Sandhu v S&S TPT Pty Ltd - [2024] QCATA 120

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sandhu v S&S TPT Pty Ltd [2024] QCATA 120

PARTIES:

ROBINPREET SANDHU

(applicant/appellant)

v

S&S TPT PTY LTD

(respondent)

APPLICATION NO/S:

APL136-23

ORIGINATING APPLICATION NO/S:

MCDO 176/22

MATTER TYPE:

Appeals

DELIVERED ON:

24 October 2024

HEARING DATE:

2 October 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.     Leave to appeal is granted.

2.     The appeal is allowed.

3.     The decision made 12 April 2023 is set aside.

4.     The application to set aside the default decision filed 1 March 2023 is allowed.

5.     The decision by default entered on 22 December 2022 is set aside.

6.     The proceeding is remitted to the Tribunal.

CATCHWORDS:

APPEAL – General principles – When appeal lies – Error of law – Where default decision entered – Where appellant initially applied to have proceeding reopened – where reopening application refused – where appellant subsequently applied to have default decision set aside – Where the application was refused – Where decision to refuse application to set aside default decision appealed - – where adjudicator determined that subsequent application to set aside default decision was an abuse of process – where adjudicator identified irregularity in default decision however declined to set aside decision – whether adjudicator erred in not setting aside irregularly entered default decision

Queensland Civil and Administrative Tribunal 2009 (Qld) s 50, s 50A, s 51, s 136, s38, 142, s 146, s 147,

Carr v Finance Corporation of Australia Ltd (No. 1) [1981] HCA 20

Deputy Commissioner of Taxation v. Johnston [2006] QSC 61
Ericson v Queensland Building Services Authority [2013] QCA 391
Financial Advisers Australia v Mooney & Anor [2016] QCATA 181
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES & REPRESENTATION:

Appellant:

Mr P Coves, solicitor, SLF Lawyers

Respondent:

Self-represented

REASONS FOR DECISION

This is an appeal from a decision of an adjudicator in the minor civil disputes jurisdiction. The adjudicator refused an application to set aside a default decision entered against Mr Sandhu. Mr Sandhu appeals the decision.
Because this is an appeal from a decision in the minor civil disputes jurisdiction, leave to appeal is required.[1] The considerations relevant to granting leave to appeal are well established:
(a)Is there a reasonably arguable case of error in the primary decision?[2]
(b)Is there a reasonable prospect that the applicant will obtain substantive relief?[3]
(c)Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4]
(d)Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’).
[3]Cachia v Grech [2009]…

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.

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Details

Case: [2024] QCATA 120
Decision Date: 24 October 2024

CaseChat Overview and Summary

In the matter of Sandhu v S&S TPT Pty Ltd, the appellant, Mr Sandhu, appealed against a decision of the Queensland Civil and Administrative Tribunal (QCAT). The dispute between the parties involved a default decision entered in favour of S&S TPT Pty Ltd. Mr Sandhu initially applied to have the proceeding reopened, but this application was refused. He subsequently applied to have the default decision set aside, but this application was also refused. Mr Sandhu then appealed the refusal to set aside the default decision, arguing that the adjudicator had erred in finding that it was not open to him to make a second application to set aside the default decision.

The legal issues that the court had to decide were whether the adjudicator had erred in finding that Mr Sandhu could not make a second application to set aside the default decision and whether there was any irregularity in the default decision that warranted setting it aside. The court found that the adjudicator had erred in proceeding on the basis that Mr Sandhu's earlier application for reopening was an application to set aside the default decision. The court also found that even if the earlier application for reopening was treated as an application to set aside the default decision, there was no impediment to Mr Sandhu bringing the subsequent application. The adjudicator had erred in finding otherwise.

The court set aside the decision made on 12 April 2023 and allowed the application to set aside the default decision filed on 1 March 2023. The decision by default entered on 22 December 2022 was also set aside, and the proceeding was remitted to the Tribunal. The court granted leave to appeal and allowed the appeal. The court found that the adjudicator had given reasons for refusing the application to set aside the default decision, but the adjudicator had identified an irregularity in the default decision and declined to set it aside. The adjudicator observed in obiter remarks that it was open to Mr Sandhu to appeal the reopening decision and that 'it may be' that a component of S&S's claim was beyond the jurisdiction of the tribunal. The adjudicator expressed no concluded view on this issue.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision made 12 April 2023 is set aside.

4. The application to set aside the default decision filed 1 March 2023 is allowed.

5. The decision by default entered on 22 December 2022 is set aside.

6. The proceeding is remitted to the Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Reasons were given by the adjudicator in refusing the application to set aside the default decision. The adjudicator found that the reopening decision on 22 February 2023 finally adjudicated the application to set aside the default decision. The adjudicator found that the application to set aside the default decision filed by Mr Sandhu on 1 March 2023 was an abuse of process. By way of obiter remarks, the adjudicator observed that it was open to Mr Sandhu to appeal the reopening decision. The adjudicator observed, again in obiter remarks, that ‘it may be’ that a component of S&S’s claim was beyond the jurisdiction of the tribunal. This, said the adjudicator, related to a claim by S&S for the cost of replacement of a GPS unit fitted to the vehicle the subject of the hire arrangement. The adjudicator also observed that if the dispute between the parties was in fact a consumer trader dispute, the claim would be within jurisdiction. The adjudicator expressed no concluded view on this issue. Consideration Mr Sandhu says that the adjudicator erred in finding that it was not open to Mr Sandhu to make a second application to set aside the default decision. In Carr v Finance Corporation of Australia Ltd (No. 1)[10] the High Court held that a judgement by default is not a final judgement. A default judgement does not finally determine the rights of the parties. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, as it is open to the disappointed respondent to apply again to have the judgment set aside.[11] Gibbs CJ stated:In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application.[10][1981] HCA 20.[11]Ibid per Gibbs CJ at [2]. The first point to note is that the initial application by Mr Sandhu was not to set aside the default decision, but to reopen the proceeding. A party to a proceeding may apply to the tribunal for a proceeding to be reopened if the party considers a reopening ground exists for the party.[12] A reopening ground means:(a)the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or(b)the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.[13][12]QCAT Act, s138(1).[13]Ibid, schedule 3 Dictionary. The reopening provisions of the QCAT Act only apply if a proceeding has been heard and decided by the tribunal.[14] Where a default decision is entered there has been no determination of the merits and the matter has not been heard and decided. Accordingly, it was not open to Mr Sandhu to apply to reopen the proceeding. It is not for this Appeal Tribunal to examine the decision to refuse Mr Sandhu’s reopening application however it is clear that it was not brought by Mr Sandhu as an application to set aside the default decision. The adjudicator erred in proceeding on the basis that it had. Even if the earlier application for reopening was treated as an application to set aside the default decision, as I have explained, there was no impediment to Mr Sandhu bringing the subsequent application. [14]Ibid, s 136.