174 Petawatts Pty Ltd v Wooster [2013] QCATA 270

CITATION: 174 Petawatts Pty Ltd v Wooster [2013] QCATA 270 PARTIES: 174 Petawatts Pty Ltd V Mr Kevin Martin Wooster APPLICATION NUMBER: APL260-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 1 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal dismissed. CATCHWORDS: MINOR CIVIL DISPUTE – where evidence not brought to the adjudicator’s attention – where leave to appeal necessary to correct oversight – whether grounds to grant appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Lindgren v Aaron Trigg Painting [2011] QCATA 267 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 (QCAT Act). REASONS FOR DECISION [1] 174 Petawatts Pty Ltd sells solar panels. It agreed to pay Mr Wooster commission for introducing electricians who bought container loads of panels. Mr Wooster introduced Ozzie Electrical and Solar Pty Ltd. -- 1 of 3 -- 2 He claimed commission but the company refused to pay. The tribunal ordered Petawatts pay Mr Wooster commission plus interest and costs. [2] Petawatts wants to appeal that decision. It says that the learned Adjudicator failed to consider material it filed in compliance with the tribunal’s directions. [3] Petawatts is not, in fact, suggesting that the learned Adjudicator erred. The error is that a document was not before him when he made his decision, even though the evidence suggests it should have been. The tribunal has no easy way of dealing with these sorts of errors. The best that it can do, in the interests of justice, is to grant leave to appeal.1 [4] Both parties have filed fresh evidence in the application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined2. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could they 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 [5] Petawatts’ fresh evidence is the material it wanted the learned Adjudicator to consider. Mr Wooster’s fresh evidence is his reply to that material. The tribunal’s directions contemplated that Mr Wooster would have a right to reply to Petawatts’ material. The evidence should be admitted. [6] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.4 However, in this unusual case, the appeals tribunal must conduct a rehearing in light of the fresh evidence5. The appeals tribunal is not charged with deciding whether the learned Adjudicator is in error; it must substitute its own decision. [7] The essential question is whether the oral agreement of November 2010 was modified by email transmissions between the parties. There are two versions of an email confirming the agreement. One says that the agreement is as Mr Wooster asserts. A second version has these extra words ‘at $2.90/w’. Mr Robinson says that these words were critical to the agreement, because he was only paying Mr Wooster commission if he sold the panels at $2.90 per watt. Mr Robinsons says that Mr Wooster altered his version of the email. [8] The appeals tribunal has three expert reports. Mr Burgess validated Mr Wooster’s version of the email. Mr Smedley says he can find no 1 Lindgren v Aaron Trigg Painting [2011] QCATA 267 at [6]. 2 QCAT Act ss 137 and 138. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 4 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 5 QCAT Act s 147(2). -- 2 of 3 -- 3 evidence that Mr Robinson’s version was altered. Mr James says that the email on Mr Wooster’s computer is not the same as the one Mr Robinson says he sent. Mr James does not think Mr Wooster’s version of the email has been altered. [9] Two experts favour Mr Wooster and one favours Petawatts. It is an area where minds clearly differ however, I am persuaded to confirm the learned Adjudicator’s decision for two reasons. Firstly, although not tested in a conclave, or by cross-examination, the weight of the expert evidence favours Mr Wooster’s version. Secondly, however, the version of the agreement Mr Robinson contends is inherently clumsy and unworkable. I find it unlikely that these two gentlemen would orally agree such a difficult commission structure. [10] Although leave to appeal is granted, the appeal itself is dismissed. -- 3 of 3 --