Egerton v Syddeck No3 Pty Ltd [2020] QCATA 20

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Egerton v Syddeck No3 Pty Ltd [2020] QCATA 20 PARTIES: WILLIAM EGERTON T/AS KOALA BLUE TOURS (appellant) V SYDDECK NO3 PTY LTD T/AS ROYAL LIMOUSINES (respondent) APPLICATION NO/S: APL254-18 ORIGINATING APPLICATION NO/S: MCDO450-18 (Southport) MATTER TYPE: Appeals DELIVERED ON: 11 February 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon ORDERS: 1. The application by William Egerton to put fresh evidence before the Appeal Tribunal in this appeal is refused. 2. Leave to appeal is refused. This means that the appeal fails. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where alleged error of fact is that the Adjudicator did not have all material before him – where material is given for the Appeal Tribunal to consider but which could not have altered the decision below, and which is not supported by any required submissions about availability – whether the material should be considered – whether any reasonably arguable grounds of appeal REPRESENTATION: Appellant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 4 -- 2 REASONS FOR DECISION William Egerton brings this appeal. He traded as Koala Blue Tours and provided buses to Syddeck No3 Pty Ltd trading as Royale Limousines on various dates. Mr Egerton brought a claim in the tribunal’s minor civil disputes jurisdiction against Syddeck. In the claim he said that he was owed some $23,380 on invoices which had not been paid. In particular there was one invoice, 9909 for $20,130, which was raised by Mr Egerton on the basis that he had agreed to provide buses on a number of days as required by Syddeck for transport during the Commonwealth Games. The dates and details of the buses required by Syddeck were set out in a spreadsheet given to Mr Egerton. As it turned out, Syddeck did not require the buses on those days after all. The question on invoice 9909 therefore was whether there was a binding contract that Mr Egerton would provide buses to Syddeck in accordance with the spreadsheet. In its response to the claim, Syddeck said that the correct contracting party was not Syddeck No3 Pty Ltd trading as Royale Limousines, but instead was Chauffeurs Australia Pty Ltd. In the alternative the response sought dismissal of the claim if it was pursued against Syddeck No3 Pty Ltd. The matter was heard on 12 September 2018 by an Adjudicator. On that day Mr Egerton appeared and Syddeck was represented by a director. The Adjudicator received evidence from them and read the available paperwork, and then gave his decision. He decided that Syddeck was the correct contracting party. He then turned to the invoices. The amount outstanding on some invoices was agreed and on that basis the Adjudicator decided that Syddeck owed Mr Egerton the sum of $3,250 and made an order accordingly. As for invoice 9909, the Adjudicator carefully considered whether there was a binding contract for Mr Egerton to provide buses on the days listed in the spreadsheet, and decided that there was no such contract. Instead, on the oral evidence he had heard and the documents he had seen, the Adjudicator found that the spreadsheet and the discussions which took place at the time amounted only to an inquiry by Syddeck whether the buses would be available on the dates mentioned if they were required. Only upon confirmation by a work order would a contract be made, that being the usual way in the parties had operated in the past.1 Since invoice 9909 was for buses which were never supplied by Mr Egerton to Syddeck, the claim on that invoice failed. Whether or not a contract exists is a matter of fact and here the Adjudicator applied the right principles and considered all the relevant material and came to the conclusion that there was no contract capable of supporting invoice 9909. That finding was clearly open to the Adjudicator on the material before him. In his submissions in this appeal, Mr Egerton says that the Adjudicator made an error of fact on invoice 9909 because he did not have all the available evidence before him. Hence, in the appeal, Mr Egerton asks the Appeal Tribunal to accept fresh evidence to support the claim on invoice 9909. However, much of the fresh evidence was before the Adjudicator anyway. Mr Egerton has added a statutory declaration, but that simply repeats what he told the Adjudicator under oath at the original hearing. 1 Transcript 1-33, line 25 to 1-34 line 5. -- 2 of 4 -- 3 And there are some other documents, none of which appear to assist Mr Egerton in support of his claim on invoice 9909. This means that none of the fresh evidence Mr Egerton asks the Appeal Tribunal to look at would make any difference to the decision already reached by the tribunal. Even if the fresh evidence could have made a difference to the decision made, the Appeal Tribunal cannot simply accept fresh evidence and rehear the case. If that were permitted in such appeals, it would give parties who had either lost the case or who wanted to improve the result of the case, an opportunity to try to do better. For that reason, there are only two circumstances when an Appeal Tribunal will hear fresh evidence. The first is if the original decision maker made an error of fact on the material before them which should be corrected as a matter of justice. In such a case the tribunal would rehear the matter and in doing so may optionally accept new evidence. It is not said in this appeal that the Adjudicator made an error of fact on the material before him, so this first circumstance does not apply. The second circumstance is where new evidence has come to light which could not have been put before the original decision maker with reasonable diligence, and which is of such cogency and relevance as to require it to be considered on appeal as a matter of justice. Reflecting these requirements, the Appeal Tribunal generally makes a direction about this. Here the direction was as follows:-2 If either party seeks leave to rely upon evidence or a document that was not before the Tribunal below (‘fresh evidence’), they shall file in the Tribunal one (1) copy and serve on the other party one (1) copy of an application for leave to rely upon fresh evidence, together with a copy of the fresh evidence. The application shall include submissions about: i. why the fresh evidence was not available to the Tribunal below; ii. why the fresh evidence is important; and iii. why the fresh evidence should be accepted. In this appeal, Mr Egerton has not provided those submissions at all. It is true that at the original hearing, Mr Egerton did ask the Adjudicator for an adjournment so that he could try to find an email confirming that he would do the jobs in the original spreadsheet which had been sent to him. He said he would need to go through his emails to find it.3 The existence of such an email was in some doubt because on behalf of Syddeck it was said that all emails on the subject had been produced.4 As it has turned out, there was no such email. Mr Egerton’s application for an adjournment was considered by the Adjudicator but refused, for the reasons given at the time. There is no appeal against that decision so it stands and cannot be reopened in this appeal. 2 Direction of 12 November 2018. 3 Transcript 1-28, line 35. 4 Transcript 1-30, line 18. -- 3 of 4 -- 4 In the circumstances I am unable to accept the material submitted by Mr Egerton which he asks the Appeal Tribunal to consider in this appeal. The net result is Mr Egerton is unable to show that the Adjudicator made an error and has no valid basis to impugn the Adjudicator’s decision. Conclusions in the appeal In matters such as this, leave to appeal can only be given if there appears to be a reasonably arguable ground of appeal. In this appeal there is no reasonably arguable ground of appeal and so leave to appeal should not be given. This means that the appeal fails. -- 4 of 4 --