Gabler v Murthi
[2023] QCATA 102
•28 July 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Gabler v Murthi [2023] QCATA 102
PARTIES:
HANS KARSTEN GABLER
(applicant/appellant)
v
KRISHNA MURTHI
(respondent)
APPLICATION NO/S:
APL211-22
ORIGINATING APPLICATION NO/S:
Q6-22
MATTER TYPE:
Appeals
DELIVERED ON:
28 July 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Lumb
ORDERS:
1. Leave to appeal is refused.
CATCHWORDS:
APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – whether reasonable argument that decision of the Tribunal was attended by error – where finding that there was no binding contract between parties – whether claim in restitution upon a quantum available – whether jurisdiction to hear such claim – where leave to appeal refused
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 25, s 26, s 52, s 61, s 83, s 123, s 142, s 143, s 146, s 147
Berry v Treasure & Anor [2021] QCATA 61
C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye & Anor [2022] QCATA 61
Ford v Thexton trading as Family Legal and Thexton Lawyers [2014] QCATA 180
GC NSW Pty Ltd v Galati [2020] NSWCA 326
Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust v Nicole Wolf & Anor [2023] QCATA 78
Lucas v Habul [2020] QCATA 53
Lupker v Shine Lawyers Pty Ltd [2016] 2 Qd R 323, [44]
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
Rothwells Ltd v Nommack (No 100) Pty Ltd [1990] 2 Qd R 85
Saxer v Hume [2022] QCATA 25
Smits v Cugola & Ors [2022] QCA 262
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138
Spalding v Filipetto [2022] QCATA 56
Vasco Investments Ltd v Morgan Stanley Australia Ltd [2014] VSC 455
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
By an Application for leave to appeal or appeal filed on 13 July 2022 (the Appeal Application),[1] the Applicant (Mr Gabler) seeks leave to appeal against a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 30 May 2022 (the Decision).
[1]The Appeal Application was filed in the Redcliffe Magistrates Court.
The Decision was made in a proceeding which was commenced by the Applicant by an Application for Minor Civil Dispute – consumer dispute filed on 17 February 2022 (the MCD Application). The named ‘Applicant’ in the MCD Application was ‘Hans Karsten Gabler, Sole trader Infinity Services’. The Respondent to the Appeal Application (Mr Murthi) was the respondent to the MCD Application.
By the MCD Application, Mr Gabler claimed from Mr Murthi an amount of $22,121.60 together with interest of $206.00 and a bailiff fee of $85.00.
The hearing of the MCD Application proceeded on 30 May 2022. Each of the parties appeared by telephone. Mr Murthi, a Hindi speaker, required the assistance of an interpreter.
By the Decision, the Tribunal (constituted by an Adjudicator) dismissed the MCD Application.
Leave to appeal
An appeal against a decision by 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.[2]
[2]See s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
As to the Tribunal’s approach to 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)
[3]See Saxer v Hume [2022] QCATA 25 at [2].
Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:[4]
There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:
The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.
(citation omitted)
[4][2021] QCATA 61 at [14].
And as Member Dr JR Forbes said in Spalding v Filipetto:[5]
[19] An application for leave to appeal is not an opportunity to re-assert and reargue disputed points of fact that have been decided by the primary decision maker; that is his [or her] exclusive task. It is a distinct and relatively narrow quest for appellable errors of law. Indeed, the very purpose of `leave barrier’ is to preclude attempts to retry cases on the merits, or to introduce evidence or arguments that might have been led in the first place, but were not.
[20] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done. 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 not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.
(citations omitted)
[5][2022] QCATA 056, [19]-[20].
Preliminary issue
There is a preliminary issue as to whether Mr Gabler filed the Appeal Application within the time required by s 143 of the QCAT Act.
An application for the Appeal leave to appeal must be filed in the Registry within 28 days after the ‘relevant day’.[6]
[6]QCAT Act, s 143(3).
The phrase ‘relevant day’ is defined in s 143(5) as follows:
relevant day, for an application or appeal, means—
(a) if a person makes an application under part 7, division 5, 6 or 7 about the decision being appealed against within 28 days after the person is given written reasons for the decision—the day that application is finally dealt with under that division; or
(b) if written reasons have not been given for the decision being appealed against and reasons have not been requested under section 122 or are not required to be given—the day the person received notice of the decision; or
(c) the day the person is given written reasons for the decision being appealed against.
Section 123 of the QCAT Act provides:
(1) This section applies if the tribunal is required to give in writing a decision in a proceeding, or the reasons for a decision in a proceeding, to a person.
(2) It is enough for the tribunal to give the person a written transcript, or an audio recording, of the part of the proceeding in which the decision is, or the reasons are, given orally.
The Appeal Application was not filed within 28 days of the Decision. However, there is power under s 61 of the QCAT Act to extend the time limit under s 143 of the QCAT Act.
I note that Mr Gabler emailed an officer of the Redcliffe Magistrates Court on 7 June 2022. The email stated, relevantly:
I have left an Application for “Reasons” for the Case above with your Colleges, as you have not been in the Office. Please process my Application in order to get the next legal step on its way.
As the next step will be an “Appeal”, Witnesses will be called to testify.
…
Attached to the email was a Request for Reasons dated 3 June 2022. The material suggests that the Request was made no later than 7 June 2022, and possibly as early as 3 June 2022. It appears that an audio CD was meant to have been posted by Auscript to Mr Gabler on or about 16 June 2022 but was not received by him up to and including the date of filing of the Appeal Application. If the audio CD had been received, time would have commenced to run from the date of receipt (which could have been no earlier than 16 June 2022). In these circumstances, I am prepared to grant Mr Gabler an extension of time pursuant to s 61 of the QCAT Act, until 13 July 2022, within which to appeal against the Decision.
Mr Gabler’s claim in the MCD Application
The bulk of Mr Gabler’s claim arose out of a variety of services he claimed were performed for Mr Murthi at the business premises of one of the dry-cleaning premises operated by Mr Murthi, under the trading name ‘Evershine Dry Cleaners’.
The MCD Application included the following in Part C, under the heading ‘Why are you seeking payment of the total amounts?’:
Shop Fitting Job, shop front Customer Area incl. Point of Sale System in Hardware & Software programming. Dry-cleaning Production Repair an [sic] Maintenance of floor concrete repair, seal & paint. Steam presses clean & repair incl. new High-temp points. Boiler gravity tank repair & seal with plumbing re-install & repair of cooling pump. Welding repair on Boiler blow out – tank + new heat shields. Change & installation of shelves as per instruction by owner. Roller Door Repair. Repair & upgrade of Dry-cleaning machine for more Details please see attachments.
A copy of a number of documents was annexed to the MCD Application.
Upon perusing both the material before the Adjudicator and the Transcript of the hearing, I consider that it is unclear how the claimed amount of $22,121.60 was calculated. The annexed documents included a document claiming the amount of $13,491.50 (inclusive of tax) for ‘Value of Labour and Trade Work completed’; there was a letter from Mr Gabler to Mr Murthi dated 5 February 2022 headed ‘Infringement Compensation Claim’ in the amount of $5,307.50 (inclusive of GST); there was a document purporting to be a claim by Novelyn Lincuna-Gabler (who, as appears from the Transcript, is Mr Gabler’s wife)[7] for moneys alleged to be owed to her by Mr Murthi in relation to her employment in the Evershine Dry Cleaning business (which appears to comprise three amounts of $646.45, $1,835.10 and $1,348.28); and there was an overdue reminder dated 7 January ‘2021’ (which, it appears, should have been dated 7 January 2022) claiming the amount of $14,504.00.
[7]Transcript T1-7 lines 9-12.
During the course of the hearing, Mr Gabler stated to the Adjudicator that he was not claiming the amount of $22,121.60 but was claiming the amount of $14,504.00.[8] It appears that this amount related to the work and services said to have been performed by Mr Gabler.
[8]T1-13 lines 25-42.
The Decision
In dismissing the MCD Application, the Adjudicator’s reasons were as follows:[9]
… This is matter 6 of 22, Hans Karsten Gabler v Krishna Murthi. It's in relation to work that’s been performed at a dry-cleaning shop by Mr Gabler’s -his business. He says it’s his business name Infinity Services. Mr Gabler’s wife has been employed by Mr Murthi in the dry-cleaning service, and she has a separate matter with the Fair Work Commission. Mr Gabler claims he has a contract with Mr Murthi, and he’s detailed extensively the type and amount of work that he says he’s performed for Mr Murthi. Mr Murthi says he didn’t know Mr Gabler was going to charge him $55 an hour to do such work.
Mr Gabler has set out in his documents saying that he’s done an audit of the business, business plan and process quality assurance, WHS business policy, staff training. He’s given it some audit results there. He says he's done work in degreasing and derusting presses, dismantling press pads, done some painting work, done some quality assurance work. There’s nothing – Mr Murthi says that Mr Gabler has caused a machine to break down which will need to be replaced at the cost of $60,000.
On the documentation before me, and the evidence of both the parties, I’m not satisfied that there’s a contract. To be a contract, there has to be an offer and acceptance, consideration and certainty. And certainly there’s no certainty in any of these documents that Mr Gabler has provided and in the evidence of the two men. Each seems to have a different idea about what was happening, and I can’t establish a contract between the two.
Mr Gabler’s claim was initially for $22,000, but now it’s for $14,504. He’d apparently sent this to a debt collector, and Mr Murthi’s solicitor responded saying that he’d give him – give Mr Gabler $3000 in full and final settlement of the claim purely on a commercial basis. Mr Gabler is saying he'll accept $11,000 for the $14,504. As I’ve said, there’s no certainty with what has gone between the gentlemen, and there’s nothing in the way of terms and conditions that can be deduced from the conversation here today. So my decision is that this matter is dismissed …
[9]T1-16 lines 3-34.
The Grounds of Appeal
The Grounds of Appeal, as set out in an attachment to the Appeal Application, are as follows:
In the mediation and the hearing, the Tribunal has failed to:
1.To apply legal rules to facts provided.
2.It is unclear on which grounds, facts or evidence the Tribunal has made its decision. Note: A respond to the Application for “Reasons” has been not yet provided. Correspondence confirms that a second set of respond for reasons will be supplied, but has not yet been received.
3.It is questionable how the Tribunal apply the legal rules to the facts as error been made by allowing allegations and accusations, made by the Respondent, without presented evidence.
4.There been defects in the procedures of QCAT and facts been missed in mediation and the hearing.
5.The Tribunal took side of the Respondent in questioning License requirements for the Applicant, when there is no evidence nor has such work in question taken place, which would require such License. Therefore such consideration is unjustified, invalid and/or irrelevant to the case.
6.The Tribunal has been informed at the hearing, that a third person is trying an act of “conspiracy to bring false accusations” contacted the Respondent to establish a “false claim or case”.
7.The Tribunal has not considered everything that it was required to be considered, nor omit to consider anything that it was required to consider.
8.The false accusations by the Respondent at the “Phone-Mediation ”and the “Phone-Conference-Hearing” does not justify the Tribunal decision, as the Respondent has not presented any evidence to prove his accusations or claims?
9.It is of concern that the Tribunal Person in charge of the hearing stated a personal opinion in terms of a proposal by the Applicant towards a business partnership with the Respondent, rather than assessing the facts on grounds and facts of such proposal. A opinion of a Tribunal person in charge is irrelevant and unjustified, without proven evidence or based on Law, in particular as it can present an advantage to either party.
10.It appears that the information and facts, stated in the main application have not been sighted or considered properly by the Tribunal. Minutes or a recording of the mediation hearing has clear indications for conspiracy and perjury of the Respondent, which appears not to be considered by the Tribunal.
11.New facts and evidence can and will be provided by the Applicant, in a Submission and/or “Private Prosecution” to lay charges against the Respondent/ Defendant is also considered.
The orders sought
At page 3 of the Appeal Application, Mr Gabler included the following details of the orders sought:
Provide an order for payments for work provided and invoiced by the Applicant. Recognition of the valid agreement between the parties. Order to pay for the use of Applicants Computer Menus, protected under IP & Copyright.
Order to delete and to reinstall the basic “Point of Sale” Software menu as provided when Hardware and Software been installed by the Applicant prior to the newly developed business solution, established and designed by the Applicant. Referral to the right Court if QCAT cannot enforce fines for the Respondents offences.
Dismiss the false accusations of the Respondent against the Applicant, making orders under the Law, considering the evidence in regards to the Respondent’s offences, such as: defamation, conspiracy to bring false accusation, fraud, wage stealing, copyright and IP infringement / offenses, environmental offenses, intend of tax offenses and WHS offenses. The Tribunal may refer the case or part of the case to a Court, according its capacity and powers, if it is outside QCAT’s jurisdiction. Decision and orders / fines in regards to the Respondent’s perjury and contempt of Tribunal/Court offences and other criminal offence to be done and enforced. Orders in regards to payments of damages, interest and fees occurring due to the Respondents breaches and offenses committed.
At pages 12-13 of a further document filed by Mr Gabler dated 5 September 2022 entitled ‘SUBMISSION by Applicant’ (Mr Gabler’s Submissions), Mr Gabler identified the following orders sought:
1.) Payment for work performed, based on the Invoice from: 23rd of December 2021, $14,504
2.) Payment for Infringement of Applicants IP & Copyright, for using the Applicants Point-of-Sale-Menu without permit. $5,307.50 (The Court of Appeal may decide what payment is appropriate)
3.) Payment of legal fees, postage, printing and disposables. (Total as per receipts)
4.) Payment of Damages due to emotional stress caused by false accusations, claims and loss of income from September till December 2021.
5.) Order to delete all upgrades back to the single menu for dry-cleaning, based on the Respondent’s price-list and as bought in November 2021. To prove that the System has brough back to “basic” and all development and the Applicants improvements have been removed from the system.
6.) To cease and desist to make any further claims and /or make accusation against the Applicant, the Applicant’s Wife and their Business.
7.) Payments of interest for the outstanding amounts, since December 2021, as determine by the Court.
8.) Decision and Orders by the Court for the offence of Wage-Stealing.
9.) Decision and Orders by the Court for the offence of Fraud.
10.) Decision and Orders by the Court for the offence of lying to the Tribunal / Court.
11.) Decision and Orders by the Court for the offence of conspiracy to bring false accusations.
12.) Referral to other Authorities for an Audit on the Respondent’s Business or ATO for Tax offences.
13.) Decision and Orders by the Court for breaches of WHS-ACT & the Environmental Protection ACT
14.) Decision and Orders by the Court for the offence of illegal employment.
Mr Gabler’s submissions
Mr Gabler’s Submissions are lengthy and include factual submissions which cross-reference various documentation which Mr Gabler is seeking to rely upon by way of further or ‘fresh’ evidence upon the Appeal Application.
In an Addendum to Mr Gabler’s Submissions entitled ‘Alleged errors of fact and/or law by the decision maker’ (the Addendum), it was stated:
1. QCAT failed to provide the document for “reasons” to present on which ground the decision been made. The Application has not received the “Reasons” requested. Correspondence with QCAT confirmed that the transcript for reasons was sent on the 16th of July 2022 and that “a second set” of documents for will be supplied, but has also not been received. The Applicant went to QCAT in Brisbane, on the 27th of July 2022 at 259 Queens Street, 11th Floor, at AM10:10, to investigate where the documents are? The Registrar could not find prove that the documents have been sent and put a request into the QCAT Intranet System. All requests in person and by email remain unanswered and the Applicant’s Submission is made without information about the reasons for QCAT’s decision.
Error’s and defects in the QCAT-Process:
2. There been defects in the procedures of QCAT. It appears that the information and facts, stated in the main application have not been sighted or considered properly by the Tribunal/Adjudicator. Minutes or recordings of the mediation hearing has clear indications for conspiracy and perjury of the Respondent, which appears not to be considered by the Tribunal/Adjudicator. It is questionable how the Tribunal/Adjudicator applied legal rules to the facts. Errors been made by allowing allegations and accusations, made by the Respondent, without presentation of evidence.
3. Apprehended bias and/or possibility of bias:
The Applicant is not raising his concerns lightly and makes this disclosure for a good cause. The Applicant believes that bias exists, as the Tribunal/Adjudicator has shown to be so committed to a particular outcome that evidence and arguments presented will not alter that outcome.
Fact: The Tribunal/Adjudicator took side of the Respondent in questioning License requirements for the Applicant, when there is no evidence nor has such work in question taken place, which would require such License. (Ref. Submission SECT 11-Fact 5)
This is a serious breach of legislation and/or law, as the Tribunal/Adjudicator must not preside over a case where he or she is biased against or in favour of one of the parties. The Respondent made verbal allegations and accusations, but has not presented any evidence. The Tribunal/Adjudicator made conclusions, based on the Respondents accusations. The acceptance by the Tribunal/Adjudicator, of the Respondent’s accusations and to consider alleged, unproven offences by the Applicant, is unjustified, invalid and/or irrelevant. The false accusations by the Respondent at the “Phone-Mediation “and the “Phone-Conference-Hearing” does not justify the Tribunal/Adjudicator decision, as the Respondent cannot prove his accusations or claims?
It is of concern that the Tribunal/Adjudicator in charge of the hearing states a personal opinion in terms of a proposal by the Applicant towards a business partnership with the Respondent, rather than assessing the facts and grounds for such proposal.
(Ref. Submissions SECT XX- Fact X) This proposal is allowing the Respondent to invest into his machinery and to pay the Applicant, when the machines are running again to reduce the financial burden while the rebuilding work is ongoing. The personal opinion of the Tribunal/Adjudicator in charge is unjustified, without considering all facts and to apply the Law. The Tribunal/Adjudicator has presented an advantage for the Respondent, by taking side and to reply on the opinion. The Tribunal/Adjudicator has not used objective facts and material provided by the Applicant and/or transcripts, nor has the minutes of the mediation and hearing been considered.
Disregard for concerns by the Applicant in regards to perjury and conspiracy to bring false accusation, by the Respondent:
4. The Tribunal/Adjudicator has not considered everything that it was required to be considered, nor omit to consider anything that it was required to consider. Fact: The Tribunal/Adjudicator has been informed at the mediation and the hearing, by the Applicant, that the third party is trying an act of “conspiracy to bring false accusations” by contacting the Respondent, to establish a “false claim.
QCAT’s Direction from 29th of July 2022, Section 2-b: New facts and “fresh” evidence
Fresh evidence is provided because:
-The Tribunal/Adjudicator appear to be in need of more inside of what has occurred.
-To explain the qualified work provided by the Applicant.
-The phone-hearing would not provide an opportunity to provide more details to questions.
-The time-limitations of the Tribunal Adjudicator, not preparing and/or sighting documents already supplied.
-Time limits to provide details, facts and evidence of a “complex” case.
-New offences of perjury, contempt of Court and conspiracy to bring false accusations, committed by the Respondent at the mediation and the hearing.
The new, detailed information and evidence shall help the Tribunal/Adjudicator to come to justified orders and decision. A “Private Prosecution” to lay charges against the Respondent / Defendant is being considered by the Applicant, due to the seriousness of offences being committed by the Respondent and in the interest of the Public and miss advantaged Workers. The Respondent is breaching Legislation and Law’s, which impacts on many people which also deserve justice.
Jurisdiction of QCAT:
If QCAT does not have the appropriate authority to complete proceedings related to the matter, QCAT can decide appropriately to refer the matter to the right court on its own initiative. The Applicant does not question the process and policies of QCAT in general or any process which is working in order to provide justice.
In all respect to the Tribunal and the Australian Justice System, I request a review of the case and decision by the Court of Appeal on the following grounds: A.) Question of Law, B.) Question of Facts and Law and in the Interest of the Pubic and Respondent’s Workers.
Leave to adduce further evidence
On the Appeal Application, Mr Gabler sought to rely upon a substantial volume of further evidence.[10]
[10]It comprised approximately 1½ medium sized ring binders.
A recent statement of principle for the admission of further evidence on an Application for leave to appeal or appeal was set out by A/Deputy President Brown in Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust v Nicole Wolf & Anor:[11]
Additional evidence may be permitted if the following requirements are satisfied:
(a) The evidence could not have been obtained with reasonable diligence for use at the original hearing;
(b) If given, the evidence would probably have an important influence on the result of the case (although it need not be decisive); and
(c) The evidence is credible.
[11][2023] QCATA 78, [10].
Mr Gabler does not submit that the evidence now sought to be relied upon could not have been obtained with reasonable diligence for use at the original hearing. On a perusal of the material, it appears evident that such evidence could have been obtained with reasonable diligence for use at the hearing below. For this reason alone, I would refuse leave to Mr Gabler to adduce such evidence.
In any event, I could not be satisfied that the evidence probably would have had an important influence on the result of the case below insofar as the contractual question was concerned. While the evidence may have been relevant to a consideration of a restitutionary claim based on a quantum meruit, for the reasons set out below, the Tribunal had no jurisdiction to determine such a claim.
The references to the mediation
Mr Gabler has made a number of contentions in relation to matters said at a mediation held on 12 April 2022.[12] In my view, anything said at the mediation is irrelevant to the issues properly raised by the Appeal Application and, in any event, would be inadmissible by virtue of s 83(1) of the QCAT Act. The Appeal Tribunal is only concerned with the Decision (and the hearing below).
[12]See, e.g., Mr Gabler’s Submissions, page 6; the Addendum, paragraph 3.
Analysis
Given the number of issues raised by Mr Gabler, I consider the appropriate starting point is the issue in respect of which the Adjudicator decided the MCD Application, namely, the contract issue.
Finding of no concluded contract
The MCD Application was dismissed on the basis that the Adjudicator was not satisfied that a binding contract had been concluded between the parties.
On reviewing the material and the Transcript, I consider that Mr Gabler has not demonstrated that there is a reasonable argument that the Adjudicator erred in reaching the conclusion that there was no binding contract between the parties.
In the Reasons, the Adjudicator identified the traditional elements for a binding contract, namely offer, acceptance, consideration, and certainty, and to which can be added the further element of ‘intention to be legally bound’.[13]
[13]See, e.g., Smits v Cugola & Ors [2022] QCA 262, [85].
Although the conduct of parties in a given case may reveal an understanding or agreement ‘which bespeaks an intention to be legally bound to the essential elements of a contract’,[14] I consider that the material before the Adjudicator, and the evidence of the parties at the hearing below, was such as to support a conclusion that, objectively, the parties did not conclude a binding agreement with sufficiently certain terms as the specific scope of the work to be performed and the specific remuneration to be paid to Mr Gabler for the work to be performed. In my view, there is no reasonable argument that the Adjudicator erred in finding that there was no binding agreement between the parties.
[14]See, e.g., GC NSW Pty Ltd v Galati [2020] NSWCA 326, [85] (and the case cited therein).
However, it is my view that, as a matter of law, the absence of a binding agreement between the parties would not necessarily preclude the bringing of a claim in restitution on a quantum meruit basis (subject to proof of the elements of such a claim).
Potential restitutionary claim (quantum meruit)
In Vasco Investments Ltd v Morgan Stanley Australia Ltd,[15] Vickery J identified three classes of case that may comprise a quantum meruit claim, the first two of which are potentially applicable to Mr Gabler’s case:[16]
[15][2014] VSC 455, cited with approval in Lupker v Shine Lawyers Pty Ltd [2016] 2 Qd R 323, [44] (Bond J (as his Honour then was)).
[16]At [339]-[341].
339 The law may impose an obligation to make restitution on a quantum meruit basis, under what I will call the first class of case, where the plaintiff proves:
a.Actual or constructive acceptance of the benefit of the provider’s goods or services by the recipient;
b.The recipient of the goods or services should have realised that the provider expected to be paid; and
c.It would be unjust for the recipient to take the benefit of the goods or services provided without paying a reasonable sum for them.
340 A second class of case falling under the umbrella of a claim in quantum meruit is the long established and well-recognised category of cases constituted by claims for work and labour done or money paid at the request of another.
341 In both classes of case, the law imposes an obligation independent of contract to pay a fair and reasonable sum for the goods or services, founded on the principles of restitution for unjust enrichment.
On the basis of the material presented by Mr Gabler, and without expressing a concluded view as to the ultimate prospects of success on a quantum meruit claim, I consider that such a claim was reasonably arguable. Had it not been for the issue of jurisdiction, I would have been minded to grant leave to appeal, set aside the Decision, and return the matter for reconsideration, on the basis that the Adjudicator had not addressed a restitutionary claim based on quantum meruit.
The issue of the Tribunal’s jurisdiction to determine a quantum meruit claim as a minor civil dispute was considered by Member Gordon in Lucas v Habul (Lucas).[17] Member Gordon made the following observations:
[30] Overall, it is possible to conclude that courts and tribunals have departed from the old 1852 definition of the expression ‘debt or liquidated demand of money’ when it was right to do so, and bearing in mind that historically the words have been used to define the practical issue of when a default judgment can be entered, there has been greater freedom to depart from previous decisions. Since its inception in 2009, the tribunal has departed from the old definition, and has taken a strict view in the area of express or implied agreements for payment at a reasonable rate. Justice Alan Wilson, President, expressed this view in New Image Beauty Salons Pty Ltd v Dewar and Anor [2011] QCATA 217, [15], and in particular in Solahart Mackay & Ors v Summers [2013] QCATA 113, [19] where there was a claim by an employee for fair remuneration in the nature of a quantum meruit claim. Justice Wilson said that where the remuneration could not be calculated by reference to decided facts or data, it could not be shaped to fit within the accepted meaning of the term ‘debt or liquidated demand’. When considering the limits of its minor civil dispute jurisdiction the tribunal has followed this approach for many years.
[31] The tribunal’s position on this is described in the Practice Direction 9 of 2010. It describes unliquidated damages as follows:
Unliquidated damages is where a claim is made for a sum which cannot be determined without consideration, by the Tribunal, of the applicant’s evidence in support of the claim –for example, a claim in which the precise amount which should be awarded cannot be determined from the terms of a prior agreement between the parties, or some other standard; and must be calculated by reference to invoices, quotations or the like.
[32] Practice Direction 9 of 2010 is concerned with section 50A of the QCAT Act which permits a decision by default where the claim is for unliquidated damages. Section 50A is to be contrasted with section 50, which permits a decision by default to be entered where the claim is one for a debt or liquidated demand of money.
[33] Sometimes the recoverable amount is sufficiently certain or able to be calculated from an undisputed formula that the claim is one to recover a debt or liquidated demand of money. An example was a claim for payment for work done where there was agreement to pay a fixed or flat daily rate of $1,100: Lockard Consultants Pty Ltd v AsteRX Pty Ltd t/as Medirecords [2019] QCAT 122, [10] …
(citation omitted)
[17][2020] QCATA 53.
In my view, the question that arises is whether Mr Gabler’s claim was one to recover a ‘debt or liquidated demand of money’ on a quantum meruit basis.
A ‘debt’ has been described as ‘a liquidated sum in money presently due, owing and payable by a person, called the debtor, to another person called the creditor’.[18]
[18]Rothwells Ltd v Nommack (No 100) Pty Ltd [1990] 2 Qd R 85, 86 per McPherson J (as he then was).
A claim is a ‘liquidated demand’ ‘... whenever the amount to which the plaintiff is entitled ... can be ascertained by calculation or fixed by any scale of charges, or other positive data’[19] or if it ‘does not require any exercise of judicial fact-finding or discretion to crystallise it or to arrive at a definite finding of quantum’.[20]
[19]Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138, [142] per Knox CJ and Starke J.
[20]C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye & Anor [2022] QCATA 61, [6] per Dr J R Forbes, Member.
In my view, Mr Gabler’s claim constituted neither a debt nor a liquidated demand of money in accordance with the principles set out in paragraphs 41, 43 and 44 above.
First, on the material presented to the Adjudicator, there was no breakdown of the time incurred in relation to each component of work. For example, the main invoice dated 1 November 2021 referred to a total of 223 hours which was not broken down at all, either by job/task or by hours per identified days. Further, there was no express agreement by Mr Murthi as to the amount of hours worked by Mr Gabler or that the hours claimed were reasonable for the work performed. I consider the issue is further complicated by the evidence of Mr Gabler at the hearing that there was nearly 600 hours of work performed on the project but only 240 hours had been claimed.[21] The basis upon which the particular 240 hours has been calculated is unclear. In relation to this matter alone, the Tribunal would have been required to undertake an exercise of judicial fact-finding to crystallise or arrive at a definite finding of quantum.
[21]T1-8 lines 34-42.
Second, although Mr Gabler contended at the hearing that there was an agreed hourly rate of $55.00 (claimed to have been agreed on 3 October 2021),[22] I observe that:
(a)the invoice dated 1 November 2021 refers to an hourly rate of $55.00 ‘based on average Building / Industrial Technical Service Charge’ (and the invoice also appears to indicate that work commenced on 30 September 2021, that is, prior to the alleged agreement as to an hourly rate);
(b)Mr Gabler’s oral evidence at the hearing appeared to suggest that Mr Murthi had been told the hourly rate but it was not asserted that Mr Murthi expressly agreed to that specific rate;[23]
(c)as I read the oral evidence of Mr Murthi at the hearing, it appears to be to the effect that he was not informed of the rate of $55.00 until after the work had started and once informed, he did not agree to it.[24]
[22]T1-8 lines 34-42.
[23]T1-9 line 36 – T1-9 line 4.
[24]T1-6 lines 14-15; T1-15 lines 35-37.
In these circumstances, it would have been necessary for the Adjudicator to enter upon a fact-finding exercise involving disputed facts to determine whether the rate of $55.00 per hour was an agreed rate for the whole or only some (and, if so, which part) of the work performed by Mr Gabler.
In my view, having regard to the matters addressed in paragraphs 46 to 48 above, it follows that, consistently with the decision in Lucas, the Tribunal did not have jurisdiction to decide a restitutionary claim based upon a quantum meruit; it was not a claim to recover a debt or a liquidated demand of money. I consider that if a quantum meruit claim were to be pursued by Mr Gabler, it is appropriately to be determined by a court of competent jurisdiction.
The Tribunal has power to transfer a matter to a court of competent jurisdiction pursuant to s 52 of the QCAT Act in the circumstances identified in that provision. However, in circumstances where leave to appeal is refused (and the making of orders under s 146 or s 147 of the QCAT Act does not arise), it may be doubted whether the Appeal Tribunal has power to make an order transferring the matter. However, it is unnecessary to decide this issue because, in any event, I would not be prepared to make such an order given the present state of the material before the Tribunal together with the fact that there is no issue of an imminent expiry of a limitation period. I consider that Mr Gabler’s claim ought to be properly formulated by way of a claim in a court of competent jurisdiction. It is a matter for Mr Gabler whether to pursue this claim in a court of competent jurisdiction.
I will now address the other miscellaneous matters raised by Mr Gabler.
Miscellaneous matters
Apprehended bias
As to the test of apprehended bias, it was said by Kiefel CJ and Gageler J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[25]
37 The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability".
38 Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
(citations omitted)
[25][2023] HCA 15, [37]-[38].
The first contention made by Mr Gabler in this regard is that: ‘The Tribunal/Adjudicator took side of the Respondent in questioning License requirements for the Applicant, when there is no evidence nor has such work in question taken place, which would require such License’.
In my respectful view, this contention is misconceived. The relevant passage appears in the Transcript at T1-10 line 43 to T1-11 line 23. The Adjudicator did refer to part of the work as involving testing and tagging of equipment, power outlets and electrical leads, and questioning Mr Gabler as to whether he held an electrical contractor’s licence. However, Mr Gabler responded that he did not need such a licence and he had not performed any electrical work. On my reading of the Transcript, there is no indication that the Adjudicator rejected Mr Gabler’s contention in this regard. Further, that matter formed no part of the Adjudicator’s Reasons for the Decision.
Second, Mr Gabler submits: ‘The Respondent made verbal allegations and accusations, but has not presented any evidence. The Tribunal/Adjudicator made conclusions, based on the Respondents accusations.’ Insofar as Mr Gabler refers to the mediation, such reliance is misconceived for the reasons set out above. Insofar as the hearing before the Adjudicator is concerned, the Adjudicator did not positively accept Mr Murthi’s evidence, rather, the Adjudicator noted the competing statements made by the respective parties and found that the Adjudicator could not be satisfied that there was a contract between the two.[26] In any event, in my view, the matter alleged falls far short of satisfying the test of a reasonable apprehension of bias.
[26]T1-16 lines 7-21.
Third, Mr Gabler submits that it is of concern that the Adjudicator stated ‘a personal opinion in terms of a proposal by [Mr Gabler] towards a business partnership with [Mr Murthi], rather than assessing the facts and grounds for such proposal’. As best I can ascertain from the Transcript, Mr Gabler’s complaint appears to refer to an observation by the Adjudicator that Mr Murthi probably did not want to give Mr Gabler a share of Mr Murthi’s business, which observation was made in the context of Mr Gabler referring to an offer made by him to Mr Murthi.[27] In my view, whilst the observation was unnecessary, it does not justify a conclusion that there was any apprehended bias on the part of the Adjudicator. I also note that the subject matter in relation to which the observation was made was not material to the Decision.
[27]T1-10 lines 1-11.
The alleged ‘perjury’ and ‘conspiracy to bring false accusation’
In my respectful view, the contentions made in this regard are misconceived.
In this matter. the Tribunal’s appeal jurisdiction is conferred on the Tribunal by s 26 of the QCAT Act.[28]
[28]See s 25(a) of the QCAT Act
Section 26 provides:
The tribunal has jurisdiction to hear and decide an appeal against a decision of the tribunal in the circumstances mentioned in section 142.
Section 142 forms part of Division 1 of Part 8 of Chapter 2 of the QCAT Act. That Division deals with appeals to the Appeal Tribunal.
Leaving aside the fact that Mr Gabler has not identified the basis of any alleged ‘conspiracy’ and that the evidence below was not given on oath or affirmation insofar as the alleged ‘perjury’ is concerned, it is not the Appeal Tribunal’s role to deal with such allegations or to provide advice or give directions in relation to such matters. The Appeal Tribunal’s role is to address the merits of the Appeal Application (and the appeal proper if leave had been given).
The numbered items in Mr Gabler’s submissions
This is a reference to the 14 numbered items referred to at paragraph 25 above.
Item 1 concerns the contractual claim (and the potential quantum meruit claim) addressed above. Items 3 and 7 are consequential items which follow the result of the Appeal Application.
Item 2 relates to a claim by Mr Gabler for compensation for alleged infringement of ‘IP’(Intellectual Property) Rights and ‘Copyright’ arising out of work said to be performed by Mr Gabler at Mr Murthi’s dry-cleaning shop at Margate. The compensation claim was in the sum of $4,825.00 plus GST. Mr Gabler has not addressed the basis upon which the Tribunal had jurisdiction to deal with that claim. In my view, it was a claim for unliquidated damages and, consequently, was not a debt or liquidated demand of money. I am not satisfied that the Tribunal otherwise had jurisdiction. In any event, I consider that the material before the Adjudicator was such that the Adjudicator could not have properly come to any conclusion in relation to the claim made by Mr Gabler. Intellectual property is an umbrella term which encompasses, relevantly, copyright. The claim involved an assertion of rights without establishing the necessary evidential foundation for establishing such claim and the identification of the legal elements of such a claim and how those elements were satisfied on the material. In my view, there is no reasonable argument raised by Mr Gabler that leave to appeal in this regard should be granted.
Item 5 appears to be related to Item 4 as best I can tell. However, it does not purport to be a money claim and does not fall within the minor civil dispute jurisdiction of the Tribunal. Item 6 is in a similar category.
Item 4 relates to ‘Payment of Damages due to emotional stress caused by false accusations, claims and loss of income from September till December 2021’. On my review of the material, this claim formed no part of the MCD Application. The argument fails at the threshold. I consider that it is a claim for unliquidated damages and does not fall within the minor civil dispute jurisdiction of the Tribunal.
Items 8 and 14 appear to relate a claim brought by Mr Gabler but seemingly concerning a claim on behalf of Ms Lincuna-Gabler arising out of her employment with Mr Murthi. In my view, Mr Gabler had no standing to bring this claim. Ms Lincuna-Gabler is the proper applicant to bring such a claim. I observe that even if Mr Gabler had standing, a jurisdictional question would have arisen requiring further consideration, arising out of the Appeal Tribunal decision in Ford v Thexton trading as Family Legal and Thexton Lawyers.[29] In this regard, I note that the claim included a calculation of gross wages ‘under Award and Saturday based pay based on Fair Work Australia’.
[29][2014] QCATA 180.
Items 10 and 11 have been addressed above.
Items 9, 12 and 13 fall into a similar category. In short, they fall outside the scope of the Appeal Tribunal’s jurisdiction on the hearing of the Appeal Application.
Conclusion
For the reasons set out above, I am not satisfied that 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 the Appeal Application raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.
I consider that leave to appeal should be refused and I so order.
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