EY3 Pty Ltd v Singh [2016] QCATA 31

CITATION: EY3 Pty Ltd v Singh [2016] QCATA 31 PARTIES: EY3 Pty Ltd (Applicant/Appellant) v Ronald Singh (Respondent) APPLICATION NUMBER: APL466 -15 MATTER TYPE: Appeals HEARING DATE: 29 March 2016 HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 5 April 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 4 November 2015 is set aside. 4. MCDO 1372/15 is returned to the tribunal for rehearing. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT – where claim for work done as computer programmer – where respondent alleged no evidence that work actually done – where tribunal found for programmer – whether evidence can support findings - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): Applicant: Ms L Pomrey, Mr L Elin Respondent: In person (by telephone) -- 1 of 4 -- 2 REASONS FOR DECISION [1] Ronald Singh is a software designer and developer. EY3 Pty Ltd engaged him as an independent contractor from May 2011 to mid-2013. EY3 sent him work, he completed the work and sent claims for the number of hours he spent working on the task. [2] In May 2013, EY3 refused to pay some of Mr Singh’s claims because, in its view, the hours claimed were excessive, it couldn’t see what work Mr Singh had completed and it could not on-charge the claim to the client. It asked Mr Singh for evidence of the work he did. It did not receive that evidence. EY3 therefore calculated what it considered to be a reasonable amount for the work done and paid Mr Singh that amount. [3] Mr Singh filed a claim for the shortfall of $2,900, representing 68.5 hours work. The tribunal ordered EY3 pay Mr Singh $847, based on 20 hours work. [4] EY3 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 caused by that error.2 [5] EY3 says that the tribunal erred in three ways. Firstly, it says that the tribunal assumed that Mr Singh’s summary of his claim was a summary only of the disputed hours whereas the description of the work in that summary included work that was not in dispute. Secondly, it says that the tribunal did not give EY3 an opportunity to explain the significance of that document or to respond to Mr Singh’s submissions about it. Thirdly, it says that the document is not evidence of work done, but of work requested, and there was no evidence before the tribunal that supported a finding that Mr Singh did work for which he was entitled to be paid. [6] I asked Ms Pomrey, for EY3 to show me where, in the transcript, I could find evidence that the tribunal wrongly assumed that Mr Singh’s summary of his claim was a summary only of the disputed hours. Ms Pomrey was not able to assist me. I read the transcript of the hearing carefully. I cannot find any evidence that the tribunal wrongly assumed Mr Singh’s summary of his claim was a summary only of the disputed hours. I do not accept that the tribunal erred in this respect. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 4 -- 3 [7] Ms Pomrey says, and the transcript shows, that the tribunal gave Mr Singh a lengthy opportunity to establish his case. The tribunal then invited Ms Pomrey to respond3: Respondents, can we hear from you now. Wrap it up for us. [8] Unfortunately, Ms Pomrey did not have an opportunity to “wrap it up”. She commenced speaking but one of the tribunal members asked for clarification of a point. From that interruption, the tribunal and Ms Pomrey engaged in a series of questions and answers4. The tribunal did tell Ms Pomrey it was not interested in Mr Singh’s threats to EY35 but did not otherwise prevent Ms Pomrey from making submissions. The tribunal clarified that EY3’s position was, simply, that Mr Singh had no evidence to support his claim and Ms Pomrey agreed that this was EY3’s position 6. The tribunal then adjourned to make a decision [9] The tribunal’s process in this hearing was not ideal – parties should be permitted to address the tribunal without interruption – but EY3’s submission to me has a very strong flavour of hindsight. I do not know whether EY3 would have addressed the significance of Mr Singh’s document but I consider it unlikely. EY3 made the point that Mr Singh had no evidence to support his claim and it is clear that the tribunal understood that point. [10] EY3’s real complaint is that the tribunal found for Mr Singh without any evidence to support that finding. [11] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.7 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.8 [12] The tribunal did have trouble with Mr Singh’s claim: Mr Singh, now you have some great difficulty in convincing us of the voracity (sic) of your claims. Now, you have produced lots of paper, most of it difficult to follow because it’s not set out in a precise way9 [13] Despite that, the tribunal found that the evidence supported a finding that Mr Singh was entitled to be paid for some of his claim10. The evidence can support that finding and I can find no reason to come to a contrary view. 3 Transcript page 1-70, line 1 4 Until page 1-79 of the transcript. 5 Transcript page 1-79, lines 32 - 34 6 Transcript page 1-80, lines 10 - 11 7 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 8 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 9 Transcript page 1-80, lines 40 - 43 10 Transcript page 1-81, lines 5 - 8 -- 3 of 4 -- 4 [14] The difficulty in the tribunal’s decision is that, having found that Mr Singh was entitled to something, it arbitrarily allocated a figure of 20 hours11. I can find no evidence to support that finding and the tribunal does not explain how it arrived at that figure. [15] The tribunal in its minor civil dispute jurisdiction must make orders that are fair and equitable. That does not mean, however, that it may make arbitrary findings that have no basis in law or are not supported by the evidence. There is now power to adjust parties’ legal rights in accordance with some undefined principle of fairness. [16] Leave to appeal should be granted and the appeal allowed. The decision of 4 November 2015 is set aside. The proceeding is remitted to the tribunal for reconsideration. 11 Transcript page 1-82, line 1 -- 4 of 4 --