Allen v Aspedia Australia Pty Ltd [2011] QCATA 229

CITATION: Allen v Aspedia Australia Pty Ltd [2011] QCATA 229 PARTIES: Ms Tracey Allen v Aspedia Australia Pty Ltd APPLICATION NUMBER: APL185 -11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 30 August 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] Aspedia Australia Pty Ltd builds websites. It built a website for Ms Allen‟s business “Toxic Realm”, charging her $10,010. Ms Allen says the -- 1 of 7 -- 2 website doesn‟t work so she wanted a refund of the money she paid Aspedia. The learned Adjudicator dismissed her claim but ordered that Aspedia deliver the source codes for the website to Ms Allen within 7 days. [3] Ms Allen has appealed the learned Adjudicator‟s decision on these grounds: a) The contract was a lay-by. b) The learned Adjudicator did not make a judgment. c) The learned Adjudicator did not ensure that the hearing was quick and informal. d) The Aspedia representatives lied to the learned Adjudicator. e) The contract was unfair and/or incompetent. f) The contract did not comply with the Companies Act (sic) or the Australian Consumer Law. g) Ms Allen was unable to address “some things” properly. h) The learned Adjudicator failed to consider Ms Allen‟s evidence. i) The hearing was unfair. j) Ms Allen was not able to present evidence to the tribunal. k) The learned Adjudicator made mistakes of fact and misunderstood the evidence. l) The learned Adjudicator did not take Ms Allen‟s neurological condition into account in conducting the hearing. [4] Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. 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? New evidence [5] Ms Allen has filed two large folders of material with her submissions for leave to appeal. -- 2 of 7 -- 3 [6] New evidence should only be admitted by the appeals tribunal if: it could not have been obtained with reasonable diligence for use at the hearing; if admitted, it would probably have an important influence on the result; and it must be apparently credible. [7] It is apparent from the material that all of it was reasonably available to Ms Allen at the time of the hearing. She has not explained why she did not provide it to the learned Adjudicator. It is not clear to me that all of it is relevant or that it would have an important influence on the result. [8] The tribunal‟s power to allow fresh evidence on appeal is not a mechanism by which parties can repair the holes in their original case. I do not propose to have reference to the two volumes of material in considering the application for leave to appeal. The contract was a lay-by [9] Ms Allen relies on the learned Adjudicator‟s comments that “any three payments and it‟s a lay-by”.1 That comment must be read in context. The learned Adjudicator was referring to the Australian Consumer Law which came into effect on 1 January 2011. The law will affect Aspedia‟s future contracts but it does not have any bearing on Ms Allen‟s contract. This is not a valid ground for leave to appeal. The learned Adjudicator did not make a judgment [10] Ms Allen is correct in that the learned Adjudicator did not make a judgment when the parties first appeared before him. He did make a judgment on 16 March 2011 by dismissing Ms Allen‟s claim. He did not make any order that allowed Aspedia to “get any extra money” out of Ms Allen. This is not a valid ground for leave to appeal. The learned Adjudicator did not ensure that the hearing was quick and informal [11] Ms Allen complains that the learned Adjudicator adjourned the first hearing because Aspedia was not ready for the hearing. That is true. Ms Allen‟s informal transcript reveals that there was a reasonable explanation for Aspedia‟s lack of readiness: it had filed an application to strike out Ms Allen‟s application; it was waiting for a determination of that application; it received notice of the hearing after 5pm on the day before the hearing. The learned Adjudicator took the opportunity of the adjournment to give Aspedia “homework” which he hoped would lead to a resolution of the dispute. I am satisfied that the learned Adjudicator‟s decision to adjourn the hearing complied with the tribunal‟s mandate to deal with matters in a way that is quick, accessible, fair, just, economical, informal and quick.2 The Aspedia representatives lied to the learned Adjudicator 1 Ms Allen‟s informal transcript page 23, line 27. 2 QCAT Act, s 3(b). -- 3 of 7 -- 4 [12] Ms Allen says that, contrary to assertions at the hearing, Centra Networks was not totally independent of Aspedia. Ms Allen referred the appeals tribunal to the Centra Networks‟ website but did not provide a copy of it nor did she raise the issue at the resumed hearing on 16 March 2011. There is no evidence before the appeal tribunal to support Ms Allen‟s allegation. It cannot be a ground for leave to appeal. The contract was unfair and/or incompetent [13] Ms Allen has correctly pointed out the parts of her transcript where the learned Adjudicator expresses his dissatisfaction with the contract. At the resumed hearing, the learned Adjudicator identified the difficulty that he still had to interpret the contract and make a decision3. He specifically found that there was not a total failure of consideration.4 [14] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.5 [15] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.6 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.7 [16] The learned Adjudicator‟s finding was reasonably open on the facts and there is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view. [17] Ms Allen has some additional complaints: a) She was not supplied with a copy of the terms and conditions when she signed the contract. The quote that Ms Allen signed states that she agreed: “to the provision of goods and services … in accordance with Aspedia‟s Terms and Conditions as stated on the Aspedia website.” If Ms Allen had not sighted the terms and conditions on the website, she should not have signed the quote. I am satisfied that the terms were supplied at the time Ms Allen entered into the contract. 3 Transcript 16 March 2011 page 16, lines 43-45; page 17. 4 Transcript 16 March 2011 page 17, lines 37-40; page 18, lines 24-26. 5 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 7 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 4 of 7 -- 5 b) There was confusion about the correct name of Aspedia. Despite the omission of the ACN, the Terms and Conditions make it plain that the contracting party is Aspedia Australia Pty Ltd. Ms Allen wrongly identified Aspedia. The learned Adjudicator allowed her to correct the name of Aspedia and continue with the claim. c) Aspedia did not sign the contract. It is not essential that both parties sign a contract. It is sometimes sufficient that they acknowledge that a contract exists in some other way. In this case, Aspedia acknowledged the contract by performing the work. The contract did not comply with the Companies Act (sic) or the Australian Consumer Law [18] I have already dealt with the position in relation to the Australian Consumer Law. [19] The Corporations Act 2001 (Cth) requires a company to set out its ACN or ABN on every company document8. The failure to do so renders the company liable to a penalty9. It does not mean that the document is invalid. Ms Allen was unable to address “some things” properly [20] Ms Allen‟s submissions on this issue seem to relate to Aspedia‟s failure to have an ABN on its document, which I have already addressed, and that there were “lots of features missing” from the website. Ms Allen had already told the learned Adjudicator of her concerns with the web site. Although he did not understand the technical requirements, the learned Adjudicator did understand Ms Allen‟s dissatisfaction. The learned Adjudicator failed to consider Ms Allen’s evidence [21] Ms Allen says that the learned Adjudicator was not willing to see the physical evidence she presented. She points to many examples in her informal transcript of the first hearing to support her contention. [22] When the transcript is read as a whole, it is clear that the learned Adjudicator understood the nature of Ms Allen‟s claim and the reasons why she was not satisfied with the website. The learned Adjudicator may not have referred to the documentary evidence in the minute detail that Ms Allen has prepared for her application for leave to appeal but I am satisfied that he gave proper consideration to her submissions in coming to his decision. His findings can be supported by the evidence and I can find no compelling reason to come to a different view. [23] Ms Allen also complains that she did not get an opportunity to call Mr Richardson to give evidence. It is true that Mr Richardson did not give evidence. There was no need for him to give evidence at the first hearing 8 Section 153(2). 9 Section 153(3). -- 5 of 7 -- 6 because it was adjourned. Ms Allen did not file a statement of evidence from Mr Richardson between hearings. At the second hearing, Ms Allen gave the learned Adjudicator no indication that she wanted Mr Richardson to give evidence, or even that he was present outside the hearing room. There is no evidence that the learned Adjudicator denied Ms Allen the opportunity to call Mr Richardson. The hearing was unfair [24] At the first hearing, Ms Allen told the learned Adjudicator that she has a neurological disorder “so I need things slowed down and spelt out for me because I get confused sometimes really quickly.”10 Ms Allen told the tribunal “that‟s why I always had Bob with me to help me understand things.”11 [25] Both parties were given leave to be represented. Ms Allen did not formally seek to be represented by Mr Richardson. At the second hearing, she did not ask the learned Adjudicator to allow Mr Richardson to be present to assist her because of her condition. She has not produced any evidence – in the form of a doctor‟s report – to substantiate her claim. The informal transcript does not demonstrate that Ms Allen had any real difficulty in understanding the hearing or articulating her case. If it was important that she be assisted in the presentation of her case, Ms Allen had ample opportunity to ask the learned Adjudicator for that assistance. [26] Ms Allen also complains of bias because a representative of Aspedia referred to the learned Adjudicator as “mate”. Members and adjudicators are referred to by various names and titles, many of which are wrong. The tribunal cannot always control the way parties address members and adjudicators and the use of a familiar term cannot be construed as bias unless the learned Adjudicator responded in kind. There is no evidence that the learned Adjudicator did so. [27] Ms Allen also complains that she did not have an opportunity to consider documents handed up at the first hearing. The learned Adjudicator did not make a decision at that hearing. Ms Allen had the opportunity to consider the extra material before the second hearing and make appropriate submissions. Ms Allen was not able to present evidence to the tribunal [28] Ms Allen has submitted a list of 52 documents that she was not able to hand up as evidence. The proceeding was started by Ms Allen. She had more than one opportunity to give the tribunal copies of relevant documents. If she was not able to hand them up at the first hearing, she could have filed them before the second hearing. Mistakes of fact or misunderstanding by the learned Adjudicator 10 Ms Allen‟s informal transcript page 7, lines 4-6. 11 Ms Allen‟s informal transcript page 7, lines 7-8. -- 6 of 7 -- 7 [29] Ms Allen has submitted 4 closely typed pages that detail the learned Adjudicator‟s mistake of fact. Most of the submissions relate to the first hearing. I have already commented that the learned Adjudicator made no decision at the first hearing. [30] I have read the transcripts of both hearings. I am satisfied that the learned Adjudicator‟s findings were reasonably open to him when considering all of the evidence and I can find no compelling reason to come to a different view. Ms Allen’s condition [31] I have already dealt with this issue when considering whether the conduct of the hearing was fair. It is not necessary to comment further. Conclusion [32] There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 7 of 7 --