Ayurveda College Pty Ltd v Kobayashi [2011] QCATA 227

CITATION: Ayurveda College Pty Ltd v Kobayashi [2011] QCATA 227 PARTIES: Ayurveda College Pty Ltd (Applicant/Appellant) v Miss Yukiko Kobayashi (Respondent) APPLICATION NUMBER: APL102-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 2 September 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor Civil Dispute – whether applicant afforded procedural fairness – where findings of fact sought to be disturbed on appeal – where no error established Queensland Civil and Administrative Tribunal Act 2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] The applicant conducts a training college on the Gold Coast. Ms Kobayashi enrolled in a Certificate IV course which cost $6,960.00. After she enrolled in this course, she enrolled in a second course on 15 June 2009 at a total cost of $12,550.00, which included the first course. Her attendance at the College was terminated on 21 September 2009. She had not finished the Certificate IV course nor had she started the second course. [2] The learned Tribunal Adjudicator made findings of fact that in respect of the first course, that is the Certificate IV, (described as Ayurvebic Lifestyle Consultation) she had paid $7,000.00. For the second course, she had in fact paid $3,400.00. [3] Because Ms Kobayashi had not commenced the second course, and not completed the first course, she brought an application in the Tribunal in its minor civil dispute jurisdiction to recover monies paid. [4] The matter came on for hearing on 7 April 2010 and, on 28 April 2010, the Learned Adjudicator gave reasons and ordered that Ayurveda pay to Ms Kobayashi the sum of $3,490.00. [5] On 7 June 2010 Ayurveda filed an application for leave to appeal or appeal. The appeal is out of time. The time for filing an appeal is within 28 days from the date of receipt of the reasons for decision. [6] The grounds of appeal are that the learned Adjudicator did not take into account all of the evidence and the decision was judged unfairly and natural justice was denied. [7] As this is an appeal from a minor civil dispute jurisdiction, leave is necessary.1 The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [8] In support of the grounds of Appeal, Ayurveda asks the Tribunal to consider all of the evidence, and take into account the respondent’s comments which it contends are defamatory, and for the Tribunal to refer to Ayurveda’s website in support of its credibility as an accredited College. Apart from the 1 Section 142(3). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 2 of 4 -- 3 reference to the fact that the decision was unfair, that is against the weight of the evidence and Ayurveda was denied natural justice, no other error on the part of the Adjudicator has been identified. [9] In lengthy submissions in support of the application, Ayurveda undertakes a critical analysis of the learned Adjudicator’s reasons and challenges findings of fact. 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.6 [10] An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.7 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.8 [11] The hearing of this application took some considerable time. The transcript of evidence is some 49 pages with the hearing commencing in the morning, adjourning for lunch and then finishing in the afternoon. A perusal of the transcript indicates that both Mr Chandler, representing Ayurveda, and Ms Kobayashi had ample opportunity to argue their respective cases before the learned Adjudicator. As is always the case where there are disputed issues of fact, it is the Tribunal’s function to make findings in respect of those disputed facts. Quite obviously, the findings may not be satisfactory to one of the parties. [12] The learned Adjudicator was careful to elicit all of the information necessary for him to make the findings of fact which he did in his reasons and on a perusal of the transcript those findings were open to him. There is nothing in the submissions provided by Ayurveda which identifies any error in the fact finding process. An example is in paragraph 7 of the reasons where the actual amounts paid by Ms Kobayashi is recorded but that is not challenged by the applicant. It is not challenged that Ms Kobayashi’s course was cancelled on 21 September 2009 because of her non attendance. What is apparent though is that she paid $3,400.00 for a course she never started nor for which she received any benefit. The learned Adjudicator made an assessment of the witness before him, and made findings of fact consistent with the evidence. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 8 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 3 of 4 -- 4 [13] It follows that as no error has been identified on the part of the learned Adjudicator both in fact or in law, and none is apparent, leave to appeal must be refused. -- 4 of 4 --