Dive Chiropractic Pty Ltd v Brown [2012] QCATA 18

CITATION: Dive Chiropractic Pty Ltd v Brown [2012] QCATA 18 PARTIES: Dive Chiropractic Pty Ltd v Dr Darcy Brown APPLICATION NUMBER: APL351-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 13 February 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Application for leave to appeal – minor civil claim – whether leave should be granted – whether fresh evidence adduced Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i) 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] This is an action by one chiropractor, Darcy Brown, against another member of that profession, Jeremy Dive, for fees due and owing to the Applicant for services rendered as “associate” to the Respondent from 27 May 2010 to 6 July 2010. By way of defence the Respondent pleaded that Brown terminated his employment unlawfully, without due notice, and that the Respondent was entitled to retain any moneys owing to Brown for the cost of employing a replacement. [2] The Adjudicator found for the Applicant, and ordered the Respondent to pay him $6,142.83 within 7 days. From that decision the Respondent now appeals. This being a minor civil dispute, an appeal is not available as of -- 1 of 4 -- 2 right, but requires leave of the Tribunal.1 An applicant for leave must show that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice.2 It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to the testimony of witness “B”. Findings of fact will not usually be disturbed if they have rational, albeit debateable support in the evidence.3 Leave is not to be given where a party simply desires to re-argue the case, on existing or additional evidence. One clear purpose of a “leave” requirement is to preclude any attempt to conduct a retrial on the merits.4 It is not nearly enough to express disappointment at the original decision, or a subjective feeling that justice has not been done.5 [3] Pursuant to an agreement that originated in early May 2010, Brown, respondent to this appeal, came from the United States to work in the Appellant Dive’s practice on the Gold Coast. Finding the practice less profitable than he expected, Brown became dissatisfied, gave a month’s notice6, and terminated the engagement. It is the Appellant’s case that there was no provision for one month’s notice; however, the learned Adjudicator held otherwise. [4] The Appellant contends, in effect, that a document signed by Brown in May 2010, and described as a “facilities agreement” was a wholly written agreement, unable to be varied or supplemented by extrinsic evidence. The Adjudicator rejected that submission. She found as a fact, on “overwhelming” evidence,7 that certain terms were omitted from the document, that “in fact the agreement was not completed or complete when signed by the applicant and respondent”8 and that it was “not fully comprehensive”.9 Consequently the Adjudicator found that the subject agreement was partly written and partly oral, and she accepted the Applicant Brown’s evidence of an orally agreed term that one month’s notice would suffice.10 [5] The Adjudicator also found that the relevant period of employment was from 15 May to 7 July 2010. She rejected the Appellant Dive’s claim that any debt owed to Brown was absorbed by the cost of engaging a locum tenens.11 [6] The Adjudicator found support for her findings of fact in a “pattern of behavioural conduct” on the Appellant’s part. That finding was based on evidence of three practitioners (Powell, Vatcher and Murphy) each of whom 1 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19]. 3 Fox v Percy (2003) 214 CLR 118 at 125-126. 4 Contrast QCAT Act, s 20 (review jurisdiction). 5 Robinson v Corr [2011] QCATA 302 at [7]. 6 A fact admitted in appendix to the Notice of Appeal paragraph 4. 7 Decision 6 September 2011 page 10. The finding was no mere “assumption” as contended by the Appellant (annexure to application for leave to appeal, page 39. 8 Decision 6 September 2011 page 9. 9 Decision 6 September 2011 page 11. 10 Decision 6 September 2011 page 10. 11 Decision 6 September 2011 page 10. -- 2 of 4 -- 3 deposed to unsatisfactory professional experiences with the Appellant: “[T]hey too, appear to have experienced unfulfilled promises about size and prosperity of the practice. They too had to wait for payment.”12 Some support for Murphy’s evidence was provided by Christine Jeffries, a former office manager of the Appellant’s. [7] The evidence just mentioned is circumstantial evidence known to lawyers as “similar facts”. It is unnecessary to explore the subtle differences between “striking” and less remarkable similar facts that bedevil the rules of evidence, because those rules do not bind the Tribunal.13 It is only necessary that the material possess some relevance, and, as the Adjudicator found, it does.14 [8] However, as commentators on similar facts have often observed, it is a species of evidence that carries a risk of generating collateral issues, which in the hands of unrepresented parties in particular, tend to assume disproportionate importance, at the expense of the essential issues. [9] This observation is richly illustrated in the voluminous material annexed to the present application for leave. In assertions presented as fresh evidence, and in submissions where the Appellant frequently refers to himself in the third person, there is an attempt to re-try the case de novo. Some 33 of the annexure’s 39 pages are devoted to vitriolic attacks on the credit of the Applicant’s witnesses, particularly those who gave similar fact evidence. The purported fresh evidence signally fails to meet the legal tests applicable to material offered as such.15 Besides, even when evidence is fresh, in the recognised legal sense, a new trial “... will not be granted ... unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary ... would, upon the materials before the court ... have been improbable if not unreasonable."16 [10] Most of the purported fresh evidence in this case relates to collateral issues, and falls far short of that test. In so far as the scurrilous material annexed to the notice of appeal has any relevance to credit, and is within acceptable bounds of cross-examination, it could and should have been put at the trial.17 12 Decision 6 September 2011 page 11. 13 Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(b). 14 Decision 6 September 2011 page 5. 15 Thomas v State of Western Australia [2012] WASCA 22 at [14]; Akins v National Australia Bank (1994) 34 NSWLR 155 at 160; Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135. 16 Orr v Holmes (1948) 76 CLR 632 at 642 per Dixon J. 17 As the court observed, rejecting purported fresh evidence in Corbett v Patterson [2011] NZCA 649. -- 3 of 4 -- 4 [11] Indeed, if many of the assertions and aspersions annexed to the application for leave appeared in an affidavit or pleading before a court, they would be apt to be struck out as scandalous, probably with a condign order as to costs. [12] The tone is set at page 6 of the annexure: “The evidence submitted by Dr Dive [i.e. the Appellant himself] shows that unfortunately a number of former disgruntled employees have conspired together. ... A liar will always lie ... as these affidavits prove”. One similar fact witness is said to have an “anger problem” and “a problem with women”. A letter from the Appellant to that witness, offering to “help him through his issues due to the possible ramification to his character” [sic] is quoted at length. It is conspicuously branded “without prejudice”, as if that oft-misused mantra were a talisman against writs for defamation, not a rule of evidence protecting bona fide attempts to settle civil litigation. [13] Another adverse witness is alleged to have “lied to Dr Dive” about an insurance policy, and his professional performance “began dropping off noticeably when he had a relationship with a Scandinavian chiropractic student in Melbourne”. A third witness is accused of “deplorable antics”, of being a “pathological liar”, a debt evader, a bankrupt and the maker of a “vindictive, vicious ... attack” on an inoffensive Dr Dive. A former female employee is castigated as a “liar on oath”. In a paragraph by paragraph response to several affidavits tendered by the Applicant Brown, almost every contested allegation is peremptorily dismissed as a “lie”. [14] These swingeing attacks are as regrettable as they are unpersuasive in an application for leave to appeal. [15] I can find no error of law in the decision under appeal, or any other appellable error resulting in substantial injustice. The Adjudicator’s decision turns on findings of fact and inferences therefrom that were clearly open to her on the evidence. There is no proper ground for a grant of leave to appeal. ORDER [1] Leave to appeal is refused. -- 4 of 4 --