Brayalei Pty Ltd v ABC Scaffolds Pty Ltd [2018] QCAT 299

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brayalei Pty Ltd v ABC Scaffolds Pty Ltd [2018] QCAT 299 PARTIES: BRAYALEI PTY LTD ACN 093067737 T/AS OFFICE EXPERTS (applicant) v ABC SCAFFOLDS PTY LTD ACN 100379973 (respondent) APPLICATION NO/S: MCDO50148-18 (Southport) MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 24 August 2018 HEARING DATE: On the papers HEARD AT: Southport DECISION OF: Adjudicator Alan Walsh ORDERS: The Application for minor civil dispute – minor debt, filed on 7 February 2018, is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – minor debt claim – where collection agent for applicant filed application for minor civil dispute minor debt at Tribunal’s Southport Registry – where collection agent not a party to application – where collection agent not granted leave to represent applicant ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – jurisdiction – exercise of jurisdiction – where corporate parties domiciled and carrying on business in New South Wales – where contract formed there – where claimed debt payable there – where one part of cause of action arose in Queensland – where otherwise no connection with Queensland – where respondent applied for dismissal of minor debt claim for lack of jurisdiction – where Tribunal adopted and applied rule 43 of the Uniform Civil Procedure Rules 1999 (Qld) – whether Tribunal has jurisdiction – whether Tribunal should exercise jurisdiction in that event Queensland Civil and Administrative Tribunal Act 2009 -- 1 of 10 -- 2 (Qld), s 11, s 12, s 43(2)(b)(iv), s 52 Queensland Civil and Administrative Tribunal Act 2009, Schedule 3 – Dictionary Service and Execution of Process Act 1992 (Cth), s 16, s 20 Uniform Civil Procedure Rules 1999 (Qld), r 35 Collier v Liebrecht [1983] 2 Qd R 726 Howard v Smith [2014] QCATA 103 Maschwitz v Searles [1903] St R Qd 238 Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost Pty Ltd [2015] QCAT 463 Lenard’s Pty Ltd & Anor v Kimart Pty Ltd & Ors [2009] QDC 150 St George Bank Limited v McTaggart [2003] 2 Qd R 568 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] Commercial collection agents provide a valuable service to the business community nationally for recovery of unpaid debts. Often that involves the commencement of legal proceedings with a view to obtaining judgment and execution. [2] Because Australia is a federation of States and Territories, not a unitary State, constitutional and jurisdictional constraints sometimes arise where litigants in other States seek redress through commercial agents in Queensland against respondent debtors who themselves do not reside in Queensland. [3] This decision is intended to provide some guidance to commercial agents and their interstate clients with respect to jurisdictional issues which may be replicated in other cases, in particular concerning whether and when proceedings ought be commenced in State of origin rather than in Queensland. [4] Section 11 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides that this Tribunal has original jurisdiction to hear and decide a minor civil dispute1 which, by definition, the minor debt claim in this matter is. 1 QCAT Act, Schedule 3 - Dictionary. -- 2 of 10 -- 3 [5] However, the first essential question when adjudicating a minor civil dispute, even where not raised by a party,2 always is whether the Tribunal has jurisdiction3 to hear and determine the matter. [6] The second essential question is whether the Tribunal should exercise jurisdiction on the facts of a particular case where it has it. [7] Most often, but not always, the answer to both questions of jurisdiction is ‘yes’ and they require no more than the most cursory attention in passing. [8] Where there is jurisdiction, the exercise of it is not automatic. This is so because the Tribunal is vested with a statutory discretion4 which must be exercised judicially in deciding which cases within jurisdiction it will hear, and which, having regard to resource limitations, logistics and other relevant considerations, it will not. [9] In this minor debt application, Collection & Recovery Options Pty Ltd, a licensed commercial agent carrying on business at Southport in Queensland, to which I will refer as the collection agent, filed a minor debt application with the Tribunal at its Southport Registry in the name of its client Brayalei Pty Ltd (‘Brayalei’) against ABC Scaffolds Pty Ltd (‘ABC Scaffolds’) on 7 February 2018. [10] It did so electronically ‘with the authority of the Queensland Civil and Administrative Tribunal.’5 Filing an application commencing proceedings with the authority of the Tribunal does not, of itself, confer jurisdiction on the Tribunal. The application is merely the procedural vehicle by which the claim is brought before the Tribunal for adjudication. [11] Brayalei claims $7,463.00 for ‘computer/IT related consulting and development services to the respondent’ plus interest and cost outlays for a total of $9,027.93. Brayalei’s registered office is at Lot 23 Ellandgrove Road, Elland, NSW 2460. [12] Brayalei’s supporting invoices dated 22 March 2017 and 11 May 2017 respectively, filed with the minor debt claim, were addressed to ABC Scaffolds at 32 Searl Road, Cronulla, NSW 2230. Brayalei’s postal address in the invoices is given as PO Box 243, Grafton, NSW 2460. [13] Brayalei’s invoices instructed that the customer, ABC Scaffolds in this case, detach the ‘how to pay section’ to be mailed with an accompanying cheque to its postal address where paying by mail. Alternatively, a direct deposit could be made to Brayalei’s Commonwealth Bank account nominated in the invoices. [14] It is readily apparent that the minor debt application and invoices disclosed no geographical connection in any respect with the State of Queensland except for the address of the collection agent at Southport. 2 Howard v Smith [2014] QCATA 103, [11]–[12]. 3 QCAT Act, section 11. 4 Ibid section 12(1). 5 Part of the standard wording of the Minor Civil Dispute – Minor Debt Form 4. -- 3 of 10 -- 4 [15] Incidentally, the collection agent did not apply for, and does not have, the Tribunal’s leave, which is necessary,6 to represent Brayalei in these proceedings as it purports to do. I will however consider its written submissions in this matter later. [16] The collection agent served the minor debt application and a copy of the invoices on ABC Scaffolds at its registered office at 17 Smith Street, Emu Plains, NSW 2750, together with a Form 1 Notice pursuant to section 16 of the Service and Execution of Process Act 1992 (Cth) essential for effective service interstate of Tribunal proceedings commenced in the State of Queensland. [17] The following appears beneath the heading ‘Your Rights’ in the Form 1 Notice: If a court of a State or Territory other than Queensland is the appropriate court to determine the claim against you set out in the attached process, you may be able to have the proceeding stayed by applying to the Queensland Civil and Administrative Tribunal (Tribunal). If you think the proceeding should be stayed or transferred you should get legal advice as soon as possible. (emphasis added) [18] By the combination of documents to which I have referred, the two questions which I earlier identified concerning jurisdiction announced themselves to solicitors for ABC Scaffolds with a metaphorical red alert. [19] McGrath Solicitors, of Parramatta, New South Wales, responded to the alert on behalf of ABC Scaffolds by filing a miscellaneous application (‘the dismissal application’) with the Tribunal, received at the Tribunal’s Brisbane Registry by mail on 13 April 2018. [20] I will accept that the dismissal application was properly so filed. However, ABC Scaffolds does not have leave to be legally represented in these proceedings. [21] The dismissal application seeks dismissal of Brayalei’s minor debt claim for lack of jurisdiction. That does not imply an objection to exercise of jurisdiction because ABC Scaffolds asserts there is none. However, of my own accord, I must independently consider whether or not jurisdiction should be exercised if it exists. [22] ABC Scaffolds asserts that the dispute arises from an agreement entered into in the State of New South Wales and that both Brayalei and ABC Scaffolds are registered and trade in New South Wales. Brayalei does not deny those assertions. [23] ABC Scaffolds says that it does not submit to the QCAT jurisdiction. [24] ABC Scaffolds previously filed with the Tribunal, and served on Brayalei’s collections agent, a Form 7 Response to the minor debt claim on 28 March 2018 in essentially the same terms as the dismissal application. In it, ABC Scaffolds also denies liability to Brayalei. [25] Brayalei, by the collection agent’s written submissions, opposes the dismissal application on the following grounds. 6 QCAT Act, section 43(2)(b)(iv). -- 4 of 10 -- 5 [26] Firstly, the collection agent says that the Tribunal has jurisdiction to entertain the proceedings under section 11 of the QCAT Act which, as I have already noted, provides that the Tribunal has jurisdiction to hear and decide a minor civil dispute. [27] However, section 11 of the QCAT Act must be read in context of other sections of, and definitions in, the QCAT Act. In other words, jurisdiction is not automatically conferred by section 11 upon the filing of an application for minor civil dispute. [28] Secondly, the collection agent says that, according to the definition of what is a minor civil dispute in the Schedule 3 Dictionary, minor civil dispute in the present context relevantly means a claim to recover a debt or liquidated demand of money, in either case with or without interest and of up to the prescribed amount. That is so. [29] For completeness, I note that the prescribed amount referred to in the definition is presently $25,000,7 and that, by filing a minor civil dispute application with the Tribunal, an applicant is deemed8 to limit the claim made to $25,000. [30] An applicant wishing to avoid the deemed claim limitation of $25,000 must either file an application in the Magistrates Court of Queensland which has monetary jurisdiction up to $150,000 or, where proceedings have already commenced in the Tribunal, ask for their transfer there. [31] Thirdly, the collection agent says that the Tribunal may exercise jurisdiction if a relevant person, in this case a trader, applies to the tribunal to deal with a dispute against another trader as defined in the QCAT Act.9 I referred to the statutory discretion earlier. It is not disputed in this case that ABC Scaffolds and Brayalei are traders. [32] Fourthly, the collection agent says that the dismissal application should itself be dismissed because the minor debt claim satisfies these jurisdictional requirements and because the objection is ‘for what can best be described as residency reasons.’10 [33] It is corporate residency, in the sense of the location in New South Wales of the registered offices and principal places of business of both companies, that the collection agent is referring to. That is not disputed. The parties’ directors all reside in New South Wales as well. [34] Fifthly, the collection agent says that the dismissal application is really one for a stay order under section 20 of the Service and Execution of Process Act 1992 (Cth) (‘the SEPA’).11 [35] I do not accept this fifth submission because ABC Scaffolds’ dismissal application clearly seeks dismissal for lack of jurisdiction, not a stay under the SEPA, and it is not for Brayalei to run ABC Scaffolds’ dismissal application and defence for it. [36] Nevertheless, it is convenient to consider the discretionary criteria for determining appropriate forum set out in section 20 of the SEPA because some of them overlap 7 QCAT Act, Schedule 3 - Dictionary. 8 Ibid section 12(3). 9 Ibid Schedule 3 - Dictionary. 10 Submissions dated 18 April 2018, paragraph 20. 11 Ibid paragraph 22. -- 5 of 10 -- 6 (the overlapping considerations) with other criteria to which the Tribunal must have regard when considering whether or not to exercise jurisdiction, that is: (a) the parties’ and the parties’ witnesses places of residence;12 (b) the place where the subject matter of the proceeding is situated;13 (c) any agreement about the court or place for institution of proceedings;14 and (d) the law most appropriately to be applied.15 [37] In its written submissions, the collection agent relies16 on the decision of Shanahan DCJ in Lenard’s Pty Ltd & Anor v Kimart Pty Ltd and Others,17 citing other authorities including St George Bank Limited v McTaggart [2003] 2 Qd R 568 at 571 per McPherson JA. [38] In doing so, the collection agent says that the applicable law of contract in the present case is uniform between the Australian States,18 and that QCAT at Southport is the appropriate forum to commence proceedings to decide the dispute. [39] However, that submission is mere assertion and begs the questions, what were the terms and conditions of the contract; was the contract wholly or partly in writing? In turn, what, if any, New South Wales statute or common law may apply and is it identical to applicable Queensland law? [40] There are no clear answers to those questions, merely the assertion that the applicable law is uniform. I do not accept that the collection agent has established that in the present proceedings. [41] All that Brayalei says in its statement of particulars of claim in the application filed by the collection agent is that: ...the Respondent engaged in a transaction or series of transactions with the Applicant which resulted in the Respondent being indebted to the Applicant for a debt or liquidated amount; … …the basis of the transactions or documents ... are set out in Item 3 of the Schedule hereto; … …full particulars have previously been supplied; … 12 Ibid s 20(4)(a). 13 Ibid s 20(4)(b). 14 Ibid s 20(4)(d). 15 Ibid s 20(4)(e). 16 Submissions dated 18 April 2018, paragraph 26. 17 [2009] QDC 150. 18 Submissions dated 18 April 2018, paragraph 33. -- 6 of 10 -- 7 …the documents are incorporated into this claim. [42] Item 3 of the Schedule merely asserts that the ‘Applicant provided computer/IT related consulting and development services to the Respondent on an hourly basis full particulars of which have been previously supplied...’ and refers to the two invoices filed with the application. I have quoted the relevant parts of those invoices earlier. [43] Also in the collection agent’s written submissions is the assertion that Brayalei has an office situated at 8 Gracemere Place, Forest Lake, Queensland, where ‘all the final testing of the product the subject of this MCD was carried out ... for the ABC project at Forest Lake prior to the release of the product to ABC.’19 [44] However, that is submission, not evidence. It may or may not be true and material. Nevertheless, assuming for the moment that it is true, the clear implication of the quoted excerpt is that only final product testing, not earlier testing, was carried out by Brayalei at Forest Lake in Queensland for an ABC Project there. [45] That begs the question as to where the development, manufacture and pre-final testing of the computer/IT product and service was carried out. I infer it was in New South Wales, consistently with the content of the two invoices raised and delivered in New South Wales and because the collection agent does not say anything to the contrary in the statement of particulars of claim or in submissions. [46] Further, and consistently with that, the collection agent says in its written submissions that any inconvenience to interstate witnesses would be ameliorated by granting the respondent’s directors and witnesses leave to attend the QCAT hearing in due course by telephone.20 [47] That submission acknowledges that ABC Scaffolds has interstate witnesses who would, together with its directors, need to give material evidence. So does Brayalei. That is clear from Brayalei’s interstate business domicile and the facts which are not disputed. [48] Lastly, the collection agent submits that if the Tribunal declines to entertain the matter then the QCAT proceedings should be transferred to ‘another court or tribunal’ or to ‘the Magistrates Court of Queensland sitting at Brisbane’ or ‘to the Local Court of New South Wales’ (sic) sitting at Coffs Harbour,21 pursuant to section 52 of the QCAT Act. [49] A number of points arise from the last submission. [50] Firstly, the QCAT Act has no extraterritorial application. Section 52 of the QCAT Act does not empower the Tribunal to transfer proceedings to a court or tribunal in New South Wales,22 or another State or Territory. Those courts and tribunals are geographically and constitutionally separate and independent of their Queensland equivalents. 19 Ibid paragraph 30. 20 Ibid paragraph 37. 21 Ibid paragraphs 41, 42. 22 Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost Pty Ltd [2015] QCAT 463, [27]. -- 7 of 10 -- 8 [51] Secondly, insofar as it may be held that the Tribunal does have minor civil dispute jurisdiction in this case, and that I should exercise it, there is no proper legal basis on which then to order a transfer to the Magistrates Court of Queensland at Southport, Brisbane, Ipswich, or anywhere else within Queensland. [52] If the application is within the Tribunal’s minor civil dispute jurisdiction and jurisdiction is exercised at Southport or elsewhere in Queensland then that is the end of the matter. There would be no basis or justification for a transfer of the proceedings to the Magistrates Court of Queensland. [53] I turn now to consider extraneous procedural rules which may be invoked to help resolve the jurisdictional questions in this case. [54] As I noted in my decision in Parcelvalue SA v Ozepost,23 there is no similar provision in the QCAT rules to rule 35 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) about where to commence proceedings for minor debt claims. [55] Insofar as concerns the commencement of proceedings in the Magistrates, District and Supreme Courts of Queensland, rule 35 of the UCPR requires that proceedings start either in the district of the respondent’s residence or place of business, or where the debt is payable, or where all or part of the claim or cause of action arose.24 They are threshold requirements. [56] Those threshold requirements also go to jurisdiction and whether or not a claim made is within jurisdiction.25 [57] Insofar as conducting proceedings generally in the Tribunal is concerned, section 28(3)(b) of the QCAT Act relevantly provides that the Tribunal is not bound by the practices or procedures applying to courts of record, other than to the extent the Tribunal adopts the practices or procedures. [58] Given the absence of any equivalent of rule 35 of the UCPR in the QCAT rules, I adopt the practice and procedure set out in that rule for purposes of this case. In doing so and considering the threshold requirements referred to in the rule, I make the following associated findings in this case. [59] Firstly, the district of ABC Scaffolds’ domicile and place of business is at Emu Plains and Cronulla in New South Wales. [60] Secondly, the contract between the parties was formed in New South Wales. [61] Thirdly, on Brayalei’s own invoices, the debt, if there is a liability in debt which is presently denied, is payable to Brayalei variously at either Grafton or Elland in New South Wales, not in Queensland. [62] Fourthly, to the extent of the assumption that some of the services, i.e. the final product testing (only), were performed by Brayalei at its Forest Lake office in 23 Ibid. 24 Ibid [29]. 25 Collier v Liebrecht [1983] 2 Qd R 726 -- 8 of 10 -- 9 Queensland for an ABC Project, which has not been established in the documentary evidence, the Tribunal may have jurisdiction in this case.26 [63] However, it is unnecessary for me to decide that point in this case. That is because, assuming that there is jurisdiction as the collection agent asserts, I will in any event decline to exercise it for the first, second and third reasons above in combination also with the following further reasons. [64] The collection agent’s convenience appears to me to be the real reason why the minor debt claim was filed with QCAT at its Southport Registry. [65] It could, for example, have been filed with the Brisbane or Ipswich Registry of the Tribunal which is more proximate to where the final product testing was allegedly carried out but the question of exercise of jurisdiction would still arise there. [66] The mere fact that the collection agent has its office at Southport in Queensland is not a proper basis on which to exercise Tribunal jurisdiction. The practice of collection agents filing claims here in circumstances such as these should be discouraged. [67] The directors of both Brayalei and ABC Scaffolds reside in New South Wales. [68] Evidence of any witnesses for Brayalei residing in Queensland who performed the final services could be given in affidavit form and/or by telephone at a New South Wales hearing with leave. [69] If the minor debt claim succeeded, enforcement would have to proceed in New South Wales because ABC Scaffolds has no presence here. [70] Enforcement by way of statutory demand premised upon a New South Wales Court or Tribunal decision and subsequent proceedings for company liquidation would appropriately occur in New South Wales, not in Queensland. [71] As to the overlapping criteria in the SEPA to which I referred earlier, the first, second and fourth have already been considered in the context of rule 35 of the UCPR and they do not assist Brayalei on the facts in this case. [72] As to the third of those overlapping SEPA criteria, there is obviously no agreement between the parties in this case about the court (or tribunal) or place for institution of proceedings as contemplated by the SEPA. [73] Further, even though Commonwealth legislation prevails over State legislation to the extent of any inconsistency where both cover the same field, any such agreement, if it existed, could not provide this Tribunal with a consent jurisdiction that it does not have under the QCAT Act because section 20 of the SEPA does not purport to confer jurisdiction. [74] I have come to the conclusion that a New South Wales Court, the Local Court of New South Wales sitting at Coffs Harbour according to the collection agent, or 26 Maschwitz v Searles [1903] St R Qd 238. -- 9 of 10 -- 10 Tribunal of competent jurisdiction is therefore the appropriate and proximate forum in which to litigate the claim in all the circumstances. [75] I therefore decline to exercise QCAT jurisdiction, assuming that it exists, to hear and determine the dispute and order that Brayalei’s Application for minor civil dispute – minor debt, filed on 7 February 2018, is dismissed. -- 10 of 10 --