Jennison v AW Admin Pty Ltd as agent for Brisbane Taekwondo Centre

[2011] QCATA 285

CITATION: Jennison v AW Admin Pty Ltd as agent for Brisbane Taekwondo Centre [2011] QCATA 285

PARTIES:	Mrs Melinda Jennison
v
AW Admin Pty Ltd as agent for Brisbane Taekwondo Centre

APPLICATION NUMBER:            APL305-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Peta Stilgoe, Acting Senior Member

DELIVERED ON:   5 October 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused. 

CATCHWORDS: 

MINOR CIVIL DISPUTE – where contract for twelve months – where whole amount due if cancelled early – whether unfair – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mrs Jennison enrolled her sons in taekwondo classes at Brisbane Taekwondo Centre.  She signed a twelve-month contract but cancelled after a few months.  The Centre brought a claim in the minor civil dispute jurisdiction of the tribunal for payment of the balance of the contract.  The claim was successful.

1. Mrs Jennison has appealed the learned Adjudicator’s decision on these grounds:

a)    A lack of transparency at the time of signing the contract.

b)    Breaches of the contract by the Centre.

c)    Incorrect information from the mediator.

d)    It is unclear to whom the debt is owed.

1. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary.  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 a reasonable prospect that 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?

1. Mrs Jennison has filed an affidavit with her submissions in the appeal file.  The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1].  Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:

a)    The evidence could not have been obtained with reasonable diligence for use at the trial; 

b)    The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and   

c)    That the evidence is credible though it need not be incontrovertible.[2]

[1] Sections 137 and 138 QCAT Act.

[2]            Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. Mrs Jennison has provided no explanation as to why this material was not available earlier.  It is largely a restatement of the facts giving rise to her entry into the contract and annexes copies of documents that were already in evidence before the learned Adjudicator.  Mrs Jennison filed a considerable amount of material in the proceeding before the learned Adjudicator and provided a detailed chronology of events after she executed the contract.  She had applied to strike out the Centre’s claim on the basis that the contract was unfair yet she chose, at that stage, not to detail the conversations she had with representatives of the Centre.  Mrs Jennison’s additional evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.

1. Mrs Jennison raised the issue of an unfair contract at the hearing.  The learned Adjudicator conceded that the contract terms lacked clarity.  He stated that a contract term is unfair if the term is not transparent; that is, expressed in reasonably plain language.  The issue that was exercising the learned Adjudicator’s mind was whether Mrs Jennison knew that it was a twelve-month contract.  This was an issue because it was necessary to read three different documents to obtain that information and the documents had some internal inconsistencies.

1. The learned Adjudicator found that the contract would have been unfair but for the conversation that took place at the time of execution.  He determined that Mrs Jennison did know that the contract was for twelve months and she has conceded as much in her submissions on appeal.

1. The issues of holiday sessions and placing memberships on hold are not relevant to whether or not Mrs Jennison knew that it was a 12-month contract.  Further, it cannot be said that the contract was unclear about these issues.  The contract clearly states:

·     There are no classes on Public Holidays or on the weekend of Public Holidays which fall on a Monday or Friday.

·     There are no children’s classes on public school pupil free days or public school holidays.

…

·     Twelve month memberships can be put on freeze for a maximum of 2 months in any 12 month period…The freeze cost is $11.00 per month.

1. The breaches of contract complained of by Mrs Jennison are that the Centre debited her account within the 14 day cooling off period and that the “opt out” fee for grading was contrary to the Centre’s statement that no other amounts would be debited from her account.  Amounts were debited from Mrs Jennison’s account in October 2010, within the cooling off period, but her children continued to attend classes until February 2011.  She must be taken to have waived her right to take any action for breach of contract.

1. While the "opt out" fee for grading is not ideal, Mrs Jennison was not charged that fee because she did opt out within time.

1. Mrs Jennison also says that she was not happy with the service provided by the Centre.  She does not claim that the Centre was not providing classes for her sons in accordance with the contract.  There is no substance to Mrs Jennison’s claim for breach of contract.

1. Mrs Jennison says that, had she received proper advice from the mediator, she could have organised her evidence in a structured and coherent manner.  Both parties have made submissions about what was said at mediation.  The tribunal cannot accept evidence about what was said in mediation unless both parties consent.  That consent is absent here.

1. Mediators should not give advice and parties should not expect to be able to rely on anything a mediator may say about the conduct of a case.  It is up to the parties to seek appropriate advice about the conduct of the proceeding from those who are paid to provide it.

1. The learned Adjudicator had access to all the material filed by the parties.  It is clear that he understood the issues and the documents that were central to the dispute.  He did not express any difficulty in finding the material that he needed.  Presenting the same evidence in a different way would not have resulted in any different findings.

1. The Centre has made it clear to whom the debt is owed by issuing proceedings in the name of AW Admin Pty Ltd as agent for Brisbane Taekwondo Centre.  The learned Adjudicator had no difficulty in making an order in favour of that entity.

1. 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] 

   [3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[4]  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.[5]

[4]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[5]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. There is nothing in this matter that persuades me the learned Adjudicator should have taken a different view of the facts.

1. There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted.  Leave to appeal should be refused.