Skymesh Pty Ltd v Wright

[2014] QCAT 386

CITATION: Skymesh Pty Ltd v Wright [2014] QCAT 386

PARTIES:	Skymesh Pty Ltd (Applicant)
v
Rebekah Rose Wright (Respondent)

APPLICATION NUMBER: MCDO672-14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 8 August 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The default decision entered 8 May 2014 is set aside.

2.    The respondent Rebekah Wright shall file and serve her response to the application within 28 days of the date hereof.

CATCHWORDS: Default decision – relevant considerations for setting aside – failure to file a response – delay – conduct – prima facie defence – prejudice

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

Application

1. On 25 March 2014 the applicant Skymesh Pty Ltd (‘Skymesh’) filed a minor debt application seeking $108.22 being three unpaid invoices for an NBN satellite service provided to the respondent Rebekah Wright. On 8 May 2014 a default decision was entered in favour of Skymesh for $130.42. On 11 July 2014 Ms Wright filed an application to set aside the default decision.

Background and evidence

1. In determining whether or not a default decision ought to be set aside there are a number of well recognised considerations[1] to be taken into account as follows.

   [1]Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314.

Was there a good reason why Ms Wright failed to file a response?

1. Skymesh produced to the Tribunal a letter from the Telecommunications Industry Ombudsman to Ms Wright dated 10 July 2014. Apart from recording Ms Wright’s complaint history against Skymesh the letter disclosed that on 14 April 2014 Ms Wright stated that ‘Skymesh had commenced legal proceedings regarding the debt’. Ms Wright asserted she was not ‘served court documents’. She stated she thought the Ombudsman was arranging waiver of invoices in any event.

2. Produced to the Tribunal on Ms Wright’s behalf were the following:

   a)    Letter from Cobram Medical Clinic (Dr Dumitrescu) dated 20 January 2014 stating that Ms Wright suffers with acquired brain injury resulting from having been hit in the head in two separate incidents whilst working as a security guard.

   b)    Letter from Owens & King Community Health Service dated 21 January 2014 stating that Ms Wright ‘appears to be suffering from the effects of trauma and depression’.

   c)    Letter from Disability Advisory and Information Service Inc, Wodonga, Victoria stating that Ms Wright has an acquired brain injury which makes navigating through any issues extremely difficult; that Ms Wright presents with cognitive skills (thinking skills) which are significantly below estimates of her pre-injury functioning in the areas of:

   i)Working memory (the ability to hold information in her head while you use it);

   ii)Reasoning (the ability to problem solve and logically work through issues in a systematic and logical way).

3. All of the above accord with Ms Wright’s assertion of being unwell and under stress.

4. Additionally Ms Wright has asserted ongoing mail tampering and theft. Produced to the Tribunal is an order of the New South Wales Civil and Administrative Tribunal dated 16 April 2014. It reads ‘the Tribunal orders that the respondent Australia Post of PO Box 9911 Melbourne VIC 3000 Australia is to take reasonable care to ensure that the mail of the applicant is not tampered with’.

Conclusion

1. Taking into account Ms Wright’s medical and health deficits at and at about the time of probable service of the initiating application and her probable (though erroneous) understanding that the Ombudsman was arranging a waiver of the invoices, the failure to respond within time is excusable.

Delay in bringing the application

1. The default decision was entered on 8 May 2014. The application to set aside was filed on 11 July 2014. By any measure the delay is not significant even less so given the detail of Ms Wright’s medical and health deficits described above.

Ms Wright’s conduct before and after the entry of the default decision

1. There is no adverse conclusion to be drawn from Ms Wright’s conduct either before or after the entry of the default decision. Although her conduct may have been erratic particularly apropos the Ombudsman it is clear that there was an ongoing dispute. In the context of her medical and health issues her conduct indicated she was continuing to address the issues at hand.

Is there a prima facie defence on the merits?

1. In the Ombudsman’s letter of 10 July 2014 Ms Wright’s complaint is recorded as

   She applied to transfer her internet service to Skymesh in October/November 2013; that the service was not transferred until December/January 2014; that once the service was connected there were problems using the service and that it only worked approximately 20% of the time.

2. Ms Wright in her application to set aside refers to service connection problems and slow speed problems. Clearly these are trialable issues in the context of non-payment of invoices or waiver.

Irreparable prejudice if the default decision were to be set aside

1. There appears not. Nothing in Skymesh’s material would suggest so.

In finality

1. Taking into account all relevant considerations clearly the default decision ought be set aside and the respondent Ms Wright allowed the opportunity to file and serve a response.