Thomas v The Agency.Blue

Case [2018] QCATA 43
CITATION: Thomas v The Agency.Blue  [2018] QCATA 43
PARTIES: ALAN THOMAS
(Applicant/Appellant)
v

THE AGENCY.BLUE
(Respondent)
APPLICATION NUMBER: APL157-17
MATTER TYPE: Application and Appeals
HEARING DATE: On the papers
HEARD AT: Brisbane
DECISION OF: Justice Carmody
DELIVERED ON: 29 March 2018
DELIVERED AT: Brisbane
ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1.     The application to stay a decision is refused. 

2.     Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  – where the respondent provided website and social media services to the applicant – whether the application for leave to appeal was filed in time – where the parties dispute the formation and terms of the alleged contract – where the applicant claims errors of law and fact – whether leave to appeal is justified – where leave is refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 121, 122, 143, 145

Bienstein v Bienstein [2003] HCA 7

Cachia v Grech [2009] NSWCA 232

Calypso Fisheries Pty Ltd v Chief Executive of Department of Employment, Economic Development & Innovation [2011] QCATA 24
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

QUYD Pty Ltd v Marvass Pty Ltd

[2009] 1 Qd R 41

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. The applicant is seeking leave to appeal a tribunal decision ordering him to pay six overdue monthly invoices of $800 between 13 January and 8 June 2016 for adventure tourism marketing.

  2. There is also an additional amount of $752.40 to reimburse the respondent for the cost of subscription to the online booking system, Rezdy, paid on the applicant’s behalf (see invoice dated 31/7/2016).

    The contract

  3. The Agency.Blue is an online marketing and website design business in North Queensland. Paul Toogood is the registered owner.

  4. The applicant Allan Thomas is a destination tourism retailer trading as Wildside Adventures.

  5. The respondent claims to have provided social media and website services to the applicant in 2016 on agreed terms. On his case there was an agreement with the applicant initially for 3 months, to continue for 6 months if not cancelled earlier, at the rate of $200 per week discounted from $350 payable on monthly invoices. 

  6. He explains in his filed material that:

    In December 2015, Allan Thomas of Wildside Adventures agreed to a contract for the provision of Website and Social Media Package.  The agreed contracted and discounted rate was $800 per month.  We were provided log ins to the website, added us as Administrators to Wildside Facebook Page and Managers to Wildside Google+ page in January 2016.  Every month the work was completed as specified on the contracted terms and posts were made daily on Facebook, Google+, Twitter and then Instagram.  We had [sic] was to remove negative feedback.  Special Graphics were created for Wildside.  Allan Thomas shared a lot of…

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AGLC
Thomas v The Agency.Blue [2018] QCATA 43
Case
[2018] QCATA 43
Decision Date

CaseChat Overview and Summary

Thomas v The Agency.Blue was a case heard by the Queensland Civil and Administrative Tribunal (QCAT), where the applicant, Thomas, sought leave to appeal against the tribunal's decision that he was liable to pay The Agency.Blue for website and social media services rendered. The primary dispute centred around the formation and terms of the alleged contract between the parties. Thomas argued that the tribunal had erred in law and fact by concluding that there was a binding contract and that he owed The Agency.Blue $6640.90.

The legal issues before the court were whether the application for leave to appeal was filed in time, whether the tribunal had erred in law or fact, and if leave to appeal was justified. The court had to consider the applicant’s claims of errors in the tribunal’s decision, the credibility and relevance of the fresh evidence presented, and whether the late filing of the appeal application and evidence could be excused.

The court held that the application for leave to appeal was filed within the required timeframe. However, it found that the applicant had not demonstrated sufficient grounds to justify leave to appeal. The tribunal’s decision was not vitiated by errors that would substantially prejudice the applicant if not corrected. The fresh evidence presented, such as affidavits and a letter, was either not new or contained misleading information. The applicant’s claims of inadequate consideration and unjust enrichment were also dismissed as they did not address the nature of the contract or the services provided. The court concluded that the applicant had not provided credible evidence capable of producing a different outcome and there was no substantial injustice to be righted.

Therefore, the tribunal refused the application for leave to appeal and the stay of decision. The appeal tribunal orders that the application to stay a decision is refused and leave to appeal is refused.

Orders

Orders of the court

THE APPEAL TRIBUNAL ORDERS THAT:

1. The application to stay a decision is refused.

2. Leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appeal tribunal does not accept the applicant’s submission that the tribunal contradicted itself by holding that the document was not a contract but used it to form the basis of its decision. Its use was permissible and perfectly rational.The fresh evidence ground The applicant contends that “with the additional evidence” he has “more than a reasonable chance of success” and there is a “reasonably arguable case that the primary decision maker made an error”. The discovery of fresh evidence after a hearing may justify leave if it is credible and, if accepted, capable of producing the opposite outcome. The remedy is an appeal by way of rehearing or remittal to the tribunal for reconsideration. However, as pointed out in Goldsmith & Anor v AMP Life Ltd:[24]… leave to appeal by way of rehearing on additional evidence is ordinarily granted only in those relatively rare cases where there is, at least, a better than arguable case of vitiating defect or error as well as a demonstrable substantial injustice to be righted and no personal default on the applicants’ part.[24][2016] QCATA 162 [3]. At [4] of his 14 November 2017 submissions the applicant says:a.The additional evidence of Stephen Hicks, Linda Weiss and the letter from Rezdy enables the court to make the correct decision.i.The affidavit of Stephen Hicks who was a witness to the conversation between Allan Thomas and Paul Toogood (The Agency) provides three appeals. (Annex 1).1.He can confirm that Allan only offered Paul an agreement on a commission basis.2.He provides evidence that commission style payment is the how Allan operates his business as he is not in a positon to pay any wages. This is consistent with the terms that Allan offered Paul Toogood.3.At no stage during the discussion did Paul discuss or provide any terms of his offer.ii.The affidavit of Linda Weiss gives evidence of the terms Allan had agreed to that of a commission based offer to Paul.1. The failure of Paul Toogood to manage the Rezdy booking system.2. Paul Toogood’s failure to adhere to the terms in the ‘brochure’ which goes to the heart of Paul Toogood’s behaviour. Either he has breached his own contract or he has breached Australian Consumer Law (Cth) s 18 (ACL) by his misleading behaviour.iii.The letter from Rezdy points out the mismanagement of Paul Toogood, the Rezdy online booking system was not operational for 4 months.iv. Had the tribunal had access to this additional evidence they would have made a decision in favour of Allan and as such the tribunal has made an error.v. With the addition of the new evidence the balance of probabilities test is satisfied. (Briginshaw v Briginshaw (1938) 60 CLR 336). As to the new material the respondent says:·the applicant had an opportunity for a fair hearing before the magistrate and has failed to take any opportunity to advance his appeal within the time limits;·the applicant has essentially sought to re-argue the matter because he was not happy with a decision being made against him and has provided new material that was not provided during the hearing of the matter on 9 March 2017;·the applicant has not made an application for permission to file new material in this matter and no permission was granted;·the new material contains 2 new affidavits (Linda Weiss and Stephen Hicks) and a letter purporting to be from Rezdy dated 13 November 2017;·all of the new material was information that was available to the applicant to be provided during the hearing on 9 March 2017. The applicant chose not to produce this evidence for the hearing and must be restrained from doing so now;·the respondent objects strongly to the applicant being permitted to provide any further evidence, which is not new or fresh in any event.Affidavit of Linda Weiss:·in any event the ‘fresh evidence’ provided to QCAT for this appeal was evidence that was available at the time of the hearing on 9 March 2017;·the affidavit of Linda Weiss contains false and misleading information that is entirely disputed at paragraphs 5, 6, 11, 12, 13, 15 and 21;·the affidavit of Linda Weiss confirms that Allan Thomas did not want to or have the means to pay for Rezdy booking system. The evidence supports the decision of the magistrate that Allan Thomas wanted Paul Toogood to use his credit card to pay for the Rezdy booking system;·the affidavit of Linda Weiss was made 2 years after the alleged events and made with the benefit of having read all the material filed in this matter;·the affidavit appears unsurprisingly to be tailored specifically to provide an obvious benefit to Mr Thomas, however, it does not provide any evidence to support the applicant’s claims for a commission-based contract for agreement;·the affidavit of Linda Weiss 13 November 2017 does not confirm the applicant’s statements that Paul Toogood was retained on a commission basis. Paragraph 12 confirms the decision of the magistrate on 9 March 2017 that there was money owning for the work performed;·Linda Weiss’ affidavit is pre-occupied in trying to convince the court that she is a superior social media marketing manager and website designer when this is irrelevant to the application for leave to appeal.Affidavit of Stephen Hicks:·Stephen Hicks is employed by Mr Thomas and has a reason to provide a false statement in this matter;·in any event the “fresh evidence” provided to QCAT for this appeal was evidence that was available at the time of the hearing on 9 March 2017. Indeed the “witness” Stephen Hicks states he was working for Mr Thomas at the time of the hearing at Tully QCAT on 9 March 2017 and available to provide an affidavit or attend QCAT on that date to provide oral evidence to assist Mr Thomas. He did not do so;·the affidavit of Stephen Hicks contains deliberately false and misleading information that is entirely disputed at paragraphs 1, 2, 3, 5, 6 (partial), and 7;·the affidavit of Stephen Hicks was made 2 years after the alleged events and made with the benefit of having read all the material filed in this matter.Rezdy letter:·it is not fresh evidence and could have been provided to the court and as such should not be accepted for the appeal. Mr Thomas did give oral evidence about Rezdy to the court which the court found conflicted with his sworn/written evidence;·in addition, Mr Thomas could have provided evidence from Rezdy which supports his false statement that Paul Toogood setup the account.

Decision

Reasons for decision

The order is vulnerable on appeal only if it is vitiated by some error which would be substantially unjust to the applicant if not corrected. Dissatisfaction of the losing party is, of course, necessary but not nearly enough.Stay of decision The applicant applied on 16 February 2018 for a stay of the decision in issue for 3 months following the issue of an enforcement warrant for the sale and seizure of his property (a Toyota Coaster bus). The applicant claims that the bus is essential to his business operations and used to transport clients for rafting tours. The loss of this asset, so he says, means that the business would not be able to continue and his employees would find themselves suddenly unemployed. There is no evidence provided about alternative transport options or other assets of the business that support his contentions. There was no copy of the warrant attached and it is unclear if the applicant has notified the respondent of the application. One of the stated grounds is that there is an appeal on foot. However, the operation of the tribunal’s decision is not affected by the appeal[2] but the tribunal has an unfettered discretion to stay enforcement pending the finalisation of the appeal.[3] [2]QCAT Act s 145(1). [3]QCAT Act s 145(2). The applicant carries the onus of demonstrating good reasons for depriving the victor the fruits of its success. The application has been filed when the determination of the appeal was well underway and any decision to stay the original order will shortly be superseded by the appeal tribunal’s decision. As these reasons will show, insufficient doubts about the correctness of the decision have been raised to justify a stay, especially at this late stage. The fundamental justification for a stay of prima facie regular orders is to preserve the status quo so that the appeal decision can be given full effect. Relevant considerations are whether refusal would render success on appeal nugatory and if granting the stay is more consistent with achieving the tribunal’s objects than refusing it. The natural consequences of a regular standing tribunal order, such as enforcement action, do not generally establish detriment. Stay requests hinge on the balance of convenience and the relative strengths of the parties overall rights and interests. Arguably the applicants would be irretrievably prejudiced if the appeal tribunal decides to set aside the order and the bus is returned after the business has collapsed. However, because of the lateness of the application, the insufficient evidence, and, as these reasons show, insufficient doubts about the correctness of the decision, the stay is refused in my discretion.Extension of time A preliminary appeal issue to be decided is whether the applicant has filed his appeal in time. The tribunal heard and decided the matter on 9 March 2017. The application for leave to appeal and appeal was filed on 16 May 2017 and received in Brisbane on 19 May 2017. The applicant has 28 days after the ‘relevant day’ to file an appeal.[4] The ‘relevant day’ is either the day the applicant received notice of the decision being appealed against (if written reasons have not been given and have not been requested under s 122) or the day the applicant was given written reasons for the decision being appealed against.[5][4]QCAT Act s 143(4). [5]QCAT Act s 143(5).

Ratio Decidendi

Legal Principle Established

Self-serving hearsay statements by untested partisan witnesses generally carry little weight even if they corroborate the applicant’s honest belief. Neither of the proposed affidavits address the issue of how the applicant’s commission-based agreement was intended to work but, if they had been called at the hearing, may have eroded the tribunal’s confidence in the respondent’s credit.The inadequate consideration ground The applicant says that the $6640.90 cost is excessive for the benefit of 4 online bookings in 6 months and that the consideration provided by the respondent for his promise to pay was inadequate. The applicant again seeks to rely on the Weiss affidavit, who has since taken over the website and online bookings for the applicant’s business. She states that she was able to secure 42 direct online bookings in the 6 months after she took over from the respondent, using a cheaper online booking system, and that nowhere near the “guaranteed outcomes” (outlined in the “Digital Content Management Plan”) were achieved.[30] Outcomes include increased bookings, exposure and presence on social media, brand awareness, and website traffic, as well as 1000 likes on your business’ Facebook and 1000 followers on Google+ and Twitter business pages.[30]Although it is noted that the applicant’s original submissions state the Linda Weiss achieved 200 bookings in the 6 months after she took over from the respondent. It would be unrealistic to expect performance of the contract to be solely measured against online bookings. The tribunal clearly accepted other evidence, such as Facebook posts and other content creation and the removal of negative feedback, etc. as evidence that the respondent had upheld his end of the bargain. Legal liability for an obligation is not dependent on successful outcomes. Purchasers cannot renounce promises to pay for a service provided as agreed just because they made a bad bargain. The unjust enrichment ground The applicant says that the order to pay the respondent $6640.90 in return for 4 online bookings is unconscionable. Similar problems as with the “inadequate consideration” ground apply. While 4 bookings is not a fantastic outcome for the amount the respondent claims, the applicant was not just paying for bookings, but rather for an increased online presence and brand awareness. Other alleged errors of fact The applicant alleges a number of errors of fact including wrongly or irrationally inferring a concluded contract from the unsigned offer document and ignoring or overlooking tell-tale pieces of evidence that contradicted the respondent’s claims: ·the failure to meet “guaranteed outcomes”;·the fact that monthly invoices cannot be paid in advance but the act of payment affirms the terms of the contract – indicating that the respondent should not have performed any work without upfront payment of fees;·the failure to mention the existence of an alleged contract in a multitude of emails – indicating the respondent’s belief in its existence was improbable;·that the Rezdy account was in the respondent’s name; and·that the maintenance of the Rezdy booking system was inconsistent with the commission-based agreement.