Amore v Corporation of the Synod of Diocese of Brisbane Anglican Church Grammar School [2013] QCATA 101

CITATION: Amore & Anor v Corporation of the Synod of Diocese of Brisbane Anglican Church Grammar School [2012] QCATA 101 PARTIES: Vincent Amore Hayley Amore (Applicants/Appellants) v Corporation of the Synod of Diocese of Brisbane Anglican Church Grammar School (Respondent) APPLICATION NUMBER: APL417-12 MATTER TYPE: Appeals HEARING DATE: 28 March 2013 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 27 March 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – decision in default of alleged debtors’ appearance at trial – due service of process denied – finding that debtors were sufficiently notified of trial date – application for leave to appeal – whether leave should be granted - ample evidence to support primary findings – no appellable error specified or shown – leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009, ss 3, 32, 50, 51, 93, 142 Fox v Percy (2003) 214 CLR 118, cited Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611, cited In Re W (an infant) [1971] AC 682, cited Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, cited -- 1 of 6 -- 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 (QCAT Act). REASONS FOR DECISION [1] The Corporation of the Synod of Diocese of Brisbane Anglican Church Grammar School (“ACGS”) began this action on 21 April 2011 to recover unpaid and overdue tuition fees, interest and costs from the appellants (“the Amores”). Service difficulties [2] The proceedings have followed a tortuous path. A copy of the originating process posted by the Tribunal and addressed to the Amores at 2 Carranya Street Camp Hill, Brisbane, was returned undelivered. Almost 2 years later, Hayley Amore conceded that 2 Carranya Street was their correct address.1 Personal service on Mrs Amore [3] On 3 June 2011 Campbell John Stewart, process server, deposed that, on 2 May 2011, at Caxton Street Agencies, 17 Merivale Street, South Brisbane, he effected personal service of the originating process upon the appellant Hayley Amore by asking her “Are you Hayley Amore?” to which she replied “Yes”, and then, when she attempted to retract the affirmative, he placed the document at her feet. The Amores have not adduced any evidence to contradict that affidavit. [4] Evidently that event soon became known to Vincent Amore. On 16 June 2011 he filed an application for an extension of time, stating: We have been interstate for personal family reason [sic] and have just recently arrive [sic] back in Brisbane trying to gather data together to deffend [sic] case and seeking ... 1 week to gather the information so we can settle this matter faster and easier. As not to waste Tribunal’s valuable time. Please do not hesitate to contact me on [my mobile number] or email [address]. [5] It was to the email address listed in the application for an extension of time that Ms Kirby sent to Vincent Amore the emails mentioned in paragraphs [9] and [10], below. Personal service repeated 1 Submissions on application for leave to appeal, 28 February 2013 page 2, annexure “B”. -- 2 of 6 -- 3 [6] On 23 September 2011 Campbell John Stewart, process server, deposed that, on 14 September 2011 at 17 Merivale Street, South Brisbane, he served the originating process and an application by ACGS for extension of time to serve same upon the appellant Hayley Amore in person. He identified her in person by means of previous dealings with her, and in her presence, placed the said documents under a windscreen wiper of her motor car, register number QHA132. The Amores have not adduced any evidence to contradict that affidavit. There is no suggestion that they were then living apart, or were not in amicable communication with each other at any material time. First default decision set aside [7] On 2 December 2011, in default of appearance by the Amores, a decision by default2 was awarded to ACGS. [8] On 17 February 2012, upon application by the Amores, alleging that the originating process was never served upon them, that decision was set aside3, and the matter relisted for rehearing in March 2012. Second non-appearance [9] On the appointed rehearing date in March 2012, the Amores were absent again. In an abundance of caution, the Tribunal then declined to renew the default decision, and directed Ms Kirby, to send all present and future documents to the Amores not only by post, but by email as well. [10] Ms Kirby testifies that she complied with that direction, and that “nothing was returned” to her. [11] Meanwhile the rehearing was set down for 18 July 2012. Third non-appearance [12] According to the established practice, the Tribunal posted a notice of the rehearing date (18 July 2012) to the Amores, but it was returned undelivered. However, Cheryl Kirby testifies that she emailed a copy of the same notice to each of the Amores on 9 July 2012 using the email address noted in paragraph [4], above. A copy of that communication is in evidence. Shortly afterwards Ms Kirby received [an electronic] delivery notice stating: “Your message has been successfully conveyed to the recipient”.4 [13] On 18 July 2012 Ms Kirby again appeared for ACGS and for a third time there was no appearance by or for the Amores. Nevertheless, the Adjudicator, Mr Crawford, devoted some 35 minutes to a careful examination of the file, and to detailed questioning of Ms Kirby. In the event, he was satisfied that the Amores were evading or falsely denying 2 QCAT Act s 50. 3 QCAT Act s 51. 4 Cheryl Kirby, evidence on oath, hearing 18 July 2012. -- 3 of 6 -- 4 service, and that it was a proper case in which to decide the claim in their absence:5 I have accepted the sworn evidence [of Kirby] that she sent an email to both [Amores]6 indicating that the hearing was on today. She has also received [electronic] notification of that email having been received. Therefore I am prepared to accept that [the Amores] know about today even though there has been mail returned [to QCAT]. I am satisfied on the balance of probabilities that they know of today.7 Second default decision, 18 July 2012 [14] The Adjudicator proceeded to order Amores to pay ACGS the sum of $15,406.90, comprising the claim of $13,367, interest, and costs. [15] On 3 December 2012, with the benefit of a generous extension of time, the Amores filed the present application for leave to appeal against the default decision made almost six months earlier. Grounds of appeal [16] The submissions in support of the appeal are largely devoted to topics that have nothing to do with the Adjudicator’s decision. First, there are complaints about the conduct of process servers who, evidently with difficulty, eventually located the Amores. Second, there are discursive allegations about a failure of ACGS to take proper care of the Amores’ child Jacob, coupled with a disquisition on negligence in educational institutions. [17] The allegation of negligence was not before the Adjudicator on 18 July 2012. If it had been, it would have been summarily dismissed for want of jurisdiction. [18] A diligent search for relevance in the submissions discloses only brief and bare assertions that Vincent Amore was never properly notified of ACGS’s claim, and that the “disputed amount allegedly owing is incorrect, and a request, several times, for a statement of how this amount was incurred has gone unheard”.8 The submissions contain nothing that can be described as particulars of an appellable error on the Adjudicator’s part. Issues before the Adjudicator [19] The issues before the Adjudicator were, first, whether the Amores were given a sufficient statement of the ACGS claim, and a proper opportunity to dispute that claim, if they so desired. He heard the sworn and undisputed evidence of Ms Kirby, concerning service by email of relevant documents, including notice of the hearing to take place on 18 July 2012. He may also have had regard, if need be, to the affidavits of Campbell 5 QCAT Act s 93. 6 To each of their respective email addresses. 7 Adjudicator Crawford, electronic recording of hearing 18 July 2012. 8 Submissions, page 11, item 5. -- 4 of 6 -- 5 John Stewart sworn on 3 June 2011 and 23 September 2011 respectively9, to the Amores’ application for an extension of time filed on 16 June 201110, and to their application to set aside the initial default decision, an application that was granted on 2 December 2011.11 By that time, at any rate, it is manifest that the Amores were aware of these proceedings, which were not extinguished by the order of 2 December 2011. On this evidence the Adjudicator was well entitled to find, on the balance of probabilities, that the absent Amores had been given notice of the hearing in accordance with section 92 of the QCAT Act.12 [20] The second, substantive, issue was whether the claim and its quantum were established to the civil standard of proof. The Tribunal had before it the originating process, the undisputed oral evidence of Ms Kirby, and an undisputed affidavit of debt, sworn by Andrea Cochrane on 2 December 2011. Accordingly the Adjudicator was entitled to find that the Amores were indebted to ACGS as alleged. [21] These are findings of fact, based on the evidence, which the Adjudicator, as judge of fact, was clearly entitled to make. Should leave to appeal be granted? [22] A party dissatisfied with a decision in a Minor Civil Dispute must first obtain leave to appeal; there is no appeal as of course in cases of this kind. Parliament, in enacting the QCAT Act, has decided that first-instance decisions in such cases should generally be final.13 [23] The law does not allow an appeal - let alone an application for leave to appeal - to be a re-run of the trial, with evidence or arguments that were rejected or not offered at that stage, in the hope that the appeals Tribunal will “second guess” the primary decision maker, and simply substitute an opinion of its own. It is not a good ground of appeal that the trial judge chose one version of the facts to another, or preferred the credit of witness “A” to that of witness “B”. Findings of fact are not usually disturbed if they have rational support in the evidence.14 Where reasonable minds may differ, a decision is not erroneous merely because one conclusion has been preferred to another possible view.15 [24] Before the appeal itself is considered, a would-be appellant must persuade the Tribunal that the decision in question displays an error of law or fact that may have caused a substantial injustice. In other words, is 9 See paragraphs [3] and [6], above. 10 See paragraph [4], above. 11 See paragraph [7], above. 12 QCAT Act s 93(1)(a). 13 QCAT Act ss 3(b), 142(3)(b). 14 Fox v Percy (2003) 214 CLR 118 at 125-126. 15 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. -- 5 of 6 -- 6 there an error that can reasonably be said to have significantly influenced the result? [25] If that hurdle is overcome, the Tribunal decides whether the arguable point or points should be upheld. Of course the mere fact that something is arguable does not mean that it must be accepted. So it is quite possible for an appeal to fail, despite the fact that leave to appeal is granted. If leave is refused, that is an end of the matter. [26] Here, no appellable error has been specified, let alone demonstrated. Leave to appeal must be refused. ORDER Leave to appeal is refused. -- 6 of 6 --