Suncoast Cabs Ltd v Brown[2020] QCATA 176

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   From 1995 to mid-2017 (`the period’) the respondent Gary Alwyn Brown (`Brown’) operated a taxi service on the Sunshine Coast in association with the Applicant Suncoast Cabs Ltd (`Suncoast’).
2. [2]
   At all material times Suncoast held a service contract with the Queensland Department of Transport and Main Roads, pursuant to the Transport Operations (Passenger Transport) Act 1994 (Qld), and under that legislation Brown’s business was affiliated to Suncoast.

Advance payments? Verdict for claimant

3. [3]
   Brown alleges that throughout the period, up to and including June 2017 he made monthly payments in advance to Suncoast for its services, which included its electronic booking system.
4. [4]
   Suncoast denies that allegation and says that after 2011, Brown’s monthly payments were charged in arrears.
5. [5]
   Brown says that his final payment of $2,290 to Suncoast in June 2017, was in advance for July 2017, because on and from 30 June 2017 he ceased to use Suncoast’s services.
6. [6]
   Accordingly Brown alleges, and Suncoast denies, that Brown is entitled to recover from it the amount claimed, or any amount.
7. [7]
   On 21 June 2019 the Tribunal upheld Brown’s claim, and awarded him $2,410.50, including costs.

Proposed grounds of appeal

8. [8]
   Suncoast seeks leave to appeal^[1] against that decision on the following grounds: (i) erroneous application of the onus of proof; (ii) that the Tribunal’s findings were not reasonably open on the evidence; (iii) acting on irrelevant material; (iv) denial of natural justice; and (v) that Brown’s action is statute barred.

Brown’s case

9. [9]
   Brown’s operated two cabs in association with Suncoast, numbered 40 and 60 respectively.^[2] In 2017 monthly `base fees’ (`fees’) due to Suncoast were $1,145 per car.

10. [10]
    Brown says that in he began paying Suncoast’s fees in advance in July 2005, when he began to operate cars 40 and 60.^[3] He claims that he continued to pay in advance until he retired on 30 June 2017. His present action is to recover two amounts of $1,145 ($2,290) which, so he says, he paid in advance in June 2017^[4] (the refund’).

11. [11]
    According to Brown’s particulars of claim^[5] he applied to Suncoast for the refund in June 2017 without success. Suncoast’s Financial Controller (Ms Bhola) then told him that in July 2010^[6] fees ceased to be charged in advance, and that thereafter they were levied `in arrears’. In other words, Suncoast’s case is that Brown was not charged fees for July 2017, and so consequently no refund was payable.

12. [12]
    Understandably Brown could not produce receipts from 2005, but he attached to his Application, and tendered to the Tribunal a memorandum from Suncoast to its operators advising that fees were payable in advance, and a document described as Suncoast’s Bylaws and Operational Procedures to the same effect. However, the only copy produced is dated 21 December 2010.^[7]

13. [13]
    Brown acknowledges^[8] that in January 2012 Suncoast changed the notation on its receipts for fees from `Base Fees’ to `Base fees Current Month’, but, so far as he is aware, the company gave no explanation of the change, or draw operators’ attention to it. So far as he was concerned he continued to pay fees a month in advance. Brown suggested, darkly, that the only reason for the change was `to cover up the pretence that base fees were no longer regarded as being in advance’.^[9]

14. [14]
    Brown tendered evidence from two witnesses in support of his case, namely a fellow Suncoast operator, Darryl Wockner, and a former Suncoast employee, Sally Lynelle Hargreaves, who made a statutory declaration. Hargraves states in part:

I was in the employ of Suncoast Cabs as Office Manager from 2002 to 2007 ... During my term of employment, it was the policy of Suncoast Cabs that base fees were to be paid in advance ... When an operator ceased operation or terminated the operation of a particular taxi licence ... base fees for the final month were not owing given that the initial payment ... was in advance. The Policy/Procedures of payment of base fees in advance were never rescinded or amended during my term of employment with Suncoast Cabs.^[10]

15. [15]
    However, a defect in this evidence is that Hargreaves left the company about ten years before Brown retired, and five years before Suncoast changed its terminology from `Base Fees” to `Base Fees Current Month’.

16. [16]
    Darryl Wockner testified (in the present tense) that `all base fees are paid in advance.’^[11] Apparently his association with the company began in 1999.^[12]

ADJUDICATOR: So am I correct in saying that your understanding is that’s been the arrangement forever?

MR WOCKNER: That is correct.^[13]

17. [17]
    The question was obviously leading, although it merely sought confirmation of evidence the witness had already given.

18. [18]
    Wockner was cross-examined by Bhola, the company’s financial controller, and Eli Ten Dam, its general manager, in tandem. Bhola declined an invitation to accuse Wockner of `making it up’,^[14] although a little later she labelled him a liar.^[15] Wockner produced two invoices issued to him, and Bhola conceded that they appeared to require payment in advance.^[16]

19. [19]
    In reply to Van Dam Wockner claimed that he had been paid fee refunds on no fewer than six cars.^[17]

Suncoast’s case on trial

20. [20]
    Virtually the sole witness for Suncoast was Ms Bhola, who was also its counsel. (Van Dam asked a few questions in cross-examination.) She joined the company in February 2011.^[18]  She stated that she had never, in her time with the company, charged base fees in advance.^[19]

21. [21]
    Ms Bhola was voluble without being particularly helpful:

I don’t remember the dates [of Wockner’s invoices]. I don’t have my system that I can look into to say, yes,  exactly this was the date that has happened, and just looking at the two invoices, can’t give the history because if from where those invoices it says, yes, there was one changed in January and if Gary Brown says the car started operating ... [I]f he was charged, like I said, the system – when you input into the system you create a data. It can’t create two datas [sic] with two base fees. It has to be just one, and if at the time it was created on 31^st January to say he starts on 1^st February, the system would pick up and charge a base fee. ... Every car is different in its setup in the system and the date it starts operations ...^[20]

 The decision

22. [22]
    The Adjudicator was satisfied, on the limited materials before him, that the Respondent’s case was established to the civil standard of proof. None of the proposed grounds of appeal contends that his reasons were insufficiently explicit. Courts of high authority have warned against imposing superior court standards on decisions of hard-pressed tribunals created to decide minor cases speedily and simply.^[21]

Nature and limits of leave application

23. [23]
    An application for leave to appeal is not an opportunity to reopen the trial, or to `second guess’ the primary judge’s findings of fact and credit. That is his province.^[22] It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will rarely be disturbed if they have rational support in the evidence, even if another rational view is available.^[23] Where reasonable minds may differ, a decision cannot be called erroneous simply because one conclusion is preferred to another possible view.

`Fresh’ evidence excluded

24. [24]
    The Applicant’s request to allow additional evidence has already been dismissed. It is not `fresh’ evidence in the requisite sense.<sup>[24]</sup> The evidence in question, assuming that it existed, could and should have been adduced at the trial. Ms Bhola admits that she was warned at mediation `that we’ll have to submit all we have’.^[25] That advice is enshrined in the Tribunal’s rules.^[26]

25. [25]
    The Respondent’s MCD application described his case in considerable detail, as the Adjudicator noted.^[27] It foreshadowed Wockner’s appearance as a witness, as did the Applicant’s response.^[28] It required no scintillating legal analysis, or vivid imagination, to anticipate the probable gist of his evidence, which cannot be described as a surprise. Not to put too fine a point on it, any difficulty that the Applicant had with Wockner’s evidence was due to signal absence of preparation. Repeatedly the Adjudicator, to the point of exasperation asked Ms Bholo for documents that were not produced:^[29]

MEMBER: Yes, but you’re arguing without any documentation at all.

MS BHOLO: I know.

26. [26]
    It appears that each party approached the trial under the seriously mistaken impression that the criminal standard of proof applied. As the Adjudicator suggested,^[30] this idea may have led the Applicant to adopt an unduly casual approach to the hearing. The Applicant now seeks an opportunity to repair a failure of research. But as Thomas QC, Judicial Member observed^[31]:

If parties were allowed to continue to submit material following the conclusion of the oral hearing, procedural fairness would dictate that the other party have the opportunity to respond – hearings might never come to an end – the tribunal is entitled to control its own procedures and make directions for the efficient disposal of the matter.

27. [27]
    Avoidable procedural delays waste court time, public money and unduly delay the access of other litigants to the court:

It is common knowledge that [QCAT’s] jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and to act in their own interests. QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed, the public as a whole and not merely the parties to proceedings: Aon Risk Services Australia Ltd v Australian National University.^[32] The QCAT regime itself places obligations upon parties to take care in their dealings with the Tribunal ... The legislation, and the demands upon public resources which fund QCAT necessarily impose an expectation and an obligation upon a party that it will act in its own best interests, or accept the consequences.^[33]

28. [28]
    These are the reasons for dismissal of the application to adduce `fresh’ evidence. I move now to the proposed grounds of appeal.

Ground 1

29. [29]
    There is no substance in the submission that the Tribunal misapplied the onus of proof. At the hearing, the Respondent presented a prima facie case that the Adjudicator was entitled to accept. In response the Applicant produced relatively little. When the Adjudicator said - ` Is there any evidence that you can produce that will prove that what Mr Brown’s saying is not the correct position?’^[34] - he was clearly referring to the well settled distinction between the legal burden and the persuasive or tactical burden. During a trial, the latter may shift from time to time, in the sense that the party with the tactical (albeit not the legal) onus may lose if he gives no further evidence.^[35] There is no error in implying this distinction.

Ground 2

30. [30]
    Absent the material that was disallowed - that is, considering only the evidence adduced at the trial - it is incorrect to assert that the Tribunal’s findings were not reasonably available upon the evidence. The Respondent presented an acceptable prima facie case, which the Adjudicator, as judge of fact and credit, was entitled to prefer to the Applicant’s version. See paragraph [23] above, and authorities there cited.

Ground 3

31. [31]
    The evidence of Wockner is not immune from criticism as to weight, but nevertheless it is admissible circumstantial evidence, particularly in a forum that is not shackled by the arguably excessive restrictions^[36] that the common law of evidence places upon similar fact or `pattern’ evidence.

Ground 4

32. [32]
    For the reasons given in paragraphs [24] to [27] above, the Adjudicator’s decision against adjournment was not a denial of natural justice or due process. Before the hearing it was easily discernible that Wockner would support Brown’s version of payment in advance. The Applicant then had ample time to search its records in relation to Wockner, and to extract and bring to the hearing any material that might rebut Wockner’s predictable claims. The Adjudicator’s ruling was within his discretion to move the MCD case along.

Ground 5

33. [33]
    There is nothing in the limitation point. Brown’s claim was for moneys allegedly overpaid in June 2017, which is, of course, well within the six years allowed for commencing actions of this kind. Alternatively, if Brown’s claim were treated as an action for an account, then every monthly payment, if levied in advance, could support a new cause of action.^[37]

Conclusion

34. [34]
    The Adjudicator was obliged to deal with evidence in quite an untidy state, but a retrial to improve it would be an unwarranted extravagance. The decision was within the prerogative of the primary as trial judge. I discern no error of law in his reasons or conduct of the case. Leave to appeal will be refused.

ORDER

The application for leave to appeal is dismissed.