Reale v Flight Centre Ltd
[2012] QCATA 220
•26 October 2012
| CITATION: | Reale v Flight Centre Ltd [2012] QCATA 220 |
| PARTIES: | Maria Reale (Applicant/Appellant) |
| v | |
| Flight Centre Limited (Respondent) |
| APPLICATION NUMBER: | APL177-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 26 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | ESTOPPEL – ESTOPPEL BY JUDGEMENT – ANSHUN ESTOPPEL – where applicant received refund for services promised but not rendered – where applicant received credit card reversal for full sum of services rendered – whether applicant should receive benefit of services as well as money paid for it Fair Trading Act 1989 Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 |
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
In February 2010 Ms Reale booked flights for two adults and one child from Sydney to Europe and return, plus internal travel within Europe. The booking was made through Flight Centre and the price quoted was $7,267.70, which Ms Reale paid by credit card on 24 February 2010.
Flight Centre failed, however, to charge her and pay for one internal leg of the planned flights: from Milan to Paris. During the trip Ms Reale suffered the inconvenience of having to pay for that before she and her companions could board.
Unsurprisingly Ms Reale was upset and took the matter up with Flight Centre on her return. The company agreed that it had booked the Milan-Paris flight but contended that the fare was not included in its original invoice but, because the fare she paid to board that flight was the same as the amount Flight Centre would have charged her, she had suffered no loss.
Dissatisfied, she brought proceedings in QCAT’s minor civil disputes jurisdiction in October 2010 claiming $1,580.00 for her ‘out of pocket to pay again for airfare previously paid for’ and $3,700.00 ‘my costs of pursuing refund from the respondent’. Her application was heard by a QCAT Adjudicator on 17 January 2011 who ordered that Flight Centre pay her the sum of $1,580.00 within 14 days.
Around the time she brought her proceedings, Ms Reale also complained to her credit card provider that she had not received the goods and services involved in her original payment to Flight Centre of $7,267.60, and, in a letter dated 8 October 2010, a bank wrote to Flight Centre advising it of her notification and seeking proof that the goods and services had actually been provided to her. It may be observed that, according to Flight Centre’s invoice of 24 February 2010, the figure of $7,267.60 included two adults and one child’s airfare flying Sydney-Rome via Seoul; Rome-Catania; Catania-Milan; and, (absent the ‘missing’ flight from Milan-Paris) Paris-Sydney again via Seoul.
Later, the credit card provider did reverse the payment to Flight Centre, which was, therefore, out of pocket for the services that it had provided. Flight Centre subsequently brought the proceeding, which is the subject of this appeal.
In Flight Centre’s proceeding against her, Ms Reale brought an application to strike out the tour operator’s claim, asserting an estoppel: in short, that Flight Centre should be prevented from pursuing its claim because it wrongly and unlawfully sought, in that claim, to re-activate issues which had already been the subject of a final decision in Ms Reale’s earlier action against it.
That application was initially refused. Ms Reale successfully appealed that decision to the QCAT Appeal Tribunal[1] which ordered that it be re-heard. The Tribunal did rehear the application in January 2012 when it was again, however, dismissed.
[1] Reale v Flight Centre Ltd 2011 [QCATA] 322.
Flight Centre’s application then came on for hearing before a QCAT Senior Member on 1 May 2012. Ms Briggs appeared for Flight Centre and Ms Reale appeared on her behalf, accompanied by Mr Hutchinson. The learned Senior Member reserved his decision which was then handed down, with his reasons, on 17 May 2012. He ordered that Ms Reale pay Flight Centre the amount of its claim: $7,276.00.
Ms Reale now seeks leave to appeal that decision. Both parties have, by direction, filed and exchanged submissions in writing. Ms Reale’s submissions run to twenty-two pages, with seven attachments, and are very detailed and lengthy. In short, she asserts that the learned Senior Member made errors of both fact, and law; that she was denied natural justice; and, that she holds ‘…a reasonable apprehension of bias by the decision maker’.
Ms Reale complains that she had not seen, and was surprised by, written submissions on behalf of Flight Centre. This complaint seems to be the nub of the allegation that she was denied natural justice.
The audio-recording of the proceedings has, however, Ms Briggs telling the Tribunal on behalf of Flight Centre that it has filed submissions and Ms Reale has them because they are the same as those it filed in the earlier appeal. Neither Ms Reale or Mr Hutchinson are heard to dispute that submission. Mr Hutchinson says, on Ms Reale’s behalf, that she relies upon an earlier affidavit and a statement from him.
The learned Senior Member is then heard to ask all parties whether there is any dispute of fact or any need to take oral evidence or swear in any witnesses. None of the parties is heard to suggest that is necessary.
The principal attack upon the learned Senior Member’s findings of fact appears to revolve around a statement in his reasons that, despite the earlier correspondence between Ms Reale’s credit card provider and Flight Centre in October 2010, it was not until 2 February 2011, after the hearing of her application on 17 January 2011, that Flight Centre received notification that the transaction had been reversed so that Flight Centre had been deprived of the sum of $7,267.60, and that amount had been refunded to Ms Reale.
At [14] of the decision the learned Senior Member says that Flight Centre could not therefore, at the time of the hearing of Ms Reale’s proceeding in January 2011, have cross-claimed for the amount of the credit card payment because it was not then aware of the reversal. Much is made of the fact that, in his decision, the Senior Member refers to a ‘Commonwealth’ credit card when, Ms Reale says, that bank was not the issuer of her card – although, oddly, the letter of 8 October 2010 to Flight Centre advising of Ms Reale’s complaint that she had not received the goods and services involved in the entry for $7,267.60 is on the letterhead of that bank. Nothing appears to turn upon this.
As I understand Ms Reale’s submissions, the central component of her complaint is that the learned Senior Member wrongly failed to accept her submission that all matters surrounding the transaction between her and Flight Centre had been finally adjudicated in January 2011 in the proceedings brought by her. She argued before him, and in her submissions here, that the decision of the Adjudicator awarding her $1,580.00 in January 2011 was a ‘finalised matter’ which had the effect of preventing Flight Centre from pursuing her for the airfares under the principles stated by the High Court in Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
The learned Senior Member addressed that submission in his reasons. As observed earlier, he was not persuaded that what is termed ‘Anshun estoppel’ applied because, in his view, the credit card transaction had not been finally reversed at the time of the hearing in January 2011.
Evidence had certainly been produced, in the form of the letter dated 2 February 2011 – again, on the letterhead of the Commonwealth Bank – to Flight Centre advising it that because it was unable to provide a card imprinted receipt with Ms Reale’s signature or proof that she had received the goods and services relating to the charge, the transaction had been ‘charged back’ to Flight Centre’s account. It is inescapable that this notification brought into effect what had only been threatened in the earlier letter of 8 October 2010. Once this is appreciated, the learned Senior Member’s finding is seen to be unsurprising and to accord with the evidence and the weight of evidence.
Mr Hutchinson tendered a statement before the learned Senior Member in which he said that, at the later hearing of the application to strikeout Flight Centre’s claim, he asked Ms Briggs why Flight Centre had not raised the matter of the credit card reversal before the hearing (in January 2011) and she replied that ‘they’ had discussed it with their bank who told them not to worry about it. This evidence, together with what is said in Ms Reale’s affidavit, suggests that Flight Centre might at the highest have been in a position to cross-claim in Ms Reale’s application but its claim would, at the time her proceeding was determined, have been inchoate. For reasons which follow, however, that possibility does nothing in terms of establishing a complete bar to Flight Centre’s claim, in the sense of an Anshun estoppel.
That is, firstly, because of the nature of what was sought in Ms Reale’s original proceedings. The application she filed on 14 October 2010 was plainly for $1,580.00 for airfares, and $3,700.00 for her costs of pursuing the refund from the respondent. She alleged various breaches of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1989, breach of contact, negligence and claimed damages including exemplary damages; but the facts and circumstances she advanced in support of those claims all revolve around the fact that Flight Centre failed to book the relevant leg of the flights and failed to tell her, causing loss and damage.
In the event, she did not recover damages in that proceeding but, only, the sum she had been obliged to pay for the airfares for the missing leg.
Flight Centre’s failure to cross-claim in that action – if it can be described as a failure – cannot be categorised as a failure attracting Anshun principles. Nothing in her claim involved an assertion that she was entitled to avoid all payment under her contract with Flight Centre.
Secondly, at the time of the hearing in January 2011 Flight Centre had not had Ms Reale’s payment for the airfares taken from it. In light of the nature of the claim brought by Ms Reale, there is no basis upon which it can be said that the judgment she obtained should be treated as conclusive.
Thirdly, the judgment ordered by the learned Senior Member in this case in favour of Flight Centre does not create any conflict with the judgment Ms Reale obtained.
That is because, as the learned Senior Member properly identified as a matter of critical importance, Ms Reale and her travelling companions did receive full value for what was paid. As the judgement records at [16]:
In these circumstances, it would be quite unconscionable for Ms Reale to have both the benefit of travel as well as the money she paid for it.
Finally, the suggestion of bias, in the context of a short hearing which was uncontentious as to factual issues and in which the decision-maker’s subsequent reasons are, for the reasons set out above, not discordant with the weight of evidence or inconsistent with the proper application of the principles of law arising in the matter, is plainly excessive and unwarranted.
Under s 13(1) of the QCAT Act in proceedings for minor civil disputes, the Tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute. It is inescapable that the decision from which leave to appeal is sought achieves that end. Ms Reale’s case is, in essence, that she ought be excused all payment for all overseas travel booked and paid for through Flight Centre in circumstances where an error by the travel provider caused her inconvenience, but she has already obtained a judgment which has the effect of providing part of that travel without charge to her.
Leave to appeal must be refused.
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