Grosse v Steffensen[2018] QCATA 177

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an appeal from the decision of a member of the tribunal who, on 27 April 2018, refused an application by Gavin Grosse to set aside or amend a default decision made on 12 March 2018.  In that decision he had been ordered to pay Cassandra Steffensen the sum of $3,650. The default decision was made because Mr Grosse had not submitted a Response to the claim filed in the tribunal by Ms Steffensen. 
2. [2]
   Ms Steffensen’s claim was made in an application filed in the tribunal on 14 December 2017 in which she claimed the $3,650 as an outstanding amount due to her from Mr Grosse as the unrepaid amount of loans she had made to him.
3. [3]
   That claim was made as a minor debt claim on Form 3.  If a respondent to such a claim wishes to defend it, then a Response in the approved form must be given to the applicant and filed in the tribunal within 28 days of service of the application on the respondent.^[1]   If this is not done, then the tribunal may make a default decision upon an application made by the applicant.^[2]
4. [4]
   The application for a default decision must include affidavit evidence showing service on the respondent, and an affidavit stating whether the debt is still due or how much remains outstanding.^[3]
5. [5]
   If a default decision is made, then the tribunal can set the decision aside or amend it on the respondent’s application.^[4]
6. [6]
   Mr Grosse’s application to set aside or amend the default decision was given to a member of the tribunal and he refused it.  After being asked to do so by Mr Grosse, the member gave the reasons for his decision on 13 June 2018.  His reasons were that the respondent had failed to show that he had a good defence to the claim.  He said that, apart from refuting the applicant’s claim, Mr Grosse had not produced any evidence showing that he had a defence on the merits, showing the amount of his repayments or the records of the loans which he said were all made by electronic transfer.  This could be contrasted with the strong evidence submitted by the applicant which included bank statements showing her withdrawals and numerous requests for repayment.

The appeal

7. [7]
   The main point made by Mr Grosse in this appeal is that he does not owe Ms Steffensen the amount of the default decision, but he owes her much less.^[5]  He submits a lot of documentary evidence with his appeal.  In summary, the evidence is aimed at showing that if an account is taken of what was owing to Ms Steffensen and what has been repaid in debt repayments but also in other ways, in particular in overpaid Child Support payments made either by himself or his parents, and an offset is allowed for half of some veterinary bills, then he only owes her a small amount of money.
8. [8]
   The difficulty with this is that an appeal is not normally an opportunity to introduce new evidence.  This is because to allow it would give a party another chance to fight a case which they have lost – thereby interfering with the tribunal’s need to deal with applications efficiently and with finality.  The usual rule is that evidence will not be considered on appeal if it could have been obtained with reasonable diligence for use before the original decision maker.  And if it is allowed, it would need to have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and it needs to be credible (though it need not be incontrovertible).^[6]
9. [9]
   Here a direction was made by the Appeal Tribunal that neither party would be allowed to rely upon any evidence which was not before the original decision maker without leave of the appeal tribunal.  No such leave has been given.^[7]
10. [10]
    On the assumption it may be right to reconsider this direction upon hearing this appeal, clearly the evidence which Mr Grosse now wishes to put before the Appeal Tribunal was available at the time when he applied to set aside or amend the default decision.  None of the evidence now put before the Appeal Tribunal was provided in that application and was not otherwise before the tribunal.  The approved form used to make that application, Form 55 (which was used by Mr Grosse), encourages a person to submit the documentary evidence on which they rely.^[8]  In addition to this, Mr Grosse was given an opportunity to make submissions to support the application.  His application was filed on 10 April 2018.  On 12 April 2018 the tribunal gave the parties until 4pm on 26 April 2018 to make written submissions on the application.  This was posted to Mr Grosse on 12 April 2018 at an address that he provided to the tribunal earlier that day.  He did not respond to this.  In the circumstances, it would be wrong to allow Mr Grosse to introduce new evidence in this appeal.
11. [11]
    It is recognised that a decision whether or not to set aside or amend a default decision is one of discretion.  This means that it should not be reversed on appeal unless it is shown that the tribunal acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.  It must be shown that the decision was plainly unjust or unreasonable, and involved a clear misapplication of the discretion.^[9]
12. [12]
    As can be seen from the reasons given by the member, his main concern was that Mr Grosse had not shown that he had a defence to the claim.  This is usually the most important issue in such applications, but there are also other considerations.^[10]
13. [13]
    When considering this, the question to be decided is whether the party seeking to set aside the decision has demonstrated a prima facie or substantial ground of defence.^[11]  Because Mr Grosse merely made assertions in his application on Form 55 without any supporting evidence and bearing in mind the cogent evidence provided by Ms Steffensen, the member regarded this as insufficient.
14. [14]
    The question whether, in an application to set aside or amend a default decision, a mere assertion that there is a defence is sufficient, when proof of the defence ought to be available, was considered by Applegarth J in Embrey v Smart [2014] QCA 75:-^[12]

The third matter has been described in different ways. Lord Atkin in Evans v Bartlam referred to rules that guide the discretion and one of them was ‘an affidavit of merits, meaning that the applicant must produce to the court evidence that he has a prima facie defence’. It has been said that the affidavit ‘must set out all the defences on which the defendant intends to rely and briefly set out the facts by which the defendant seeks to establish such defences’. The defendant must make more than a bare allegation: the allegation must be supported by ‘some reference to evidence to suggest that the defence is plausible and not just raised for the purpose of having default judgment set aside’. It is insufficient for an applicant:

“to allege that he has a defence upon the merits and swear to such a defence generally. He must go further and disclose what such merits are, and show to the court that his application is bona fide.”

15. [15]
    In the tribunal, where parties are generally self-represented as Mr Grosse was, an affidavit would not normally be expected – but the evidence that Mr Grosse now seeks to put before the Appeal Tribunal could have demonstrated to the member that he had a sufficient defence for the application to proceed to a hearing despite his default in responding to the claim.  Without it, the member found the mere assertion of a defence to be insufficient. 
16. [16]
    It would be necessary to show in this appeal that the member was clearly wrong to make the decision that he did.  On the material before him it cannot be said that he was clearly wrong.
17. [17]
    In this appeal, Mr Grosse also says that he did not receive the original claim from the tribunal in the mail.  This is also a point which he made in his application to set aside or amend the default decision.^[13]  This is probably correct because for a claim brought on Form 3, the tribunal does not give it to the respondent.  Instead, when the applicant files the claim a copy of it sealed by the tribunal and is returned to the applicant to be served on the respondent.  So this is done by the applicant and not by the tribunal.  The affidavit evidence filed by Ms Steffensen shows that she did serve the application on Mr Grosse.  This was done by service on him personally as required by the tribunal rules.^[14]  The procedure followed was therefore correct.  Mr Grosse does not deny he received the claim from Ms Steffensen although he does not admit it.  If Mr Grosse intended for this matter to be a ground of appeal, it cannot succeed as such.
18. [18]
    Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal.  Such leave will only be given if there is an arguable case on appeal.  Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence and is of such importance as to require leave to be given.  This is not the case here.  Leave to appeal is refused and the appeal therefore fails.