Allied Express Transport Pty Ltd v George [2012] QCA 76

SUPREME COURT OF QUEENSLAND CITATION: Allied Express Transport Pty Ltd v George [2012] QCA 76 PARTIES: ALLIED EXPRESS TRANSPORT PTY LTD ACN 001 787 962 (applicant) v DESMOND LLOYD GEORGE (respondent) FILE NO/S: Appeal No 9105 of 2011 DC No 782 of 2011 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 30 March 2012 DELIVERED AT: Brisbane HEARING DATE: 16 March 2012 JUDGES: Muir and Chesterman JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for leave to appeal refused with costs. CATCHWORDS: PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – APPEAL TO SUPREME COURT – FROM WHAT DECISIONS AND ON WHAT GROUNDS – where the respondent claimed against the applicant for breach of agreement under which the respondent was to provide services to the applicant – where the parties did not share the same understanding of the original agreed statement of facts – where the parties then produced an amended agreed statement of facts – where the respondent‟s claim was dismissed – where the respondent appealed to the District Court – where a judge of that Court allowed the appeal – whether the amended agreed statement removed the ambiguities of the original statement – whether the applicant should be granted leave to appeal District Court of Queensland Act 1967 (Qld), s 118(3) COUNSEL: K Barlow SC, with K F Watson, for the applicant J Merrell for the respondent SOLICITORS: Australian Workplace Lawyers for the applicant Carne Reidy Herd Lawyers for the respondent -- 1 of 10 -- 2 [1] MUIR JA: The respondent claimed against the applicant in the Magistrate‟s Court for damages for breach of an agreement in writing entered into between the applicant and the respondent under which the respondent agreed to provide courier, distribution and other related services for the applicant for the fees specified in the agreement. The trial of the proceeding took place in the Magistrate‟s Court and on 16 February 2011 the magistrate dismissed the respondent‟s claim. He also dismissed the applicant‟s counterclaim. The counterclaim has no present relevance. The respondent appealed to the District Court and on 9 September 2011 a judge of that Court allowed the appeal and ordered the applicant to pay the respondent $28,846.31. The applicant applies for leave to appeal against the District Court orders under s 118(3) of the District Court of Queensland Act 1967 (Qld). [2] The issue for determination on the appeal is largely dependent on the construction of an amended statement of agreed facts which was before the magistrate and the judge and on statements concerning its content made by the respondent‟s counsel at first instance. [3] The amended statement relevantly provided: “1. The Plaintiff undertook four types of jobs for the Defendant involving Foxtel units: a. services which involved the Plaintiff disconnecting Foxtel units from residential addresses (the „disconnection jobs‟); b. services which involved the Plaintiff supervising at the defendant‟s premises at Rocklea the return of boxed Foxtel units, ensuring that the corresponding paperwork for each unit was correct (the „return jobs‟) c. services which involved the Plaintiff taking pallets of boxed Foxtel units on his vehicle from the Defendant‟s premises to a warehouse and the collection of any consumables required for Foxtel disconnections (the „depot jobs‟) d. services which involved the Plaintiff conducting audits at sites of previous disconnections (the „audit jobs‟) … 6. For each disconnection job, the Defendant recorded an amount to an account in its records entitled „FOX QLD‟. 7. For each return job, depot job and audit job, the Defendant recorded an amount to an account in its records entitled „MSAS Wathen Pty Ltd‟. 8. The total amount charged by the Defendant to Foxtel for all services was $226,891.53. … Disconnection jobs … 15. The amounts the Defendant required its client Foxtel to pay the Defendant for its services across the relevant period were: -- 2 of 10 -- 3 Table 1 DATE SERVICE CLIENT CHARGE From 02/11/98 HDS (hard disconnect) $12.30 LDR, HDS (hard disconnect with ladder) $16.50 LDR, DST, HDS (hard disconnect with ladder and retune TV) $25.00 PST (pick up set top unit) $9.00 IDS (isolation box disconnect) $9.00 PST, DST, (pick up set top unit and retune TV) $16.90 PST, DST, HDS (pick up set top unit, retune TV and hard disconnect) $16.90 FTL (futile) $5.00 From 01/02/99 All Foxtel disconnection work $14.50 From 30/06/00 All Foxtel disconnection work $15.95 From 08/09/00 All Foxtel disconnection work $14.50 From 19/07/01 All Foxtel disconnection work $10.99 From 30/07/01 All Foxtel disconnection work $11.99 … Return jobs … 21. The amounts paid by the Defendant to the Plaintiff for return jobs were: Table 3 DATE PAYMENT TO PLAINTIFF From 12/05/99 $15.60 From 13/11/00 $16.34 22. The amounts recorded by the Defendant to the „MSAS Wathen Pty Ltd‟ account for the return jobs were: Table 4 DATE CHARGED TO MSAS ACCOUNT From 12/05/99 $24.00 From 3/07/00 $26.40 From 13/11/00 $27.65 23. The total amount paid by the Defendant to the Plaintiff for return and depot jobs was $33,960.62. 24. No charge was made by the Defendant to Foxtel for the return jobs. … -- 3 of 10 -- 4 Depot jobs … 27. No charge was made by the Defendant to Foxtel for the depot jobs. … 29. The amounts recorded by the Defendant to the „MSAS Wathen Pty Ltd‟ account for the depot jobs were: Table 6 DATE CHARGED TO MSAS ACCOUNT From 02/08/99 $40.00 From 14/02/00 $55.00 From 3/07/00 $60.50 From 13/11/00 $63.37 … 33. The total payments made by the Defendant to the Plaintiff for the audit jobs was $3,930.92. 34. No charge was made by the Defendant to Foxtel for the audit jobs.” [4] Under the agreement, the applicant agreed to pay the respondent 65 per cent of the “client charge” for motor vehicle or taxi truck work. The magistrate found, and the judge accepted, that “client charge” meant the amount of money charged by the applicant to Foxtel for work that was performed by the respondent involving the use of a motor vehicle or taxi truck. Return jobs did not involve any such use. [5] Before the magistrate the respondent contended that, although the disconnection work was performed pursuant to the agreement, the other three items of work were performed pursuant to separate oral agreements between the parties. The applicant submitted that all four categories of work fell within the scope of the agreement. [6] There was no challenge to the magistrate‟s finding that the work, other than disconnection work, was performed under separate oral agreements. The magistrate accepted the respondent‟s submission that the agreement applied only to the disconnection work, but he held, on the basis of the amended statement, that there was no dispute about the charging rates. [7] The magistrate concluded, however, that as there was “no evidence of any specific charge to Foxtel by the [applicant] for [the remaining three categories of work], it [was] not possible to calculate whether or not the rates paid equated to 65% of the client charge”. He held that the sums recorded in the MSAS Wathen Pty Ltd account (“the Wathen account”) were not evidence that Foxtel was charged by the respondent for the work recorded. [8] The magistrate said: -- 4 of 10 -- 5 “The difficulty for the [applicant] however is whether a calculation can be made as to what he should have been paid for disconnection jobs. The [applicant] simply claims 65% of the total client charge and discounts that calculation by the amount he has received from the [respondent]. That method is, according to the evidence, fundamentally flawed.” [9] The magistrate noted that it was agreed that the total client charge for all jobs was $226,891.53, that there was agreement as to the total number of such jobs and as to the rates paid to the respondent at relevant times (some rates exceeded 65 per cent and some were lower), but there was no evidence as to the number of jobs for each different rate to permit a calculation. Accordingly, the magistrate found himself unable to be satisfied that the respondent had proved his claim for $31,446.31 or any other amount. [10] A curious feature of the magistrate‟s contractual findings was that the respondent‟s statement of claim relied only on the agreement. The second further amended defence and counter-claim did not allege the existence of any oral agreements but did allege a variation of the agreement relating to the rates of charge for work other than return jobs and depot jobs. The second further amended reply and answer alleged that the services, other than disconnection services, were performed by the respondent under “separate oral contracts”, but the relevant terms of such oral contracts were not identified, let alone particularised. However, no issue was taken in the District Court or in this Court in relation to the magistrate‟s findings of the existence of a series of oral agreements. [11] On appeal the judge disagreed with the magistrate. She reasoned as follows. Tables 4 and 6 of the agreed statement showed that the respondent charged the Wathen account in respect of return jobs and depot jobs and that the amount of those charges was entered in the Wathen account. She noted that Table 4 recorded rates “charged to MSAS account”. The process of reasoning continued as follows: “The only jobs valued and recorded in the Foxtel account by the defendant were the disconnection jobs. Foxtel was charged in accordance with those records. It is reasonable to infer that MSAS Wathem (sic) was also charged in accordance with the defendant‟s records. It follows that the defendant charged MSAS Wathen for the depot and return jobs as reflected in tables 4 and 5.1 The rates of charge for MSAS Wathem (sic) in those tables covered or exceeded the payments to Mr George for his services. It is therefore reasonable to infer that the only client charged for the depot and return jobs was MSAS, and not Foxtel.” [12] The judge found that the magistrate had erred in not deducing from Tables 4 and 6 that Wathen was charged at the rate specified in those tables. No finding was made as to the amounts charged. Putting aside a subsidiary issue in relation to charges for audit work, the judge concluded that the figure of $226,891.53 in paragraph 8 of the amended statement “must reasonably be taken to relate to the charges for the disconnection jobs” and the applicant was entitled to 65 per cent of the Foxtel charge of $222,891.53 for the disconnection jobs. Sixty-five per cent of that sum equalled $144,879.49 of which, after deduction of $116,033.18 already paid to the applicant, $28,846.31 remained to be paid. 1 The correct reference is tables 4 and 6. -- 5 of 10 -- 6 [13] On the trial of the proceedings before the magistrate on 22 September 2010, it became apparent that the parties did not share the same understanding of the original statement of agreed facts. Counsel for the applicant contended that paragraph 16, which was in identical terms to paragraph 8 of the amended statement, related to the total charge for all the services identified in paragraph 1. Counsel for the respondent submitted that paragraph 16 related only to the amount charged for “disconnection jobs”. In the course of argument, the magistrate observed that it was unfortunate that paragraph 16 was under the heading “disconnection jobs”. The matter was then adjourned to enable discussions to take place between the parties‟ solicitors. Those discussions led to the production of the amended statement. [14] On 13 October 2010, this exchange took place between the magistrate and counsel for the respondent: “BENCH: All right. Well, the agreed facts still say, with respect to return jobs, that no charge was made by the defendant to Foxtel for the return jobs. So is it then agreed that rolled up into - well, if we just take the return jobs, that‟s rolled up into the services - into all services, because paragraph 1 refers to four types of jobs, services, paragraph B refers to services for return jobs. MR MERRELL: Mmm-hmm. BENCH: So is it to be read that there was no particular dollar amount that can be appropriated towards return jobs. MR MERRELL: That‟s so and the same for audit and depot jobs.” [15] The amended statement went only part of the way to removing the ambiguities in the original statement. Paragraphs 1 to 8 inclusive are clear on their face. Paragraph 1 identifies four categories of job. Paragraphs 6 and 7 identify how monies payable in respect of the four categories of job were recorded. An amount in respect of each disconnection job was recorded in an account entitled “FOX QLD” whereas an amount in respect of each of the other three categories of job was recorded in the Wathen account. Paragraph 8 then specifies that the amount charged by the respondent to Foxtel for all services was $226,891.53. “All services” is plainly a reference to the four categories identified in paragraph 1 and discussed in paragraphs 2 to 7 inclusive. [16] The respondent argued that paragraph 8 of the amended statement had to be considered in the light of: Tables 4 and 6; Paragraphs 24 and 272 which respectively recorded that no charge was made by the applicant to Foxtel for the return jobs or the depot jobs; and The implied assertion in paragraph 15 of the agreed statement that the applicant charged Foxtel for the disconnection jobs in which the respondent had been engaged.3 2 Also para 34 stated that no charge was made by the applicant to Foxtel for the audit jobs. 3 See para 15 and Table 1. -- 6 of 10 -- 7 [17] Tables 4 and 6 record the charging of monies at stated rates to the Wathen account. The judge held that it was implicit in the wording of tables 4 and 6 that charges had been made to Wathen rather than Foxtel. That inference was open on the wording of the tables. [18] Paragraphs 24, 27 and 34 assist the conclusion reached by the judge. They state that no charge was made by the applicant to Foxtel for the return, depot and audit jobs: not that no charge was made to Wathen. Given their plain meaning, paragraphs 24, 29 and 34 are inconsistent with a conclusion that the $226,891.53 in paragraph 8 includes amounts in respect of depot and return jobs. [19] Paragraph 8 is not necessarily inconsistent with the conclusion that Wathen, not Foxtel, was charged by the applicant for the return and depot jobs. A possible construction of paragraph 8 is that “for all services” means in respect of all four services. In other words, paragraph 8 may state the total amount charged to Foxtel in respect of the four relevant services but is silent as to whether Wathen rather than Foxtel was charged for the return, depot and audit jobs. [20] The construction favoured by the judge receives some support from the fact that paragraph 15 refers to the applicant requiring Foxtel to pay for disconnection services. There is no such statement in respect of the other three services. Also, if Foxtel was charged for services other than disconnection jobs, why wouldn‟t the revised document have said so expressly, given that it was amended to remove perceived ambiguities? On the other hand, if the judge‟s construction is correct, paragraph 8 states, in effect, that the defendant charged Foxtel $226,891.53 for disconnection jobs despite its being in an introductory part of the statement which deals with all four types of services and despite its having been moved from the part of the statement dealing with disconnection jobs. [21] The exchange between the magistrate and the respondent‟s counsel arguably supports the applicant‟s argument. It is arguably implicit in it that the $226,891.53 was made up of charges for all four services. However, ambiguity remained. It does not follow from an inability to appropriate a “particular dollar amount” to charges for a particular service that there must have been charges for that service. That the parties were not ad idem on the meaning of the amended statement should have been apparent from counsel for the respondent‟s statement to the magistrate on 13 October 2010 that the amendment to the statement did not change the submissions made by him on 22 September 2010. [22] Counsel for the respondent submitted to the judge that the exchange between him and the magistrate did not bear the construction put on it by the applicant. He said in that regard: “I want to make the point, your Honour, least it‟s said that somehow in that exchange there‟s been a concession by my client that the return - there were charges made by the defendant to Foxtel for the return jobs, the depot jobs and the audit jobs and that they were subsumed in the $226,000 figure. First of all, that - that‟s not said at all in that exchange between myself and his Honour. Second of all, I say, your Honour, at about line 23 that the amended agreed statement of facts doesn‟t change the submissions that we made to his Honour on the 22nd of September. His Honour then goes on to say, „All right. Well, the agreed facts will still - still say with -- 7 of 10 -- 8 respect to the return jobs that no charge was made by the defendant to Foxtel for the return jobs.‟ He then goes on to say, „So is it then agreed that rolled up into - well, if we just take the return jobs that‟s rolled up into the services - into all services because paragraph 1 refers to four types of jobs. Services, paragraph B refers to services return jobs…‟ Which is the case because paragraph B did refer to services for return jobs. His Honour then says, „So it can be read that there was no particular dollar amount that can be appropriate toward the return jobs.‟ And I say, „That‟s so, your Honour.‟, because that was the case. There was no charge made by the defendant to Foxtel for the return jobs and then I go on to say, „And that‟s the same for the audit and the depot jobs.‟ So we say, your Honour, from that exchange his Honour could not have formed the view or come to the conclusion that he did on the agreed facts that there charges made by the defendant to Foxtel for the return jobs, the depot jobs and the audit jobs and that they were subsumed in that $226,000 figure.” [23] The applicant argued that if the magistrate‟s construction of the amended statement was open to him the judge erred in substituting her preferred construction. I do not accept the validity of that proposition. The issue concerned the construction of a document with regard to what light, if any, was shed on the construction by a brief oral exchange. The fact that the magistrate heard the trial and participated in the oral exchange gave him no advantage over the judge in determining the meaning of the amended statement. [24] The meaning of the parties agreed facts remained unclear. That is perhaps not particularly surprising having regard to the general state of confusion which seemed to exist in respect of the issues being litigated. The proposed appeal raises no question of law of general or public importance. No substantial injustice has been demonstrated by the applicant and if injustice had been shown it would have arisen, at least in part, from the way in which the applicant conducted the case. I would refuse leave to appeal and order that the applicant pay the respondent‟s costs. [25] CHESTERMAN JA: I agree with Muir JA that this is not an appropriate case for leave to appeal. The facts relevant to the application are set out in his Honour‟s reasons for judgment. I gratefully accept that recital. [26] The amount claimed by the respondent, and for which judgment was given in the District Court, is small. The costs of the two sets of proceedings so far will exceed it. If a third proceeding is allowed the cost will overwhelm the amount in dispute. This court, therefore ought to discourage a further appeal. Nevertheless, if the applicant could demonstrate clear error on the part of the District Court this court should, though reluctantly, grant leave and allow the appeal. On that premise the applicant would have suffered an injustice in having judgment for $28,846.31 with interest and two sets of costs wrongly entered against it. [27] The difficulty for the applicant is that it cannot demonstrate with any clarity that the judgment of the District Court is wrong. [28] The issues for determination in the Magistrates Court were simple and the trial should have been straightforward. The respondent (as plaintiff) claimed moneys -- 8 of 10 -- 9 due to him under a written contract with the applicant. He was to be paid “65% of the client charge for motor vehicle or taxi truck work”. The respondent undertook four types of work for the applicant but only one type, disconnections, was the subject of the written contract, and the claim. That conclusion follows from the fact that the parties reached separate oral agreements for the performance of the other three types of work at rates of remuneration for each type different to that specified in the written contract. [29] The respondent‟s evidence of the making of the separate oral agreements was accepted by the magistrate. Indeed, it was not contested by the applicant. The fact that money was paid in accordance with the oral agreements, and that there was no dispute about the amounts paid, reinforces the conclusion as to the making of the separate agreements. The magistrate categorised the legal consequence of the oral agreements as being a variation to the written agreement rather than there coming into existence separate contracts, but nothing turns on that, as the magistrate himself recognised. [30] The only question of fact to be resolved in the trial was the amount the applicant charged Foxtel for the disconnection jobs, which was the only work the subject of the written agreement, 65 per cent of which was the only claim made by the respondent. The amount paid by the applicant to the respondent for the disconnection jobs was known and agreed. The amount he was to be paid was to be calculated from the written contract. The determination of the amount the applicant charged for disconnection work was all that was needed to adjudicate the respondent‟s claim. [31] The eight page statement of agreed facts containing 35 paragraphs and seven tables does not provide that information. Instead, it contains ambiguous and conflicting information which has led to the difference of opinion between the magistrate and the judge. Paragraph 8 said: “The total amount charged by [the applicant] to Foxtel for all services was $226,891.53.” [32] The magistrate thought that he had clarified with the respondent‟s counsel the meaning of the paragraph. He understood that “all services” included the four types of work the respondent performed for the applicant so that a component of the charge related to work other than disconnections. There being no identification of the amount charged for that specific work it was impossible to determine whether the amount paid by the applicant to the respondent for such work was greater or less than 65 per cent of the amount charged to Foxtel for it. [33] On that basis the respondent‟s claim failed for lack of proof. If the magistrate‟s understanding of paragraph 8 were correct his Honour‟s judgment was correct. [34] The judge came to a different conclusion. Her Honour inferred from other paragraphs in the agreed statement of facts that the amount set out in paragraph 8 related only to disconnections. Her Honour reasoned that because paragraphs 24, 27 and 34 said that no charge was made by the applicant to Foxtel for return jobs, depot jobs, or audits the amount of $226,891.53 charged to Foxtel did not include any component for that work. The logic is obviously acceptable. It meant, though that the magistrate‟s understanding of paragraph 8 was wrong. [35] As well, the judge relied upon the fact that the applicant recorded in its accounts amounts charged to the company which Foxtel employed to recondition the returned -- 9 of 10 -- 10 units in respect of return and depot jobs. Her Honour inferred from the fact that charges were recorded that they were invoiced and that that company, not Foxtel, was charged for those jobs. This led to the conclusion that the amounts charged by the applicant to Foxtel was for disconnection work only. This logic, too, is acceptable, but has the same effect for paragraph 8. [36] The agreed statement of facts said nothing about the ultimate responsibility for payment of the audit jobs. The respondent was paid for that work and did not complain of underpayment. Foxtel was not charged for it but the agreed statement of facts does not indicate whether anyone else was charged. That fact is probably irrelevant. The more important fact is that Foxtel was not charged for the work. [37] In this state of affairs if leave to appeal were given the Court when hearing the appeal would have no basis for determining which of the views expressed in the courts below was correct. Both opinions can be supported by the agreed facts, which conflict and are ambiguous. The critical fact was not proved distinctly. Instead the parties proffered facts many of which appear irrelevant and some of which were obscurely expressed. [38] There is no clear basis for preferring one opinion, that the amount charged to Foxtel was only for disconnection services, to the other, that the amount included charges for all four services. The consequence is a result of the confused manner in which the case was presented at first instance. The confusion means that the Court cannot be satisfied that an injustice had been occasioned to the applicant as a consequence of the judgment of the District Court. It is not therefore appropriate to grant leave to appeal. [39] I agree with the orders proposed by Muir JA. [40] APPLEGARTH J: I have had the advantage of reading the separate reasons for judgment of Muir JA and of Chesterman JA. I agree with their reasons and with the order proposed by Muir JA. -- 10 of 10 --