Sanzaro v Jackson

[2012] QCATA 235

CITATION: Sanzaro v Jackson [2012] QCATA 235

PARTIES:	Mark Vito Sanzaro t/as Remote A Gate (Applicant/Appellant)
v
Julie-Anne Louise Jackson (Respondent)

APPLICATION NUMBER: APL125-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 19 November 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

Minor Civil Dispute – where applicant failed to attend the hearing and decision made in his absence – where grounds of appeal go to original defence and not identification of error

Queensland Civil and Administrative Tribunal Act2009

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ms Jackson purchased a solar powered remote electric gate from the applicant.  She had ongoing problems with the motor that operates the gate, mainly it seems from ant infestation.  Ms Jackson told the Tribunal that she had never received instructions on maintenance and ultimately the motor failed.

1. On 3 August 2011, she filed an application in the minor civil disputes jurisdiction of the Tribunal asking for an order that the applicant pay her $1,935.00 being the cost of a new motor and costs of repairs plus the filing fee.

1. The applicant did not file a response.  Ms Jackson did not apply for a decision by default and the matter was listed for hearing before a Tribunal Adjudicator on 4 January 2012.  There was no representation by the applicant or any person on his behalf. 

1. At the commencement of the hearing the learned Adjudicator asked Ms Jackson whether she wished to proceed in the absence of the respondent and she indicated she did.  He then went on to take evidence from her and also consider the documentary evidence that was filed with her application.  At the conclusion of the hearing he was satisfied that she had made out a case for the cost of replacing the motor for the gate and made an order that the applicant pay to her $1,387.00.

1. On 24 April 2012, Remote A Gate filed an application for leave to appeal or appeal.  The grounds of appeal that are listed in the application do not make any attempt to identify any error on the part of the learned Adjudicator but set out what one might regard as grounds of defence to the original application.

1. Because this is an application for leave to appeal from a decision in the minor civil disputes jurisdiction leave to appeal, or permission, is necessary.[1]  An appeal is not as of right and the applicant must show where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

   [1] QCAT Act, s 142(3).

1. The submissions in support of the application for leave to appeal address each of the matters set out in the minor civil dispute application again going to the matters that might be raised in defence at the hearing at first instance.  An example is that reliance is placed on the manufacturer's one year warranty; insect damage caused to the motor which is not covered under the warranty; challenges to some of the evidence given by Ms Jackson and issues about failure to maintain the product.  All of these matters are valid points to raise against the claim made by Ms Jackson but the Appeal Tribunal is not the place to conduct the hearing.  If leave, or permission, to appeal is granted because of some error of law then the matter might be referred back to Tribunal to be reheard and that would be the appropriate place for these issues to be raised.

1. The applicant chose not to attend the hearing, and has made no application to reopen that proceeding so he can present his defence. There is no explanation as to why Mr Sanzaro did not attend at the hearing which would be relevant to an application to reopen under section 138 of the QCAT Act. He has simply approached the appeal on the basis that he can now present his defence and the Appeal Tribunal will make an adjudication on it. Unfortunately that is not possible unless he can establish some error on the part of the learned Adjudicator who first heard the matter or alternatively there was some conclusion of fact reached by him that was not open on the evidence that was presented in the original hearing.

1. The fact that Mr Sanzaro did not attend the hearing is also not something which comes to his assistance because in Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 069 the Appeal Tribunal said that it is not unreasonable to expect a party to act in its own best interest in defending the application when it has an opportunity to do so.

1. One might be sympathetic to Mr Sanzaro but the difficulty for him is that he has not identified any error upon which leave to appeal could be granted and therefore the application must be refused.