Neal v Wylie (No 2)
[2014] QCATA 84
•14 April 2014
| CITATION: | Neal & Anor v Wylie (No 2) [2014] QCATA 84 |
| PARTIES: | Kenneth Michael Neal and The White Knights Pty Ltd (Applicants/Appellants) |
| v | |
| Lynette Wylie (Respondent) |
| APPLICATION NUMBER: | APL571-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 14 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RECOVERY OF DEBT – moneys paid for attempt to recover debt – whether consideration totally failed – whether tribunal erred in ordering repayment of moneys had and received by the appellant to the use of the respondent – whether reasonably appellable error shown – whether grounds for leave to appeal established Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Drew v Bundaberg Regional Council [2012] QPLR 350; [2011] QCA 359 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This matter first came before me on 2 October 2013.[1] On that occasion the decision in favour of the present appellants had nothing to do with the merits of the case. It turned entirely upon a point of procedure, namely, that the decision then under appeal did not sufficiently identify the proper respondent or respondents. There was an order for rehearing.
[1]Neal v Wylie [2013] QCATA 280.
The rehearing took place before McKenzie and Mills JJP on 2 December 2013. The Tribunal then found unequivocally that the only proper respondent was The White Knights Pty Ltd (“Knights”), and ordered it to pay Ms Wylie the sum of $3,098.[2]
[2]Transcript of hearing 2 December 2013 (“Transcript”) page 39 lines 27-28, 33-34; page 40 line 15.
In substance, the judgment moneys were a refund (with interest) of an amount paid by Wylie to Knights to seek recovery of $100,000 paid by Wylie to an allegedly dishonest third party.
The Tribunal found that Knights had done nothing (or, at any rate so little) to advance Wylie’s interests that she received no consideration for the subject payment, and was therefore entitled to recover it as moneys had and received to her use.[3]
[3]R v Brown (1912) 14 CLR 17 at 25; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 225.
On appeal, Knights complains that ‘there was no provision or any recognition by the court of the work undertaken on behalf of Lyn Wylie covering the specifics’.[4] There follow peripatetic references to media releases on the role of Knights, contacts with the fraud squad, a meeting with the third party at McDonalds, a fourth party’s making ‘allegations outside of court as to our credibility and our veracity’ and advice to ‘QCAT to investigate a better understanding on how we operate – it’s unconventional, unique and law abiding and should not be compared with any other organisation’. However, the application, as filed, does not point to any reasonably arguable error of law on the Tribunal’s part.
[4]Application for leave to appeal filed 20 December 2013, annexure.
Application for leave to appeal - proper limits
An application for leave to appeal is not an occasion for a retrial de novo, or for “second guessing” questions of fact or credit which are the province of the primary decision-maker. Indeed, the very requirement to obtain leave is to preclude attempts to retry cases on the merits, or to introduce evidence or arguments that might have been led in the first place, but in fact were not. There are public as well as private interests in finality of litigation. On an application for leave the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[5] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[6] Where reasonable minds may differ, a decision cannot properly be called legally erroneous, simply because one conclusion has been preferred to another possible view.[7]
[5]Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].
[6]Robinson v Corr [2011] QCATA 302 at [7].
[7]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
The Hearing
The record shows that the Tribunal spent almost 2 hours in careful consideration of the parties’ submissions. The Members made numerous and patient efforts to elucidate and test the competing allegations, and to minimise irrelevancies. Eventually the Tribunal, as judge of fact and credit, ‘accepted and preferred [Wylie’s] evidence’.[8] The payment of $3,000 by Wylie to Knights was not in dispute.[9] Correctly applying the civil standard of proof, the Tribunal found ‘on the balance of probabilities that [Knights] is liable to repay the full amount’.[10] It arrived at that conclusion by finding as facts that:
... [Knight’s] performance of the contract was not exact, nor even close to being substantial ... Additionally, [Knights] has failed to produce any evidence of the measurable value of the few tasks [it] undertook, and we cannot be satisfied that those tasks were sufficient to even begin ... recovering those funds on Ms Wylie’s behalf. [11]
[8]Transcript page 40 line 7.
[9]Ibid page 16 line 37.
[10]Ibid page 39 lines 27-28.
[11]Ibid page 39 lines 45-46; page 40 lines 9-12.
There is nothing in the record to suggest that the Tribunal’s findings were not reasonably based on the evidence and demeanour of the witnesses. The Members’ assessment of Mr Neal’s credit was made in the light of numerous exchanges, and vague, irrelevant or unresponsive answers, such as these:
Mr Neal: We are not private investigators ... we are facilitators ...
Mills JP: What do you facilitate exactly?
Mr Neal: Well, if one reads the web page... it shows you all the various associations we have with solicitors, barristers, arbitrators and mediators, working with the press. We’re completely unbiased. We take on anyone or anything, regardless, and we put our neck on the line for that and if we have to take on the High Court judge ... [or] somebody in the church, we’ll take them on and we’ve done that exactly.
Mills JP: What do you mean when you say you take them on?
Mr Neal: Well, first of all we approach them. ... [W]e work very, very closely with the media and Courier Mail and all ... media and also the television channels ... and expose these people and I can cite you many, many cases – paedophiles, con merchants ...
Mills JP: We’re not interested in that.[12]
[12]Ibid page 13 lines 26-42; page 14 lines 5-16.
Mills JP: So when you said you wanted [Wylie’s debtor] to contact you, what were you going to discuss with her?
Mr Neal: Well she knew – Wylie and a lot of people in the public know where we’re coming from, because we’ll expose them. We’ll go to the extreme of bringing in the television channels.
Mills JP: Yes, Mr Neal, that isn’t what I asked you. ... [W]hat were you going to discuss with [Wylie’s debtor] when she called?
Mr Neal: Where’s the money? ... Because we had the fraud squad onto it.[13]
[13]Ibid page 19 lines 8-23.
Mills JP: Okay, so how is [Exhibit 1] relevant, Mr Neal, to what’s in dispute today?
Mr Neal: Because we’ve been intimidated. We were intimidated outside the last QCAT hearing. And this gentleman here came out – followed me into the car park. He said I know all about you ...
Mills JP: What we’re here to decide today is what were the terms of the contract ... [14]
[14]Ibid page 20 lines 35-44; page 21 lines 1-5.
McKenzie JP: Mr Neal, I think my colleague is trying to pin you down to answer the question whether you ever followed up any of the phone updates in writing or email?
Mr Neal: Yes we did, and with the fraud squad.
Mills JP: Okay. Do you have copies of those emails that you sent to Ms Wylie providing her with an update?
Mr Neal: I’m sure I’ll find them for you, yes. I’ll get those, yes. ...
Mills JP: We can have a short break ... and you can have a look.
Mr Neal: I don’t think I’ve got them here, but my colleague was here as a witness ...
Mills JP: ... Ms Wylie, were you ever contacted by Mr Neal providing you with updates ...?
Ms Wylie: No, I never had any contact. As you can see by all the emails I’ve sent to him, I’ve had no contact with him. I had to ring a couple of times to find out what was going on ...[15]
[15]Ibid page 22 lines 17-47; page 23 lines 1-2.
Mr Neal: Investigation means many, many different things. One is we have to investigate Ms Wylie ...
Mills JP: But she doesn’t pay for you to investigate her.
Mr Neal: No, but it’s all part ...
Mills JP: She’s paying you to investigate [her debtor].
Mr Neal: It’s a part – yes. But it’s all part – because we have – I’ll tell you what. We have a few crazies who come into our office and make all kinds of false claims.
Mills JP: I can only imagine, Mr Neal.
Mr Neal: Yes, right. And we – as putting our neck on the line we get threatened. Physically threatened, intimidated – and especially by this gentleman here, outside the court. ... And we’ve taken on ... the paedophiles and the institutions. It’s all in here. And if you’re dealing with a paedophile ring ...
Mills JP: It’s not relevant Mr Neal. ...
Mr Neal: Of course it is. It’s investigation.[16]
Mills JP: I’m willing to hear you in relation to what’s in dispute today. ...
Mr Neal: Well, I should say, I think the sticking point virtually is what our modus operandi is and how much credibility we have got. That’s what it’s all about.[17]
Mills JP: So when she comes to you and she says I can’t afford solicitors what did you say ...?
Mr Neal: ... Good point, I’m glad you brought that up. We said to her how does $5,000, that’s to pay for our services and things like overheads ...
Mills JP: Pay for your services, what services ...?
Mr Neal: Okay, do you know the workings of channel 7, 9, and 10?
Mills JP: I’m not really concerned about that at the moment, Mr Neal.
Mr Neal: Well, you should be, because this is in the public arena.
Mills JP: What relevance does it have here? I’m asking you what you said to her in return for her money.[18]
[16]Ibid page 26 lines 8-38.
[17]Ibid page 35 lines 9-18.
[18]Ibid page 35 lines 35-46; page 36 lines 1-6.
I can discern no arguable error of law in the proceedings below. The primary Tribunal has made reasonable findings of fact and credit that it was entitled, indeed required to make. As explained above, it is not the function of this Appeal Tribunal to conduct a rehearing or to interfere (even if it were disposed to do so) with functions that are the prerogative of the primary Tribunal. Leave to appeal must be refused.
ORDER
Leave to appeal is refused.
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