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  4. Cunningham v Institute of Public Works Engineering Australasia Queensland v Wicks - [2024] QCATA 89

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Cunningham v Institute of Public Works Engineering Australasia Queensland v Wicks[2024] QCATA 89

Cunningham v Institute of Public Works Engineering Australasia Queensland v Wicks[2024] QCATA 89

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION

Cunningham v Institute of Public Works Engineering Australasia Queensland v Wicks [2024] QCATA 89

PARTIES:

leigh cunniingham

(applicant)

INSTITUTE OF PUBLIC WORKS ENGINEERING AUSTRALASIA QUEENSLAND

(respondent)

APPLICATION  NO:

APL245-23

ORIGINATING APPLICATION NO:

MCDO 60028-23 

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

26 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed

CATCHWORDS:

MINOR CIVIL DISPUTE – MINOR DEBT – where resignation of chief executive officer – where that officer alleges that a consultancy agreement was made orally following resignation – where said agreement is denied – where applicant claims witnesses present at formation of oral agreement – where none of the alleged witnesses gave evidence of agreement – where primary tribunal found no certainty of contractual terms – where no error in that reasoning – where limited purpose of application for leave discussed – where no appellable error – where leave to appeal refused.

Queensland Civil and Administrative Appeals Tribunal 2009 (Qld) s 32, s 142(3), s 216.

Queensland Civil and Administrative Appeals Tribunal Rules 2009 (Qld) s 83(b).

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842

Devries v Australian National Railways Commission (1993) 177 CLR 472

Drew v Bundaberg  Regional Council [2011] QCA 359

Earle v Castlemaine District Community Hospital [1974] VR 722

Fox v Percy (2003) 214 CLR 118

Jones v Dunkel (1959) 101 CLR 298 at 312;

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257

West v Government Insurance Office (NSW) (1981) 148 CLR 62

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to    section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)

REASONS FOR DECISION

Introduction

  1. [1]
    Mrs Cunningham the applicant (‘Cunningham’) resides at Harbour Road, Hamilton, Brisbane.
  2. [2]
    The respondent (‘IPWEAQ’) describes itself as ‘the peak association for infrastructure asset management and professionals who deliver public works and engineering services, providing ‘comprehensive educational programs, technical publications, advocacy on behalf of [its]members, and the chance to network and collaborate with peers both nationally and internationally.’[1]

Appointment as CEO

  1. [3]
    From 31 August 2015 to 27 May 2022 Cunningham was employed by IPWEA as its Chief Executive Officer. From that position she resigned in April 2022. The Board of IPWEAQ confirmed that decision on 26 April 2022, to take effect on 27 May 2022.
  2. [4]
    It may be inferred that the circumstances of the resignation were not entirely harmonious. An email from Cunningham, heavily redacted, refers in Delphic fashion to a ‘race day incident’.[2] However, that matter need not be taken further.

Consultancy appointment?

  1. [5]
    Cunningham alleges that the parties orally agreed[3] that immediately after her resignation as CEO she would continue with IPWEAQ as a consultant, on higher remuneration.
  2. [6]
    She asserts that in the week 30 May 2022 to 3 June 2022 she worked for IPWEAQ as  consultant for more than 16 hours entitling her to $3,351.  She claims $3,500 and costs.

IPWEAQ rejects claim

  1. [7]
    In a Response filed on 22 February 2023 IPWEAQ says that there was no formal agreement for consultancy,[4]and that if there was any agreement apart from her CEO service it was merely that Cunningham would continue for four more days (May 30 to June 2 2022) on her normal CEO’s salary,[5] which in fact was paid.[6]
  2. [8]
    Cunningham’s primary application was heard on 6 July 2023.

The primary decision

  1. [9]
    In an extempore judgment the Tribunal dismissed her claim, finding that there was insufficient evidence of a consultancy agreement:

I find that there is not sufficient evidence of a contract.  A contract must be certain in its terms so that each party knows what their bargain is, and I find that there is no certainty in any of the emails, conduct or verbal agreement as stated by Ms Cunningham that a consultancy agreement existed for her to perform the extra tasks.  The extra tasks were performed and paid for under her final salary amount, which was … paid until the 3rd of June.[7]

Grounds of appeal

  1. [10]
    Cunningham now seeks leave[8] to appeal against that decision[9], and asks the Tribunal to order:
  1. That the decision of the [primary] Tribunal  be set aside, and substituted with a decision in favour of the Applicant.
  2. That the Respondent pays the Applicant’s costs plus interest.
  3. That orders be made regarding the Respondent’s breaches of the QCAT Act.
  1. [11]
    In dealing with Minor Civil Disputes orders for costs are limited to QCAT application fees.[10] Of course the power depends upon a successful application.
  2. [12]
    Section 216 of the QCAT Act deals with statements to the Tribunal that are false or misleading. The offence bears a criminal sanction.[11] As its name implies the Tribunal has no criminal jurisdiction.

Primary Tribunal’s Decision

  1. [13]
    As noted above, the adjudicator rejected the claim because, in his view, Cuningham’s evidence of a separate consultancy agreement was insufficient.
  2. [14]
    The onus was upon Cunningham to prove it was more probable than not that a consultancy agreement, as distinct from her contract of employment, was actually concluded as a binding contract. 
  3. [15]
    Cunninham’s case is that a consultancy agreement, following her resignation as CEO, was concluded orally, as confirmed by subsequent emails. She alleges that it was an oral agreement, made on 23 May 2022, in the presence of the president and vice president of IPWEAQ, and a third person described as an ‘external consultant’, as well as supporting emails.[12]

Witnesses absent – Jones v Dunkel

  1. [16]
    No corroborative evidence was provided by any of the three alleged witnesses, particularly the ‘external consultant’. That unexplained omission scarcely enhances the appellant’s case.[13]

The email evidence

  1. [17]
    The email evidence is at best equivocal.  A self-serving email to IPWEAQ states: [Finding a new CEO] may take a couple more months. During this time I will provide support in various ways in particular for finance.’[14]
  2. [18]
    If that was an offer, it was not unequivocally accepted: ‘We appreciate your offer to provide short term behind-the-scenes support’.[15] But IPWEAQ was hopeful of finding a new CEO ‘by the end of the week’, namely 27 May 2002, the day that Cunningham’s resignation would take effect. ‘If not we will have to discuss a plan B’.[16]
  3. [19]
    That is not acceptance in the contractual sense. Indeed, IPWEAQ wrote to Cunningham in a more formal and peremptory manner on 31 May 2022:

Having now had time to review the same I consider that sufficient … capability exists internally  And while your offer to provide assistance was appreciated your services are no longer required … your access to the IPWEAQ IT system has now been removed as has access to the institute bank accounts … I now require you to return any assets [of the institute] in your possession …’[17]

  1. [20]
    The adjudicator, in my opinion was well entitled to find that the applicant’s evidence was inadequate to satisfy the requirements of contractual certainty. There is nothing unreasonable, let alone ‘glaringly improbable’[18] in that conclusion. In so far as the decision depends on findings of fact and credit – as of course it does – it is the prerogative of the primary decision maker.

Appellable error?

  1. [21]
    It is not legal 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 deserves. That is a trial court’s prerogative.[19] There is no appellable error in merely making a decision with which other reasonable minds may differ.

If there is evidence ... no error of law occurs simply because the judge prefers one version of evidence to another, or one set of inferences to another. Findings will not be disturbed where, as here, they have rational support in the evidence, even if another reasonable view is available.[20]

  1. [22]
    An application for leave is not an opportunity to re-run the trial. The limited purpose of an application for leave to appeal is to see whether the primary decision is arguably and significantly affected by appellable error, or a finding that has no support in the evidence.[21]

Resolution

  1. [23]
    There is no appellable error in the subject decision. The application for leave to appeal must be refused.

ORDER

The application for leave to appeal is dismissed.

Footnotes

[1]Institute’s website.

[2]Email Cunningham to IPWEAQ dated 28 April 2022.

[3]Transcript of hearing 6 July 2023 page 3 line 9 (Cunningham).

[4]T page 3 line 21 (Greensill).

[5]Response filed 22 February 2023 (annexure A) (‘Response’) paragraph 3.

[6]Response paragraph 4.

[7]T page 17 lines 37-43.

[8]As required by the Queensland Civil and Administrative Appeals Tribunal 2009 (Qld) (‘QCAT Act’)  section 142(3).

[9]Application for leave to appeal dated 28 July 2023.

[10]Queensland Civil and Administrative Appeals Tribunal Rules 2009 (Qld) s 83(b).

[11]QCAT Act s 216(1).

[12]Transcript of hearing 6 July 2023 (‘T’) page 3 lines 9-11.

[13]Jones v Dunkel (1959) 101 CLR 298 at 312; West v Government Insurance Office (NSW) (1981) 148 CLR 62;  Earle v Castlemaine District Community Hospital [1974] VR 722.

[14]Cunningham to IPWEAQ 25 May 2022. A similar approach is made in Cunningham’s email to the organisation on the same day.

[15]IPWEAQ to Cunningham 25 May 2022.

[16]IPWEAQ to Cunningham 23 May 2022 emphases added.

[17]IPWEAQ (Angela Fry) to Cunningham 3June 2022 emphases  added.

[18]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844.

[19]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.

[20]Fox v Percy (2003) 214 CLR 118 at 127.

[21]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg  Regional Council [2011] QCA 359 at [19].

Close

Editorial Notes

  • Published Case Name:

    Cunningham v Institute of Public Works Engineering Australasia Queensland v Wicks

  • Shortened Case Name:

    Cunningham v Institute of Public Works Engineering Australasia Queensland v Wicks

  • MNC:

    [2024] QCATA 89

  • Court:

    QCATA

  • Judge(s):

    Dr J R Forbes

  • Date:

    26 Aug 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Azzopardi v Tasman UBE Industries P/L (1985) 4 NSWLR 139
2 citations
Jump To
Cite 1 - (1985) 4 NSWLR 139
Cite 2 - (1985) 4 NSWLR 139
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
2 citations
Jump To
Cite 1 - (1985) 59 ALJR 842
Cite 2 - (1985) 59 ALJR 842
Devries v Australian National Railways Commission (1993) 177 CLR 472
2 citations
Jump To
Cite 1 - (1993) 177 CLR 472
Cite 2 - (1993) 177 CLR 472
Drew v Bundaberg Regional Council [2011] QCA 359
2 citations
Jump To
Cite 1 - [2011] QCA 359
Cite 2 - [2011] QCA 359
Earle v Castlemaine District Community Hospital (1974) VR 722
2 citations
Jump To
Cite 1 - (1974) VR 722
Cite 2 - (1974) VR 722
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
4 citations
Jump To
Cite 1 - [2008] QCA 257
Cite 2 - [2008] QCA 257
Cite 3 - [2009] 1 Qd R 41
Cite 4 - [2009] 1 Qd R 41
West v Government Insurance Office of NSW (1981) 148 CLR 62
2 citations
Jump To
Cite 1 - (1981) 148 CLR 62
Cite 2 - (1981) 148 CLR 62

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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