ABSS Trust trading as Academy of Beauty, Spa and Sport v Nicholls [2011] QCATA 57

CITATION: ABSS Trust t/a Academy of Beauty, Spa and Sport v Nicholls [2011] QCATA 57 PARTIES: ABSS Trust trading as Academy of Beauty, Spa and Sport (Applicant/Appellant) v Louise Florence Nicholls (Respondent) APPLICATION NUMBER: APL356-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 14 March 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTE – PROCEDURE – where Magistrate did not rely on unsworn witness statements submitted by appellant – where Magistrate took evidence from unsworn witnesses – whether Magistrate considered contractual issue – where appellant was not aware of Tribunal procedure – whether Magistrate’s actions prejudicial to the appellant Queensland Civil and Administrative Tribunal Act 2009, ss 28(3), 29, 142(3) APPEARANCES and REPRESENTATION: This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Ms Nicholls was a student at the Academy of Beauty Spa and Sport. She left without completing her course. She applied to the Tribunal for a refund of the fees she had paid, complaining that the Academy did not -- 1 of 5 -- 2 provide a qualified teacher and that she was subject to constant intimidation, bullying and harassment. [2] The learned Magistrate who heard the matter, sitting as a QCAT member, found that there was evidence of bullying and harassment which led to Ms Nicholls being unable to finish the course; that the contract between the Academy and Ms Nicholls had been frustrated; and, that she was entitled to a refund of the fees she had paid. [3] The Academy has appealed the decision. Because it is an appeal from the Tribunal’s Minor Civil Dispute jurisdiction, leave is necessary: s 142, QCAT Act. [4] 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 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? [5] The Academy says that the learned Magistrate failed to take the following matters into consideration: a) That because ownership of the Academy changed five days before Ms Nicholls commenced her course, all students were given the option of contacting the former owner for a refund, but Ms Nicholls chose not to do so. b) Ms Nicholls was given a full kit, training and assessment for 6 months. The kit, containing textbooks, uniforms, towels and utensils was valued at $1,800. She was also provided with course materials. c) Ms Nicholls met with the Principal of the Academy and asked if she could return and complete her studies. The Academy agreed, Ms Nicholls returned for one day and then chose not to continue with the course. d) Ms Nicholls did not pass any of the 33 course requirements during her period of attendance even though she was supported through extra time, by being allowed to undertake open book tests and in numerous other ways. Ms Nicholls did not take the opportunity to make up lost time on Mondays. e) The Academy was the subject of abuse from Ms Nicholls, rather than the protagonist. It had received complaints about Ms Nicholls from other students. f) Ms Nicholls did not take responsibility for her own learning. g) The Academy was not told that it should have its witnesses available at the hearing. It had received legal advice that, because the dispute -- 2 of 5 -- 3 was a contractual matter, the Tribunal would not require the attendance of a Ms Emerson, an employee whose evidence was central to the dispute, or any other witnesses. h) The anger and aggression displayed by the learned Magistrate was prejudicial to the Academy’s case. The learned Magistrate simply dismissed the contractual issue, and cast aside the Academy’s supporting statements. [6] The matters referred to in paragraphs 4(a) to (f) above are matters of evidence that should have been raised at the hearing. Indeed, a perusal of the transcript shows that some of these matters were ventilated: Ms Hahn, on behalf of the Academy, told the Tribunal about the transfer of ownership; 1 the learned Magistrate also knew that Ms Nicholls had tried to return to complete her studies; 2 Ms Nicholls’ academic transcript was before the Tribunal; and Ms Hahn gave evidence of the fact that Ms Nicholls received a full treatment kit. 3 Interestingly, there is little evidence from Ms Hahn that Ms Nicholls was abusive towards the Academy. [7] The Tribunal must take all reasonable steps to ensure that each party to a proceeding understands its practices and procedures. 4 It has developed a website which provides relevant information to parties attending Tribunal hearings. Relevantly, the website says this about the day of the hearing: Hearing The aim of the hearing is to make a final decision about your case. It is usually in your best interest to come to the hearing if the application has been made against you. Be prepared You need to bring every document, invoice, receipt, quotation and or other piece of evidence that you are relying on and give them to the members or adjudicators at the hearing. Make sure that you are organised and have evidence to support the main points of your argument…. During the hearing Evidence may be presented and submissions may be made. You and your witnesses may be required to swear an oath on a bible or make an affirmation that you promise to tell the truth when you give evidence. You and your witnesses may also be asked questions, called cross- examination, by the other party. Members or adjudicators who decide the matter may also ask you questions. The person who made the original application to QCAT (the applicant) and their witnesses will be heard first. The other party (the respondent) will have the opportunity to cross-examine the applicant and the applicant’s witnesses. The respondent may then present its own witnesses, who may then be cross- examined by the applicant. If there is a good reason why a witness cannot come to the hearing, you should bring an affidavit sworn by the witness setting out the evidence 1 Transcript page 36, lines 39 - 45. 2 Transcript page 33, lines 26 – 27. 3 Transcript page 38, line 13. 4 Section 29(1)(a) QCAT Act. -- 3 of 5 -- 4 [8] The Academy does not assert that its officers and, in particular, Ms Hahn are subject to any disability or particular cultural or linguistic background which required the website information to be communicated in a different way. The Academy admits that it had the benefit of legal counsel. It made a conscious decision not to call witnesses; it must bear the consequences of that decision. The Academy has not explained why it did not provide the learned Magistrate with the “new” evidence contained in its submissions to this Appeal Tribunal, and there is no apparent reason for that failure. That evidence may not, in those circumstances, be considered in determining this appeal. [9] The Academy’s real complaint concerns the learned Magistrate’s conduct of the hearing. The Minor Civil Dispute jurisdiction is a busy and demanding one, and Magistrates and QCAT Adjudicators are often required to make decisions in a very short time. Parties before the Tribunal can misinterpret a Tribunal Member’s forthright and practical approach as evincing anger or rudeness when the Member is simply trying to discover the real issues in a matter, and adjudicate upon them fairly (and promptly). [10] While the conduct of this hearing was somewhat unorthodox, in that people in the back of the court volunteered information without being sworn, the learned Magistrate did hear sworn testimony from a number of witnesses and Ms Hahn was given an opportunity to cross-examine those witnesses. Ms Hahn pointed out the terms of the contract5 and the learned Magistrate took the time to read the contract before making her decision. The learned Magistrate specifically asked the parties whether they were satisfied that she had everything before her that she needed to make a decision. 6 [11] It is true that the learned Magistrate placed little or no weight on the statements provided by the Academy. The Tribunal is not bound by the rules of evidence: QCAT Act, s 28(3)(b); and may inform itself in any way it considers appropriate: s 28(3)(c). Some of the statements were not signed by those who made them, and the witnesses were not available for cross examination by Ms Nicholls. [12] The Tribunal did not have the benefit of direct evidence from Ms Emerson, whom the learned Magistrate described as “the heart of the problem”. 7 An Appeal Tribunal will only interfere with a finding of fact if the conclusion at first instance is contrary to compelling inferences in the case. Nothing in the evidence suggests the findings the learned Magistrate made were not reasonably open, or that the learned Magistrate’s approach to the evidence was flawed. 5 Transcript page 2 line 39, page 36, lines 10 to 18. 6 Transcript page 38, lines 24-25. 7 Transcript page 5 line 17. -- 4 of 5 -- 5 [13] Contrary to the Academy’s assertion, the learned Magistrate did consider the contractual issues. She found that the contract had been frustrated by the Academy’s actions. [14] The Academy is unable to point to any error of law, or anything suggesting some injustice has arisen because of the manner in which this matter was heard, or determined. The decision made by the learned Magistrate was clearly open to her and there is no basis for this Appeal Tribunal to interfere. [15] Leave to appeal should be refused. -- 5 of 5 --