Athanassiadis v Deur - [2018] QCATA 139

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Athanassiadis v Deur [2018] QCATA 139

PARTIES:

BASIL ATHANASSIADIS
(appellant)

v

NIKOLA DEUR

(respondent)

APPLICATION NO/S:

APL001-18

ORIGINATING APPLICATION NO/S:

MCDO1489-17 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

25 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where respondent failed to file response to a minor debt claim – where application made to set aside default judgment – where Justice of the Peace refused the application – where no error on the part of the Justice of the Peace identified in the application for leave to appeal or appeal – where a ground of appeal identified in submissions

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 50(2), s 51, s 142(2)(b)

Ali v Twiyo Trading Trust [2018] QCATA 67
House v R (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429
Pickering v McArthur [2005] QCA 294

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

Mr Deur agreed to do some renovation work for Dr Athanassiadis at the latter’s house at Annerley. The agreed cost was $5,650.
The parties fell into dispute about some of the work and Dr Athanassiadis withheld $900 pending the work being completed to his satisfaction.
Mr Deur sued Dr Athanassiadis in the Tribunal for that balance of money. He served a copy of the Minor Debt application on Dr Athanassiadis on 19 August 2017.

Dr Athanassiadis failed to file a response to the claim within 28 days as required and on 21 September 2017 Mr Deur applied for and was granted default judgment on

27 September 2017 in the full amount of his claim.
On 18 October 2017 Dr Athanassiadis applied to set aside the default decision. That was heard on the papers by a Justice of the Peace on 17 November 2017 after both parties were allowed to file submissions about the application. The Justice of the Peace refused the application to set aside the default decision.
Dr Athanassiadis wants to appeal that decision: the decision not to set aside the default judgment.
The decision by default was given pursuant to s 50(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
By s 51 of the QCAT Act:
Setting aside decision by default
The tribunal, on application by the respondent, may set aside or amend a decision by default on terms, including terms about costs and the giving of security, the tribunal considers appropriate.
Dr Athanassiadis’ application to set aside the decision by default was pursuant to s 51 but he was unsuccessful.
By s 142(2) of the QCAT Act:
142 Party may…

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.

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Details

Case: [2018] QCATA 139
Decision Date: 25 September 2018

CaseChat Overview and Summary

The appeal before the court involved Dr Athanassiadis, the appellant, and Mr Deur, the respondent. The dispute arose from a minor debt claim that was made by Dr Athanassiadis against Mr Deur. The respondent failed to file a response to the claim, leading to a default judgment being entered against him. Dr Athanassiadis subsequently applied to set aside the default judgment, but the application was refused by a Justice of the Peace. Dissatisfied with the outcome, Dr Athanassiadis sought leave to appeal to the appeal tribunal.

The central legal issues in the appeal concerned the availability of an appeal against the refusal to set aside a default judgment and the requirements for obtaining leave to appeal in such circumstances. Given that the proceedings were in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal was necessary before the appeal could proceed. The appeal tribunal needed to determine whether the appellant had identified a significant error justifying an appeal and whether the refusal to set aside the default judgment constituted a substantial injustice warranting an appeal.

The court found that there was no appeal available against the decision to refuse to set aside a default judgment. The relevant legislation did not provide for such an appeal, and the appellant had not identified any error made by the Justice of the Peace in his application for leave to appeal or in his appeal submissions. The court emphasised that an appeal is not another opportunity to argue the case but rather a mechanism to correct an error that occurred in the original proceeding. The appellant's dissatisfaction with the outcome or with the respondent's conduct did not constitute a basis for an appeal. Consequently, the court refused leave to appeal.

ORDERS:
Leave to appeal refused.

Orders

Orders of the court

Leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

By s 51 of the QCAT Act:Setting aside decision by defaultThe tribunal, on application by the respondent, may set aside or amend a decision by default on terms, including terms about costs and the giving of security, the tribunal considers appropriate. Dr Athanassiadis’ application to set aside the decision by default was pursuant to s 51 but he was unsuccessful. By s 142(2) of the QCAT Act:142 Party may appeal(1) A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding.(2) However, a party to a proceeding can not appeal to the appeal tribunal against the following decisions of the tribunal—…(b) a decision to set aside a decision by default under section 51; Had the Justice of the Peace decided to set aside the default decision then there could be no appeal against that order. Presumably the party who would be applying in that case would be the applicant in the matter. However the legislation says nothing about an appeal from a decision refusing to set aside a default decision.[1][1]Ali v Twiyo Trading Trust [2018] QCATA 67. Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[2] [2]QCAT Act, s 142(3)(a)(i). Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[3] [3]Pickering v McArthur [2005] QCA 294, [3]. What is the error to be corrected? Dr Athanassiadis does not say that the Justice of the Peace made any error. He is clearly dissatisfied with the decision, but dissatisfaction does not constitute a basis to apply for leave to appeal or appeal. Instead he simply refers to Mr Deur’s incomplete or defective work. Parties who act for themselves often mistake an appeal as simply another opportunity to argue their case. It is not for that purpose. The objective of the appeal process is to correct an error that that has occurred in the proceeding below. The appellant must at minimum however identify that an error has been. It is not for the Appeal Tribunal to look for and perhaps find errors which will justify setting aside the decision. An appellant need not identify what the error was but he is required to show that there is a real or significant argument to be put that error exists.[4][4]Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429, [9]. Broadening the search for possible grounds of appeal to submissions filed by the parties in the appeal, Dr Athanassiadis filed a submission where again he principally repeated his assertions about poor or incomplete work on the part of Mr Deur. He did also comment however that he had not been aware of the requirement to lodge a response ‘to the original submission made on 27 September 2017 Brisbane claim 1489/17 as he thought the two parties would be called to the tribunal to discuss the matter.’

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Athanassiadis v Deur [2018] QCATA 139
PARTIES:	BASIL ATHANASSIADIS (appellant)
v
NIKOLA DEUR (respondent)
APPLICATION NO/S:	APL001-18
ORIGINATING APPLICATION NO/S:	MCDO1489-17 (Brisbane)
MATTER TYPE:	Appeals
DELIVERED ON:	25 September 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Howe
ORDERS:	Leave to appeal refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where respondent failed to file response to a minor debt claim – where application made to set aside default judgment – where Justice of the Peace refused the application – where no error on the part of the Justice of the Peace identified in the application for leave to appeal or appeal – where a ground of appeal identified in submissions Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 50(2), s 51, s 142(2)(b) Ali v Twiyo Trading Trust [2018] QCATA 67 House v R (1936) 55 CLR 499 Norbis v Norbis (1986) 161 CLR 513 Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429 Pickering v McArthur [2005] QCA 294
REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).