Merrett v Golden Valley Landscaping Supplies
[2010] QCATA 41
•27 August 2010
| CITATION: | Merrett v Golden Valley Landscaping Supplies [2010] QCATA 41 |
| PARTIES: | Cherie MERRETT (Applicant) |
| v | |
| Golden Valley Landscaping Supplies (Respondent) |
APPLICATION NUMBER: APL066-10
| MATTER TYPE: | Appeal |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 27 August 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1. Grant leave to appeal to the applicant Cherie Merrett;
2. Allow her appeal, and set aside the decision made in the application of Golden Valley Landscaping Supplies in Southport claim 70105/09 on 15 April 2010;
3. Order, in lieu, that the claim by Golden Valley Landscaping Supplies in Southport claim 70105/09 is dismissed.
| CATCHWORDS : | MINOR CIVIL DISPUTE – CONTRACTUAL DISPUTE – LEAVE TO APPEAL – where dispute about delivery of landscaping material – where appellant alleges that she was invoiced twice for landscaping material that had already been delivered – where respondent company issued two separate invoices to the appellant and an unexplained duplicate of the disputed invoice to the appellant’s landscaper – where adjudicator preferred the evidence of the respondent company – whether respondent company proved its case on the balance of probabilities at first instance – whether weight of evidence supported inferences in favour of respondent company – whether evidence contrary to compelling inferences and conclusion not reasonably open – whether error of law |
REASONS FOR DECISION
In the latter part of 2009 Ms Merrett was having some landscaping work done at her property at Bonogin and soil, mulch and the like were delivered to the property by Golden Valley Landscaping Supplies. Golden Valley claimed that Ms Merrett had only paid for some, but not all, of the materials it delivered and brought proceedings against her in this Tribunal’s minor civil disputes jurisdiction for the amount, it said, was outstanding under one of its invoices.
The matter was heard by an adjudicator at Southport on 15 April 2010. Golden Valley was represented by Mr and Mrs Costanzo who are a director and the bookkeeper of the company Basemont Pty Ltd which trades as Golden Valley Landscaping Supplies. Ms Merrett appeared on her own behalf, assisted by her son. After quite a lengthy hearing, recorded in 39 pages of transcript, the learned adjudicator gave judgment for Golden Valley in the sum of $2100.00.
Ms Merrett seeks leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). This Appeal Tribunal directed that the application for leave to appeal (and the appeal, if leave is granted) would be determined on the papers, according to a timetable under which the parties exchanged submissions. They have done so.
Golden Valley’s case before the adjudicator was, in short, that it had delivered organic soil, mulch and pebbles in October 2009 and sent Ms Merrett an invoice (no 15616) for $2100.00, which she had not paid. Her case was that Golden Valley had only delivered landscaping materials ordered from it by her landscaper and referred to in a previous invoice (no 14990, for $6,200); that she had never received the materials for which Golden Valley was now wrongly attempting to charge her a further $2100.00 under invoice no 15616; and, that her contentions were supported by Golden Valley’s own drivers’ ‘load notes’.
These contentions were addressed in the learned adjudicators reasons. As those reasons also show, however, the evidence adduced by the parties left the learned adjudicator uncertain about the precise details of the transactions between the parties, and the materials which were actually delivered. The adjudicator said:
The plaintiff argued that, in fact, that the two invoices one for 14990 and 15616 were two different transactions. In the first that Mrs Merrett organised to have a delivery of goods and the goods were paid before delivery. In relation to the second, the evidence is that the order was placed, and then put in and I am not sure about this, by Mr Coy himself, and that delivery occurred on the 3rd October’ 09. (emphasis added)
Later, the learned adjudicator than went on to say:
I have scrutinised the other records of the landscaping supplies, and I have to say that I am a little bewildered by the various quantities that appear on the delivery dockets. However, I am also aware that it is not unusual in this industry, not to have exact amounts produced on every piece of paper. Ultimately, the client relies on the landscaping supplies business to deliver the goods that they have ordered.
In view of the fact that I have taken account of that, and in view of the fact that there are two invoices produced over a four day period, notwithstanding the assertions by the defendant that the full quantity was not received, I am reasonably satisfied that, according to the documents before me, that the defendant was provided with two lots of landscaping materials, one of which was delivered and paid for representing the $6200.00, and that the additional bill for $2100.00, does represent additional goods that were ordered and supplied. (emphasis added)
Golden Valley brought the claim and, as the initiating party, carried the burden of establishing its case to the appropriate standard of proof upon the evidence both for, and against it.[1] While this Tribunal is expressly released from strict observation of the rules of the evidence, and legal forms and technicalities[2], in a simple contractual dispute between parties it will not move far from the standards observed by the courts. In particular, it will weigh the evidence against the usual civil standard of proof. Here, the application of that standard required Golden Valley to prove its case on the balance of probabilities.
[1] Re Evatt: Ex parte NSW Bar Association (1967) 67 SR (NSW) 236
[2] QCAT Act, s 28(3)
That civil standard is not applied as a mathematical or scientific exercise, but as a reasonable search for the truth in the circumstances of each particular case[3]. As Dixon J (as his Honour then was) explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 2, ‘…when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved’.
[3] TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267
The factual dispute here was relatively confined. To succeed, Golden Valley had to persuade the learned adjudicator on the balance of probabilities that it delivered the goods referred to in the invoice, and had not been paid the invoiced amount of $2100.00. There was no dispute about the second question: Ms Merrett did not deny she had refused to pay that sum. The case she raised, however, was that Golden Valley was, by the second invoice, attempting to charge her twice for what she should have received under the first invoice. Once that allegation had been raised and Ms Merrett was able to point to reasonably cogent evidence to support it (the drivers load notes) the learned adjudicator was obliged to make a finding of fact which reflected these opposing contentions.
Oral evidence about those matters came from Mr and Mrs Costanzo, and Ms Merrett; documentary evidence included the invoices themselves, the drivers load notes and also, oddly, another invoice Golden Valley had sent Ms Merrett’s landscaper, Mr Coy, for the same materials included in no 15616 (the invoice to her).
The transcript shows the learned adjudicator plainly understood and focused on the evidence about that central contention. In the course of the hearing itself she said:
Mrs Merrett’s saying that, in fact, this invoice comprises some of that payment that you’ve got there. So that’s why I need to – I know your saying its not, that’s why I need to know what that invoice represents. Now, the one that I’ve got here, which you’re claiming, which is 15616, which represents $2100.00, Mrs Merrett is saying that, in fact, that $2100.00 shouldn’t have been charged and it is part of the $6300.00 that was already paid[4].
[4] Transcript 1-12.5-15
Golden Valley’s case faced the hurdle of one piece of confusing evidence, and one which appeared to contradict its claims that all the material in both invoices had been delivered. For reasons which were not adequately explained Golden Valley had sent two invoices for $2100.00, one addressed to Ms Merrett and the other to her landscaper at the time Mr Coy, and several days apart[5]. Perhaps the most cogent evidence was the drivers’ load notes which Ms Merrett received, after a request, some four weeks after delivery. They show, she says, that no deliveries were made over and above those which accord with the amounts of materials set out in the first invoice.
[5] T1-33
Importantly, that is what she submitted to the learned adjudicator, to whom she said:
I say 148 was delivered. The drivers’ figures say 148 total for both days, four days, total 148. Their driver agrees with me. There was no second load and – and second delivery and first delivery, but deliveries followed on[6].
[6] T1-15.46-51
Passages in the transcript show that the learned adjudicator had some difficulty identifying the drivers’ load notes to which Ms Merrett was referring. Mr and Mrs Costanzo contested the validity of those notes and asserted that they did not, in fact, write out the delivery docket for every load.
In any event the learned adjudicator’s reasons show she was, unsurprisingly concerned about what she called the ‘delivery dockets’. She said: ‘…I have to say that I am a little bewildered by the various quantities that appear in the delivery dockets’. The reasons go on to show, however, that she decided to prefer the evidence of Mr and Mrs Costanzo for two reasons: first, because she was ‘…aware that it is not unusual in this industry, not to have exact amounts produced on every piece of paper’ and because ‘…there are two invoices produced over a four day period…I am reasonably satisfied that, according to the documents before me, that the defendant was provided with two lots of landscaping material…’
Although the reasons do not refer to any findings about credit, it is implicit in them that the learned adjudicator preferred the evidence of Mr and Mrs Costanzo that Golden Valley’s two invoices reflected two different orders, and that all of the materials referred to in both invoices had been delivered. The references to industry practice and the apparent reliance, in the reasons, on the existence of two invoices is, it can safely be assumed, an indirect way of saying that the tribunal made its finding largely on the basis of Mr and Mrs Costanzo’s oral evidence.
Once that is understood the question that arises on appeal is whether or not that finding was reasonably open in the face of all of the evidence – including, in particular, the drivers’ load notes and, perhaps, the unusual circumstance that Golden Valley had issued two invoices for the ‘second’ delivery, to both Ms Merrett and landscaper.
The evidence about the drivers’ notes appears, in particular, at T20/21. They were apparently supplied by Mr Costanzo, but when they were produced at the hearing Mrs Costanzo said ‘…we don’t strictly go off a drivers notes. They’re not – we go off invoices…’
As the to existence of two separate invoices for the alleged second delivery, Mrs Costanzo attempted to explain that by saying that the business ‘runs two invoice books – one for the landscapers for their own records, and a copy for the landscapers client’. As the learned adjudicator observed, however, it is the same document, but with different invoice numbers – something which, she said, ‘…confuses me’. Again, that is unsurprising; as she asked, why could a simple photocopy of the invoice not be made for the landscaper?
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[7].
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy ((2003) 197 ALR 201 at 207, 208
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case[8]. 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.[9]
[8] Chambers v Jobling (1986) 7 NSWLR 1 at 10
[9] Fox v Percy (supra) at 209 per Gleeson CJ, Gummow an Kirby JJ
It is difficult to see how the drivers’ load notes can be described as other than directly contradictory to, and inconsistent with, the implied finding that Golden Valley’s witnesses were witnesses of credit, and that their evidence should be preferred to that of Ms Merrett. This is because the notes were ‘neutral’ evidence – documents provided by Golden Valley which, on their face, contradicted its case. To this must be added the puzzling duplicity of invoices, in circumstances where that duplication made no practical or business sense.
The issues in the case and on appeal may, then, be distilled to the question whether Mr and Mrs Costanzo on the one hand, or Ms Merrett on the other was the truthful witness, a question which should properly be considered in light of the only available, neutral documentary evidence.
Nothing in the transcript strongly supports a finding of credit for one party or the other, solely on the basis of their oral testimony. Nothing in the reasons suggests the learned adjudicator was persuaded to believe one side, and disbelieve the other. In the absence of evidence or findings of that kind or to that effect, the principal evidence available to corroborate a finding for one party or the other was contained in the documents. In the circumstances, then, the question to be asked was a relatively straightforward one: did the only ‘neutral’ evidence corroborate, or contradict, the case of Golden Valley?
This analysis points strongly to one of two conclusions: first, that the facts inferred by the learned adjudicator – namely, that the evidence for Golden Valleys witnesses was, on the balance of probabilities, truthful – cannot be justified in the face of the evidence. The documents plainly contradict that finding or, at the least, raise real doubts about Golden Valley’s case. In the latter event, however, Golden Valley had simply failed to prove its case on the balance of probabilities.
Both involve a question of law. Again, the analysis set out above shows a prima facie error in the decision at first instance. Whether there is evidence of a particular fact, or evidence to support an inference drawn from the facts, is a question of law[10]. For these reasons, Ms Merrett should have leave to appeal.
[10] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 per Mason CJ
In the appeal itself, this Appeal Tribunal has power to set aside the decision and substitute its own, or return the matter for reconsideration[11]. The evidence which is persuasive that the original applicant ought not have succeeded, or that it had failed to prove its case on the balance of probability, came from Golden Valley itself. In those circumstances it would be a futility to compel a re-adjudication of what is a minor civil dispute, and the better course is to simply set the original decision aside and, in its stead, order that Golden Valley’s claim be dismissed.
[11] QCAT Act, s 146
It is appropriate to observe that the error to which the learned adjudicator apparently fell was unsurprising, and undeserving of any criticism. The minor civil disputes jurisdiction places great pressure upon the decision makers working in it. The transcript also shows that Mr and Mrs Costanzo’s conduct at the hearing was unhelpful; in particular, they attempted to talk over Ms Merrett whenever she referred to the first invoice and constantly and repeatedly interrupted her, and the adjudicator.
It should also be remarked that the course of her submissions in the appeal Ms Merrett attempted to adduce further material in the form of a report from a surveyor purporting to show that the various kinds of landscaping material to be found on Ms Merrett’s land did not include some, like saw dust, allegedly delivered by Golden Valley. She has also engaged an extensive correspondence with QCAT staff about this evidence and some matters arising from it. The evidence ought not be admitted, for several reasons. First, on its face it could have been adduced at the original hearing. Second, it is not probative, in any sense, of the amount of the materials actually delivered to, or on, the site.
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