Jennings v Design & Procure Pty Ltd (No 2)
[2010] QCATA 97
•8 December 2010
| CITATION: | Jennings v Design & Procure Pty Ltd (No 2) [2010] QCATA 97 |
| PARTIES: | Nicole Ann Jennings (Applicant/Appellant) |
| v | |
| Design & Procure Pty Ltd (Respondent) |
APPLICATION NUMBER: APL120-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Peta Stilgoe, Member |
DELIVERED ON: 8 December 2010
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS : | MINOR CIVIL DISPUTE – SERVICES RENDERED – DEBT – LEAVE TO APPEAL –where appellant engaged respondent to coordinate the fit-out and furnishings for her home – where invoices remained outstanding – where adjudicator ordered the appellant pay the outstanding balance – where the appellant alleges that decision was unfair – whether any procedural unfairness – whether leave should be granted PROCEDURE – where material filed on the day of the hearing – where material previously sent to the respondent – where the respondent did not ask for an adjournment for time to consider the material – whether any procedural unfairness PREJUDICE – where respondent alleged prejudice and collusion – whether any evidence of prejudice or collusion Queensland Civil and Administrative Tribunal Act 2009 ss121(4), 122, 123(2), 142(3)(a) Bucknell v Robins [2008] QCA 214, cited Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 197 ALR 201, cited Tyler v Queensland Building Services Authority[2010] QDC 40, cited |
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
President:
In this matter the Appeal Tribunal was comprised of Ms Stilgoe, QCAT Member, and me. I have had the advantage of reading her reasons in draft. I agree with them and with her conclusions and the order she proposes.
Member Peta Stilgoe:
Ms Jennings engaged Design and Procure Pty Ltd (“Design and Procure“) to coordinate the fit-out and furnishings of a home she was building. By any standards the home, and therefore the project, was large and expensive and Ms Jennings was overseas for much of the time when Design and Procure was undertaking the work. Towards the end of the project, invoices to the total of $9,145.75 were outstanding to Design and Procure. It commenced proceedings in the minor civil disputes jurisdiction of the tribunal for payment of that sum.
On 28 May 2010 a QCAT Adjudicator found in favour of Design and Procure and ordered that Ms Jennings pay it the amount of the invoices, together with interest and filing fees.
Ms Jennings has appealed this decision on the following grounds:
a. The Adjudicator did not give reasons for the decision;
b. The Adjudicator allowed Design and Procure to proceed on evidence and documents that were not served on her prior to the hearing;
c. The Adjudicator allowed material from third parties that was prejudicial to Ms Jennings;
d. Ms Jennings was not given an opportunity to respond properly to the material filed by Design and Procure;
e. There is collusion among Design and Procure, DMN Constructions and Bruce Jenkins in matter no. 70097/09 which has perverted the course of justice including, but not limited to, false representations to the Adjudicator; and,
f. The decision is unfair.
This is an appeal from a minor civil dispute, therefore leave is necessary: s142(3)(a) Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
Leave to appeal
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
I am unable see that there is any question of general importance involved in this appeal where a decision would be to the public advantage. Nor am I able to see any error in the decision sought to be appealed which involves or creates, or establishes, a substantial injustice – or, indeed, any injustice – to Ms Jennings.
In Tyler v Queensland Building Services Authority[1] the appellant argued that, if leave was not given, he would be required to complete work for which he had not been paid. Judge Ryrie did not consider that this amounted to “substantial injustice”. Similarly in Bucknell v Robins[2] the Court of Appeal was of the view that financial disadvantage, in the absence of hardship did not amount to “substantial injustice”.
[1] [2010] QDC 40
[2] [2008] QCA 214
Ms Jennings is in no different position; certainly, if leave is refused she will be required to pay money to Design and Procure that she does not want to pay, but there is no evidence that this will cause her financial hardship.
For these reasons, Ieave should not be granted. For completeness, however, I have gone on to consider whether there is any reasonably arguable case of error, and a reasonable prospect that Ms Jennings could obtain substantive relief – and, in that way, to address the substance of her complaints.
The Merits
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[3]. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case[4].
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at
207, 208
Chambers v Jobling (1986) 7 NSWLR 1 at 10; Fox v Percy, supra, at 209 (per Gleeson CJ, Gummow an Kirby JJ)
Ms Jennings' argument that the learned Adjudicator failed to give reasons is without foundation. Section 121(4) of the QCAT Act makes it clear that reasons for a final decision may be given orally. A transcript of the proceedings on 28 May 2010 shows clearly that the learned Adjudicator gave reasons for the decision at the conclusion of the hearing. Section 122 of the QCAT Act allows a party to request a copy of the reasons; s123(2) provides that a transcript of the oral reasons is sufficient.
It is true that Design and Procure filed a lot of material on the morning of the hearing. Much of the material constituted copies of emails with attachments from Design and Procure to Ms Jennings. Out of an abundance of caution, Design and Procure copied the attachments each time they were referred to in the covering email. That resulted in considerable duplication. Once the duplication is eliminated, the material is of much smaller compass.
Apart from some summaries of expenses and work undertaken, all the material had been provided to Ms Jennings long before the hearing. Ms Jennings conceded to the Adjudicator that she had not looked at the material in any detail when it was first provided to her. In spite of that, she was able to refer the Adjudicator to certain invoices and quotes.
It appears from the transcript that the learned Adjudicator took time to read the material before hearing from the parties[5], and during that interval Ms Jennings had a similar opportunity to consider the material. At no time did she protest to the Adjudicator that the material was novel, or that she needed time to digest its contents. She did not ask for an adjournment.
[5] Transcript, page 3
Ms Jennings had the same opportunity as Design and Procure to put material before the tribunal that supported her case; she did not do so. She cannot now complain that she was denied an opportunity to respond to the material from Design and Procure, when much of it had been provided to her in the course of the dealings between the parties.
Ms Jennings says that the Adjudicator allowed material from a third party that was prejudicial to her. As Design and Procure points out, the only material from a third party was the affidavit of a Mr Dejordavic.
Design and Procure produced evidence showing that Mr Dejordavic’s affidavit was provided to Ms Jennings’ representatives in the middle of April 2010. She did not ask that he be available for cross-examination, nor did she seek to file material in response.
In any event, Mr Dejordavic’s evidence is not prejudicial to Ms Jennings; it simply confirms evidence she, herself, gave to the tribunal: “I don’t know whether I paid that or whether Danny (Dejordavic) paid that. I can’t answer that because, like I said, I was away for most of the time and it was Danny that brought this up.”[6] and “…it wasn’t easy for Vanessa dealing with Danny”.[7]
[6] Transcript, page 19, last paragraph
[7] Transcript, page 21
Ms Jennings’ allegation of collusion is outlined in a letter to the Deputy President dated 5 August 2010 from Ms Jennings’ representatives:
“The matter of Jenkins was only relevant in that it would have been convenient at the time to have both matters heard and determined on the dame day. Our client did not know at the time that Mr Jenkins was assisting the applicant in these proceedings against our client as well as taking action himself and the two colluding with the third party Mr Djordjevic (sic). Our client has asked for the opportunity to introduce new evidence on Appeal which demonstrates that the presentation at the hearing by this applicant (c.f. her presentation at Mediation) was aided and abetting (sic) by Mr Jenkins and contained the same falsity and artifice of bombardment with self-serving and tailored evidence so as to mislead the tribunal against our client.”
Ms Jennings has not provided the Appeals Tribunal with copies of any documents from matter no. 70097/09. She has not explained the involvement of DMN Constructions, who Mr Jenkins is, or how those parties might fit into a matrix of allegedly relevant facts. There are no particulars of the allegations of collusion, falsity, the “artifice of bombardment” or self-serving and tailored evidence. There is no evidence on these issues: indeed, Ms Jennings has not provided any of the “new evidence” on which she seeks to rely. Ms Jennings’ contentions are without foundation.
As a catch-all, Ms Jennings contends that the hearing was not fair. I have considered the transcript of the hearing in detail. Ms Jennings was given ample opportunity to put her case, and the learned Adjudicator clearly explained the procedure and what was required of the parties. I understand that Ms Jennings does not like the result. That, in itself, does not make the hearing unfair.
Conclusion
Ms Jennings has not been able to establish the necessary elements to persuade this Appeals Tribunal to grant leave to appeal. She has not been able to establish that leave is necessary to correct a substantial injustice or that there is a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage. Leave to appeal should be refused.
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