Paulette Gee Allied Health Service Pty Ltd v Waves of Kindness Ltd

[2025] QCATA 19

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Paulette Gee Allied Health Service Pty Ltd v Waves of Kindness Ltd  [2025] QCATA 19

PARTIES:

PAULETTE GEE ALLIED HEALTH SERVICE PTY LTD

(applicant/appellant)

v

WAVES OF KINDNESS LTD

(respondent)

APPLICATION NO/S:

APL270/23

ORIGINATING APPLICATION NO/S:

MCD015/23 Noosa

MATTER TYPE:

Appeals

DELIVERED ON:

23 January 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.     Leave to appeal from the decision of the Tribunal of 14 July 2023 refused. 

2.     There be no order as to costs. 

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - Appeal – leave to appeal – minor civil dispute – whether reasonable argument that error made – whether substantial injustice to applicant for leave – application dismissed. 

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)

Allen v Queensland Building and Construction Commission [2024] QCA 24

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

1. On 28 March 2023 the appellant filed in the Tribunal an application for a minor civil dispute – minor debt, by which it sought payment of $3,080 from the respondent as monies owing by the respondent for the provision by the appellant of counselling services to third parties pursuant to an agreement.[1]  The matter came on for hearing before a Member[2] at Noosa on 14 July 2023, and for reason then given orally the Member dismissed the application.  An application for leave to appeal was filed in the Tribunal on 22 August 2023. 

   [1]For convenience I small refer to Paulette Gee Allied Health Service Pty Ltd as the appellant and to Waves of Kindness Ltd as the respondent. 

   [2]A Magistrate sitting as a Member of the Tribunal pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 171(2).

2. Because the proceeding was a type of minor civil dispute, the appellant requires the leave of the Appeal Tribunal in order to appeal.[3]  Leave is usually only granted where there is a reasonable argument that there is an error which should be corrected and an appeal is necessary to correct a substantial injustice to the appellant,[4] although it may also be granted when the proposed appeal raises an issue of general importance on which the decision of the Appeal Tribunal would be useful.[5]  The requirement for leave to appeal reflects a legislative intention that ordinarily parties to a minor civil dispute will be confined to one judicial determination of the dispute. 

   [3]The QCAT Act s 142(3)(a)(i).

   [4]Berry v Commissioner of Police [2015] 1 Qd R 388 at [4]; Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].

   [5]Allen v Queensland Building and Construction Commission [2024] QCA 24 at [21]. I am also conscious of the qualification to that general statement at [22], adopting the discussion of an analogous provision in Commissioner of Police vAntonailli [2021] QCA 237 at [105] – [115].

3. In the original application the appellant alleged that there was an agreement in certain emails between the parties under which the respondent would pay for counselling services provided to third parties at specified rates, that four invoices had been issued by the appellant to the respondent, and that only the first three had been paid.  The claim therefore related to the payment of the fourth invoice, for $3,080.  In a Response filed in the Tribunal on 24 April 2023 the respondent claimed that it was not required to pay for services provided at a particular venue because of the status at that venue of the person actually providing the services, Ms Gee, as a student intern, and that the appellant had also been overcharging for services provided.  As well, it was alleged that the appellant had engaged in misleading and deceptive conduct in that it failed to disclose that Ms Gee was on a student placement and as a result she had not completed a degree of Master of Positive Psychology, and was “presumably not qualified to practise until” August 2022.  It was also alleged that Ms Gee was uninsured while providing services. 

Background

1. The respondent is a charitable body which among other things provided assistance for the provision of health services to deserving individuals.[6] On 8 November 2021 the appellant sent an application to the respondent seeking funding for the provision of counselling services by Ms Gee at a health service practice in Mary St, and at an organisation called Sunny Street, and outreach organisation dealing with disadvantaged people. The application advised that Ms Gee had obtained degrees of Bachelor of Social Science in Psychology and Master of Applied Positive Psychology, and expected to obtain in 2022 a degree of Master of Professional Social Work. In connection with the last degree she had applied for an internship with Sunny Street. She sought funding for 100 counselling sessions for Mary Street at $75 each,[7] and 100 sessions for Sunny Street at $60 each, a total of $13,500. The sessions were described as “per client one hour consultation fee including action plan”. The respondent was also asked to provide a room for counselling at its premises.

   [6]Transcript p 2; see also material attached to the original application.  

   [7]According to the application this included $40 for the use of the premises in Mary Street, presumably payable to the occupier.  There was no equivalent charge for Sunny Street. 

2. Ms Gee was not a psychologist registered to practice as such, but what she was proposing was just to act as a counsellor.[8]  That is not something for which registration is required, and indeed anyone can offer counselling, although Ms Gee did have academic qualifications relevant to the provision of counselling.  As far as I am aware, there is also no legal requirement for counsellors to have insurance.  At the time she started provided counselling, she was working as a social worker for Sunny Street, as an intern, as part of her qualifications for registration as a social worker.  She said however that she did not do counselling at the Sunny Street premises until her internship had been completed: p 14. 

   [8]Transcript p 16, 17. 

3. Someone from the respondent emailed Ms Gee on or before 19 November 2021 seeking clarification about three points.  The first was a query about invoicing, in connection with which the person said “As we understand it Sunny Street will not be charging you for the use of their facilities and this is where you will be putting in your required 1000 hours?”  As well, she was asked about an ABN, and it was said that the use of the room at the respondent’s premises would have to be discussed.  On 19 November 2021 Ms Gee advised that the counselling would be separate from the 1000 hours of internship, which would be field work at Sunny Street.  She had not yet heard about the application for the internship.  She provided an ABN. 

4. On 25 November 2021 the respondent by email to Ms Gee advised that the application for assistance by the appellant had been approved.  The appellant began providing the services in 2022, and sent four invoices, on 13 January 2022 for $1,582, on 27 June 2022 for $1,935, on 14 November 2022 for $6,460 and on 15 February 2023 for $3,080.  The first three were paid by the respondent; the fourth was not, and was the basis of the claim. 

Decision of the Member

1. The Member found that an agreement had been made between the parties on 8 November 2021 which provided for the respondent to fund 100 sessions by Ms Gee at an address in Mary Street, for $75 each, and 100 sessions by her at the premises of Sunny Street for $60 each, with a cap of $13,500 over six months.[9]  The Member also accepted the evidence of Ms Gee that she did not include in her invoices any charge for work she was doing as an intern at Sunny Street.[10]  He accepted the evidence of a witness from Sunny Street who verified an email sent by that organisation to the respondent on 3 February as to the work done there for which the appellant was entitled to charge.  He said that the agreement fixed a charge per session, but did not stipulate how long the sessions were to be.  He also found that there was no agreement for the appellant to charge the respondent for any of the “non-patient” time spent by her,[11] or for any counselling at the premises of the respondent.   

   [9]Transcript p 30.  I consider that the evidence supports a finding that the agreement was actually made on 25 November, but it was in terms of the proposal of 8 November.  This error was of no consequence.  It was agreed by the respondent at the hearing that the agreement between them was in terms of the email of 8 November 2021: p 5. 

   [10]Transcript p 31. 

   [11]Transcript p 32. 

2. On the basis of this evidence, the Member concluded that the appellant had, in the November 2022 invoice, overcharged the respondent an amount of $2,040.  In arriving at this conclusion he accepted that the amount charged for work at Mary Street was correct.  He performed a similar exercise for the invoice the subject of the claim, and concluded that the amount properly charged on that invoice was $2,040.  These two amounts cancelled out, so there was nothing further payable by the respondent to the appellant.  On this basis, the claim was dismissed.  Ultimately the Member did not find it necessary to decide the other issues raised by the respondent. 

Grounds of appeal

1. The appellant identified thirteen grounds of appeal in the application for leave to appeal, but these involve some duplication.  The main ground of appeal appeared to be that the Member was not entitled to consider whether invoices which had been paid were correctly owing, so as to reopen those transactions.[12]  It was also said that the Member had incorrectly calculated the amounts payable, had relied on an incomplete and thus misleading witness statement, had failed to understand the type of work carried out with marginalised clients, ignoring post-session social work and failing to recognise that the work was not restricted to time spent in counselling sessions.  The Member was also said to have favoured the respondent, and not taken into account that it had engaged in misleading conduct and had breached the contract. 

   [12]This covers grounds c), d) and f).

Consideration

1. Some of these matters can be dealt with quickly.  The “fundamental breach of contract” alleged against the respondent was failing to pay the whole of the $13,500, but this was treated by the Member as a limit to the amount payable to the appellant, rather than as a fixed sum.  I agree with this interpretation of the contract, which clearly contemplated that the appellant’s right to charge was based on the supply of sessions of counselling, to be charged for at specified rates.  That indeed was the basis on which the appellant’s claim was framed.  There was no breach of contract in not paying the full amount of $13,500. 

2. The proposition that the appellant was entitled to charge for what was described as “post session social work for the clients” is in my opinion clearly not correct, as the agreement between the parties provided for payment only for counselling sessions, at a specified rate, not for any additional time spent by Ms Gee in connection with a particular client of Sunny Street.  Whether Ms Gee did this work as part of her social work internship obligations, or whether she thought she was entitled to charge the respondent for it, or whether it was done out of the kindness of her heart and because of her concern for the wellbeing of marginalised clients, the short answer is that this was not within the terms of the agreement and did not give rise to any entitlement to payment by the respondent.  I do not think the Member rejected expressly this part of the claim, but the effect of his decision was to disregard it, and that was correct. 

3. As to whether the Member erred in going to the earlier invoices, and considering whether the amounts claimed in them had been properly payable, there are two relevant principles here.  The first is that, if a payment is properly characterised as voluntary, it cannot be recovered by the payer.  The second is that, if a payment is made because of a mistake on the part of the payer, it is ordinarily recoverable, subject to certain defences.  At one time it was necessary to show that the relevant mistake could be characterised as one of fact rather than as one of law, but that has been swept away, and it is sufficient to say that if a payment is made in the belief that it is in discharge of an obligation under a contract and that proves to have been mistaken, it is prima facie recoverable.[13] 

   [13]The scope of mistake which can found a claim for repayment is wider than this, but this is sufficient for present purposes. 

4. When an invoice is rendered apparently claiming payment under a contract and it is paid, the natural inference is that it was paid in the belief that it was properly payable under the contract.  Although the Member did not find expressly that the payments were made by mistake, such a finding was justified by the evidence.  There was no reason to think that the respondent’s intention was to pay the appellant the amount claimed in the invoice regardless of whether or not it was properly payable under the contract, so as to make it voluntary and not recoverable.  It follows that, to the extent that the appellant had claimed more from the respondent in the earlier invoices than was actually payable under the contract, the excess was recoverable by the respondent despite payment by it at the time.  There is nothing in the evidence to give rise to a defence to the respondent’s entitlement to repayment. 

5. It may be that, strictly speaking, the respondent should have filed at the time of the Response a separate application to recover the overpayment from the appellant, and then sought a direction under the Queensland Civil and Administrative Tribunal Rules 2009 Rule 49 that the proceedings be heard together.[14] However this is a procedural issue only, and the Member was required by the QCAT Act s 28(2) to act fairly and according to the substantial merits of the case. As well, the objects of the Act for the Tribunal include that it be informal and quick: s 3(b). Given the amount involved, it was appropriate for the Member to decide the dispute on this basis without requiring the respondent to take any further procedural steps. The details of the respondent’s claims about overcharging were set out in the Response, so the appellant had plenty of notice of them. In any case, if there was money properly repayable by the appellant on the basis that there had been amounts claimed that were not payable, the appellant cannot show that it has suffered any real injustice so as to justify the grant of leave to appeal.

   [14]Under Rule 48(3) a cross-application cannot be filed with the response to a minor debt claim. 

6. The appellant claimed that the Member had failed to allow for the counselling provided at the room in the respondent’s premises, but this was dealt with by the Member on the basis that the appellant was not entitled to charge for counselling provided there: p 32.  As a matter of interpretation of the contract, that was correct.  It provided for payment for counselling at Mary Street or at the Sunny Street premises, and although it requested the use of a room in the respondent’s premises for counselling there, the proposal made no reference to payment for such counselling.  Evidently an arrangement was later made for the appellant to use the room, but there was no evidence of any later agreement for the respondent to pay for sessions conducted there. 

7. The appellant in submissions referred to this as “Sunny Street’s secondary facility”, but the witness from that organisation disavowed any association with it.[15]  It may be that the people counselled there were introduced through Sunny Street, but that did not impose any obligation on either that organisation or the respondent to pay for any counselling provided at that venue.  This part of the appellant’s claim was correctly rejected by the Member. 

   [15]Transcript pp 28, 29. 

8. Ground (b) asserted that the respondent did not dispute the content of the fourth invoice, on which the claim was based.  But it is quite clear from the transcript that it was disputed by the respondent, which asserted that it included amounts claimed which were not in accordance with the agreement between the parties.  On the face of it, that was correct, as the Member found. 

9. The appellant complained that at the hearing the respondent was called on to speak first, and that that put her in the position of a respondent and that she had to defend the correctness of the prior invoices which had been paid.  This was characterised as favouring the respondent, but what it shows is that the Member approached the matter on the basis that it was a matter for the respondent to show that the amount claimed was not properly payable.  That was quite understandable in the circumstances, since no doubt in the vast majority of minor debt claims brought for payment of an invoice the amount claimed in the invoice is properly payable.  In this case however the respondent was able to show to the satisfaction of the Member that the amount claimed was not payable. 

10. The appellant submitted that the Member should not have accepted the evidence of the witness from Sunny Street as to the method by which they recorded the time Ms Gee spent with clients at that facility.  The system produced an electronic record of the time spent with a client in a face to face session, recording for booked counselling sessions when the client arrived and when the client left.[16] The appellant mounted two lines of attack on this system: first, that she saw some clients on referral from other people when they turned up at the facility without a specific booking for counselling,[17] and second, that she did a lot of work in connection with the clients she counselled other than in face to face sessions. I have already dealt with the latter point, that the agreement provided for payment only for counselling sessions, that is, face to face work.

    [16]See transcript p 23. 

    [17]She called a witness who was an example of that practice. 

11. As to the former, the difficulty is that the question of whether a session with a person who had not been booked for counselling at the facility would have been captured by the recording system was not explored in cross-examination of the witness from Sunny Street, so that the appellant did not show that any such incidents were not covered by the system.  In circumstances where it appears clear that the appellant was charging for time spent other than strictly on counselling sessions anyway, it was certainly open for the Member to accept the evidence led by the respondent, and that the Sunny Street records provided the only reliable evidence of the work for which the appellant was entitled to charge the respondent.  The appellant did not produce any records of its own which could contradict them.  There is no substance to this ground of appeal.

12. The appellant submitted that the respondent, in paying the third invoice, had impliedly represented that it was entitled to charge on the same basis in the future.  The problem with that submission is that the third invoice, unlike the earlier (and indeed the later) invoices, was said by the Member not to provide any detailed breakdown of the amount charged.[18]  When asked about this, Ms Gee said she did not do a breakdown for that invoice because she was too busy.  There is now, on the copy of the file that I have, a document which provides some breakdown, and indeed the invoice refers to an attached schedule; but it may be that this is a document which was prepared by the appellant later, to justify the amount claimed in the invoice, rather than at the time it was sent. 

    [18]Transcript p 19. 

1. What is different about this document is that it refers to “extended client sessions” at Sunny Street, but the document said, in connection with this, “I request that the distribution advisory board accept this progress claim on an amended basis as below.”  This was followed by the reference to extended sessions at $120, as well as standard sessions at each venue at the existing rates.  There was however no evidence of acceptance of this variation on the part of the respondent.  In view of this, and in the absence of evidence that this was sent with the invoice, it is understandable that this did not represent a variation in the terms for payment in the contract between the parties.  I consider that mere payment did not amount to agreement to a variation in the contract, nor did it give rise to some kind of estoppel in respect of future claims.  It could not support a claim for misleading conduct, as there was no evidence from the appellant of reliance on the fact of payment. 

2. The final submission for consideration was related to an earlier ground, that there was an entitlement to charge for work done for clients other than face to face counselling sessions.  I can see no reason to differ from the interpretation of the contract by the Member, that it provided an entitlement to payment only for such sessions.  In those circumstances there is no substance in proposed ground (l). 

3. Overall, there is nothing in the submissions of the appellant to suggest that there is any real prospect of any of the grounds succeeding, except perhaps the procedural issue raised in relation to the claim of a set off in respect of the overpayment.  The appellant has failed to show that the decision of the Member gave rise to any substantial injustice to it.  Good reason to grant leave to appeal from the decision of the Tribunal of 14 July 2023 has not been shown.  Accordingly, the application for leave to appeal is dismissed.  There is nothing to indicate that the respondent has incurred any legal costs, and the respondent did not seek costs in its submissions.  I make no order as to costs. 

Comment

1. Finally, by way of comment, I should like to say that my exposure to the appeal provisions of the QCAT Act over the last five years has left me with the firm opinion that they are a mess. The need to draw a distinction between an appeal on a question of law on the one hand, and an appeal on a question of fact or of mixed law and fact on the other, demands that the parties, and in due course the Appeal Tribunal, apply the established tests to distinguish between these different questions. Appellate courts have noted more than once that these distinctions are difficult to apply in practice, and they are therefore particularly inappropriate in a Tribunal where it is expected that usually the parties will not have the benefit of legal assistance to argue the appeal.[19]  That of course generally deprives the Appeal Tribunal of such assistance in deciding, in pretty well every case, this difficult, but essentially useless, question of the characterisation of the questions that arise in the appeal. 

   [19]The QCAT Act s 43(1). 

2. It also gives rise to the issue of whether the requirement in s 142(3)(b) is cumulative on the requirement in s 142(3)(a), or if, as I think is generally assumed by the Appeal Tribunal, it is sufficient if leave is given under s 142(3)(a) for the appeal to be conducted by way of rehearing. The problem is that ss 146 and 147 divide up appeals by reference to this division of questions in the appeal, without regard to how leave to appeal has been given.

3. I am firmly of the view that s 142(3)(b) serves no useful purpose and should go.  As well, all appeals, whether by right or by leave, should be decided by way of rehearing.  If it is good enough for the Court of Appeal to do that,[20] it should be good enough for the Appeal Tribunal.   

   [20]Subject only to a few minor exceptions, such as an appeal from the District Court in its appellate jurisdiction under the District Court of Queensland Act 1967 s 118.