Conias and Anor v Brisbane Basketball Inc [2011] QCAT 415

CITATION: Conias and Anor v Brisbane Basketball Inc [2011] QCAT 415 PARTIES: Jack Conias Theodosia Conias v Brisbane Basketball Inc APPLICATION NUMBER: RSL005-11 MATTER TYPE: Retail shop leases matters HEARING DATE: 5 September 2011 HEARD AT: On the papers DECISION OF: Ms Anne Forbes, Member DELIVERED ON: 5 September 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The Applicants shall file two copies in the Tribunal and serve one copy on the Respondent of the following documents by 4 pm on 30 September 2011: (a) Source material in support of monetary compensation sought, namely: (i) Tax returns and Notices of Assessments of Jack and Theodosia Conias insofar as they relate to the canteen business conducted at the Vince Hickey Stadium in the financial years 2006–2010; (ii) "Notes to the Financial Statements" attached to the compilation report prepared by the Tenants’ accountant in relation to the said canteen business; (iii) A complete copy of the financial report, financial statements and any related documents relied upon in the preparation of the profit and loss statement prepared for that business; (iv) source documents used to -- 1 of 6 -- 2 formulate the said profit and loss statement namely: (A) Business Activity Statements for the financial years 2006 to 2008 relating to the said business; and (B) Books of account, namely ledgers, cash payments books and cash receipts books. 2. The Landlord’s application for production of documents by the Tenants’ accountant is adjourned, with leave to renew it at the directions hearing fixed for 1.30 pm on 5 October 2011, provided that any intention to do so is notified by the Landlord to the Tenants at least two (2) business days before that hearing. 3. The Landlord shall file two copies in the Tribunal and serve one copy on the Applicants of the following documents by 4 pm on 30 September 2011: (a) All correspondence between Brisbane Basketball Incorporated and the State authority for liquor licensing from September 2009 to the present time; (b) All correspondence between Brisbane Basketball Incorporated and the Brisbane City Council in the year 2010 with respect to the subject canteen, particularly its food licence, inspection, ratings and closure orders. CATCHWORDS: Production of documents – relevance – direct relevance Retail Shop Leases Act 1994, s 43 Queensland Civil and Administrative Tribunal Act 2009, ss 3, 28, 62 APPEARANCES and REPRESENTATION (if any): This proceeding was heard and determined on the papers in the absence of the parties. REASONS FOR DECISION [1] Mr and Mrs Conias [“the Tenants”] seek compensation from Brisbane Basketball Inc [“the Landlord”] for the alleged wrongful termination of their -- 2 of 6 -- 3 retail licence1 to conduct a canteen at the Vince Hickey Stadium Basketball Centre, Auchenflower, and for consequential loss of profits. The case is set down for hearing in November 2011. [2] The Landlord’s defence is that the Tenants were in breach of their lease, that the lease was lawfully terminated, and that the Tenants are not entitled to compensation. [3] In this interlocutory application the Landlord seeks orders under section 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 [”the QCAT Act”] for production of certain documents. The Tenants, for their part, seek similar orders. [4] As a remedy to abuses of the former law of discovery2, abuses exacerbated by modern methods of recording, rules of court in this State now restrict disclosure to documents having a direct relevance to an allegation in issue on the pleadings or a matter in issue in the proceedings.3 Procedure in this Tribunal is, in general, at the Tribunal’s discretion, unfettered by practices or procedures applying to courts of record.4 I consider that the new regime of discovery (or production) of documents is well suited to a Tribunal that is required to act with as little formality and technicality as the law allows,5 with due economy.6 The Tribunal’s duty to ensure, so far as practicable, that all relevant material is disclosed7 is, in my view, fulfilled by following the rules of discovery now observed by the courts. What are the issues? [5] The questions raised by the Tenants’ Notice of Dispute and their document described as “Remedy”, filed on 23 June 2011 are these: (a) Whether, by its Notice of Termination of Canteen Agreement dated 7 June 2010 the Landlord unlawfully terminated the Tenants’ licence; (b) Whether the Landlord breached the licence by failing to ensure that its liquor licence was current during the tenancy; (c) Whether the Tenants suffered loss because of the above actions of the Landlord; (d) The amount of any such loss; and (e) Whether the conduct of the Landlord was unconscionable within the meaning of section 46A of the Retail Shop Leases Act 1994. [6] The Landlord joins issue on all of points (a) to (e) above. The Landlord’s Application for production of Documents 1 A licence to occupy premises is a “lease” under the Retail Shop Leases Act 1994, Schedule, Dictionary. 2 Compagnie Financiere du Pacifique v Peruvian Guano (1882) 11 QBD 55. 3 Uniform Civil Procedure Rules 1999, r 211(1)(b); Mercantile Mutual Custodians Pty Ltd v Village/Nine Networks Restaurants & Bars Pty Ltd [1999] QCA 276 at [7]-[8]. 4 QCAT Act, s 28. 5 QCAT Act, s 28(3)(d). 6 QCAT Act, s 3(b). 7 QCAT Act, s 28(3)(e). -- 3 of 6 -- 4 [7] The Landlord says that the Tenants have provided it with inadequate materials in support of their claim, despite the Landlord’s several requests for additional information. The Landlord seeks: (i) Documents relevant to the claim of wrongful termination of the licence. [8] The Landlord purported to terminate the Tenants’ licence on several grounds specified in the Notice of Termination.8 None of those grounds alleges that the Tenants had failed to insure. (In fact, the Tenants were obliged to maintain a public liability insurance policy for $10 million for the licensed area of the Landlord’s premises.9) [9] It appears that the Landlord perceived the possibility of another ground for termination when the Tenants attached to their Affidavit, filed on 20 June 2011, a profit and loss statement listing no outlay for insurance in the years 2006-2009. The Landlord now seeks to have production of documents of any insurance contracts between the Tenants and an insurer relating to public liability. [10] However, the defence to the substantive application10 is based on the Notice of Termination and the allegations therein. The belated attempt by the Landlord to make a new case, alleging a breach of the insurance term is, in my view, a clear case of impermissible “fishing”. Accordingly, the application for production of documents relating to insurance is dismissed. (ii) Documents relating to quantum of Loss: [11] The Tenants have filed what appears to be an incomplete profit, loss and business activity statement prepared by accountants John Pappas and Associates. The Landlord seeks orders for production of the complete document and several categories of original documents from which those accounts were derived. [12] In my view those documents are directly relevant to the Tenants’ claim and the Landlord is entitled to have access to them for the purposes of these proceedings. The proper subjects of an order are the Tenants, not their accountants, who are not party to this case. The Tenants’ Application for Production [13] The tenants’ application consists of one page listing “all relevant documents” without any submission as to how these might be relevant to the issues. The list is open ended and asks, for example, for “any other relevant records of meetings [of the landlord’s committee] from 10 May 2009 onwards” and “all relevant documents … made or given to committee members, BBI employees, BBI volunteers and 3rd parties.” 8 Affidavit of Tracey Leigh Wroe, filed 20 May 2011, paragraphs 35-36. 9 Licence Agreement Clause 22.1. 10 Landlord’s Application for Miscellaneous Matters - production of documents: Annexure B, and Respondent’s Outline of Submissions in Response to Application, paragraph 7. -- 4 of 6 -- 5 [14] The Landlord submits that the documents sought are irrelevant, and/or so vaguely referred to that there is no obligation to produce. I accept that submission. Before the discretion to order production can or should be exercised, it is necessary to identify an issue to which the desired document or category of documents relates. The Tenant’s application does not satisfy that requirement. [15] I find that the following categories of documents are irrelevant, and the request is arguably oppressive, and I decline to order their production: The rules of the Landlord’s incorporated association; The Landlord’s committee and subcommittee meetings from May 2009 onwards; Any other records of meetings, negotiations and decisions made and all relevant records (including reports and statements) made by or given to committee members, the respondent’s employees, volunteers of the respondent and third parties; All correspondence (including emails, text messages and letters) (i) sent by or to Tracey Leigh Wroe from 10 May 2009 and (ii) all correspondence sent by or to the Landlord’s committee members, employees, volunteers or third parties from 10 May 2009 onwards. [16] I allow the Tenants’ application to the extent that it refers to documents and correspondence between the Landlord and the State Authority or the Brisbane City Council relating to liquor licensing and/or food canteen licensing at the Centre, as materials that are prima facie and directly relevant to the issues for trial. ORDERS [1] The Applicants shall file two copies in the Tribunal and serve one copy on the Respondent of the following documents by 4 pm on 30 September 2011: (a) Source material in support of monetary compensation sought, namely: (i) Tax returns and Notices of Assessments of Jack and Theodosia Conias insofar as they relate to the canteen business conducted at the Vince Hickey Stadium in the financial years 2006–2010; (ii) "Notes to the Financial Statements" attached to the compilation report prepared by the Tenants’ accountant in relation to the said canteen business; (iii) A complete copy of the financial report, financial statements and any related documents relied upon in the preparation of the profit and loss statement prepared for that business; (iv) Source documents used to formulate the said profit and loss statement namely: (a) Business Activity Statements for the financial years 2006 to 2008 relating to the said business; and (b) Books of account, namely ledgers, cash payments books and cash receipts books. -- 5 of 6 -- 6 [2] The Landlord’s application for production of documents by the Tenants’ accountant is adjourned, with leave to renew it at the directions hearing fixed for 1.30 pm on 5 October 2011, provided that any intention to do so is notified by the Landlord to the Tenants at least two (2) business days before that hearing. [3] The Landlord shall file two copies in the Tribunal and serve one copy on the Applicants of the following documents by 4 pm on 30 September 2011: (a) All correspondence between Brisbane Basketball Incorporated and the State authority for liquor licensing from September 2009 to the present time; (b) All correspondence between Brisbane Basketball Incorporated and the Brisbane City Council in the year 2010 with respect to the subject canteen, particularly its food licence, inspection, ratings and closure orders. -- 6 of 6 --