Salmond v S & S Accounting Services Pty Ltd - [2012] QCATA 218

CITATION:

Salmond v S & S Accounting Services Pty Ltd [2012] QCATA 218

PARTIES:	Kerrilyn Salmond (Appellant)
v
S & S Accounting Services Pty Ltd (Respondent)

APPLICATION NUMBER:

APL126-12

MATTER TYPE:

Appeals

HEARING DATE:

31 October 2012

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

31 October 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1 The application for leave to appeal is granted.

2 The orders made on 13 March 2012 are set aside.

3 This matter is remitted for rehearing before another adjudicator.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where unrepresented respondent – where statutory requirement for tribunal to undertake investigative function – whether statutory requirements satisfied –- whether relevant evidence and issues disregarded – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, ss 28, 29, 32, 57, 95, 98, 142
Queensland Civil and Administrative Tribunal Rules 2009, r 49

ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 Qd R 1
Craig v South Australia (1995) 184 CLR 163
Ekermawi v Administrative Decisions Tribunal (NSW) [2009] NSWSC 143
Federal Commissioner of Taxation v Carberry (1988) 88 ATC 5005

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Grant v Repatriation Commission (1999) 57 ALD 1
Keller v Drainage Tribunal [1980] VR 449

Broussard v Minister for Local Government, Immigration and Ethnic Affairs (1989) 21 FCR 472
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

NSW Bar Association v Muirhead (1988) 14 NSWLR 173

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Re Ball and the Commonwealth (1987) 15 ALD 491

Sullivan v Department of Transport (1978) 20 ALR 232

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

On 13 March 2012, at Rockhampton, the Tribunal ordered the Appellant (“the client”) to pay the Respondent (“the accountants”) $3,660, being the balance of professional fees, and a filing fee of $95.
The client seeks leave to appeal that decision, and she requires leave to do so.[1] On that issue one must examine the proceedings at first instance to see whether there is a reasonably arguable case of error, which, if not corrected, will cause substantial injustice to the applicant[2], or a question of general importance upon which further argument and an appellate decision would be to the public advantage.[3]
[1] Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The issues at first instance have to be gleaned from pleadings which (in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCATA 218
Decision Date: 31 October 2012

CaseChat Overview and Summary

The case of Salmond v S & S Accounting Services Pty Ltd involved a client who brought a complaint against the accountants, S & S Accounting Services, to the Queensland Civil and Administrative Tribunal (QCAT). The client, who was unrepresented, alleged that the accountants had failed to provide adequate accounting services and had been negligent in their performance. The tribunal found in favour of the accountants, but the client sought leave to appeal that decision. The appeal was centred on whether the tribunal had properly exercised its investigative function under the relevant legislation, whether it had considered all relevant evidence, and whether it had disregarded any issues. The court was required to decide whether the tribunal's decision should be overturned and the matter reheard.

In determining the appeal, the court examined the tribunal's approach to its investigative function. The tribunal was required to actively seek out and consider all relevant evidence and issues before making its decision. However, the court found that the tribunal had failed to properly exercise its investigative function, and had ignored some relevant evidence and issues. The tribunal had not adequately addressed the client's complaint that the accountants had not provided quarterly statements of account, as required by the retainer agreement. The tribunal had also failed to properly consider the apparent conflict between the client's evidence that the accountants had not completed her accounting work in a timely manner, and the accountants' evidence that the delay was due to a lack of information from the client. The court found that the tribunal's failure to properly exercise its investigative function had resulted in a decision that was not properly informed by all relevant evidence and issues.

As a result of the tribunal's failure to properly exercise its investigative function, the court granted the client's application for leave to appeal and set aside the tribunal's decision. The matter was remitted for rehearing before another adjudicator, who would be required to properly exercise the tribunal's investigative function and consider all relevant evidence and issues. The court's decision highlights the importance of tribunals properly exercising their investigative function, and the consequences that can flow from a failure to do so.

Orders

Orders of the court

1 The application for leave to appeal is granted.

2 The orders made on 13 March 2012 are set aside.

3 This matter is remitted for rehearing before another adjudicator.

Background

Background to the litigation

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Evidence

Evidence Before The Court

That passage does not appear in the written decision, but that document contains this comment: The reason for the delay is unclear but there is no evidence that the [client] had sought the documents or complained. [emphasis added]However, in her Response the client asserted: Business had folded and closed by 2004/05. Up until then, despite numerous inquiries, none of my accountancy work/tax returns had been done, as they were too busy!And in her evidence:I used to ring and ask had they had time to put it into system [sic] because I knew it was a big job and it was never ... they hadn’t had time to get to it in Biloela [branch office]. I got sick of contacting, by that time the business was winding up.An investigative Tribunal might well have drawn this apparent conflict to the attention of the parties. In the event, the client’s evidence was ignored, and the conflict was not resolved. The decision says very little about the client’s undisputed complaint, both in her Response and oral evidence, that the accountants did not send her quarterly statements of account, as the retainer stipulated. The possible implications of that omission for her allegation of negligent non-performance invited some inquiry. However, Mr Swaffield was not called upon to make a response to that complaint, nor did he volunteer one, although in the accountants’ submissions on appeal they assert that it was “not tenable” [sic] to do so. The electronic (but not the written) record of the decision states: “It would appear that much of the work was done late in the piece”. However, further and better particulars of the invoice of July 2008 show that work to the value of at least $1,030 was done in July-September 2004 and $920 worth in October-December 2004. The retainer required quarterly statements for any work in excess of $300. It may have assisted the client to know before July 2008 how her bill was accumulating. In the course of the oral evidence, the Member asked Swaffield why it “[took] five years from 2003 to 2008 to get the work done ... Five years sounds an awfully long time.” Swaffield did not then refer to inadequate or tardy instructions, but answered obliquely: A lot of it is – we’re talking about a business here ... We’re talking about information, too, that was going back to 1997, which is always a bit harder to collate ... In the original stuff, yes, the majority of it was there. It wasn’t until I think that letter you’ve got there [23 May 2007] that we extracted the rest of it ... to finish it off. Whatever the final decision may have been, the prima facie evidence of the accountants’ masterly inactivity was clearly relevant to the client’s allegation of negligent non-performance, calling for a close, proactive investigation. In the electronic version of the decision (only) the Member observed: “I do not know that I would personally use the accounting services of the ... [sentence unfinished]”, but ultimately the references to the accountants’ glacial progress were bland: The [accountants] after some delay prepared and forwarded income tax returns. The reason for the delay is not clear ... (written version)[I]t took some time to provide those services and indeed the reason for that remains somewhat obscure. It may be the case – and I suspect that it is the case – that the [accountants could have been more proactive in pursuing the preparation of the documents, but it appears also that more information was perhaps required from the [client]. (electronic version)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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