Spencer v Jack & Grace Cheng Family Trust
[2011] QCATA 26
•31 January 2011
| CITATION: | Spencer v Jack & Grace Cheng Family Trust [2011] QCATA 26 | |
| PARTIES: | Mr Michael John Spencer (Applicant/Appellant) | |
| v | ||
| Jack & Grace Cheng Family Trust (Respondent) | ||
| APPLICATION NUMBER: | APL061-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 31 January 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | JURISDICTION – where appeal from decision of a Magistrate in a minor debt claim started before the commencement of QCAT – where judgment in minor debt claim entered prior to QCAT commencing – where unsuccessful application to Magistrate to set aside judgment made after QCAT commenced – whether tribunal has jurisdiction to determine appeal from either the decision to enter judgment or the decision not to set it aside Magistrates Court Act 1921, ss 2, 45, 45A Queensland Civil and Administrative Tribunal Act 2009, ss 11, 171(2), 258 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Jack & Grace Cheng Family Trust (“the Trust”) brought a minor debt claim[1] against Mr Spencer in the Magistrates Court at Brisbane. The Trust claimed $2,879.90 for unpaid rent. A Judicial Registrar entered judgement for the Trust in that amount, in Mr Spencer’s absence, on 21 September 2009.
[1]A minor debt claim is a claim for no more than $7,500 where the plaintiff elects in the claim to have it heard and decided in a Magistrates Court under the simplified procedures in the Uniform Civil Procedure Rules. Magistrates Court Act 1921, s 2.
On 3 March 2010, Mr Spencer applied to a Magistrate to set aside the judgment. The application was refused by the learned Magistrate on 23 March 2010.
On 16 April 2010 Mr Spencer filed an appeal in QCAT from the learned Magistrate’s decision. However, in his submissions in support of the appeal, filed on 9 August 2010, Mr Spencer indicated he was appealing against the decision of the Judicial Registrar made on 21 September 2009. In conducting a proceeding, QCAT must act fairly and according to the substantial merits of the case and must act with as little formality and technicality as a proper consideration of the matters before the tribunal permit[2]. Consistent with that approach, this application is accepted as an application for leave to appeal against both the judgment granted by the Judicial Registrar and the decision not to set that judgment aside.
[2] Queensland Civil and Administrative Tribunal Act 1999, s 28(3).
QCAT does not have jurisdiction to entertain an appeal against either the decision made by the Judicial Registrar or that made by the learned Magistrate.
Although the former minor debt claim jurisdiction has been conferred on QCAT[3], the tribunal does not have jurisdiction to entertain appeals from final decisions of the Magistrates Court on a minor debt claim concluded prior to QCAT’s commencement[4].
[3] Queensland Civil and Administrative Tribunal Act 1999, s 11.
[4] Queensland Civil and Administrative Tribunal Act 1999 commenced on 1 December 2009.
Had Mr Spencer had a right to appeal the Judicial Registrar’s decision, that right would have been preserved by the QCAT Act, although the appeal would not have been heard in QCAT[5]. However, Mr Spencer had no right to appeal the Judicial Registrar’s decision[6]. That explains why, rather than apply to appeal the Judicial Registrar’s decision; Mr Spencer sought to have it set aside.
[5] Queensland Civil and Administrative Tribunal Act 1999, s 258.
[6] Magistrates Court Act 1921, s 45A.
Mr Spencer’s application to set aside the decision of the Judicial Registrar’s decision did not invoke QCAT’s jurisdiction. The application to set aside judgment was not filed as an application in QCAT; rather, and properly, it was filed as an application in the Magistrates Court. The learned Magistrate acted in her capacity as a Magistrate, not as a member of QCAT[7]. The forum for appealing the learned Magistrate’s decision is the District Court[8]. An appeal will only lie with the leave of a District Court judge, who is constrained from granting leave unless satisfied that some important principle of law or justice is involved.
[7] Queensland Civil and Administrative Tribunal Act 1999 s171(2)
[8] Magistrates Court Act 1921, s 45.
The application to QCAT is misconceived. QCAT does not have jurisdiction to entertain an appeal against either the decision of the Judicial Registrar of 21 September 2009 or the decision of the learned Magistrate of 23 March 2010.
The application for leave to appeal must be refused.
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