Kellogg v Board of Trustees The Ipswich Girls' Grammar School
[2011] QCATA 210
•9 August 2011
| CITATION: | Kellogg v Board of Trustees The Ipswich Girls’ Grammar School [2011] QCATA 210 |
| PARTIES: | James Kellogg |
| v | |
| Board of Trustees The Ipswich Girls’ Grammar School |
APPLICATION NUMBER: APL189-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 9 August 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal – whether decision was fair and equitable – whether claim was a penalty or a genuine pre-estimate of damage Queensland Civil and Administrative Tribunal Act 2009, ss 3(c), 3(d), 4(d), 13, 28(2), 83 O’Dea v Allstates Leasing System (W.A.) Pty Ltd (1982-3) 152 CLR 359 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 on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oliver
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Stilgoe
In September 2009, Mr Kellogg enrolled his daughter for Term 4 at Ipswich Girls Grammar School. On 18 December 2009, Mr Kellogg advised the school that his daughter would not be returning in 2010. The enrolment contract provided that notice of withdrawal must be received at least 12 weeks prior to a student’s final day of school, otherwise the school would charge a full term’s fees in lieu. Because Mr Kellogg’s notice was not received at least 12 weeks before his daughter’s final day, the school charged Mr Kellogg a full term’s fees. At the hearing before the learned Adjudicator, the claim was reduced to $1,731.65. The learned Adjudicator ordered Mr Kellogg pay that amount within 60 days.
Mr Kellogg has appealed the learned Adjudicator’s decision on these grounds:
a) The learned Adjudicator applied the law strictly and did not have regard to his obligation in s 13 of the Queensland Civil and Administrative Tribunal Act 2009 to make a fair and equitable decision.
b) The amount of damages was not a true reflection of the school’s damages and was penal in nature.
c) The learned Adjudicator erred in failing to apply correctly the legal principle of liquidated damages.
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?
The requirement that the tribunal in its minor civil dispute jurisdiction must make orders that are fair and equitable, has to be read within the context of the Act as a whole. The objects of the Act include requirements to promote the quality and consistency of tribunal decisions[1], and enhance the quality and consistency of decisions made by decision makers.[2] It is a function of the tribunal to ensure like cases are treated alike.[3] Section 28(2) requires the tribunal to act fairly and according to the substantial merits of the case (my emphasis).
[1] Section 3(c).
[2] Section 3(d).
[3] Section 4(d).
The inescapable conclusion from reading the Act as a whole is that decision must be made by applying the relevant law. The tribunal has limited equitable jurisdiction and s 13 should not be interpreted as conferring any equitable jurisdiction on the minor civil disputes jurisdiction which would empower the learned Adjudicator to adjust parties’ legal rights in accordance with some undefined principle of fairness.
Whether a clause is a right to liquidated damages or a penalty is a question of fact which must be judged at the time of making the contract.[4] It is for the school to show that it a genuine pre-estimate of the damage that will result from a breach of the contract.
[4] O’Dea v Allstates Leasing System (W.A.) Pty Ltd (1982-3) 152 CLR 359.
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.[5]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[6] 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.[7]
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The question of whether the amount claimed was a genuine pre-estimate of the school’s loss was discussed at length during the hearing. The school properly reduced its claim to reflect what it considered to be a genuine pre-estimate of its loss.
Mr Kellogg urged the learned Adjudicator to take account of concessions apparently made in mediation. Section 83 of the Act makes it clear that evidence of anything said at a mediation is not admissible in a proceeding.
Although he thought the clause was unfair, the learned Adjudicator did find that the school had suffered loss.[8] The evidence is capable of supporting that finding. There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of the facts.
[8] Transcript page 9, lines 12 – 18; page 12, line 1.
There is no question of general importance that should be determined by the appeals 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.
7
3
0