B & A (Queensland) Pty Ltd v Mastek Management Group Pty Ltd [2011] QCATA 230

CITATION: B & A (Queensland) Pty Ltd v Mastek Management Group Pty Ltd [2011] QCATA 230 PARTIES: B & A (Queensland) Pty Ltd t/as Cooktown Crane Hire (Applicant/Appellant) v Mastek Management Group Pty Ltd t/as Scott & Ensoll (Respondent) APPLICATION NUMBER: APL187-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 30 August 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant brought proceedings against the respondent for $10,780 said to be owing for crane hire and dogman services – where a Magistrate dismissed the claim because it had not proved, on the balance of probabilities, that the money was owed – where the applicant seeks leave to appeal the decision – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 142 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Cooktown Crane Hire brought proceedings against builders Scott & Ensoll in QCAT’s Minor Civil Disputes jurisdiction for $10,780, said to be owing for crane hire and dogman services. [2] The matter was heard and determined by a Magistrate1 in Cooktown on 6 May 2011. After a lengthy hearing the learned Magistrate decided that Cooktown Crane Hire’s claim should not succeed because it had not proved, on the balance of probabilities, that the money was owed. In particular, the learned Magistrate preferred the evidence of witnesses for Scott & Ensoll that it was entitled to deduct, from Cooktown’s invoices, the amount charged for the services of Cooktown’s dogman while he was a trainee. [3] She also accepted, and preferred, the evidence of Scott & Ensoll’s witness Mr Pace that the agreement between the parties about the dogman’s services did not change during the time covered by the invoices relied upon by Cooktown Crane Hire. [4] Cooktown Crane Hire alleges the agreement changed when the dogman became accredited and ceased to be a trainee but, in the reasons she gave at the conclusion of the hearing, the learned Magistrate said she was not persuaded by Cooktown’s evidence about that allegation. [5] Cooktown Crane Hire seeks leave to appeal the decision. Under s 142 of the QCAT Act 2009, parties in these Minor Civil Dispute proceedings have no automatic right to appeal, and must obtain the Appeal Tribunal’s leave before being allowed to undertake the appeal process. [6] 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? [7] Cooktown Crane Hire complains, in its application for leave to appeal, that the Magistrate failed to give proper consideration to the fact that work orders issued by it were signed off by Scott & Ensoll’s site supervisor; and, the builder’s payment summary did not correlate with other relevant documents. [8] As to the first point, the evidence before the learned Magistrate addressed this issue: it was pointed out that the work orders were approved by the builder before a part of them, where the pricing is calculated, was completed. As to the second point, Scott & Ensoll say the document now relied upon by Cooktown Crane Hire was not presented to the Magistrate, and is not a document created by them. 1 Sitting as a QCAT Ordinary Member. -- 2 of 3 -- 3 [9] Even if there was substance in the points now made by Cooktown Crane Hire, this is not a case in which leave to appeal should be granted. The transcript of the proceedings shows that the hearing was quite lengthy, and that the learned Magistrate took care to allow each party to present its case, and its evidence, and to ensure that she understood their submissions. [10] Essentially, she made findings about the credit of witnesses which were reasonably open to her. Findings of fact, like those she made, will not usually be disturbed on appeal if the evidence is capable of supporting the conclusions. It is clear that, on the evidence before her, the learned Magistrate acted carefully, and entirely properly, in this respect. [11] There is, then, no apparent error in the manner in which the learned Magistrate conducted the hearings, or the way she reached her decision. There is evidence to support her decision. Otherwise, there is nothing the case of general importance about which further argument, or a decision of the Appeal Tribunal, is necessary or warranted. For these reasons leave to appeal must be refused. -- 3 of 3 --