Bryce v Brown and Anor [2012] QCATA 210

CITATION: Bryce v Brown and Anor [2012] QCATA 210 PARTIES: Henry John Bryce (Appellant) v James Henry Brown and Patricia Ann Brown t/as Clermont Pilots (Respondents) APPLICATION NUMBER: APL169-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 24 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal is refused. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE AND EVIDENCE – PROCEDURAL FAIRNESS – DISCRETION – where leave for legal representation granted at hearing – whether appellant disadvantaged – whether Magistrate explained procedure – where application to set aside decision by default – whether Magistrate properly exercised discretion Queensland Civil and Administrative Tribunal Act 2009, s 51 Morales v Murray Lyons Solicitors [2010] QCAT 87 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 („QCAT Act‟). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Mr Bryce worked as a pilot for Clermont Pilots. He filed a claim for payment for that work in QCAT‟s Minor Civil Disputes jurisdiction. Mr Brown filed a response; Mrs Brown did not. Mr Bryce obtained a decision by default against Mrs Brown. [2] Mr and Mrs Brown filed an application to set aside the decision against Mrs Brown. They also applied to strike out the claim against Mr Brown. A Magistrate, sitting as a member of the Tribunal, set aside the default decision against Mrs Brown and struck out the action against Mr Brown. In the course of that hearing, the learned Magistrate gave leave for Mr and Mrs Brown to be legally represented. [3] On 16 May 2012 the learned Magistrate revoked his order that the application against Mr Brown be struck out. That means that this application still exists, and Mr Bryce can pursue his action against Mr Brown. [4] Mr Bryce has filed an application for leave to appeal the learned Magistrates' decisions to give leave for legal representation and to set aside the default decision against Mrs Brown. [5] Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [6] Mr Bryce says that the learned Magistrate did not give him the opportunity to call witnesses or to read his prepared speech. He acknowledges that the Magistrate told him that the purpose of the hearing was to hear argument about the application to dismiss the default judgment, but he says he was “robbed of [the] chance” to tell the Tribunal what he thought of Mr Brown. Leave for legal representation [7] Mr Bryce says that Mr and Mrs Brown having legal representation at the hearing disadvantaged him. He says that the Magistrate should have advised him on that procedural matter so that he could give an informed decision without feeling that he had to “give in” to the lawyer representing Mr and Mrs Brown. [8] I have listened to the transcript of the hearing. There was a half hour discussion about the issue of leave. There is nothing in the transcript to support Mr Bryce‟s assertion that he agreed to representation. The learned Magistrate allowed leave because he considered that the parties would benefit from representation, and there were complex issues to be -- 2 of 4 -- 3 determined. He decided to exercise his discretion in view of the material filed and the issues raised, and I see no reason to take a different view. [9] The grant of leave was limited to the hearing before the Magistrate that day.1 Mr and Mrs Brown will not necessarily be granted that indulgence again. Mr Bryce is not prejudiced in the future conduct of his claim. [10] Mr Bryce‟s submission that the Magistrate did not assist him with procedural matters is also without foundation. The learned Magistrate told Mr Bryce what issues he had to address, in detail, and advised him on a number of occasions. He explained that the applications before him did not go to the substantive issues. He told Mr Bryce that he would have another opportunity to call witnesses and address the Tribunal about the issues in dispute. On any view, the learned Magistrate discharged his obligations under s 29 of the QCAT Act 2009; and, took all necessary pains to ensure Mr Bryce understood the issues and the case he must meet. The application to set aside default judgment against Mrs Brown [11] The Tribunal has a discretion to set aside a decision entered by default.2 The learned Magistrate considered this issue carefully and by reference to previous decisions of the Tribunal. He found3 that Mrs Brown was an uneducated person who thought that the response filed by her husband was enough to answer Mr Bryce‟s claim against her. He was satisfied that the criteria for setting aside a default decision4 were met, and that there was a triable issue5 and, hence, that Mrs Brown ought have the right to defend Mr Bryce‟s claim. [12] Mr Bryce argued the substantive point – whether Mrs Brown was part of the business of Clermont Pilots – but he did not offer any argument about the criteria for setting aside the decision. [13] There is nothing in the transcript that is persuasive that the learned Magistrate erred in the exercise of his discretion. Conclusion [14] Mr Bryce is not deprived of his right of action against either Mr or Mrs Brown. He can call his witnesses and address the matters in his prepared speech when the dispute is heard. [15] Mr Bryce has momentarily lost the opportunity, the product of his default decision against Mrs Brown, to recover any successful claim against her property. The ability to enforce and recover a successful claim is always a risk of litigation. Mr Bryce‟s position is no different from many other litigants. The loss of an opportunity to recover a claim, later held by the Tribunal to have been obtained in circumstances warranting removal of that opportunity, cannot be a ground for granting leave to appeal. 1 Audio recording of proceedings at about 32:42. 2 Queensland Civil and Administrative Tribunal Act 2009, s 51. 3 Transcript at about 1:21:30. 4 See Morales v Murray Lyons Solicitors [2010] QCATA 87 at [12]. 5 Audio recording of proceedings at about 1:26:30. -- 3 of 4 -- 4 [16] There is no question of general importance that the QCAT Appeal tribunal has been asked to determine. There is no reasonably arguable case that the learned Magistrate was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 4 of 4 --