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New Start Auto Loans Pty Ltd v Baird[2024] QCAT 122

New Start Auto Loans Pty Ltd v Baird[2024] QCAT 122

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

New Start Auto Loans Pty Ltd v Baird [2024] QCAT 122

PARTIES:

NEW START AUTO LOANS PTY LTD

(applicant)

v

MANDY BAIRD

(respondent)

APPLICATION NO/S:

Q50917/23

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

22 March 2024

HEARING DATE:

22 March 2024

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

  1. The Applicant must on or by 12 April 2024 file written submissions with the Tribunal’s Southport Registry as to why the Tribunal should not now Order that it –
    1. file an amended Form 4 Application substituting in full its Particulars for those of Mr Bax and the Collection Agent including but not limited to its own contact details, address, email address, and address for service, and a current address for service on the Respondent; and
    2. serve the Amended Form 4 Application on the Respondent within 60 days thereafter.
  2. QCAT Registry put this file before Adjudicator Alan Walsh after 12 April 2024 for a decision on the papers.
  3. I DIRECT that a copy of these reasons be distributed to the Principal Registrar of QCAT and to the Deputy Registrar at Southport for future reference.

CATCHWORDS:

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – APPLICATION FOR MINOR DEBT – APPROVED ENTITIES – REPRESENTATION – SERVICE OF PROCEEDINGS – ORDERS AND DIRECTIONS – where Principal Registrar refused request for default decision – where Principal Registrar not satisfied service of Application for minor debt effected on Respondent – where delegate referred file to Adjudicator for directions – where Adjudicator of own motion gave leave to Applicant to serve by substituted service – where Collection Agent for Applicant requested reasons – where Collection Agent conveyed Applicant’s refusal to apply for leave to serve Respondent by substituted service – where no particulars of Applicant supplied in Form 4 Application for minor debt – where Collection Agent purported to represent Applicant without leave – where Collection Agent and its director not approved entities for filing applications and other documents in minor debt proceedings – where director of Collection Agent a disbarred solicitor – whether disclosure in the public interest – where Collection Agent and director gave their particulars in lieu of particulars of Applicant in Form 4 Application for minor debt – whether Collection Agent and director acted unlawfully – whether remedial Orders ought be made in interests of justice and expedition and to secure the effectiveness of Tribunal jurisdiction for the proceeding – whether Direction ought be made to alert Principal Registrar and Deputy Registrar in the event of repetition of conduct

Acts Interpretation Act 1954 (Qld), Schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 58, s 60, s 171, s 224

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 26, r 57, r 100A

Practice Direction 8 of 2009

Practice Direction 2 of 2011

Practice Direction 1 of 2023

Bax v Legal Practitioners Admission Board [2020] QCA 71

Bax v Legal Practitioners Board [2021] QCA 93

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Interim Procedural Orders – Reasons request

  1. [1]
    On referral of this file to me by a delegate of the Deputy Registrar following a refusal to enter a default decision, of my own motion[1] to expedite this minor civil dispute proceeding I ordered on 26 February 2024 that:
    1. the Applicant by 11 March 2024 file with the Tribunal Registry at Southport any application it wished to make for leave to serve the Respondent by substituted service; and
    2. the Tribunal Registry put the file before an Adjudicator after that date for review and further orders.
  2. [2]
    I now give reasons requested for making those orders.
  3. [3]
    I also give reasons for further orders I will make in the interests of justice, expedition, and to secure the effectiveness of the exercise of the Tribunal’s jurisdiction for the proceeding.

Request for Default Decision

  1. [4]
    Collection and Recovery Options Pty Ltd, by its director Craig Bax, filed a request for default decision on behalf of the Applicant on 28 November 2023 for payment of $5,861.12 for claim with interest at 25.99% plus $247.16 for costs.
  2. [5]
    The Collection Agent could not properly do so without leave first obtained, for reasons I will explain later.

Refusal Reasons

  1. [6]
    The Principal Registrar refused the default decision request on the ground that the affidavit of service showed that the Respondent was served at an address at which she no longer resided.
  2. [7]
    The Registrar said that the Tribunal could not be satisfied that the Form 4 Application came to the attention of the Respondent.[2]

Concurrence

  1. [8]
    I concur with the Principal Registrar’s refusal and reasons for refusal.
  2. [9]
    It is clear from the affidavit of service that the process server who attended and spoke with an occupant at the Eli Waters address given for the Respondent was told that Mandy Louise Baird no longer resided at the address.
  3. [10]
    Despite that, the process server deposed to service of the Form 4 there.
  4. [11]
    Service was, I find, not effected on the Respondent there, which explains why it is that I gave the Applicant leave to apply for an order for substituted service.

Refusal to Apply for Substituted Service Order

  1. [12]
    The Applicant has however not filed such an application and says that it will not do so.
  2. [13]
    It is difficult to understand why the Applicant would not want to advance the proceeding in that way.
  3. [14]
    Mr Bax says the following in an email to Southport-Civil-QCAT dated 27 February 2024.

Our client will not be seeking orders for substituted service as alluded to in the Order of 26 February 2024 but has instructed us to request written reasons from the Tribunal in respect of the referral to the Adjudicator and the order  made on 26 February 2024 which seems to ignore the content of paragraph 2(d) of the 2009 Practice Direction which permits service on a party to an MCD at that parties (sic) last known address if service under paragraphs 2(a), 2(b) and 2(c) is impractical.

Unlike in the Magistrates Court there is no requirement expressed in paragraph 2(d) of the 2009 Service Practice Direction for the MCD to come to the attention of the Respondent to be good service. The point has been endorsed twice by at least 2 different Tribunal Adjudicators in the matter of New Start Auto Loans Pty Ltd v Dominey 14 December 2023) MCD 0050916/2023 and in the matter of HHS Rent Pty Ltd v Pamela Truin (21 November 2017) MCD 00844/2017.

Our client instructs us to lodge a fresh Application for a Default Decision relying on service in paragraph 2(d) of the 2009 Service Practice Direction and that if the decision is rejected for the same it proposes subject to examination of the written reasons to appeal.

Discussion

  1. [15]
    Mr Bax has, in my view, misunderstood the meaning of the phrase “the individual’s last known place of …. residence.”
  2. [16]
    It literally means the last known address at which the person was residing, not the address where it is known from an adult’s reply to a question that the person to be served no longer lives there.
  3. [17]
    There is therefore some irony in the fact that the affidavit of service proves nonservice of process on the Respondent at the stated address.
  4. [18]
    As to the cases of Dominey and Truin to which Mr Bax refers, the latter is archived and unavailable.
  5. [19]
    I have however recalled and read the file in the former case.
  6. [20]
    In Dominey, an Adjudicator made a declaration by way of Order on 14 December 2023 in the following terms.
    1. Service of the Claim – Case number 0050916/23 was effected by way of service in accordance with Practice Direction 8 of 2009 paragraph 2(d) by being left with someone who appeared to be an adult at individual’s last known place of business or residence.
  7. [21]
    Section 60(5) of the QCAT Act states that the power to make a declaration is exercisable only by a legally qualified member, defined in Schedule 3 as a judicial member or an ordinary member or supplementary member who is a magistrate or a senior member who is an Australian lawyer of at least 6 years standing.
  8. [22]
    Who is a member is set out in section 171 of the QCAT Act. It makes no reference to an Adjudicator.
  9. [23]
    The Adjudicator apparently did not have the power to make the declaration he made in Dominey, in my respectful opinion.
  10. [24]
    That aside, Mr Goldsworthy, a licensed process server of the same address as the Collection Agent, swore to service of the Application in that case on Mr Dominey “at his last known place of business or residence in accordance with the Tribunal’s Practice Service Direction.”
  11. [25]
    Unlike in the present case, Mr Goldsworthy was not told by the adult at the given address that the person to be served no longer resided there, though it seems to me he refrained from asking the very question, the answer to which was fundamentally important.
  12. [26]
    I am in any event not bound by an order of another Adjudicator in another case, whether by analogy or otherwise. Nor, with respect, is the Principal Registrar so bound either. The analogy itself is inexact anyway, for the reasons I have already explained.
  13. [27]
    I now turn to further orders to be made and my reasons therefor, as earlier foreshadowed.

The Form 4 Application - for minor debt

  1. [28]
    In particulars of claim for minor debt, the Applicant seeks an order for repayment of money loaned to the Respondent in terms of a loan agreement dated 24 April 2018 attached to the Form 4 Application.
  2. [29]
    The Applicant’s address given in the loan agreement is 2/64 Ourimbah Road, Tweed Heads, NSW 2485 and the Respondent’s address at the time was 176/5 Easthill Drive, Robina.

Mr Bax/Collection Agent

  1. [30]
    Mr Bax describes himself in correspondence with Courthouse Southport as Managing Director, Options Group Collections, of Gold Coast Tax Suite 4.2, 58 Highland Way, Upper Coomera, Qld 4209. Options Group Collections (‘the Collection Agent’) is a company.
  2. [31]
    The Collection Agent by Mr Bax filed the Form 4 Application for minor debt electronically with the Tribunal on 6 September 2023.

Particulars

  1. [32]
    Particulars of the Applicant in the Form 4 Application are stated as follows.

Applicant Address: CARE OF COLLECTION AND RECOVERY OPTIONS PTY LTD, POB 411, SOUTHPORT BC QLD 4215

Applicant Solicitor/Agent Name: Craig Stephen Bax

Solicitor/Agent Name: Collection & Recovery Options Pty Ltd

Solicitor/Agent Business Address: POB 411, SOUTHPORT QLD 4215

Address for Service: POB 411, SOUTHPORT QLD 4215

Telephone: (13) 00855299

Fax: (13) 00855363

E-mail address: [email protected]

Description: Representative for the Applicant.

  1. [33]
    Those are not however particulars of the Applicant that the Form requires.
  2. [34]
    Rather, they are particulars of Mr Bax and the Collection Agent respectively, neither of whom have leave to represent the Applicant.

Approved Entities

  1. [35]
    There exists a list, last updated on 30 January 2024, of entities approved by the Principal Registrar for electronic filing of applications and other documents in minor debt proceedings pursuant to Rule 100A of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).
  2. [36]
    A search of the Resources Tab on the QCAT website informs the public of the following in this regard.
    1. Rule 26 of the Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules) allows an application or other document in a proceeding for a minor debt claim to be filed electronically if the document:
      1. is a document that may be electronically filed;
      2. is prepared by an approved entity which has an agreement with a service provider; and
      3. is filed at a prescribed registry office.
    2. Practice Direction 2 of 2011 prescribes the documents that may be electronically filed under rule 26 and the registry offices where the document may be filed.
    3. Pursuant to the QCAT Rules an “approved entity” is either a solicitor or firm of solicitors or an entity approved by the Principal Registrar.
    4. Rule 100A of the QCAT Rules provides that the Principal Registrar may approve an entity for the purpose of preparing a document to be electronically filed under rule 26(1).
    5. An entity specified in Schedule 1 is approved by the Principal Registrar for the purpose of preparing a document to be electronically filed under rule 26(1).
  3. [37]
    An extensive list of approved entities follows in the explanatory memorandum.
  4. [38]
    The meaning of “entity” in Schedule 1 of the Acts Interpretation Act 1954 (Qld) is that it “includes a person and an unincorporated body.”

Mr Bax/Collection Agent - not Approved Entities

  1. [39]
    Neither of Mr Bax nor the Collection Agent are an approved entity, therefore neither could lawfully file the Applicant’s Application for minor debt electronically on its behalf, as they purported to do.
  2. [40]
    Their problems, and therefore those of the Applicant, do not end there.

No Leave to Represent

  1. [41]
    Subject to exceptions that are not relevant in the present case, leave of the Tribunal must first be obtained before a party may be represented.[3]
  2. [42]
    However, the Applicant has not applied for such leave.

Prohibited Representatives

  1. [43]
    The Applicant would be unlikely to obtain leave to have Mr Bax and the Collection Agent represent it, having regard to statutory prohibitions concerning representation which would exclude them.
  2. [44]
    Section 43(4) of the QCAT Act provides that a party cannot be represented in a proceeding by a person –
    1. who, under rules made under section 224(3), is disqualified from being a representative of a party to a proceeding; or
    2. who is not an Australian legal practitioner or government legal officer, unless the Tribunal is satisfied the person is an appropriate person to represent the party.
  3. [45]
    Section 43(5) of the QCAT Act provides that a person who is not an Australian legal practitioner or government legal officer who is seeking to represent a party in a proceeding must give the Tribunal a certificate of authority from the party for the representation if –
    1. the party is a corporation; or
    2. the Tribunal has asked for the certificate.
  4. [46]
    By section 43(6), the Tribunal may appoint a person to represent an unrepresented party.
  5. [47]
    Section 224(1)(a) of the QCAT Act provides that the Governor in Council may make rules under this Act for the practices and procedures of the Tribunal or its registry, including practices and procedures for jurisdiction conferred on the Tribunal by an enabling Act.
  6. [48]
    Section 224(3) says that the rules may provide that a person is disqualified from being a representative of a party to a proceeding if the person has been –
    1. the subject of a stated disciplinary proceeding under an Act, a law of the Commonwealth or another State, or the rules of a professional or occupational association or other body; and
    2. found guilty in the proceeding of a stated type of professional misconduct (however called) or a breach of another stated professional or occupational standard.
  7. [49]
    Rule 57(1) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) provides that a person is disqualified from representing a party to a proceeding if –
  1. the person has been the subject of –
  1. a discipline application under the Legal Profession Act 2007 (Qld); or
  2. an application equivalent to a discipline application under a corresponding law within the meaning of the Legal Profession Act 2007 (Qld); and
  1. the person has been, in the proceeding, found guilty of professional misconduct or unsatisfactory professional conduct; and
  2. the president has not made a declaration under subrule (2) about the person.
  1. [50]
    Rule 57(2) in summary provides that the president may nevertheless declare a person referred to in subrule (1) is not disqualified if satisfied the conduct is not serious enough to disqualify the person from representing the party in the proceeding.

Mr Bax

  1. [51]
    Mr Bax is a former Queensland solicitor of the Supreme Court of Queensland who became disbarred for professional misconduct many years ago.
  2. [52]
    His attempts subsequently to be re-admitted as a solicitor of the Supreme Court of Queensland have been unsuccessful.
  3. [53]
    See the decisions of the Court of Appeal of the Supreme Court of Queensland in:

Bax v Legal Practitioners Admission Board [2020] QCA 71; and

Bax v Legal Practitioners Board [2021] QCA 93, in particular paragraphs [1] to [6]; paragraphs [9] and [10]; paragraphs [13] and [14]; paragraphs [17] and [18]; paragraphs [20] to [25]; paragraphs [27] to [71].

  1. [54]
    Therefore, Mr Bax and the Collection Agent are unlikely ever to be listed by the Principal Registrar as approved entities for filing applications in proceedings for a minor debt claim electronically.
  2. [55]
    There would be no point in the Applicant applying for leave to be represented by Mr Bax and the Collection Agent in those circumstances.

Path forward

  1. [56]
    In the circumstances, an order will need to be made to ensure that Mr Bax and the Collection Agent are removed from the record of proceedings and that the Applicant’s particulars are accurately and correctly set out. 
  2. [57]
    That is best achieved by requiring that the Applicant file an amended Form 4 Application, giving its particulars and including a current address for service of documents on it.
  3. [58]
    That is particularly important so that the Respondent is informed of the address at which she may lawfully serve a Form 7 Response, if she intends to defend the claim once served on her.
  4. [59]
    Obviously, the Form 4 Application so amended will have to be properly served on the Respondent at a current address or by way of substituted service if ordered in the event after reasonable enquiries that she cannot be found.
  5. [60]
    There is presently no email address given for Ms Baird in the Form 4 Application.
  6. [61]
    Therefore, none of the benefits and efficiencies of QCAT serving documents and communicating with parties by email according to QCAT Practice Direction 1 of 2023 are presently available in the case of the Respondent.

Submissions from Applicant

  1. [62]
    Lest it be said that procedural fairness has not been afforded to the Applicant in the circumstances in which it finds itself, I will give it the opportunity on or by 12 April 2024 to file written submissions with the Tribunal’s Southport Registry as to why the Tribunal should not now order that it:
    1. file an amended Form 4 Application substituting in full its Particulars for those of Mr Bax and the Collection Agent, including but not limited to its own contact details, address, email address, and address for service, and a current address for service on the Respondent.
    2. serve the Amended Form 4 Application on the Respondent within 60 days thereafter.
  2. [63]
    Non-compliance by the Applicant with those prospective Orders may result in a dismissal of the Application for minor debt as the consequence.
  3. [64]
    I will direct that a copy of these reasons be distributed to the Principal Registrar of QCAT and to the Deputy Registrar at Southport for future reference.

Footnotes

[1]  Pursuant to s 58(1) and (2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).

[2]  Letter Principal Registrar to Craig Stephen Bax dated 17 January 2024.

[3]  QCAT Act, s 43(2)(iv).

Close

Editorial Notes

  • Published Case Name:

    New Start Auto Loans Pty Ltd v Baird

  • Shortened Case Name:

    New Start Auto Loans Pty Ltd v Baird

  • MNC:

    [2024] QCAT 122

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Alan Walsh

  • Date:

    22 Mar 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bax v Legal Practitioners Admission Board(2020) 4 QR 156; [2020] QCA 71
2 citations
Jump To
Cite 1 - [2020] QCA 71
Cite 2 - [2020] QCA 71
Bax v Legal Practitioners Admissions Board [2021] QCA 93
2 citations
Jump To
Cite 1 - [2021] QCA 93
Cite 2 - [2021] QCA 93

Cases Citing

Case NameFull CitationFrequency
New Start Auto Loans Pty Ltd v Baird (No 2) [2024] QCAT 1771 citation
1

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