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Turley v Raylong Painting (No 2) QCATA 72
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Turley & Anor v Raylong Painting (No 2)  QCATA 72
ORIGINATING APPLICATION NO/S:
MCDO Stanthorpe 10/18
29 May 2019
On the papers
Leave to appeal is refused and the application is dismissed.
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where default orders were made against the applicants to pay house painting invoice – where deficient response was actually filed in time – where bare denial of alleged indebtedness but no ground of defence adequately particularised – where the applicants filed a domestic building dispute based on unremedied defects and failure to perform the same contract – where filed document misdirected due to registry error – where reopening on irregularity and alternative procedural fairness grounds refused – whether default and reopening decisions based on the same mistake of fact – whether leave to appeal should be granted.
Queensland Building and Construction Commission Act 1991 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 51
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rule 45
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
- The applicant’s submissions were prepared by a firm of solicitors. It is not clear if or when legal representation was permitted or warranted.
- The decisive issue is whether the tribunal order is capable of being considered a fair and equitable one for resolving the parties’ minor civil dispute where it was made in default of appearance despite a form of response having been filed in time.
- The respondent contends that as the filed response was not disclosed to the tribunal when the default decision was made the applicants should bear the loss of their own failure to protect their litigation interests.
- The respondent filed a minor debt claim (MCDQ10/18) for painting work in the Stanthorpe registry on 16 August 2018.
- The application was served on 30 August 2018.
- The respondent lodged a request for decision by default on 23 November 2018.
- The principal registrar at Warwick ordered the applicant to pay the respondent $2,494.43 because there was no filed Form 7 within the prescribed 28 days after service (Rule 45).
- The applicant filed a Form 55 to amend the default decision as irregular based on the assertion that a response to the minor debt claim was filed in the registry where the minor debt claim was started within 28 days after receipt of a copy.
- Although final an ex parte decision is less secure than one made after a contested hearing and may be revoked where the default is satisfactorily explained, and the applicant has an arguable case on the merits.
- However, the applicants did not verify the asserted fact of filing by affidavit or exhibit a copy. The tribunal also noted that the application did not explain what the proposed response would be.
- The tribunal’s power to set aside or amend a default decision derives from s 51 QCAT Act. It is expressed in permissive not imperative terms.
- While the applicants asserted compliance with the time limit fixed by the rules for filing a response to a minor debt application they did not prove or verify it by affidavit or exhibiting a copy.
- The tribunal rejected the amendment application because there “has been no response filed”.
- However, the applicants did in fact file a response sealed and date stamped at the Stanthorpe registry on “24 September 2018” but it was never served. However, as the applicants correctly point out, proof of service is not a precondition to the discretion to make orders in default.
- The applicants also started BDL226/18 (a domestic building dispute) for compensation orders relating to the same work on the same day. Internal inquiries later revealed that both documents were then sent to Brisbane for listing. The response should have gone to Warwick. Consequently, neither the delegate nor tribunal had a copy of the response in issue on file.
- A decision to set aside a decision by default under s 51 QCAT Act is not appealable but a decision not to is.
- The application for leave was filed on 18 January 2019 on the grounds that the tribunal discretion not to set aside (not amend) the default decision miscarried due to an error of fact. However, the findings of both the delegate and tribunal are unimpeachable on appeal because they were inevitable on the available material.
- Nevertheless, the dismissal of the reopening application was plainly unjust considering the true facts. They were wrongly deemed to have forfeited the right to be heard at least on the quantum because their response had been misdirected by QCAT itself due to some fault in the tribunal’s own administrative process.
- Prima facie, the default decision made in those circumstances should be set aside as a matter of fairness and the matter remitted for consideration on its merits.
- However, not all procedural errors are fatal in this jurisdiction or call for appellate intervention to correct them.
- A grant of leave generally requires substantial injustice as well as demonstrated error.
- The biggest obstacles to a favourable exercise of the discretion to grant leave to appeal are the objects and requirements the QCAT Act.
- The applicant’s filed response is so seriously deficient it is not certain that the reopening discretion would have favoured the applicants if its whereabouts had been discovered earlier.
- Responses to minor debt claims must state any undisputed amount, how it was calculated and why that amount is owed (see Rule 45).
- The request for the tribunal to reopen and amend rather than set aside the default order implies that some unspecified lesser debt was acknowledged and only the amount was contested but apart from asserting that the value of the compliant work is less than the $9,200 the respondent was paid for there is no explanation of how much less or why the debt is not owed. No alternative figure is suggested. Moreover, the substantiating documents referred to in the response that might have explained the basis for the asserted overpayment were not attached or produced in these proceedings.
- Otherwise, the response denies the debt claim in toto based on immaterial formal objections such as (a) the respondent is not a registered business name and (b) no written contract was signed contrary to statutory provisions.
- The leave discretion is a safeguard against unmeritorious, futile or wasteful appeals.
- The applicants have not persuaded me that allowing the obvious prejudicial procedural error to go uncorrected will cause them substantial injustice.
- As the only available remedy on appeal is remittal for reconsideration the most time and cost-efficient solution is for findings about investigate the completion and defects issues to be made in the BDL226/18 rather than reconvening the minor debt proceeding simply to potentially alter the amount of the payment order.
- Leave is refused as a matter of discretion, and the application dismissed.
 See [12.11] JRS Forbes, Justice in Tribunals, 4th ed, Federation Press (2016).
- Published Case Name:
Amrin Turley and Caroline Turley v Raylong Painting (No 2)
- Shortened Case Name:
Turley v Raylong Painting (No 2)
 QCATA 72
29 May 2019