Aguilar v Egnalig [2014] QCATA 219

CITATION: Aguilar v Egnalig [2014] QCATA 219 PARTIES: Martin Aguilar (Applicant/Appellant) v Anacelia Egnalig (Respondent) APPLICATION NUMBER: APL222-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 11 August 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 23 April 2014 is set aside. 4. The application filed 23 August 2013 is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – JURISDICTION – where applicant was migration agent – where respondent claimed refund of money paid to migration agent – whether application provided services in trade or commerce – whether tribunal had jurisdiction to consider claim – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12(4), Schedule 3 Pickering v McArthur [2005] QCA 294 Prestia v Aknar (1996) 40 NSWLR 165 Early Property Group Pty Ltd v Cavallaro [2010] QCATA 65 -- 1 of 3 -- 2 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 [1] Mr Aguilar was a migration agent. Ms Egnalig engaged him to prepare a skilled sponsored visa to Australia. She paid him $4,201.90 but received almost nothing of value. Ms Egnalig filed a consumer claim in the minor civil disputes jurisdiction of the tribunal, claiming a refund of the money she paid Mr Aguilar. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered Mr Aguilar refund the money to Ms Egnalig. [2] Mr Aguilar wants to appeal that decision. He says the learned Justices failed to apply the relevant law in making their decision but, instead, relied on the fact that the Migration Agents Registration Authority had disciplined Mr Aguilar. He says that the parties had a binding contract the terms of which the learned Justices failed to consider. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [4] It is not necessary to consider Mr Aguilar’s grounds of appeal because Ms Egnalig’s claim has a fundamental problem that was overlooked by the learned Justices. The tribunal had no jurisdiction to hear Ms Egnalig’s claim. [5] The tribunal has jurisdiction to consider a consumer’s claim against a trader3. “Trader” is defined to include a person who carries on the business of supplying services4 and Mr Aguilar falls within that definition. However, a person is not a trader if, in providing the services, the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce5. [6] The appeal tribunal6 has previously applied the following test as to what is, or what is not, the exercise of a discipline: This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional 1 QCAT Act s 142(3)(a)(i). 2 [2005] QCA 294 at [3]. 3 QCAT Act s 12(4)(b). 4 QCAT Act Schedule 3. 5 QCAT Act Schedule 3. 6 Early Property Group Pty Ltd v Cavallaro [2010] QCATA 65. -- 2 of 3 -- 3 standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.7 [7] Mr Aguilar was a registered migration agent. He was subject to a Code of Conduct that carried ethical obligations. He was the subject of disciplinary proceedings. It is clear to me that Mr Aguilar was providing services which were in the exercise of a discipline. Consequently, Ms Egnalig’s claim was not within the tribunal’s jurisdiction. [8] Leave to appeal is granted and the appeal allowed. The decision of 23 April 2014 is set aside. Ms Egnalig’s application is dismissed. 7 Prestia v Aknar (1996) 40 NSWLR 165 at 22 – 23. -- 3 of 3 --