Solar Energy Australia Group Pty Ltd v Bannink
[2013] QCATA 100
•27 March 2013
| CITATION: | Solar Energy Australia Group Pty Ltd v Bannink [2013] QCATA 100 |
| PARTIES: | Solar Energy Australia Group Pty Ltd (Applicant/Appellant) |
| v | |
| Willem Johan Bannink (Respondent) |
| APPLICATION NUMBER: | APL414-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 27 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the respondent claimed the applicant did not fully pay him for work he did under an agreement – where the respondent brought proceedings in the Tribunal for a debt or liquidated demand – where the Tribunal decided the claim was not for a liquidated amount and dismissed the claim – where the respondent sought leave to appeal that decision – where leave to appeal was granted and the matter was returned to the Tribunal for rehearing – where the Tribunal ordered the applicant to pay the respondent a fixed sum – where the applicant seeks leave to appeal that decision – whether the respondent’s claim was for a debt or liquidated demand – whether the applicant was denied natural justice and procedural fairness – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 12, 13, Schedule 3 Bannink v Solar Energy Group Pty Ltd [2012] QCATA 148, cited |
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
Mr Bannink says he undertook some work for Solar Energy Australia Group Pty Ltd, for which it has wrongly refused to pay him. He brought proceedings in the Minor Civil Disputes jurisdiction of the Queensland Civil and Administrative Tribunal (‘the Tribunal’) against that company and, also, the committee of an Italian school. Initially he claimed $20,478.77.
The matter came on for hearing before a Magistrate sitting as a Tribunal member in December 2011. The learned Magistrate decided Mr Bannink’s claim was not a dispute for a liquidated amount and the Tribunal therefore lacked jurisdiction, and dismissed the claim.
Mr Bannink subsequently appealed to the Appeals Tribunal and on 21 August 2012 he was granted leave to appeal, the decision of the learned Magistrate was set aside and the matter was returned to the Tribunal for rehearing.[1]
[1]Bannink v Solar Energy Group Pty Ltd [2012] QCATA 148.
The matter later came on before another Magistrate, also sitting as a Tribunal Member, at Maroochydore on 5 November 2012. The learned Magistrate heard evidence from Mr Bannink, Ms Gabrielle Mattachioni (a Director of Solar Energy) and a witness for Mr Bannink, a Mr Ian Shannon. Ultimately, the learned Magistrate did not allow all of Mr Bannink’s claim but reduced it to $8,000.00, and ordered that Solar Energy pay him that amount.
Solar Energy now seeks leave to appeal that decision. By direction, its application for leave to appeal and the appeal (if leave is grant) are to be determined on the papers. Both parties have filed and exchanged extensive written submissions.
Solar Energy has raised a number of grounds which it says entitle it both to a grant of leave, and success in its appeal. It says, firstly, that Mr Bannink’s claim was never for a ‘debt or liquidated demand of money’ and was not, therefore, a true minor civil dispute and the learned Magistrate lacked jurisdiction. It also says that there was no evidence evincing any intention, on the part of the company or Mr Bannink, to create legal relations sufficient for him to have a right to claim. Nor, the company submits, did he establish a proper basis for a claim in quantum meruit.
It is also alleged that Ms Mattachioni was denied natural justice and procedural fairness because the hearing was too short; and, that the learned Magistrate made factual errors of sufficient seriousness to negate her decision. It is also said that, in effect, the learned Magistrate failed to give adequate reasons for her decision.
The transcript of the proceedings before the learned Magistrate is 42 pages long and shows, with respect, that she struggled to understand Mr Bannink’s claim and Solar Energy’s response to it; to address the confusing and unclear evidence presented to her; and, to reach a decision which (as s 13 of the QCAT Act requires) she considered ‘… fair and equitable to the parties to the proceeding in order to resolve the dispute’.
The transcript shows that quite early in the proceedings the learned Magistrate dismissed Mr Bannink’s action against the Italian school committee. That seemed to be uncontentious. Nothing in Mr Bannink’s evidence suggested he had a case for payment from or by that committee.
A particular problem for the parties, and the learned Magistrate, was the absence of any writing which reliably recorded any agreement between the company and Mr Bannink, or set out the amount of payment to which he might be entitled.
Mr Bannink purported to rely upon documents which he said were minutes of meetings of directors of the company but, as the hearing went on, it became clear that his documents were in fact reconstructions of his, and his witness Mr Shannon’s, recollections of what happened at the meetings.
The learned Magistrate ultimately received two other versions of those minutes, all of which were different. An example of the difficulty engendered by those documents can be seen from the fact that at various points the different minutes identify a claim by Mr Bannink for remuneration for his work for, effectively, $60,000.00 per annum, or $8,500.00 per month, or $6,500.00 per month, or $4,000.00 per month. Mr Bannink himself contended for $6,500.00 per month, and was supported in that respect by Mr Shannon’s evidence.
An additional complication arose, however, on Mr Bannink’s own evidence. He said that at a meeting on 17 February 2011 it was agreed that he would be paid $6,500.00 per month plus his expenses payable, according to the minutes he produced, ‘as from now’, with payment to commence on 7 March 2011 ‘onwards’. Mr Bannink also said, however, that this agreement ‘fell in a heap’ within a week. At page 8 of the transcript he is recorded as agreeing with the learned Magistrate that, in light of that evidence, he did not appear to have a legitimate claim for more than $6,500.00, and only for the first month. The balance of his claim, which he said then amounted to $13,978.77, was comprised of expenses (car and petrol expenses) of $7,478.77.
At the conclusion of the hearing the learned Magistrate gave short reasons for her decision. She said that she accepted that Mr Bannink had done some work for the company and had been ‘involved’ in it. She concluded that Mr Bannink had in fact done ‘… a great deal of work, it seems, for the company, for which he has not been paid any money’. She referred back to the evidence from Ms Mattachioni that the company had only agreed to pay him $4,000.00 per month and, also, to Mr Bannink’s (and Mr Shannon’s) evidence that the true figure was $6,500.00. She rejected that evidence on the grounds that Mr Shannon and Mr Bannink had, in effect, colluded in their evidence and had drawn up minutes to suit Mr Bannink’s purposes. Ultimately, she awarded Mr Bannink $4,000.00 as ‘some remuneration for the work that he did’ and $4,000.00 for out-of-pocket expenses.
There are, with respect, several difficulties with the decision. First, the transcript records that the learned Magistrate initially said she would award Mr Bannink $5,000.00 – not $4,000.00 – for his claim for remuneration but, shortly afterwards, apparently reduced that to $4,000.00 without explanation.[2] Secondly, there is nothing in the reasons revealing the basis upon which $4,000.00 was allowed for expenses.
[2]Transcript of Proceedings, 5 November 2012, page 42.
The difference between the figures of $5,000.00, and $4,000.00 for Mr Bannink’s claim for remuneration (both figures being uttered by the learned Magistrate within a short period of time as she delivered oral reasons for her decision) is regrettable, but the figure of $4,000.00 ultimately allowed does not sit uncomfortably with her decision to reject the claims of Mr Bannink and Mr Shannon that the correct figure was $6,500.00, and to apparently accept Ms Mattachioni’s evidence that it was $4,000.00. Allowing it for a period of only one month is, also, not inconsistent with the evidence from all three witnesses that, whatever the terms of the agreement, it ‘fell over’ very quickly.
The award of $4,000.00 for out-of-pocket expenses is also not inconsistent with what the learned Magistrate said in the course of giving her reasons – that, in effect, she did not accept Mr Mattachioni’s evidence that out-of-pocket expenses were to be ‘pro bono’, and her expressed preference for Mr Bannink’s evidence that he would be paid ‘… some moneys for expenses’; but, also, that in the nature of the evidence from the three witnesses and the confusion it created, it was appropriate for the Tribunal to reduce the amount of Mr Bannink’s claim to a figure which attempted to balance what the learned Magistrate said was an explanation (found in the minutes) that some (but not all) expenses might be borne by those associated with the company during its initial stages.
Once these things are appreciated it cannot be said that the learned Magistrate’s reasons, while terse, are inadequate or insufficient. In the nature of these minor civil disputes in which Magistrates and Tribunal Adjudicators work under considerable pressure, the Member is compelled to attempt to give reasons that are necessarily pithy but also, of course, adequate. Those adjectives fairly, with respect, describe the learned Magistrate’s reasons here.
Nor is there any corroboration, in the transcript, for Solar Energy’s claims that Ms Mattachioni was not given a fair hearing, or afforded procedural fairness. The transcript shows the hearing lasted for what is, in this jurisdiction, quite a long time – 1 hour 49 minutes. It also shows that Ms Mattachioni was allowed ample opportunity to present her case and, indeed, that the learned Magistrate extended considerable leeway to her in permitting her, for example, to interrupt other witnesses from time to time. It is compelling that she was allowed sufficient opportunity to produce documents upon which she relied, and to present her arguments; and, that the learned Magistrate took pains to ensure that she was able to make any submission she wished, and to fully ventilate her (and Solar Energy’s) position.
Nor is the contention that there was no evidence of anything from which it might reasonably be found that the parties established a legal relationship, entitling Mr Bannink to payment, sustainable. Despite the confusion springing from the different versions of the minutes, the learned Magistrate had sufficient evidence before her to find (as she did) that they constituted a sufficient record of an agreement on the company’s behalf to make payments to Mr Bannink, both by way of remuneration and reimbursement of expenses.
As the learned Magistrate properly observed in her reasons[3] Ms Mattachioni, as (it appears) the actual sole director of the company had a responsibility to ensure that minutes of meetings were properly kept and recorded and, by inference, she cannot fairly complain if adverse findings are made in circumstances where she had it within her own power to ensure an accurate, verified record.
[3]Transcript of Proceedings, 5 November 2012, page 42.
The only other contention from Solar Energy which must be considered is the allegation that Mr Bannink’s claim was not for a debt or liquidated demand. The Tribunal only had jurisdiction if his claim could be categorised in that way.[4]
[4]QCAT Act, s 12; Schedule 3, definition of ‘minor civil dispute’.
A claim is liquidated when the sum sought is ascertained or capable of being ascertained by calculation through the use of a formula.[5] The learned Magistrate’s reasons show, again with respect, that she had grounds for finding that Mr Bannink’s claim for remuneration for a month was ‘ascertained’ by reference to minutes produced by Ms Mattachioni. By inference, the claim for expenses of $7,478.77 was accepted by the learned Magistrate as capable of ascertainment.
[5]Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 at 142.
Ms Mattachioni’s evidence was to the sole affect that there was no agreement to pay expenses and that they were to be borne by Mr Bannink – again, ‘pro bono’. It was not inconsistent with the evidence for the learned Magistrate to find, as it may reasonably be inferred she did, that Mr Bannink had established an entitlement to a claim for his out-of-pocket expenses – but, also, that his full claim should not be allowed in light of a measure of uncertainty, thrown up by the evidence, about when he would be paid them. The learned Magistrate said:[6]
He should be paid some moneys for expenses, but I am of the view that, as is always the case with start-up companies, that a fair bit of pro bono work is done by various people involved in the company in the hope that when the company is successful they are able to reap the rewards for their past endeavours.
[6]Transcript of Proceedings, 5 November 2012, page 42.
While the sum arrived at has, with respect, no mathematical precision, it can fairly be seen to reflect a conclusion by the learned Magistrate, in the face of this evidence, that she should attempt to settle upon a figure which is ‘fair and equitable of the parties to the proceeding’, as s 13 of the QCAT Act requires.
In the hurly-burly of the Minor Civil Disputes jurisdiction and the 16,000 cases which come to them in this area each year, Magistrates and Tribunal Adjudicators are required to exercise a measure of fairness, equity and commonsense in resolving disputes between citizens.
It cannot be said that the learned Magistrate’s decision on this aspect of the claim is incapable of reflecting, or discordant with, the challenges presented to her by the messy, and confusing evidence.
There are well settled principles for deciding whether leave to appeal should be granted.[7] For minor civil disputes there is no appeal as of right. [8] The requirement that an appeal against the decisions of the Tribunal in its Minor Civil Dispute jurisdiction may be made only once the party has obtained the Appeal Tribunal’s leave implies that those decisions are meant to be final.
[7]See [14] of the reasons for this decision.
[8]QCAT Act s 142(3)(b).
For the above reasons it is suitable to repeat the oft cited statement of Jordan CJ in In re the Will of F B Gilbert (dec’d)[9]:
[I]f a tight rein were not kept upon interference with the orders of judges of first instance the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably and costs heaped up indefinitely…[10]
[9](1946) 46 SR (NSW) 318.
[10]Ibid 323.
It would be disastrous to the proper administration of justice in the Tribunal if the application for leave was not argued as a preliminary before an appeal of a minor civil dispute decision. It follows that for leave to appeal to be granted not only must there be an error in the primary decision, but the decision must work a substantial injustice to one of the parties.[11] For the reasons already given, neither is apparent here. Leave to appeal must be refused.
[11]Cachia v Grech [2009] NSWCA 232 at [13].
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