially the case turns on the evidence of Ritha Nugent, for the appellant, and Francis Weston, for the respondent.
- [15]Ms Nugent is a part-time bookkeeper employed by the appellant; Mr Weston is (or was) director and a proprietor of the respondent.
- [16]By November 2015 Rose Park was in financial difficulties, and according to Weston, was on the verge of ‘going... belly up’.[12] Weston says that on or about [Tuesday] 10 November 2015 he went to Stock’s office in Laidley, spoke to Ms Nugent and ‘clearly’ told her ‘that there was to be no more feed delivered unless it was paid for prior to delivery’.[13] However, deliveries on credit were made in December 2015 and February 2016.
- [17]For her apart, Ms Nugent deposes that she does ‘not recall ever speaking with Francis Weston about this matter or any other matter’, that she never worked for Stock on Tuesdays, and that she was not authorised or trained to deal with customers’ directions regarding deliveries or payment for same.[14]
- [18]There is no evidence of an attempt to return the allegedly unordered items.
- [19]Peter Gesler, a director of Stock, confirmed in oral evidence that Nugent did not work on Tuesdays and added:
She doesn’t handle any incoming sales inquiries... She doesn’t have a role in credit control, opening accounts or placing customers on stop credit... [She] is an Indonesian/Chinese lady whose second language is English. She... doesn’t speak it great... [or] understand it great... If anybody would’ve come [as Weston says he did] she would’ve either contacted me or [mill manager] Greg Hutton to get them to take over that conversation.[15]
- [20]
- [21]When Gesler asserted that ‘every phone call that we got to deliver feed to Rose Park came from Francis Weston’ the latter answered obliquely: ‘I don’t believe you can say that.’[18]
- [22]In a submission that would intrigue aficionados of Graham Greene’s classic film of post-war Vienna, Weston suggested that the subject goods were ordered by a ‘third man’,[19] ‘while [the latter was] on the property of Rose Park’.[20] Weston declined to identify the third man,[21] and was not ordered to do so, but said he was a Rose Park employee.[22] However, when the adjudicator raised the possibility that the third man placed his orders as agent for Rose Park, Weston abruptly changed course. Was the third man being paid by Rose Park at the relevant time?
MR WESTON: No, his payment was by the agistment of horses on the property.
ADJUDICATOR KATTER: So in exchange for his work it was to agist?
MR WESTON: Yes.
ADJUDICATOR KATTER: When did he cease to be employed?
MR WESTON: When he was banned[23] by Racing Queensland.
ADJUDICATOR KATTER: And when did that occur?
MR WESTON: I believe that occurred in about March of the following year [i.e. 2016] ... about three months over the time....
ADJUDICATOR KATTER: [I]f this person is an employee he’s still therefore an agent ... of the company.
MR WESTON: No. He’s – because he’s doing an agistment swap he’s not an employee.[24]
ADJUDICATOR KATTER: So he’s not an employee.
MR WESTON: He’s doing a swap... not paying tax... not getting super...
- [23]
- [24]The adjudicator held, further, that ‘the respondent terminated any ongoing agreement by communicating with Ms Nugent’,[27] so that Stock was not liable to pay for deliveries made after that time.
Absence of Reasons
- [25]No reason was given for rejecting or ignoring Ms Nugent’s evidence. The sole reason given for accepting Weston’s evidence was that ‘the tribunal is not minded to make a finding that the respondent [sic] is lying under oath’.[28]
- [26]No consideration was given to the possibility that, if Nugent’s evidence were rejected, it might be inferred that a similar disparagement would be visited upon her. It might be thought that she had a less intense interest in the result of the case.
- [27]Besides, ‘credit’, in an evidentiary context, has a much broader meaning than lying or telling the whole truth. A witness’s credit may be affected, for example, by faulty memory, passage of time, or wishful thinking that induces an honest but mistaken belief. Even when an inference of lying is available, judges may choose some euphemism, or simply say that, for reasons given, they prefer another version.
- [28]It is difficult to persuade an appeal court to disturb a primary court’s findings of fact, particularly when they depend on assessment of credit.[29] It is not appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he thinks it should receive. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.[30]
- [29]However, this predicates that adequate reasons are given for the decision in question. With due respect, that is not the case here, and it is the duty of the appeal tribunal, particularly when parties are not legally represented, to draw attention to serious errors of law.
- [30]A former Chief Justice of the High Court observed:
It is of critical importance for the judge of first instance to make a clear finding on any disputed issue of fact… If a finding of fact depends on an issue of credibility the judge should resolve that issue and in fairness to the parties should reveal why he prefers one witness to another.[31]
- [31]
[A] prime purpose is the disclosure of the tribunal’s reasoning process to the public and the parties. The provision of reasons engenders confidence in the community that the tribunal has gone about its task appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given close enough attention, or that it has allowed extraneous matters to cloud its consideration… [A] tribunal is required to state publicly what its reasoning process is ... to ensure that [it] ... discharges the important statutory function[s] which it has.
- [32]
- [33]No reasons are given for rejecting or ignoring the evidence of Nugent. The sole reason given for accepting Weston’s evidence is manifestly inadequate. As indicated above, there are several aspects of his evidence that merit careful consideration before it is accepted. I express no opinion upon the weight, if any, that might be attached to those considerations. That is the prerogative of another decision maker.
Rose Park’s Counterclaim
- [34]In the original proceedings Rose Park counterclaimed for damage to property, caused by negligent operation of Stock’s delivery truck or trucks. That claim was dismissed on the novel ground that, because it was not filed for two years,[36] it ‘has abated or has gone away’.[37] There is not, nor could there be any suggestion that it was statute barred.[38] However, as there is no cross appeal, it is unnecessary to expatiate on this aspect of the case.
Stock’s Claim for Interest and Costs
- [35]In addition to its action for debt, Stock sought interest and costs in the amount of $559.50. No order was made in relation to these claims, and no reason is given for omitting to do so. This is a matter for consideration at any rehearing.
Orders
- [36]The time for filing the application for leave to appeal is extended to 14 December 2017.
- [37]Leave to appeal is granted.
- [38]The appeal is allowed.
- [39]The orders made on 3 October 2017 are set aside.
- [40]The claims of the appellant Stock are remitted to the tribunal at Ipswich, to be reheard by a different adjudicator at a time and date to be fixed.
Footnotes
[1] Sworn evidence is not mandatory, particularly when there is no evidence to the contrary: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 95(4)(b).
[2] It suffices to supply reasons on CD instead of writing: QCAT Act, s 123(2).
[3] QCAT Act, s 143(3).
[4] QCAT Act, s 143(3), (5).
[5] [2011] QCAT 229, [9].
[6] Compare QCAT Act s 61(3). (Except of course, exposure to an action that could not be taken if the time limit were rigidly enforced. But if that were treated as decisive, no extension would ever be granted.)
[7] Transcript of hearing 3 October 2017 (hereinafter ‘T’) page 50, line 45.
[8] T page 10, line 41.
[9] T page 11, line 23; T page 33, line 36.
[10] T page 18, lines 1-4, 16, 45; T page 51, line 25.
[11] T page 25, line 47.
[12] T page 23, line 43.
[13] Affidavit of Francis Arthur Weston sworn 9 June 2017, paragraph 12.
[14] Affidavit of Ritha Nugent sworn 14 September 2017.
[15] T page 20, lines 1-13.
[16] T page 45, lines 31-32.
[17] Summons to witness to attend.
[18] T page 34, line 29.
[19] T page 26, line 36.
[20] T page 25, lines 40-41 (Weston).
[21] T page 26, line 42; T page 31, line 19.
[22] T page 31, line 24; T page 46, line 33.
[23] T page 31, lines 29-39.
[24] T page 31, lines 34-45; page 32, lines 1-6, 22-34.
[25] T page 34, lines 4-5.
[26] T page 52, lines 29-31.
[27] T page 52, lines 36-37.
[28] T page 51, lines 45-46.
[29] Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ); Fox v Percy (2003) 214 CLR 118, [23].
[30] Fox v Percy (2003) 214 CLR 118, 125-126.
[31] Harry Gibbs, ‘Judgment Writing’ (1993) 67 Australian Law Journal 494, 497, emphasis added. See also Frank Kitto, ‘Why Write Judgments?’ (1992) 66 Australian Law Journal 787.
[32] (1989) 91 ALR 65, 88; Res 1 v Medical Board of Queensland [2008] QCA 152.
[33] Adamson v Queensland Law Society [1990] 1 Qd R 498, 508 (Thomas J).
[34] Kermanioun v Comcare (1998) 55 ALD 503; Hoskins v Repatriation Commission (1991) 23 FCR 443, 448.
[35] Osmond v Public Service Board of NSW [1984] 3 NSWLR 447, 483 (Priestley JA).
[36] T page 53, line 20.
[37] T page 53, line 34.
[38] Compare Limitation of Actions Act 1974 (Qld), s 10(1)(a).