Nait Recycling v Mil-Tek Waste Solutions QLD Pty Ltd

[2011] QCATA 7

CITATION: Nait Recycling v Mil-Tek Waste Solutions QLD Pty Ltd [2011] QCATA 7

PARTIES:	Nait Recycling (Applicant/Appellant)
v
Mil-Tek Waste Solutions QLD Pty Ltd (Respondent)

APPLICATION NUMBER:            APL222-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON:   25 January 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       1.   Leave to appeal is granted

2.    The appeal is allowed and the default decision made on 19 August 2010 is set aside.

3.    The application is remitted to the Magistrates Court at Richlands for hearing as a minor civil dispute         

CATCHWORDS : 

 Decision by Default, where respondent had filed a response within the time required by the rules; where decision by default irregular; waiver of procedure requirements.LAW – FACT

Queensland Civil and Administrative Tribunal Act 2009, sections 3, 50, 61 and 142(3) and considered.

Watson v Specialised Tooling Pty Ltd v Stevens (1991) 1 QD R 85 @ 91 considered

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. On 17 September 2010 the applicant, Mr Anti filed an application of leave to appeal for appeal from a decision of the principal Registrar to enter judgement against him for the sum of $3,698.20 on 19 August 2010. Leave is necessary.[1]

   [1] QCAT Act section 142(3)

1. The order was made after the applicant, Mil-Tek Waste Solutions QLD Pty Ltd, applied for a decision by default in the Richlands Magistrates Court on 8 July 2010. 

1. The application was considered by the Registrar and an order made that Mr Anti pay the sum referred to above.

1. It is apparent from a perusal of the civil dispute file that Mr Anti had in fact filed a response to the minor civil dispute in the Magistrates Court at Richlands on 28 July 2010.

1. Rather than apply to set aside the decision by default, Mr Anti filed the application for leave to appeal or appeal.

1. Section 50 of the QCAT Act provides that an applicant can apply for a decision by default if:-

(a) a person has applied to the tribunal to recover a debt or liquidated demand of money from a person (the respondent); and

(b) an enabling Act that is an Act or the rules state that the respondent must respond to the application within a stated period; and

(c)  the respondent has not responded to the application within the stated period.

(2) The applicant may, in the way stated in the rules, apply to the tribunal for an order in favour of the applicant (a decision by default) for an amount limited to …

1. Strict compliance with this section is necessary before a decision by default can be made[2]. Therefore, because the applicant had filed a response, as required by the rules[3] the making of an order in favour of Mil-Tek Waste Solutions QLD Pty Ltd was irregular.

   [2] Watson v Specialised Tooling Pty Ltd v Stevens (1991) 1 QD R 85 @ 91

   [3]            QCAT Rule 43

1. Rather than file an application for leave to appeal and appeal[4] the preferred method is to apply to set aside the decision by default[5] because clearly, on such an application, a decision by default would have been set aside pursuant to section 51 of the QCAT Act.

   [4]            QCAT form number 39

   [5]            Using QCAT form 40 “application for miscellaneous matters”

1. Rather than dismiss the appeal so the applicant could apply to set aside the decision by default, section 61 of the QCAT Act permits the Tribunal to waive compliance with procedural requirements under the QCAT Act. Such a course would be consistent with the objects of the QCAT Act[6]

   [6] QCAT Act section 3

1. Therefore, the procedural defect in appealing the decision rather than in applying to have it set aside should be waived, particularly in circumstances where the decision of 19 August 2010 is irregular.  Further, as this is an error of law leave to appeal should be granted and the appeal allowed.  The order of the Tribunal will be that the default decision will be set aside and the matter will be remitted to the Richlands Magistrate Court for hearing as minor civil dispute.