Suncoast Cabs Ltd v Brown

Case [2020] QCATA 176

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Suncoast Cabs Ltd v Brown [2020] QCATA 176
PARTIES: SUNCOAST CABS LTD

(Applicant)

v
GARY ALWYN BROWN

(Respondent)

APPLICATION NO:

APL189-19

ORIGINATING APPLICATION NO:

MCD067-19 Maroochydore

MATTER TYPE:

Appeals

DELIVERED ON:

30 November 2020

HEARING DATE:

2 March 2020

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes,  Member
ORDERS:

The application for leave to appeal is dismissed. 

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – franchise agreement – taxi service – minor civil dispute – periodic payments by taxi operator to applicant company – whether payments in advance or arrears – whether Applicant compliant with Rule 81 – whether additional evidence should be admitted – whether onus of proof reversed - whether evidence capable of supporting decision – whether decision based on irrelevant material – whether due process observed – whether action statute barred – no appellable error – application for leave dismissed

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) reg 81
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; [2014] NSWCA 6
Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462

Devries v Australian National Railways Commission (1993) 177 CLR 472

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 66

Eichsteadt v Lahrs [1960] Qd R 467

Fox v Percy (2003) 214 CLR 118
Franklin & Ors v Burleigh Town Village Pty Ltd [2014] QCATA 183
Holland v The Queen (2005) 154 A Crim R 376
Jane v Bob Jane Corporation Pty Ltd & Anor [2013] VCS 406
JFM v QFG and KG [1998] QCA 228

Maronai v Burns [2011] WASCA 165

Purkess v Crittenden (1965) 114 CLR 164

R v Erasmus [2006] QCA 245

Sheldon v Sun Alliance Ltd (1989) 53 SASR 97

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

Toula Holdings Pty Ltd & Ors v Morgo’s Leisure Pty Ltd & Ors [2014] QCA 201
Wheatley v Bower & Ors [2001] WASCA 293

APPEARANCES & REPRESENTATION:

Appellant: Mr B King, solicitor of Butler McDermott, lawyers, Nambour

Respondent: The Respondent appeared in person.

REASONS FOR DECISION

  1. From 1995 to mid-2017 (`the period’) the respondent Gary Alwyn Brown (`Brown’) operated a taxi service on the Sunshine Coast in association with the Applicant Suncoast Cabs Ltd (`Suncoast’).

  2. At all material times Suncoast held a service contract with the Queensland Department of Transport and Main Roads, pursuant to the Transport Operations (Passenger Transport) Act 1994 (Qld), and under that legislation Brown’s business was affiliated to Suncoast.

    Advance payments? Verdict for claimant

  3. Brown alleges that throughout the period, up to and including June 2017 he made monthly payments in advance to Suncoast for its services, which included its electronic booking system.

  4. Suncoast denies that allegation and says that after 2011, Brown’s monthly payments were…

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Details
AGLC
Suncoast Cabs Ltd v Brown [2020] QCATA 176
Case
[2020] QCATA 176
Decision Date

CaseChat Overview and Summary

In the case of Suncoast Cabs Ltd v Brown, the primary issue was whether the taxi operator had made payments to the applicant company in advance or in arrears. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The applicant, Suncoast Cabs Ltd, sought leave to appeal the QCAT's decision, which ruled that the payments were made in arrears. The applicant argued that the QCAT erred in its decision by admitting irrelevant evidence, not observing due process, and making findings based on irrelevant material.

The court examined the applicant's arguments and found that the QCAT's decision was within its prerogative as the trial judge. The court held that an application for leave to appeal is not an opportunity to reopen the trial or to second-guess the primary judge's findings of fact. The court also found that the applicant's request to allow additional evidence had already been dismissed as it was not "fresh" evidence in the requisite sense. The evidence in question, assuming that it existed, could and should have been adduced at the trial.

The court concluded that there was no appellable error in the QCAT's decision and dismissed the application for leave to appeal. The court held that the decision was within the prerogative of the primary as the trial judge and that the applicant's arguments did not amount to an error of law. The court found that the decision was based on rational support in the evidence and that the QCAT had observed due process. The court also found that the applicant's claim was not statute-barred as it was well within the six years allowed for commencing actions of this kind.

The final orders of the court were that the application for leave to appeal was dismissed. The court held that the QCAT's decision was within its prerogative as the trial judge and that there was no appellable error in the decision. The court found that the applicant's arguments did not amount to an error of law and that the decision was based on rational support in the evidence. The court also held that the applicant's claim was not statute-barred and that the QCAT had observed due process.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

An application for leave to appeal is not an opportunity to reopen the trial, or to `second guess’ the primary judge’s findings of fact and credit. That is his province.[22] It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will rarely be disturbed if they have rational support in the evidence, even if another rational view is available.[23] Where reasonable minds may differ, a decision cannot be called erroneous simply because one conclusion is preferred to another possible view.[22]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.[23]Fox v Percy (2003) 214 CLR 118 at 125-126; JFM v QFG and KG [1998] QCA 228 at 21 per Pincus JA; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; followed in Toula Holdings Pty Ltd & Ors v Morgo’s Leisure Pty Ltd & Ors [2014] QCA 201 at [108]-[109].`Fresh’ evidence excluded The Applicant’s request to allow additional evidence has already been dismissed. It is not `fresh’ evidence in the requisite sense.[24] The evidence in question, assuming that it existed, could and should have been adduced at the trial. Ms Bhola admits that she was warned at mediation `that we’ll have to submit all we have’.[25] That advice is enshrined in the Tribunal’s rules.[26][24]Holland v The Queen (2005) 154 A Crim R 376; R v Erasmus [2006] QCA 245 (leave refused in each case); Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404.[25]T page 29 line 15.[26]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 81(2): `[A]ll parties to the proceeding must make all relevant documents available at the hearing of the proceeding.’ The Respondent’s MCD application described his case in considerable detail, as the Adjudicator noted.[27] It foreshadowed Wockner’s appearance as a witness, as did the Applicant’s response.[28] It required no scintillating legal analysis, or vivid imagination, to anticipate the probable gist of his evidence, which cannot be described as a surprise. Not to put too fine a point on it, any difficulty that the Applicant had with Wockner’s evidence was due to signal absence of preparation. Repeatedly the Adjudicator, to the point of exasperation asked Ms Bholo for documents that were not produced:[29] MEMBER: Yes, but you’re arguing without any documentation at all.MS BHOLO: I know.[27]T page 7 line 17, page 22 lines 11-12.[28]Response filed 6 March 2019, annexure page 2.[29]T page 22 lines 10-14, 34-47; page 23 lines 1-2, 20-24; page 24 lines 20-43; page 28 lines 28-42; page 29 lines 5-20; page 35 line 42; page 36 lines 22-24; page 42 lines 41-44; page 47 line 26; page 48 lines 1-4; page 51 lines 44-45. It appears that each party approached the trial under the seriously mistaken impression that the criminal standard of proof applied. As the Adjudicator suggested,[30] this idea may have led the Applicant to adopt an unduly casual approach to the hearing. The Applicant now seeks an opportunity to repair a failure of research. But as Thomas QC, Judicial Member observed[31]:If parties were allowed to continue to submit material following the conclusion of the oral hearing, procedural fairness would dictate that the other party have the opportunity to respond – hearings might never come to an end – the tribunal is entitled to control its own procedures and make directions for the efficient disposal of the matter.[30]T page 24 line 12.[31] Franklin & Ors v Burleigh Town Village Pty Ltd [2014] QCATA 183 at [95].

Decision

Reasons for decision

There is nothing in the limitation point. Brown’s claim was for moneys allegedly overpaid in June 2017, which is, of course, well within the six years allowed for commencing actions of this kind. Alternatively, if Brown’s claim were treated as an action for an account, then every monthly payment, if levied in advance, could support a new cause of action.[37] [37]Jane v Bob Jane Corporation Pty Ltd & Anor [2013] VCS 406 at [78] and, by implication Wheatley v Bower & Ors [2001] WASCA 293 at [124].Conclusion The Adjudicator was obliged to deal with evidence in quite an untidy state, but a retrial to improve it would be an unwarranted extravagance. The decision was within the prerogative of the primary as trial judge. I discern no error of law in his reasons or conduct of the case. Leave to appeal will be refused.ORDERThe application for leave to appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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