Camtra Pty Ltd v Yellow Cabs Qld Pty Ltd [2021] QCATA 58

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Camtra Pty Ltd v Yellow Cabs Qld Pty Ltd [2021] QCATA 58 5PARTIES: CAMTRA PTY LTD (applicant/appellant) v YELLOW CABS QLD PTY LTD (respondent) APPLICATION NO/S: APL127-19 ORIGINATING APPLICATION NO/S: MCDO352-18 Holland Park MATTER TYPE: Appeals DELIVERED ON: 11 March 2021 HEARING DATE: 25 February 2021 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Leave to appeal refused. Application for change of named respondent refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the parties entered into a sublease of a taxi licence – where the appellant was injured and failed to make payments under the sublease – where the respondent commenced minor debt proceedings claiming outstanding amounts –where the appellant claimed the respondent owed fiduciary duties to the appellant and those duties had been breached – where the appellant claimed the actions of the respondent in seeking payment of the fees owed amounted to unconscionable conduct – where the appellant claimed a term was to be implied into the sublease agreement whereby the respondent would not seek recovery of money until the respondent’s claim on the compulsory insurance fund was finalised – where the appellant claimed relief against the respondent for restrictive trade practices Competition and Consumer Act 2010 (Cth) Part IV, s 87 Competition Policy Reform (Queensland) Act 1996 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9 -- 1 of 7 -- 2 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 81 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Pickering v McArthur [2005] QCA 294 APPEARANCES & REPRESENTATION: Applicant: Self-represented by B Murphy Respondent: Self-represented by W Geddes REASONS FOR DECISION [1] Mr Murphy through a corporate entity, Camtra Pty Ltd, subleased a taxi licence from Yellow Cabs Qld Pty Ltd (‘Yellow Cabs’) who had in turn leased the licence from the owner. [2] Mr Murphy had an accident whilst driving the taxi and was injured and unable to drive. The other driver in the accident had no insurance cover though she told Mr Murphy she did at the time of the accident. The accident occurred on 12 September 2017. Mr Murphy found out that the other driver had no insurance on or about 26 October 2017. He, or rather Camtra Pty Ltd, failed to pay the sublease fees due Yellow Cabs from the time of the accident. Yellow Cabs continued to pay the owner of the taxi licence rent under the headlease. Mr Murphy only told Yellow Cabs about the accident on 9 November 2017. [3] Yellow Cabs then arranged for Mr Murphy’s taxi licence to be re-leased to a third party but claimed essentially the lease payments they had paid to the owner from Camtra Pty Ltd until the re-lease, an amount of $4,723.45. [4] Mr Murphy asked Yellow Cabs to wait for payment until a claim he had made on the statutory compulsory insurance fund was paid. Yellow Cabs refused, pointing out they had had to pay the owner and wanted the money back. Yellow Cabs commenced minor debt proceedings in the Tribunal. Following a hearing before an Adjudicator Mr Murphy was ordered to pay Yellow Cabs the claimed sum of $4,723.45. [5] Mr Murphy seeks leave to appeal that decision. Given the decision was made in the Tribunal’s minor civil dispute jurisdiction leave to appeal is necessary before any appeal can proceed.1 [6] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 The grounds of appeal [7] Mr Murphy seeks leave to appeal on a number of grounds, some of which overlap. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294. -- 2 of 7 -- 3 [8] In his application for leave to appeal he contended essentially as follows: (a) That the Adjudicator did not accord Camtra Pty Ltd natural justice because she considered only two of many submissions supporting a defence that Yellow Cabs could not succeed in its action. (b) That he had made an application for discovery of relevant documents but that was not decided prior to the hearing before the Adjudicator and the documents concerned were never made available for the hearing. [9] In subsequent submissions Mr Murphy added an additional ground of appeal that the Adjudicator should have implied a term into the leasing contract to the effect that Yellow Cabs would not take enforcement action until Camtra Pty Ltd’s claim on the compulsory third party insurance fund was finalised. [10] He also elaborated on his claim that the Adjudicator had failed to address submissions made by him which failure amounted to a breach of natural justice. He claimed that the parties had been in a fiduciary relationship and Yellow Cabs had breached its fiduciary duty to Camtra Pty Ltd in claiming lease payments from him before his third party insurance claim was finalised. [11] An alternative claim that had not been addressed was that Yellow Cabs’ pursuit of payment in the circumstances amounted to unconscionable conduct. [12] His final claim that the Adjudicator had failed to address was a submission that the conduct of Yellow Cabs amounted to a breach of the Competition Policy Reform (Queensland) Act 1996 (Qld). Implied term [13] The claim to an implied term in the sublease was perhaps Mr Murphy’s principal argument pursued in the application for leave to appeal. [14] The Motor Accident Insurance Act 1994 (Qld) makes provision for compensation of people injured as a result of another driver’s negligent driving of an unidentified or uninsured vehicle. [15] Mr Murphy noted at the hearing of the appeal that his claim against the other driver had not been finalised and mentioned that proceedings were being contemplated in the Supreme Court. [16] The parties entered into a contract (the sublease) in writing. Its express terms governed their respective obligations and entitlements. To imply a term into a contract which is in writing, certain conditions must be satisfied. Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW3 said this about implying terms into a written contract: The conditions necessary to ground the implication of a term were summarized by the majority in B.P. Refinery (Westernport) Pty. Ltd. v. Hastings Shire Council [1977] HCA 40; (1977) 52 ALJR 20, at p 26 : "(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear 3 [1982] HCA 24; (1982) 149 CLR 337. -- 3 of 7 -- 4 expression; (5) it must not contradict any express term of the contract." (at p 347)4 [17] The proposed implied term seems far from equitable as it applies to Yellow Cabs. Yellow Cabs did not contribute to Camtra Pty Ltd finding itself in financial difficulty. Apart from the uninsured other driver, it was Mr Murphy’s delay advising Yellow Cabs that has contributed to the amount of the fees claimed against Camtra Pty Ltd. [18] Further, as stated by the Adjudicator below, there was perhaps the possibility of income protection insurance being taken out against downtime due to illness or injury, but that was not done. Mr Murphy submitted that such is not available to corporations. Key man insurance is available to corporate businesses. [19] The sublease agreement is surely effective without the implied term suggested by Mr Murphy being necessary to give the arrangement business efficacy. [20] The suggested implied term is far from so obvious as to go without saying. [21] Finally the suggested implied term clearly contradicts an express term of the sublease whereby Camtra Pty Ltd agreed to pay without deduction or set off the monthly rental in advance on or before the first day of each month5 with time being of the essence.6 [22] The Adjudicator made no error in rejecting an implied term in the contract in the vague terms and basis suggested by Mr Murphy. Breach of fiduciary duty or unconscionable conduct or both [23] Yellow Cabs and Camtra Pty Ltd were contracting parties. There is no suggestion that they acted otherwise than independently, at arm’s length. As independent contracting parties each was entitled to drive such bargain as each deemed to be in their own best interests. [24] A fiduciary stands in a position of trust as regards another, such that, in matters falling within the scope of the fiduciary relationship, the interests of the “principal” must be placed before the interests of the fiduciary. Mr Murphy is unclear as to the identity of the principal here. He conflates his position with that of Camtra Pty Ltd without discrimination. He did not contract with Yellow Cabs; Camtra Pty Ltd did. [25] He does not say why the relationship of a fiduciary arises in the case at hand. The surrounding circumstances and the identity of the parties does not fall within any of the accepted categories of fiduciary thus far identified in case law, though the categories are said not to be closed. [26] There was no fiduciary relationship here but independent contracting parties. There is no justification to claim Yellow Cabs was obliged to act in the interests of Camtra Pty Ltd (or Mr Murphy). Simply because one contracting party is wealthier and “larger” than the other does not change the entitlement of independent companies acting in their own (rather than the other’s) interests, subject of course to there being no duress exercised in inducing the contract. 4 Ibid [9]. 5 Sublease clause 3.1. 6 Ibid clause 3.13. -- 4 of 7 -- 5 [27] As to the latter, there is no suggestion of that here. [28] The Adjudicator made no error here. She did address this submission though perhaps in very short terms. She said the claim about breach of fiduciary duty and that too of unconscionable conduct was not relevant to the claim brought by Yellow Cabs.7 She found there was no taint to the contract of sublease between the companies. [29] There is no prospect of successful appeal on this ground. [30] Similarly so with the claim about unconscionable conduct. [31] In his written submissions to the Tribunal in the hearing below, leaving aside Mr Murphy conflating his circumstances with that of Camtra Pty Ltd, he failed to identify the conduct said to be unconscionable. His submissions were limited to the mere assertion that: … it would be unconscionable to seek recompense for the lease payments while the lessee is injured and waiting for the insurance to be finalised.8 [32] There is no evidence of any unfair or unreasonable behaviour engaged in by Yellow Cabs. Yellow Cabs has simply held Camtra Pty Ltd to its agreed bargain. Anti-competitive conduct [33] Mr Murphy claims that during the term of the sublease Yellow Cabs engaged in anti- competitive conduct. He maintains that should have been taken into account as a defence to the claim against Camtra Pty Ltd. [34] He refers to the Competition Policy Reform (Queensland) Act 1996 (Qld). [35] The Competition Policy Reform (Queensland) Act 1996 introduced, as a law of the State of Queensland, the restrictive trade practices provisions found in Part IV of the Competition and Consumer Act 2010 (Cth). [36] It is not necessary to consider whether there have been breaches of Part IV of the Competition and Consumer Act 2010 by Yellow Cabs. The Tribunal has no jurisdiction in respect of Part IV matters and no power to make orders about any breach of Part IV. [37] The Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides: 9 Jurisdiction generally (1) The tribunal has jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act. … (3) Without limiting the Acts Interpretation Act 1954, section 49A, an enabling Act confers jurisdiction on the tribunal to deal with a matter if the enabling Act provides for an application, referral or appeal to be made to the tribunal in relation to the matter. … 7 Transcript 25 March 2019 Page 1-3 Line 30. 8 Submissions dated 15 January 2019, [4]. -- 5 of 7 -- 6 [38] The Competition and Consumer Act 2010 makes relevant provision for enforcement of breaches of Part IV. Section 87 of the Competition and Consumer Act 2010 provides that: … where, in a proceeding instituted under this Part … the Court finds that a person who is a party to the proceeding has suffered … loss or damage by conduct of another person that was engaged in … contravention of a provision of Part IV … the Court may, whether or not it grants an injunction under s 80 … make such order or orders as it thinks appropriate …. [39] By s 87(2) an order that can be made includes: (b) an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified; (ba) an order refusing to enforce any or all of the provisions of such a contract; [40] The Competition and Consumer Act 2010 does not grant the Tribunal jurisdiction to make orders about breaches of Part IV. It is not an enabling Act for the purpose of Tribunal jurisdiction. [41] The Adjudicator was not empowered to make findings or grant relief under that legislation. [42] This conclusion also answers the claim that Mr Murphy applied for disclosure of documents from Yellow Cabs and no order for disclosure was made. Mr Murphy made an application for disclosure and no order was made about that before hearing and no mention made of the application at the final hearing on 25 March 2019. [43] However the documents related to Mr Murphy’s contention that Yellow Cabs had engaged in restraint of trade. That was an irrelevant issue before the Tribunal. [44] Further by Rule 81 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) a party to a proceeding in a minor civil dispute cannot require another party to the proceeding to disclose documents relevant to an issue in dispute. But here the documents were not even relevant. There is no error here to be corrected. [45] Camtra Pty Ltd has no chance of success in respect of either ground of appeal. Conclusion [46] None of the proposed grounds of appeal have prospects of success. The decision below shows no injustice done to the appellant and there is no reasonable argument that there is any error to be corrected. [47] Leave to appeal is therefore refused. Change of party [48] Yellow Cabs has filed an application that the “named respondent in these proceedings be changed to Yellow Cabs Australia Pty Ltd ACN 620658871.” It is a strange request given this was not raised by Yellow Cabs during the hearing below and the request is apparently based on commercial interest rather than legal principle. [49] The current entity “in the proceedings” is Yellow Cabs (Qld) Pty Ltd ACN 009662408. -- 6 of 7 -- 7 [50] The sublease the subject of the proceedings was entered into on 27 July 2017 between the current parties. [51] A2B Australia Ltd purchased the business of Yellow Cabs (Qld) Pty Ltd ACN 009662408 on 31 July 2017, after the subject sublease was agreed. Yellow Cabs Australia Pty Ltd ACN 620658871 is a wholly owned subsidiary of A2B Australia Ltd and operates the latter’s Queensland taxi business. [52] The assignment of the business to A2B Australia Ltd was an assignment of a chose in action. By s 199(1) of the Property Law Act 1974 (Qld) such assignment is effective against the debtor or other person against whom the assignor would have been entitled to claim if express notice of assignment has been given that other person. There is no evidence that has been done here. [53] In any case it is not appropriate on appeal to make changes of party based on commercial expedience rather than legal entitlement arising from the appeal. The application to change the named party in “the proceedings” is refused. -- 7 of 7 --