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- Unreported Judgment
 QCAT 118
AMENDED REASONS FOR DECISION
Jebral Nominees Pty Ltd v The Chief Executive, Department of Justice and Attorney-General and others  QCAT 118
Jebral Nominees Pty Ltd
The Chief Executive, Department of Justice and Attorney-General
Peter Charles Butt
Jennifer May Carr
Noosa Resort Management Pty Ltd
General administrative review matters
On the Papers
24 May 2016
AUCTIONEERS AND AGENTS – CLAIM AGAINST THE FUND – PRODUCTION OF DOCUMENTS AND THINGS – REPRESENTATION – Where a claim was brought against the fund – where production documents and things were sought from the respondents and from a witness – where legal representation was sought
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- Jebral Nominees Pty Ltd (‘Jebral’) is the owner of a property situated at 24 Witta Circle, Noosa Heads, in Queensland. It re-appointed Noosa Resort Management Pty Ltd (‘NRM’) on 29 June 2015 to manage the property.
- Jebral gave NRM 30 days written notice on 17 July 2015 that it was terminating the appointment.
- Jebral alleges that it has suffered financial loss due to guests who had booked through NRM not proceeding with their bookings. It made a claim on 14 September 2015 on the fund maintained under the Agents Financial Administration Act 2014 (‘AFAA’). The claim is for $2,200.00.
- The Directors of Jebral are Brian Mandie and Jeanette Mandie. NRM traded as Richardson & Wrench Noosa Holidays, and the Directors are Jennifer Carr and Peter Butt.
- The Chief Executive referred the claim to the Tribunal on 21 January 2016 under section 95(1)(b) of the AFAA. That section provides as follows:
- (1)The chief executive may –
(b) refer the claim to QCAT to decide, if the chief executive considers –
(i) the claim could be more effectively or conveniently decided by QCAT because of, for example, the nature and complexity of the claim; or
(ii) it would be appropriate for the claim to be decided by QCAT.
- The Chief Executive submitted that it was referring the claim for the following reasons:
12. The Chief Executive considers that the Tribunal can decide the claim more effectively, more conveniently and it is more appropriate for it to do so because it will require a hearing which the Chief Executive cannot convene. It is submitted that a hearing is necessary because:
(a) findings will need to be made on disputed allegations of fact with little documentary evidence, which may in turn require findings on credibility to be made. These tasks are more appropriately dealt with in a hearing; and
(b) the Claim concerns allegations of false or misleading statements under section 212 POA which is an offence provision and there is no sworn evidence in the material submitted to date. In these circumstances, it is not appropriate to determine the claim on the papers and a hearing is the preferable alternative.
- The Respondents to the proceeding in the Tribunal are the Chief Executive, Peter Butt, Jennifer Carr, Katie Wood and Noosa Resort Management Pty Ltd.
- Peter Butt and Jennifer Carr (‘the agents’) filed an application on 4 March 2016 for leave to be represented in the proceedings by Garland Waddington Solicitors.
- Jebral filed an application on 7 January 2016 (which was supplemented on 29 March 2016) for a direction requiring another party to produce a document, thing, or information.
- Directions were given on 5 April 2016 for the filing of submissions on the application for leave to be represented, and the application for production; and for those applications to be decided on the papers without an oral hearing after 19 April 2016.
- This is the decision on those applications. I shall deal with each in turn.
The application for leave to be represented
- The agents seek leave to be represented in their application on the following bases:
The proceeding is likely to involve complex questions of fact and law s 43(3)(b).
- The agents filed submissions in support of their application on 12 April 2016. They identified the issues in the proceedings as being to:
determine if the Respondents including Noosa Resort Management Pty Ltd contravened ss 21 and 22 of the AFAA and s 212 of the POA causing a claimable event (an event as defined in s 82 of the AFAA).
- They submitted that the legal and factual issues which the Tribunal needs to resolve are of a complex nature; that legal representation will assist the Tribunal to focus on the substantial merits of the case; and that the decision in this matter will have far reaching implications for other applications.
- Mr Brian Mandie has made submissions on behalf of Jebral. In submissions filed on 19 April 2016 he opposed the granting of leave for representation, and took issue with each of the points put forward by the agents.
- Mr Mandie disputed that the proceedings involve complex questions of fact or law, and submit that:
These proceedings involve simple questions, such as whether the agent mishandled trust moneys, and whether the agent engaged in misleading conduct.
- Mr Mandie also disputes whether the involvement of Solicitors will assist the Tribunal to focus on the substantial merits of the case, to ensure all relevant material is disclosed, or assist the Tribunal to achieve its statutory objects.
- Mr Mandie disputes that legal representation will assist in confining costs by focusing the dispute on the relevant issues, and accuses the agents solicitor in making that submission of "a thinly disguised continuation of the outrageous unethical submissions” made by those solicitors in their letter to the Registrar dated 4 April 2016. Mr Mandie referred to Rule 34.1 of the Australian Solicitors Conduct Rules and submitted that:
The 4 April 2016 letter falsely submitted the following without giving any particulars or having any basis at all for asserting:
- That the Applicant is vexatiously conducting the proceedings;
- That the Applicant is carrying on those proceedings to achieve another purpose;
- That the Applicant is continuing these proceedings to harass, annoy and cause delay and detriment to the Respondents and is doing so without reasonable grounds;
- That the Applicant is seeking the production of irrelevant documents and on the basis of these false submissions applied to have the Applicant pay the costs of the Respondent on an indemnity basis.
The submissions of GW referred to above taken together with this latest submission are intended to intimidate the Applicant and constitute tactics that go beyond legitimate advocacy. The submissions are intended to coerce the Applicant not to pursue its statutory rights by threatening the Applicant that it will be liable for costs on an indemnity basis in an environment where the rule is that each party pays its own costs.
- The amount claimed from the fund is only $2,200.00. That is a relatively small amount, which if claimed in the Tribunal’s Minor Civil Dispute jurisdiction would be heard by a panel of Justices of the Peace. However, as the jurisdiction in this matter stems from the AFAA, it falls into the general jurisdiction to be heard by full process before a Member.
- The amount of the claim is not determinative in itself of the complexity of a matter, or of the reasonableness of leave being given for representation being given to a party.
- It is significant that the Chief Executive has chosen to refer the claim to the Tribunal. It could have determined this claim itself, but specifically identified that findings as to disputed allegations of fact would have to be made on a hearing, and that the claim raised allegations under section 212 of the POA which is an offence provision.
- The comments of the Chief Executive in themselves lead to a strong suggestion of the matter as being complex.
- Mr Mandie has submitted that whether the agent mishandled moneys or engaged in misleading conduct is a ‘simple matter’. However, the allegations made by Mr Mandie are serious accusations which are disputed by the agents, and which involve considerations of both fact and law.
- This proceeding has already involved several strongly contested interlocutory steps, and Mr Mandie has made reference to various statutory provisions and case law in his submissions.
- The solicitors for the agents have raised the issue of their seeking costs on behalf of their client. Whilst the initial starting point for proceedings in the Tribunal is that each party usually bears their own costs, there is not a rule that each party always pays its own costs as submitted by Mr Mandie, as s 100 is subject to s 102(1), which provides that the Tribunal may make an order as to costs if the Tribunal considers the interests of justice require it to make the order.
- The foreshadowing by the solicitors for the agents that they will be seeking costs if the matter takes a certain course is not incompatible with their acting in the matter.
- Section 43(3)(b) of the QCAT Act provides that the Tribunal may give a party leave to be represented if the proceeding is likely to involve complex questions of fact or law.
- The nature of the allegations, the submissions of the Chief Executive, and the course of conduct of the proceedings, all give rise to a clear finding that the matter does involve complex questions of both fact and law. In those circumstances, it is appropriate that the agents be represented as they have sought, and I order accordingly.
The application for disclosure
- Jebral filed an application for miscellaneous matters on 7 March 2016. The directions sought were as follows:
C7 – Application for direction requiring another party produce document, thing or information.
I, Brian Mandie, Director of Jebral Nominees Pty Ltd apply to the Tribunal under section 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 for a direction requiring Peter Butt and Jennifer Carr of Richardson & Wrench Noosa, 23 Hastings Street, Noosa Heads Qld 4567 to produce to the Tribunal the documents and information referred to below and to provide copies to me and the Chief Executive.
With respect to the 24 Witta Circle Noosa Heads holiday booking of Guy Thomas for the period 21 August 2015 (arrival) to 28 August 2015 (departure):
- A copy of the trust account ledger relating to this booking showing detailed particulars of all entries for moneys received and moneys paid out.
- Copies of all emails, letters, trust account and any other receipts, and all other documents relating to Guy Thomas with respect to this booking.
- Copies of all emails, letters, trust account and any other receipts and all other documents with respect to any other booking of his that was substituted for 24 Witta Circle Noosa Heads.
- Copies of all computer diary notes relating to Guy Thomas.
- If not contained within the documents referred to above, the full name, address, email address and telephone number of Guy Thomas.
- Details of all conversations or phone calls made to or received from Guy Thomas in relation to 24 Witta Circle Noosa heads including names of the Richardson & Wrench employee making or receiving the call and the date and time on which all such conversations took place.
- On 29 March 2016 Mr Mandie emailed an amended application for discovery, which included references to Noosa Resort Management Pty Ltd, and added an application for production of documents by Mr Thomas, as follows:
C7 – Application for direction requiring another party produce document, thing or information.
I, Brian Mandie, Director of Jebral Nominees Pty Ltd apply to the Tribunal under section 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 for a direction requiring Noosa Resort Management Pty Ltd, Peter Butt and Jennifer Carr of Richardson & Wrench Noosa, 23 Hastings Street, Noosa Heads Qld 4567 to produce to the Tribunal the documents and information referred to below and to provide copies to the Applicant and the Chief Executive.
With respect to the booking of Guy Thomas for the period 21 August 2015 (arrival) to 28 August 2015 (departure) for 24 Witta Circle Noosa Heads:
Without redaction, copies of the following documents:
- All the trust account records of NRM relating to the deposit of $1,100 paid by Mr Thomas for 24 Witta Circle Noosa Heads and the subsequent payment of that deposit to a person other than the Applicant.
- All emails from NRM to Mr Thomas and from Mr Thomas to NRM from 1 February 2015 to 31 August 2015.
- The Terms and Conditions attached to the email dated 18 February 2015 from Carly Rankin of NRM to Mr Thomas.
The full name, address, email address and telephone number of Mr Thomas.
C8 – Application for order requiring person to produce document or thing.
Jebral Nominees Pty Ltd applies to the Tribunal under section 63(1) of the Queensland Civil and Administrative Tribunal Act 2009 for an order requiring Guy Thomas [address to be inserted when known] to produce to the Tribunal the documents referred to below and to provide copies to the Applicant, the Chief Executive and NRM.
With respect to the booking of Guy Thomas for the period 21 August 2015 (arrival) to 28 August 2015 (departure) for 24 Witta Circle Noosa Heads
Without redaction copies of the following documents:
- All emails from NRM to Mr Thomas and from Mr Thomas to NRM from 1 February 2015 to 31 August 2015.
- The terms and conditions attached to the email dated 18 February 2015 from Carly Rankin of NRM to Mr Thomas.
Material from the agents
- The agents have objected to producing the documents and things requested by Jebral. They submit that the requested documents regarding the Thomas booking have already been disclosed in the statements of Jennifer Carr dated 4 March 2016 and 12 April 2016. They further submit that they are not in possession of any further documentation that is directly relevant to the allegation in issue in the proceedings.
- Jebral submits the agent’s statement that it has made a thorough search and that there are no further documents, is incorrect, and that they continue to be in possession of documents.
- Jebral summarises the essential basis of its application on the following basis:
6. The Applicant has no confidence in the agent’s assessment of what may or may not be relevant, and as such continues to seek orders requiring disclosure of all correspondence with Mr Thomas for the relevant time period and complete disclosure of relevant trust account records.
- The statement of Ms Carr dated 12 April 2016 says as follows:
- (1)On 8 April 2016, I caused a thorough search of Noosa Resort Management Pty Ltd’s (NRM) records pertinent to the Thomas booking of 24 Witta Circle to occur. As a result of the search, the only document remaining to be disclosed is a copy of the Terms and Conditions of NRM applicable between the periods 22 January 2015 to 25 September 2015. (Attachment 1 is a copy of the terms and Conditions).
- (2)NRM, myself and Mr Butt hold no other documentation relating to the Thomas booking of 24 Witta Circle.
- The application is brought under s 62(3) of the QCAT Act which provides for an order for provision of a document or thing, but does not identify a basis for production:
(3) Without limiting subsection (1), the tribunal may give a direction under this section requiring a party to the proceeding to produce a document or another thing, or provide information to –
(a) the tribunal; or
(b) another party to the proceeding.
- Section 63(1) of the QCAT Act provides as to disclosure of material from third parties, and more completely describes the basis for making such an order:
63 Obtaining a document or thing from third parties
- (1)The tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document or other thing relevant to the proceeding to produce the document or thing to –
- (a) the tribunal; or
- (b) a party to the proceeding.
- The expression in s 63(1) “who has, or is likely to have” is instructive, and assists in interpreting the requirements for production by a party to another party. I consider that the expression is similarly applicable to consideration of applications under s 62(3).
- The effect of these provisions is that the Tribunal will only order a party to produce documents where it can be shown that there are documents which are, or are likely to be, in existence, and are relevant to the proceedings.
- The Agents have, through Ms Carr’s statements, provided written evidence that no further documents exist to be produced. Jebral will have the opportunity to cross-examine the Agents if the matter proceeds to a hearing, in order to test the validity of their evidence.
- The Tribunal has before it written evidence that no further documents are held by the agents to be produced. Jebral does not believe that, and has suspicions that other documents exist, but does not identify them except in limited instances.
- Jebral has positively identified an email and a group of documents which it says are in existence.
- Jebral identifies an email sent by Mr Thomas to the agent on 4 March 2016 which refers to an earlier email sent by the agent on 19 July 2015. It submits that it must be relevant as the agent refers to conversations that took place on 19 July 2015.
- It submits that there must be other emails or documents that have not been disclosed based on the agent’s assessment of relevance. As there is no evidence of other actual emails, I will not order that emails in general be provided. I will order that the specified email be produced if it is in the power or possession of the agents.
- Jebral refers to the Attachment 5 of the statement of Ms Carr dated 4 March 2016 and submits that it evidences a trust account receipt numbered 229019 dated 18 February 2015 for the amount of $1,100 which has not been disclosed. Jebral notes that the Trust Account Cashbook history for 4PARK for 18 February 2015 has been produced, but not the entry for 24 Witta dated 18 February 2015.
- Jebral seeks production of all the trust account records of Noosa Resort Management Pty Ltd relating to the deposit of $1,100 paid by Mr Thomas for 24 Witta Circle Noosa Heads and the subsequent payment of that deposit to a person other Jebral Nominees Pty Ltd. As these are identified documents, I will order production of these if they are in the power or possession of the agents.
- In the absence of satisfactory evidence that other documents do exist or are likely to exist, and in the face of written denials that any exist, the Tribunal cannot be satisfied that they exist, and cannot make an Order for production of documents that are only surmised to exist.
- I will order that the email referred to, and the Trust Account materials be provided.
- I make no further order otherwise as to production of further material by the agents.
Material from Mr Thomas
- Jebral submit that the agents are obstructing its ability to contact Mr Thomas to gain evidence in support of its case. It is seeking that Mr Thomas be ordered to produce his correspondence with the agents.
- The agents object to providing personal and private information of Mr Thomas as not reasonably required to decide the claim, and submit that they have an obligation to keep the private information of their client confidential, and that disclosing the information will not affect the outcome in these proceedings.
- The agents also object to the application for Mr Thomas to provide documents on the basis that it has no relevance to the proceeding.
- There is no property in a witness. Any party is free to approach a witness to seek to obtain a Statement of Evidence. In order for Jebral to be able to approach Mr Thomas, it must obviously have his contact details. It will then be a matter for Mr Thomas whether he wishes to provide a Statement to Jebral or not.
- The need for an order of this type was discussed in Smith v Queensland Building Services Authority where the learned Senior Member said that all other means of obtaining the documents should be explored first:
Section 63(4) of the QCAT Act states that, in making an order for production of documents, the tribunal must consider whether it is appropriate to make an order requiring the party to pay the costs of with its obligation under s 63(4) unless and until Mr Smith has communicated with Synergy Accountants, ascertained whether the documents are readily available and, if so, what costs are involved in their retrieval. I do not think that a party should have resort to an application for a notice under s 63(1) unless and until it has exhausted all other means of obtaining the documents.
- As Jebral has not yet approached Mr Thomas, it is premature to determine whether he advises that he holds any documents that are relevant, and is unwilling to provide those to Jebral. It may be that Mr Thomas does not have any correspondence he had with the agents.
- It is not appropriate to make an order compelling Mr Thomas to provide documents, when the existence of those documents has not been established, and it has not determined whether Mr Thomas is willing to provide those documents without an order.
- I will order that the agents provide the contact details requested for Mr Thomas which are known to them, so that Jebral can approach him as a witness.
- Jebral is also seeking copies of all emails from NRM to Mr Thomas and from Mr Thomas to NRM from 1 February 2015 to 31 August 2015. It submits that those documents are relevant and that “they may also reveal if there are any other emails not disclosed”.
- The Tribunal will only order specific documents, and will not allow an application that it is too wide or is seen as ‘fishing’.
- The submission of Jebral indicates that it is not aware if any such emails in fact exist, as it submits that they ‘may also reveal’ relevant emails. That is an insufficient basis to ground an order of the type sought.
- I do not make any order as to production of documents by Mr Thomas.
- I order as follows:
- (1)Peter Butt and Jennifer Carr are granted leave to be represented in the proceedings by Garland Waddington Solicitors.
- (2)Noosa Resort Management Pty Ltd, Peter Butt and Jennifer Carr are to provide to Jebral Nominees Pty Ltd and to the Chief Executive, the full name, address, email address and telephone number of Guy Thomas known to them for Mr Thomas, by 4pm on 30 May 2016.
- (3)Peter Butt, Jennifer Carr and Noosa Resort Management Pty Ltd are to provide to Jebral Nominees Pty Ltd and to the Chief Executive, copies of the following documents if they are in their power or possession:
- an email sent by Mr Thomas to Noosa Resort Management Pty Ltd on 4 March 2016 19 July 2015.
- all the trust account records of Noosa Resort Management Pty Ltd relating to the deposit of $1,100 paid by Mr Thomas for 24 Witta Circle Noosa Heads and the subsequent payment of that deposit to a person other than Jebral Nominees Pty Ltd.
- (4)The applications of Jebral Nominees Pty Ltd filed on 7 January 2016 (which were supplemented on 29 March 2016) for directions requiring another party to produce a document, thing, or information, are otherwise dismissed.
Amended Reasons issued 7 June 2016
 Chief Executive’s Submissions filed 21 January 2016, para 12.
 Peter Butt, Jennifer Carr and Katie Wood were added as a party to the proceedings by a Direction made on 19 November 2015.
 Submissions of Respondents 12 April 2016, para 1.1.
 Submissions of Applicant 19 April 2016, para 3, page 1.
 Submissions of Applicant 19 April 2016, para 3, page 4.
 QCAT Act s 100.
 Submissions of respondent 12 April 2016, para 1.3.
 Submissions of respondent 12 April 2016, para 1.6.
 Submissions of Applicant 26 April 2016, para 1.
 Submissions of Applicant 26 April 2016, para 2.
 Submissions of Applicant 26 April 2016, para.
 Submissions of Applicant 26 April 2016, para 9.
 Submissions of respondent 12 April 2016, para 1.8.
 Submissions of respondent 12 April 2016, para 2.2.
  QCAT 66.
 Cowley v Queensland Building Services Authority  QCAT 98.
- Published Case Name:
Jebral Nominees Pty Ltd v The Chief Executive, Department of Justice and Attorney-General, Katie Wood, Peter Charles Butt, Jennifer May Carr and Noosa Resort Management Pty Ltd
- Shortened Case Name:
Jebral Nominees Pty Ltd v The Chief Executive, Department of Justice and Attorney-General
 QCAT 118
24 May 2016