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Key Promotional Products Pty Ltd v Carr QCATA 46
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Key Promotional Products Pty Ltd v Carr  QCATA 46
KEY PROMOTIONAL PRODUCTS PTY LTD
ORIGINATING APPLICATION NO/S:
8 April 2019
2 April 2019
Leave to appeal refused.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where allegation of denial of natural justice – where Tribunal has mandate to deal with matters quickly – where appellant was given opportunity to present case and rebut respondent’s case – where appellant had obligation to prove its case – where appellant was given natural justice within context of Tribunal’s minor civil disputes jurisdiction
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicant applied for leave to appeal – where applicant sought to introduce evidence not adduced at first instance – whether evidence should be admitted – whether evidence capable of supporting findings – where new evidence did not have sufficient weight to overturn original findings – where findings still open on evidence – whether leave to appeal should be granted
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 143
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39
Cachia v Grech  NSWCA 232
Chambers v Jobling (1986) 7 NSWLR 1
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Creek v Raine & Horne Real Estate Mossman  QCATA 226
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
Kioa v West (1985) 159 CLR 550
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212
Selvanayagam v University of the West Indies  1 All ER 824
Slater v Wilkes  QCATA 12
APPEARANCES & REPRESENTATION:
Craig Harding, Director
REASONS FOR DECISION
What is this appeal about?
- On 15 May 2018, the Tribunal dismissed a claim for $1,000 by Key Promotional Products Pty Ltd that Key said it lent to Rene Carr. Key wants to appeal that decision.
- Because this is an appeal from a minor civil dispute, leave is required.
- In determining whether to grant leave, the Tribunal will consider established principles including:
- (a)whether there is a reasonably arguable case of error in the primary decision;
- (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;
- (c)whether leave is needed to correct a substantial injustice caused by some error; and
- (d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.
- I will address the grounds of appeal below.
Did the Tribunal give Key procedural fairness?
- Key submitted that Ms Carr brought a document to the original hearing that was not in her response to the application. The document was Ms Carr’s bank statement showing Key deposited $100 (and not $1,000) into her account with the reference “holiday”. Although not articulated in the ground of appeal, the inference is that the late production of the bank statement meant that Key was denied procedural fairness.
- The Tribunal must observe procedural fairness. However, this is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power. The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.
- The Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice, is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year. Within this context, the Tribunal is not bound by the rules of evidence, and may inform itself in any way it considers appropriate.
- The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically. This means that parties may not be aware of all of the material relied upon by their opponent before the hearing. As the party claiming it lent $1,000 to Ms Carr, Key must prove the nature and amount of the transaction. The Tribunal gave Key an opportunity to present its material to prove those elements and to rebut Ms Carr’s evidence.
- Key submitted that the late production of the Bank Statement meant that it was denied the opportunity to present evidence in reply that another former staff member (who is now a partner in business with Ms Carr competing against Key) recorded the ‘holiday’ reference, contrary to Key’s instructions.
- However, Ms Carr’s Bank Statement reference merely reflects Key’s description of the transaction when it paid the $100 into Ms Carr’s account. Key’s directors had the opportunity to examine Key’s records of the transaction before the original hearing to ascertain that description. It was always incumbent upon Key to examine and produce its own records of the transaction given their potential value to the essential elements of the case – the nature and amount of the transaction. Key’s directors would have then been aware of the reference to ‘holiday’ and its author and could have presented Key’s case accordingly.
- Key cannot rely upon its own failure to properly prepare its case as a denial of procedural fairness. Key’s preparation of its case did not depend on the production of the Bank Statement. Key was therefore not denied procedural fairness by the late production of the Bank Statement.
- At the original hearing, the Tribunal asked relevant questions of both parties and gave them an opportunity to respond, referring to supporting material where appropriate. By doing so, the Tribunal focused on the issues and used time and resources efficiently, consistent with the Tribunal’s mandate. Extending the requirements of procedural fairness beyond this is inconsistent with the QCAT Act and would make the minor civil disputes jurisdiction cumbersome.
- This ground of appeal is dismissed.
Was the evidence capable of supporting the Tribunal’s findings?
- Key filed the following fresh evidence with its appeal:
- (a)ABN Search of R.T Carr & M Howard & J.M Margetts dated 14 May 2018;
- (b)ASIC Search of JMR Promo dated 31 January 2018;
- (c)Letter Key Promotional products to “Dear Valued Customer” dated 6 February 2018; and
- (d)File Note dated 1 February 2018.
- The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:
- (a)Could the parties have obtained the evidence with reasonable diligence for use at the trial?
- (b)If allowed, would the evidence probably have an important impact on the result of the case?
- (c)Is the evidence credible?
- Key did not explain why these documents were not tendered at the hearing, although it would appear that the reason is to counter Ms Carr’s evidence at the hearing that the transaction was not a $1,000 loan, but $100 holiday pay.
- Key cannot seek to introduce rebuttal evidence after the Tribunal has delivered its findings at a hearing. The onus is always upon Key to present its case and bring all relevant material to the hearing. Key had an obligation to act in its own best interests:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources,
“… the public as a whole, not merely the parties to the proceedings”.
Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.
- Moreover, the Appeal Tribunal is not satisfied that the documents would have any impact on the result of the case. Documents (a), (b) and (c) are not relevant to determining whether the transaction was a loan or holiday pay. Document (d) is a file note that reads:
Pay advance – Rene had requested an advance payment on her wages to help her pay for rent expenses over the holiday period. This was agreed to with the provision (for) repayments of $100 per week would be made by Rene in the new year. This was paid to Rene in cash on the 21/12/2017. This was made up of $900 cash from Craig’s personal account and $100 was paid via the Key Promo “Pay” account (Note: Rene makes note of this arrangement on her timesheet dated 14/12/2017)
- The timesheet to which the file note refers has a notation that reads, ‘Moana please confirm if Craig will be including $1000 this week or next week’.
- At the original hearing, Ms Carr denied making this notation.
- The Appeal Tribunal is not satisfied that the file note is sufficient to displace the Tribunal’s finding of fact that the transaction was not a loan. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.
- Even accepting that the file note could allow a possible alternative inference that the transaction was a loan, does not prove it as a fact. Attempting to explain away the Tribunal’s finding with a possible alternative inference does not demonstrate error by the Tribunal. The file note is not a contemporaneous record of the transaction. It is not signed, does not refer to an author and is dated some six weeks after the transaction.
- Against this and in support of its finding that the transaction was not a loan, the Tribunal explicitly relied upon the sworn oral evidence of Ms Carr, her bank statement, and Key’s documents filed with its original application that refer to a bank account that was not Ms Carr’s account. It is implicit that the Tribunal preferred Ms Carr’s sworn oral evidence and her supporting documents over that of Key’s Director. The Tribunal referred to the evidence to support its ultimate finding, which it was entitled to weigh accordingly.
- A decision cannot properly be called erroneous, simply because the Tribunal preferred one conclusion over another. Having heard the evidence of both parties, the Tribunal was in the best position to assess credibility. It is not an error to prefer one version of events to another. The Appeal Tribunal is not satisfied that the file note has sufficient evidential weight to overturn the Tribunal’s original finding.
- The Tribunal’s reasons set out the evidence it considered relevant and the basis for its findings. The Tribunal’s finding that Key had failed to prove that the transaction was a $1,000 loan was open on the evidence. Nothing in the material or the transcript persuades the Appeal Tribunal that the Tribunal’s finding was not open.
- The Tribunal’s decision was therefore appropriate and the Appeal Tribunal can find no reason to come to a different view.
- This ground of appeal is dismissed.
Should the Appeal Tribunal grant leave to appeal?
- Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence. A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case. An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.
- Having read the transcript and considered the evidence, the Appeal Tribunal finds nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting its decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions.
- There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
What is the appropriate Order?
- The appropriate Order is that leave to appeal is refused.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
Cachia v Grech  NSWCA 232, .
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577, 577, 580.
 QCAT Act, s 28(3)(a).
 Kioa v West (1985) 159 CLR 550, 584-585.
 Creek v Raine & Horne Mossman  QCATA 226,  (Wilson J).
 QCAT Act, s 4(c).
 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212,  (Wilson J).
 QCAT Act, s 28(3)(b).
 Ibid, s 28(3)(c).
Ibid, s 3, s 4.
Transcript page 1-9, lines 44 to 46; pages 1-10 to 1-11.
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39, .
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404, 408.
Creek v Raine & Horne Mossman  QCATA 226, , citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 (citations omitted).
File Note dated 1 February 2018.
Timesheet for week ending 14 December 2017.
Transcript page 1-12 to 1-13.
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 pages 1-15 to 1-16.
Transcript page 1-16, lines 11 to 18.
Selvanayagam v University of the West Indies  1 All ER 824, 826.
Slater v Wilkes  QCATA 12 at , citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611.
Slater v Wilkes  QCATA 12, .
Transcript, pages 1-18 to 1-23.
Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152,  (Wilson J).
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39.
- Published Case Name:
Key Promotional Products Pty Ltd v Rene Carr
- Shortened Case Name:
Key Promotional Products Pty Ltd v Carr
 QCATA 46
08 Apr 2019