McDaid t/as Super Cheap Framing v Arnold
[2021] QCATA 5
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- Unreported Judgment
- McDaid t/as Super Cheap Framing v Arnold[2021] QCATA 5
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McDaid t/as Super Cheap Framing v Arnold[2021] QCATA 5
McDaid t/as Super Cheap Framing v Arnold[2021] QCATA 5
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | McDaid t/as Super Cheap Framing v Arnold [2021] QCATA 5 |
PARTIES: | John mcdaid t/as super cheap framing (appellant) |
v | |
natalie arnold (respondent) | |
APPLICATION NO/S: | APL197-19 |
ORIGINATING APPLICATION NO/S: | MCDO 142/19 (Southport) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 12 January 2021 |
HEARING DATE: | 14 December 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
ORDERS: |
‘1. On the application by John McDaid, the default decision dated 21 June 2019 requiring him to pay Mrs Natalie Arnold the sum of $406.35 is set aside. ‘2. MCDO 142/19 shall be listed for hearing in the Minor Civil Disputes list.’
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – SETTING ASIDE – PROCEDURAL AND OTHER MATTERS – where a minor civil dispute application was not served in accordance with the rules and there was no proof that the respondent had received it – where the default decision included a costs award in excess of the tribunal’s power to award – whether the default decision was irregular – whether it should have been set aside APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where there was a successful appeal from a tribunal decision in a minor civil dispute – where the appellant applied for costs – whether the Appeal Tribunal can award costs in an appeal in a minor civil dispute – whether it is right to award costs in this instance Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 50, s 102 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 38, r 42, r 84 Maszlik v Lorraine Palmer t/as Bundaberg Park Lodge [2016] QCATA 94 McCracken v Nespoli [2020] QCATA 107 Sommers v Bycroft [2020] QCATA 55 |
APPEARANCES & REPRESENTATION: | |
Appellant: | Self-represented |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]This appeal is from a decision of the tribunal refusing to set aside a default decision.
- [2]The facts can be stated very briefly. John McDaid is in business as a picture framer. He supplied a frame for Natalie Arnold for which she had paid $280. When she saw the frame she was unhappy with it. No agreement having been reached about what to do, Mrs Arnold applied to the tribunal in its minor civil dispute jurisdiction for the return of the $280 plus some costs.
- [3]Mrs Arnold brought her claim as a minor debt claim using Form 3. Form 3 requires a response from the respondent, and if there is no response an applicant can ask for a default decision. This is what happened, and on 21 June 2019 the tribunal made a default decision under which Mr McDaid was required to pay Mrs Arnold the sum of $406.35.
- [4]Mr McDaid then applied to have the default decision set aside. He said that he had not received the Form 3 claim form and wanted to defend the proceedings. He said that he had a good defence to the claim and briefly explained why.
- [5]Mr McDaid’s application to set aside the default decision was considered by a Justice of the Peace but was refused. Mr McDaid now appeals to the Appeal Tribunal.
- [6]It is clear to me from the minor civil dispute file that the default decision should never have been made in the first place. The decision was irregular. On that basis Mr McDaid’s application to have it set aside should have been acceded to.
- [7]Why was the default decision irregular? An application on Form 3 should be served personally on the respondent.[1] The way this needs to be done is prescribed in the service practice direction.[2] In the case of an individual, the practice direction generally requires that it should be given to the individual in person.[3] In her affidavit of service Mrs Arnold stated that service was effected by ‘posting a copy to the company’s registered office’. Since Mr McDaid is not a company, this was not personal service in accordance with the practice direction.
- [8]The reason why the tribunal requires personal service for Form 3 claims is that if a response is not filed, a default decision can be made. Such a decision ends the proceedings in the applicant’s favour. The requirement for personal service makes it more likely that if there is no response, the respondent has made a deliberate decision not to defend the claim. Hence, personal service is an important safeguard to ensure that default decisions are not made when in fact the respondent has not received the proceedings. Section 50 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) empowers the tribunal to make a default decision. The need for proof of actual service is emphasised by subsection (5) which only permits a default decision to be made if the applicant proves that ‘the respondent has been given a copy of the application’. Rule 42 of the QCAT Rules requires such proof to be by way of affidavit. Service in accordance with the rules and the practice direction would normally suffice to satisfy that condition. Proof of informal service might suffice, but simply saying that the application was posted to an address will not prove that it was received for this purpose.[4]
- [9]The default decision was therefore irregular because of the defective service of the application. But there was another difficulty. Section 50(2)(c)(i) of the QCAT Act limits the costs that can be claimed in a minor civil dispute when applying for a default decision. They are limited to those costs that may be awarded under section 102. In this case the costs are limited by rule 84. In this type of application, it meant that Mrs Arnold could ask for her filing fee of $26.35 and a service fee as limited by the rules. When the application was filed, the service fee was limited to $50.40.[5] But in her application on Form 3, Mrs Arnold claimed $80 as the service fee. In addition to this she claimed a further $20 for ‘postage’ in her application for a default decision by default. The total claim for costs was therefore $126.35 but the limit the tribunal could award was $76.75. The default decision however, did award $126.35 for costs. The result was that the default decision was made pursuant to an application which did not correspond with the rules, and the amount awarded in the default decision was beyond the power of the tribunal to make. It was irregular for that reason also.
- [10]Quite irrespective of the merits of the underlying claim it is clear that the default decision should have been set aside for the above reasons when Mr McDaid applied for it to be set aside.
Application for costs in the appeal
- [11]Mr McDaid seeks his costs in the appeal.[6] There was an appeal hearing in this matter and I was able to hear the parties on the question of costs.
- [12]There are two issues which arise. The first is whether the Appeal Tribunal has jurisdiction to award costs in an appeal in a minor civil dispute at all. The second is if there is such jurisdiction, whether it should be exercised in this particular case and the amount of such costs.
Can the Appeal Tribunal award costs in a minor civil dispute appeal?
- [13]It is unfortunate that there has developed a divergence of opinion about this.
- [14]It was held in Maszlik v Lorraine Palmer t/as Bundaberg Park Lodge [2016] QCATA 94 (Justice Carmody) that in an appeal in a minor civil dispute, the Appeal Tribunal is constrained by the provisions of section 102(2) and rule 83 and cannot make an order for costs. I reached a contrary view in Sommers v Bycroft [2020] QCATA 55. Since then, in McCracken v Nespoli [2020] QCATA 107 Member Howe has refused costs in an appeal citing Maszlik but not dealing with the argument in Sommers seemingly because he was not aware of it at the time. There is uncertainty about this matter therefore, but having reviewed my reasoning in Sommers, and having considered McCracken, I think it is right that the Appeal Tribunal does have jurisdiction to award costs of the appeal in an appeal in a minor civil dispute.
- [15]The tribunal’s starting point for costs is in section 100 of the QCAT Act. Each party should bear their own costs. But section 102 empowers the tribunal to make a costs order if the tribunal considers the interests of justice require it to make the order. When considering whether the interests of justice require an order for costs, section 102(3) lists things which may be relevant.
- [16]In this appeal, what stands out is that Mrs Arnold’s two mistakes - failing to serve the proceedings in the correct way and claiming an amount for costs which the tribunal could not award - resulted in an irregular decision being made by the tribunal. To correct this, and to restore his right to defend the application brought against him, Mr McDaid has had to pay $345.80 to lodge the appeal. It is true that the default decision could have been set aside on his application, but this did not happen. I take the view that it would be quite unfair if Mr McDaid did not receive back his $345.80, and the only way this can be done is for Mrs Arnold to pay it. At the appeal hearing I examined with her how the mistake happened and whether she could pay the $345.80, and from her answers I am sure that it is fair to order her to pay this.
- [17]In his application for costs Mr McDaid did include certain expenses but having discussed these with him in the appeal hearing, I do not think they can be said reasonably to arise from the appeal, and some of the items do not seem to be in the nature of recoverable costs anyway. I limit his costs to the filing fee of $345.80.
Conclusion in the appeal
- [18]The default decision was irregular. When Mr McDaid applied to set it aside, this should have been acceded to. The default decision will be set aside and the application returned to the tribunal to be heard as a minor civil dispute.
- [19]The Appeal Tribunal does have jurisdiction to make an order for costs of the appeal in an appeal in a minor civil dispute. Mrs Arnold will have to pay Mr McDaid the fee that he paid to lodge the appeal in the sum of $345.80.
Footnotes
[1] Rule 38 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules).
[2] Practice Direction No 8 of 2009.
[3] Paragraph 2.
[4] Under the QCAT Rules, sending documents by post is however, sufficient in other specified circumstances.
[5] Schedule 2 Part 2 of the Uniform Civil Procedure (Fees) Regulation 2009 (Qld).
[6] Application on Form 40 filed on 11 March 2020.