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Turley v Raylong Painting (No 1) QCATA 71
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Turley & Anor v Raylong Painting (No 1)  QCATA 71
ORIGINATING APPLICATION NO/S:
MCDO Stanthorpe 10/18
Appeals – Application to stay a decision
2 April 2019
On the papers
The application to stay the decision of Minor Civil Dispute claim number MCDO10/18 filed in Stanthorpe is refused.
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – STAY OF DECISION – where the applicants filed an application for leave to appeal and appeal against the decision of a magistrate – where the applicants filed an application to stay the operation of the decision – where the applicants failed to file submissions or evidence on the causation of any material detriment as a result of the refusal of the application to stay – where the applicants failed to file meaningful submissions on whether the balance of convenience favoured the grant of the stay – whether a stay can be granted when leave to appeal has not yet been granted – whether the application to stay should be granted.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 50
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- To avoid the pervasive misperception that final default judgments are merely provisional pending reversal on appeal the stay discretion is exercised cautiously. The enforcement process will not normally be interrupted at the request of a losing party unless the balance of relevant considerations clearly favours it.
- Particular care is taken when the applicant is seeking leave to appeal the exercise of a statutory discretion on procedural grounds. The leave principles applied by the appeal tribunal do not permit appeals from a rational and reasonable discretion based decision unless it is contrary to principle or is affected by relevancy or other vitiating error. The applicant carries the burden of identifying arguable error and the likelihood of substantial injustice if it is not corrected on appeal.
- The refusal to set aside the default judgment in this case was based on a finding that a compliant response was not filed in time and the material did not demonstrate a viable ground of defence. The applicant contends that a response was filed within 28 days of notice.
- A search of the file discloses that the documentation was served on 30 August 2018.
- Instead of filing a “response” in MCDO10/18 the applicants attached a “response” to a new Building Dispute that they lodged at Stanthorpe on 24 September, 2018. If the “response” had in fact been lodged correctly it would have been 3 days inside the MCD deadline. The “response” appears to have been filed with the BDL266/18 initiated by the applicants against the respondent and sent to QCAT Brisbane, not Warwick, 1 day after the default judgment. The respondent was not served with the document until around 6 weeks later. When the default judgment was administratively entered by the registry on 23 November 2018 it was 86 days after service of MCDO10/18.
- A copy of the “response” wasn’t attached to the application to set aside the default judgment filed 7 December 2018. This meant that the tribunal did not have a copy of it to consider before the decision in issue was made on 23 December 2018. Thus, the registrar, applicant and tribunal were all unaware of the applicant’s confusion until the Form 39 was filed.
- In their leave submissions the applicants argue that as there is no “time stated for the service of the response” in s 50 QCAT Act unlike filing service of a response is not a pre-condition and the judgment should have been set aside as irregular. They also assert that any fault lies with the Stanthorpe registry and not with them.
- However, a stay is granted on the basis that the balance of convenience favours it because there are good prospects of leave and success on appeal and enforcing an order likely to be overturned for error is inconsistent with the objects of time and cost-efficient justice.
- I am not satisfied on a preliminary assessment that there is any error in the refusal to set aside. The uncontested fact is that a compliant response has never been filed in MCDO10/18 and the tribunal did not act on any mistake about that. It does not really matter that the faux response was lost or not served for an unreasonable time after it was filed in BDL266/18.
- Even where there is some procedural unfairness in a practical sense it is still a matter of discretion whether setting aside a regularly entered judgment is called for. A key question for the tribunal was whether the applicant lost a real chance of a better result on the merits.
- Hence the requirement for applicants to put on prima facie evidence of facts supporting asserted defence, in this case, performance breaches by the respondent, to show there is a viable set off defence or credible cross claim. Although the applicants refer to a “bundle” of evidence (said to be attached to the “response” supporting the defence) it has ever been located by the registries and more importantly was not provided to the appeal tribunal either with the Form 55 (set aside default judgment) Form 39. In other words QCAT still has no evidence supporting a defence of the MCD claim except asserted non-compliance with formal statutory requirements that do not bar enforcement of oral agreements anyway.
- The tribunal’s simplified procedures and focus on practical justice over party driven adversarialism pose a sizeable obstacle for a leave applicant relying on legal error. It may be, for instance, where, as here, the only remedy sought is remittal for reconsideration of the substantial merits in MCDO10/18 the most appropriate option is to leave the question of whether the applicants are entitled to offset costs incurred for completion and rectification work to be resolved in BDL266/18.
- There is no suggestion that the amount to be paid plus interest cannot be reimbursed if the tribunal’s decision is overturned or that the loss of use of the money will cause financial hardship in the meantime.
- Nor is there reason to suppose that success on appeal nugatory if the stay is denied or some other valid ground for depriving respondents of the fruits of victory is expected.
- Accordingly, there is insufficient justification for disrupting the status quo.
- The applicants have failed to meet the standard tests for a stay pending appeal.
- The application is dismissed.
- Published Case Name:
Amrin Turley and Caroline Turley v Raylong Painting (No 1)
- Shortened Case Name:
Turley v Raylong Painting (No 1)
 QCATA 71
02 Apr 2019