Australian Prime Fibre Pty Ltd v Byrnes [2013] QCATA 284

CITATION: Australian Prime Fibre Pty Ltd v Byrnes [2013] QCATA 284 PARTIES: Australian Prime Fibre Pty Ltd (Applicant/Appellant) v SD & WD Byrnes (Respondents) APPLICATION NUMBER: APL336-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 14 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 28 May 203 is set aside. 4. Australian Prime Fibre Pty Ltd will pay SD & WD Byrnes $4,317.83 by 5 November 2013. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] SD & WD Byrnes, a partnership, runs a trucking business. Australian Prime Fibre Pty Ltd bags hay into small quantities for residential use and sells it through hardware and nurseries. In December 2012, Australian Prime Fibre asked Byrnes to deliver bales of hay from Mackay to Isis Central. Byrnes delivered the hay and, on 28 December 2012, sent Australian Prime Fibre its first invoice, for $3,689.21. Australian Prime Fibre didn’t pay the invoice, despite a number of phone calls and emails, so Byrnes filed a claim in the tribunal. An Adjudicator ordered Australian Prime Fibre pay Byrnes $4,387.80. [2] Australian Prime Fibre wants to appeal that decision. It says that the learned Adjudicator made a decision based on wrong evidence. It says it has fresh evidence, not reasonably available at the hearing, which directly refutes evidence given at the hearing and on which the learned Adjudicator relied. It says that the learned Adjudicator’s decision will cause a substantial injustice. [3] The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined1. Ordinarily, an application for leave to adduce such evidence must satisfy three tests. Could Australian Prime Fibre 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?2 [4] Australian Prime Fibre says that Byrnes did not provide any written statements or information prior to the hearing that showed it had paid its subcontractors $45.00 per bale. Australian Prime Fibre says that, if that information had been supplied, it would have sought statements from the subcontractors to refute that evidence. I accept that, as the issue was not raised prior to the hearing, Australian Prime Fibre could not have reasonably anticipated that the evidence of the subcontractors might have been relevant. The fresh evidence satisfies the first of the three tests. [5] The fresh evidence fails the second test. For the reasons that follow, the fresh evidence would not have an important impact on the result of the case. The fresh evidence also fails the third test. The submissions refer to certain facts but I have no evidence of those facts. Australian Prime Fibre has not provided any sworn statements from subcontractors. Without statements from those people, the evidence is not credible. 1 QCAT Act ss 137 and 138. 2 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 4 -- 3 [6] The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator. [7] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?3 Is there a reasonable prospect that the applicant will obtain substantive relief?4 Is leave necessary to correct a substantial injustice caused by some error?5 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?6 [8] Australian Prime Fibre has identified that these are the tests the appeals tribunal applied in Amundsen v Queensland College of Teachers7 but it misunderstood the application of these tests. Before the appeals tribunal considers whether Australian Prime Fibre will suffer a substantial injustice because of the learned Adjudicator’s decision, it must first find an error in the learned Adjudicator’s decision. [9] While the learned Adjudicator referred to the subcontractors’ payments in his decision8, that was not the major reason for his decision. The learned Adjudicator had two competing versions of an oral contract. Both sides took notes of the conversation. Byrnes issued invoices that were consistent with its version of events. Australian Prime Fibre promised to pay the invoice several times before, eventually, questioning the basis of the invoice. The learned Adjudicator preferred the evidence from Byrnes because it was consistent. The evidence supports the learned Adjudicator’s decision on credit. He did not err by relying on that evidence. [10] I understand that the parties are now in the Supreme Court, arguing a similar point in the insolvency jurisdiction. I understand that Supreme Court proceedings may have grave consequences of Australian Prime Fibre. Unfortunately, that is not with this tribunal’s control. It makes decisions based on the facts before it. The parties must deal with the consequences. [11] There is a last point by Australian Prime Fibre. It says that the learned Adjudicator did not deal with Byrnes’ claim for late fees. That is true. Australian Prime Fibre says that the oral agreement did not include any reference to late fees. That, too, is true. The evidence was that, although the parties had a history of dealings before this dispute, there was never any suggestion that Australian Prime Fibre had not paid its bills on time. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Cachia v Grech [2009] NSWCA 232 at 2. 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 6 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 7 [2011] QCATA 2. 8 Transcript page 2, line 43; page 4, line 3. -- 3 of 4 -- 4 Therefore, the learned Adjudicator had no evidence that Australian Prime Fibre was aware of the late fee at the time it entered into the contract. To that limited extent, leave to appeal is granted and the appeal allowed. [12] I can substitute my own decision. The tribunal can award interest in minor civil dispute matters9. This is an appropriate case to order interest. The interest calculated pursuant to Practice Direction 5/2013, from the date of invoice to the date of the learned Adjudicator’s decision is $153.62 I add, as I am entitled to do, the filing fee of $95 and the cost of the process server of $380. The total payable by Australian Prime Fibre to Byrnes is, therefore, $4,317.83. The learned Adjudicator’s decision of 28 May 2013 is set aside. Instead, I order Australian Prime Fibre to pay Byrnes $4,317.83 by 5 November 2013. 9 QCAT Act s 14. -- 4 of 4 --