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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Eliely Siaana Pty Ltd v Scolari Enterprises Pty Ltd  QCATA 125
ELIELY SIAANA PTY LTD
SCOLARI ENTERPRISES PTY LTD T/AS AUSSIE NAMBOUR
ORIGINATING APPLICATION NO/S:
26 August 2020
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – leave to appeal – where Tribunal failed to provide adequate reasons for decision –– where parties must be satisfied that Tribunal has given them answer to their issues – where Tribunal at first instance did not explain basis for findings or why it accepted evidence or preferred other evidence – where failure to give adequate reasons amounted to denial of procedural fairness – where error of law for which leave should be granted to correct substantial injustice
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 13, s 28, s 121, s 143
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Body Corporate for Rosegum Villas v Queensland Building and Construction Commission  QCATA 125
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd  QCATA 69
Cachia v Grech  NSWCA 232
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
Harris v Foxworth Pty Ltd  QCATA 133
Hayward & Anor v LJ Hooker Longreach  QCATA 221
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
Mistero Pty Ltd v Cann  QCATA 56
Phu v NSW Department of Education and Training  NSWADTAP 76
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
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
What is this appeal about?
- Eliely Siaana Pty Ltd claimed that Scolari Enterprises Pty Ltd t/as Aussie Nambour owed it $4,148.63 in unpaid commissions and interest. Two Justices of the Peace dismissed the claim and somewhat unusually, invited Eliely to appeal. It did, by applying for leave to appeal.
- Key issues in the dispute included the actual terms of any Agreement between Eliely and Aussie and whether Aussie properly terminated the Agreement with Eliely pursuant to those terms. After hearing from Mr Nicol for Eliely and Mr Scolari for Aussie, the learned Justices gave their decision. The hearing transcript reveals the following exchange:
TRIBUNAL JP: - - - did he terminate you under 17.1?
MR NICOL: No, he didn’t because here’s the thing from Aussie where they said, “Here’s Alana Shuma”. And it’s got here termination date they started it was the 8th of March. “Did the broker leave under any adverse circumstances?”. “No.” So I wasn’t terminated. Also - - -
TRIBUNAL JP: But what does this email of his say then? This email is quite clear. It says – on the 19th it says you’re terminated.
MR NICOL: But that – I was speaking to Michael and he said “Look” – because I spoke to Michael probably about 10, 15 times.
TRIBUNAL JP: But it says here, “I cannot risk my brand being [indistinct] (sic) Therefore, how we reverse your ties with Aussie Nambour” (sic) That’s pretty straightforward and that sounds like a 17.1 to us.
MR NICOL: But that’s 17.1 - - -
TRIBUNAL JP: And that brings into account 20.3 - - -
MR NICOL: But that 17.1 - - -
TRIBUNAL JP: - - - in your contract.
MR NICOL: - - - isn’t a – we haven’t signed that contract between ourselves and, I mean, the main thing’s remuneration. But I spoke to Michael several times during that week and he said, “Look, we’ll allay it and we’ll put it off”. I continued working, which I did. That email he’s talking about is actually 9th of February.
TRIBUNAL JP: But we do have an affidavit from – well, no, there’s an email here that says 19th of January. It’s quite clear, the one we’ve got in front of us.
MR NICOL: But – and his - - -
TRIBUNAL JP: Page 24 of his materials.
MR NICOL: But I think – the one I got paid for, for [omitted] and [omitted], I continued working through March because that actually didn’t go to auction until the end of February. So we had a discussion - - -
TRIBUNAL JP: Yeah, but we’ve got you here terminated on the 19th of January.
MR NICOL: And that was – well, that was reversed because Michael, again, had discussion - - -
TRIBUNAL JP: Well, do you have an affidavit from him saying that?
MR NICOL: Well, that thing that you photocopied before is where Michael has written down saying - - -
TRIBUNAL JP: Yeah, I know.
MR NICOL: - - - “These are the loans you’re doing.”
TRIBUNAL JP: Well, we don’t know that he’s written that. I mean, there’s nothing from (sic) saying that he’s – there’s nothing signed by him or – they’re just bits of paper where - - -
MR NICOL: Yeah. But I’ve got these things here - - -
TRIBUNAL JP: - - - things have been written down.
MR NICOL: - - - where Aussie, again, after those discussions - - -
TRIBUNAL JP: I’m sorry. But I think at this stage, I think my colleague and I have heard enough. We’re going to dismiss your claim at this stage and invite you to lodge an appeal.
MR NICOL: Yeah. Yeah.
TRIBUNAL JP: - - - and bring statements from Michael to the effect that this was not the case.
MR NICOL: Okay.
TRIBUNAL JP: But what we’ve got in front of us, we have no choice but to dismiss your claim.
MR NICOL: What about the trials (sic) I got? I was supposed to be paid up until January.
TRIBUNAL JP: Well - - -
MR NICOL: Because he’s outright refused - - -
TRIBUNAL JP: - - - you can’t be paid under 23. It says you’re not going to be paid any commission at all.
MR NICOL: But the only reason I wasn’t - - -
TRIBUNAL JP: I think you need to read your own contract.
MR NICOL: But that – I actually – I didn’t have a contract with Mr Scolari. He didn’t even have one.
TRIBUNAL JP: Have you got a contract with Aussie?
MR NICOL: Yeah, the – yeah, so which is Aussie Mobile.
TRIBUNAL JP: Yeah, yeah.
MR NICOL: But, yeah, certainly – but I should - - -
TRIBUNAL JP: I’m sorry, sir, but we’re going to have to stop this here.
MR NICOL: Okay. Sorry.
TRIBUNAL JP: That’s it. We’re going to have to dismiss your claim. I’ll advise you – when you get your order in the post, it’ll say down the bottom what to do next.
MR NICOL: Okay.
TRIBUNAL JP: And I suggest you come with a bit more evidence of what really happened. So something from Michael.
MR NICOL: Okay.
TRIBUNAL JP: We have nothing from Michael. I’d say – and I’m not supposed to provide you with advice. But you seem like a nice man, so I’ll give you some advice. Get an affidavit from Michael that says how you were terminated.
MR NICOL: Okay. Well, he was, again – I’ll see if I can get the emails, but - - -
TRIBUNAL JP: Okay.
MR NICOL: So these things are - - -
TRIBUNAL JP: But that’s it, I’m afraid.
MR NICOL: Okay.
TRIBUNAL JP: We’re through today.
- Some observations should be made about this exchange.
- First, the minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically. In doing so, the Tribunal must make orders that it considers fair and equitable to resolve the dispute. Making orders with a caveat allowing a party an opportunity to submit further evidence and reargue their case is contrary to that mandate.
- Moreover, it is contrary to the principles upon which leave to appeal will be granted. Leave to appeal will not be granted where a party simply desires to re-argue the case on existing or additional evidence. The appeal process is not an opportunity for a party to again present their case. It is the means to correct an error by the Tribunal that decided the proceeding.
- Second – and this is why leave to appeal must be granted and the appeal allowed – the Tribunal did not explain why it accepted Mr Scolari’s evidence of the terms of the Agreement and Aussie’s reasons for terminating the Agreement with Eliely.
- The Tribunal must explain the basis for its findings. Mr Nicol and Mr Scolari gave differing versions of events. Mr Nicol disputed the terms of the Agreement, whether they were written and the reason for Aussie terminating the Agreement.
- The Agreement filed with Aussie’s response is not signed. That does not necessarily mean it is not binding and enforceable. However, it does mean that Eliely is entitled to know why the Tribunal accepted it and why the Tribunal found that Aussie terminated the Agreement pursuant to its terms.
- While it may be implicit that the Tribunal preferred Mr Scolari’s evidence, it did not explain why it preferred that evidence over Mr Nicol’s evidence. If the Tribunal preferred Mr Scolari’s evidence over Mr Nicol’s evidence, it should say so and explain why, referring to corroborative evidence and issues of credit, where appropriate.
- While the Tribunal’s finding may have been open, Eliely is entitled to know why Mr Nicol’s evidence was not accepted. The reasons do not show this. Whatever the Tribunal’s findings of fact, the parties must be satisfied that the Tribunal has given them an answer to their issues.
- While it may be understandable that the learned Justices sought to deliver reasons with economy and brevity, the emphasis on expedition and informality does not allow the Tribunal to pursue speedy resolution at all costs. In all proceedings, the Tribunal must still act fairly and according to the substantial merits of the case and observe the rules of natural justice.
- This means that the Tribunal must give proper reasons for its decision:
Those reasons need not be elaborate, but they must contain three essential elements: appropriate and sufficient reference to the relevant evidence; the material findings of fact that were made (and the reasons for making those findings); and the applicable law and the reasons for applying it in the way expressed in the decision. It has also been said, in Queensland, that the crucial element is for the Tribunal to give reasons which disclose what has been taken into account in a way that means any error is revealed.
- Eliely was not given procedural fairness because it does not know why the Tribunal at first instance found against it. The Tribunal’s “advice” to “get an affidavit from Michael that says how you were terminated” does not discharge its obligation. This is because it does not explain why it did not accept Mr Nicol’s evidence at the hearing. The Tribunal’s duty is to make findings on the evidence before it, at the hearing.
- 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.
- The Tribunal’s reasons were inadequate. This is an error of law for which leave should be granted to correct a substantial injustice.
- Eliely also filed fresh evidence with its appeal, including what it claims to be the terms of its Agreement with Aussie and details of commissions. 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 application for leave to adduce fresh evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
- Eliely explained that it did not submit this evidence at the hearing because it received Aussie’s documents late. However, as the Applicant the onus is always upon Eliely to present its case and bring all relevant material to the hearing. Despite this, the Appeal Tribunal is satisfied that the evidence is sufficiently credible and important to warrant its consideration upon rehearing, because it relates to the terms of the Agreement and its termination.
- Unfortunately, the Tribunal’s invitation to Eliely to lodge an appeal and its reference to evidence that could potentially help Eliely in any rehearing, disqualifies it from rehearing the matter. Providing “advice” to one party over another raises an issue of apprehended bias, by creating a perception of helping Eliely, to the detriment of Aussie. This means that remitting the matter to the same Tribunal would deny procedural fairness to Aussie.
- Leave to appeal is granted and the appeal allowed. The matter should be remitted for rehearing before a differently constituted Tribunal, who will be in the best position to assess credibility and make appropriate findings of fact upon hearing all the evidence from the parties.
Transcript, page 1-28, lines 20-46; page 1-29, lines 1 to 45; page 1-30, lines 1 to 46; page 1-31, lines 1-17.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4.
Ibid, s 13.
Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152,  (Wilson J).
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39, .
Body Corporate for Rosegum Villas v Queensland Building and Construction Commission  QCATA 125, .
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
Mistero Pty Ltd v Cann  QCATA 56,  (Senior Member Stilgoe OAM).
Hayward & Anor v LJ Hooker Longreach  QCATA 221,  (Wilson J).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).
Ibid, s 28(3)(a).
Ibid, s 121.
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291,  (Wilson J and Member Ford), citing Phu v NSW Department of Education and Training  NSWADTAP 76 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3).
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
Cachia v Grech  NSWCA 232, 2.
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.
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404, 408.
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212, ; Harris v Foxworth Pty Ltd  QCATA 133, ; Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd  QCATA 69, .
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-5 .
- Published Case Name:
Eliely Siaana Pty Ltd v Scolari Enterprises Pty Ltd
- Shortened Case Name:
Eliely Siaana Pty Ltd v Scolari Enterprises Pty Ltd
 QCATA 125
26 Aug 2020