Smith v Gleeson
[2014] QCATA 217
•4 August 2014
| CITATION: | Smith v Gleeson [2014] QCATA 217 |
| PARTIES: | Timothy James Smith (Applicant/Appellant) |
| v | |
| Paul Vincent Gleeson (Respondent) |
| APPLICATION NUMBER: | APL198-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 4 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where subpoena issued – where correspondence about the costs of complying with the subpoena – where invoice issued for costs of complying with subpoena – whether an agreement to pay the costs – whether intention to create legal relations – whether grounds for leave to appeal Smith v Hughes (1871) LR 6 QB 597 |
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
Mr Gleeson is Mr Smith’s ex-brother-in-law. In the course of the Smith’s Family Court proceedings, Mr Smith caused a subpoena to be issued to the Gleeson family. Mr Gleeson agreed to provide the information requested in the subpoena if Mr Smith paid the costs of that exercise. Mr Smith agreed, the information was provided and invoices rendered. Mr Smith did not pay Mr Gleeson’s costs of providing the information so Mr Gleeson filed a claim in the minor civil disputes jurisdiction of the tribunal. The tribunal ordered Mr Smith pay Mr Gleeson.
Mr Smith wants to appeal that decision. He says the learned Adjudicator erred in finding an agreement to meet Mr Gleeson’s costs. He says that, as the subpoena was not directed to Mr Gleeson personally, he should not be entitled to payment. Mr Smith says that Mr Gleeson’s claim was frivolous, vexatious and an abuse of process which the learned Adjudicator should have dismissed under s 47 of the QCAT Act. Mr Smith also wants the tribunal to refer Mr Gleeson to the relevant professional body.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.
Mr Smith submits that the learned Adjudicator had no evidence of an agreement between Mr Smith and Mr Gleeson because the subpoena was directed to the Gleeson group, not Mr Gleeson personally. Mr Smith raised this argument at the hearing and the learned Adjudicator found that there was an agreement between Mr Smith and Mr Gleeson personally.[3] The learned Adjudicator detailed the evidence that supported his view:
a) On 21 February 2012, Murdoch Lawyers, for Mr Gleeson, advised Hopgood Ganim, lawyers for Mr Smith, that Mr Gleeson had raised the issue of the costs of compliance with the subpoena and that they had been instructed to seek Mr Smith’s confirmation that he would cover the costs.
b) By letter of 22 February 2012, Hopgood Ganim asked Murdoch Lawyers to provide an estimate of costs as prepared by Mr Gleeson.
c) Murdoch Lawyers provided that estimate by letter dated 5 March 2012. It refers to Mr Gleeson’s estimate of his costs at $7,500.
d) By letter of 5 March 2012, Hopgood Ganim confirmed that Mr Smith would meet Mr Gleeson’s costs.
[3]Transcript page 1-19, line 5 to page 1-20 line 3.
Mr Smith submits that there cannot be an agreement to pay Mr Gleeson because the subpoena was not directed to Mr Gleeson personally, but to entities within the Gleeson group and Mr Gleeson provided his estimate of costs in a letter he signed as the managing director of a Gleeson company.
Mr Smith’s submissions seem to suggest that he was mistaken about the identity of the person with whom he contracted and, therefore, there was no agreement at all. A party’s intention is to be construed objectively, in the sense that a reasonable person would construe it.[4] The application of that test normally prevents a party from setting up a unilateral mistake as a defence to breach of contract. If a reasonable person would have construed the contract in a certain sense then, despite the mistake, the court generally finds that the mistaken person is bound[5].
[4]Smith v Hughes (1871) LR 6 QB 597.
[5]Smith v Hughes supra.
The evidence, objectively, can support the learned Adjudicator’s finding that Mr Smith agreed to pay Mr Gleeson’s costs of the Gleeson group complying with the subpoena. Mr Smith’s subjective views are, therefore, irrelevant.
Mr Smith also submits that there was no evidence of an intention to create legal relations. The basis for that submission is no different; that Mr Gleeson was not the proper party to the contract and Mr Smith did not intend to create a contract with Mr Gleeson. For the same reason, Mr Smith’s application for leave to appeal must fail. Viewing the evidence objectively, a reasonable person could conclude, as the learned Adjudicator concluded, that the parties did intend to create legal relations.
It follows, therefore, that Mr Gleeson’s claim was not an abuse of process. I can see no basis for referring Mr Gleeson to any professional body for sanction.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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