Cogan v Pau [2014] QCATA 304

CITATION: Cogan v Pau [2014] QCATA 304 PARTIES: Cheryl Cogan (Applicant/Appellant) v Maria Pau (Respondent) APPLICATION NUMBER: APL339-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 3 November 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where contract for personal coaching – where applicant terminated contract early – where claim for payment – where tribunal ordered payment – whether breach of consumer guarantees – where whether grounds for leave to appeal Australian Consumer Law ss 3(3), 60, 61, 62, 268 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Bunnings Group Ltd v Laminex Group Ltd [2006] FCA 682 Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] In November 2013, Ms Cogan signed up for a Coaching with Substance program and Recovery Coach Training with Ms Pau. The cost of the two programs was $2,990 and Ms Cogan agreed to pay that by monthly instalments of $100. [2] Ms Cogan started the program and then decided it did not suit her needs. She had paid only two instalments of $100. Ms Pau discounted the coaching fees from $2,990 to $1,246 to reflect that part of the course in which Ms Cogan participated. Ms Cogan refused to pay. Ms Pau filed an application in the minor civil disputes jurisdiction of the tribunal. Two Justices of the Peace, sitting as the tribunal, ordered Ms Cogan pay Ms Pau $960. [3] Ms Cogan wants to appeal that decision. She disputes the learned Justices’ findings of fact. She says that the learned Justices failed to apply the Australian Consumer Law. She feels she had no right of reply during the hearing. She refers to the fact that the tribunal ‘made no set date’ or suggest that the parties come to an agreement. Ms Cogan wants a rehearing of the dispute with witnesses. [4] 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] Ms Cogan has filed fresh evidence with her submissions to the appeal tribunal. The appeals 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 such evidence must satisfy three tests. Could Ms Cogan 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?3 [6] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Ms Cogan has not explained why this material was not available earlier. It will not have an important impact on the result of the case. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Magistrate. 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 4 -- 3 [7] Ms Cogan also filed late material, without leave from the appeal tribunal. Ms Pau has not had an opportunity to respond to that material. I do not propose to consider the late material in making this decision. [8] In the original file, Ms Cogan filed an information sheet about consumer rights. During the hearing, she said4: As a consumer I paid for something which I was under the impression would be done in a specific way, and as a consumer I feel it is my right to ask for my money back without having to pay for everything else regardless of the contract because it was not provided to me in the terms specified. [9] It is, therefore, not surprising that the Australian Consumer Law did not feature in the learned Justices’ reasons for decision. [10] Ms Cogan’s material shows that she intended the coaching to be the first step in a successful pet therapy practice which would not fall within the meaning of a services of a kind ordinarily acquired for personal, domestic or household use or consumption5. However, it is not necessary that the services are wholly for personal use. ‘Ordinarily’ means ‘commonly’ or ‘regularly’, not ‘principally’6. I accept that the Coaching with Substance training was a personal growth program and, therefore, Ms Cogan was a consumer for the purposes of the Australian Consumer Law. [11] Ms Cogan submits that the provision of the services was a ‘major failure’7. Before she can get to that point, Ms Cogan must establish a breach of a consumer guarantee. Her only submission about that to the learned Justices was that she was ‘under the impression [that the services] would be provided in a particular way’. [12] The Australian Consumer Law has three guarantees that relate to the provision of services. The first is that the services will be rendered with due care and skill8. The second is that the services will be fit for purpose, or achieve the result, of which the consumer made known to the supplier9. The third is that the services will be provided within a reasonable time10. [13] Ms Cogan asserts that she did tell Ms Pau why she wanted to enrol in the courses. She asserts that she told Ms Pau wanted to address her Facebook addiction and she wanted to start a pet therapy service. The documents generated between Ms Cogan and Ms Pau before Ms Cogan terminated the agreement do not fully support this submission. Further, those documents do not support a submission that Ms Cogan terminated the contract because Ms Pau did not supply services that were fit for the purpose. Instead, Ms Cogan’s documents show that she found the 4 Transcript page 1-35, lines 26 – 29. 5 Australian Consumer Law s 3(3)(b). 6 Bunnings Group Ltd v Laminex Group Ltd [2006] FCA 682 at [81]. 7 Australian Consumer Law s 268. 8 Ibid s 60. 9 Ibid s 61. 10 Ibis s 62. -- 3 of 4 -- 4 coaching confronting and difficult. Ironically, that’s what Ms Pau’s course was promising to teach; how to persevere in the face of difficulty. [14] The evidence does not support a finding that Ms Pau breached a consumer guarantee. Although the learned Justices failed to consider the issue in detail, Ms Cogan has not suffered any substantial injustice as a result. [15] Ms Cogan was given a number of opportunities to address the learned Justices. When Ms Pau finished outlining her claim, the learned Justices asked Ms Cogan what she would like to say11. Later, after some clarification of issues by Ms Pau at the learned Justices request, they returned to Ms Cogan12. Ms Cogan asked if she was allowed to address a particular point, to which the learned Justices said ‘yes’13. At one point in the hearing, Ms Cogan told the learned Justices ‘that’s all I have to say’14 but the learned Justices gave her a last opportunity to put her case to them15. The transcript does not support Ms Cogan’s submission that the tribunal did not allow her to put her case. [16] Ms Cogan disputes many findings of fact. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.16 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.17 [17] The learned Justices carefully explained why they found the contract between Ms Cogan and Ms Pau was binding. They found the contract provided ‘you pay for what you use’18. They found that Ms Cogan attended training and coaching sessions19. They found that Ms Cogan should pay for what she used20. [18] The evidence can support the learned Justices’ findings and there is nothing in the transcript or the file to persuade me that the learned Justices should have taken a different view of the facts. [19] There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused. 11 Transcript page 1-15, line 39. 12 Transcript page 1-23, lines 29 – 30. 13 Transcript page 1-23, lines 34 – 36. 14 Transcript page 1-25, line 14. 15 Transcript page 1-34, lines 24 – 25. 16 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126. 17 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 18 Transcript page 1-42, lines 35 – 39. 19 Transcript page 1-43, lines 1 – 6. 20 Transcript page 1-43, lines 19 – 23. -- 4 of 4 --