Kuzba v O'Day
[2014] QCATA 345
•16 December 2014
| CITATION: | Kuzba v O’Day [2014] QCATA 345 |
| PARTIES: | Damian Francis Kuzba (Applicant/Appellant) |
| V | |
| William O’Day and Shona O’Day (Respondents) |
| APPLICATION NUMBER: | APL365 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Deputy President Stilgoe OAM |
| DELIVERED ON: | 16 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where minor debt claim – where set off alleged in response – where tribunal did not consider set off – where set off a claim for superannuation and tax payments – whether set off within the tribunal’s jurisdiction - whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rr 48, 49 Dearman v Dearman (1908) 7 CLR 549 |
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
Mr and Ms O’Day run a roofing business. Mr Kuzba worked for them between March 2013 and March 2014. In March 2014, Mr Kuzba asked Mr O’Day if he could buy roofing materials on Mr O’Day’s account with Lysaght. The material was for Mr Kuzba’s own house and he would save about $3,000 by buying through Mr O’Day’s account. Mr and Ms O’Day agreed to let Mr Kuzba use the account because Mr Kuzba promised to pay for the material.
Mr Kuzba did not pay for the material. In April 2014, Mr and Ms O’Day filed a claim for $7,214.76. Mr Kuzba filed a response admitting the debt and offering a repayment plan. He then filed an amended response alleging that Mr and Ms O’Day owed him money for unpaid superannuation and PAYG. In June 2014, Mr Kuzba filed an employment claim in the Magistrates Court.
Mr Kuzba filed an application for an adjournment, asking the tribunal to defer the hearing until after the hearing of his employment claim. A Magistrate, sitting as a member of the tribunal in its minor civil disputes jurisdiction, refused the adjournment and ordered Mr Kuzba pay Mr and Ms O’Day $7,214.76.
Mr Kuzba wants to appeal that decision. He says the learned Magistrate erred in treating his response as a counterclaim, and not a set off. He says he was not allowed to give evidence in support of his response. He says the learned Magistrate refused to consider properly his defence and set off. He says the learned Magistrate should have granted an adjournment until after the hearing of his employment claim.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act, s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The learned Magistrate referred to Mr Kuzba’s claim for a set off[3]. She acknowledged that Mr Kuzba filed a detailed claim[4] but she did not give the claim any further attention. Her decision to proceed in this way is understandable, but in error. The learned Magistrate should have considered the claim of set off, if only to reject it. Leave to appeal should be granted.
[3]Transcript page 1-8, lines 40 – 41.
[4]Transcript page 1-8, lines 24 – 25.
The QCAT Act and Rules do not distinguish between a set-off and a counter claim. Rule 48(1) states that a respondent may, in response to an application, apply to the tribunal for stated orders against another person, including the applicant. Rule 48(3) states that a party cannot make a counter-application in response to an application for minor debt. Rule 49 provides for those cases where there are circumstances suggesting that a respondent to a minor debt claim could have applied for orders by way of counterclaim. The tribunal may order that they be dealt with as a separate minor debt claim or give directions it considers appropriate.
There are problems with Mr Kuzba’s claim for a set off. The first is that only liquidated sums can be set off against each other[5]. Mr Kuzba’s claim appears to be for a liquidated sum, but it is not. His claim for misleading and deceptive conduct sounds in damages. He is not entitled to payment of the PAYG and superannuation. If Mr and Ms O’Day are liable, those payments are made to the Australian Taxation Office and Mr Kuzba’s superannuation fund respectively. As his response concedes[6], he does not know what his tax liability might be.
[5]McDonnell and East Ltd v McGregor (1936) 56 CLR 50.
[6]Paragraph 10 of the amended response.
The second problem is that Mr Kuzba’s claim for a set off was not within the learned Magistrate’s jurisdiction, sitting as a member of the tribunal. Mr Kuzba was, apparently, not asserting that his claim fell within the tribunal’s limited jurisdiction for employment matters. The tribunal could not consider the claim for misleading and deceptive conduct, unless Mr Kuzba asserted that he was a trader.
Given the tribunal had no jurisdiction about the subject of the set off, and given that Mr Kuzba filed separate proceedings in the Magistrates Court, and given that a decision of the tribunal might have extinguished Mr Kuzba’s claim, I can see no substantial injustice to Mr Kuzba. He may have a decision against him but his right to pursue the employment claim was preserved and fell for determination in an appropriate forum.
Although leave to appeal should be granted, the appeal is refused.
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