W & W Trading Pty Ltd v Harrison
[2011] QCATA 195
•19 July 2011
| CITATION: | W & W Trading Pty Ltd v Harrison [2011] QCATA 195 |
| PARTIES: | W & W Trading Pty Ltd t/as Vins Kitchens & Bathrooms (Applicant/Appellant) |
| v | |
| Rebecca Faye Harrison (Respondent) |
| APPLICATION NUMBER: | APL139-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 19 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where Ms Harrison worked as a salesperson for Vins Kitchens & Bathrooms (the trade name of W & W Trading Pty Ltd) and claimed that, when she left, Vins owed her commissions of $11,313 – where Ms Harrison brought proceedings in QCAT’s Minor Civil Disputes jurisdiction and a Magistrate accepted her evidence and awarded her the full amount of her claim – where Vins Kitchens now seeks leave to appeal that decision – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act2009, s 142 Chambers v Jobling (1986) 7 NSWLR 1, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Ms Harrison worked as a salesperson for Vins Kitchens & Bathrooms (the trade name of W & W Trading Pty Ltd) between March and October 2009 and claimed that, when she left, her employer owed her commissions of $11,313.
She brought proceedings in QCAT’s Minor Civil Disputes jurisdiction and the matter was heard and determined by a Magistrate, sitting as a QCAT Member, at Caloundra on 6 April 2011. The Magistrate accepted Ms Harrison’s evidence and awarded her the full amount of her claim.
Vins Kitchens now seeks leave to appeal that decision. Leave is necessary: QCAT s 142(3). By order of this Appeal Tribunal it was directed that the application for leave to appeal would be determined on the papers, with written submissions from the parties. Vins Kitchens has simply filed an affidavit from a Mr Wei who is, it appears, one of its directors or managers. Attached to that is a document apparently purported to be a schedule of commissions payable to Ms Harrison showing, the affidavit claims, that she was only entitled to $6,216.60.
The manner in which Ms Harrison’s commission was to be calculated, and Mr Wei’s allegations that she was not entitled to her full claim, were matters that were fully explored in the hearing before the learned Magistrate. Both Ms Harrison and Mr Wei gave evidence. He purported to produce documents showing that she had not earned or was not entitled to the full commission that she claimed, although his figures at the hearing suggested that he did accept that her entitlement was of the order of $7,598.20.
The learned Magistrate gave lengthy and careful reasons in which she explained why she preferred and accepted Ms Harrison’s evidence over that of Mr Wei. As the Magistrate observed in those reasons, Ms Harrison had prepared her case very carefully, whereas Mr Wei and his company had failed to produce documents and records to substantiate its claims that her entitlement to commission should be in a lesser amount.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[1]
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at
125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[2] 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.[3]
[2] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[3] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Nothing in the transcript of the evidence before the learned Magistrate suggests any obvious error in her process of reasoning. Really, Mr Wei is complaining that Ms Harrison’s evidence was accepted in preference to his. It is clear however that the Magistrate found her evidence more detailed and precise, and therefore more persuasive, than that of Mr Wei. The transcript confirms that a conclusion to that effect was reasonably open to the learned Magistrate.
[10] There is, then, no apparent error in the original decision, and no basis warranting the grant of leave to appeal. The application for leave is therefore dismissed.
0
3
0