Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Service v Guerrera[2021] QCATA 66

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Service v Guerrera [2021] QCATA 66

PARTIES:

Susan mary service

(applicant/appellant)

v

sarah jane guerrera

(respondent)

APPLICATION NO:

APL046-21

ORIGINATING

APPLICATION NO:

MCDQ818/20 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

13 April 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

  1. The application for a stay order is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where no clear error by Tribunal alleged – where no evidence of potential detriment if stay is not granted –

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58(1), s 142(3)(i), s 145(1), s 145(2)

Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453

Day v Humphreys v Ors [2017] QCA 104

Hessey-Tenny & Anor v Jones [2018] QCATA 131

Simonova v Department of Housing and Public Works [2018] QCA 60

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    On 13 April 2021, I refused an application for a stay order filed by the applicant to this proceeding, Ms  Service.  Ms Service has since requested reasons for my decision.  My reasons are as follows.

Background

  1. [2]
    Ms Service seeks to appeal from a decision of the Tribunal made at Southport in minor civil dispute (MCD) MCDQ818/20.  The decision, made on 2 February 2021, was that Ms Service must pay to Sarah Guerrera the sum of $1,329.40 within 30 days. Pending the determination of the application for leave to appeal and, if successful, the appeal, Ms Service applied for an order staying the operation of the Tribunal’s order.

Background

  1. [3]
    The MCD application claiming a minor debt was filed on 25 August 2020 in the Tribunal by Ms Guerrera. Ms Guerrera claimed $1,329.40, being $1,204.00 for outstanding invoices and the filing fee of $125.40. 
  2. [4]
    Ms Guerrera alleged Ms Service had undergone cosmetic treatments on 7 August 2020 at a cosmetic treatments business.  The fee for those treatments was $1,804.00.  Ms Guerrera alleged that Ms Service had paid $600.00 as part payment, and that the parties agreed upon a payment plan for the remaining amount.  However, Ms Service did not make the agreed payments.

Both parties attended the hearing. The learned Adjudicator heard the application and made orders in the terms set out earlier.

The appeal proceedings and the stay application

  1. [5]
    On 2 March 2021, Ms Service filed an application for leave to appeal or appeal, together with an application to stay the Tribunal’s decision of 2 February 2021.  The intended grounds of appeal are not clearly expressed.  However, the application for leave to appeal or appeal indicates that Ms Service’s ground or grounds of appeal relate to a document.  Reading it with the stay application, she appears to allege that the payment plan, Exhibit 3, is fraudulent.

Principles for granting a stay order

  1. [6]
    A decision of the Tribunal is not affected by the filing of an application for leave to appeal or appeal.[1] The Appeal Tribunal may, in its discretion, make an order staying a decision of the Tribunal, pending finalisation of an appeal proceeding.[2]
  2. [7]
    That said, decisions of the Tribunal are not merely provisional pending appeal. A successful party is prima facie entitled to the fruits of the litigation.[3]  The party seeking a stay order must demonstrate some reason why a judgment should not have immediate effect. The usual factors for considering whether to grant a stay order include:
    1. (a)
      whether a reasonably arguable case of error by the Tribunal has been demonstrated;
    2. (b)
      whether a refusal to grant a stay application would cause a material detriment to the applicant for the stay; and
    3. (c)
      whether the balance of convenience favours the granting of a stay.[4]
  3. [8]
    Additionally, in a matter, such as this, where leave to appeal is required before an appeal can proceed and has yet to be granted,[5] exceptional circumstances must be demonstrated before a stay order will be made.[6]

Should a stay order be made?

  1. [9]
    The appeal process is for correcting error made by the Tribunal in making its decision. It is not apparent from the available material that any error of the Tribunal is alleged by Ms Service. It is not clear, but it appears Ms Service may now allege that the payment plan, Exhibit 3, was not signed by her. Ms Service was at the hearing. Exhibit 3 was before the Tribunal. Assuming that Ms Service raised the issue at the hearing, it was open to the Tribunal to prefer the evidence of Ms Guerrera as to the issue. If Ms Service did not raise the issue before the Tribunal, then it is not apparent how her intended appeal reveals any arguable error by the Tribunal. On the available material, I am not satisfied on a preliminary assessment that Ms Service reveals a reasonably arguable case that the Tribunal made an error.
  2. [10]
    Further, there is no evidence of any potential detriment to Ms Service if a stay order is not made. Nor is there anything to indicate that the balance of convenience favours that granting of a stay order. As discussed, the successful party is prima facie entitled to the fruits of the litigation.
  3. [11]
    Finally, leave to appeal is required before the appeal can proceed, and has not been granted. Therefore, exceptional circumstances must be demonstrated before a stay will be granted. The material before me does not disclose exceptional circumstances.
  4. [12]
    The stay application should be refused.

Order

  1. [13]
    I make orders accordingly.

Footnotes

[1] QCAT Act, s 145(1).

[2] Ibid, ss 58(1) and 145(2).

[3] Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453; Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [30].

[4] See, for example, Day v Humphreys v Ors [2017] QCA 104.

[5] Leave to appeal is required for an appeal of a decision in the Tribunal’s minor civil disputes jurisdiction – QCAT Act, s 142(3)(i).

[6] Simonova v Department of Housing and Public Works [2018] QCA 60; Hessey-Tenny & Anor v Jones [2018] QCATA 131.

Close

Editorial Notes

  • Published Case Name:

    Service v Guerrera

  • Shortened Case Name:

    Service v Guerrera

  • MNC:

    [2021] QCATA 66

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard

  • Date:

    13 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.