Service v Guerrera - [2021] QCATA 66

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Service v Guerrera [2021] QCATA 66

PARTIES: SUSAN MARY SERVICE

(applicant/appellant)

v

SARAH JANE GUERRERA

(respondent)

APPLICATION NO:

APL046-21

ORIGINATING APPLICATION NO:

MCDQ818/20 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

13 April 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

1. The application for a stay order is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where no clear error by Tribunal alleged –– where no evidence of potential detriment if stay is not granted-

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58(1), s 142(3)(i), s 145(1), s 145(2)

Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453

Day v Humphreys v Ors [2017] QCA 104
Hessey-Tenny & Anor v Jones [2018] QCATA 131
Simonova v Department of Housing and Public Works [2018] QCA 60

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 13 April 2021, I refused an application for a stay order filed by the applicant to this proceeding, Ms Service. Ms Service has since requested reasons for my decision. My reasons are as follows.

Background

Ms Service seeks to appeal from a decision of the Tribunal made at Southport in minor civil dispute (MCD) MCDQ818/20. The decision, made on 2 February 2021, was that Ms Service must pay to Sarah Guerrera the sum of $1,329.40 within 30 days. Pending the determination of the application for leave to appeal and, if successful, the appeal, Ms Service applied for an order staying the operation of the Tribunal’s order.
Background
The MCD application claiming a minor debt was filed on 25 August 2020 in the Tribunal by Ms Guerrera. Ms Guerrera claimed $1,329.40, being $1,204.00 for outstanding invoices and the filing fee of $125.40.
Ms Guerrera alleged Ms Service had undergone cosmetic treatments on 7 August 2020 at a cosmetic treatments business. The fee for those treatments was $1,804.00. Ms Guerrera alleged that Ms Service had paid $600.00 as part payment, and that the parties agreed upon a payment plan for the remaining amount. However, Ms Service did not make the agreed payments.
Both parties attended the hearing. The learned Adjudicator heard the application and made orders in the terms set out earlier.
The appeal proceedings and the stay application
On 2 March 2021, Ms Service filed an application for leave to appeal or appeal, together with an application to stay the Tribunal’s decision of 2 February 2021. The intended grounds of appeal are not clearly expressed. However, the application for leave to appeal or appeal indicates that Ms Service’s ground or grounds of appeal relate to a document. Reading it with the stay application, she appears to allege that the payment plan, Exhibit 3, is fraudulent.

Principles for granting a stay…

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 Guerrera

Details

AGLC: Service v Guerrera [2021] QCATA 66
Case: [2021] QCATA 66
Decision Date: 13 April 2021

CaseChat Overview and Summary

In the matter of Service v Guerrera, the appellant, Ms Service, sought to appeal a decision of the Tribunal made in a minor civil dispute. The Tribunal had ordered Ms Service to pay Ms Guerrera the sum of $1,329.40 within 30 days. Ms Service applied for an order to stay the operation of the Tribunal’s order pending the determination of her application for leave to appeal or an appeal itself. The primary legal issue before the court was whether the appellant had demonstrated grounds warranting a stay of the Tribunal’s decision. The court considered the general principles applicable to the grant or refusal of a stay order, including whether there was a reasonably arguable case of error by the Tribunal, whether refusal to grant a stay would cause material detriment to the applicant, and whether the balance of convenience favoured granting a stay.

The court found that the appellant had not demonstrated a clear error by the Tribunal, nor had she shown any potential detriment if the stay was not granted. Additionally, as leave to appeal was required and had not yet been granted, exceptional circumstances would need to be demonstrated for a stay order to be made. The appellant’s grounds for appeal related to an allegation of fraud concerning a payment plan. However, this was insufficient to establish a reasonably arguable case of error by the Tribunal. The court concluded that the appellant had not met the criteria necessary to justify a stay of the Tribunal’s decision.

The application for a stay order was therefore refused. This decision underscores the stringent requirements for obtaining a stay of a Tribunal decision, particularly in cases where leave to appeal is required and has not yet been granted.

Orders

Orders of the court

1. The application for a stay order is refused.

Background

Background to the litigation

Ms Service seeks to appeal from a decision of the Tribunal made at Southport in minor civil dispute (MCD) MCDQ818/20. The decision, made on 2 February 2021, was that Ms Service must pay to Sarah Guerrera the sum of $1,329.40 within 30 days. Pending the determination of the application for leave to appeal and, if successful, the appeal, Ms Service applied for an order staying the operation of the Tribunal’s order.Background The MCD application claiming a minor debt was filed on 25 August 2020 in the Tribunal by Ms Guerrera. Ms Guerrera claimed $1,329.40, being $1,204.00 for outstanding invoices and the filing fee of $125.40. Ms Guerrera alleged Ms Service had undergone cosmetic treatments on 7 August 2020 at a cosmetic treatments business. The fee for those treatments was $1,804.00. Ms Guerrera alleged that Ms Service had paid $600.00 as part payment, and that the parties agreed upon a payment plan for the remaining amount. However, Ms Service did not make the agreed payments.Both parties attended the hearing. The learned Adjudicator heard the application and made orders in the terms set out earlier. The appeal proceedings and the stay application On 2 March 2021, Ms Service filed an application for leave to appeal or appeal, together with an application to stay the Tribunal’s decision of 2 February 2021. The intended grounds of appeal are not clearly expressed. However, the application for leave to appeal or appeal indicates that Ms Service’s ground or grounds of appeal relate to a document. Reading it with the stay application, she appears to allege that the payment plan, Exhibit 3, is fraudulent. A decision of the Tribunal is not affected by the filing of an application for leave to appeal or appeal.[1] The Appeal Tribunal may, in its discretion, make an order staying a decision of the Tribunal, pending finalisation of an appeal proceeding.[2] [1]QCAT Act, s 145(1).[2]Ibid, ss 58(1) and 145(2). That said, decisions of the Tribunal are not merely provisional pending appeal. A successful party is prima facie entitled to the fruits of the litigation.[3] The party seeking a stay order must demonstrate some reason why a judgment should not have immediate effect. The usual factors for considering whether to grant a stay order include:(a)whether a reasonably arguable case of error by the Tribunal has been demonstrated;(b)whether a refusal to grant a stay application would cause a material detriment to the applicant for the stay; and (c)whether the balance of convenience favours the granting of a stay.[4][3]Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453; Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [30].[4]See, for example, Day v Humphreys v Ors [2017] QCA 104. Additionally, in a matter, such as this, where leave to appeal is required before an appeal can proceed and has yet to be granted,[5] exceptional circumstances must be demonstrated before a stay order will be made.[6][5]Leave to appeal is required for an appeal of a decision in the Tribunal’s minor civil disputes jurisdiction – QCAT Act, s 142(3)(i).[6]Simonova v Department of Housing and Public Works [2018] QCA 60; Hessey-Tenny & Anor v Jones [2018] QCATA 131.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Service v Guerrera [2021] QCATA 66
PARTIES:	SUSAN MARY SERVICE
(applicant/appellant)
v
SARAH JANE GUERRERA
(respondent)
APPLICATION NO:	APL046-21
ORIGINATING APPLICATION NO:	MCDQ818/20 (Southport)
MATTER TYPE:	Appeals
DELIVERED ON:	13 April 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Howard
ORDERS:	1. The application for a stay order is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where no clear error by Tribunal alleged –– where no evidence of potential detriment if stay is not granted- Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58(1), s 142(3)(i), s 145(1), s 145(2) Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 Day v Humphreys v Ors [2017] QCA 104 Hessey-Tenny & Anor v Jones [2018] QCATA 131 Simonova v Department of Housing and Public Works [2018] QCA 60
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)