Mills v Environpest International Pty Ltd
[2013] QCATA 195
•1 July 2013
| CITATION: | Mills v Environpest International Pty Ltd [2013] QCATA 195 |
| PARTIES: | Ms Wanda Mills (Appellant) |
| V | |
| Environpest International Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL077 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 1 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where respondent did not notice warning on claim – where respondent did not file a response – where application to set aside decision in default refused - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mrs Mills engaged Environpest International Pty Ltd to do a termite inspection of her home. She formed the view that Environpest didn’t do the inspection properly, so she did not pay the bill. Environpest filed a claim in the tribunal. Ms Mills did not file a response so Environpest sought, and obtained, a decision in default of a response.
Ms Mills asked the tribunal to set aside the default decision. The tribunal refused. Ms Mills wants to appeal that decision. She says that she has a reason for failing to file a response and that she has a defence to Environpest’s claim.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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 caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals 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.
Ms Mills says that she overlooked the warning to file and serve a response because it was on page 3 of a bundle of documents. It is true that Environpest served the claim without detaching the two pages of instructions for completing the claim. However, the claim is an important document and Ms Mills had an obligation to read it carefully. She says that she was waiting for the tribunal to contact her with a date for hearing, but there is nothing on the claim that indicates this is the process. By contrast, the claim does contain a warning to Ms Mills that she must file a response and that, if she fails to do so, Environpest may apply for a decision in default. Ms Mills has provided an explanation about why she did not file a response, but it is not an explanation that justifies setting aside the default decision.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
As the learned Adjudicator observed, Environpest did provide a service to Ms Mills. The learned Adjudicator was entitled to find that Ms Mills requested services, they were provided and Ms Mills did not pay for them. The learned Adjudicator was entitled to find that the material gave her no reason to set aside the default decision and I can find no compelling reason to come to a different view.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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