Rains v Scamp
[2013] QCATA 96
•18 March 2013
| CITATION: | Rains v Scamp [2013] QCATA 96 |
| PARTIES: | Ms Viveca Rains (Applicant/Appellant) |
| V | |
| Dr Terrance Scamp (Respondent) |
| APPLICATION NUMBER: | APL212 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 18 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted 2. Appeal allowed 3. The decision of 28 May 2012 is set aside 4. The proceeding is remitted for hearing by the tribunal at Southport |
| CATCHWORDS: | MINOR CIVIL DISPUTE - where pre payment for surgery – where surgery not undertaken – where demand for return of payment – whether debt or liquidated demand – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 s12(4) 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 Green v Tri-Barfen Pty Ltd [2006] QDC 160 |
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
In January 2006, Dr Scamp agreed to perform surgery on Ms Rains. Ms Rains pre-paid the cost of the surgery, $8,701.00. In September 2011, Ms Rains decided she did not want to proceed with the surgery, so she asked for her money back. Dr Scamp refused so Ms Rains filed an application for return of her payment. The tribunal dismissed Ms Rains’ claim on the basis that it did not have jurisdiction to hear the matter.
Ms Rains wants to appeal that decision. She says that the claim is a debt or liquidated demand within the meaning of s12(4)(a) of the Queensland Civil and Administrative Tribunal Act 2009. Alternatively, Ms Rains says that her agreement with Dr Scamp is a contract between a consumer and trader within the meaning of s12(4)(b).
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.
The tribunal has considered the meaning of debt or liquidated demand, in the context of s12(4)(a).[5] After considering the authorities, Member Cullen adopted the words of Justice Alan Wilson[6] that the usual test for a liquidated demand is “whether or not the claim can be calculated or ascertained by a formula”.
[5] Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 at [26].
[6] Green v Tri-Barfen Pty Ltd [2006] QDC 160 at [6].
As Ms Rains points out in her submissions, she is not claiming damages for breach of contract. She is claiming return of a specific sum of money because of a total failure of consideration. I am satisfied that Ms Rains’ claim is one that can be calculated or ascertained. It is, therefore, within the tribunal’s jurisdiction under s12(4)(a). The learned Adjudicator’s error was understandable as Ms Rains framed her claim as one of consumer/trader for the provision of medical services. However, it is an error and Ms Rains should have leave to appeal.
I do not need to decide whether the relationship between Ms Rains and Dr Scamp was one of consumer/trader.
Leave to appeal should be granted, the appeal allowed and the dispute referred back to the tribunal for determination.
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