Futur3 Studios Pty Ltd v A Sweet Memory Photography
[2011] QCATA 312
•6 June 2011
| CITATION: | Futur3 Studios Pty Ltd v A Sweet Memory Photography [2011] QCATA 312 |
| PARTIES: | Futur3 Studios Pty Ltd |
| v | |
| A Sweet Memory Photography |
APPLICATION NUMBER: APL040-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 6 June 2011
DELIVERED AT: Brisbane
| ORDERS MADE: | 1. The time for filing the application for leave to appeal is extended to 10 February 2011. 2. The application for leave to appeal is granted. 3. The appeal is upheld and the adjudicator’s order is set aside. 4. The proceeding is returned to the tribunal for rehearing. |
| CATCHWORDS: | PROCEDURE – where application for leave to appeal filed late – whether leave to extend time APPEAL – where amended claim delivered at the door of the hearing – whether evidence capable of supporting orders of the tribunal Queensland Civil and Administrative Tribunal Act 2009, ss 61, 122(2), 143 Manson v Collins [2010] QCATA 63 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 197 ALR 201. Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oliver
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Stilgoe
A Sweet Memory Photography (“ASMP”) engaged Futur3 to create a website for its photography business. The website went live in April 2010 but ASMP was not happy. It brought a claim in the tribunal’s minor civil dispute jurisdiction initially claiming a refund of money paid to Futur3 for the construction of the website, the filing fee and an order that Futur3 not interfere with the operation of the website.
Futur3 unilaterally suspended the operation of ASMP’s website shortly after the application was filed. At the hearing of the dispute on 10 December 2010, ASMP amended its claim to add a claim for damages. ASMP’s total claim was $14,211. The learned Adjudicator ordered that Futur3 pay ASMP $11,914 which is comprised of a refund of the cost of the website, the filing fee of $92, damages for loss of income of $9,200 and $500 for the cost of rectifying the website.
Futur3 has appealed the learned Adjudicator’s decision on these grounds:
a) There was no way to verify the loss of business ASMP allegedly suffered from the suspension of the website.
b) It is not reasonable to receive both a website and a refund for the cost of constructing the website.
c) If the website was “broken”, it was not the fault of Futur3.
d) The responsibility for maintaining the website rested with ASMP.
e) Futur3 was not given a proper opportunity to consider, and make submissions about, the claim for loss of profit.
ASMP have a threshold argument that the application for leave to appeal was filed out of time. The time for appeal is calculated by reference to the date written decisions are handed down: section 143(3) of the Queensland Civil and Administrative Tribunal Act2009. The file does not disclose when Futur3 received written reasons. If no request for written reasons is made, then time is calculated from last day on which Futur3 could have requested written reasons.[1] Futur3 had 14 days in which to request reasons.[2]
[1] Manson v Collins [2010] QCATA 63 at [9].
[2] QCAT Act, s 122(2).
The decision was delivered on 10 December 2010, therefore, Futur3 had until 24 December 2010 to request reasons and until 21 January 2011 to file the application for leave to appeal. The application was not filed until 10 February 2011.
Pursuant to s 61(1)(b) of the QCAT Act the tribunal may extend a time limit fixed by the Act, even if the time for compliance has passed[3] unless to do so would cause prejudice or detriment that could not be remedied by an appropriate order[4]. It is appropriate to exercise the discretion provided by s 61 and extend the time for Futur3’s filing of the application for leave to appeal for three reasons:
a) firstly, much of the 28-day period allowed for filing the application occurred over the Christmas period during which the tribunal registry was closed;
b) the application shows that it was first filed in, but rejected by, the registry on 18 January 2011. It is clear that Futur3 attempted to comply with the time frame but, for some unknown administrative issue, its application was declined on the first occasion;
c) ASMP has not pointed to any detriment that cannot be cured by an appropriate order of the tribunal.
[3] QCAT Act, s 61(2).
[4] QCAT Act, s 61(3).
Because this is an appeal from a decision of the tribunal in its minor civil dispute 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?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[8]
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6] Cachia v Grech [2009] NSWCA 232 at [13].
[7] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[8]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.
ASMP concedes that Futur3 received the amended claim, which included the claims for loss of profit, outside Court on the morning of the hearing. In response to Futur3’s contention that it did not have time to consider this claim properly, ASMP says:
“The Court attendant confirmed before we proceeded with the hearing that Futur3 Studios had enough time to read through the documentation which they agreed that they had, so we were called in next. If that time was not sufficient they should not have answered yes to that question.”
A fair hearing requires that parties have sufficient time to consider the allegations made against them and the material relied on to support that allegation. It is for this reason that the tribunal requires parties to file and serve their material well ahead of time. It is not a decision for the hearing support officer to make; it is a decision for the learned Adjudicator. A perusal of the transcript shows that the learned Adjudicator did not hear from Futur3 in relation to the business losses. After the learned Adjudicator made his decision, Mr Buhagiar, on behalf of Futur3, asked if Futur3 could make any comment “in respect of that…”[9] to which the learned Adjudicator replied “I’ve made the Orders.” Futur3 had no opportunity to tell the learned Adjudicator that it did not have an opportunity to consider the claims for loss of income before attending the hearing that morning.
[9] Transcript page 30.
That, of itself, may not be grounds for granting leave to appeal because there is also nothing in the transcript to indicate that Futur3 sought an adjournment of the hearing.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[10]
[10]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[11] 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.[12]
[11] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[12] Fox v Percy (supra) at 128 per Gleeson CJ, Gummow and Kirby JJ.
ASMP states that the learned Adjudicator considered large amounts of clear and precise documentation. What that material was is not clear from the file and ASMP’s contention is not supported by the transcript. In addition, it is clear from the transcript that the learned Adjudicator had concerns about ASMP’s proof of its loss:
“Do you have any independent evidence of a loss or how much business you were getting?”[13]
[13] Transcript page 23.
“…how do you establish that, what is the evidence to establish a loss of business like that?”[14]
“So you say – but isn’t the business dependent not just on a web package, or a web page, isn’t it also dependent on word of mouth?”[15]
“Yes, I mean, without independent evidence, it’s a very hard thing to assess…I mean the things you are giving me are simply estimates, you know, that you have put together without any independent evidence…it’s hard for a Tribunal…to assess that…”
[14] Transcript page 24.
[15] Transcript page 24.
The learned Adjudicator’s ultimate findings contradicted his comments throughout the proceedings and I cannot reconcile his comments on the evidence with his eventual order:
a) He acknowledged that ASMP should have realised that the promotion package came at an additional cost[16], yet he ordered a refund of the website construction fee because the original contract was breached[17].
b) He found that ASMP was a start up business and that it was difficult to calculate its losses, yet ordered that Futur3 pay the full amount of the claim for the period during which the website was suspended.
[16] Transcript page 27.
[17] Transcript page 29.
It is apparent that the learned Adjudicator disapproved of Futur3 suspending the operation of the website pending the hearing. His disapproval is manifest in the very limited interchange between the learned Adjudicator and the parties representing Futur3. While I agree that, on the material produced at the hearing, Futur3 had no right to take that action, I cannot agree with the punitive approach taken by the learned Adjudicator. Any award of damages to ASMP for that action must be based on the usual principles of assessing damages.
The learned Adjudicator’s findings are not capable of being supported by the evidence and Futur3 has a real prospect of substantive relief if the appeal is granted.
Leave to appeal should be granted, the appeal should be allowed and the orders of the learned Adjudicator set aside. The proceeding should be referred back to the minor civil dispute jurisdiction for hearing by another adjudicator. I note the substantial material filed by both parties in this application for leave to appeal. The parties should ensure that this material is before the new adjudicator, and copied to each other, in plenty of time before the new hearing.
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