Service v Guererra - [2022] QCATA 87

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Service v Guererra [2022] QCATA 87

PARTIES:

SUSAN MARY SERVICE

(applicant/appellant)

v

SARAH JANE GUERRERA

(respondent)

APPLICATION NO/S:

APL046-21

MATTER TYPE:

Appeals

DELIVERED ON:

28 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

1.     Leave to appeal is granted.

2.     The appeal is allowed.

3.     The decision of the Tribunal made on 2 February 2021 is set aside.

4.     The matter is returned to the Tribunal for reconsideration before a differently constituted Tribunal.

5.     Each party must bear the party’s own costs for the application for leave to appeal and appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – CONTROL OVER PROCEEDINGS – PROCEDURAL FAIRNESS the respondent provided cosmetic treatment to the applicant – where applicant disputed extent of services provided – where respondent succeeded in recovering balance claimed – where Adjudicator relied upon an acknowledgement of debt signed by applicant – where applicant contended document signed under duress – where Tribunal found it had no power to find that the acknowledgment of debt had been vitiated by duress – whether Tribunal’s conclusion based on an error of law – whether applicant was denied natural justice in the conduct of hearing

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 1, s 9, s 13, s 100, s 102, s 142, s 146, s 147, Schedule 3
Body Corporate and Community Management Act 1997 (Qld), s 276

Action Health Centre Pty Ltd v Searipple Holdings Pty Ltd [2022] QCATA 7
Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277
Ericson v Queensland Building Services Authority [2013] QCA 391
Saxer v Hume [2022] QCATA 25
Sitting Bear Pty Ltd (receivers and managers appointed) v Body Corporate for Sphere Southport Living CTS 37951 [2014] QCATA 360
Sutton & Ors v Tomkins [2017] QCATA 44
Thorne v Kennedy (2017) 263 CLR 85

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

By an Application for leave to appeal or appeal filed on 26 February 2021 (the Appeal Application), the Applicant (Ms Service) seeks leave to appeal against a decision made by the Tribunal on 2 February 2021 (the Decision).
The proceeding was commenced by the Respondent to this Appeal Application (Ms Guerrera) by an Application for minor civil dispute – minor debt filed on 25 August 2020 (the MCD Application). By the MCD Application, Ms Guerrera sought to recover an amount of $1,204.00 together with the filing fee of $125.40 (a total of $1,329.40).
By the Decision, the Tribunal (constituted by an Adjudicator) ordered that Ms Service pay to Ms Guerrera the sum of $1,329.40 within 30 days from the date of the Decision.

The nature of the dispute

Ms Guerrera’s claim for $1,204.00 was alleged to be the balance owing for cosmetic treatment provided by Ms Guerrera to Ms Service on 7 August 2020. Ms Guerrera’s case was that she treated Ms Service…

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.

Continue reading Service v Guererra

Details

AGLC: Service v Guererra [2022] QCATA 87
Case: [2022] QCATA 87
Decision Date: 28 June 2022

CaseChat Overview and Summary

The appeal was brought by the applicant against a decision of the Tribunal which had dismissed their claim for the recovery of money paid for cosmetic treatment provided by the respondent. The Tribunal had found in favour of the respondent on the basis that the applicant had acknowledged the debt in writing and had not established that the signature was obtained under duress. The applicant sought leave to appeal on the grounds that the Tribunal had erred in law and had failed to observe the principles of natural justice. The appeal was brought to the court on the question of whether the Tribunal had jurisdiction to consider the vitiating effect of duress on the applicant’s signature and whether the Tribunal’s failure to do so resulted in a breach of natural justice.

The court found that the Tribunal had erred in concluding that it lacked the jurisdiction to consider the effect of duress on the applicant’s signature. The court held that the Tribunal had an obligation to consider the effect of duress on the applicant’s signature, and that the Tribunal’s failure to do so was a failure to observe the principles of natural justice. The court found that the Tribunal’s failure to consider the effect of duress on the applicant’s signature resulted in a miscarriage of justice and that the Tribunal’s decision should be set aside. The court also found that the Tribunal’s failure to consider the effect of duress on the applicant’s signature was a breach of natural justice.

The court allowed the appeal and set aside the decision of the Tribunal. The court ordered that the matter be returned to the Tribunal for reconsideration before a differently constituted Tribunal. The court also ordered that each party bear their own costs for the application for leave to appeal and the appeal. The court held that it was appropriate to grant leave to appeal as the applicant had demonstrated that the Tribunal’s decision was affected by an error of law and that the applicant had a real chance of success on the appeal.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision of the Tribunal made on 2 February 2021 is set aside.

4. The matter is returned to the Tribunal for reconsideration before a differently constituted Tribunal.

5. Each party must bear the party’s own costs for the application for leave to appeal and appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Service v Guererra [2022] QCATA 87
PARTIES:	SUSAN MARY SERVICE (applicant/appellant)
v
SARAH JANE GUERRERA (respondent)
APPLICATION NO/S:	APL046-21
MATTER TYPE:	Appeals
DELIVERED ON:	28 June 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Lumb
ORDERS:	1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Tribunal made on 2 February 2021 is set aside. 4. The matter is returned to the Tribunal for reconsideration before a differently constituted Tribunal. 5. Each party must bear the party’s own costs for the application for leave to appeal and appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – CONTROL OVER PROCEEDINGS – PROCEDURAL FAIRNESS the respondent provided cosmetic treatment to the applicant – where applicant disputed extent of services provided – where respondent succeeded in recovering balance claimed – where Adjudicator relied upon an acknowledgement of debt signed by applicant – where applicant contended document signed under duress – where Tribunal found it had no power to find that the acknowledgment of debt had been vitiated by duress – whether Tribunal’s conclusion based on an error of law – whether applicant was denied natural justice in the conduct of hearing Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 1, s 9, s 13, s 100, s 102, s 142, s 146, s 147, Schedule 3 Body Corporate and Community Management Act 1997 (Qld), s 276 Action Health Centre Pty Ltd v Searipple Holdings Pty Ltd [2022] QCATA 7 Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277 Ericson v Queensland Building Services Authority [2013] QCA 391 Saxer v Hume [2022] QCATA 25 Sitting Bear Pty Ltd (receivers and managers appointed) v Body Corporate for Sphere Southport Living CTS 37951 [2014] QCATA 360 Sutton & Ors v Tomkins [2017] QCATA 44 Thorne v Kennedy (2017) 263 CLR 85
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented