Service v Guererra[2022] QCATA 87

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   By an Application for leave to appeal or appeal filed on 26 February 2021 (the Appeal Application), the Applicant (Ms Service) seeks leave to appeal against a decision made by the Tribunal on 2 February 2021 (the Decision).
2. [2]
   The proceeding was commenced by the Respondent to this Appeal Application (Ms Guerrera) by an Application for minor civil dispute – minor debt filed on 25 August 2020 (the MCD Application).  By the MCD Application, Ms Guerrera sought to recover an amount of $1,204.00 together with the filing fee of $125.40 (a total of $1,329.40).
3. [3]
   By the Decision, the Tribunal (constituted by an Adjudicator) ordered that Ms Service pay to Ms Guerrera the sum of $1,329.40 within 30 days from the date of the Decision.

The nature of the dispute

4. [4]
   Ms Guerrera’s claim for $1,204.00 was alleged to be the balance owing for cosmetic treatment provided by Ms Guerrera to Ms Service on 7 August 2020.  Ms Guerrera’s case was that she treated Ms Service with 64 units of Botox at $11.00 per unit ($704.00) together with 2mL of “Voluma XC” (a dermal filler) at $550.00 per mL ($1,100.00).  There is no dispute that Ms Service paid the sum of $600.00 on 7 August 2020.
5. [5]
   Ms Service disputed that the amount of $1,804.00 was owing and claimed that she had only agreed to receive $550.00 to $600.00 of Botox treatment.
6. [6]
   Following a verbal dispute between Ms Guerrera and Ms Service in relation to the amount owing, Ms Service signed a handwritten document (which I will refer to as the “Acknowledgement of Debt” consistently with the reference adopted by the Adjudicator).  The terms of that document are set out below but, in essence, Ms Service acknowledged receipt of the claimed treatments and that the outstanding balance would be paid over three weeks.^[1]  The Acknowledgement of Debt provided:

$1804 7th August 2020

Suzanne Service was treated with

64 units of BOTOX @ $11 per unit $704

2 mL’s of VOLUMA XC @ $550 per mL

an outstanding balance of $1204

remains at injectables clinic this will

be paid over 3 weeks

Sarah Guerrera

[signature]

[signature] Susan Service

7/08/2020

*S.S originally

requested two weeks to

pay outstanding debt then

asked if it could be paid over

a three week period, to which

I kindly agreed.

Sarah Guerrera

BSB 734216

Westpac Bank ACC 808423

$400 14th Aug

$400 21st Aug

$400 28th Aug

I Sarah Guerrera will not debit

the credit card details provided.

I will have the money deposited

into my account by Suzanne Service.

[signature] Sarah Guerrera

7. [7]
   At the hearing, Ms Service alleged that the Acknowledgement of Debt was signed under duress.  There was a significant factual dispute as to the particular circumstances in which the document came to be signed.

The Reasons below

8. [8]
   The Reasons for the Decision were given orally immediately at the conclusion of the hearing.
9. [9]
   The Adjudicator’s Reasons, as recorded in the Transcript of the hearing, are as follows:^[2]

The applicant is bringing a claim for payment in relation to services rendered for the respondent.  The respondent disputes the claim on the basis of what services were actually rendered and what was actually agreed to.  There is a dispute, both in regard to the services and there is a dispute in regards to what the agreement was.

The tribunal note that- well, that some documentation was handed up at today's hearing: a document stated, Consent Form; please tick and agree to the following, and one, two, three, four, five, six pages which - it was marked as tribunal exhibit number 1 in the proceedings, and a further document described as an injectables Standing Order for - form; two pages was also handed up and marked as tribunal exhibit number 2. These documents go to the services that were rendered and the consent on the 7^th of the 8th 2020, being the material date.

The tribunal was satisfied there was some services rendered. The tribunal was not satisfied as to the precise nature of what services were rendered. The tribunal is satisfied that there was some discussion prior to the services. The tribunal is not satisfied as to the precise discussion. I do note that, as the matter stands, in the absence of a document that was signed by the respondent, there was, as filed, insufficient evidence in relation to what precisely the terms of any agreement for the services were.

Any common law contract must be - any contract must have what's called certainty of terms. It may very well have been the case that with extra documentation that the applicant was seeking to hand up during the hearing today, the applicant may have sought to establish certainty of terms as to precisely what services were rendered and the agreement. However, the tribunal did not need to hear as to the precision of any agreement because there was a document that was filed and has been marked as tribunal exhibit number 3 in the proceedings. It is a document that states,

Susan Service was treated with 64 units of Botox at $11 per unit, two mils of Volumax [sic]at $550 per mil. An outstanding balance of $1204 remains at Injectables clinic. This will be paid over two weeks.

The document then contains the names of the applicant and the respondent and a signature of the applicant and the respondent and is dated the 7^th of the 8th 2020. There is a further - second page to tribunal exhibit number 3. This was - is what can be described as an acknowledgement of debt. The signature on the document has the effect at law of meaning that where a party signs, their signature indicates, at law, that that party has accepted - has read, understood and accepted the contents of that document. That is, unequivocal acknowledgement of debt.

The case for the respondent was, beyond dispute, as to the nature of any services in agreement between the parties. The case for the respondent was that the respondent was pressured into signing. The evidence in support of being pressured into signing was that there were other people present; that there was another staff member present, that another client was denied entry until the matter was dealt with, that the respondent was insulted, that the respondent was - this is the case for respondent - that the respondent was threatened with being referred to civilian police authorities, that the respondent was spoken to with a raised voice. And that was the evidence provided in open tribunal as to the pressure.

The tribunal notes that, effectively, the respondent is indicating that duress, when impugned, the legal effect of the signature. The tribunal is a statutory entity set up pursuant to the QCAT Act. It is not a decision-making body that is vested or empowered with equitable jurisdiction. In contract law a vitiating factor such as misrepresentation, mistake, duress, unconscionable conduct or undue influence; one of those five vitiating factors that would effectively knock over what would otherwise be an enforceable agreement - in other words, a contract, for example - are factors where it would be open for a court of equity - or - a court that administers equity to give consideration thereto.

However, for the tribunal to attempt, in matters where legal representation is not granted, where there is oral evidence as to what occurred on the date in relation to duress and where fundamentally the tribunal does not have power to make declarations, that a contract or an acknowledgment of debt has been affected by duress and thereby vitiates or undermines the effect of that document - it is beyond the power of the tribunal to make any such finding.

I'm not satisfied that the evidence presented at today's hearing would satisfy the significant threshold or the burden required to establish, in any event - of course, my findings or comments in that regard do not bind any other decision-making body that may have jurisdiction in relation to such matters. Suffice it to say that in relation to whether a debt exists, the tribunal is satisfied that the document of the 7^th of the 8^th 2020 establishes that a debt does exist. The tribunal is not minded - or - is not satisfied that it has jurisdiction to make a finding as to duress in relation to the signature that appears on that document. And the evidence, in any event, today, in regards to pressure or duress would not satisfy the threshold if the tribunal were minded that it did have such jurisdiction or authority.

But the reason for finding is that it - that there is a debt is because there is an acknowledgement of debt on the document marked as tribunal exhibit number 3.

And the tribunal does not have any power with regard to setting aside such document on the basis of duress. Therefore, the debt of $1204 does exist. The applicant has been entirely successful in the claim and therefore costs following the event - or - the filing fee following the event, the $125.40 will also be awarded- ought to be paid by the respondent to the applicant.

Leave to appeal

10. [10]
    An appeal against a decision of the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal (s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act)).
11. [11]
    As to the approach to be adopted in an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC:^[3]

… As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.

(citation omitted)

The Grounds of Appeal

12. [12]
    Ms Service has raised five Grounds of Appeal and prefaces those Grounds with a contention that the appeal involves questions of mixed law and fact on the grounds that the Tribunal “breached the rules of natural justice” in making the Decision and that Ms Guerrera engaged in “dishonesty” in the course of the hearing.
13. [13]
    The five Grounds of Appeal are expressed as follows:

    1. (a)
       Ground 1: Document (exhibit three) applied to the decision in favour of Ms Guerrera.  Exhibit three had not been provided to me by Ms Guerrera prior to the hearing, nor by QCAT during the hearing.
    2. (b)
       Ground 2: QCAT misinterpreted the document (exhibit three) as the document is factually wrong and is now subject to an investigation by AHPRA.
    3. (c)
       Ground 3: Document (exhibit one) applied to the decision in favour of Ms Guerrera.  Exhibit one had not been provided to me by Ms Guerrera prior to the hearing, nor by QCAT during the hearing.
    4. (d)
       Ground 4: QCAT misinterpreted the document (exhibit one), and the document is factually wrong and is subject to an investigation by AHPRA.
    5. (e)
       Ground 5: [The Adjudicator] did not take into consideration that the ‘acknowledgement of debt’ was signed under duress, unconscionable conduct, and undue influence by Ms Guerrera.
14. [14]
    I will deal with each Ground in turn.

Ground 1

15. [15]
    Ms Service contends that the document, being Exhibit 3 at the hearing, was applied by the Adjudicator in making the Decision in favour of Ms Guerrera; that Exhibit 3 was not provided to Ms Service prior to the hearing; and that the Tribunal breached the rules of natural justice by not giving Ms Service time to examine the “file” during the hearing and without the hearing being adjourned as had been suggested by the Adjudicator.
16. [16]
    The document which Ms Service refers to as Exhibit 3 is a document entitled “Medical Certificate” dated 12 December 2020 signed by a Dr Kerrisk.  Ms Service has annexed a copy of that certificate to her Grounds of Appeal and she states that it was provided by the Tribunal in response to an Application for miscellaneous matter submitted by Ms Service (which the Tribunal file indicates was filed on 26 February 2021).  Unfortunately, the document apparently provided to Ms Service was not a copy of the document which the Adjudicator treated as Exhibit 3.  Exhibit 3, as relied upon by the Adjudicator, was the Acknowledgement of Debt.  As a result, the factual premise for Ground 1 is incorrect.
17. [17]
    In my view, it is plain that the Adjudicator was referring to the Acknowledgement of Debt in the course of his Reasons, and not to the Medical Certificate.  The Adjudicator read an extract from the Acknowledgement of Debt and identified the date of that document.^[4]  The Transcript also indicates that Ms Service was acquainted with the Acknowledgement of Debt and that she was provided with a reasonable opportunity to provide a response in relation to that document during the course of the hearing.^[5]  In these circumstances, I consider that Ms Service did not require an adjournment to deal with the Acknowledgement of Debt and was not otherwise denied natural justice by the Adjudicator in this regard.
18. [18]
    In my view, in relation to Ground 1, Ms Service has not established that there is a reasonable argument that the Decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or that Ground 1 raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.  I refuse leave to appeal in relation to Ground 1.

Ground 2

19. [19]
    Ms Service alleges that the Adjudicator misinterpreted the Medical Certificate and made a wrong finding of fact.
20. [20]
    As with Ground 1, I consider that this Ground is premised on the incorrect factual assumption that the Adjudicator based his decision on the Medical Certificate.  In my view, he did not; rather, the Adjudicator relied on the Acknowledgement of Debt.
21. [21]
    In my view, in relation to Ground 2, Ms Service has not established that there is a reasonable argument that the Decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or that Ground 2 raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.  I refuse leave to appeal in relation to Ground 2.

Ground 3

22. [22]
    Ms Service contends that Exhibit 1 was applied by the Adjudicator in making the Decision in favour of Ms Guerrera and that Exhibit 1 had not been provided to Ms Service prior to, or during, the hearing, and the Tribunal breached the rules of natural justice by not giving Ms Service time to examine the “file” and without the hearing being adjourned as had been suggested by the Adjudicator.
23. [23]
    I accept that Exhibit 1 was referred to by the Adjudicator but reject the contention that Exhibit 1 was applied by the Adjudicator in making the Decision in favour of Ms Guerrera.
24. [24]
    The Adjudicator referred to Exhibit 1 at Transcript 1-23 lines 43-47.  However, I consider that the Adjudicator did not make any finding consequent upon the material comprising Exhibit 1 such that would found a conclusion that Ms Service was denied natural justice by not having the opportunity to properly consider the documents comprising Exhibit 1.
25. [25]
    First, the Adjudicator (after referring to Exhibits 1 and 2) said the following:^[6]

The tribunal was satisfied there was some services rendered. The tribunal was not satisfied as to the precise nature of what services were rendered. The tribunal is satisfied that there was some discussion prior to the services. The tribunal is not satisfied as to the precise discussion. I do note that, as the matter stands, in the absence of a document that was signed by the respondent, there was, as filed, insufficient evidence in relation to what precisely the terms of any agreement for the services were.

26. [26]
    The Adjudicator found that some services were rendered.  Ms Service did not dispute that she was treated with a number of units of Botox.  The Adjudicator expressly found that he was not satisfied as to the precise nature of what services were rendered.  The Adjudicator did not make a finding as to how many units of Botox were provided or whether the dermal filler was provided.
27. [27]
    Further, the Adjudicator found that there were some discussions prior to the services.  Again, Ms Service did not dispute that there were some discussions prior to the provision of the services; in fact, Ms Service asserted that there was an agreement that there would be a cap on the value of the services provided.^[7]  The Adjudicator expressly found that he was not satisfied as to the precise discussion that took place nor what precisely were the terms of any agreement for the provision of the services.
28. [28]
    Second, as is evident from the Adjudicator’s Reasons, the Adjudicator based his Decision on the existence of the Acknowledgement of Debt.  That was the document which was critical to his Decision.
29. [29]
    In short, I consider that the Adjudicator did not make any adverse finding against Ms Service based on Exhibit 1.
30. [30]
    In my view, in relation to Ground 3, Ms Service has not established that there is reasonable argument that the Decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or that Ground 3 raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.  I refuse leave to appeal in relation to Ground 3.

Ground 4

31. [31]
    This Ground also concerns Exhibit 1.  Ms Service alleges that the Tribunal misinterpreted the document and was “factually wrong” and the matter is subject to an investigation by AHPRA.
32. [32]
    For the reasons given above in relation to Ground 3, I consider that Exhibit 1 was not material to the Decision.  It is unnecessary to consider whether the exhibit was “factually wrong”.  Whether the matter is now subject to an investigation by AHPRA is, in my view, wholly irrelevant to Ms Service’s attack on the Adjudicator’s conclusion.
33. [33]
    In my view, in relation to Ground 4, Ms Service has not established that there is a reasonable argument that the Decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or that Ground 4 raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.  I refuse leave to appeal in relation to Ground 4.

Ground 5

34. [34]
    Ms Service contends that the Adjudicator did not take into consideration that the Acknowledgement of Debt was signed under duress, unconscionable conduct or undue influence by Ms Guerrera and that the Tribunal breached Ms Service’s right to natural justice by “assessing the contract as valid”.

The Adjudicator’s reasoning

35. [35]
    In the course of his Reasons, the Adjudicator referred to five vitiating factors in the context of contract law, namely misrepresentation, mistake, duress, unconscionable conduct and undue influence.  The Adjudicator then made reference to the issue of “duress” and expressly found that it was beyond the power of the Tribunal to make any such finding.  The Adjudicator said:^[8]

However, for the tribunal to attempt, in matters where legal representation is not granted, where there is oral evidence as to what occurred on the date in relation to duress and where fundamentally the tribunal does not have power to make declarations, that a contract or an acknowledgment of debt has been affected by duress and thereby vitiates or undermines the effect of that document - it is beyond the power of the tribunal to make any such finding.

Ms Guerrera’s submissions

36. [36]
    Ms Guerrera’s primary submissions in relation to Ground 5 are as follows:

[The Adjudicator] correctly stated on the record that the Tribunal is not a decision-making body that is invested or empowered with equitable jurisdiction and therefore cannot consider factors with respect to duress, unconscionable conduct, and undue influence.  Therefore, the Applicant’s allegations contained in Ground 5 cannot be relied upon in an appeal against the Tribunal’s findings.

It is submitted that this ground of appeal is misplaced and has no merit whatsoever.

In any event, I strongly deny the Applicant’s allegations with respect to the Applicant executing the acknowledgment of debt under duress, unconscionable conduct, and undue influence.

My former staff member and another patient was present at the time of the document’s execution, and I hereby attach statements of Caitlin Bay (former staff member) and Taylor Atkins (patient) with respect to the true course of events marked with the letters “SG‑1”.  I submit that the Applicant has merely provided a fabricated story without substantial evidence in support of her allegations in a desperate attempt to avoid her payment obligations.

Accordingly, and with all due respect, the Applicant’s grounds of appeal lack merit and are embarrassing.  I reiterate that the Tribunal did not err in making their findings with respect to the outstanding debt as the only evidence tendered that goes to the heart of the dispute was the payment plan that records the debt that was executed by the Applicant.

It is patently clear that the Applicant is attempting to find a loophole in the Tribunal’s prior finding to avoid her legal obligations under the written acknowledgement of debt, and her conduct raises several questions as to her credibility.

Whilst I maintain that the grounds of appeal are misplaced and has no merit whatsoever, and that the Application seeking leave to appeal ought to be dismissed for the reasons stated above, I wish to respond and make submissions in relation to various allegations and aspects of the Appellant’s application.

37. [37]
    Ms Guerrera then made further detailed submissions in relation to credit and various factual matters at paragraphs 19 to 38 of her written submissions.
38. [38]
    In my view, the starting point for a consideration of the matters raised by Ground 5 is whether the Adjudicator was correct in law in finding that the Tribunal had no power to make a finding that the Acknowledgment of Debt had been vitiated by duress.

The Tribunal’s powers in hearing minor civil disputes

39. [39]
    For the reasons that follow, I consider that the Adjudicator erred in law in concluding that he did not have power to make any finding that may have been justified in relation to the issue of duress (or, if considered relevant, unconscionable conduct or undue influence).
40. [40]
    In Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241,^[9] Justice Alan Wilson, President, considered the question of whether or not the Tribunal has an equitable jurisdiction which complements what it can do under the Body Corporate and Community Management Act 1997 (Qld) (the BCCMA) and the QCAT Act.  Batwing concerned the exercise of original jurisdiction by the Tribunal conferred upon it by the BCCMA.
41. [41]
    After considering the relevant provisions of the QCAT Act and a number of case authorities, the President said the following:

[38] While it is clear that QCAT was not intended, by the legislature, to have all of the same broad equitable powers as a superior court it is improbable that the legislature intended that the Tribunal would immediately cede jurisdiction when instances like the present arise. It is, as a matter of logic, equally improbable that there was legislative intent that inter-linked disputes like those arising here could, or should, be adjudicated separately.

[39] In this case the Body Corporate is arguing, in effect, that the agreement between the parties which underpins this Tribunal’s jurisdiction has been affected by events and circumstances associated with it which give rise to equitable defences, or relief. Once that is appreciated, it is compelling that the different elements of the dispute form part of the same proceeding – the test applied by the Victorian Court of Appeal in Herald & Weekly Times, and suggested by the High Court in R v Ross-Jones; and, as observed in Tucci, it is readily foreseeable that, in the jurisdiction invested in QCAT by the BCCMA, equitable defences or matters involving equitable issues might from time to time arise.

[40] The grant, to this Tribunal in the QCAT Act, of specific powers to provide traditional equitable remedies under its legislation, read in combination with the clauses discussed earlier, points with sufficient clarity to a construction of the legislation which would empower this Tribunal to address the equitable cross claims raised by the respondent here in a matter where the applicant has brought a claim which plainly, otherwise, falls within the Tribunal’s statutory jurisdiction.

42. [42]
    One of the provisions considered by the President was s 9(4) of the QCAT Act which provides that the Tribunal may do all things necessary or convenient for exercising its jurisdiction.  The President said:^[10]

[19] The word ‘necessary’ has been defined, in a context similar to that appearing in s 9(4) of the QCAT Act, as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment to specific remedies.

[20] It has also been observed that, for an inferior tribunal to exercise an implied or ‘necessary’ power, that power must be clearly evident in the statute said to confer it.

(citations omitted)

43. [43]
    In the present case, there is no dispute that the Tribunal had jurisdiction to deal with the MCD Application as one involving a “minor civil dispute” as defined in the QCAT Act.
44. [44]
    The decision in Batwing was considered by Member Barlow QC (as he then was) in Sitting Bear Pty Ltd (receivers and managers appointed) v Body Corporate for Sphere Southport Living CTS 37951.^[11]  Sitting Bear concerned, relevantly, whether s 276 of the BCCMA conferred equitable jurisdiction upon adjudicators in determining disputes under that Act.  Member Barlow QC concluded:^[12]

In my opinion, s 276 vests in adjudicators all necessary powers to resolve a dispute in a manner that is just and equitable in the circumstances. In order to do so, an adjudicator must have power, in my view, to consider equitable claims and defences arising from or relating to disputes of the nature described in that section. Therefore, the Act impliedly, if not expressly, has vested the necessary equitable jurisdiction in adjudicators. That jurisdiction is expressly (by s 276(3)) not limited to the matters described in schedule 5.

45. [45]
    Member Barlow QC considered that the following express powers of adjudicators under s 276 of the BCCMA were “highly material” to the determination of the question whether they have powers to determine equitable questions:^[13]

1. (a)
   subsection (1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute about the types of matters listed in that subsection;

1. (b)
   subsection (2) provides expressly that an adjudicator may require a person to act or prohibit a person from acting, in a way stated in the order – in effect, a mandatory or prohibitory injunction;

1. (c)
   without limiting subsections (1) and (2), subsection (3) provides that the adjudicator may make an order mentioned in schedule 5, and schedule 5 describes a large number of orders, of both a mandatory and prohibitory nature, as well as declaratory orders in relation to specific subject matters, which may be made, in effect, against a body corporate or other persons with an interest in a community titles scheme and having dealings with the body corporate.

46. [46]
    In Action Health Centre Pty Ltd v Searipple Holdings Pty Ltd,^[14] Judicial Member D J McGill SC considered the operation of s 13 of the QCAT Act (which applies to minor civil disputes) and said the following:^[15]

[15]  This is a minor civil dispute, being a claim for a liquidated sum of less than $25,000. It is therefore subject to the QCAT Act s 13(1), and the obligation on the Tribunal was to “make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute….” That does not mean however that a Member deciding a minor civil dispute can ignore the law, and simply give effect to whatever subjective view the Member has as to what is fair and equitable in the circumstances. The respondent relied on Cavalliotis v Rizio [2013] QCATA 201 at [15], where Member Forbes said that s 13(1) “releases the Tribunal from mandatory adherence to the rules of common law and equity, and confers a ‘broad jurisdiction to make orders that it considers fair and equitable’ ….” For this he cited two decisions of the Appeal Tribunal, The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [8] per Wilson J, and Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [9], per Wilson J.

[16]  These decisions concerned applications for leave to appeal by parties who had not appeared at the original hearing, and are relevant to the approach to be adopted in such circumstances. The terms of s 13(1) were quoted in each, but in neither case was there any exposition of their effect. Neither supports the proposition that they release the Tribunal from the rules of common (or statute) law and equity. In Kellogg (supra), an appeal from a decision in a minor civil dispute, the Appeal Tribunal said at [6]: “The inescapable conclusion from reading the Act as a whole is that the decision must be made by applying the relevant law.” That appeal did turn on the effect of s 13(1). That proposition was repeated by Wilson J, the then President of the Tribunal, in Gerhardt (supra) at [7], and endorsed in the other two decisions cited. I do not regard the approach in Cavalliotis (supra) as correct.

(citations omitted, emphasis added)

47. [47]
    Subsection 13(1) of the QCAT Act provides that in a proceeding for a minor civil dispute, the Tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the Tribunal considers it appropriate, make an order dismissing the application.  The only orders the Tribunal may make to resolve the dispute are set out in s 13(2) (which orders, in my view, are in the alternative to an order dismissing the application if appropriate to do so).  The orders in s 13(2) include an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant.^[16]  Further, the definition of “minor civil dispute” in Schedule 3 to the QCAT Act includes a claim arising out of contract between a consumer and trader, or a contract between two or more traders, that is for relief from payment of money of a value not more than the prescribed amount.^[17]
48. [48]
    Adopting the approach in Action Health (and the cases of Kellogg and Gerhardt cited therein), I conclude that the Tribunal is bound to apply the rules of common (or statute) law and equity in determining a minor civil dispute in accordance with s 13 of the QCAT Act.  Although the orders provided for in s 13 are more limited than those expressly provided for in s 276 of the BCCMA and elsewhere in the QCAT Act, I am of the view that this does not preclude the application of common law or equitable principles (or statute law, subject to jurisdictional questions) in deciding a minor civil dispute in accordance with s 13 of the QCAT Act.  While I consider that the Tribunal, in deciding such a dispute, would not have power to grant, for example, declaratory or injunctive relief, it does not follow that it would be beyond the Tribunal’s power to make a finding (and a consequential order dismissing the application under s 13) which reflects the application of the relevant law.  To the contrary, the Tribunal is bound to apply any applicable law.  By way of example, in a different case, if there was indisputable evidence that a contractual document was signed directly as a result of an unlawful threat, I consider that it would be contrary to the intent of s 13 (and the QCAT Act as a whole) for the Tribunal to grant relief to an applicant solely in reliance on that contractual document.  In those circumstances, it would not be “fair and equitable” to do so.
49. [49]
    I consider that the Adjudicator did have power to consider whether any common law or equitable principles applied,^[18] subject to the making of findings of fact relevant to the issue raised by Ms Service.  I reject Ms Guerrera’s contention on this issue.
50. [50]
    Despite the Adjudicator proceeding on the basis of what I respectfully consider to be an erroneous view of the law, the question remains whether there is any utility in giving leave to appeal in light of the observation of the Adjudicator, in the course of the Reasons, that the evidence in regards to “pressure or duress” would not satisfy the “threshold” if the Tribunal were minded that it did have jurisdiction or authority to make a finding in relation to the signing of the Acknowledgement of Debt.^[19]
51. [51]
    For the following reasons, I consider that, despite the Adjudicator’s observation, leave should be granted, the appeal allowed, and the matter returned to the Tribunal for reconsideration.
52. [52]
    First, I have concluded that the Adjudicator erred in law as indicated above.  This error concerned the important issue of the Tribunal’s power to consider, in minor civil disputes, the application of equitable principles.  The appeal falls to be dealt with under s 146 of the QCAT Act.  In hearing such an appeal, the Tribunal does not conduct a rehearing (as it does under s 147 of the QCAT Act) and further evidence is not admissible on an appeal under s 146 (as addressed later in these Reasons).
53. [53]
    Second, the Adjudicator’s ultimate finding that a debt of $1,204.00 existed was based on the content of the Acknowledgment of Debt and that the Tribunal did not have any power with regard to setting aside such a document on the basis of duress.^[20] 
54. [54]
    Third, the Adjudicator provided no reasons in support of the conclusion expressed that the matters raised by Ms Service would not satisfy the “threshold” (likely because of the conclusion reached as to the absence of power to consider duress).
55. [55]
    Fourth, there are a number of factual issues which either were the subject of general findings or were not the subject of findings at all.
56. [56]
    In the former case, these are the subject of discussion at paragraphs [25] to [27] above in relation to Ground 3.  There was no finding as to the precise nature of the services that were rendered.  There was no finding as to the terms of any agreement reached in relation to the supply of the cosmetic services.  Further, no findings were made as the particular circumstances in which the Acknowledgement of Debt came to be signed.
57. [57]
    In circumstances where Ms Service alleged that the Acknowledgement of Debt was signed under duress, I consider that a useful starting point would have been to determine whether all of the services the subject of the claim were both requested by Ms Service and supplied by Ms Guerrera.  If the services were requested and supplied as agreed (such that the amount claimed was found to be owing by virtue of the underlying arrangement), the existence of the Acknowledgement of Debt would, in my view, cease to be decisive.  However, if it were found, for example, that the services involving the dermal filler were not supplied as alleged, then the circumstances in which the Acknowledgement of Debt came to be signed would be deserving of closer scrutiny.
58. [58]
    The circumstances upon which Ms Service relied are set out, primarily, at Transcript T1-7 lines 7-44.  Amongst other matters, Ms Service alleges that Ms Guerrera raised her voice at Ms Service and also threatened to call the police (against the background that Ms Service disputed that the full amount was owing).  Ms Guerrera disputes Ms Service’s version of events.^[21]
59. [59]
    I consider that it is sufficiently arguable that, if Ms Service’s version of events was accepted in its entirety (including that no moneys were owing over and above the $600.00 paid and that there was a threat to call the police), the principles of, at least, duress and unconscionable conduct would arise for consideration.^[22]  This issue is plainly fact sensitive.^[23]  In my view, the matter should be reconsidered by the Tribunal.

Constitution of the Tribunal

60. [60]
    Given the observation of the Adjudicator referred to in paragraph [50] above (in relation to the matters raised by Ms Service concerning duress), I consider that the matter should proceed before a differently constituted Tribunal.

Further evidence

61. [61]
    The exercise of the Appeal Tribunal’s discretion to give leave to adduce further or additional evidence on an appeal will include a consideration of whether significant new evidence has arisen and whether that evidence was not reasonably available when the proceeding was first heard and decided (and the Tribunal’s power to allow fresh evidence (on appeal) is not a mechanism by which parties can repair the holes in their original case).^[24]
62. [62]
    I have determined this appeal under s 146 of the QCAT Act on the basis that it involves an error of law only.  In this event, further evidence (including the witness testimony now sought to be relied upon by Ms Guerrera) is not admissible on such an appeal,^[25] and I have not taken it into account.

Costs

63. [63]
    Ms Service seeks to recover the filing fee for the Appeal Application in the amount of $352.00.
64. [64]
    Section 100 of the QCAT Act provides:

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.

65. [65]
    Section 102 of the QCAT Act provides:

3. (1)
   The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.

3. (2)
   However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.

3. (3)
   In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—

1. (a)
   whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);

2. (b)
   the nature and complexity of the dispute the subject of the proceeding;

3. (c)
   the relative strengths of the claims made by each of the parties to the proceeding;

4. (d)
   for a proceeding for the review of a reviewable decision—

1. (i)
   whether the applicant was afforded natural justice by the decisionmaker for the decision; and

2. (ii)
   whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;

5. (e)
   the financial circumstances of the parties to the proceeding;

6. (f)
   anything else the tribunal considers relevant.

66. [66]
    In my view, the usual order for costs provided for by s 100 should apply in the present case.  First (and foremost), the only ground upon which Ms Service has succeeded is Ground 5 in circumstances where I have concluded that the Adjudicator erred in law in finding that there was no power in the Tribunal as discussed above.  This error was not brought about by any submission of Ms Guerrera.  Second, Ms Service sought an order on appeal that the MCD Application be dismissed.  She has not succeeded in securing such an order and the matter is to be returned for reconsideration.  The merits of the case are still to be determined.  In my view, it is not in the interests of justice that Ms Guerrera be ordered to pay the amount of the filing fee to Ms Service

Orders made

67. [67]
    For the reasons set out above, the Appeal Tribunal makes the following orders:

1. Leave to appeal is granted.
2. The appeal is allowed.
3. The decision of the Tribunal made on 2 February 2021 is set aside.
4. The matter is returned to the Tribunal for reconsideration before a differently constituted Tribunal.
5. Each party to a proceeding must bear the party’s own costs for the application for leave to appeal and appeal.