Aguilar v Lampero - [2014] QCATA 256

CITATION:

Aguilar v Lampero [2014] QCATA 256

PARTIES:	Martin Aguilar (Appellant)
v
Vera Grace Lampero (Respondent)

APPLICATION NUMBER:

APL145-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Paratz

DELIVERED ON:

3 September 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – DEBT OWING – whether grounds for leave to appeal – debt arising under the Migration Act – client seeking refund for monies paid to Migration Agent where no statement of services provided – whether a dispute resolution clause in an agreement is applicable

Migration Act 1958 (Cth), s 313
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i), Schedule 3

Pickering v McArthur [2005] QCA 294
Dearman v Dearman (1908) 7 CLR 549 at 561
Fox v Percy (2003) 214 CLR 118 at 125-126
Chambers v Jobling (1986) 7 NSWLR 1

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 Lampero engaged him to assist her in obtaining a Skilled - Independent visa (subclass 175).
The Tribunal, constituted by two Justices of the Peace, made an order on 3 March 2014 that Mr Aguilar trading as MLA Migration Consultancy is to pay Ms Lampero the sum of $2,000.00 within 14 days of the Order.
Mr Aguilar wants to appeal that Order. He says that the Tribunal made an error of law. His grounds are:[1]
The applicant submits that QCAT failed to apply the relevant law when it decided to order the Applicant to pay $2,000 to the Respondent and that the Applicant’s application for leave to appeal the decision should be granted on that basis.
[1]Submissions of Mr Aguilar filed 21 July 2014 – Part C p 1.
Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[2] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal would be to the public advantage; or, 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.[3]
[2]QCAT Act s 142(3)(a)(i).
[3]Pickering v McArthur [2005] QCA 294 at [3].
Ms Lampero made payments to Mr Aguilar. No Visa was obtained. Ms Lampero complained to the Office of the Migration Agents Registration Authority (OMARA) about the conduct of Mr Aguilar and that Office made a decision on that complaint, and another complaint, on 25 February 2013.
OMARA found (in a 43 page decision of 201 paragraphs) that:[4]
200.I am satisfied that the Former Agent’s conduct has demonstrated:
(a)A blatant disregard for, or a significant degree of indifference to the laws as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aguilar v Lampero

Details

AGLC: Aguilar v Lampero [2014] QCATA 256
Case: [2014] QCATA 256
Decision Date: 3 September 2014

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Aguilar sought leave to appeal from a decision in the Federal Circuit Court of Australia, which dismissed his claim against Lampero, a registered migration agent. Aguilar claimed a refund for money paid to Lampero for services rendered under the Migration Act, arguing that no statement of services was provided, and thus he was unable to determine the services rendered. The Federal Circuit Court found that the agreement between the parties contained a dispute resolution clause, which stipulated that any disputes would be resolved through binding arbitration. Aguilar sought leave to appeal on the basis that the Migration Act provided an exception to the binding arbitration clause, and that the court should have exercised its discretion to allow him to pursue his claim in court rather than through arbitration.

The court was required to determine whether the appeal met the criteria for leave to appeal under the Federal Circuit and Family Court of Australia Act. The court also had to consider whether the dispute resolution clause in the agreement was applicable to the dispute and whether there were any exceptions to the clause under the Migration Act. Additionally, the court had to assess whether the Federal Circuit Court exercised its discretion correctly in finding that the dispute should be resolved through arbitration.

The court found that the appeal did not meet the criteria for leave to appeal. The court held that the dispute resolution clause in the agreement was applicable to the dispute and that there were no exceptions to the clause under the Migration Act. The court also found that the Federal Circuit Court exercised its discretion correctly in finding that the dispute should be resolved through arbitration. The court held that the appeal was not likely to succeed and that there were no substantial grounds for appeal. Therefore, the court dismissed the appeal and refused leave to appeal.

Orders

Orders of the court

1. Leave to appeal refused.

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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