Education Holdings Pty Ltd v Foley [2014] QCATA 69

CITATION: Education Holdings Pty Ltd v Foley [2014] QCATA 069 PARTIES: Education Holdings Pty Ltd (formerly 21st Century Education Holdings) ACN 129 551 917 (Applicant/Appellant) v Patricia Foley (Respondent) APPLICATION NUMBER: APL373 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 8 April 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 26 August 2013 is set aside. 4. Cairns application MCD155/13 is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant paid for training course for online trading – where applicant alleged total failure of consideration – whether correct respondent named in application – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 137, s 138 Pickering v McArthur [2005] QCA 294, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied -- 1 of 4 -- 2 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] In June 2011, Ms Foley signed up for a 2-day workshop with “21st Century Eminis” to learn how to earn money through live trading. [2] In May 2013, Ms Foley filed an application in the tribunal against “21st Century Education” asking for a refund of her money for “failure of results as promised”. She also alleged that 21st Century no longer provided the promised services. A Magistrate, sitting as a member of the tribunal, ordered 21st Century Education refund Ms Foley $25,000. [3] Education Holdings Pty Ltd (formerly 21st Century Education Holdings) wants to appeal that decision. It says that the entity named by Ms Foley never sold any product, nor entered into any contractual arrangement with her. It says the learned Magistrate made an order against it even though it provided evidence that Ms Foley contracted with a different legal entity. Preliminary matters [4] On 24 September 2013, the appeals tribunal made directions about the filing of material. Ms Foley had until mid November to file and serve her submissions. On 26 September 2013, Ms Foley filed an application for miscellaneous matters. That application was dismissed but the appeals tribunal ordered that the material filed in support of that application be treated as part of Ms Foley’s submissions. Ms Foley filed further submissions on 28 November 2013; 6 December 2013; 18 December 2013; 23 December 2013; and, 11 February 2014. Ms Foley did not have leave to file any of this material. Much of it is repetitive. Some of it is new evidence of other actions in other States by other people. It is not relevant to this application for leave to appeal, even by way of response, and should not be admitted. [5] Holdings also filed material without leave after the date for filing its material. It too, should not be admitted. [6] Both parties filed fresh material in this proceeding. Holdings filed a fresh and legible copy of Ms Foley’s order form and a copy of a tax invoice dated 9 June 2011 addressed to Ms Foley. Ms Foley filed material in response. [7] The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.1 Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Holdings have obtained the evidence with 1 QCAT Act, ss 137 - 138. -- 2 of 4 -- 3 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?2 [8] Holdings does not explain why its material was not before the learned Magistrate. However, they are documents that have an important impact on the result of the case and Ms Foley does not deny their existence. They should be admitted. The balance of the documents do not have an important impact on the result and, particularly in relation to Holdings/Eminis’ internal documents, they are less credible. They should not be admitted. The application for leave to appeal [9] 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 summarised by Keane JA (as His Honour then) was in Pickering v McArthur3: 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. [10] On 15 August 2013, 21st Century Education Holdings Pty Ltd (“Holdings”) filed an application to strike out Ms Foley’s claim on the grounds that she named the wrong company in her application. The file shows that the learned Magistrate directed the registry to list that application with the hearing of Ms Foley’s application. The transcript shows that the learned Magistrate did not deal with the application to strike out and he did not turn his mind to whether Ms Foley had named the correct party. The learned Magistrate was obliged to consider this point, even though none of the 21st Century entities appeared before him. For that reason, leave to appeal should be granted. [11] The order form shows, in very small print, that the proper entity is Eminis. It also states that direct debit payments can be made to Eminis’ bank account. By contrast, Ms Foley relies on the Order Acknowledgement which comes from Holdings. [12] Ms Foley says she did not view the terms and conditions before she signed up for the trading course. Ms Foley submitted that she had no opportunity to consider the terms and conditions. She was asked to sign up at the end of a seminar if she wanted to secure the training at a discount. There were many people in the same position and, she says, they were being hurried from the room. She did not get a copy of the order 2 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 3 [2005] QCA 294 at [3]. -- 3 of 4 -- 4 form until years later. The training material was silent about the identity of the training entity. [13] Even so, Ms Foley, as applicant, bears the onus of establishing the identity of the contracting party. One document among many, and in direct conflict with her signed order form, is not evidence of a contract with Holdings. [14] Holdings produced a tax invoice from Eminis to Ms Foley which shows that Eminis received her payment. Ms Foley does not deny that fact; the tax invoice and the order from show that Eminis was the proper respondent. The appeal should be allowed on that basis. Orders [15] Leave to appeal should be granted and the appeal allowed. The decision of 26 August 2013 is set aside and the application dismissed. -- 4 of 4 --