Corry v Skobla [2011] QCATA 101

CITATION: Corry v Skobla [2011] QCATA 101 PARTIES: Mr Nicholas Corry (Applicant/Appellant) v Ms Rebecca Leeanne Grant (Respondent) APPLICATION NUMBER: APL019-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 3 May 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: Minor Civil Dispute – decision by default – whether regularly entered Queensland Civil and Administrative Tribunal Act 2009, ss 51, 142(3) Bankruptcy Act 1966, ss 116, 129(4)(a) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 15 March 2010 Ms Grant filed an application for minor civil dispute – minor debt in the Caboolture Magistrates Court. She claimed that Mr Corry owed her $12,756.59 being monies loaned by Ms Grant to Mr Corry in November 2008. Particulars of the loans are annexed to her application. -- 1 of 3 -- 2 [2] No response was filed to the application and on 30 July 2010 a decision by default was made resulting in a decision that Mr Corry pay to Ms Grant the sum of $13,044.09, which included $287.50 for filing fees and costs. [3] Rather than apply to the Magistrates Court at Caboolture (exercising jurisdiction under the QCAT Act) to set aside the default decision, an application for leave to appeal and appeal was filed in the Tribunal on 4 February 2011. The grounds of appeal are three: firstly, it is contended that the applicant is not a party to the dispute; secondly, Mr Corry was never served with the application; thirdly, there are grounds for setting aside the decision by default. The grounds are supplemented by extensive written submissions prepared by Mr Corry’s solicitor and counsel. [4] The Tribunal has power to set aside the decision by default1 on terms, including costs. Here, Mr Corry has sought to raise arguments in his application for leave to appeal that one might usually expect to see on an application to set aside a default decision rather than on an application for leave to appeal. [5] If the decision by default is regularly entered, in that all procedural requirements had been satisfied, it would be difficult to identify any error on the part of the original decision maker, as that is the only basis upon which leave to appeal could be granted. As this is an appeal from a minor civil dispute matter, leave to appeal is necessary.2 To obtain leave to appeal the applicant must establish that there is a reasonably arguable case of error in the primary decision,3 there is a reasonable prospect that the applicant will obtain substantive relief,4 or leave necessary to correct a substantial injustice to the applicant caused by some error5. [6] Therefore, the only ground upon which this appeal can succeed is if the default decision was irregularly entered, if not, then the appropriate course is to apply to set the decision aside. [7] Mr Corry, both in his affidavit and submissions, does not identify any basis for irregularity save for service. No submissions have been directed to the question of service. A perusal of the minor civil dispute file indicates that there is proof of service6. The Registrar must be satisfied as to service before a default decision is made. Mr Corry swears he was not served with the application. However this does not establish that the decision was irregularly entered as there is an affidavit of service filed. It is a factor going to the discretion to set aside the decision 1 QCAT Act, s 51. 2 QCAT Act, s 142(3). 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Cachia v Grech [2009] NSWCA 232 at [13]. 5 QUYD Pty Ltd v Marvass Pty Ltd (supra). 6 Affidavit of Mr Corry paragraph 52. -- 2 of 3 -- 3 [8] The submissions make reference to the “inherent jurisdiction of the Appeal Tribunal”. The Tribunal is a creature of statute, its jurisdiction comes from the QCAT Act and various enabling acts. It does not have an “inherent jurisdiction”. [9] It is also argued that the bankruptcy of Mr Skobla7 is relevant. The relevance of this escapes me because Ms Grant’s claim is based on a written and signed loan agreement. [10] The decision by default was regularly entered and as a consequence there has been no error of law. [11] The applicant seeks to then argue the usual grounds upon which a decision by default can be set aside. It is not for this Appeal Tribunal to entertain those submissions because they do not go to error on the part the decision-maker at the time the default decision was made, nor to the question of whether leave should be granted. The applicant can put those submissions before the Tribunal in the minor civil disputes jurisdiction, as that is the appropriate venue to ventilate those arguments. It is not here. Therefore, as no error has been identified on the part of the applicant leave to appeal must be refused. 7 Corry v Skobla APL018-10 in which Mr Skobla has a decision for monies loaned to Mr Corry in similar circumstances, but this is a separate transaction to that considered here. -- 3 of 3 --