Hinson v Zincy Pty Ltd & Burton - [2023] QCATA 43

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hinson v Zincy Pty Ltd & Burton [2023] QCATA 43

PARTIES:

GREGORY HINSON

(applicant/appellant)

v

ZINCY PTY LTD

(first respondent)

DALE BURTON

(second respondent)

APPLICATION NO/S:

APL236-21

ORIGINATING APPLICATION NO/S:

MCDO11/21 (Maroochydore)

MATTER TYPE:

Appeals

DELIVERED ON:

28 April 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Peter Murphy SC

ORDERS:

1. The application for Leave to Appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – where the applicant/appellant seeks to appeal a decision by a Magistrate sitting as a Tribunal Member in a minor civil dispute – whether leave to appeal should be granted – whether the applicant/appellant’s reasons for grant of leave needed to be separate from his reasons for the appeal – whether the proceedings at first instance should have been heard in a courtroom instead of over the telephone – whether the Magistrate failed to take into account vital parts of evidence

Queensland Civil and Administrative Tribunal Act 2009, s 3, s 61, s 142, s 143, Sch 3

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, cited

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Zincy Pty Ltd runs a courier business. Mr Burton worked as a courier for Zincy as an independent contractor. In October 2020, Mr Hinson, in effect, took over from him. He too worked as a courier for Zincy as an independent contractor.
There was no contractual relationship between Mr Hinson and Mr Burton and no written contract between Mr Hinson and Zincy.
Mr Hinson asserted in proceedings before a Magistrate sitting as the Tribunal in Maroochydore that he had not been paid for some of the work undertaken by him and was owed $7,490.35.
Zincy’s couriers use a scanner which records the jobs carried out. The scanned information is used by Zincy through an app called Premonition which records and reports to Zincy on daily activity for each courier including time stamps, distance between jobs and GPS tracking. The scanned information is the only basis upon which couriers are paid.
The amount claimed by Mr Hinson takes account of a cash payment made to him by Mr Burton during a short period when Mr Hinson was using Mr Burton’s scanner. The amount claimed by Mr Hinson also takes account of two payments made by Zincy, one of $1,000 and the other of $1,500, during a short hiatus before Mr Burton was linked to the scanning system.
Interlocutory orders made by the Tribunal on 2 June 2021 and 21 July 2021 required Zincy, through its director Mr Henson, to provide Mr Hinson with a complete printout of the jobs undertaken. In addition, Mr Burton was added as a respondent, but it does not appear that, ultimately, any amount is claimed from him by Mr Hinson.
Consequent upon a hearing by telephone on 4 August 2021 at which all parties represented themselves, Mr Hinson’s claim was dismissed. He seeks leave to appeal that decision.
Leave to Appeal
The challenged orders are made in a “minor civil dispute”.[1] As a result, leave to appeal is required.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), Schedule 3, Dictionary.
[2]QCAT Act, s 142(3)(a)(i).
Section 143 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) might be seen to contemplate separate consideration of the application prior to the hearing of any appeal. No procedural order directed they be heard together but that is plainly appropriate in light of the informality, speed and economy contemplated by the QCAT Act.[3]
[3]QCAT Act, s 3.
An applicant for leave must provide a basis for the grant of leave in their application.[4] The inquiry is directed to whether an arguable case of error attends the decision and whether the error has caused the applicant a substantial injustice.[5]
[4]QCAT Act, s 143(2)(b).
[5]For example, Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400; QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
No separate details in support of the grant of leave are supplied on Mr Hinson’s application. If s 143(2)(b) of the QCAT Act – read in light of ss 143(3) and (4)(a) and (b) of that Act – is to be seen as requiring the filed application to specify reasons for leave separate from reasons for the appeal, in this case that requirement should be waived.[6]
[6]QCAT Act, s 61(1)(c), (5).
It is convenient to first look at the merits of the proposed appeal.
Is the Proposed Appeal Reasonably Arguable?
The grounds allege:
The magistrate failed to take into account various aspects of this case.
… The paperwork provided [by Zincy] was missing crucial parts of the evidence namely dates but still it was allowed to be submitted and used in court. The owness [sic] was then put on me as the applicant to provide certain information which was impossible to achieve with the flawed information that had been provided to the respondent.
I believe the magistrate then missed or chose to ignore vital parts of evidence within my response namely the KWT list [a list of jobs for an important and regular customer].
I also believe this case should have been heard in the courthouse as it was far to [sic] complicated to be conducted over the telephone.
As can be expected from a person representing themselves, the submissions contain irrelevancies (for example, “check out the Google reviews if you want to know what the company was like”). In substance, the submissions filed by Mr Hinson contend, relevantly, that the documentation provided by Zincy was “totally incomplete”, citing as an example:
… the biggest company on the Sunshine Coast, KWS [sic] bike parts who does not have one transaction on the paperwork submitted, yet we was [sic] picking up hundreds of parcels a week from them
In short, the contention at the hearing was the reporting systems used by reference to the scanner (or perhaps more accurately, the Premonition app) and the reports issued from them being incomplete and wrong.
The same contention is at the heart of the current application for leave to appeal – in substance it is contended the Tribunal erred by failing to take account of relevant evidence, namely evidence of Mr Hinson detailing his work dates, times and jobs.
For its part, Zincy contends that all relevant paperwork was produced and accurate: “All dates for [Mr Hinson’s] working days and hours are accurate as are [Mr Burton’s]”. It is argued that this includes the documentation relevant to KWT. It is further contended that Mr Hinson has “repeatedly ignored [Zincy’s] information” and has produced “no actual evidence other than a set of numbers that he wrote down”.
The Proceedings Conducted by Telephone
Mr Hinson’s claim that the proceedings should have been heard in the courtroom can perhaps be framed as a challenge founded on procedural fairness.
The material makes clear that the proceedings were heard by telephone because of a Covid lockdown. An in-person hearing couldn’t be accommodated until February the following year.[7]
[7]Transcript of proceedings, 4 August 2021, p l-2, 20; p 1-11, 11.
In-person proceedings were perhaps the ideal, but they were not necessary in order to determine the proceedings fairly to all parties.
In particular, the Tribunal had all relevant documentary material before it as a result of earlier interlocutory orders and each party was able to make appropriate submissions by reference to that material.
The proceedings by telephone were conducted in a manner consistent with the QCAT Act’s Objects earlier referred to.
Proof of the Alleged Debt
It should be acknowledged that Mr Hinson faced some difficulties in proving the debt he alleged. He was confronted with attempting to, in effect, produce details contrary to, or different from, an automated system over which he had no control.
Yet, it was Mr Hinson who bore the onus of proving the debt was owing and, in this case, that involved producing all of the necessary evidence to persuade the Tribunal of an accounting that demonstrated the particulars of the debt and, in that process, demonstrating the inaccuracy of the information documented by Zincy.
Again, it should be acknowledged that Mr Hinson attempted to do this – for example he filed a document entitled “Zincy Timeline”. That document set out, in a week-by-week format, over four specified weeks, details of “shuttles”, “hours”, “kms”, “pickups” and “deliveries”. In essence, it was said to be a summary of the work undertaken.
Equally, Mr Hinson filed document entitled “Response” subsequent to the adjourned 21 July hearing before the Tribunal. In it, he criticises the data provided by Zincy including the absence of dates on documents produced.
In particular, it is contended that the documents do not contain some 655 “pickups” from KWT in a four-week period between 25 September 2020 and 23 October 2020.
Zincy denied that claim, specifically contending that “all customers pickups and deliveries are listed on the sheets [produced to the Tribunal] as previously stated including KWT with their coupon numbers and all numbers are correct and paid as shown in court”.
I am not persuaded that the Tribunal “missed or chose to ignore the vital parts of evidence … namely the KWT list” as Mr Hinson alleges centrally in his application for leave.
Rather, it seems to me that the Tribunal chose to accept the evidence of Zincy over that of Mr Hinson. The basis for doing so was that, unfortunately for Mr Hinson, the documentary evidence produced by Zincy was the best evidence before it.
It was open to the Tribunal to accept that evidence over that of Mr Hinson. I am unable to see any legal or factual error made by the Tribunal in doing so.
In my opinion, the proposed appeal lacks merit and leave to appeal should be refused.
Orders
The application for Leave to Appeal is dismissed.