SBM Management Services Pty Ltd v AGPR Pty Ltd
[2013] QCATA 318
•5 November 2013
| CITATION: | SBM Management Services Pty Ltd v AGPR Pty Ltd [2013] QCATA 318 |
| PARTIES: | SBM Management Services Pty Ltd (Applicant/Appellant) |
| v | |
| AGPR Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL315 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 5 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
SBM Management Services Pty Ltd runs a medical practice in Brisbane. AGPR Pty Ltd is an employment agent for medical staff. SBM asked AGPR to provide, and it did provide, a new doctor for the practice. AGPR invoiced SBM $12,100 but SBM only paid $4,300. SBM claimed that AGPR did not provide the service under the agreement because it did not vet the new doctor and the new doctor was unsuitable. AGPR filed a claim for the balance, $7,800. A Member of the tribunal ordered SBM pay AGPR.
SBM wants to appeal that decision. It says that the learned Member did not deal with its claim that AGPR engaged in misleading and deceptive conduct. It disputes the learned Member’s findings of fact. It says that the learned Member failed to take into account a payment of $1,100 when he was calculating the amount owing.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]Cachia v Grech [2009] NSWCA 232 at 2.
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
SBM’s submissions about misleading and deceptive conduct are not helpful. It says that AGPR withheld vital information but it does not detail the information that was withheld, when it was withheld or how that information was misleading and deceptive. The learned Member invited SBM to expand on the submissions, or provide evidence[5] but the invitation was declined.
[5]Transcript page 1-11, lines 29-30.
SBM has filed fresh evidence with its application for leave to appeal which, it says, goes to the issue of misleading and deceptive conduct. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[6]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could SBM have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[7]
[6]QCAT Act ss 137 and 138.
[7]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. SBM has provided no explanation as to why this material was not available earlier.
The fresh material states what other entities consider when recruiting. It is not evidence of what AGPR considered nor is it evidence of what SBM understood AGPR’s role to be. Therefore, the evidence does not have an important impact on the case. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Member
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[8] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[9] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[10]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[9]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[10]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
SBM had used AGPR in the past to recruit doctors. SBM was aware of the terms of the recruitment and the fees charged for that service. AGPR provided a doctor as requested. The doctor stayed in the practice for at least three months, so that AGPR was entitled to its full fee.
In its submissions to the learned Member, SBM relied on s 61 of the Australian Consumer Law. SBM is not a consumer because AGPR’s services were not of a kind ordinarily acquired for personal, domestic or household use[11].
[11]Australian Consumer Law s 3(3).
I have read the file carefully. SBM’s submissions revisit its submissions before the learned Member. They do not show any error in the learned Member’s decision. The evidence supports the learned Member’s conclusions and I can find no compelling reason to come to a different view.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Member was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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