Molectra Technologies Pty Limited v Prime Engineering Pty Limited
[2012] QCATA 112
•26 June 2012
| CITATION: | Molectra Technologies Pty Limited v Prime Engineering Pty Limited [2012] QCATA 112 |
| PARTIES: | Molectra Technologies Pty Limited (Appellant) |
| v | |
| Prime Engineering Pty Limited (Respondent) |
| APPLICATION NUMBER: | APL459-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 26 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. Decision of the Tribunal dated 3 November set aside. 4. Matter remitted for rehearing by another Adjudicator. |
| CATCHWORDS: | Appeal – minor civil claim – whether leave should be granted – whether Appellant allowed to present case – whether sufficient evidence to support finding – whether reasons sufficient Queensland Civil and Administrative Tribunal Act2009, ss 28, 29, 32, 57, 95, 122, 142(3)(a)(i) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Prime Engineering Pty Limited (Prime) sued Molectra Technologies Pty Limited (Molectra) for $5,500, as fees for a mechanical design. Molectra was in search of a better and cheaper method of attaching blades to a grinding machine. Molectra declined to pay, saying that the design it bargained for was not delivered.
The Adjudicator considered that the parties’ arrangements were too imprecise and uncertain to find a contract, but instead of dismissing the claim he awarded Prime $5,137.90 by way of quantum meruit.
Prime had legal representation at the hearing; Molectra did not.The form and contents of Molectra’s application for leave to appeal suggest that those arrangements are unaltered. Molectra now complains: (i) that it did not have a proper opportunity to present its case. It also alleges that:
(ii)Its representative, Mr Divosi, was intimidated by counsel for Prime;
(iii)Divosi was ridiculed for lack of legal qualifications;
(iv)The Tribunal erred in accepting that the work in question was finished and professionally presented;
(v)The Tribunal erred in dismissing Molectra’s claim that the material delivered was merely a sketch of existing parts of the subject machine;
(vi)That the Tribunal erred in making the existing award in favour of Prime in the absence of any timekeeping records.
The grounds involve some repetition, and, as appears below, I do not find it necessary to deal with all of them.
Denial of a Fair Opportunity to Defend?
It is an error of law to prevent a party from fully and properly presenting his case,[1] and excessive intervention by a decision maker may have that effect.[2] A perusal of the transcript shows that the Adjudicator interrupted Molectra’s representative, Divosi, on more than 30 occasions. However, unlike the courts, this Tribunal is not wedded to the adversary system; it may adopt an investigative role[3], and will sometimes be bound to do so.[4] I do not overlook the fact that some interruptions were proper efforts to recall Divosi to relevance or to clarify assertions, and that Divosi himself interrupted the Adjudicator and others on several occasions.
[1] Stead v State Government Insurance Commission (1986) 161 CLR 141.
[2]Yuill v Yuill [1945] P 15 at 20; Jones v National Coal Board [1957] 2 QB 55 at 64; Re Refugee Tribunal; Ex parte H (2001) 75 ALJR 982 at [34]; Damjanovic v Sharpe Hume and Co [2001] NSWCA 407 at [158(c)].
[3] Queensland Civil and Administrative Tribunal Act 2009, ss 28, 29(1)(b).
[4]QCAT Act, s 28(3)(c): “... must ensure, so far as is practicable, that all relevant material is disclosed”; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 at 481; Grant v Repatriation Commission [1999] FCA 1629 at [17].
Nevertheless, while recognising the time constraints upon Adjudicators, and the fact that one party was represented by a non-lawyer, I find it more probable than not that interventions from the bench, and permitted interruptions by Prime’s counsel, significantly disadvantaged Divosi in his representations on Molectra’s behalf. Overall, the record conveys a distinct impression of confusion, even disorder. While the Tribunal is encouraged to proceed informally, and may receive sworn or unsworn evidence[5], the exhortation to informality is tempered by the duty to afford a “proper consideration”[6] of the case. Sufficient formality to give some shape to a hearing may actually assist a lay advocate to present his case more articulately.
[5] QCAT Act, s 57.
[6] QCAT Act, s 29(3)(d).
In this case no attempt was made to receive oral evidence in the form of examination and cross-examination. More than half way through the hearing, counsel asked the Adjudicator whether he wished to take sworn evidence, and the learned Adjudicator declared:
“I don’t usually bother swearing people in because by our QCAT Act, if people tell me fib or two, then they face prosecution ... As we know, in the greater jurisdictions where I used to be once, it’s hard to prove a lot of perjury anyway.”[7]
[7] Transcript of hearing 3 November 2011 (“T”) page 34.
One may be forgiven for wondering whether this observation from the bench was conducive to complete candour by witnesses then in attendance.
Evidence, such as it was, came in the form of sporadic assertions from the bar table, Mr Divosi, and the Custers, senior and junior, the former a director of Prime, and the latter, according to counsel, a “key man” in the company. As proceedings warmed up, the Adjudicator, counsel, Divosi and the Custers cut across each other’s utterances with increasing frequency. It was an atmosphere in which Divosi could reasonably complain of confusion in his dual role of advocate and informal witness.
It is, I think, an exaggeration to say that Divosi was “ridiculed” for lack of legal expertise, but there were some lawyers’ “in group” exchanges between bench and bar table that may well have puzzled him and caused him some discomfort.[8]
[8]For example, a reference to quantum meruit without a clear and immediate explanation of that term: T 15; Counsel: “Aren’t we all legal practitioners?” Adjudicator: “some more than others”: T 21; Adjudicator: “I was presiding on costs hearings at that time” Counsel: “We weren’t allowed to go onto accruals, if you recall ... it was on legal practitioners that I was referring to”: T 22; Adjudicator: “I had a legal costs case years back where a large firm was awarded indemnity costs ... I could only give them half what they asked ...” Counsel: “It’s always a problem with litigation. It brings out the weakness in every business”: T 46.
If Molectra was prevented from presenting its case properly, Prime was allowed to present its case improperly. There was evidence or comment from the Bar table in many places[9]. Understandably, Molectra’s representative was in no position to recognise, or to object to these irregularities.
[9]T 7, T 11, T 12, T 18, T 19, T 21 lines 15-17 (comment on ultimate issue), T 22, T 23, T 26 “absolutely spot on”, T 27 “certainly a wise advice [by the Adjudicator]”, T 31, T 41, T 45.
I have referred, sympathetically I trust, to the constraints of time upon Adjudicators. However, in this case, those constraints did not prevent exchanges, by Adjudicator with counsel, on topics as remote from the issues as drug smuggling, the respective merits of accrual and cash accounting in legal practice, the hazards of trading in Eastern Europe, counsel’s marriage to a Russian lady, a Delphic reference to an “illustrious task”, sundry costs cases, and “the greater jurisdictions where I used to be”, in the Adjudicator’s professional past.[10]
[10] T 8-9, 22-23, 32, 33, 34, 46.
Cumulatively, if not individually, these events can hardly have assisted Molectra’s lay advocate to put the best possible complexion on his company’s case. Understandably, if not quite fairly or accurately, he protested: “Your Honour, you’re not listening to my argument against it” and was told: “I am. ... Don’t be so stubborn for a minute. Be quiet. I’ll come back to you.”[11]
[11] T 21.
Timekeeping Records
For the purposes of his “fall-back position”[12] of a quantum meruit award, the Adjudicator asked Custers Snr what his company normally charged, and was told: “It’s $100 an hour at the moment”.[13] How many hours did they devote to Molectra’s business? “Probably 40 or 43, a week, plus travelling time”.[14]Was there any documentary evidence to support that somewhat vague estimate? Counsel thought that he could probably have a copy of a relevant time sheet “faxed to the court within a very short period of time”.[15] However, no time sheet materialised, although as the claimant’s counsel said, a trifle ruefully, “It would have been useful”.[16]
[12] T 15.
[13] T 35.
[14] Custers Snr T 30.
[15] T 30.
[16] T 47.
However, without more, the Adjudicator accepted Custer’s unsworn statement of the hourly rate, and announced that he would “grant 43 hours as a starting point”[17], while acknowledging that “I’m literally trying to imagine [sic] what time was spent on the actual concept ... so I have to create something that’s artificial, because I don’t have enough detail from anybody.”[18]
[17] T 48.
[18] T 49-50.
In my view, and with due respect, I do not see that as a satisfactory basis for an award that is not much less than the amount claimed under a contract that Prime failed to prove.
In the premises, I conclude that the proceedings miscarried, regrettable as it is that a relatively small claim may have to be re-tried. However, it is to be hoped that the parties will now avoid that expense to themselves and the public purse by reaching some amicable and mutually acceptable compromise.
Reasons for Primary Decision
A question not raised by the appellant Molectra, but one that tends to fortify this decision, concerns the adequacy of reasons given by the learned Adjudicator. Section 122 of the QCAT Act affirms the common law requirement that courts and statutory tribunals must articulate reasons that sufficiently indicate the facts found, the evidence on which those findings are based, and the application of the pertinent law to them. That is desirable to engender parties’ confidence in the decision-making process, and it is essential for an effective right if appeal, if the unsuccessful party takes that course.[19] Conflicting stories should be clearly identified, and a preference for one over the other succinctly explained.[20]
[19]Grollo v Palmer (1995) 184 CLR 348 at 379; John Fairfax and Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476; Pettitt v Dunkley [1971] 1 NSWLR 381.
[20] Harrison v Racing Penalties Appeal Tribunal Sup Ct of WA (Full Ct) 27 February 1996.
Once again, one must avoid unrealistic demands upon Adjudicators making decisions ex tempore. Nevertheless, every other such decision that I have dealt with arrives at a clear point where evidence and argument end, and the process of giving reasons and decision commences. In this case no such point is discernible. It is possible to glean some provisional reasons or findings by combing the 50 pages of the record, but in my opinion a litigant is entitled to a discrete, final and conclusive result, however briefly expressed. That description can hardly be applied to the last 2 pages of the 50 page record. Even at that stage, questions were being asked amid interpolations by the Adjudicator and the parties.
I consider that the paucity of reasons is an additional error of law.
Leave to appeal is required.[21] An applicant for leave must show that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice.[22] In my opinion that condition is met in this case.
[21] QCAT Act, s 142(3)(a)(i).
[22]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19].
Orders
Leave to appeal is granted.
Appeal allowed.
Decision of the Tribunal dated 3 November is set aside.
The matter is remitted for rehearing by another Adjudicator.
0
9
0