Parcelvalue SA v Ozepost Pty Ltd
[2015] QCAT 463
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- Unreported Judgment
- Parcelvalue SA v Ozepost Pty Ltd[2015] QCAT 463
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Parcelvalue SA v Ozepost Pty Ltd[2015] QCAT 463
Parcelvalue SA v Ozepost Pty Ltd[2015] QCAT 463
CITATION: | Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost Pty Ltd [2015] QCAT 463 |
PARTIES: | Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd ABN 45105945159 t/as Credit Collection Services Australia |
v | |
Ozepost Pty Ltd ACN 083046806 (Respondent) |
APPLICATION NUMBER: | MCDO50688-15 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATES: | 26 August 2015; 23 September 2015 |
HEARD AT: | Beenleigh |
DECISION OF: | Adjudicator Alan Walsh |
DELIVERED ON: | 29 September 2015 |
DELIVERED AT: | Beenleigh |
ORDERS MADE: |
|
CATCHWORDS: | MINOR DEBT CLAIM – STANDING TO SUE – JURISDICTION - contract for international freight delivery - where Applicant registered and trading in Switzerland - where Respondent registered and trading in New South Wales - where contract entered into in Switzerland - where invoices for services payable in Switzerland - where European freight delivery to Australian States - where no part of Applicant’s cause of action arose in Queensland - where Applicant commenced proceedings in QCAT – where no connection with Queensland other than collection agent’s principal place of business - where no privity of contract between agent and Respondent - where agent had no standing to sue - where Respondent’s liability to Applicant undisputed - where no response to minor debt claim filed - where Respondent applied for jurisdictional dismissal – where interlocutory application refused for insufficiency of evidence – where standing and jurisdiction questionable at hearing – where discretion not to exercise jurisdiction - where QCAT lacked jurisdiction - alternative jurisdictions - reciprocal enforcement of international decisions Acts Interpretation Act 1954 (Qld), s 35 Constitution Act 1867 (Qld), s 2 Constitution of Queensland 2001 (Qld), s 8 Corporations Act 2001 (Cth) Foreign Judgments Act 1991 (Cth), s 5, s 6 Foreign Judgements Regulations 1992 (Cth), reg 3, reg 4, reg 5, read with schedule Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 9, s 11, s 12, s 13, s 28, s 33, s 43, s 46, s 47, s 52, s 93, s 131 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), div 2, pt 3, pt 8, r 45, r 60 Uniform Civil Procedure Rules 1999 (Qld), pt 6, r 33, r 35 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 25, s 206 Commissioners of Stamps (Qld) v Arnold Wienholt (1915) HCA 49; 20 CLR 531 Hartley v Bennette [2014] QCAT 091 Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
APPEARANCES:
APPLICANT: | Gerard Burns, Director – Credit Collection Services Australia as Australian agent for Parcelvalue SA |
RESPONDENT: | No appearance. |
REASONS FOR DECISION
- [1]Questions of jurisdiction arise in QCAT minor civil dispute litigation from time to time. The Tribunal is a creature of its own statute. Unlike a superior Australian Court, it has no inherent jurisdiction. The statutory imperative that QCAT act with as little technicality as the requirements of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) permit[1] is sometimes frustrated by jurisdictional technicality, as is exemplified in this case.
- [2]The Tribunal must dismiss a claim which is beyond its jurisdiction. Without jurisdiction, a decision made on the merits of a dispute is a nullity and may have unfortunate consequences. For example, a Statutory Demand issued to a corporation pursuant to the Corporations Act 2001 (Cth) founded on an invalid QCAT decision may be set aside. An application to liquidate a company for non-compliance may be struck out with cost orders against the creditor. Similarly, a creditor’s Bankruptcy Notice and associated proceedings against an individual.
The Facts
- [3]
- [4]The First Applicant, Parcelvalue SA, is a Swiss Company registered on the commercial register of Canton Ticino with Identification Number CHE-197.300.788, carrying on business as a freight forwarder[4] at Via Industria 7 Cadempino, 6814, Switzerland.[5] Affiliates of Parcelvalue have offices in Italy.[6] As with most companies these days, Parcelvalue’s services are offered on the internet.[7]
- [5]Parcelvalue has never carried on business in Australia. Therefore, it is not required to be registered as a recognised foreign corporation here. Registration of a foreign corporation in Australia is not a prerequisite for commencing legal proceedings. Suing in an Australian jurisdiction would not amount to carrying on business here.
- [6]The Respondent, Ozepost Pty Ltd, also a freight forwarding company, is incorporated, registered, and carries on business at Hornsby, in New South Wales, Australia. Its registered office is at Parramatta.
- [7]In the course of a business trip to Europe in 2013, Phillip Abadee, Director of Ozepost, attended a get to know you meeting with Aurelio Balconi, President of Parcelvalue, at its affiliate’s Milan office in Italy, and discussed the services offered by Parcelvalue. In late July 2013, Ozepost selected Parcelvalue for freight forwarding from Europe. Mr Abadee emailed Ozepost’s first order to Parcelvalue’s Mr Balconi at his Swiss email address on 26 July 2013.[8]
- [8]Parcelvalue’s contractual obligation was, as instructed from time to time, to pick up freight from nominated European suppliers,[9] arrange customs clearance, ship and deliver the freight to customers of Ozepost in Australia, and provide support in the course of the shipment, for a fee.[10] Ozepost’s contractual obligation was to pay Parcelvalue’s invoices in Euro to a nominated bank account in Switzerland for the services.
- [9]Ozepost always gave instructions to Parcelvalue by email.[11] Parcelvalue billed Ozepost by email for its services. Invoices were payable in Euro to the Respondent’s Bank, UBS, at Piazza Col.C. Bernasconi 5, 6830 Chiasso, Switzerland and Ozepost settled invoices by international transfer of funds. Business was ‘solid’ until October 2014 when Ozepost began delaying payments and then stopped paying altogether.
- [10]In December 2014, Mr Balconi told Mr Abadee that Parcelvalue would no longer provide services to Ozepost until it paid outstanding invoices dated 31 August, 30 September and 31 October 2014 for 2019.99, 2636.28 and 794.48 Euro respectively, in total 5,450.75 Euro,[12] for freight delivered to customers of Ozepost in Western Australia, South Australia, Tasmania, Victoria, New South Wales, and, in one instance[13] only, Queensland.[14] The invoices were never paid.
- [11]Mr Balconi contacted one of Ozepost’s Australian customers, Knit Direct Pty Ltd, of Albany, West Australia, regarding Parcelvalue’s last delivery to Australia in October 2014 and was told that Ozepost’s invoice to Knit Direct for that delivery had been paid in full.[15] Mr Abadee told Mr Balconi that Ozepost had transferred 2019.99 Euro (AUD$3,012.91) to Parcelvaue on 3 December 2014. That was untrue. Parcelvalue’s Bank informed Mr Balconi that no such transfer happened.[16]
- [12]Subsequently, Mr Abadee said that a major client which owed Ozepost a lot of money had closed. This was the reason Parcelvalue’s invoices had not been paid.[17] Ozepost did not ever deny liability to Parcelvalue. It seems that Ozepost has no intention of settling its indebtedness and, as will be seen from what follows, took the technical point that QCAT had no jurisdiction in this matter to further frustrate Parcelvalue.
The Proceedings
- [13]Parcelvalue and its Australian debt collection agent, Credit Collection Services Australia (‘CCSA’), as Applicants, filed a Minor Debt Claim with QCAT at its Beenleigh Registry on 27 May 2015 for recovery of Ozepost’s debt reckoned in Australian dollars applying the Euro/Dollar exchange cross rate at the time. Ozepost was served by mail at its registered office in New South Wales.
- [14]In response, Ozepost filed a miscellaneous application on 2 July 2015 for jurisdictional dismissal, asserting, as in fact was the case, that no trading, business meetings or any other commercial interaction occurred in Queensland. In turn, on 15 July 2015, Parcelvalue and CCSA filed an application to dismiss the Ozepost dismissal application, on the basis that the agent’s head office was located at 31 Turner Avenue, Yatala, Queensland 4207 with the nearest QCAT Registry being at Beenleigh.
- [15]Ozepost’s application for jurisdictional dismissal was refused. Adjudicator Crawford ruled that there was insufficient evidence to determine the issue and ordered the dispute be set down for hearing. Therefore, no issue estoppel arose and the question of jurisdiction required consideration again at the hearing.
- [16]Parcelvalue is entitled to judgment against Ozepost on the undisputed facts provided that QCAT has jurisdiction to entertain the proceedings, though there is also a question of legal standing to sue which was not raised in Ozepost’s dismissal application. I will deal with the issue of standing first.
CCSA and standing
- [17]In my opinion, CCSA cannot sue Ozepost in these proceedings. It was not privy to the contract with Parcelvalue[18] and it has no statutory standing to sue as agent.[19] Parcelvalue could not unilaterally vary the contract to require that Ozepost pay CCSA in Queensland in discharge of its indebtedness and it did not purport to do so either.
- [18]In suing as co-applicant with Parcelvalue, CCSA was perhaps anticipating a challenge to jurisdiction on the very basis that Ozepost later asserted. At the hearing, Mr Burns said that claims for overseas clients of CCSA made this way had succeeded previously.
- [19]In my opinion, CCSA’s business domicile at Yatala in Queensland could never constitute a relevant connection with Queensland insofar as Parcelvalue’s cause of action was concerned because it was not Parcelvalue’s place of business. Neither could historical success in similar cases confer legal standing and jurisdiction where none otherwise existed.
- [20]CCSA’s only appropriate involvement in these proceedings is representational and then only with leave of the Tribunal to represent Parcelvalue,[20] not as a party. I grant that leave now, retrospective to the commencement of the proceedings in QCAT. There cannot be any objection to Parcelvalue nominating its agent’s address for service in the proceedings.
- [21]In summary, CCSA’s application against Ozepost must be dismissed because it has no standing to sue, whether as agent or in its own right.
Parcelvalue’s standing to Sue
- [22]Parcelvalue, on the other hand, does have legal standing to sue Ozepost in Australia, subject always to jurisdiction. Just as, by way of analogy, a foreign individual could come to the jurisdiction and commence proceedings in a court of law say for damages for breach of contract or negligence where the cause of action arose here.
- [23]
Jurisdiction
- [24]Hartley v Bennette[23] is QCAT authority for the proposition that mere residence of an Applicant in Queensland suffices to found personal jurisdiction in a minor civil dispute claim.
- [25]In that case, Member Gordon found that it mattered not that all the elements of the cause of action arose wholly within another State of Australia so long as the Applicant was resident in Queensland when proceedings commenced. Residence alone at the time of commencing proceedings conferred jurisdiction on QCAT to hear and determine a claim that otherwise had no connection with Queensland whatsoever.
- [26]In the present case, Parcelvalue cannot establish corporate commercial domicile[24] in the State of Queensland or any other relevant connection for that matter. As I have already found, CCSA’s agency of itself is not relevant. Therefore, the decision in Hartley’s case is distinguishable having regard to the facts in Parcelvalue.
- [27]However, it seems to me that a constitutional issue arises in the factual context of this case, that is, whether, and to what extent, the QCAT Act applies extraterritorially.[25] There is a presumption against extraterritoriality unless expressly or impliedly extended.[26] Absent extraterritorial effect, Queensland statutes are “...limited in (their) operation to the State of Queensland.”[27] That is the case here.
- [28]In the Magistrates, District, and Supreme Courts of Queensland, a person must start a proceeding 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, or where land is located where recovery of possession is sought, or where the parties consent in writing.[28]
- [29]Curiously, there is no similar provision in the QCAT rules,[29] however that, of itself, does not imply extraterritorial application of the QCAT Act because the QCAT rules are subordinate and procedural. Replication of rule 35 of the Uniform Civil Procedure Rules in the QCAT rules would provide clarity for litigants and is desirable, however that is a matter for the legislature.
Place of Contracting
- [30]On the facts and evidence, I find on the balance of probabilities that the contract between Parcelvaue and Ozepost was formed in Switzerland and is governed by Swiss Law for the following reasons.
- [31]Although Mr Abadee of Ozepost first met Mr Balconi of Parcelvalue at an affiliate office in Milan, Italy, this was a pre-engagement event. Ozepost’s decision to use Parcaelvalue’s services was subsequently communicated to Parcelvalue in Switzerland in acceptance of the offer of services advertised on Parcelvalue’s website. All of Ozepost’s orders were emailed to Parcelvalue in Switzerland. Parcelvalue accepted the orders by arranging the freight deliveries to Australia. All invoices to Ozepost for Parcelvalue’s services were payable in Switzerland in Euro.
Appropriate Forum
- [32]Therefore, a Swiss Court is the most appropriate forum in which to commence proceedings against Ozepost. Switzerland and Australia, amongst other countries, have reciprocal arrangements for enforcement of foreign judgments in each other’s courts.[30] Parcelvalue may sue and obtain judgment against Ozepost in Switzerland, then register the judgment for enforcement in New South Wales, Australia.
- [33]Another alternative is that Parcelvalue consider whether a claim may be justiciable in NCAT.[31] New South Wales is the State of Ozepost’s commercial domicile.
- [34]If my finding that the contract in this case was formed in Switzerland were incorrect, the only other place at which it can have come into being was at Hornsby in New South Wales. If so, then it seems to me that Parcelvalue could sue Ozepost where it finds it,[32] however I should not be taken as advising or recommending that course. It is a matter for Parcelvaue and its advisors.
Relevant Person
- [35]Taking these findings and considerations into account, I return to the question posed earler: is Parcelvalue a ‘relevant person’ who, without more, may establish QCAT jurisdiction simply by filing its application in QCAT as it did?
- [36]There is no doubt that Parcelvalue is a (corporate) person to whom a debt payable in Switzerland is owed. But should the definition of a relevant person be interpreted so broadly as to make any citizen of the world, anywhere in the world, corporate or otherwise and regardless of where the elements of the cause of action arose, a relevant person? I think not, because that would fly in the face of the presumption against legislative extraterritoriality.
- [37]Therefore, QCAT has no jurisdiction in this case.
Discretionary Jurisdiction
- [38]In case I am wrong in that conclusion, I note that section 12(1) of the QCAT Act confers discretion to exercise jurisdiction in a minor civil dispute. Jurisdiction is not automatic.
- [39]I would be against exercising jurisdiction on the facts of this case given the absence of any relevant connection to Queensland[33]. Litigants need to be encouraged to bring their claims in the most appropriate jurisdiction; otherwise forum shopping would proliferate with chaotic consequences.
- [40]The outcome in this case will have been different if, at least, Parcelvalue was registered as a recognised company in Australia with a commercial presence in Queensland or Ozepost’s commercial domicile were in Queensland, which is not the case. Clearly, the claim would be justiciable in QCAT in that event.
- [41]Query whether CCSA may have succeeded in this application if there had been a valid assignment of Parcelvalue’s claim to CCSA, notice of which was given to Ozepost prior to commencing these proceedings. In principle, CCSA would then have standing to recover the debt. Again, I should not be taken as advising or encouraging that course and outcomes will always depend upon particular facts.
- [42]I therefore order that:
- Commerce Systems Pty Ltd t/as Credit Collection Services Australia has retrospective leave to represent Parcelvalue in this proceeding.
- The application of Commerce Systems Pty Ltd t/as Credit Collection Services Australia is dismissed.
- The application of Parcelvalue SA is dismissed.
Footnotes
[1] QCAT Act, s 28(3)(d).
[2] In compliance with procedural directions made on 26 August 2015.
[3] No Response to the Minor Debt Claim was filed because of the objection to jurisdiction.
[4] Delivered by IT application, see https://www.linkedin.com/company/parcelvalue-sa.
[5] Affidavit of Aurelio Balconi, President, sworn in Switzerland on 7 September 2015, paras [1] and [3].
[6] See http://www.parcelvalue.eu/en/affiliates.
[7] http://www.parcelvalue.eu/en.
[8] Mr Balconi’s affidavit, para [5] and see exhibit A1 to the affidavit.
[9] Principally in Italy.
[10] Affidavit of Aurelio Balconi, paragraphs 6 and 7.
[11] Ibid, para 9.
[12] Ibid, para 8 and exhibits B, C and D.
[13] To Tangled Yarns, Newstead as per exhibit C1.
[14] Affidavit of Aurelio Balconi, see exhibits B1, C1 and D1 respectively.
[15] Ibid, para [12].
[16] Ibid, para [11] and the emails dated 3 and 23 December 2014 following exhibit H.
[17] Ibid, see Respondent’s email 23 December 2014 following exhibit H.
[18] Unlike an agent which is privy under a nominee contract and has legal standing.
[19] For example, a real estate agent has standing to sue for a landlord in a QCAT residential tenancy application: see ss 25 and 206 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
[20] QCAT Act, s 43(1) – (4).
[21] QCAT Act, s 12(4)(a).
[22] Ibid, s 11.
[23] [2014] QCAT 091.
[24] The equivalent of personal residence.
[25] Constitution Act 1867 (Qld), s 2; Constitution of Queensland Act 2001 (Qld) s 8, and Acts Interpretation Act 1954 (Qld), s 35(1)(b).
[26] Commissioners of Stamps (Qld) v Arnold Wienholt (1915) HCA 49; 20 CLR 531 (2 August 1915).
[27] Ibid, per Isaacs, Gavan Duffy and Powers JJ at page 4.
[28] Uniform Civil Procedure Rules 1999 (Qld), r 35.
[29] Except in respect of residential tenancy claims where rule 8 requires that the claim be filed only in the registry closest to the rental premises or the Brisbane Registry.
[30] Foreign Judgments Act 1991 (Cth), ss 5 and 6; Foreign Judgments Regulations 1992 (Cth), regs 3, 4 and 5, read with the Schedule.
[31] NSW Civil and Administrative Tribunal, the website address for which is http://www.ncat.nsw.gov.au/.
[32] Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491.
[33] Both as a matter of discretion and applying the ‘clearly inappropriate forum’ test in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.