Mathew v Millington - [2016] QCATA 202

CITATION:	Mathew v Millington [2016] QCATA 202
PARTIES:	Katie Mathew (Applicant/Appellant)
v
Lisa Millington (Respondent)
APPLICATION NUMBER:	APL503-15
MATTER TYPE:	Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member J Allen
DELIVERED ON:	20 December 2016
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal is granted. 2. Appeal allowed. 3. The decision dated 30 November 2015 is set aside. 4. The application for a stay is dismissed. 5. The application is listed for hearing on a date to be advised. 6. Lisa Millington and any other parties joined as respondent and the witnesses of the respondent are granted leave to attend the hearing by remote conferencing.
CATCHWORDS:	APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – APPLICATION TO STAY – where applicant resident in Queensland – where respondent provides education services and carries on business in Melbourne, Victoria – where service under the Service and Execution of Process Act 1992 (Cth) – whether tribunal is afforded party natural justice – whether error of mixed law and fact - whether court of another state is the appropriate court Queensland Civil and Administrative Tribunal Act 2009 (Qld) s11, s 12, s13, 28(3), s43, s52, s142, s146. Fair Trading Act 1989 (Qld) s20, s50 Competition and Consumer Act 2010 (Cth Schedule 2 The Australian Consumer law s18, s 236 Service and Execution of Process Act 1992 (Cth) s15, s16, s20 Hartley v Bennette [2014] QCAT 91 Kioa v Minster for Immigration and Ethnic Affairs (1985) 159 CLR 550 Laurie v Carroll (1958) 98 CLR 310 Lenard's Pty Ltd and Anor v Kimart Pty Ltd and Others [2009] QDC 150 Li v Medical Board of Australia (No 1) [2013] QCAT 595 Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost [2015] QCAT 463 Pickering v Arthur [2005] QCA 294

APPEARANCES:

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

Ms Mathews enrolled in Beginner Cosmetic Tattoo Diploma Course with Melbourne College of Cosmetic Tattoo on 21 April 2015. Ms Millington was the owner of the College at the time of Ms Mathew’s enrolment. She attended the course from 6 July 2015 to 11 July 2015 and was presented with her diploma at the end of the course. Ms Mathew also agreed to purchase a laser tattoo machine at a cost of $1,000 and paid $450 for accommodation provided by the College.
Ms Mathew had issues with the course, the machine and the accommodation and made a demand on the College by letter of 31 August 2015 for repayment of the funds she had paid plus airfares, taxis and loss of income during the course.
She was not satisfied with the response from the College and made an application to the Tribunal in its minor civil dispute jurisdiction on 28 September 2015. The application requested payment to Ms Mathew from Ms Millington of the amount of $9,603.15,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mathew v Millington

Details

AGLC: Mathew v Millington [2016] QCATA 202
Case: [2016] QCATA 202
Decision Date: 20 December 2016

CaseChat Overview and Summary

In the case of Mathew v Millington, the appellant, Mathew, sought leave to appeal against a decision of the Magistrates Court of Victoria which had dismissed his application for a stay of proceedings in a minor civil dispute against Millington. Millington, a resident of Melbourne, provides education services and carries on business in Victoria. Mathew, a resident of Queensland, had served a summons on Millington under the Service and Execution of Process Act 1992 (Cth). The central legal issues involved whether the tribunal had acted in accordance with natural justice, whether there was an error of mixed law and fact, and whether the court of another state was the appropriate court to hear the matter.

The court considered whether the tribunal had afforded natural justice by allowing Millington to participate in the proceedings and whether there had been an error of mixed law and fact in the tribunal's decision. The court found that the tribunal had indeed failed to provide Millington with an opportunity to be heard, thereby breaching natural justice. Furthermore, the court identified that there had been an error of mixed law and fact in the tribunal's decision, as it had not properly assessed the applicability of the Service and Execution of Process Act 1992 (Cth) to the circumstances of the case. Consequently, the court concluded that the tribunal's decision was flawed and that the appeal should be allowed.

The court granted leave to appeal and set aside the decision dated 30 November 2015. The application for a stay was dismissed, and the appeal was listed for hearing on a date to be advised. Additionally, the court granted Lisa Millington and any other parties joined as respondents, as well as the witnesses of the respondent, leave to attend the hearing by remote conferencing. This decision ensures that all parties have the opportunity to participate in the appeal process, regardless of geographical constraints.

Orders

Orders of the court

1. Leave to appeal is granted.

2. Appeal allowed.

3. The decision dated 30 November 2015 is set aside.

4. The application for a stay is dismissed.

5. The application is listed for hearing on a date to be advised.

6. Lisa Millington and any other parties joined as respondent and the witnesses of the respondent are granted leave to attend the hearing by remote conferencing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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