Aussie Education and Career Consultants v Francisco [2013] QCATA 263

CITATION: Aussie Education and Career Consultants v Francisco [2013] QCATA 263 PARTIES: Aussie Education and Career Consultants (Appellant) v Mr Priyan Roshan Francisco (Respondent) APPLICATION NUMBER: APL291 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 30 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted 2. Appeal allowed 3. The decision of 14 June 2013 is set aside. 4. The original proceeding is dismissed. CATCHWORDS: MINOR CIVIL DISPUTE – where agent signed on behalf of migration service – whether agent liable for refund of fees paid – whether grounds for leave to appeal Wilson v Bury (1880) 5 QBD 518; NE Timber Importers v Arendt & Sons and Impresa Cerrito [1952] 2 Lloyd‟s Rep 513 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 -- 1 of 3 -- 2 Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 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] Mr Francisco (also known as Mr Priyan) wanted to move to Canada. He signed a contract with an immigration consultant, Mr Shah from Aussie Education and Career Consultants. Mr Francisco paid $10,000 towards the cost of that consultancy service. [2] Mr Francisco did not make it to Canada. He filed an application in the tribunal asking Aussie to refund his money. An Adjudicator heard the application and ordered Aussie refund Mr Francisco‟s payment. [3] Aussie wants to appeal that decision. It says that the learned Adjudicator erred in deciding that Aussie was responsible for providing the immigration services. It says that the proper entity was Canada Express Migration. [4] 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?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 [5] Both parties have filed material 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 determined5. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Aussie 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?6 [6] None of the material filed is fresh. None of it will have an important impact on the result of the case. The fresh material will not be admitted and the 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 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. 5 QCAT Act ss 137, 138. 6 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 3 -- 3 application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator [7] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.7 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.8 As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.9 [8] There is clear evidence that Aussie is right when it says that the correct party to the contract was Canada Express Migration. The contract is on Canada Express Migration letterhead. It refers to “The Company“ undertaking the work. Canada Express Migration is a company; Aussie is not. Mr Shah signed the contract “on behalf of Canada Express Migration”. Mr Francisco paid his money to Canada Express Migration. Canada Express Migration sent emails about the progress of Mr Francisco‟s application, not Mr Shah. [9] The learned Adjudicator correctly identified these facts. He also found that Mr Shah was signing for and on behalf of Canada Express Migration. He correctly identified that Aussie was acting as agent for Canada Express Migration. However, the learned Adjudicator then led himself into error. [10] The general rule is that an agent is not liable for the acts of his principal.10 There are exceptions to this rule: where the agent agrees expressly to be bound; where the agent does not have authority to bind the principal; and where the identity of the principal is not disclosed. None of these exceptions applies. Canada Express Migration is the principal and the entity which is liable to Mr Francisco. Aussie, as agent, has no separate responsibility. [11] Leave to appeal is granted and the appeal allowed. The decision of 14 June 2013 is set aside and Mr Francisco‟s application is dismissed. 7 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 8 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 9 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 10 Wilson v Bury (1880) 5 QBD 518; NE Timber Importers v Arendt & Sons and Impresa Cerrito [1952] 2 Lloyd‟s Rep 513. -- 3 of 3 --