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Tow.com.au Pty Ltd v Moffatt; Tow.com.au Pty Ltd v Fuller; Tow.com.au Pty Ltd v Kalirwa; Tow.com.au Pty Ltd v Mudford[2017] QCATA 55

Tow.com.au Pty Ltd v Moffatt; Tow.com.au Pty Ltd v Fuller; Tow.com.au Pty Ltd v Kalirwa; Tow.com.au Pty Ltd v Mudford[2017] QCATA 55

CITATION:

Tow.com.au Pty Ltd v Moffatt & ors [2017] QCATA 55

PARTIES:

Tow.com.au Pty Ltd

(Applicant/Appellant)

 

v

 

Adrian Carl Moffatt

(Respondent)

APPLICATION NUMBER:

APL404-16

PARTIES:

Tow.com.au Pty Ltd

(Applicant/Appellant)

 

v

 

Mark Iain Fuller

(Respondent)

APPLICATION NUMBER:

APL405-16

PARTIES:

Tow.com.au Pty Ltd

(Applicant/Appellant)

 

v

 

Melanie Kalirwa

(Respondent)

APPLICATION NUMBER:

APL407-16

PARTIES:

Tow.com.au Pty Ltd

(Applicant/Appellant)

 

v

 

Daniel Joseph Mudford

(Respondent)

APPLICATION NUMBER:

APL408-16

MATTER TYPE:

Appeals

HEARING DATE:

24 April 2017

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

15 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

IN ALL OF THE APPEALS:

  1. The time for filing an application for leave to appeal the decisions of 13 May 2016 is extended to 29 November 2016.
  2. Leave to appeal granted.
  3. The appeal is allowed.
  4. The decisions of 13 May 2016 are set aside.

AS TO EACH APPEAL:

  1. In APL404-16, the Appeal Tribunal directs the Principal Registrar to issue a decision in default of appearance requiring Adrian Carl Moffatt to pay $3593.74.
  2. In APL405-16, the Appeal Tribunal directs the Principal Registrar to issue a decision in default of appearance requiring Mark Iain Fuller to pay $3596.85.
  3. In APL407-16, the Appeal Tribunal directs the Principal Registrar to issue a decision in default of appearance requiring Melanie Kalirwa to pay $4407.24.
  4. In APL408-16, the Appeal Tribunal directs the Principal Registrar to issue a decision in default of appearance requiring Daniel Joseph Mudford to pay $3656.80.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – judgment in default of pleadings or particulars – where respondent failed to file a response to a minor debt claim – where applicant applied for default judgment – where default judgment was refused – where applicant was made to prove debt claim at hearing – whether this was the appropriate procedure – whether grounds for leave to appeal

Police Powers and Responsibilities Act 2000 (Qld) s 112

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 61, 50, 142(3)(a)(i)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 60

Uniform Civil Procedure Rules 1999 (Qld) r 281

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309

Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229

Cusack v De Angelis [2007] QCA 313

Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION:

 

APPLICANT:

C Heilbronn, solicitor, Minter Ellison

RESPONDENT:

No appearance.

REASONS FOR DECISION

  1. [1]
    Each of the respondents to this application for leave to appeal had their motor vehicles impounded under the ‘hooning’ provisions of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA). Each of them was liable to pay the costs of towing and storing their motor vehicles.[1]
  2. [2]
    The Queensland Police Service (QPS) engaged Tow.com.au Pty Ltd to manage the towing and storage of impounded vehicles. Tow.com.au issued an invoice to each of the respondents setting out the towing and storage costs after applying the proceeds of sale of their motor vehicles in appropriate cases. The respondents did not pay.
  3. [3]
    Tow.com.au filed minor debt claims against the respondents in the tribunal. The respondents did not file a response. Tow.com.au applied for a decision in default of a response but, by a decision dated 13 May 2016,  the tribunal refused the application and listed the claims for hearing. On 20 October 2016, the tribunal dismissed the claims against Adrian Moffatt, Daniel Mudford and Melanie Kalirwa. Tow.com.au claimed $3,427.61 against Mark Fuller. The tribunal ordered Mr Fuller pay Tow.com.au $1,107.57.
  4. [4]
    Tow.com.au wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[2] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[3]
  5. [5]
    Tow.com.au says the tribunal erred in extending its task beyond its administrative function when considering the application for a decision by default. It says the tribunal erred in concluding that there was only one scale of costs for towing and storage.

Preliminary matters

  1. [6]
    Although Tow.com.au nominated the tribunal decisions of 20 October 2016 as the decisions against which it appealed, it became clear in the course of argument that its real complaint was against the tribunal’s decisions of 13 May 2016 to refuse a decision by default.
  2. [7]
    Tow.com.au did not file its applications for leave to appeal those decisions within the 28 day time limit.[4]
  3. [8]
    The tribunal may extend a time limit fixed for the start of a proceeding fixed by the QCAT Act,[5] even if the time for complying with the relevant requirement has passed.[6] However, the tribunal cannot extend time if to do so would cause prejudice or detriment to a party to a proceeding, not able to be remedied by an appropriate order for costs or damages.[7]
  4. [9]
    As the appeal tribunal has observed,[8] consideration of whether or not an extension should be granted is a two-step process. Firstly, the appeal tribunal must consider whether to do so would cause prejudice or detriment to a party to a proceeding, not able to be remedied by an appropriate order for costs or damages.
  5. [10]
    The respondents have not engaged with the tribunal’s process. There is a debt owed to Tow.com.au. I am not persuaded that the respondents would be prejudiced by extending the time in which to file an application for leave to appeal.
  6. [11]
    That being so, it is necessary to consider the second step in the process; that is, whether the appeal tribunal should exercise its discretion to grant an extension. Factors which are relevant to this exercise include:
    1. Whether a satisfactory explanation (or “good reason”) is shown to account for the delay. 
    2. The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).
    3. The length of the delay.
    4. Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.[9]
  7. [12]
    I understand why Tow.com.au may have waited for the tribunal proceedings before deciding to appeal the refusal to grant the default decision as it clearly expected to be successful. Tow.com.au took action within time after the decision of 20 October 2016. There is a satisfactory explanation for the delay and the delay was not lengthy.
  8. [13]
    For reasons that follow, I am satisfied that Tow.com.au has a strong case. I am also satisfied that the interests of justice favour the grant of an extension as there are important lessons for the tribunal in my reasons for decision.
  9. [14]
    The time for filing an application for leave to appeal the decisions of 13 May 2016 should be extended to 29 November 2016.

Did the tribunal err in extending its task beyond its administrative function?

  1. [15]
    If a respondent does not respond to a claim to recover a debt or liquidated demand, the applicant may apply to the tribunal for a decision by default.[10] An application for decision by default must:
    1. Be made in the approved form.
    2. Have attached to it an affidavit of service.
    3. Have an affidavit of debt.[11]
  2. [16]
    If there is an application for a decision by default, the principal registrar may make the decision.[12]
  3. [17]
    Tow.com.au did apply in the approved form. Tow.com.au did supply an affidavit of service. Tow.com.au did supply an affidavit of debt.
  4. [18]
    The principal registrar’s delegate did not issue a decision by default. Instead, the matter was referred to an Adjudicator with these notes:
    1. It is unclear if an agreement was reached for the respondent to pay the applicable impoundment fees.
    2. The person serving the document has not specified how they identified service on the correct person.
    3. Is the amount a minor debt?
  5. [19]
    The Adjudicator determined that a decision by default should not issue.
  6. [20]
    I accept Tow.com.au’s submission that the decision to issue (or not) a decision by default is an administrative decision.[13] The tribunal is, in that respect, no different from the Court when it is asked to exercise its default judgment power.[14] The decision to refuse an application for decision by default lies with the principal registrar. If the principal registrar, or her delegate is in doubt, then there should be an administrative refusal, not a referral to the tribunal for advice or direction.
  7. [21]
    If an applicant has satisfied the requirements for a decision in default, there can be no reason for the principal registrar to refuse to issue a decision in default. It is not for the registry to go behind the application, or to forensically examine the basis of the claim. As Ms Heilbronn, for Tow.com.au pointed out to me, the absence of a response means that all of the allegations are deemed to be admitted.
  8. [22]
    The principal registrar’s delegate erred in questioning whether Tow.com.au reached an agreement with the respondents. Tow.com.au attached an invoice to each of its claims. They were clearly liquidated claims and the fact of an agreement, or absence of an agreement, was irrelevant.
  9. [23]
    The principal registrar’s delegate erred in noting that the person serving the document had not identified how they identified service on the correct person. Personal service can be effected by leaving the document with someone who is apparently an adult at the individual’s last known residence.[15] The affidavit of service records that it was left with a person who was apparently an adult at the respondents’ address. That is sufficient.
  10. [24]
    The tribunal did extend its task beyond its administrative function when considering the application for a decision by default. Leave to appeal should be granted and the appeal allowed. The principal registrar should be directed to issue a decision in default of appearance.

Did the tribunal err in concluding that there was only one scale of costs for towing and storage?

  1. [25]
    I have considered this ground of appeal in another, related, appeal.[16] Because these appeals are allowed on a different ground, and the Tow.com.au application will now properly be dealt with as an administrative decision, there is no power or purpose in looking behind the invoice Tow.com.au issued. For these reasons, I do not propose to consider this ground any further.

Footnotes

[1] Police Powers and Responsibilities Act 2000 (Qld) s 112.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(3)(a)(i).

[3] Pickering v McArthur [2005] QCA 294 at [3].

[4]  QCAT Act s 143(4)(b).

[5]  Ibid s 61(1)(a).

[6]  Ibid s 61(2).

[7]  Ibid s 61(3).

[8] Coppens v Water Wise Design Pty Ltd [2014] QCATA 309 at [8].

[9] Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229.

[10]  QCAT Act s 50(1) and (2).

[11]  QCAT Rules r 60.

[12]  QCAT Act s 50(3).

[13] Cusack v De Angelis [2007] QCA 313 at [37].

[14]Uniform Civil Procedure Rules 1999 (Qld) r 281.

[15]  QCAT Practice Direction 8 of 2009.

[16] Tow.com.au Pty Ltd v Avery.

Close

Editorial Notes

  • Published Case Name:

    Tow.com.au Pty Ltd v Adrian Carl Moffatt; Tow.com.au Pty Ltd v Mark Iain Fuller; Tow.com.au Pty Ltd v Melanie Kalirwa; Tow.com.au Pty Ltd v Daniel Joseph Mudford

  • Shortened Case Name:

    Tow.com.au Pty Ltd v Moffatt; Tow.com.au Pty Ltd v Fuller; Tow.com.au Pty Ltd v Kalirwa; Tow.com.au Pty Ltd v Mudford

  • MNC:

    [2017] QCATA 55

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    15 May 2017

Appeal Status

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

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