AAlert Training Pty Ltd v Scott & Ors [2014] QCATA 95

CITATION: AAlert Training Pty Ltd v Scott & Ors [2014] QCATA 95 PARTIES: AAlert Training Pty Ltd (Applicant/Appellant) v Glenn Scott Mathew Coupar Brett Hitchcock Joe Daus Enos Charles Henry Newitt Marine Diesel Comcove Pty Ltd t/as Marine Diesel (Respondents) APPLICATION NUMBER: APL035 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 28 April 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where pro forma invoice for training course – where pro forma invoice emailed to respondent with copy of participant handbook – where terms of trade included in participant handbook – where pro forma invoice not paid - where claim for invoice, lost opportunity costs and costs of bringing claim to the tribunal – where tribunal found no contract formed until payment of pro forma invoice – where claim dismissed – whether tribunal erred in finding no contract existed – whether grounds for leave to appeal PROCEDURE – where applicant received 30 pages of material on the morning of the hearing – where applicant did not apply for adjournment -- 1 of 6 -- 2 – whether lack of procedural fairness – whether grounds for leave to appeal EVIDENCE – where applicant filed transcript of telephone conversation with respondent taken from recording – where no evidence that respondent consented to recording of conversation – whether evidence should be admitted Telecommunications (Interception and Access) Act 1979 (Cth) ss 6, 7 Fox v Percy (2003) 214 CLR 118 Dearman v Dearman (1908) 7 CLR 549 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). REASONS FOR DECISION [1] AAlert Training Pty Ltd provides industry training. In July 2013, Mr Scott, on behalf of Comcove Pty Ltd inquired about training some of the company’s employees. AAlert provided a couple of “pro forma” invoices together with the participant handbook by email. On 17 July 2013, it provided a pro forma invoice for $9,000 relating to training offered in the last weekend of July and the first weekend of August 2013. The email by which that pro forma invoice was sent stated ‘As soon as the payment is made we will process the enrolments’. Comcove did not make a payment and did not take up the training. AAlert filed a minor debt claim for $25,000, the maiximum amount recoverable in the minor civil disputes jurisdiction. Its claim was dismissed. [2] AAlert wants to appeal that decision. It says the learned Adjudicator erred in his interpretation of the contract. It says that there was an abuse of process during the hearing. It says the learned Adjudicator made an error of fact. It says that the respondents made false and misleading statements to the tribunal. It says the learned Adjudicator should not have relied on the respondents’ written submissions. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as -- 2 of 6 -- 3 summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, in varying language but with unvarying emphasis, that 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. Was there a contract? [4] AAlert’s submissions start from the principle that, in commercial arrangements, there is a presumption that parties intend to be legally bound. That is correct. The intention to be legally bound is, however, a different question from that which faced the learned Adjudicator. He had to decide at what point, if at all, negotiations between the parties resulted in a binding contract. [5] AAlert’s submissions to the appeals tribunal about the Department of Justice directions to assessors; whether an upfront payment motivates trainees; and general comments about business efficacy are not relevant to my decision. AAlert did not raise them before the learned Adjudicator and they are not submissions as to the appropraite law to be applied. [6] The learned Adjudicator found that negotiations between the parties didn’t get to the point of a concluded contract because there was no valid acceptance of AAlert’s offer to provide training. He did not accept that the terms of trade contained in the participant handbook formed part of the contract. Given the terms of trade written on the pro forma invoice, and that the actual terms do not appear until page 4 of the participant handbook, that finding is unexceptional. [7] As the learned Adjudicator noted, the terms of trade, the time for payment and the time at which the contract was formed was confusing and contradictory. AAlert issued three pro forma invoices before the invoice in dispute. In each case, in the box headed CREDIT TERMS, this note appeared ’OVERDUE PAY NOW!’ but paragraph 4 of the terms of trade noted that the price was valid only for 7 days from the invoice date. The pro forma invoices were clearly quotes, not invoices. If the price was valid for 7 days, and there are no refunds once payment is made, the learned Adjudicator’ conclusion that the contact was not formed until payment is made can, in these particular circumstances of quote and negotiation, be supported. [8] Even though there is a reference to the web site on the pro forma invoice, AAlert did not lead any evidence about the contents of the website, except to say that the participant handbook was on the web site2. 1 [2005] QCA 294 at [3]. 2 Transcript page 1-13, line 33. -- 3 of 6 -- 4 [9] I can find no compelling reason to disturb the learned Adjudicator’s findings that the parties had not formed a binding contract. Late material [10] Mr Murphy, who appeared for AAlert, did complain to the learned Adjudicator about the volume of material he received at the last minute3. AAlert received the documents in the morning. The hearing started at 2.15. As Mr Murphy told the learned Adjudicator, he only had four hours to read the material. [11] Mr Murphy submitted that the tribunal should not have regard to the new material because it was not filed and served according to Rule 45 of the QCAT Rules. The learned Adjudicator pointed out that the Rule related to the filing of a response (which had been filed within time). He also told Mr Murphy that the point was not lost on him; that he had to make sure that nobody was disadvantaged by new material4. [12] The “new material”, although of about 30 pages, is not hard to digest. Most of it is multiple copies of the participant handbook, or emails that passed between the two parties. Apart from Mr Scott’s affidavit, the affidavits simply record that the authors knew nothing about this dispute and had no involvement. Mr Scott’s affidavit is five pages long and recites his version of events. This is not something which should have taken Mr Murphy by surprise. Mr Scott also provided an eight page summary of the respondents’ position. [13] Mr Murphy did not press for an adjournment. He argued the issues. He cannot now say that the hearing was unfair because the learned Adjudicator accepted Mr Scott’s arguments in preference to Mr Murphy’s. Error of fact [14] AAlert’s submission in relation to the learned Adjudicator’s error of fact is really an alternative argument that the learned Adjudicator erred in his construction of the contract. For the reasons I have already given, I am unpersuaded by AAlert’s submissions. [15] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.5 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.6 [16] Mr Murphy points to inconsistencies in Mr Scott’s affidavit. He refers, in particular, to a transcript of a recorded telephone conversation between 3 Transcript page 1-11, lines 6-12. 4 Transcript page 1-11, lines 20-21. 5 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 4 of 6 -- 5 Mr Murphy and Mr Scott, a copy of which was submitted to the appeals tribunal. [17] 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 AAlert 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 [18] Mr Murphy may not have appreciated the importance of the telephone conversation until he received Mr Scott’s affidavit. For that reason, I accept that AAlert could not, with reasonable diligence, produce the transcript for the hearing. [19] A person is not permitted to record a telephone conversation without the consent of the other party8. The transcripts do not show that AAlert sought that consent. The appeals tribunal should not condone an unauthorised recoding by accepting the transcript into evidence. [20] The learned Adjudicator dismissed AAlert’s claim because, in his view, there was no contract. The discrepancies in Mr Scott’s evidence are not material to the learned Adjudicator’s decision and I can find no compelling reason to make a different finding of fact from that of the learned Adjudicator. The submissions [21] AAlert criticises the style and language of the respondents’ written submissions. It questions whether its author is a qualified lawyer. The criticism is of no consequence. The tribunal receives submissions, both written and oral, of varying quality and style. They are only submissions. In all cases, it is for the presiding member or adjudicator to form a view about the dispute based on the evidence and relevant legal principles. If the learned Adjudicator did take the submissions into account, he is not in error. Damages [22] AAlert claimed the invoiced $9,000, $7,000 as a reversal of a discount and $9,000 preparation costs. The claim for $7,000 was based on paragraph (A) of the terms of trade contained in the participant handbook which states that cancellations will be charged at the full rate. Even if the terms were incorporated into the contract, a term imposing a fixed sum as compensation for a breach may be a penalty unless it can be demonstrated that the sum was a genuine pre-estimate of the loss. The learned Adjudicator questioned Mr Murphy about AAlert’s actual 7 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 8 Telecommunications (Interception and Access) Act 1979 (Cth) ss 6, 7. -- 5 of 6 -- 6 losses9. His evidence was not compelling. The loss of an opportunity does require the wronged party to try to mitigate its loss. AAlert provided no evidence of mitigation. [23] The balance of AAlert’s claim is based on this statement on page 1 of the participant handbook: Any party to training… Who creates a need for any remedial action by Aalert or any of its staff binds themselves and the trainee agrees to pay $235 per labour hour or part there of. This includes but is not limited to Aalert entertaining or responding to…Small Claims Tribunal. [24] This part of AAlert’s claim is not a minor debt but a claim for breach of contract. The learned Adjudicator told Mr Murphy that the tribunal did not have jurisdiction to hear that part of the claim10 and he did err in that finding. Both parties are traders within the meaning of the QCAT Act and the provision of industry training is not a ‘discipline that is not ordinarily regarded as within the field of trade or commerce’. [25] I have already noted that AAlert’s terms of trade are out of date. The tribunal has been in operation since 1 December 2009. The participant handbook is marked as version V03-05-2007 but Mr Murphy agreed with the learned Adjudicator’s observation that the participant handbook was updated in 201111. The failure to pick up the simple change of relevant tribunal is disquieting in a professional training organisation. [26] The context of the term clearly shows that it relates to the training provided. Parties supposedly bound by this term include the trainee. Bodies to which complaints may be made include Workplace Health & Safety and the Department of Education, Training and the Arts. Parties are required to follow the appeals or complaints procedure. The appeals procedure relates to assessment. The complaints procedure relates to aspects of the program, with industry training representatives acting as “objective parties” to negotiate a result. In training-related issues, the imposition of a fee equivalent to a trainer’s fee is reasonable. It is not a reasonable fee for a dispute about payments which are before the tribunal, in which parties generally bear their own costs12. Conclusion [27] There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused. 9 Transcript page 1-16 line 12 to page 1-17, line 46. 10 Transcript page 1-32, lines 1-6. 11 Transcript page 1-13, lines 3-6. 12 QCAT Act s 100. -- 6 of 6 --