Hussein v Pacific Lighting Limited
[2011] QCATA 188
•19 July 2011
| CITATION: | Hussein v Pacific Lighting Limited [2011] QCATA 188 |
| PARTIES: | Mr Imran Hussein (Applicant/Appellant) |
| v | |
| Pacific Lighting Limited (Respondent) |
| APPLICATION NUMBER: | APL046-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 19 July 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is granted.[1] The decision of 11 February 2011 is set aside.[2] The decision of 18 January 2011 is set aside.[3] The application is remitted to the minor civil disputes jurisdiction for hearing.[4] |
| CATCHWORDS: | Minor Civil Dispute – where decision by default entered was irregular – where facsimile response received by registry – where error of law. Queensland Civil and Administrative Tribunal Act2009, ss 50 and 142(3). QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Cachia v Grech [2009] NSWCA 232 at 2. Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2000 (QCAT Act).
REASONS FOR DECISION
Mr Hussein has filed an application for leave to appeal or appeal from a decision of the Tribunal, sitting in the minor civil disputes jurisdiction, refusing to set aside a default decision made on 18 January 2011.
The applicant in the minor civil dispute, Pacific Lighting commenced a proceeding against Mr Hussein for $3,094.88 for monies due and owing pursuant to a loan made by Pacific Lighting to Mr Hussein. The amount of the loan was $1,907.92.
Service of the application was affected on Mr Hussein on 11 December 2010. From the date of service, Mr Hussein had 28 days to file a response.
On 14 January 2011, within the 28 day period, Mr Hussein filed a response by facsimile in which he disputed the allegations “in the paragraphs” in the application and stated that he wanted the Tribunal to make the following orders:-
“Request extension of time for I am still outside Australia. I am was (sic) to return on 10.1.11 but now will only return on 29.1.11. I will contact you after I arrive in Australia.”
That facsimile response was “filed” but no original response was filed. On 18 January 2011 the applicant filed a request for a decision by default. That request was considered by the Tribunal and on being satisfied as to service, and no original response having been filed, the decision by default was made ordering Mr Hussein to pay Pacific Lighting the sum of $2,027.12.
Upon the QCAT registry realizing a response had in fact been lodged with the Tribunal, but, it seems not filed with the requirements of Rule 45(2)(d), a concern was raised within the registry. The concern was whether the decision by default was regularly entered in view of the fact that a facsimile response had been received from Mr Hussein prior to the decision by default being made. As a consequence, the application was referred to a Tribunal Member for consideration.
On considering the material on the file, the Tribunal Member came to the conclusion that the decision by default should not be set aside. It was considered that the more appropriate way to proceed was for Mr Hussein to apply for a reopening. As a consequence, a decision was issued on 11 February 2011 that “the request to set aside the default decision is refused”.
It is from that decision that Mr Hussein has sought leave to appeal. 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 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[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.
What is clear from the file, is that Mr Hussein did not file an application to set aside the default decision. In considering such an application, one has to have regard to the reasons for not filing a response, whether the Tribunal is satisfied that there is a defence on the merits and, any explanation for delay. In this case, none of those matters were considered because the request to set aside was an internal request made within the registry but the decision was published to the parties.
[10] It seems obvious from the response filed by Mr Hussein that he did not address the requirements set out in Rule 45(2)(c) that is to answer the applicant’s assertions, and setting out reasons why, in this case, he says he did not owe the money as alleged.
[11] The question for determination here though is whether the document filed by Mr Hussein was a sufficient response to satisfy section 50(1)(c) of the QCAT Act. It provides that the section applies if the respondent has not responded to the application within the stated period. For the purposes of this application, the Tribunal must accept that Mr Hussein was overseas. He could not physically file his response in the Tribunal. He sought an extension of time to do so upon his return but in the meantime, he filed what might be regarded as a “holding defence” which put Pacific Lighting on notice that he intended to defend the claim made against him.
[12] It seems to me, had the Registrar been aware that the response had been filed the default decision would not have been made and the matter would have proceeded to mediation or hearing.
[13] The entering of default decision in circumstances where a response has been filed means that the default decision was entered irregularly and should be set aside. Having said that, there was no application from Mr Hussein to set aside the decision but on the matter being referred the Tribunal Member by the registry for consideration, the appropriate decision should have been to set aside the default decision.
[14] An irregularly entered decision which does not comply with the requirements of section 50 of the QCAT Act is an error of law and therefore leave to appeal must be granted.
[15] Although there was no formal application before the learned Tribunal Member to set aside the decision by default, his decision not to do so in the circumstances should be set aside.
[16] Rather than refer the matter back to the minor civil disputes jurisdiction for the applicant to make an application to set aside the default decision, as it has been entered irregularly, it should be set aside in the interests of justice in any event. Therefore the Tribunal will make the following orders:-
1. Leave to appeal is granted.
2. The decision of 11 February 2011 is set aside.
3. The decision of 18 January 2011 is set aside.
4. The application is remitted to the minor civil disputes jurisdiction for hearing.
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