Redwerks Pty Ltd v Me & LN Rosemeyer Super Pty Ltd

[2016] QCATA 80

CITATION: Redwerks Pty Ltd v ME & LN Rosemeyer Super Pty Ltd [2016] QCATA 80

PARTIES:	Redwerks Pty Ltd (Applicant/Appellant)
v
ME & LN Rosemeyer Super Pty Ltd (Respondent)

APPLICATION NUMBER: APL045 -16

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 23 May 2016

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 33(2)
Uniform Civil Procedure Rules r 290

Pickering v McArthur [2005] QCA 294
Rural Bank Ltd v Wallace [2014] QSC 87
MVP Investments Australia Pty Ltd v Van Rooy [2010] QCATA 35
Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87

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

1. On 2 September 2015, ME & LN Rosemeyer Super Pty Ltd filed a claim for minor debt against Redwerks Pty Ltd. On 16 October 2015, the Tribunal entered a decision by default, as Redwerks did not file a response to the claim.

2. Redwerks applied to set aside the default decision. The Tribunal refused the application. Redwerks wants to appeal that decision.

3. 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].

4. Redwerks says there are two alternative grounds on which leave to appeal should be granted. The first is that the decision was irregularly entered and, therefore, the decision must be set aside ex debito justiciae. In the alternative, if the decision was regularly entered, the Tribunal should exercise its discretion to set the decision aside.

Was the decision regularly entered?

1. Ex debito justiciae is a remedy to which a party is entitled as of right; that is, without requiring the exercise of a discretion. An example of a court’s inclination to set aside a default judgment ex debito justiciae can be found in Rural Bank Ltd v Wallace.[3]

   [3][2014] QSC 87

2. Redwerks says that it is entitled to have the decision set aside because the pro forma pleading of the claim does not satisfy the requirements of the QCAT Act. It says there is no evidence of debt, and no information about how the amount was calculated.

3. An application to the Tribunal must be in a form substantially complying with the rules and must state the reason for the application.[4] Rule 7 states that an application must be made in the approved form. If a party is filing a claim through CITEC, the relevant form is Form 4. The forms themselves are, of course, generic. 

   [4]QCAT Act s 33(2)

4. Users of the paper-based Form 3 are told, within the form:

   You must explain why you are seeking payment of the above amounts. You should provide as much detail as possible, and attach evidence where possible. If you do not provide this information your application may be returned to you or dismissed.

   The instructions for completing the form state:

   Where possible, all information to support your claim should be filed with this application. However, if you have not already provided information you will have to provide to the Tribunal supporting documents for the orders that you are seeking from the Tribunal with the default decision application.

   …

   You must give a reason for each amount you ask for. Your reasons must be detailed enough so that the respondent can understand what the dispute is about. You must explain:

   ·What the amount is for – for example:

   oMoney owed because you provided goods and services to the respondent; or

   oMoney you lent to the respondent that is still owed to you

   ·Your agreement with the respondent about the amount owed

   ·What date the agreement was made

   ·How you worked out the amount

   ·When the amount because due and how much is still owing

   …

   PROVING YOUR CASE

   Have you included a copy of all the relevant documents and evidence?

   You must include a copy of all of the relevant documents that you want to use and rely on at the hearing.

5. The instructions for completing a Form 4 are also contained within the form. However, a user is instructed simply to provide a statement of particulars of claim.

6. The warning in the Form 4 is also less explicit than that in Form 3:

   The Queensland Civil and Administrative Tribunal has advised that the supporting document file upload is to be utilised to provide additional information regarding the Statement of Particulars of Claim, and should not be utilised in lieu of providing the Statement of Particulars of Claim details.

   If sufficient details are not provided in the Statement of Particulars of Claim field when the Minor Civil Dispute is eFiled, then any associated Request for Decision by Default may be rejected by QCAT.

7. Because a party must be registered before using the electronic filing service, the Tribunal might have supposed that the users of Forms 4 would be sophisticated parties who were cognisant of the Tribunal rules and expectations. It is more likely, however, that users transitioned from the Magistrates Court pleading regime with no thought, or attention, to the requirements of the Tribunal.

8. The Form 4 Rosemeyer filed does refer to a debt, in paragraph 2(a). It says that it provided full particulars of the debt to Redwerks. If that was not true, then Redwerks, in filing a response, could have challenged that statement and called for the particulars. Otherwise, the Tribunal was entitled to assume the truth of that statement. Reluctantly, I am forced to conclude that the Form 4 was probably just enough to satisfy the requirements of the QCAT Act, in that it did provide a statement of particulars, and, therefore, there is no basis for setting aside the default decision ex debito justiciae.

9. The form of pleading used in the Form 4 fell out of vogue with the introduction of the Uniform Civil Procedure Rules. While it may satisfy the technical requirements of the QCAT Act, it does not satisfy the spirit. No self-represented party should be compelled to respond to a document so vague, and so lacking in particularity, as to be almost meaningless. There should be changes to Form 4, and the instructions for completing it, so that this unfortunate situation does not recur.

If the decision was regularly entered was the Tribunal right in refusing to exercise its discretion?

1. The Appeal Tribunal has adopted the principles set out in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) in considering whether a default decision should be set aside. [5]  Those principles, as they relate to Redwerks, are:

   a)    Without any fault on its part, Redwerks did not know about the claim in sufficient time to defend the proceedings; and

   b)    It has a prima facie defence on the merits.[6]

   [5]Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 at [6], [7].

   [6]UCPR r 290.

2. Redwerks should have known about the claim. The claim was served on its registered office by post. On 16 September 2015, Michael Fuller, a director of Redwerks, received an email from the agent “attaching correspondence from the ATO.” Mr Fuller did not open the attachment. The attachment was, in fact, the claim from Rosemeyer.

3. The Tribunal below decided that an administrative error - Mr Fuller’s failure to open the email - was not a valid excuse for failing to file a response. To put that into the context of the test in Rule 290 of the UCPR, there was fault on Redwerks’ part in making assumptions and not checking its correspondence.

4. The Tribunal’s approach is consistent with earlier decisions:[7]

   Even a respondent who fails to look at the QCAT Act or Rules or make appropriate inquiries or take appropriate advice about the requirements of the legislation is unable to reasonably assert, however, that it has not been properly alerted to the need to respond if the claim or part of it is disputed.
   That is because, towards the middle of the third page of the QCAT application form (form no 3) there is a prominent coloured box containing these words:
   Warning to respondent/s
   

   [7]See, e.g., MVP Investments Australia Pty Ltd v Van Rooy[2010] QCATA 35.

   You must respond to this application within twenty eight (28) days after you are given a copy of the application. Otherwise, the applicant may apply to the Tribunal for a decision by default against you.

5. The fact that Redwerks failed to look at the claim, and did not see the warning, does not justify a departure from this view.

6. Because the test in Rule 290 of the UCPR, by the use of the word “and”, requires both elements to be satisfied (no fault in failing to file and response and a good defence), and Redwerks has not satisfied the first of these criteria, it is not necessary to consider whether Redwerks had a good defence to the claim.

1. There is no reasonably arguable case that the Tribunal was in error. Leave to appeal should be refused.