Clancy v Miitze

[2011] QCATA 31

CITATION: Clancy v Miitze [2011] QCATA 31

APPELLANT:	Brian Patrick Clancy and Lynette June Clancy (Appellants)
v
RESPONDENT:	Lola Majorie Miitze (Respondent)

APPLICATION NUMBER:   APL173-10

MATTER TYPE: Appeals

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 21 February 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

1.    The applicant’s application for leave to appeal is granted.

2.    The appeal is allowed.

3.    The decision in Minor Civil Dispute claim 148-10 in Toowoomba is set aside.

4.    Leave is granted to serve MCD148-10 on the respondent by sending the application by pre-paid post to PO Box 586, Bribie Island 4507.

5.    Service will be deemed to have been effected after postage, on the day that it would be expected to be delivered in the ordinary course of post.

6.    The substantive application for a minor debt is returned to the Tribunal for determination.

CATCHWORDS : 

APPEAL – MINOR CIVIL DISPUTE – INTERLOCUTORY DECISION – where applicants made application for substituted service – where application refused – whether learned Magistrate misunderstood application – whether learned Magistrate erred in exercise of discretion

Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)

REASONS FOR DECISION

1. The Clancys lodged an application in the Minor Civil Dispute jurisdiction of QCAT for a minor debt.  Following a number of failed attempts to secure and effect service to the address for the respondent on the electoral role and with the local authority, the Clancys made an application for substituted service.  That application was refused by a Magistrate sitting in the capacity of a Member of QCAT.  The Clancys have applied for leave to appeal (and if successful appeal) that decision.  Leave is necessary to appeal from a Minor Civil Dispute decision of QCAT.[1]

   [1] Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a).

1. The decision made by the Magistrate was “Application deal with Exparte refused.”  It appears the Magistrate misunderstood the application made by the Clancys.  Mr Clancy attached an affidavit that outlined clearly and in detail the numerous and failed attempts to serve the respondent and the likely success of having the application brought to the respondent’s attention by the method proposed.  The Magistrate erred in misunderstanding the nature of the application.  Leave to appeal is granted.  The appeal is allowed.  Orders for substituted service are made.