Forever Young Cosmetic Holistic Networks Pty Ltd v CSHE Australia Pty Ltd t/as Clinical Skincare with a Natural Difference
[2013] QCATA 198
•2 July 2013
| CITATION: | Forever Young Cosmetic Holistic Networks Pty Ltd v CSHE Australia Pty Ltd t/as Clinical Skincare with a Natural Difference [2013] QCATA 198 |
| PARTIES: | Forever Young Cosmetic Holistic Networks Pty Ltd (Applicant) |
| V | |
| CSHE Australia Pty Ltd t/as Clinical Skincare with a Natural Difference (Respondent) |
| APPLICATION NUMBER: | APL118 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 2 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION - AMENDED
CSHE Australia Pty Ltd provided Forever Young Cosmetic Holistic Networks Pty Ltd with a skin treatment machine. The parties signed an agreement by which Forever Young Cosmetic Holistic Networks Pty Ltd took the machine to on-sell for commission. Forever Young Cosmetic Holistic Networks Pty Ltd was permitted to use the machine, while trying to sell it, at a cost of $2.20 per “shot”. Forever Young Cosmetic Holistic Networks Pty Ltd did not sell the machine. CSHE rendered an invoice for the cost of the shots, plus maintenance and repair costs. Forever Young Cosmetic Holistic Networks Pty Ltd did not pay the invoice so CSHE filed a claim in the tribunal. The tribunal ordered that Forever Young Cosmetic Holistic Networks Pty Ltd pay CSHE $9,617.75.
Forever Young Cosmetic Holistic Networks Pty Ltd wants to appeal that decision. It says that CSHE misled the learned Adjudicator at the hearing. It says that the written agreement the learned Adjudicator referred to was not the true nature of the agreement between the parties. It says that the learned Adjudicator incorrectly accepted that the cost of a shot was $2.20.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Forever Young Cosmetic Holistic Networks Pty Ltd has filed copies of emails in support of its application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[5] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Forever Young Cosmetic Holistic Networks Pty Ltd 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?[6]
[5] Sections 137 and 138 of the QCAT Act.
[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
These emails could not have been obtained prior to the hearing. It is credible but it will not have an important impact on the result of the case. The email merely confirms the terms of the parties’ agreement; that the rate per shot included the maintenance costs of the machine.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[7] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[8] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[9]
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[8] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[9] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator heard evidence about the cost of a shot. He noted the cost of $2.20 referred to in the agreement.[10] He noted Forever Young Cosmetic Holistic Networks Pty Ltd’s assertion that the cost was to be negotiated[11] but he found there was no evidence of any negotiation until after CSHE rendered its invoice.[12] I’ve read the transcript carefully. The learned Adjudicator was entitled to find that that Forever Young Cosmetic Holistic Networks Pty Ltd agreed to $2.20 per shot and I can find no compelling reason to come to a different view.
[10] Transcript page 33, line 12.
[11] Transcript page 33, lines 16-18.
[12] Transcript page 33, lines 23-24.
Forever Young Cosmetic Holistic Networks Pty Ltd says that the agreement signed does not reflect the true nature of the relationship between the parties. It says that the agreement was for trialling and on-selling the Machine, not an agreement for commercial use. I agree with that analysis however, that does not alter the fact that Forever Young Cosmetic Holistic Networks Pty Ltd agreed to pay $2.20 per shot. There is no basis, at law or on the evidence, to reduce that cost to something more acceptable to Forever Young Cosmetic Holistic Networks Pty Ltd.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator 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.
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