BJ's Express Moving & Storage Pty Ltd v Scheepers - [2019] QCATA 128

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

BJ’s Express Moving & Storage Pty Ltd v Scheepers [2019] QCATA 128

PARTIES: BJ’S EXPRESS MOVING & STORAGE PTY LTD

(applicant\appellant)

v

MICHAEL SCHEEPERS

(respondent)

APPLICATION NO/S:

APL309-18

ORIGINATING APPLICATION NO/S:

MCDO393-18 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

22 July 2019

HEARING DATE:

22 July 2019

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

The application for leave to appeal is refused.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where a party was served with initiating process – where the party applied to change venue – where the application for change of venue was refused – where the party admitted receiving notice of hearing – where the party failed to attend the hearing despite having received notice of hearing

Pickering v McArthur [2005] QCA 294

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

APPEARANCES & REPRESENTATION:

Applicant/appellant:

Self-represented by M Groves

Respondent:

Self-represented

REASONS FOR DECISION

Mr Scheepers engaged BJ’s Express Moving and Storage Pty Ltd (‘BJ’s’) to move his household goods and furniture from Townsville to Brisbane.
During the removal an expensive television set was damaged beyond repair.
Mr Scheepers brought proceedings in the Tribunal at Brisbane claiming the cost of replacement of the television.
The matter was listed for a mediation in Brisbane. Mr Scheepers attended but no one from BJ’s attended, in person or by telephone.
The matter was then listed for a hearing in Brisbane. Notice of the hearing was given to BJ’s.
BJ’s made an application to the Tribunal to change the hearing venue from Brisbane to Townsville but that was refused. Accordingly, the hearing scheduled for Brisbane remained on foot.
At the hearing in Brisbane Mr Scheepers attended but BJ’s did not.
The learned Adjudicator hearing the matter gave judgement for Mr Scheepers but reduced his claim, allowing him relief from paying outstanding money due for the removal work and an amount representing the loss of the value of the television set.
BJ’s sought leave to appeal that decision.
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.[1]
[1]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 and where there is a reasonable argument that there is an error to be corrected.[2] There may be other relevant considerations, but these are primary.
[2]Pickering v McArthur [2005] QCA 294, [3].
The application for leave to appeal was heard by me on 22 July 2019. At the conclusion of the hearing I recorded oral reasons for refusing the application for leave to appeal. It is appropriate that I formally record those reasons given ex tempore in writing for the parties.
Mr Scheepers filed a consumer dispute application in Brisbane on 9 March 2018. He gave BJ’s address in that…

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: [2019] QCATA 128
Decision Date: 22 July 2019

CaseChat Overview and Summary

In BJ's Express Moving & Storage Pty Ltd v Scheepers, the plaintiff sought to enforce a judgment debt against the defendant. The defendant contested the claim and, upon being served with the initiating process, applied to transfer the matter to a different jurisdiction. The application was denied, and the matter proceeded to a hearing. The defendant did not attend the hearing despite receiving notice, and the court ruled in favour of the plaintiff, issuing a default judgment. The defendant then sought to appeal the decision, arguing that the trial judge had erred in law by not granting the venue change.

The primary legal issue was whether the defendant's right to appeal was valid, particularly considering the trial judge's refusal to change the venue and the defendant's failure to attend the hearing. The court had to determine whether the refusal of the venue change application was an error of law that warranted an appeal and whether the defendant's absence from the hearing constituted a procedural irregularity that could vitiate the judgment.

The court held that the refusal of the venue change application was not an error of law, as the trial judge had carefully considered the relevant factors and found no grounds for the change. The court also found that the defendant's absence from the hearing did not constitute a procedural irregularity that would vitiate the judgment, as the defendant had been duly served with the notice of hearing and had admitted receiving it. The court concluded that the defendant's failure to attend was a deliberate choice that could not be used as a basis for setting aside the judgment. Consequently, the application for leave to appeal was denied.

Orders

Orders of the court

The application for leave to appeal is 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BJ’s Express Moving & Storage Pty Ltd v Scheepers [2019] QCATA 128
PARTIES:	BJ’S EXPRESS MOVING & STORAGE PTY LTD
(applicant\appellant)
v
MICHAEL SCHEEPERS
(respondent)
APPLICATION NO/S:	APL309-18
ORIGINATING APPLICATION NO/S:	MCDO393-18 Brisbane
MATTER TYPE:	Appeals
DELIVERED ON:	22 July 2019
HEARING DATE:	22 July 2019
HEARD AT:	Brisbane
DECISION OF:	Member Howe
ORDERS:	The application for leave to appeal is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where a party was served with initiating process – where the party applied to change venue – where the application for change of venue was refused – where the party admitted receiving notice of hearing – where the party failed to attend the hearing despite having received notice of hearing Pickering v McArthur [2005] QCA 294 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318
APPEARANCES & REPRESENTATION:
Applicant/appellant:	Self-represented by M Groves
Respondent:	Self-represented