Kilford v Simonidis Shoebridge Lawyers Brisbane Pty Ltd
[2012] QCATA 87
•31 May 2012
| CITATION: | Kilford v Simonidis Shoebridge Lawyers Brisbane Pty Ltd [2012] QCATA 87 |
| PARTIES: | Mr Mark Anthony Kilford (Applicant/Appellant) |
| v | |
| Simonidis Shoebridge Lawyers Brisbane Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL487-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 31 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is refused.1. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – DECISION BY DEFAULT – LEAVE TO APPEAL – where respondent obtained decision by default – where applicant seeks leave to appeal decision rather than set aside – where applicant does not address usual test for leave – whether leave should be granted Queensland Civil and Administrative Tribunal Act2009, ss 50, 142(3) Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 069 followed Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, at 217 referred |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Senior Member Richard Oliver
I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes.
Member Susan Gardiner
Mr Kilford disputes that he owes a debt of $1,993.44 to Simonidis Shoebridge Lawyers Brisbane Pty Ltd for legal services provided between the period 24 September 2009 and 9 November 2009.
Mr Kilford refused to pay this bill saying no contract was ever signed, the solicitor acting was not the solicitor he engaged to represent him and that the legal advice and representation was unsatisfactory.
Simonidis Shoebridge Lawyers Brisbane filed an application to recover the amount of the debt in QCAT’s Minor Civil jurisdiction.
Mr Kilford did not file a response and on 20 October 2011 the Tribunal made a decision by default in favour of Simonidis Shoebridge Lawyers. This order was made under s 50 of the Queensland Civil and Administrative Tribunal Act2009. The Tribunal was satisfied that the application had been served on Mr Kilford, no response to the application had been filed, and the claim remained unsatisfied.
Mr Kilford was ordered to pay Simonidis Shoebridge Lawyers Brisbane the sum of $2,506.51 which included costs and interest.
On 15 November 2011 Mr Kilford filed and application to have the default decision set aside on the basis that he was never served with the application for minor civil dispute – minor debt.
On 16 November 2011 an application for the default decision to be set aside was dismissed by the learned Member. It was dismissed because a validly sworn affidavit of service was provided to show that personal service was effected on Mr Kilford on 23 August 2011. The only evidence Mr Kilford provided to set aside the default decision was his statement in the application that he was “never served the application”. Mr Kilford provided no further evidence to support that contention.
Mr Kilford now seeks leave to appeal or appeal the decision of the learned member of 16 November 2011. Leave to appeal is necessary as this in an appeal from the minor civil disputes jurisdiction.[1] As part of his appeal documentation, Mr Kilford provided further material to support his argument that he was not present at the address at which the documents were served on 23 August 2011. This evidence should have been put before learned Member for consideration when Mr Kilford sought to have the default decision set aside in November 2011.
[1] QCAT Act, s 142(3).
Leave may be granted to lead new evidence where the evidence was not reasonably available at the hearing; had it been, an opposite result was likely and the new evidence is credible.[2] This is not the case in this matter. Mr Kilford could have provided this further evidence to the Tribunal but did not. A decision was made by the learned Member on the material Mr Kilford provided. This decision was open to the Member on the evidence before her and discloses no error in the primary decision. As this Tribunal has commented in an earlier decision
“That statutory regime places obligations upon parties themselves: to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes serves, as the High Court has recently observed ‘the public as a whole, not merely the parties to the proceedings’[3].
…
In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences.”[4]
[2] Council of the City of Wollongong v Cowan (1955) 93 CLR 435.
[3]Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, at 217, para [113].
[4]Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 069 at paras 8 and 12.
The decision by default was regularly entered on the material provided by Mr Kilford the decision to dismiss the application to set it aside was open on that evidence. There is no error on the part of the learned member. There is no question of general importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage. Leave to appeal should be refused.
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