Cooling and Heating Equipment Pty Ltd v Multichoice Filtration Pty Ltd [2023] QCAT 399

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cooling and Heating Equipment Pty Ltd v Multichoice Filtration Pty Ltd [2023] QCAT 399 PARTIES: COOLING AND HEATING EQUIPMENT PTY LTD ABN 52601244731 (applicant) v MULTICHOICE FILTRATION PTY LTD ACN 23622360507 (respondent) APPLICATION NO/S: Q249/22 MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 5 October 2023 HEARING DATE: 5 October 2023 HEARD AT: Southport DECISION OF: Adjudicator Alan Walsh ORDERS: The Applicant’s Form 40 Application filed on 19 September 2023 is refused. CATCHWORDS: CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – where Applicant claims money for goods sold and delivered or deliverable but not collected CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – JURISDICTION – where Applicant applies for citation of Respondent and Director for contempt – whether Tribunal constituted by an Adjudicator has power to punish contempt – whether certifiable contempt made out on the facts Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 12, s 13, s 213, s 218, s 219, Schedule 3 – definitions The Criminal Code Act 1899 (Qld), Schedule 1, s 365 APPEARANCES & REPRESENTATION: Applicant: Mr A Bartlett, Director of the Applicant -- 1 of 6 -- 2 Respondent: Mr C Esplin, Director of the Respondent REASONS FOR DECISION Application for Contempt [1] Cooling and Heating Equipment Pty Ltd, the Applicant, by its Director Adrian Bartlett, has filed a Form 40 Application for Miscellaneous matters in this minor civil dispute proceeding on 19 September 2023 in which it applies for the Respondent, Multichoice Filtration Pty Ltd, to be charged with contempt of “court” because its Director Clinton Esplin in a summary of submissions accused the company of tax evasion by alleging the following. A GST certificate to Customs will actually tell you what products have been delivered in each container, as you have to declare everything you bring in. My guess is that they didn’t even pay the GST and were hiding these in their units. [2] In the first attachment to the Form 40, Mr Bartlett denies Mr Esplin’s “slanderous” allegation of criminal wrongdoing and sets out the factual basis for the denial. Mr Bartlett says that if anybody has evaded tax it is Multichoice as it has taken $17,918.60 worth of goods supplied and not paid for them. He says: “They owe the tax office money for these goods and have evaded paying GST.” [3] Mr Bartlett refers to proof that Mr Esplin’s allegations are “made up” and asks the Tribunal to charge him with contempt of court. He says: “Colin Esplin needs to learn that he cannot make accusations without proof and make defamatory comments without retribution,” and he has “continuously made false allegations in order to avoid payment.” [4] In written submissions, Mr Bartlett expands on the reasons why Mr Esplin’s “guess” of alleged tax evasion is untrue and supplies proof of what was declared by reference to a Packing List from the Chinese supplier at point of despatch. [5] Mr Bartlett refers the Tribunal to provisions of the Criminal Code Act 1899 (Qld) concerning criminal defamation, and to innuendo in an email from Mr Esplin to the Applicant and Karen Bartlett dated 6 September 2023 saying: “Hope you paid customs GST for all the filters brought in.” [6] Section 365 (Criminal Defamation) in Schedule 1 of the Criminal Code, not section 135 referred to by Mr Bartlett, provides for an offence of misdemeanour punishable by a maximum imprisonment of 3 years for criminal defamation in certain circumstances. [7] Though invited by Southport Registry to do so, Mr Esplin has not filed any submissions in response to the Form 40 application. Nor has Mr Esplin provided any evidence to back up his unsubstantiated allegation and innuendo of criminal wrongdoing. [8] Insofar as relevant for purposes of deciding the application presently before me, I find that Mr Esplin’s allegation and innuendo of criminal wrongdoing are without substance. So too are Mr Bartlett’s. -- 2 of 6 -- 3 Contempt – Jurisdiction and Powers Minor Civil Disputes – Jurisdiction and Powers [9] Section 195 (Functions generally) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) read in conjunction with sections 11, 12 and 13 of the QCAT Act set out the adjudicative jurisdiction of the Tribunal in minor civil disputes. They do not include proceedings for contempt. [10] As Adjudicator constituting the Tribunal in its minor civil dispute jurisdiction presently, I do however have the power to certify contempt in order to initiate a process for contempt proceedings to be dealt with elsewhere as will appear from what follows. Contempt – Jurisdiction and Powers [11] By section 219(5) of the QCAT Act, the Tribunal’s jurisdiction and powers to punish a contempt of the Tribunal may be exercised only by a judicial member. A judicial member is defined in (a) of the definition in Schedule 3 of the QCAT Act as meaning the president, the deputy president, or a supplementary member who is a Supreme Court judge or District Court judge. [12] For the exercise of a power of the Tribunal to make an order or give a direction – judicial member includes a senior member or ordinary member who is a former judge and is nominated by the president to exercise the power;1 and includes a senior member or ordinary member who is a former judge and is nominated by the president to constitute the tribunal for a matter or class of matters.2 [13] The procedure for initiating contempt proceedings depends upon the source of the referral: (a) By section 219(3) of the QCAT Act, the Principal Registrar may apply to the tribunal for an order that a person be committed to prison for contempt of the tribunal. (b) By section 219(4), the tribunal’s jurisdiction and powers to punish a contempt of the tribunal may be exercised (by a person empowered pursuant to section 219(5))3 on the application of a person (sic) or of its own initiative. (c) By section 219(6), if contempt is committed in the face of the tribunal and the tribunal is not constituted by a judicial member, the presiding member of the tribunal may certify the contempt in writing to the president. (d) For subsection (6), it is enough for the presiding member to be satisfied there is evidence of the contempt. (e) The description “presiding member” is defined in Schedule 3 by reference to section 170 of the QCAT Act. That section defines the term as variously - (1) the single member constituting the tribunal; or 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), the definition of judicial member in paragraph (b) in Schedule 3. 2 Ibid, paragraph (c). 3 My insertion. -- 3 of 6 -- 4 (2) where the tribunal is constituted by 2 or 3 members, the presiding member nominated by the president: or (3) for a matter for which the tribunal is constituted by an adjudicator, a reference in the QCAT Act to the presiding member is taken to be a reference to the adjudicator. Discussion [14] Though there is no reference to relevant sections of the QCAT Act in it, I will treat the Applicant’s Form 40 Application as being made pursuant to section 219(4) of the QCAT Act requesting pursuant to section 219(6) that I certify a contempt of the Tribunal by Mr Esplin in the respects complained of by Mr Bartlett. [15] The Application in that sense is within jurisdiction, but only to the extent I have identified. Mutual Contempt [16] If I were of the view that Mr Esplin’s unsubstantiated allegation of criminal wrongdoing in tax evasion amounted to contempt of the Tribunal then I would of my own motion have to conclude that so too did the retaliatory but unsubstantiated allegation of Mr Esplin’s criminal wrongdoing in tax evasion made by Mr Bartlett. [17] The contempt, if it be that, is mutual. Irrelevance [18] Defamation, tax evasion, and any related criminal wrongdoing, have nothing whatsoever to do with the merits of the minor debt proceedings brought by the Applicant and defended by the Respondent concerning a claim for money for goods sold and delivered or receivable but declined. [19] They are utterly irrelevant to the merits or otherwise of the contractual obligations of the parties and the issues that this Tribunal is called on to adjudicate and decide and they are an unnecessary and gratuitous waste of the Tribunals limited time and financial resources. No Certifiable Contempt [20] Just because one party defames another during legal proceedings does not necessarily mean that a contempt of the Tribunal has been committed. One must again look to the statutory provisions of the QCAT Act to see if there has been a contempt by words or conduct. [21] Section 218(1) provides that the circumstances in which a person may be in contempt of the tribunal include if the person – (a) insults an official whilst (i) sitting on or with the tribunal in the proceeding; or (ii) attending a proceeding; or (iii) entering or leaving the place where the tribunal is sitting; or (b) obstructs or assaults a person attending a proceeding, compulsory conference, conciliation, or mediation; or (c) obstructs or hinders a person from complying with a decision of the tribunal, or a notice given by the tribunal or the principal registrar under section 97; or -- 4 of 6 -- 5 (d) unreasonably interrupts a proceeding, compulsory conference, conciliation or mediation, or otherwise misbehaves at a proceeding, compulsory conference, conciliation or mediation; or (e) creates or continues, or joins in creating or continuing, a disturbance in or near where the tribunal is sitting; or (f) contravenes an undertaking the person has given to the tribunal; or (g) commits an offence against this part. [22] Section 218(3) defines an official for the purposes of the section as meaning amongst others – (a) a member; or (b) an adjudicator. [23] The facts and evidence to which I have referred so far do not establish any contempt of the Tribunal in the statutory sense summarised above, except perhaps to the extent that it may be said that the behaviour of the Directors vis-à-vis each other amounts to “misbehaviour otherwise at a proceeding”. [24] I think that the quoted phrase in section 218(1)(d) of the QCAT Act was intended to refer to conduct at a hearing, though it is at least possible that this could include conduct at (or during) a virtual hearing, that is – a hearing on the papers such as this one presently. [25] Rather, I am of the view that the facts and evidence to which I have so far referred establish the contempt that the Directors of the respective parties hold for each other. That does not amount to contempt of the Tribunal. It is not a contempt punishable under the contempt provisions of the Act to which I have referred. [26] However, manifestations of the Directors contempt for each other and misbehaviour may potentially attract other consequences. Unnecessary inconvenience [27] The Directors of the Applicant and Respondent appear to me to have lost all sight of the need for, civility, courtesy, mutual respect, and respect for the Tribunal. [28] On various occasions which I will instance in a moment, Mr Bartlett and Mr Esplin have chosen a perceived opportunity to insult and vilify each other, in the process unnecessarily inconveniencing each other, frustrating the Tribunal’s statutory efficiency functions and objectives, unacceptably wasting the Tribunal’s already limited time and monetary resources, and usurping opportunity for other litigants to have their disputes resolved quickly and economically. [29] For example - (a) Each of Mr Bartlett and Mr Esplin have alleged that the other threatened a physical assault. (b) There allegedly was an actual assault by one on the other in a Courthouse lift on the last occasion the parties attended in person – about which I make no finding for present purposes. -- 5 of 6 -- 6 (c) Mr Bartlett has allegedly reported Mr Esplin to the police and barred him from physically attending the Applicant’s Molendinar premises. (d) Mr Esplin has flouted a prior order made by me requiring that the Respondent file with the Tribunal and have delivered to the Applicant a paginated copy of all material he relies on, which failure is now the subject of show cause orders that I previously made but which I do not repeat here. (e) Mr Bartlett says that the unpaginated documents so delivered previously were incomplete, omitting a significant number of exhibits and making it impossible for him to respond completely. I note that this omission is presently also the subject of those orders. [30] It suffices for present purposes to say that the parties seem intent on using this forum as a litigation playground in which to settle grudges and grievances that are not justiciable here. [31] I will not permit that to continue whilst I remain the Adjudicator constituting the Tribunal for adjudication and reconsideration of what is a very complex claim for a minor debt on its merits. [32] There may be significant consequences when parties, their representatives, or officers, misbehave in this way. Consequences include that the Tribunal may summarily dismiss an Applicant’s claim or finally decide a dispute in favour of an Applicant, depending on who is the offending party, without hearing a case on its evidentiary merits.4 [33] I explain that I will not hesitate to apply one or more of the sanctions available under the provisions of the QCAT Act if the parties by their respective directors persist in misbehaviour causing unnecessary inconvenience or if they continue to treat each other with contempt. Nor in future will I hesitate to certify contempt if I decide it is warranted. [34] The parties and the Directors are on notice accordingly. Orders [35] The Form 40 Application filed by the Applicant on 19 September 2023 is refused for the reasons I have given. 4 QCAT Act, ss 47 and 48. -- 6 of 6 --