Pierotti (t/a Horizontal Directional Drillers) v Murdoch & Anor (t/a Crossroads Horizontal Boring)
[2014] QCATA 96
•30 April 2014
| CITATION: | Pierotti (t/a Horizontal Directional Drillers) v Murdoch & Anor (t/a Crossroads Horizontal Boring) [2014] QCATA 96 |
| PARTIES: | Peter Pierotti (trading as Horizontal Directional Drillers) (Appellant) |
| v | |
| Helen Murdoch and Ian Murdoch (trading as Crossroads Horizontal Boring) (Respondents) |
| APPLICATION NUMBER: | APL010-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 30 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Time for filing the application for leave to appeal is extended to, and includes, 8 January 2014. 2. The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL CLAIM – where two traders and claim for sum of money – where agreement to supply mining equipment – whether agreement uncertain – whether agreement one for hire or purchase – whether time for filing application for leave to appeal should be extended – whether any arguable appellable error shown – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 6(2), s 32, 61(4), s 142(3)(a)(i), s 143(4)(b) Albion Projects Pty Ltd v Simpson & Anor [2014] QCAT 73 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
The business names of the parties, each based in Townsville, aptly describe the nature of their work. In view of the similarity of their trading names, clarity may best be achieved by referring to the appellant as “Pierotti” and the respondent as “the Murdochs”.
Murdochs’ technical difficulty – Pierotti offers help
This is the story of a co-operative endeavour that ended unhappily. In December 2012, the Murdochs were working for a client (North Queensland Earthworks) at Stony Creek, Roseneath, a few miles to the south of Townsville. They struck rock they were not equipped to handle. On 15 December 2012, Pierotti, who had shared resources with the Murdochs in the past, sent them a cryptic email, offering to assist:
This is the costing for the works - Mud Motor hire + TCI bit $6900 - Transport for recycler and mud motor $3800 - Hi flow end loader sond[e] housing for motor $4400.Will need your truck with ramps to park the recycler on. Can supply my Scania with 24A pump as a power pack to add to your 24/40 pump (no charge). Adding a tee to the discharge of your pump $100. Will need a forklift to unload the recycler as well (twice). Let me know.
A search for meaning
Ian Murdoch purported to accept this offer in a telephone call to Pierotti on 9 January 2013.[1] It may be doubted[2] whether the purported offer and acceptance are sufficiently certain to attain the status of an enforceable contract.[3] This Tribunal, like the courts, may find, where appropriate, that an alleged contract is void for uncertainty.[4] However, “courts will not lightly accept defeat in the search for meaning” in business dealings,[5] and the Judicial Register was properly concerned not to send the parties away without a resolution. As no plea of uncertainty is now made, no more need be said on this point.
[1]Affidavit of Helen Frances Murdoch sworn 10 July 2013 paragraph 5.
[2]And see the tribunal’s doubts: Transcript of hearing 11 December 2013 (“Transcript”) page 5 lines 42-47; page 6 lines 1-4.
[3]Peters Ice Cream (Vic) Ltd v Todd [1961] VR 485; Whitlock v Brew (1968) 118 CLR 445; Cityrose Trading Pty Ltd v Booth & Anor [2013] VSC 504.
[4]Whitlock v Brew (1968) 118 CLR 445; Albion Projects Pty Ltd v Simpson & Anor [2014] QCAT 73 at [8].
[5]Austral Tanks Pty Ltd & Anor v Running [1982] 2 NSWLR 840 at 843 per Wootten J. See also Scammell & Nephew Ltd v Ouston [1941] AC 251 at 268; Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 436.
The evidence reveals widely divergent and subjective views about the substance of the agreement. The Murdochs believe that items purchased by Pierotti “for the works” (other than a hired mud motor) became their property; Pierotti insists that they are his.
Proceedings commence – claim and counterclaim
On 10 July 2013 the Murdochs filed a claim in the Townsville registry seeking a payment of $10,120 for a TCI bit and adaptor, and sonde housing. Pierotti denied liability and counterclaimed an unpaid balance of $1,685, or (if the disputed items remained with the Murdochs) $19,996.50 for “services, hire and freight”.[6]
[6]Response filed 8 August 2013.
In the absence of any relevant enabling Act,[7] jurisdiction is derived from the QCAT Act itself.[8]
[7]As defined in the QCAT Act s 6(2).
[8]QCAT Act Schedule , definition of “minor civil dispute: Clause 1(b) “a claim arising out of a contract ... between two or more traders, that is ... for payment of money ... not more than the prescribed amount”.
The hearing
On 11 December 2013 the parties, each unrepresented, appeared before Judicial Registrar Warrington. The Tribunal was required to deal with a case of some legal and factual complexity without professional assistance. Unhelpfully, the parties gave their subjective and conflicting impressions of what the agreement meant. The Judicial Registrar recognised that the proper test is objective[9] - that is, what would a reasonable person, in the circumstances, understand the common intent to be?[10] Valiantly refusing to accept defeat in the search for meaning, she reasoned:
If this tribunal were to accept [Pierotti’s] argument that the TCI bit and sonde housing [were merely] hired to [the Murdochs] the conclusion would be that the hire cost for approximately one week’s drilling work exceeds the actual purchase price [of those items] by an amount of $1,080. I do not accept that a reasonable person would knowingly enter into an agreement under these terms, as the outcome is both inequitable and unreasonable ... I therefore accept that the terms of the contract imply that the costs provided for the TCI bit and the sonde housing were for the purchase of these items and not a hire agreement as alleged by [Pierotti].[11]
[9]Transcript page 6 lines 6-14.
[10] Wilson v Anderson (2002) 213 CLR 401 at 418 per Gleeson CJ; Byrnes v
Kendle (2011) 243 CLR 253 at 275, 284-285; Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912.
[11]Transcript page 6 lines 45-47; page 7 lines 1-6.
The Registrar proceeded to award the Murdochs $8,996.60, including costs – effectively damages for conversion or detinue – and dismissed the counterclaim.
Extension of time
The Murdochs state, without explicit objection, that the application was filed one day late.[12] Pierotti makes no submission in reply. However, the Tribunal has a wide discretion, ex mero motu,[13] to relieve parties from procedural requirements. I have no hesitation in granting Pierotti an extension of one day. The Murdochs do not plead any likely prejudice or detriment, and it is in the interests of justice that self-represented parties should not be sent away from the Tribunal for minor procedural defects. There will be an order for extension of time.
[12]QCAT Act s 143(4)(b) – 28 days.
[13]QCAT Act s 61(4).
Should leave to appeal be granted?
Pierotti now seeks to appeals from the primary decision. First, leave to appeal is required.[14]
[14]QCAT Act s 142(3)(a)(i). The application for leave overlooks this point.
Conditions and limitations of applications for leave
Understandably, but unfortunately, the legal limitations of applications for leave to appeal are not appreciated by many litigants in person. Those restrictions could well be more prominently advertised to would-be appellants, particularly in minor civil disputes.
The legislative purpose of a leave-to-appeal provision is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error, which, if left uncorrected, will result in substantial injustice. “Error” means an error of law, or a finding of fact that is not merely debateable, but rationally indefensible (which is also an error of law). Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes answer that description.
An essential, and much misapprehended point is that an application for leave to appeal is not an opportunity to re-run the trial. It is not an occasion to repeat and reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been put before him, but was not.[15] Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[16]
[15]Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].
[16]Robinson v Corr [2011] QCATA 302 at [7].
It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[17] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[18]
[17]Fox v Percy (2003) 214 CLR 118 at 125-126.
[18] 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.
Those are the principles that apply here.
Proposed grounds of appeal
These are to be gleaned from (i) an annexure to the application for leave, filed on 8 January 2014, (ii) two pages of factual objections to Helen Murdoch’s affidavit of 10 July 2013 (tendered at the trial), and (iii) a second submission emailed by Pierotti to the registry on 4 April 2014. The latter submission is not authorised by the directions of Senior Member Stilgoe dated 13 February 2014, but nothing turns on this point.
None of Pierotti’s submissions identifies an error of law; still less is there any attempt to demonstrate how one occurred. The first page of the annexure to Part C of the application is largely a recitation of background facts of the case, most of them uncontroversial. For example:
I have known the people of Crossroads for approx. 13 years ... My business ... quoted the crossing of Stoney Creek ... [but I] was not sure of when I would be available ... Crossroads [Murdochs] won the work, but were unable to drill a section in the creek containing rock ... I sent Crossroads a brief email on 15th Dec. The items shown were to show what cost [sic] were allowed for, so that they would be able to give that to [their client] and add their own costs on ...
Towards the end of the first page of that annexure, and on the brief second page, there is argumentative material about the Murdochs business plans, and the economic consequences of a decision adverse to Pierotti. Those considerations, if relevant, should have been addressed to the Judicial Registrar. They are not admissible on appeal: see paragraphs [11] to [14], above.
Pierotti’s subsequent submission, filed on or before 6 March 2014,[19] revisits the affidavit of Helen Murdoch, which was in evidence at the trial.
[19]Directions 13 February 2014, paragraph 3.
Pierotti’s final submission, lodged on 4 April 2014, argues, in hindsight, that, as the work took longer than expected, an adverse decision would leave him in a position that is at once unprofitable and unfair: “[I am] in business to ... make a profit at the end of the day. [I am] not a charity”. The desired inference, so it seems, is that the Tribunal’s interpretation of the agreement is therefore unreasonable, and has no support in the evidence. But an argument with the benefit of hindsight cannot determine the parties’ intentions, as embodied in their contract. The appellant offers nothing to show that the tribunal’s rationale, set out in paragraph [7] above, is affected by legal error. I repeat: findings of fact are not appellable if they have rational support in the evidence, even if another reasonable view is available.
In summary, the appellant has signally failed to identify any appellable error in the subject decision. So in accordance with the principles governing applications of this kind, leave to appeal must be refused.
ORDERS
1. Time for filing the application for leave to appeal is extended to, and includes, 8 January 2014.
2. The application for leave to appeal is refused.
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