Pearce v Rummery[2022] QCATA 16

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 15 June 2020 the respondent filed in the Caloundra registry an application for a minor civil dispute – minor debt, claiming $25,000 together with interest and costs, as repayment of money lent to the appellant.^[1] On 14 August 2020, a delegate of the Principal Registrar signed a default decision in relation to the claim, requiring the appellant to pay the respondent $29,114, being the amount claimed plus costs of $440.80 and interest of $3,672.20. The appellant applied to have this decision set aside, but on 21 September 2020 a Member^[2] dismissed that application. The appellant now seeks leave to appeal from that decision.
2. [2]
   Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.^[3] As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.^[4] In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.

Decision of the Member

3. [3]
   The Member noted that a Response had been filed after the default decision was signed, on 17 August 2020 at the Brisbane Registry of the Tribunal, and was forwarded to the Caloundra Registry where it arrived on 26 August 2020. Accordingly, the default decision was regularly signed. An application to set it aside was filed promptly, but the appellant’s material did not attach the Post Office receipt referred to, said to show posting on 11 August 2020.^[5] Accordingly to the affidavit of service, the appellant was served on 14 July 2020, so if the response had been delivered the following day it would have been just out of time. The Member did not accept that a desire to have a solicitor read the response before it was filed was a sufficient explanation for the delay.
4. [4]
   As to whether the appellant had a prima facie defence on the merits, the Member said that the respondent had produced evidence in support of his claim which was overwhelming, and all the appellant had said was that she did not recall many of the transactions relied on by him. That was regarded as not showing a defence to the claim, and the application to set aside the default decision was dismissed.

Submissions of the parties

5. [5]
   The appellant filed written submissions with the application for leave to appeal on 25 November 2020. It was submitted that, by posting the Response on 11 August, it was filed that day, but that is not correct. Under the rules, although a document may be filed by post, it is not “filed” until it is recorded and stamped by the Tribunal, which occurs after delivery.^[6] So it was not filed in time. That would have been the case even if the envelope had been delivered the next day; in the event it was not, but mail was delayed in 2020. The default decision was regular.
6. [6]
   It was next submitted that the service of the original Application had not been properly served on the appellant, because documents annexed to it had not been served with it. The Application recorded that the respondent had provided emails where the appellant had asked for money, or admitted what she owed, bank statements and a signed statutory declaration by the respondent, which set out details of the loans relied on. A two page statutory declaration, a number of emails, and five pages of bank statements were with the Application on the file. The proposition that service was defective was not raised by the appellant before the Member, and is unsupported by evidence even at this stage.^[7] The respondent had to prove that a copy of the Application had been given to the appellant;^[8] that was done by the affidavit of service filed on 4 August 2020. In those circumstances, the appellant has not shown that service was defective.
7. [7]
   The proposition that the Application given to the appellant was not complete was also raised as a breach of the rules of natural justice. In circumstances where there is no evidence to support this proposition, this ground is also not made out.
8. [8]
   It was also submitted that the Member’s decision was legally unreasonable. I shall return to this point. As to the issue of a defence on the merits, that is best considered by working through the various allegations made by the parties at different times.

Particulars of the claim, and response

9. [9]
   The respondent in his original statutory declaration provided commendable details about the loans he claimed to have made to the appellant. They can be conveniently listed, with supporting evidence, the response of the appellant and the reply of the respondent, with any further evidence:

   1. (a)
      On 14 October 2016, $2,000 in cash lent at Landsborough. He did not recall what it was for, but thought it might have been for rates. His bank statement shows that amount was withdrawn at the Beerwah branch. In email 25 November 2016, respondent said “I can’t thank you enough for helping me out with the $2,000.” In the response, she said she did not recall such a payment, and that she then had no rates to pay. She did not refer to the email.
   2. (b)
      On 8 December 2016, paid $1,646 for furniture she bought from Early Settler at Kawana, from G E Finance. The email of 25 November also spoke about going to Early Settler for furniture, and thanked him for “helping me out with the $2,000 and this.” In the Response, she claimed this was a gift, but offered to pay for the furniture, or return it to him. 
   3. (c)
      On 23 December 2016, paid $1,000 in cash at Beerwah to the respondent, to cover a mortgage payment and some Christmas presents. Bank statement shows a withdrawal that day of $1,000 at Beerwah. In the Response, she denied this payment, and said her mortgage payments were up to date, and she would not have gone to Beerwah that day.
   4. (d)
      On 29 December 2016, provided $3,000 in cash at Beerwah, said to be for a debt. Bank statement shows a withdrawal that day of $3,000 at Beerwah, and there is an email from her asking for that amount “later today”. In the Response, she said she did not recall this transaction.
   5. (e)
      On 3 January 2017, deposited $2,400 into her bank account. Bank statement shows a withdrawal that day of $2,400 at Beerwah. There is an email from her requesting “a few thousand” that day. In the Response she asked for a copy of the deposit slip, as she could not recall the transaction. With his second statutory declaration, he provided a (faded) copy of the deposit slip.
   6. (f)
      On 12 January 2017, deposited $3,000 into her bank account. Bank statement shows a withdrawal that day of $3,000 at Beerwah. An email from her that day asked for “3 today...the rest on Tuesday.” He replied asking “are we talking $7,000 to make it $20,000 in total” and she answered, “I haven’t kept a log but it was 20 to borrow, I think including previous money I owed it was up to 10^[9] so I have 10 left…3 today and 7 at Glen Innes.” In the Response, she sought evidence of the “conversation”, which was the email.
   7. (g)
      On 17 January 2017, deposited $7,000 into her bank account at a branch in Toowoomba. Bank statement shows a withdrawal that day of $7,000 at Toowoomba. She sent him an email that day “…thanks for helping out with $$$.” In the Response, she said that he withdrew $11,000 that day to buy a motor vehicle,^[10] but the bank statement shows withdrawals that day of $7,000 and $10,910.
   8. (h)
      On 30 January 2017, deposited $500 into her bank account. An email from her that day asked for this, and promised to repay on Wednesday. Later that day, she sent another email with thanks. In the Response, she said she did not recall this payment.
   9. (i)
      On 20 April 2017, deposited $1,000 into her bank account. Bank statement shows a withdrawal that day of $1,000 at Beerwah. On the previous day she sent an email asking him to lend her $1,000, to be put into her card account. In the Response she said she bought new tyres on 24 April, and paid for them with her Visa debit card. She asked for deposit slips for this and the next two payments. Attached to the second statutory declaration were deposit slips confirming this and the next two payments.^[11]
   10. (j)
       On 16 May 2017, deposited $1,300 into her bank account. Bank statement shows a withdrawal that day of $3,000 at Beerwah.
   11. (k)
       On 29 May 2017, deposited $2,500 into her bank account. Bank statement shows a withdrawal that day of $3,000 at Beerwah.
   12. (l)
       On 1 July 2017, deposited $500 into her bank account. He said this was withdrawn from his account, although the bank statement shows an ATM withdrawal of that amount on 3 July 2017. In the Response, she denied this payment and said she had no record of it.
   13. (m)
       On 2 and 3 July 2017, withdrew $1,000 cash from his account and handed both to her in cash. The bank statements show ATM withdrawals at Morayfield of $1,000 on 1 July and at Beerwah of $1,000 on 2 July. In the Response she denied these payments, and said she went to Brisbane on the afternoon of 2 July for some days. ATM withdrawals on 1 and 2 July would have been consistent with this. Attached to the second statutory declaration were copies of text messages confirming aspects of his account, and copies of withdrawal receipts which confirm that they were $1,000 on 1 July, $1,000 on 2 July and $500 on 3 July.^[12] There were also attached copies of text messages suggesting that her trip to Brisbane was on about 30 July 2017.
   14. (n)
       On 14 July 2017, paid $328.25 for the appellant’s car to be services, by credit card. In the Response she said she had records of payments for car servicing in differing amounts. With the second statutory declaration he produced a copy of a card account statement showing a payment to Sunshine Coat Mazda of $328.25 on 13 July 2017, processed the next day. There was also a copy of a text message from her on 13 July: “Hey sorry I asked you today to pay for car, you must be so over me with $$$. Rest assured you will get it back xx.”
   15. (o)
       On 30 January 2018, paid her $90 cash. In the Response, she just asked for proof of this. In the second statutory declaration he conceded that he could not document this. The amount however is well under the amount of the abandoned excess.
   16. (p)
       On 7 February 2018, transferred $2,000 into her bank account, for which he quoted a Commonwealth Bank receipt number. In the Response she effectively denied these payments. With the second statutory declaration he provided a copy of a text from her giving BPay details for a debt of $2,070, but saying that he could just pay $2,000 to “them” today.
10. [10]
    These payments total $30,264.25. The respondent accepted that the appellant had repaid two amounts each of $2,000, on 10 April and 29 May 2018.^[13] That leaves a balance of $26,264.25, but the respondent abandoned the excess over $25,000 to bring the matter within the jurisdiction for a minor civil dispute.^[14] Apart from the evidence referred to above, the respondent provided a copy of an email of 28 December 2016 in which the appellant listed some debts, and some things she wanted to spend money on, and an email of 9 January 2017 asking if he was “still OK with lending the extra cash.”
11. [11]
    The respondent provided a second statutory declaration to the Tribunal on 16 September 2020, which attached more documents. Where these are evidentiary, they have been referred to above. He also referred to a number of emails said to have been provided to the Tribunal previously, but I have not located these on the copy of the file provided.^[15] It does not appear that the appellant provided any further evidence in support of her application to set aside the default decision, nor for that matter did she apply for leave to rely on any additional evidence on appeal.

Additional “evidence” on appeal

12. [12]
    The Application for leave to appeal had attached submissions in writing which included a further response to the original statutory declaration attached to the original application. These generally just restate what was said in the Response in the phraseology of a pleading, but there were some new allegations:

    1. (a)
       As to [9](d) above, she alleged that the amount she received was only $2,700, and that it was repaid on 20 February 2017, in payments of $700 and $2,000. A copy of a bank statement shows withdrawals from the account of these amounts on 20 February. There were no matching deposits to the respondent’s account on or about that date. In submissions in response, the respondent denied receiving either of these payments. 
    2. (b)
       As to [9](e) above, she admitted the email but denied that any such payment was in fact made. She attached a page from a bank statement showing no deposit of this amount on 3 January 2017, but the deposit slip shows a deposit to an account ending in 350, whereas the statement provided was for an account ending in 501. The respondent in submissions said that she had multiple accounts with that bank
    3. (c)
       As to [9](f) above, she admitted the email but claimed it had been misinterpreted, and that no deposit of $3,000 or any amount was made to her account on 12 January 2017. A copy of a bank statement for the 501 account was provided to verify this.
    4. (d)
       As to [9](g) above, she denied that the money had been paid, or that there was any agreement to repay any such money. Again, a copy of a statement from the 501 account was provided, showing no deposit of $7,000 on that day.
    5. (e)
       As to [9](h) above, she now admitted the payment of this amount, but denied that there was any obligation to repay it.
    6. (f)
       As to [9](i) above, she admitted the email but denied that the payment was in fact made, or that there was any agreement in relation to it. She produced a copy of an invoice from the tyre supplier of 2 May 2017 for $780, and a copy of a statement on the 501 account which did not show a deposit on 20 April. The deposit slips for this and the next two payments were for an account ending with 350.
    7. (g)
       As to [9](j) and (k) above, she denied that there was any such payment, and produced a copy of a statement on the 501 account which did not show a deposit on 16 May or 29 May.
    8. (h)
       As to [9](l) above, she denied that she received this payment into a bank account.
    9. (i)
       As to [9](m) above, she denied that she received any such payment.
    10. (j)
        As to [9](n) above, she admitted that this payment was made, but denied that there was any agreement to repay this amount.
    11. (k)
        As to [9](o) above, she denied that she received any such payment.
    12. (l)
        As to [9](p) above, she denied that this payment had been made, and produced a statement from the 501 account which showed no payment into that account on 14 July 2017.
13. [13]
    The appellant still admitted that she had made two repayments of $2,000 each as alleged by the respondent, and also alleged that on 13 December 2017 she paid $1,865 to the respondent, which she said should be taken into account. She produced a copy of a page from his bank statement showing that amount transferred from the Bank of Queensland that day. In response, the respondent said that this was related to an account opened by her in his name, and was reimbursement of an amount taken by the bank from another account when the account she had opened fell into arrears. He maintained that it was separate from these loans.
14. [14]
    This material, as it stands, is not in a satisfactory form. It is not acceptable just to include additional evidence in submissions in writing in support of an application for leave to appeal, particularly when the Tribunal has made a direction for an application to be filed in relation to any additional evidence to be relied upon on appeal.^[16] This material should all have been included in an affidavit by the appellant personally filed in the Tribunal at first instance in support of the application to set aside the default decision. The whole approach of the appellant to this proceeding has been excessively casual. The minor civil dispute jurisdiction is relatively informal, but not that informal.
15. [15]
    In the circumstances, I am not prepared to act on this material. On the material properly before the Member, it was reasonable for the application to set aside the default decision to be dismissed, because at that stage the material provided by the respondent in support of his claim was compelling, as the Member said, and the appellant had not provided material to support the existence of a real defence in support of her application.
16. [16]
    I am not prepared to see the directions of the Tribunal ignored like that. Accordingly, the application for leave to appeal is dismissed unless, within 28 days of this decision, the appellant files and serves on the respondent an application for leave to rely on additional evidence on appeal, supported by an affidavit by her personally, setting out the additional evidence on which she seeks to rely on appeal, and explaining why it was not put before the Tribunal in support of the application to set aside the default decision. If such an application is filed and served within that time, the respondent may file and serve any additional submissions or material in response within twenty-one days after he was served with the application and supporting evidence, and the application for leave to appeal and the application for leave to rely on additional evidence on appeal will be determined by the Appeal Tribunal on the papers on a date to be fixed.