Frank Lanza Migration Services v Hotta
[2010] QCATA 86
•25 November 2010
| CITATION: | Frank Lanza Migration Services v Hotta [2010] QCATA 86 |
| PARTIES: | Frank Lanza Migration Services (Applicant/Appellant) |
| v | |
| Katsumitso Hotta (Respondent) |
APPLICATION NUMBER: APL182-10
| MATTER TYPE: | Appeal |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 25 November 2010
DELIVERED AT: Brisbane
ORDERS MADE: | Application for leave to appeal refused |
| CATCHWORDS : | MINOR CIVIL DISPUTE – DEBT – MIGRATION SERVICES – where appellant performed migration work for the respondent – where the respondent contested fee for services – where Acting Magistrate found that appellant failed to provide the respondent a “statement of services” for the purposes of s 313 of the Commonwealth Migration Act 1958 – where the appellant was only awarded for his disbursements – whether Acting Magistrate erred in finding that appellant failed to comply with s 313 – whether leave to appeal should be granted Commonwealth Migration Act 1958, s 313 Cachia v Grech [2009] NSWCA 232, applied |
REASONS FOR DECISION
By order of the Appeals Tribunal this matter was conducted on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
Mr Lanza, a migration agent trading as Frank Lanza Migration Services, brought proceedings in QCAT’s Minor Civil Disputes jurisdiction in Cairns claiming that Mr Hotta owed him $3,716.61 for services rendered. The matter was heard by an Acting Magistrate, sitting as a QCAT adjudicator, in Cairns in July 2010. The learned Acting Magistrate refused Mr Lanza a judgement for his full claim, but ordered that the respondent pay him $1,170.11 (comprised of $966.61 for claim, $76.00 for interest, and $127.50 for filing and service fees).
Mr Lanza, whose letterhead also advertises that he is a barrister, has sought leave to appeal the decision. Leave is necessary under the QCAT Act: s 142(3)(a)(i).
The learned Acting Magistrate provided lengthy reasons, in writing, on 29 July 2010. In particular, it was found that s 313 of the Commonwealth Migration Act 1958 requires that, before a migration agent can recover fees or rewards for services, the agent must give the assisted person a ‘statement of services’ which sets out particulars of each service performed, and the charge made in respect of it. The learned Magistrate held that Mr Lanza had failed to comply with this obligation and, in particular, that his invoice to Mr Hotta of 15 October 2009 did not meet the requirements of s 313.
In the result the learned Magistrate concluded that Mr Lanza was only entitled to claim his disbursements – which were not, it appears, challenged by Mr Hotta.
To his credit, however, the learned Acting Magistrate also went on to consider what his decision would be if s 313 did not apply in which event, he said, he would have awarded Mr Lanza an amount of $1,400.00 for the claim. His reasons for coming to that figure are set out thoroughly and helpfully, and need not be repeated here because, for reasons which follow, I am satisfied that the primary decision about the effect of s 313 was correct.
That section specifically provides that a registered migration agent is not entitled to be paid a fee or other award for giving immigration assistance to another person unless the agent gives the assisted person a statement of services which sets out particulars of each service performed, and the charge made in respect to each service. Mr Lanza’s invoice fails to do that. It simply describes, in very general terms, the activities of providing immigration advice, preparation of an application, and dealings with the Queensland Government and the Department of Immigration and Citizenship – services alleged to be worth ‘Exceeding $5,000.00, but say…’$2,500.00’. On any view, that is not an adequate statement of the particulars of each service performed.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at [13].
[3] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[4] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
There is no apparent instance of error in the primary decision, nor any question of general importance about which further argument is necessary, or to public advantage. There has been no substantial injustice to the applicant or, indeed, any injustice at all. The learned Acting Magistrate’s reasons are commendably thorough and thoughtful and reflect a fair and just consideration of both the factual and legal matters rising in the case before him.
Leave to appeal must be refused.