| CITATION: | Aguilar v Egnalig [2014] QCATA 219 |
| PARTIES: | Martin Aguilar (Applicant/Appellant) |
| v | |
| Anacelia Egnalig (Respondent) |
| APPLICATION NUMBER: | APL222-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 11 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 23 April 2014 is set aside. 4. The application filed 23 August 2013 is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – JURISDICTION – where applicant was migration agent – where respondent claimed refund of money paid to migration agent – whether application provided services in trade or commerce – whether tribunal had jurisdiction to consider claim – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12(4), Schedule 3 Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Aguilar was a migration agent. Ms Egnalig engaged him to prepare a skilled sponsored visa to Australia. She paid him $4,201.90 but received almost nothing of value. Ms Egnalig filed a consumer claim in the minor civil disputes jurisdiction of the tribunal, claiming a refund of the money she paid Mr Aguilar. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered Mr Aguilar refund the money to Ms Egnalig.
Mr Aguilar wants to appeal that decision. He says the learned Justices failed to apply the relevant law in making their decision but, instead, relied on the fact that the Migration Agents Registration Authority had disciplined Mr Aguilar. He says that the parties had a binding contract the terms of which the learned Justices failed to consider.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2][2005] QCA 294 at [3].
It is not necessary to consider Mr Aguilar’s grounds of appeal because Ms Egnalig’s claim has a fundamental problem that was overlooked by the learned Justices. The tribunal had no jurisdiction to hear Ms Egnalig’s claim.
The tribunal has jurisdiction to consider a consumer’s claim against a trader[3]. “Trader” is defined to include a person who carries on the business of supplying services[4] and Mr Aguilar falls within that definition. However, a person is not a trader if, in providing the services, the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce[5].
[3]QCAT Act s 12(4)(b).
[4]QCAT Act Schedule 3.
[5]QCAT Act Schedule 3.
The appeal tribunal[6] has previously applied the following test as to what is, or what is not, the exercise of a discipline:
This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.[7]
Mr Aguilar was a registered migration agent. He was subject to a Code of Conduct that carried ethical obligations. He was the subject of disciplinary proceedings. It is clear to me that Mr Aguilar was providing services which were in the exercise of a discipline. Consequently, Ms Egnalig’s claim was not within the tribunal’s jurisdiction.
Leave to appeal is granted and the appeal allowed. The decision of 23 April 2014 is set aside. Ms Egnalig’s application is dismissed.
- AGLC
- Aguilar v Egnalig [2014] QCATA 219
- Case
- [2014] QCATA 219
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the application for a refund of money paid for services provided by a migration agent fell within the jurisdiction of the CAT and whether the tribunal had correctly exercised its discretion in dismissing the respondent's claim. The respondent argued that the tribunal had jurisdiction over the matter as it involved a dispute in trade or commerce. The applicant contended that the tribunal did not have jurisdiction because the dispute was not in trade or commerce, but rather in the provision of professional services.
The court found that the tribunal had jurisdiction to hear the matter, as it involved a dispute in trade or commerce. The court held that the applicant's services as a migration agent were provided in the course of trade or commerce, and therefore, the tribunal had the authority to hear the respondent's claim for a refund. The court further found that the tribunal had not correctly exercised its discretion in dismissing the respondent's claim. The court held that the tribunal should have considered the respondent's claim on its merits rather than dismissing it on jurisdictional grounds. The court set aside the decision of the CAT and dismissed the respondent's application for leave to appeal. The decision of the CAT dated 23 April 2014 was set aside, and the application filed on 23 August 2013 was dismissed.
Orders
Orders of the court
1. Leave to appeal granted.
2. Appeal allowed.
3. The decision of 23 April 2014 is set aside.
4. The application filed 23 August 2013 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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