Hammond v Meldon
[2013] QCATA 239
•26 August 2013
| CITATION: | Hammond & ors v Meldon [2013] QCATA 239 |
| PARTIES: | Mrs Beverley Hammond Me Darren Williamson Mrs Deborah Williamson (Appellants) |
| V | |
| Miss Laura Mary Carol Meldon (Respondent) |
| APPLICATION NUMBER: | APL228 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 26 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
a) Leave to appeal granted. b) Appeal allowed c) The decision of 25 March 2013, to the extent that it refers to Mr and Mrs Williamson, is set aside. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where respondent engaged to perform in live theatre – where show folded early – where offer of part payment – where part payment not made –identity of the production “company” – whether a partnership – 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
Miss Meldon starred as Natalie in All Style Production & Events’ production of All Shook Up. All Style agreed to pay Miss Meldon $3,000 for five performances. Unfortunately, the show folded after three shows. All Style did not pay Miss Meldon so she filed a claim for $3,000. The tribunal found that Mrs Hammond, Mr and Mrs Williamson traded under the name All Style Production and Events and ordered them to pay Miss Meldon $3,000 plus interest and costs.
Mrs Hammond, Mr and Mrs Williamson want to appeal that decision. They complain that the learned Adjudicator heard the matter when they were not present and had asked for an adjournment. Mr and Mrs Williamson say that there was no contract between them and Miss Meldon; the agreement is between Miss Meldon and Mrs Hammond. Mrs Hammond wants to appeal the decision because, she says, she owes Miss Meldon $1,800, not $3,000.
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.
Mrs Hammond, Mr and Mrs Williamson did apply for an adjournment of the hearing on 25 March 2013. On 7 February 2013, the tribunal refused the request for adjournment. Mrs Hammond, Mr and Mrs Williamson knew of that decision because, on 11 March 2013, they requested reasons for the refusal. They were in no doubt that the hearing would proceed on 25 March 2013. The tribunal file shows that the learned Adjudicator tried, unsuccessfully, to contact them by telephone on the day of the hearing. The learned Adjudicator was correct to continue the hearing in the absence of Mrs Hammond, Mr and Mrs Williamson.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] 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.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator found that all three parties were trading as All Style. But there is nothing in the evidence to connect Mrs Williamson with All Style. The learned Adjudicator’s finding that she was in partnership with Mrs Hammond and Mr Williamson is not supported by the evidence and the decision against her should be set aside.
Miss Meldon gave evidence that Mr Williamson represented himself as CEO of All Style[8]. She told the learned Adjudicator that Mr Williamson handed her the contract, witnessed her signature and called himself the producer of the show[9].
[8] Transcript page 1-5, line 21.
[9] Transcript page 1-7, lines 15-33.
Mrs Hammond, Mr and Mrs Williamson have since found an unsigned copy of the agreement between Miss Meldon and All Style. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[10]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could All Style 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?[11]
[10] QCAT Act ss 137 and 138..
[11] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. All Style has provided no explanation as to why a copy of the contract was not available earlier. It is unsigned and undated, so there is some doubt about whether it was the contract presented to Ms Meldon. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
Even without the copy of the unsigned contract, the documentary evidence does not support the learned Adjudicator’s finding that Mrs Hammond and Mr Williamson were in partnership. Only Mrs Hammond’s name appears at the foot of the acceptance letter. A letter from All Style’s lawyers in July 2011 refers to Mrs Hammond as proprietor of the business All Style. Miss Meldon’s emails calling for payment were directed to Mrs Hammond only. Apart from one email from Jake Williamson (not the respondent Mr Darren Williamson), all emails in response came from Mrs Hammond. As the learned Adjudicator observed[12] people call themselves CEO without, in fact, being a true CEO. People probably call themselves “producer” with no intention of financial responsibility for a theatrical production. Mr Williamson may have been the driving force behind the show, he may have a long association with Mrs Hammond but those facts alone are not enough to make him liable for the debts of All Style. The decision against Mr Williamson should be set aside.
[12] Transcript page 1-8, line 15.
Mrs Hammond argued that Miss Meldon was only entitled to part of the $3,000 fee because she did not appear in all five performances as agreed. The learned Adjudicator found that[13], in the absence of an express agreement that All Events would only pay Miss Meldon for actual performances, she was entitled to the full amount. As Miss Meldon points out in her material, there is considerable preparatory work (learning lines, rehearsals) before an actor takes to the stage.
[13] Transcript page 1-14, line 10.
The learned Adjudicator conceded that Miss Meldon agreed to accept a lesser sum of $1,800.[14] But he also found that Mrs Hammond did not provide any consideration for that agreement[15] so there was nothing to bind Miss Meldon to it. It is noteworthy, too, that Mrs Hammond has not paid Miss Meldon $1,800 or any of it, even though the emails suggest that Miss Meldon accepted the lower amount so that she could get it sooner. I agree with the learned Adjudicator that Miss Meldon was entitled to sue for the full amount of the contract.
[14] Transcript page 1-14, line 14-15.
[15] Transcript page 1-14, lines 22-23.
For Mrs Hammond, 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.
Orders
For Mrs Hammond:
a) Leave to appeal refused.
For Mr and Mrs Williamson:
a) Leave to appeal granted.
b) Appeal allowed
c) The decision of 25 March 2013, to the extent that it refers to Mr and Mrs Williamson, is set aside.
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