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Athanassiadis v Deur[2018] QCATA 139

Athanassiadis v Deur[2018] QCATA 139

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Athanassiadis v Deur [2018] QCATA 139

PARTIES:

BASIL ATHANASSIADIS

(appellant)

 

v

 

NIKOLA DEUR

(respondent)

APPLICATION NO/S:

APL001-18

ORIGINATING APPLICATION NO/S:

MCDO1489-17 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

25 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where respondent failed to file response to a minor debt claim – where application made to set aside default judgment – where Justice of the Peace refused the application – where no error on the part of the Justice of the Peace identified in the application for leave to appeal or appeal – where a ground of appeal identified in submissions

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 50(2), s 51, s 142(2)(b)

Ali v Twiyo Trading Trust [2018] QCATA 67

House v R (1936) 55 CLR 499

Norbis v Norbis (1986) 161 CLR 513

Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429

Pickering v McArthur [2005] QCA 294

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

  1. [1]
    Mr Deur agreed to do some renovation work for Dr Athanassiadis at the latter’s house at Annerley. The agreed cost was $5,650.
  2. [2]
    The parties fell into dispute about some of the work and Dr Athanassiadis withheld $900 pending the work being completed to his satisfaction.
  3. [3]
    Mr Deur sued Dr Athanassiadis in the Tribunal for that balance of money. He served a copy of the Minor Debt application on Dr Athanassiadis on 19 August 2017. Dr Athanassiadis failed to file a response to the claim within 28 days as required and on 21 September 2017 Mr Deur applied for and was granted default judgment on 27 September 2017 in the full amount of his claim.
  4. [4]
    On 18 October 2017 Dr Athanassiadis applied to set aside the default decision. That was heard on the papers by a Justice of the Peace on 17 November 2017 after both parties were allowed to file submissions about the application. The Justice of the Peace refused the application to set aside the default decision.
  5. [5]
    Dr Athanassiadis wants to appeal that decision: the decision not to set aside the default judgment.
  6. [6]
    The decision by default was given pursuant to s 50(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
  7. [7]
    By s 51 of the QCAT Act:

Setting aside decision by default

The tribunal, on application by the respondent, may set aside or amend a decision by default on terms, including terms about costs and the giving of security, the tribunal considers appropriate.

  1. [8]
    Dr Athanassiadis’ application to set aside the decision by default was pursuant to s 51 but he was unsuccessful.
  2. [9]
    By s 142(2) of the QCAT Act:

142 Party may appeal

  1. (1)
    A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding.
  1. (2)
    However, a party to a proceeding can not appeal to the appeal tribunal against the following decisions of the tribunal—

  1. (b)
    a decision to set aside a decision by default under section 51;
  1. [10]
    Had the Justice of the Peace decided to set aside the default decision then there could be no appeal against that order. Presumably the party who would be applying in that case would be the applicant in the matter. However the legislation says nothing about an appeal from a decision refusing to set aside a default decision.[1]
  1. [1]
    Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[2]
  1. [2]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[3]
  2. [3]
    What is the error to be corrected? Dr Athanassiadis does not say that the Justice of the Peace made any error. He is clearly dissatisfied with the decision, but dissatisfaction does not constitute a basis to apply for leave to appeal or appeal. Instead he simply refers to Mr Deur’s incomplete or defective work.
  3. [4]
    Parties who act for themselves often mistake an appeal as simply another opportunity to argue their case. It is not for that purpose. The objective of the appeal process is to correct an error that that has occurred in the proceeding below. The appellant must at minimum however identify that an error has been. It is not for the Appeal Tribunal to look for and perhaps find errors which will justify setting aside the decision. An appellant need not identify what the error was but he is required to show that there is a real or significant argument to be put that error exists.[4]
  4. [5]
    Broadening the search for possible grounds of appeal to submissions filed by the parties in the appeal, Dr Athanassiadis filed a submission where again he principally repeated his assertions about poor or incomplete work on the part of Mr Deur. He did  also comment however that he had not been aware of the requirement to lodge a response ‘to the original submission made on 27 September 2017 Brisbane claim 1489/17 as he thought the two parties would be called to the tribunal to discuss the matter.’
  5. [6]
    I conclude this is Dr Athanassiadis’ ground of appeal and his only ground of appeal relied on.
  6. [7]
    I proceed to consider it. I note there was no submission required to be made on 27 September 2017. Default judgment was given that day on the failure of Dr Athanassiadis to file a response to the minor debt application served on him on 19 August 2017.
  7. [8]
    The minor civil dispute minor debt application states very clearly in a large shaded box at the top of the front of the document that a response must be filed within 28 days of service otherwise the applicant may apply for a decision by default. Parties must take some responsibility for their own conduct and cases. Dr Athanassiadis’ failure to read the document properly and respond as all respondents served with such are required to respond under the rules of the Tribunal does not amount to an error on the part of the Tribunal or the Justice of the peace that should be corrected by granting leave to appeal.
  8. [9]
    The decision of the Justice of the Peace not to set aside the default judgment was within the scope of decisions possible. It was an exercise of discretion within permissible bounds and just because the Appeal Tribunal may have adopted a different position with respect to the failure (and delay in seeking to have the default judgment set aside) does not mean the Appeal Tribunal should set aside the decision below and substitute its own view of the matter in balancing factors such as reason for the failure, explanation for delay and the prospects of success of the proposed defence.[5]
  9. [10]
    No ground of appeal is made out. Leave to appeal is refused.

Footnotes

[1] Ali v Twiyo Trading Trust [2018] QCATA 67.

[2] QCAT Act, s 142(3)(a)(i).

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

[4] Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429, [9].

[5] House v R (1936) 55 CLR 499, 504-505; Norbis v Norbis (1986) 161 CLR 513, 518-519

Close

Editorial Notes

  • Published Case Name:

    Athanassiadis v Deur

  • Shortened Case Name:

    Athanassiadis v Deur

  • MNC:

    [2018] QCATA 139

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    25 Sep 2018

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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