Hinds v Derry
[2012] QCATA 124
•25 July 2012
| CITATION: | Hinds and Anor v Derry [2012] QCATA 124 |
| PARTIES: | David Hinds Best Travel Deals Pty Ltd trading as Best Cruise Deals (Applicants) |
| v | |
| Justin Derry (Respondent) |
APPLICATION NUMBER: APL230-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Michelle Howard, Member |
DELIVERED ON: 25 July 2012
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal is granted.
2.The Tribunal’s decision of 1 June 2011 is set aside.
3.MCD proceeding Southport 2890/10 is remitted to the minor civil disputes jurisdiction at Southport to be heard and determined by Member Dooley.
4.The transcript of the evidence of the hearing conducted on 21 April 2011 shall be evidence in the remitted proceeding.
5.The application filed 4 April 2012 is dismissed.
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether leave to appeal should be granted – where no error in decision alleged or demonstrated – where new evidence sought to be relied upon which was available with reasonable diligence at time of hearing – where applicants failed to take care in presenting their case at hearing Queensland Civil and Administrative Tribunal Act2009, ss 142(3) and 165 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Hinds and Best Travel Pty Ltd trading as Best Cruise Deals carried on business as travel agents. Mr Hinds said he owned Best Travel and therefore it is reasonable to assume he was a director of that company.
Mr Derry was either employed or a subcontractor to a business in the United States called Fortify. There is reference to Fortify Inc in the material so I can assume it is an incorporated company. Mr Derry’s job entailed considerable travel.[1]
[1] Response filed 15 November 2010 Annexure para 2(f).
The relationship between the parties commenced in 2008. Mr Derry would book and pay for travel as required and was reimbursed by Fortify. As the amount of travel gradually increased, and because Mr Derry would have to pay first and then get reimbursed, Mr Hinds suggested a better way to conduct the business was to commence a running credit account so that Mr Derry could book the travel and when he was paid for the travel by Fortify he could then pay Best Travel.
The system worked well until about mid 2010 when, I infer, Mr Derry’s arrangement with Fortify came to an end and at that time there was an outstanding balance on the running account of $9,163.00 and an outstanding claim for travel by Mr Derry and his family to Fiji of $10,820.00 and two further return flights to Sydney for a total of $1,900.00. In the application it is contended that the balance of the running account is payable to Best Travel Pty Ltd and the balance payable to Mr Hinds. The evidence does not provide an explanation for this contention.
Mr Derry did not pay the claim of $21,883.00 so the Applicants commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal in Southport. In the annexure to the application Mr Hinds particularised the claim as set out above.
Mr Derry filed a response. He asserted that at the time the credit account was set up he acted as agent for Fortify and from then on any liability for payment was the responsibility of Fortify and not him personally. In other words, the Applicants entered into an agreement with Fortify to provide travel services on a running account.
There were two hearings. Firstly on 21 April 2011 and secondly, on 1 June 2011. The hearings were conducted by two different Tribunal members. After the second hearing the Applicants’ claim was dismissed. From that decision the Applicants have filed an application for leave to appeal or appeal. Leave to appeal is necessary as it is an appeal from a decision in the minor civil dispute jurisdiction.[2] The grounds of appeal are a reiteration of the basis of the original claim rather than an attempt to identify error but for the reasons expressed below this is of little consequence.
[2] QCAT Act, s 142(3).
The application first came on for hearing before a Tribunal Member on 21 April 2011. Mr Hinds gave evidence about his dealing with Mr Derry and the setting up of the account.
Mr Derry gave extensive evidence about his relationship with Fortify and produced what seems to be an employment contract in which there is a clause which says that Fortify will reimburse Mr Derry for all business expenses incurred while conducting company business. There is oral evidence about the trip for Mr Derry and his family to Fiji. Bank statements were produced to prove payments as well as emails.
It is unnecessary to go into too much detail about the evidence given that first day but the transcript runs for some 29 pages and the hearing took a little over an hour. The application was adjourned to permit Mr Derry to produce documents to establish that the account was opened with the authority of Fortify and the relevant witness for Fortify to be available for cross examination. Mr Hinds was also given a further opportunity to produce documents and invoices.
When the matter came back on for hearing it was listed before a different Tribunal Adjudicator. The transcript of the second hearing makes reference to the earlier hearing but does not include any of the evidence that was taken at that time and there was no transcript of the first hearing.
It also seems from the transcript of the second hearing that a box of documents was produced but no documents were tendered in the first hearing. In the second hearing it seems to me that the Applicant was trying to follow the directions of the previous Member. He considered that was all he had to do when the matter came on for the second hearing and the evidence in the first hearing would be evidence in the second hearing. There was much confusion.
The other concerning feature is the conduct of the second hearing. Both the Applicant and the Respondent gave their evidence in a disjointed fashion with one interrupting the other so there was no coherent flow. This did not give the Adjudicator an opportunity to probe the parties to assist them[3] and elicit essential facts to make findings as to the central issue in the case, that is who were the parties to the contract. Also when reference was made to the absence of invoices to prove the claim upon which the learned Adjudicator relied, the Applicant said he could produce those[4] but this was ignored. That creates a concern about procedural fairness, especially when the invoices were crucial to the decision.
[3] QCAT Act, s 29.
[4] Transcript p 26.
The central issue before the learned Adjudicator was whether the agreement to pay was with Mr Derry or with Fortify. That central issue was not addressed by the learned Adjudicator although it was by the Member at the first hearing. The Adjudicator traversed the evidence by both parties and although accepting the evidence of Mr Derry he did not directly consider the central issue. Where there are differing versions of events it is critical to examine any objective evidence to support one version or the other.
The objective and uncontroversial evidence here is that the initial arrangement was that Mr Derry would book and pay for travel as needed. To assist Mr Derry, Mr Hinds decided to create a credit account so that Mr Derry did not have to pay upfront but when he was paid by Fortify he would then pay the applicant. The evidence establishes that although Fortify’s name was on the account all payments except the $15,000.00 payment from Apsecure (a company in which Mr Derry has an interest) were all paid by Mr Derry.
There were no payments made by Fortify, Mr Hinds or the applicant had no dealings with Fortify nor did they have any contact details for Fortify. There is no evidence that the Applicants ever rendered an account to Fortify for payment. The effect of the new arrangement was simply that Mr Derry did not have to pay for the travel at the time of booking but could pay later. The mere fact that Fortify’s name appears on the account does not lead to the conclusion that the agreement as to the booking of travel and payment was with it. The email string referred to in the learned Adjudicator’s reasons is also consistent with the fact that Mr Derry was being reimbursed by Fortify. The learned Adjudicator relied on this evidence and the statement of Mr Sin Nan to come to the conclusion that the travel expenses were going to be met by Fortify, but it does not establish who the Applicant contracted with for supply of the travel services and payment. It was always understood between the parties and it was the fact that Mr Derry would be paid by Fortify and he would then pay the applicant.
Although the learned Adjudicator was entitled to determine the matter as he saw fit he did have to focus on the central issue and consider whether the evidence, in view of the conflicting versions from the parties, supported a particular version. Also the conduct of the hearing was from the Applicant’s perspective confused by the earlier hearing and what he thought he was required to bring to the second hearing.
There are other features of the case that cause concern. The Applicant produced all invoices relevant to the running account claim of $9,163.00. This part of the claim has been proved and is not really contested by the Applicant.
The claim for the Fiji trip is not contested by Mr Derry. He and his family have had the benefit of this trip only he says he is not liable to pay. Interestingly he produced no evidence from Fortify to substantiate this claim, which was one of the reasons for the adjournment. Mr Derry has annexed an email to his application for leave to appeal in which Mr Derry concedes he is willing to pay but he also says the email should not be read in isolation. It is part of a string of emails and these were before the “court” at the hearing. He says in his submission in response that:
Personal holiday? Mr Hinds has twisted numerous phone calls with myself and emails that have been previously submitted to the court in which it clearly shows it was a personal trip funded, approved and paid for by Fortify. This is all with the court as court documents. This was reviewed and accepted as a statement of fact.
Unfortunately, if these emails were before the “court” no reference was made to them during the course of the hearing, nor in the reasons for the decision. It is therefore unclear whether the email relied on by the Applicants in the appeal is new evidence or whether it was before the Tribunal and in the “box” but not tendered as an exhibit.
Similarly the Harvey World Travel invoices annexed to the appeal may have been the ones sought to be produced by Mr Hind during the hearing. Again if this is so it is truly new evidence.
The evidence from Mr Richardson appears to be new evidence but there was reference to Mr Richardson in the first hearing. Evidence that Mr Derry was an employee of Fortify came up presumably for the first time at the earlier hearing. Mr Richardson contradicts that evidence and says he was a subcontractor. This evidence is not challenged by Mr Derry in his submissions in the appeal.
It is abundantly clear that there has been a miscarriage of justice in the way this proceeding has been conducted. The first Tribunal Member was the Member constituted as the Tribunal for the purposes of the proceeding under section 165 of the QCAT Act. She took evidence from the parties which evidence was not before the Adjudicator on the second occasion. Clearly the proceeding was part heard. This caused confusion with the parties and in particular Mr Hinds. In addition there are concerns about the conduct of the second hearing which can, to some extent, be explained by the assumption the parties had made that the evidence of the first hearing was before the Tribunal in the second.
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 2.
[7] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[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.
As I have indicated, here there is a clear case of substantial injustice to the Applicant, through no fault of the parties, and therefore leave to appeal should be granted and the appeal should be allowed.
The proceeding should now go back to the original Member for hearing and final judgment. There will be orders accordingly.
Mr Derry has filed an application subsequent to the compulsory conference held in the appeal application. The application seeks to inform the Tribunal of what was discussed in the compulsory conference. Evidence of anything said or done in the compulsory conference is not admissible at any stage in a proceeding under section 74 of the QCAT Act. Therefore the application is dismissed.
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