CopyRight Publishing Co. Pty Ltd v Fagan [2016] QCATA 169

CITATION: CopyRight Publishing Co. Pty Ltd v Fagan [2016] QCATA 169 PARTIES: CopyRight Publishing Co. Pty Ltd (Appellant) v Cheryl Suzanne Fagan (Respondent) APPLICATION NUMBER: APL178-16 MATTER TYPE: Appeals HEARING DATE: 11 October 2016 HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 9 November 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS OF FACT – PROOF AND EVIDENCE - whether tribunal erred in findings of fact – where tribunal found letter not a contract – whether tribunal erred in characterisation of contract – whether grounds for leave to appeal APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE - where fresh evidence introduced – whether fresh evidence not reasonably available at time of hearing – whether fresh evidence would have important impact on decision – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 137, 138, s 142(3)(a)(i) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 -- 1 of 6 -- 2 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 APPEARANCES: APPELLANT: Elizabeth McRobert, agent for CopyRight Publishing Co. Pty Ltd RESPONDENT: Cheryl Suzanne Fagan in person REASONS FOR DECISION [1] Cheryl Fagan engaged CopyRight Publishing Co. Pty Ltd to edit, cover design, print and publish her manuscript. She became unhappy with the progress of the work, so she terminated the engagement and found another editor. She claimed $6,911.25 as compensation for poor workmanship. The tribunal ordered CopyRight pay Ms Fagan $5,679.84. [2] CopyRight wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant causes by that error.2 [3] CopyRight raises two issues which it says amount to error on the part of the Tribunal. The first is that it was unaware that the new material could be filed before the Tribunal. The second is the manner in which the tribunal characterised the letter of 26 April 2014 and, therefore, the nature of the contract. [4] 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.3 [5] An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.4 As the High Court said in Fox v Percy: 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 4 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 2 of 6 -- 3 In such circumstances, the appellate court is not relieved of its statutory function by the fact that 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 trail judge, the appellate court must “not shrink from giving effect to” its own conclusion.5 The Fresh Evidence [6] CopyRight provided a bundle of new material, consisting of several versions of the manuscript proofs demonstrating editing marked in pencil, as well as email correspondence between the parties. CopyRight submits that it was unaware that it could file this material before the tribunal at first instance. [7] The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.6 Ordinarily, an application for leave to adduce such evidence must satisfy three tests. Could CopyRight 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?7 [8] CopyRight was served with the application for minor civil dispute, which was filed 7 January 2016. The application contains on its first page under the heading ‘Information for Respondents’: You cannot file a formal response to this application however you may file written submissions in the tribunal attaching copies of any documents upon which you wish to rely. You must also give a copy of your submissions and any attachments to the other party as soon as possible after it has been filed. [9] CopyRight ought to have been aware that it should bring all documents on which it intended to rely to the hearing at first instance. Nevertheless, because Ms Fagan consented to the new material being filed, I have considered it in coming to this decision. [10] The material is said to ‘give indication of the editorial work that occurred on this document’.8 This does not demonstrate an error of fact in the tribunal’s reasons. The tribunal found that it was ‘common ground between the parties that at least a year was spent in the process of editing’ and deduced an amount of $2000 from the claimed amount in recognition of this work.9 [11] Therefore, the new evidence does not have an important impact on the result of the case. Character of the Letter of 26 April 2014. 5 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 6 Sections 137 and 138 QCAT Act. 7 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 8 Submissions for the Appellant, filed 6 July 2016. 9 T1-31, L46 to T1-32, L1; T1-33, L2-4. -- 3 of 6 -- 4 [12] CopyRight argued that the letter of 26 April 2014 set out the terms of its contract with Ms Fagan. The tribunal referred to the letter as a ‘document which the Tribunal would not regard as a formal contract’,10 but proceeded nevertheless to treat the matter as ‘a contractual claim for a refund of moneys which have been paid and work not done’, that work being ‘the publication and perhaps something towards editing’.11 [13] CopyRight refers to the law of contract as stated in the case of Secured Investments,12 and that: ‘as a general rule… where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done…’ . [14] CopyRight says that by not finding that the letter was a contract, the tribunal ignored the obligations that the parties had to each other even though there were no express words setting out those obligations. [15] Ms Fagan’s response points to the terms of the letter of 26 April 2014, in particular that the manuscript be ‘thoroughly edit[ed]’. Ms Fagan says that, in return for paying the full amount up front, she expected fully edited and published work, type set, cover designed, printed and bound. Ms Fagan says that, to the extent the letter constitutes the contract, she has complied with her obligations and CopyRight has not. [16] CopyRight argues that the letter anticipates ‘changes’ but not ‘additions’, distinguishing the two as part of the ‘normal editorial discussion’ for the former and excess work outside of the terms of the letter for the latter. CopyRight submits that by withdrawing the manuscript, Ms Fagan breached the contract herself. [17] I agree that the tribunal at first instance erred in not finding that the letter was a contract. Although not set out as a formal contract, or described as such on its face, it clearly constitutes a written agreement between the parties for Ms Fagan to pay $7,481.25 in consideration of editing and publishing services. The services to be provided are not set out in detail and do not provide timeframes for completion. This is an unfortunate oversight: agreements for provision of services for a substantial fee should be the subject of a clear and plain formal contract. [18] Nevertheless having found that the letter is a contract, I see no reason to depart from the tribunal’s findings about breach of agreement. As the tribunal found at first instance, CopyRight has failed to provide, in the terms of the contract, ‘fully edited, typeset, cover designed, printed and bound’ copies of the book after a reasonable period of time. The tribunal found, and I agree, that certain editing work had been done, that the cover design work 10 T1-31, L18-21. 11 T1-32, L37-40. 12 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596. -- 4 of 6 -- 5 had been done, and the work was accounted for by discounting $2,000 from the claimed amount.13 But the bulk of the services referred to in the contract have not been provided. [19] CopyRight submits that, in relation to the dispute that arose over additional charges during the fourth proofing stage, ’advice of an additional charge is normal practice’ and refers for support to The Australian Editing Handbook and Style Manual for Authors. These texts may be of assistance to editors, but they do not assist the Tribunal with interpreting what the terms of the contract. [20] The tribunal did not find, on the face of the letter constituting the contract, that there is a meaningful distinction between ’normal editorial changes’ and ‘substantial additions’ as submitted by CopyRight. The evidence can support that finding and I can find no compelling reason to come to a different view. The tribunal may have been in error in its characterisation of the letter of 26 April 2016, but the error did not result in a substantial injustice to CopyRight. Relevance of the ‘Proof Check’ document [21] Part of the new material provided at hearing of the Appeal was a document in the form of a small slip. CopyRight told the appeal tribunal that this slip was provided with the latest version of the manuscript to Ms Fagan for her to sign, and was notice to Ms Fagan that ‘final spelling checks’ would not be conducted until after she signed this slip. CopyRight submitted that by refusing to sign the slip, Ms Fagan acknowledged that the editing work was not complete and breached the contract by withdrawing her manuscript. [22] Unless Ms Fagan had signed and agreed to the conditions contained in the slip, it could not have altered her rights under the contract discussed above. But, even if it could, the slip does not, in fact, support CopyRight’s submissions: This PROOF should be CHECKED by the AUTHOR(S), SIGNED and RETURNED prior to the production of final high resolution proofs and/or printing. Please check carefully all type, illustration and positioning. Corrections must be marked clearly. This proof is supplied for your own protection, and confirmation or your requirements prior to completion of the work. While every effort has been taken to carry out instructions to the satisfaction of the Author(s), no responsibility will be accepted for errors not noted on this proof. [23] The document, on its face, does not notify Ms Fagan that spell checking and further editing are to be done. To the contrary, it purports to take no responsibility for any errors which the author does not identify. An ordinary person reading this would conclude that the editors had made final changes. I am not satisfied that this document demonstrates an error of fact by the 13 T1-33, L2-7. -- 5 of 6 -- 6 tribunal in finding that the editing work was not completed in accordance with the terms of the agreement. [24] There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused. -- 6 of 6 --