Allan Evans Chartered v Paul Coleman Plumbing NQ Pty Ltd [2013] QCATA 106

CITATION: Allan Evans Chartered v Paul Coleman Plumbing NQ Pty Ltd [2013] QCATA 106 PARTIES: Allan Evans t/as Allan Evans Chartered (Applicant/Appellant) v Paul Coleman Plumbing NQ Pty Ltd as trustee for the Coleman Family Discretionary Trust (Respondent) APPLICATION NUMBER: APL313-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 10 April 2013 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant was instructed to prepare the respondent’s financial statements and tax return – where the data used to prepare the tax return was incomplete – where the tax return needed to be amended – where both parties claimed the fault lay with the other – where the applicant sought payment for the preparation of the amended tax return and other services – where the Magistrate at first instance dismissed the applicant’s claim – where the applicant seeks leave to appeal that decision – whether leave to appeal should be granted APPEAL – PRACTICE AND PROCEDURE – ADDITIONAL EVIDENCE – where respondent seeks to rely on additional evidence – whether new evidence reasonably available at original hearing – whether leave be granted to adduce additional evidence APPEAL – LEAVE TO APPEAL – MINOR CIVIL -- 1 of 5 -- 2 DISPUTE – PROCEDURAL FAIRNESS – where the applicant was not provided with a list of witnesses the respondent intended to call – whether the failure of the respondent to provide the applicant with a list of witnesses prior to the hearing amounted to a substantial injustice – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 147(2) Cachia v Grech [2009] NSWCA 232, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited 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 (QCAT Act). REASONS FOR DECISION [1] Mr Evans, an accountant, brought proceedings in QCAT’s Minor Civil Disputes (MCD) jurisdiction claiming $4 015.00 for professional fees from his client Paul Coleman Plumbing NQ Pty Ltd. The dispute centred around the preparation of financial statements and the company’s tax return for the year 2009-10. There was, both parties agreed, an error in that tax return, which each claimed was the fault or responsibility of the other. [2] The matter came on for hearing before a Magistrate sitting as a QCAT Member in Townsville on 22 August 2012. After a hearing lasting over two hours the learned Magistrate gave reasons for his decision which was, in effect, that Mr Evans was not entitled to the fees he claimed because the error leading to the need for an amended tax return was one which fell within his ordinary professional responsibilities as the company’s accountant. [3] He seeks leave to appeal that decision. Because the proceedings were heard in QCAT’s MCD jurisdiction, there is no appeal as of right and an applicant must show that the decision in question is effected, arguably at least, by an appealable error resulting in a substantial injustice. [4] 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 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 2 of 5 -- 3 prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice to the applicant caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?4 [5] By an earlier direction of the QCAT Appeal Tribunal, it was determined that Mr Evans’ application for leave to appeal (and his appeal, if leave is granted) would be determined on the papers by an exchange of written submissions. [6] Mr Evans attached written submissions to his original application for leave to appeal and, subsequent to that directions orders, informed the Tribunal that he did not wish to file any further material. [7] The respondent filed submissions including a new report from another accountant, which had not been presented at the original hearing. Mr Evans has subsequently provided copies of correspondence between him, and that accountant. [8] This attempt to use and rely upon additional evidence has not, however, been the subject of any application to the Appeal Tribunal. It reflects a mistaken but not uncommon attempt by parties in MCD appeals to re- contest the original hearing before a Magistrate or QCAT Adjudicator. [9] The QCAT Act turns its face against attempts to prolong litigation in this way. Under s 147(2) an appeal which, as here, is against mixed questions of law and fact must be decided by way of rehearing, with or without such additional evidence as the Appeal Tribunal may allow. [10] There is nothing in the submissions from either party to suggest this accountant’s evidence could not have been presented at the original hearing by the respondent, and no compelling reason to allow it to be introduced at this late stage. It cannot properly be used, referred to or relied upon in this appeal proceeding. [11] Mr Evans’ grounds of appeal, attached to his application for leave, do not attempt to address the questions set out earlier, which provide a traditional foundation for an application for leave to appeal. [12] His submissions may be summarised as follows: first, he objects that the company was allowed to present evidence from witnesses of whom he had no prior notice. Secondly, he contends that the Magistrate’s decision was wrong in that it involved a rejection of ‘… accepted professional accounting procedures’. 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. -- 3 of 5 -- 4 [13] Third, it is said that the Magistrate wrongly failed to take into account that the two invoices comprising Mr Evans’ claim included some work for matters other than the erroneous 2009-10 tax return and should have been allowed, at least in part. [14] The balance of Mr Evans submissions seek to revive arguments about the evidence, and the weight of evidence which were addressed by the learned Magistrate. [15] As the learned Magistrate pointed out to Mr Evans at the commencement of the hearing, when Mr Evans expressed surprise at the presence of witnesses apparently intended to give evidence on behalf of the company, it might have been expected that a professional accountant would have been aware of, or would have familiarised himself with, Tribunal procedures. [16] Nothing in the QCAT Act or Rules requires any party in this jurisdiction to provide its opponent with a list of the witnesses it intends to call. Mr Evans says, in his submissions, that if he had been given notice of the witnesses his opponent would call he might have ‘… sought to produce an independent professional witness to give evidence on accounting practice and procedure which would have supported my case’. [17] The submission is surprising, in a number of respects. First, it suggests Mr Evans made no attempt to familiarise himself with Tribunal procedure – something which would have involved no more than consulting the Act, and Rules. Secondly, as already noted, this jurisdiction is one in which any party who devoted a moment’s thought to preparation for the hearing would realise all documents and evidence should be prepared, and available. [18] Third, the company had filed a response in the MCD proceedings in which the question of Mr Evans’ duties and responsibilities, and his professional competence, were squarely raised by the company. In that submission it is alleged, for example, that Mr Evans ‘… failed fundamentally to perform his duty in preparation of our tax returns’; and, that the tax return in question only required amendment because Mr Evans failed to observe ‘… professional and competent tax preparation practices’. [19] In light of these clear warnings, Mr Evans could not legitimately claim to be surprised by the presence at the hearing of witnesses who would give evidence on the company’s behalf about these matters. [20] Secondly, during what was (in this jurisdiction) a lengthy hearing the learned Magistrate heard evidence from both parties, and Mr Evans had the opportunity to cross examine the company’s witnesses including its bookkeeper Ms Wood and accountant Mrs Chappell. The audio recording of the lengthy hearing, to which I have listened, makes it clear that Mr Evans had every opportunity to present his case and to challenge the evidence of the respondent’s witnesses. -- 4 of 5 -- 5 [21] As to Mr Evans’ contention that the invoices for which he sought payment related to other matters over and above preparation of an amended 2009- 10 tax return there was evidence at the hearing, which the learned Magistrate was entitled to rely upon, that the work of amending the documents themselves would have taken something less than two hours. Mr Evans did not suggest in cross examination, or submit to the learned Magistrate, that even if he was denied fees for the work necessitated by the amended tax return, he should nevertheless receive payment for some part of his invoices for other, unrelated work. Nor was the learned Magistrate presented with any figures or submissions which might have allowed him to fairly calculate some lesser sum, and award it to Mr Evans. [22] The audio recording of the hearing shows that the learned Magistrate took, with respect, pains to understand the issues (which had a small measure of complexity, but did not require any particular expertise in accounting practices to comprehend) and gave careful reasons after a short adjournment at the end of the hearing, in which he explained his decision and related it to the evidence and the weight of the evidence. [23] Mr Evans has failed to establish that there was any reasonably arguable case of error in the primary decision, or any error leading to a substantial injustice and warranting a grant of leave to appeal. It might also be observed that, even if leave were to be granted, he has failed to establish any reasonable prospect that he would, on appeal, obtain substantive relief. Otherwise, there is nothing in this case of general importance upon which further argument, and a decision of this Appeal Tribunal would be to the public’s advantage. [24] For these reasons, the application for leave to appeal must be refused. -- 5 of 5 --