Howard v Smith
[2014] QCATA 103
•5 May 2014
| CITATION: | Howard v Smith [2014] QCATA 103 |
| PARTIES: | Dean Howard (Applicant/Appellant) |
| v | |
| Stephen James Smith (Respondent) |
| APPLICATION NUMBER: | APL535-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 5 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The order of the Tribunal made on 3 October 2013 is set aside. 4. This matter is remitted for hearing by a Member or Adjudicator who has not previously dealt with it, on a date to be fixed and notified to the parties. |
| CATCHWORDS: | APPEALS – MINOR CIVIL DISPUTE – MINOR DEBT – whether within jurisdiction of Tribunal – whether a liquidated claim or a partnership dispute – judgment for debt in default of appearance at trial – objection to jurisdiction recorded by appellant – objection to jurisdiction not considered by Tribunal – whether error of law – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 50, s 93, s 138, s 139 Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1, cited |
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
On 28 March 2013 the Respondent (Smith), commenced these proceedings, in the form of a Minor Civil Dispute against the Appellant (Howard) claiming $16,420 as a debt due under an agreement to purchase from Smith a motor boat known as Four Winns.
Initially, the matter was set down for hearing at Southport on 21 June 2013. Smith appeared in person; Howard did not appear. The Tribunal then entered judgment against Howard for the amount claimed.
On 22 July 2013, upon Howard’s application, that order was set aside. It is unnecessary to canvass the grounds of that application.
In conjunction with that application to set aside, Howard objected to jurisdiction:
It is submitted that the emails passing between the parties and the joint accounts of the Applicant and Respondent, conclusively evidence that this matter is not a minor debt/liquidated debt, as that term is defined under the QCAT Act.
It is further submitted that the facts give rise to issues of the dissolution of a partnership and/or joint venture both at law, equity and/or under statute which requires the bringing to account and the winding up.[1]
[1]Submissions annexed to application to set aside default decision, filed 5 July 2013, paragraphs 16 and 17.
The matter was re-listed for hearing on 3 October 2013. Howard failed to appear, and in his absence judgment was entered against him in the sum of $16,420.[2] That decision describes the result as a default judgment;[3] it would have been better described as a decision in the absence of a person,[4] but nothing turns on this point.
[2]Transcript of hearing 3 October 2013 page 3 line 13. In what is clearly a typographical error, the formal order is recorded at line 25 as $6,420.
[3]Cf QCAT Act s 50.
[4]QCAT Act s 93.
The decision of 3 October 2013 makes no reference to Howard’s objection to jurisdiction.
On 15 October 2013 Howard made a second request to be let in to defend, this time in the form of an application for reopening.[5] Again he objected to jurisdiction. His application was dismissed without reference to that plea. The Adjudicator simply rejected Howard’s explanation for his absence doubting, incidentally, the merits of his first application.[6]
[5]QCAT Act s 138.
[6]I. e. the application to set aside, filed on 5 July 2013; Reasons for Decision 4 November 2013, paragraph [25].
Howard now seeks leave to appeal. That application is framed as an appeal against the default decision of 3 October 2013 – in view, no doubt, of the preclusive provisions of section 139(5).[7]
[7]QCAT Act s 139(5) – decision on reopening application is final.
Notwithstanding Howard’s cavalier attitude towards the Tribunal, and with due sympathy towards a party who has twice sought and obtained judgment, I have come to the conclusion that leave should be granted, and the appeal allowed.
As noted above, the decision under appeal makes no reference to the jurisdictional issue. With due respect, that is an error of law.
As I pointed out in McGarry v Coates[8] a question of jurisdiction is such a fundamental matter of law that a court or tribunal may raise it ex mero motu, if the parties do not do so. However, Howard has raised it explicitly.
[8][2013] QCATA 32 at [6].
Default in pleading or failure to attend a hearing does not absolve a tribunal from proceeding according to law. If there is an arguable doubt as to jurisdiction, or concerning law or facts sufficient to support the chosen cause of action, the adjudicator must examine the available material, and if not satisfied that the case is clear, should refuse an ex parte order.[9]
[9]Charles v Shepherd [1892] 2 QB 622 at 624; Gramophone Company Ltd v Magazine Holder Company (1911) 28 RPC 221 at 225; Wiedenhofer v Commonwealth (1970) 122 CLR 172; Trust Company of Australia Ltd v Perpetual Trustees (WA) Ltd [1995] NSWSC 163 at [34]-[35]; Brookhollow Pty Ltd v R and R Consultants Pty Ltd [2006] NSWSC 1 at [63]; Zsis v Knighton [2008] NSWCA 42 at [35]; Commissioner of State Taxation v Cyril Hensche Pty Ltd (2010) 242 CLR 508 at [22]; Wiley v King [2010] NSWSC 352 at [17].
In PRD Nationwide v de Abaitua (No 2)[10] Wilson P set aside a default decision in which a claim presented as a debt was really an unliquidated claim for breaches of duty by a real estate agent.
[10][2010] QCATA 33.
Smith contends that this action is an ordinary claim for debt, because the partnership alleged by Howard was dissolved before the sale of the Four Winns. I express no concluded opinion on that point; in my view the issue of jurisdiction cannot properly be resolved on the papers. That question – and any other live issues – require oral as well as documentary evidence, elucidated, if need be, by cross-examination. So far Smith has stated his case on jurisdiction only very briefly, in three short paragraphs, apparently drafted in person. On the other hand Howard, in documents professionally prepared, has set out his position at length. The question of legal representation could well be revisited.
It is appropriate, then, to re-list this matter for hearing at first instance, in the light of principles noted above.
If Howard still fails to appear, the Tribunal will be entitled to decide the jurisdictional issue on the documents already filed, and any other material submitted by Smith.
The Tribunal’s failure to consider the jurisdictional issue is an error of law that may have resulted in an injustice. I propose to grant leave to appeal, to allow the appeal, to set aside the judgment in default of appearance delivered on 3 October 2013, and to remit this matter for hearing by a Member or Adjudicator who has not previously been required to deal with it.
ORDERS
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The order of the Tribunal made on 3 October 2013 is set aside.
4. This matter is remitted for hearing by a Member or Adjudicator who has not previously dealt with it, on a date to be fixed and notified to the parties.
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