Evans v Edmonds [2014] QCATA 63

CITATION: Evans v Edmonds [2014] QCATA 063 PARTIES: Peter Evans (Applicant/Appellant) v Gai Lorraine Edmonds (Respondent) APPLICATION NUMBER: APL018 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 7 April 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – where fresh evidence filed – where deed of release – whether deed of release prevented claim before the tribunal – whether grounds for leave to appeal Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 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] Industry Pathways Pty Ltd employed Ms Edmonds as a training manager. She also did online marking for students who were undertaking courses to work in the mining sector. Ms Edmonds rendered invoices for the marking and Industry Pathways paid some of them. -- 1 of 3 -- 2 [2] In June 2013, Industry Pathways filed an application seeking an order that no more amounts were due and owing to Ms Edmonds. Ms Edmonds then filed a claim for $6,678 for unpaid invoices. The tribunal dismissed Industry Pathways’ claim and ordered it pay Ms Edmonds $6,779.40. [3] Industry Pathways wants to appeal that decision. It says that Ms Edmonds is prevented from making the claim by a deed of settlement dated 8 May 2013. It concedes that the tribunal did not have a copy of the deed at the original hearing. [4] 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 Industry Pathways 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?1 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. [5] Ms Edmonds objects to the tribunal considering the deed of settlement. She says that Industry Pathways had a copy of the deed at the time of the original hearing and it has not explained why it did not produce a copy to the tribunal. Industry Pathways’ only explanation for failing to produce the deed at the hearing is “due to a miscommunication”. It does not say whose miscommunication, to whom or when that miscommunication occurred. Ordinarily, I would not accept the fresh evidence. However, because this is the only issue in the application for leave to appeal, and both parties have now addressed the implication of the deed’s terms, I will give leave to its filing [6] 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 summarised by Keane JA (as His Honour then was) in Pickering v McArthur2: 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. [7] Industry Pathways submits that, because the deed is in full and final settlement, Ms Edmonds cannot bring a claim for her contractor’s fees. [8] The deed arose from Ms Edmonds’ claim to the Fair Work Commission. The parties agreed to settle “the matter”. “the matter” must have been the Fair Work Commission claim. 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 2 [2005] QCA 294 at [3]. -- 2 of 3 -- 3 [9] Industry Pathways agreed to pay certain salary entitlements. In return, Ms Edmonds released Industry Pathways from: …any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with [Ms Edmond’s] employment with [Industry Pathway] including but not limited to the cessation of employment including the Application, any complaint to the Anti-Discrimination Commission Queensland and any entitlements subject to clause 3.4.1 [10] Clause 3.4.1 related to claims already under investigation by the Fair Work Ombudsman. [11] Industry Pathways was subject to a similar release although it was not precluded from pursuing any claims about overpayments for the online marking. [12] Ms Edmonds submits that her release was limited to her employment and did not include her claims as a contractor. Industry Pathways submits that “connected with” extends the release to Ms Edmonds’ on line marking because that work was “connected with” her employment. [13] For a number of reasons, I prefer Ms Edmonds’ construction of the deed. On 10 September 2013, the tribunal directed the parties to file submissions about whether it had jurisdiction. If the deed correctly identified the payments for marking as being “connected with” Ms Edmonds’ employment, one would expect Industry Pathways to raise it at this early time. [14] The tribunal found it did have jurisdiction because, for the marking, Ms Edmonds was a contractor3. Therefore, there was a decision of the tribunal that indicated Ms Edmonds was not “connected with” her employment in the way contemplated by the deed. Industry Pathways did not appeal that decision. [15] Finally, it is nonsensical that Industry Pathways could pursue overpayment for on-line marking4 yet Ms Edmonds could not pursue her claim for non- payment. If the parties wanted to preclude Ms Edmonds from pursuing a claim for on-line marking claim, it was a simple drafting exercise. [16] There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused. 3 Reasons for decision 21 October 2013. 4 Clause 3.5.1. -- 3 of 3 --