Dangerfield v Craig Law Pty Ltd [2017] QCATA 109

CITATION: Dangerfield v Craig Law Pty Ltd [2017] QCATA 109 PARTIES: Berniece Deborah Dangerfield (Appellant) v Craig Law Pty Ltd t/as L.J. Hooker Aspley (Respondent) APPLICATION NUMBER: APL126-17 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 13 October 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN TRIBUNAL PROCEEDINGS – where submission concerned a legal definition – where submissions concerned a party entering and leaving the hearing – whether the Tribunal showed bias APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN NOT ADMISSIBLE – where appeal is not and should not be attempt to reargue case – where issue of a party’s right to participate – whether fresh evidence was not reasonably available at the time the proceeding was heard and determined EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – DURESS – OTHER MATTERS – where party sought to rely on evidence with a non-publication order – -- 1 of 10 -- 2 where Tribunal required evidence sought to be relied upon to be disclosed to other party – whether a threat to enforce legal rights by commencing legal proceedings cannot be an unlawful or wrongful threat to establish duress APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS OF TRIBUNAL BELOW – FUNCTIONS OF APPELLATE TRIBUNAL – WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE – where evidence capable of supporting Tribunal’s conclusions – where finding open to the Tribunal – whether the Adjudicator correctly used the term ‘contra proferendum’ APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS OF TRIBUNAL BELOW – FUNCTIONS OF APPELLATE TRIBUNAL – WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE – where construction of an agreement is a question of mixed law and fact – where handwritten terms inserted into agreement – where meaning of word derived from agreement – whether the Tribunal correctly interpreted the agreement APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS OF TRIBUNAL BELOW – FUNCTIONS OF APPELLATE TRIBUNAL – WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE – whether the evidence supported the Tribunal’s findings Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 43, s 143 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 54, r 55 Bowes v Shand (1877) 2 App. Cas. 455 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Coleman v DPP (2000) 49 NSWLR 371 Cozens v Brutus [1973] AC 854 -- 2 of 10 -- 3 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 QdR 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 QdR 577 Powell v Hoyland (1851) 6 Exch. 67 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Robertson v French (1803) 4 East 130 Smith v Lucas (1881) 18 Ch .D. 531 APPEARANCES: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this appeal about? [1] Berniece Dangerfield appointed Craig Law Pty Ltd t/as L.J. Hooker Aspley to sell her Aspley property. Another agent sold the property. Ms Dangerfield did not pay L.J. Hooker’s advertising/marketing and title search expenses of $907.95. An Adjudicator ordered that Ms Dangerfield pay this to L.J. Hooker plus its filing fee of $63.20. [2] Ms Dangerfield wants to appeal that decision. [3] Because this is an appeal from a minor civil dispute, leave is required.1 [4] In determining whether to grant leave, the Tribunal will consider established principles including whether there is a reasonably arguable case of error in the primary decision,2 whether there is a reasonable prospect that the appellant will obtain substantive relief,3 whether leave is needed to correct a substantial injustice caused by some error,4 and whether there is a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage.5 [5] I will address Ms Dangerfield’s grounds of appeal below. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 QdR 41. 3 Cachia v Grech [2009] NSWCA 232, 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 QdR 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 QdR 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 QdR 577 at 577, 580. -- 3 of 10 -- 4 Did the Adjudicator show bias? [6] Ms Dangerfield submitted that the learned Adjudicator was biased by presenting evidence from the bench about the legal definition of “withdraw”. She also submitted that allowing L.J. Hooker’s representatives being into the court room before her and allowing them to remain after the hearing was highly irregular and suggested bias. [7] Bias is a serious allegation. The threshold to prove bias is high: … if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.6 [8] It is true that the learned Adjudicator provided the parties with an extract from the Encyclopaedic Australian Legal Dictionary of the meaning of the word “withdraw”, from his research in preparing for the hearing.7 [9] However, the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.8 Of course, the Tribunal must observe the rules of natural justice.9 A court is free at common law to consult whichever dictionaries it pleases.10 Specialist dictionaries such as legal or medical dictionaries may also assist.11 [10] The learned Adjudicator consulted a legal dictionary for a definition of the term ‘withdrawal’ and asked for submissions from the parties about that definition.12 Nothing suggests that the learned Adjudicator pre-judged the matter. He merely researched a question of interpretation and put that to the parties. That was appropriate and consistent with principles of natural justice. [11] It is not unusual in hearings for parties to not enter and leave the room simultaneously. Indeed, parties often intentionally enter and leave at different times because of their discomfort in directly confronting others with whom they are or have been in direct conflict. I have read the Transcript of the hearing. Although it begins after the arrival of the parties and ends before their leaving, there is no evidence of inappropriate communications between the learned Adjudicator and L.J. Hooker Aspley. Allegations of bias require more than mere speculation. [12] The Appeal Tribunal is not satisfied that Ms Dangerfield has established that the learned Adjudicator was biased. [13] This ground of appeal is dismissed. 6 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-5 [6]. 7 Transcript, page 1-6, lines 25 to 34. 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b). 9 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a). 10 Coleman v DPP (2000) 49 NSWLR 371, 373-4. 11 D C Pearce, Statutory Interpretation in Australia (Butterworths, 6th ed, 2006), [3.30]. 12 Transcript, page 1-6 to 1-7. -- 4 of 10 -- 5 Was it an error for the Adjudicator to allow a representative who was not a party to the Agreement? [14] Ms Dangerfield submitted that the learned Adjudicator should not have allowed Daniel Waters to take “a prominent part” in L.J. Hooker’s case when he was not a party to the Agreement and not a Director. [15] Parties must represent themselves in the Tribunal unless the interests of justice require otherwise.13 L.J. Hooker Aspley is the trading name used by Craig Law Pty Ltd. Craig Law Pty Ltd is a corporation. A corporation may appear in a proceeding through an officer of the corporation.14 ‘Officer’ of a corporation is not limited to a Director but also includes an employee of the corporation.15 [16] L.J. Hooker filed a copy of Mr Waters’ real estate agent registration with its submissions in response to the appeal.16 This is fresh evidence. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?17 [17] The fresh evidence is in reply to Ms Dangerfield’s submission questioning Mr Waters’ right to participate in the proceeding. This issue was not raised at the original hearing. It would be a denial of natural justice to L.J. Hooker to address this fresh issue raised by Ms Dangerfield without allowing L.J. Hooker to file its own fresh evidence in response. The certificate of registration is credible evidence relating to Mr Waters’ capacity to represent L.J. Hooker and would therefore have an important result on the outcome of the case. Mr Waters’ registration is therefore admitted into evidence. [18] An email from L.J. Hooker to Ms Dangerfield dated 20 December 2016 also notes that “Daniel… has agreed to extend the terms of the invoice…”.18 Ms Dangerfield herself referred to “Daniel” in her own outline of the facts of the case: On or about the 9th December, 2016 I received a phone call from Bryan Waters saying Daniel was going overseas and that he would be handling my property…19 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43(1). 14 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 54(1). 15 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 54(5). 16 Certificate of Registration dated 9 September 2004. 17 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 18 Email Candice Allen to Berniece Dangerfield dated 20 December 2016. 19 Response to Counter-Application dated 8 March 2017. -- 5 of 10 -- 6 [19] Based on this and evidence of Mr Waters’ registration, I am satisfied that it is reasonable to infer that Mr Waters was an employee of L.J Hooker and thereby allowed to represent it at the hearing. [20] This ground of appeal is dismissed. Did the Adjudicator not allow Ms Dangerfield to present a case of duress? [21] One month before the hearing, the Tribunal granted Ms Dangerfield’s application for non-publication of a medical certificate.20 Ms Dangerfield submitted that there was a contradiction between this non-publication order and the learned Adjudicator requiring her to give this information to L.J. Hooker. [22] In submissions filed before the hearing, to support her claim of duress Ms Dangerfield said: I did not have the money LJ Hooker were demanding. I was not coping mentally. I was under duress because of the perceived threat of legal action by L J Hooker. I therefore sent them the email on 20th December 2016 to tell them I did not have any money to stop them L J Hooker from taking legal action against me.21 [23] While it is true that the learned Adjudicator did not allow Ms Dangerfield to rely upon the medical certificate unless it was disclosed to L.J. Hooker,22 nothing turns on it. Ms Dangerfield was still given an opportunity to present her case. The learned Adjudicator still accepted that Ms Dangerfield suffered from the condition referred to in the medical certificate.23 This finding was made in Ms Dangerfield’s favour even without admitting the medical certificate. [24] Despite making this finding, the learned Adjudicator was not satisfied that it was sufficient for Ms Dangerfield to establish duress. Nothing in the material or the transcript persuades the Appeal Tribunal to come to a different view: a threat to enforce legal rights by commencing legal proceedings cannot be an unlawful or wrongful threat to establish duress.24 [25] This ground of appeal is dismissed. Did the Adjudicator incorrectly use the term ‘contra proferendum’? [26] Ms Dangerfield submitted that the learned Adjudicator incorrectly used the term ‘contra proferendum’. 20 Decision dated 9 March 2017. 21 Response to Counter-Application dated 8 March 2017. 22 Transcript, page 1-3, Lines 22 to 42. 23 Transcript, page 1-16, Lines 4 to 12. 24 Powell v Hoyland (1851) 6 Exch. 67. -- 6 of 10 -- 7 [27] The relevant passage of the learned Adjudicator’s reasons reads: As I said a little earlier, the question on which the issue of liability turns, in part, and in substantial part, is what the words “withdraw from sale with LJ Hooker Aspley” mean as the qualification to the right to be paid the outlays totalling $907.95. There is, to my mind, no ambiguity in the phrase I have just quoted. Therefore, (1) the contra proferendum rule, requiring interpretation of a clause strictly against the author of the phrase, in this case, an employee of LJ Hooker, does not apply, and (2) the phrase has to be given its ordinary grammatical meaning, and is not to be read narrowly.25 [28] Chitty on Contracts confirms the learned Adjudicator’s analysis is correct: Another rule of construction is that a deed or other instrument shall be construed more strongly against the grantor or maker thereof. This rule is often misinterpreted. It is only applied in cases of ambiguity and where other rules of construction fail.26 [29] The learned Adjudicator found no ambiguity in the phrase “withdraw from sale with LJ Hooker Aspley”. That finding was open to the learned Adjudicator. Once that finding was made, the contra proferendum rule had no application. [30] The learned Adjudicator correctly used the term ‘contra proferendum’. [31] This ground of appeal is dismissed. Did the Adjudicator correctly interpret the Agreement? [32] Ms Dangerfield submitted that the Agreement was commercial and therefore not subject to the legal interpretation applied by the learned Adjudicator and did not give effect to the real intention of the parties. [33] The true construction of an Agreement is a question of mixed law and fact. The meaning of an ordinary English word is a question of fact,27 while construction becomes a question of law once the true meaning of the word is ascertained.28 [34] The Appointment Agreement included a typewritten term for payment of advertising/marketing as follows: The client authorises the agent to incur the following expenses in relation to the performance of the service/s. Section 1 Advertising / Marketing 25 Transcript, page 1-14, Lines 43 to 47, page 1-15, Lines 1 to 3. 26 Joseph Chitty, Chitty On Contracts: General Principles (Sweet & Maxwell, 26th ed, 1989), [836]. 27 Cozens v Brutus [1973] AC 854, 861. 28 Bowes v Shand (1877) 2 App. Cas. 455, 462. -- 7 of 10 -- 8 To the client Your agent may either complete this section or attach annexures or marketing/advertising activities. In either case, the authorised amount must be written here.29 … [35] Next to ‘Authorised amount’ $885.00 was handwritten. This was made up of $240.00 for photography, $75.00 for professional floor plan and $570 for Internet marketing. Next to ‘When payable’ the following handwriting was inserted: Payable upon settlement with LJ Hooker Aspley or withdrawal from sale with LJ Hooker Aspley. [36] The Appointment Agreement also included a typewritten term for payment of other fees and charges as follows: Section 3 Other Description of fees and charges. The agent may either complete this section or attach annexures. [37] Under ‘Description’ and ‘Amount’ were handwritten ‘Title Search’ and ‘$22.95’. Next to ‘When payable’ the following handwriting was inserted: Payable upon settlement with LJ Hooker Aspley or withdrawal from sale with LJ Hooker Aspley. [38] Ms Dangerfield submitted that the person who inserted the handwritten terms would not have understood the legal terminology applied to the word ‘withdrawal’ and that the parties are not lawyers and would not be using “legalistic terminology”. [39] The meaning of a word is to be derived from the document itself, not what one may guess to be the intention of the parties.30 Words are to be construed in their plain, ordinary, and popular sense.31 The plain meaning of the word ‘withdrawal’ is to draw back, away, or aside, or to take back or remove. The learned Adjudicator found ‘withdraw’ means a discontinuance or the process of retracting or withdrawing. He did not apply an incorrect definition of “withdrawal”. [40] The learned Adjudicator correctly interpreted the Agreement. [41] This ground of appeal is dismissed. 29 Appointment 12 January 2016. 30 Smith v Lucas (1881) 18 Ch .D. 531, 542. 31 Robertson v French (1803) 4 East 130, 135. -- 8 of 10 -- 9 Was the evidence capable of supporting the Adjudicator’s findings? [42] Ms Dangerfield submitted that she could not have withdrawn the property from sale as it had already been withdrawn by L. J. Hooker in its email of 9 December 2016. [43] L. J. Hooker’s email of 9 December 2016 reads: Now that your property… is under contract with another agent and our listing has expired we will formally withdraw your listing from sale with our agency. Accordingly can you please arrange payment of the attached invoice being the marketing agreed to in the signed listing agreement.32 [44] On 20 December 2016, Ms Dangerfield replied by email: … I need to ask for an extension to pay the account for advertising until the 23rd January which is the settlement date for my property.33 [45] On 20 December 2016, LJ Hooker replied by email: … I have spoken with Daniel and he has agreed to extend the terms of the invoice to the 23rd of January 2017…34 [46] On 23 December 2016, Ms Dangerfield emailed: Hello Candice, I have noticed that you still have my house on real estate.com possibly because I have not terminated my contract with LJ Hooker. I hereby advise that I wish to terminate our contract as my property has been sold. Could you please remove all advertising from today. I thank all at LJ Hooker for all they have done to sell my property. Could you please confirm when this is done.35 [47] Having found ‘withdraw’ means a discontinuance or the process of retracting or withdrawing, the learned Adjudicator proceeded to find that the word ‘will’ in the email of 9 December 2016 indicated a statement of future intent – that the property would be withdrawn in due course. He found that the sale of the property by another agent effectively ended the listing authority to sell the property and it was thereby withdrawn.36 [48] LJ Hooker continued to list the property after its email of 9 December 2016. The property was only removed from listing after being sold. That is consistent with the learned Adjudicator’s finding of the email being a 32 Email Candice Allen to Berniece Dangerfield dated 9 December 2016. 33 Email Berniece Dangerfield to Candice Allen dated 20 December 2016. 34 Email Candice Allen to Berniece Dangerfield dated 20 December 2016. 35 Email Berniece Dangerfield to Candice Allen dated 23 December 2016. 36 Transcript, page 1-15, Lines 5 to 25. -- 9 of 10 -- 10 statement of future intent. It was therefore open for the learned Adjudicator to find that the property was ‘withdrawn’ from sale when sold by another agent. [49] In any event, the Agreement did not specify by whom the property was to be withdrawn to fulfil the condition for payment. Even if the email of 9 December is a ‘withdrawal’ by LJ Hooker, that is sufficient to fulfil the condition for payment. [50] On any view, the property was ‘withdrawn’ from sale. The condition for payment was fulfilled. [51] I find nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting his decision, or was influenced by irrelevant matters. Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the learned Adjudicator. [52] This ground of appeal is dismissed. Should the Appeals Tribunal grant leave to appeal? [53] The appeal process is not an opportunity for a party to again present their case.37 It is the means to correct error by the Tribunal that decided the proceeding.38 The learned Adjudicator’s decision was entirely appropriate and I can find no reason to come to a different view. [54] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.39 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.40 [55] There is no question of general importance for the Appeals Tribunal to determine. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. What is the appropriate Order? [56] The appropriate Order is: 1. Leave to appeal is refused. 37 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, 3 [9]. 38 Ibid. 39 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, 3 [12], per Wilson J. 40 Ibid. -- 10 of 10 --