Kaspar v Craig
[2021] QCATA 131
•2 September 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Kaspar v Craig [2021] QCATA 131
PARTIES: MICHAEL KASPAR
EXPERIENCE HEALING PTY LTD(\respondents/appellants)
v
JAMES CRAIG (applicant/respondent)
APPLICATION NO/S:
APL330-20
ORIGINATING APPLICATION NO/S:
Southport MCDO00467–20
MATTER TYPE:
Appeals
DELIVERED ON:
2 September 2021
HEARING DATE:
22 June 2021
HEARD AT:
Brisbane
DECISION OF:
Member Bertelsen
ORDERS:
1. The application to submit and rely on fresh evidence on appeal is refused.
2. Leave to appeal is refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF TRIBUNAL BELOW – control over proceedings where allegation of denial of natural justice – where tribunal in its minor civil dispute jurisdiction is required to deal with matters quickly – where respondent below was given opportunity to present case and rebut applicants case – where applicant had obligation to prove his case – where respondent was given natural justice within the context of tribunals minor civil dispute jurisdiction
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where respondent applied for leave to appeal – where respondent sought to introduce evidence not adduced at first instance – whether evidence should be admitted – whether evidence capable of supporting findings – where new evidence did not have sufficient weight to overturn original findings – where findings still open on evidence – whether leave to appeal should be granted
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 142, s 143
Clarke v Japan Machines (Australia) Pty Ltd [1984] Qd R 404, 408.
Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
Fox v Percy (2003) 214 CLR 118, 125-126.Chambers v Jobling (1986) 7 NSWLR 1, 10.
Pickering v McArthur (2005) QCA 294.
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
This is an appeal from a decision made by an adjudicator in a minor civil dispute.
On 16 July 2020 James Craig filed a minor civil dispute application – minor debt at Southport.
He sought $5700.00 for chiropractic services provided by him on a 50% basis of consultations paid by patients for the provision of services at a chiropractic practice conducted by Michael Kaspar at Mackay.
On 2 September 2020 Mr Kaspar filed a response claiming failure to honour contractual arrangements and Mr Craig being incorrectly licenced to use his laser machine for chiropractic purposes in Queensland.
On 9 October 2020 the Tribunal ordered
1. The applicant may attend the hearing by telephone
2. Experience Healing Pty Ltd ABN 70 601 529 122 is joined as a Respondent.
3. The Respondents pay to the Applicant $5883.75
4. QCAT registry email these orders to the parties to both James Craig and Experience Healing at their respective email addresses.
In the appeal filed 28 October 2020 Mr Kaspar stated the $5883.75 awarded was more than was owed to Mr Craig; that Mr Craig did not honour his contract; that Mr Craig had already received payments of $2723.00 from himself, Experience Healing leaving $2864.50 payable based on a 50% rate applicable only with Mr Craig staying a minimum of 2 years. Shortly subsequently on the 17th November 2020, Experience Healing paid the sum of 5883.75 to Mr Craig assertedly, if for no other reason, than to avoid enforcement proceedings.
In the appeal proceeding Mr Kaspar and Experience Healing Pty Ltd applied for leave to submit and rely on evidence that was not before the Adjudicator.
Initially as part of that submission they stated they believed the Tribunal would contact them regarding the Minor Civil Dispute hearing but that no contact was received nor were they contacted by telephone on the day.
The notice of hearing for the Minor Civil Dispute was posted to Mr Kaspar at 986 Yakapari-Habana Road Habana QLD 4740 the address for service nominated in the Response. That response filed in the Minor Civil Dispute proceeding recited Michael Kaspar as Respondent and Experience Healing Pty Ltd as his business name. He in fact was a director of Experience Healing Pty Ltd. The notice of hearing required attendance at the courthouse Southport at the appointed time and date with a notification to the effect that Mr Kaspar was to arrive no earlier than 10 minutes prior to the allocated hearing time. Relevantly the notice further stated: “if you do not attend the hearing the Tribunal may hear and decide the matter in your absence, including making orders against you”.
Section 39A of the Acts Interpretation act 1954 (QLD) provides that unless the contrary is proved postal service is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post.
As for being contacted by telephone on the day, there was never any need or obligation for that to occur. Despite such the hearing support officer at the Minor Civil Dispute hearing telephoned Mr Kaspar on three occasions on the second of which she left a message for Mr Kaspar that she would telephone him a third time to participate in the hearing. The third call made was never answered.
Mr Craig had prior made a formal application for attendance by phone. He was in New South Wales and was Covid-restricted.
In any event assertions about lack of contact and therefore presumably reasonable excuse for non appearance are properly matters for consideration in the context of a reopening application not appeal.
The appeal process is not an opportunity for a party to again present its case. It is a means for correcting an error of the Tribunal that determined the proceeding at first instance.
Mr Kaspar/Experience Healing Pty Ltd have filed fresh evidence in the appeal
(a)Transactions list
(b)Business extra statement – a bank statement September – October 2019
(c)Email correspondence in the period 5 November 2020 to 11 December 2020
(d)Subcontractor agreement
The appeal tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily an applicant for leave to adduce fresh evidence must satisfy three tests:[1]
(a)Could the parties have obtained the evidence with reasonable diligence for use at the trial?
(b)If allowed would the evidence probably have an important impact on the result of the hearing?
(c)Is the evidence credible?
[1]Clarke v Japan Machines (Australia) Pty Ltd [1984] Qd R 404, 408.
Mr Kaspar/Experience Healing Pty Ltd did not explain why these documents a, b and d were not tendered at the hearing. There is nothing about those documents suggestive of a necessity for latter day preparation which might support an argument for non-availability at the time of initial hearing. On the contrary they are historical. Emails constituting item c all passed subsequent to the hearing.
Mr Kaspar/Experience Healing Pty Ltd cannot seek to introduce rebuttal evidence after the Tribunal has delivered its findings at hearing. The onus was always on Mr Kaspar to present his/his company’s case and bring all relevant material to hearing. Mr Kaspar had an obligation to act in his own best interests[2];
The statutory regime under which QCAT operates places obligations upon parties themselves to take care of their dealings with tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the high court has recently observed in relation to court resources,
“… the public as a whole, not merely the parties to the proceedings”.
Finality in litigation in highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.
[2]Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
The appeal tribunal is not satisfied the documents a, b and d would have impacted the determination at hearing. On the contrary they are confirmatory of an agreement whereby Mr Craig was to be paid for performing services at a specified rate and some payments pursuant to that agreement.
The appeal tribunal is not satisfied that such documents would have been sufficient to displace the tribunals findings of fact that monies were owed. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] The appeal tribunal may only interfere if the conclusions were contrary to compelling inferences.[4]
[3]Fox v Percy (2003) 214 CLR 118, 125-126.
[4]Chambers v Jobling (1986) 7 NSWLR 1, 10.
Even if it was the case that the admission of the document could allow for a possible alternative inference that lesser sums or no sums of money were owing that is not proof of the fact. Attempting to explain away the tribunals findings with a possible alternative inference does not demonstrate error by the tribunal.
The tribunal at first instance articulated its reasons on the basis of the evidence it considered relevant. The tribunals finding that there was an identifiable calculable degree of performance to support the claim was open on the evidence. Nothing in the material or the transcript persuades the appeal tribunal that the tribunals findings were not open to it.
Mr Kaspar and Experience Healing Pty Ltd application to rely of fresh evidence is refused.
Mr Craig also submitted in his response in the appeal proceeding that he too be allowed to produce and rely on fresh evidence, suggesting that on a revised calculation after the event when all was said and done he was still owed $3,342.00. The same reasoning applies to Mr Craig as to Mr Kaspar and Experience Healing Pty Ltd. His informal application to rely on fresh evidence is also refused.
Should the appeal tribunal grant leave to appeal
Given that here the appeal is from a decision made in the tribunals Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[5] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellants and where there is a reasonable argument that there was an error to be corrected.[6]
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i).
[6]Pickering v McArthur (2005) QCA 294.
Leave will not be granted where a party simply desires to reargue the case on existing or additional evidence. Leave to appeal is there for a purpose. To prevent an attempt to simply conduct a retrial on the merits of the case. An application for leave to appeal is not and should not be an attempt to reargue a party’s case which was or could have or should have been put at the initial hearing.
That the sum awarded was more than owed, a general assertion of failure to honour a contract and stating that some monies had been paid leaving a lesser sum than that awarded was actually owing dependant on continuity of services are all matters which clearly could have or should have been put before the tribunal at initial hearing. To give traction to these assertions as put would be to authorize a rehearing on the merits. There is nothing in the reading and consideration of the evidence recorded in the transcript that suggest the tribunal acted on a wrong principle or made mistakes of fact affecting its decision or was influenced by irrelevant matters. On the contrary there was a systematic and logical inquiry and interrogation during the course of the proceeding. Sufficient evidence was adduced to support the tribunals conclusions.
There is no question of general importance for the appeal tribunal to determine. There is no reasonably arguable case that the tribunal 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
The application to submit and rely on fresh evidence on appeal is refused.
Leave to appeal is refused.
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