Sandgate and Districts Chamber of Commerce v All Event Catering
[2018] QCATA 93
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- Sandgate and Districts Chamber of Commerce v All Event Catering[2018] QCATA 93
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Sandgate and Districts Chamber of Commerce v All Event Catering[2018] QCATA 93
Sandgate and Districts Chamber of Commerce v All Event Catering[2018] QCATA 93
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Sandgate and Districts Chamber of Commerce v All Event Catering [2018] QCATA 93 |
PARTIES: | SANDGATE AND DISTRICTS CHAMBER OF COMMERCE (appellant) |
v | |
ALL EVENT CATERING (respondent) | |
APPLICATION NO/S: | APL415-17 |
ORIGINATING APPLICATION NO/S: | MCDO395-17 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 3 July 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
ORDERS: | Leave to Appeal refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where agreement entered into for sites at a festival – where applicant claimed insufficient areas allocated on day of festival – applicant sought recovery of fees paid – market place vendor claimed there were adequate available areas – event organiser accepted insufficient area – no documentary evidence tendered at hearing – where appellant relied on new evidence on application for leave to appeal – no application made for leave to adduce fresh evidence – where respondent sought to increase claim on appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Blair v Harbrew Pty Ltd [2013] QCATA 019 Maffey v Mueller [2016] QCATA 019 Pickering v McArthur [2005] QCA 294 |
REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Self-represented |
APPEARANCES: | |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]The Sandgate and Districts Chamber of Commerce (‘Chamber’) conducted an event on Good Friday 2016 called the Bluewater Festival at Sandgate.
- [2]All Event Catering (‘AEC’) run a catering business using mobile food vans. AEC applied to Chamber for a number of allocated sites on 25 January 2016. The application was approved by Chamber on 1 February 2016.
- [3]On 13 February 2016 Chamber appointed an event organiser, Loud Events Pty Ltd (‘Loud’), to organise the Festival.
- [4]On the day of the Festival, AEC attended with 3 food vans, a generator and a cold room.
- [5]There was not enough room for the cold room at the allocated sites. AEC left the Festival without setting up. The cold room was essential to their operations. AEC asked for a refund of the site fees which totalled $1,560. Chamber refused to refund the money.
- [6]AEC filed an application for minor civil dispute – minor debt in the Tribunal seeking recovery of the site fees and the filing fee for the application. AEC joined as respondents both Chamber and the event organiser, Loud. The claim was heard before Justices of the Peace on 17 November 2017.
- [7]The Justices of the Peace ordered that Loud be removed from the action as a respondent and ordered Chamber to refund the site fees and pay the filing fee to AEC.
- [8]Chamber has appealed that order.
- [9]Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
- [10]Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
- [11]Chamber raises a number of matters in the application for leave to appeal or appeal. The grounds of appeal appear to be that:
- (a)The application for sites made by AEC shows there was no application for a 4th site for a cold room; and
- (b)Emails show evidence given by the representative appearing for Loud on the day of hearing was wrong.
- (a)
- [12]In an application for leave to appeal or appeal, it is essential that an appellant show an error has been made in the decision sought to be appealed. An appeal is not an opportunity to have the matter heard afresh, however. The appellant must be able to show the tribunal below went wrong in some way.
- [13]Chamber tendered no documentary evidence at the hearing. Nor did the other parties to the action.
- [14]Now Chamber sees fit to try to introduce new evidence at an appeal stage. That is not appropriate other than in somewhat exceptional cases. One such case is where there is fresh evidence that was not available at the time of the hearing. However fresh evidence cannot be adduced as of right. It can only be considered by leave of the Appeal Tribunal after application made.[3]
- [15]Here, the evidence sought to be adduced for the first time is not fresh evidence in the sense it was not in existence at the time of the original hearing. The evidence is in the form of emails and what appears to be the original application by AEC for sites.
- [16]There is no explanation offered by Chamber as to why the evidence was not made available to the Justices of the Peace at the time of the original hearing.
- [17]It is too late to consider it now. Parties must accept some responsibility for presentation of their cases. There is an expectation that parties will act in their own interests and if they do not they must accept the consequences.[4] Here, that means the evidence should have been tendered at hearing, but instead the Justices of the Peace were limited essentially to the oral testimony of the parties.
- [18]Similarly, there is an application in the application for leave to appeal or appeal by AEC to increase its claim by what is described as miscellaneous costs of $764.80. That amount is said to be the costs of lost wages and parking and transport fees. Those extras were not claimed in the hearing below. It is also too late for that party to claim more now.
- [19]It is possible to discern from the transcript that the Justices accepted the evidence of the representative from Loud that it was Chamber that accepted AEC’s booking of the sites, that there was no room for them on the day of the festival, and accordingly the Justices of the Peace found AEC was entitled to a refund. Given there was no documentary evidence to challenge that, the decision had to be one based on credibility and their conclusions were open on the oral testimony.
- [20]The real dispute in this matter appears to have been between Chamber and its agent Loud. The issue was whether there was room for the AEC vans. Loud, Chamber’s catering manager, said there was not. Chamber, Loud’s principal, disagreed and said there was. Chamber claimed the responsibility for poor site coordination lay with the events manager. Loud maintained Chamber entered into the site arrangements with AEC before Loud was appointed and the responsibility for not having available sites for AEC on the day lay with Chamber.
- [21]It was not necessary to reach a conclusion about that liability in the claim by AEC to recover its site fees. If Loud was responsible for an oversight about available space, regardless of that, Loud was acting as agent for Chamber, and Chamber as principal was bound by the agreement to provide sites.
- [22]If Chamber believes Loud erred in its responsibilities it is open to Chamber to bring a separate claim against Loud. But that did not affect AEC’s entitlement to recover its wasted site fees from Chamber given the findings of the Justices of the Peace.
- [23]Leave to appeal is refused.