174 Petawatts Pty Ltd v Pocock and Anor [2012] QCATA 240

CITATION: 174 Petawatts Pty Ltd v Pocock and Anor [2012] QCATA 240 PARTIES: 174 Petawatts Pty Ltd (Applicant) v Blair Pocock Kevin Martin Wooster (Respondents) APPLICATION NUMBER: APL073-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 26 November 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision below is set aside. 4. The Minor Civil Dispute proceeding 1994/11 be listed for a compulsory conference on a date to be advised to the parties. CATCHWORDS: Minor Civil Dispute – where prima facie evidence that the documentary evidence had been altered – where that evidence relevant to the decision – whether substantial injustice Queensland Civil and Administrative Tribunal Act 2009, ss 142(3), 137, 138 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). -- 1 of 4 -- 2 REASONS FOR DECISION [1] This application for leave to appeal or appeal arises out of a decision by the Tribunal made on 17 January 2012 that the applicant pay to Mr Wooster $11,255.00. [2] The claim was for a commission of $10,000.00 plus GST in respect of Mr Wooster introducing a purchaser to the applicant who would purchase a 40 foot container of solar panels. That purchaser was Ozzie Electrical and Solar Pty Ltd. The claim for commission was said to be pursuant to an oral agreement between Mr Wooster and Mr Robinson of the applicant consistent with an earlier agreement whereby the applicant paid Mr Wooster $5,000 for introducing a buyer for a 20 foot container of solar panels. [3] Leave to appeal is necessary because this is an appeal from a decision in the minor civil disputes jurisdiction.1 Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [4] At the original hearing Mr Wooster produced an email which he contends is consistent with the agreement to pay commission from Mr Robinson, that email states: The commission on this pallet will be $1,000.00 plus GST. The $10K per 40ft container deal is for full containers so pro-rating back to a per panel rate won’t work, we paid $5K for the half container to look after you as a one off, but anything less than a 40ft full is at the agreed 20%. We’ve also increased the payment on this pallet above 20% to help you out. [5] Although the learned Member did not specifically refer to that email it was in evidence and he came to the view that the agreement reached between the parties was consistent with that email. [6] Subsequent to the decision, Mr Robinson now says that the email produced by Mr Wooster was altered to delete critical words which imposed an obligation on Mr Wooster the effect of which is that if a buyer was introduced the $10,000.00 commission would only be earned if the panels were sold at a rate of $2.90 per watt. To put this into context the email of 7 March 2011, unaltered, is as follows: The commission on this pallet will be $1,000.00 plus GST. The $10K per 40ft container deal is for full containers at $2.90/w so pro-rating back to a per panel rate won’t work, we paid $5K for the half container to look after you as a one off, but anything less than a 40ft full at $2.95 is at the agreed 1 QCAT Act, s 142(3). -- 2 of 4 -- 3 20%. We’ve also increased the payment on this pallet above 20% to help you out.2 [7] In support of that contention Mr Robinson has included in his submissions a “screen shot” of his computer screen with that email open which in all respects is the same as the email put before the learned Adjudicator but with $2.90/watt deleted. [8] It is troubling that there is, prima face, evidence that the email put before the learned Adjudicator may have been tampered with. The email itself may not be conclusive of the agreement because the findings of the learned Adjudicator were made on the basis of an “oral agreement” which did not include any writing although the email may be evidence of that oral agreement. [9] Also of concern is that in Mr Wooster’s submissions he gives an explanation as to the implications relating to the price per watt but does not specifically deny the contention that the email he produced before the learned Member had the “$2.95/w” deleted from it. [10] Although the general rule is that the Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined,3 it is easy to appreciate here that the absence of the critical words of “2.95/w” could have been overlooked during the hearing. One generally proceeds on the basis that evidence will not be altered by a party to a proceeding. The consequences of doing so can be severe. [11] Given the grave allegations made by Mr Robinson I am prepared to consider the fresh evidence on the grounds that he did not appreciate at the time of the hearing that the email had been changed, if that is in fact the case. [12] This is one of those cases where the result may be a substantial injustice to the applicant and therefore, I propose to give leave to appeal. [13] Also because of the seriousness of the allegation made that Mr Wooster produced an email that had part of the content deleted the appeal should be allowed and the matter referred back to the original Adjudicator to reconsider the matter on the basis of the unaltered email if he finds, as a matter of fact, that the email was altered. [14] However, before the parties are put to the time and expense of a hearing I propose to direct that the parties attend a compulsory conference. This will give them and an opportunity to discuss all issues openly and frankly with the assistance of a Tribunal Member in the hope of resolving the dispute. [15] Therefore the order of the Tribunal will be that: 2 My emphasis. 3 Sections 137 and 138 QCAT Act. -- 3 of 4 -- 4 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision below is set aside. 4. Minor Civil Dispute proceeding 1994/11 be listed for a compulsory conference on a date to be advised to the parties. -- 4 of 4 --