Admin Holdings 3 Pty Ltd v Akram
[2013] QCATA 175
•17 June 2013
| CITATION: | Admin Holdings 3 Pty Ltd v Akram [2013] QCATA 175 |
| PARTIES: | Admin Holdings 3 Pty Ltd (Applicant/Appellant) |
| V | |
| Mr Saher Bahnan Akram (Respondent) |
| APPLICATION NUMBER: | APL092 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 17 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. Mr Saher Bahnan Akram shall pay Admin Holdings 3 Pty Ltd $4,941.61 in default of an appearance by 16 July 2013. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where respondent lives in Victoria – where respondent served by post – where no response – where application for default decision refused – whether grounds for leave to appeal Service and Execution of Process Act 1992 (Cth) Queensland Civil and Administrative Tribunal Practice Direction 8/2009 Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Admin Holdings 3 Pty Ltd claims that Mr Akram owes it money. It filed a claim in the tribunal and served Mr Akram by posting it to his last known address at Glenroy in Victoria.
Mr Akram did not file a response, so Admin Holdings applied for a default decision. The learned Adjudicator declined to give a default decision and required personal service on Mr Akram.
Admin Holdings want to appeal that decision. It says that the effect of Queensland Civil and Administrative Tribunal Practice Direction 8/2009 and section 15 of the Service and Execution of Process Act 1992 (Cth) is that Mr Akram was validly served by post.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Paragraph 2(3) of Practice Direction 8/2009 states:
… if the person intended to be served resides or carries on business more than 50km from the nearest Registry of the tribunal the document may be served by posting a copy of it to the person’s residential or business address. The “nearest Registry of the tribunal” means the nearest of either the Brisbane registry of the tribunal, or a Queensland Magistrates Court registry.
Section 15 of the Service and Execution of Process Act allows the claim to be served outside Queensland. It must be served in the same way as it would be served in Queensland.
I am satisfied that the combined effect of Practice Direction 8/2009 and the Service and Execution of Process Act is that Admin Holdings could validly serve Mr Akram by post. There is no doubt that Glenorchy is more than 50 km from a tribunal registry. There is no possibility that a Victorian court registry can be construed as a QCAT registry. Leave to appeal should be granted and the appeal should be allowed.
I have examined the original proceeding. A decision in default should be given. I order that Mr Saher Bahnan Akram pay Admin Holdings 3 Pty Ltd $4,941.61 in default of an appearance by 16 July 2013.
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