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Weiss v Jubi Pty Ltd QCATA 75
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Weiss v Jubi Pty Ltd  QCATA 75
jubi pty ltd
ORIGINATING APPLICATION NO/S:
5 June 2019
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the respondent engaged the appellant as a bus driver – where the respondent damaged a bus – where the respondent commenced proceedings to recover an insurance excess incurred under a contract of insurance for the bus – where the appellant failed to file a response to the minor civil dispute – minor debt application – where default judgment given against the appellant – where an application to set aside default judgment refused – where the appellant had an arguable defence to the claim – where no substantial delay involved in making the application to set aside – where the reasons for refusing the application to set aside did not disclose consideration of relevant usual factors
Cockrell v Mackey t/as Tablelands Premium Property  QCATA 136
Garland and Anor v Butler McDermott Lawyers  QCATA 151
Pickering v McArthur  QCA 294
REASONS FOR DECISION
- Mr Weiss answered an advertisement for a bus driver placed by Mr Myers, a director of the respondent company. He was engaged to drive but whilst driving a bus hired by the respondent for a particular job, he damaged it.
- The bus was covered by insurance but there was an excess to pay. Mr Myers demanded Mr Weiss pay it. Mr Weiss refused. The respondent company sued
Mr Weiss in the Tribunal for $2,200 which it said was the amount of the excess. The respondent also claimed the filing fee for the application.
- A minor civil dispute – minor debt application was served on Mr Weiss but he failed to file a response as required within 28 days of service.
- The respondent entered default judgement against him on 10 May 2016. Mr Weiss applied to the Tribunal to have the default decision set aside but that application was refused by an order made 26 June 2016.
- He has now filed an application for leave to appeal that refusal.
- Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction Mr Weiss needs leave to appeal before any appeal can proceed.
- 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. There may be other relevant considerations, but these are primary.
- Mr Weiss says he can demonstrate a prima facie defence to the claim by the respondent. He mistakenly believed that his solicitor had filed a response to the claim. There was no delay in setting aside the decision. He acted in good faith in his conduct in the proceedings and after the default decision was made. The respondent is not prejudiced in any way if the default decision is set aside.
- As usual in appeals, the parties were directed to file submissions. Again, not uncommonly in appeal matters where parties are not legally represented, the parties did not file submissions relevant to the issue of the making of the order to refuse to set aside the default decision, but rather sought to adduce fresh evidence not considered by the Tribunal below.
- There is no application for fresh evidence to be adduced at the appeal. It is not appropriate that it be considered without that application. I therefore limit consideration in the application for leave to appeal to the material before the Justices of the Peace who constituted the Tribunal and who refused Mr Weiss’s application to set aside the default decision.
- Mr Weiss engaged a solicitor to assist him drafting a response to the minor debt application. A copy was forwarded to him by the solicitor. The solicitor told him the response was ‘fine to be lodged’. Mr Weiss says he incorrectly believed that the solicitor would file the response, not him. The solicitor did not.
- Mr Weiss says he was not aware of the usual process in the Tribunal until he received notice of the default decision against him on 18 May 2018.
- On 8 June 2018 Mr Weiss, through his solicitors, filed an application to set aside the default decision. Attached to his application to set aside the default decision made to the Justices of the Peace was a proposed response to be filed if the default judgment was set aside. In the proposed response he says first he was never engaged by the respondent company, but his employment was with Mr Myers. He refers to his engagement as one of employment rather than that of independent contractor.
- Further, prior to his engagement he had enquired by email dated 13 August 2017 whether he was ‘covered by insurance’ and the reply suggested he was, and he took it to mean that if he had an accident, he would be held indemnified by insurance.
- Also, Mr Myers referred to an excess of $1,000 payable under the insurance in his reply to Mr Weiss’ email but he did not say that Mr Weiss would have to pay it.
- A copy of the relevant emails were before the Justices of the Peace.
- By s 51 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) there is a broad discretion granted the Tribunal to set aside a default decision.
- The relevant factors to consider in exercising the discretion include whether there is a good reason for a respondent’s failure to file a response; any delay in bringing an application to set aside; the respondent’s conduct in the proceedings before and after the default decision; whether the respondent has raised a defence on the merits; and whether the applicant would be severely prejudiced if the judgement was set aside in a way that could not be adequately compensated by costs.
- Mr Weiss maintains he has a good defence on the merits. He says first that the company that has succeeded in obtaining judgement against him was never his employer. Further, his interpretation of the exchange of emails between himself and Mr Myers prior to his engagement is open to an interpretation in his favour.
- One also notes the claim (and consequent judgement) by the company is for an amount twice that of the excess of $1,000 referred to in the email exchange. There was no explanation in the initial application by the respondent company why an excess of $2,200 was sued for.
- These are all matters that might appropriately have been the subject of evidence at a hearing. An arguable defence has been suggested to be one of the more significant factors for consideration in an application to set aside default judgment.
- Mr Weiss partially explains the delay in bringing the application to set aside. It is not a very significant delay though it is a delay. He says he received notice of the default decision made on 10 May 2018 on 18 May 2018. Then 21 days later he filed the application to have it set aside.
- There is nothing in Mr Weiss’s conduct either before or after the decision refusing his application to set aside the default judgement that is relevant to the exercise of the Appeal Tribunal’s decision.
- What was the basis upon which the Justices of the Peace refused the application to set aside the default decision? Unfortunately the only notes made by the Justices of the Peace explaining their reason to refuse the application to set aside the default decision make no mention of consideration of the usual relevant factors as set out above. They say:
The respondent to pay the applicant $2162.40. Notes: Contract with applicant company. Correct company. Peter Myers [illegible] of company.
- One is forced to conclude that none of the usual relevant factors for consideration in an application to set aside a default decision were considered, or there would have been a note about them.
- The usual relevant considerations suggest that Mr Weiss had grounds to succeed in his application and the Justices of the Peace should have allowed him to appear to argue his case.
- Whilst the respondent will have to attend a hearing, and there has been some delay in the proceedings to date, the respondent will suffer no substantial prejudice if the matter is returned for hearing.
- However, as stated above the appellant only partially explained his delay in bringing the application to set aside. There was also a delay in filing the application for leave to appeal or appeal.
- The Tribunal may allow an order for costs if it is in the interests of justice to do so.
- The application to set aside the default decision was made on 8 June 2018. Notice of that application was given by the registry through priority post to the respondent on 11 June 2018. That should have been received in the normal course of post no later than 15 June 2018.
- Apparently in ignorance the respondent, however, filed an application for an enforcement notice and commercial agents served the notice on the appellant on
20 June 2018. The cost incurred was $98 which included $21 for conduct money.
- The application to set aside default judgment was refused on 26 June 2018. On
27 July 2018 the appellant applied for leave to appeal by filing documents in Southport Court. That was one month later. He has not explained why that delay occurred. The application was not received by the Tribunal at Brisbane until 1 August 2018. On 3 August 2018 the respondent incurred a bailiff’s fee of $96.10. It is not clear what that was associated with, perhaps an enforcement warrant, but I conclude the respondent had not been informed of the appeal when that step to enforcement was taken and the fee was paid.
- I conclude the respondent was acting promptly and reasonably to enforce the judgment and incurred costs of enforcement in ignorance first of the application to set aside the default judgment and then the application for leave to appeal.
- It is appropriate in those circumstances that those fees be paid by the appellant. It is in the interests of justice for him to do so.
- Leave to appeal should be granted and the appeal allowed. The appellant should pay the respondent’s costs of $194.10 thrown away.
 QCAT Act, s 142(3)(a)(i).
 Pickering v McArthur  QCA 294, .
 Garland and Anor v Butler McDermott Lawyers  QCATA 151, .
 Cockrell v Mackey t/as Tablelands Premium Property  QCATA 136, , citing National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd  2 Qd R 441, 441 (MacPherson J.)
 Letter from the registry to the respondent dated 11 June 2018.
- Published Case Name:
Weiss v Jubi Pty Ltd
- Shortened Case Name:
Weiss v Jubi Pty Ltd
 QCATA 75
05 Jun 2019