Davy v Ryter Planning Pty Ltd [2010] QCATA 96

CITATION: Davy v Ryter Planning Pty Ltd [2010] QCATA 96 618 PARTIES: Mr Ron Davy (Applicant/Appellant) v Ryter Planning Pty Ltd (Respondent) APPLICATION NUMBER: APL159 -10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 6 December 2010 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused CATCHWORDS : MINOR CIVIL DISPUTE – CONSUMER DISPUTE – PROFESSIONAL TOWN PLANNING CONSULTING SERVICES – JURISDICTION – where appellant engaged respondent for professional town planning consulting services – where service fees remained outstanding – where respondent filed a Minor Debt Claim – where Magistrate ordered appellant to pay outstanding claim – whether claim was liquidated debt – whether Tribunal had jurisdiction to determine the matter MINOR CIVIL DISPUTE – CONSUMER DISPUTE – LEAVE TO APPEAL – where appellant engaged respondent for professional town planning consulting services – where service fees remained outstanding – where appellant failed to appear at hearing – where Magistrate ordered appellant to pay outstanding claim – whether learned Magistrate was entitled to proceed with the hearing – whether the decision is supported -- 1 of 5 -- 2 by evidence – whether leave should be granted MINOR CIVIL DISPUTE – CONSUMER DISPUTE – LEAVE TO APPEAL – NEW EVIDENCE – where appellant submitted new evidence – whether evidence was available prior to the hearing Queensland Civil and Administrative Tribunal Act 2009, ss 57(1), 93(2), 142(3), Schedule 3 Chambers v Jobling (1986) 7 NSWLR 1, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435, applied Dearman v Dearman (1908) 7 CLR 549 Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65, cited Fox v Percy (2003) 197 ALR 201, applied Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited Peoples & ors v Thornton & ors [1995] QCA 188, applied Spain v Union Steamship Company of New Zealand Ltd (1923) 32 CLR 138, applied Quyd Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, cited APPEARANCES and REPRESENTATION: This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 2 of 5 -- 3 REASONS FOR DECISION [1] Ryter Planning Pty Ltd specialises in professional town planning consulting services. It filed a Minor Debt Claim against Mr Ron Davy in the Maroochydore Magistrates Court for recovery of fees associated with the provision of professional consulting services. Mr Davy filed a Defence contesting that he engaged Ryter Planning for any consulting services. [2] The claim was subsequently transferred to QCAT’s Minor Civil Disputes jurisdiction. It was initially set down for mediation on two separate occasions, but Mr Davy failed to appear for both. A hearing was then listed for 2 June 2010 but adjourned because Mr Davy again failed to appear. [3] The claim was finally heard on 7 July 2010. Mr Ryter, the sole director of Ryter Planning, attended on its behalf. Mr Davy, however, telephoned the Tribunal that day to request another adjournment. The learned Magistrate, acting as a QCAT Adjudicator, proceeded with the hearing in his absence and ordered that he pay the outstanding debt sought by Ryter Planning, together with interest and filing fees. [4] Mr Davy now seeks leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3)(a)(i). By order of this Appeal Tribunal it was directed that the application for leave to appeal be determined by written submissions according to a timetable, and both parties have delivered and exchanged submissions. [5] Mr Davy alleges that he could not attend the hearing because his mother was ill that day, but he has not tendered any medical certificate or any other evidence to corroborate the claim. He contends, too, that it would be unjust to let the decision stand because he has a valid defence to the claim. Ryter Planning, on the other hand, submit that the evidence presented at the hearing persuasively defeats any allegation of a valid defence and that Mr Davy’s appearance would not, in any event, have changed the outcome. [6] A preliminary question that was not addressed at the hearing or by the parties is whether QCAT has jurisdiction to determine the matter. Schedule 3 of the QCAT Act defines a “Minor Civil Dispute” according to a two-limb test: (a) a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount; or (b) a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is— (i) for payment of money of a value not more than the prescribed amount; or (ii) for relief from payment of money of a value not more than the prescribed amount. -- 3 of 5 -- 4 (emphasis added) [7] A “trader” is defined to mean a person who in trade or commerce carries on a business of supplying goods or services, but not if that person “acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce.” [8] For reasons discussed by the Deputy President in Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65, a professional town planning consultant would not fall within the meaning of a trader under the QCAT Act. [9] The question that arises, then, is whether the claim is a debt or liquidated demand of money. A liquidated demand is a claim that can be calculated or ascertained by a formula1. In support of its claim for consulting fees, Ryter Planning tendered a tax invoice describing the services it rendered and how the fees were calculated. In view of the tax invoice, I am satisfied that the claim is a liquidated debt and that QCAT has jurisdiction to determine the matter. [10] Leave to appeal is ordinarily granted where there is a reasonably arguable case of error in the primary decision and leave is necessary to correct a substantial injustice to the applicant caused by that error2; and that there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage3. [11] The first hurdle facing Mr Davy is that QCAT has an express power to make orders in the absence of a party who has reasonable notice of the hearing4, and this was confirmed in the Notice of Hearing that was issued to him. Mr Davy’s excuse is not supported by any evidence. Under the circumstances, it cannot be said that the learned Magistrate erred in proceeding with the hearing. [12] The other difficulty he must overcome is that findings of fact by the primary decision-maker will usually not be disturbed on appeal if the facts inferred are capable of supporting the conclusions5 and are not contrary to compelling inferences6. [13] The transcript of the proceeding shows that Mr Ryter gave oral evidence on oath and tendered a tax invoice in support of his claim that he was engaged by Mr Davy to provide consulting services. Mr Davy, on the other hand, did not file any material in addition to his Defence. The learned Magistrate’s findings were reasonably open on the evidence before him 1 Spain v Union Steamship Company of New Zealand Ltd (1923) 32 CLR 138 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 at [6] 3 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 4 QCAT Act, ss 57(1)(b), 93(2) 5 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10 -- 4 of 5 -- 5 and nothing in Mr Davy’s submissions is able to point to any compelling inferences to the contrary. [14] In short, there is no demonstrated or discernable error in the learned Magistrate’s decision; nor is there a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. For these reasons, leave to appeal should be refused. [15] For completeness, however, I should mention that both Mr Davy and Ryter Planning submitted fresh evidence without first seeking leave of this Tribunal. Ordinarily, new evidence will only be allowed in an appeal if it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result7. [16] For his part, Mr Davy submitted an undated document that concerns events which took place prior to the QCAT hearing. He contends that this document demonstrates that Ryter Planning was in fact engaged by another person to provide the consulting services. Mr Davy has not, however, offered any explanation why the document was not made available prior to the hearing. The fact that he might have overlooked the significance of the document prior to the hearing is not a ground for admitting it as fresh evidence8. Even if I were to grant Mr Davy leave to submit that evidence, I am not persuaded that it would have produced a different result. 7 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, at 408; Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 8 Peoples & ors v Thornton & ors [1995] QCA 188 -- 5 of 5 --