McBurnie v Boctor[2021] QCAT 349

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Applicant’s Consumer Claim

1. [1]
   Ms McBurnie is suing Dr Raymond Boctor in these minor civil dispute – consumer dispute proceedings, filed on 9 August 2021, for compensation for damages allegedly suffered as a result of dental treatment at his clinic in Bundall in the period 2016 to 2018, said to have caused a condition described as a “Class II Division 1 Malocclusion 6mm overjet” requiring revision dentistry. Ms McBurnie claims $25,000.00, the statutory monetary limit of this jurisdiction excluding interest and outlays for filing and service costs, plus outlays.

No Response

2. [2]
   The QCAT Act and Rules do not require that a Response to a consumer claim must be filed and served,^[1] unfortunately because consumer claims can be factually and legally complex. The current procedure is that a consumer states a case against a trader in Form 1 Application filed with the Tribunal that is then served on a Respondent. The trader’s defence may remain unknown until the hearing. Unless, that is, the Tribunal meanwhile makes directions for filing of evidence and documents before the hearing day, or something else occurs.
3. [3]
   Not requiring the filing of a Response in consumer law claims hardly promotes early and economical resolution of disputes.^[2] It encourages surprise and tends to compromise procedural fairness.

Dismissal Application

4. [4]
   Dr Boctor has not filed a Response.
5. [5]
   He has however responded to Ms McBurnie’s claim by asking the Tribunal to dismiss it for lack of jurisdiction. He filed detailed written submissions with the Tribunal on 7 September 2021, prepared on his behalf by the Australian Dental Association (QLD Branch) (ADAQ). QCAT Registry emailed Ms McBurnie a copy of Doctor Boctor’s submissions on 8 September 2021, in terms of orders I made on the papers that day.
6. [6]
   One of those orders required that Ms McBurnie file and serve written submissions by 4 pm on 15 September 2021, showing cause why her Form 1 Application for minor civil dispute – Consumer dispute should not be dismissed for lack of jurisdiction, because the Respondent is not a trader and the Tribunal has no jurisdiction to entertain claims for personal injuries.
7. [7]
   Ms McBurnie applied for an extension of the date for filing submissions. On 16 September 2021, I ordered an extension to 2 pm on 21 September 2021 and that the question of jurisdiction be decided on the papers on 22 September 2021. I then reserved my decision.
8. [8]
   I have carefully considered the submissions filed by each side. Ms McBurnie’s submissions were received by the Coolangatta Registry by email from her on 23 September 2021.

Respondent’s Submissions

9. [9]
   Summarised and abbreviated by me as appropriate for purposes of these reasons, Dr Boctor submits that:

   1. (a)
      He is registered as a general dentist with AHPRA, holds the degree Bachelor of Dental Science (Hons) awarded in 2000, and has competently and professionally practised dentistry for over 20 years. He has an unblemished professional record. This is all confirmed in the Australian Health Practice Regulation Agency (AHPRA) Certificate of Registration of Practitioner filed with the submissions.
   2. (b)
      He administered dental services and supplied braces in treating Ms McBurnie as a patient, the provision of which services and supply falls within the description of “restricted dental acts” within the meaning of that phrase in section 121(2) of the Health Practitioners Regulation National Law Act 2009. Such services must be carried out by a dentist. They include correcting malpositions of the human teeth or jaw or associated structures.
   3. (c)
      He is therefore not a “trader” as that term is defined in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) because he acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade and commerce.
   4. (d)
      To be a registered in Australia, a dentist must meet the Dental Board’s Registration Standard, which includes the completion of an approved program of study, meeting national registration standards, a national code and guidelines (including the Dental Board’s Code of Conduct), maintaining practice recency, carrying out and recording continuing professional development, and complying with audits to check renewal declarations.
   5. (e)
      The professional services rendered by him to Ms McBurnie involved intellectual activity provided for reward requiring professional standards of competence, training and ethics, enforced by accreditation, accompanied by evidence and qualification.
10. [10]
    Therefore, Dr Boctor says, the Tribunal cannot adjudicate the dispute.
11. [11]
    He points to Tribunal decisions in McDonald v Kenmore Podiatry Pty Ltd [2012] QCAT 126 (McDonald) and Early Group Valuers v Cavillaro [2010] QCATA 65 (Cavillaro), which followed the approach in McDonald. He refers specifically to the following excerpts from Cavillaro:

    1. (a)
       at [17], that “(I)f the exemption in the definition of trader in the QCAT Act is to have any application at all, it must operate to exclude professionals whose disciplines are not commonly regarded as within the field of trade or commerce.”
    2. (b)
       at [18], that the working definition of “profession” is an activity that “… would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence and qualification.”^[3]

Applicant’s Submissions

12. [12]
    Also summarised and abbreviated by me as appropriate for the purpose of these reasons, Ms McBurnie’s submissions are that:

    1. (a)
       She is a “relevant person” making a claim against a trader arising out of a contract between them.
    2. (b)
       QCAT “must apply ACL” legislation.
    3. (c)
       QCAT has “current original jurisdiction”.
    4. (d)
       She requires “an order for specialist adjudication for undertaking QCAT legislation”.
    5. (e)
       She is not making a personal injury claim.
    6. (f)
       Dr Boctor is registered as SMILECENTRE PTY LTD and also trades as Boctor Dental Smile Centre “so he is not considered a specialist for orthodontic braces, an orthodontist is”.
    7. (g)
       AHPRA “does not apply as their unconscionable conduct by definition, is different and they do not act on my behalf for collecting a refund …”.
    8. (h)
       AHPRA “claimed they would collect any information required on my behalf and a review wasn’t available from Ombudsman twice and I wasn’t aware of the extent of the damage …”
    9. (i)
       “I do not wish to answer Dr Boctor’s lawyer as gross negligence is not an insurable event and I am not pursuing a professional negligence claim but rather a minor debt (sic) for maximum monetary amount of $25,000 and besides, I attached the results of ASIC search … (etc.) and “BESIDES AN INDIVIDUAL CAN BE SUED FOR A MIOR (sic) DEBT COURT.
    10. (j)
        “I have compiled professional opinions …”
    11. (k)
        “The ACL aims to protect consumers …”

Analysis/Discussion

13. [13]
    I will address Ms McBurnie’s submissions first.
14. [14]
    Neither AHPRA nor Smile Centre Pty Ltd is a Respondent in these proceedings, so her allegations concerning them are irrelevant to the question of jurisdiction that I must decide. Also irrelevant is Ms McBurnie’s allegation that gross negligence (allegedly his) is an uninsured event for Dr Boctor. Her reference to the Ombudsman is also irrelevant.
15. [15]
    Undoubtedly, the Australian Consumer Law aims to protect consumers, as Ms McBurnie submits. Also, QCAT must apply the ACL as she says, but (she omits to say) only where the Tribunal has jurisdiction to do so. Neither the consumer protection objective of the ACL nor the opinions to which she refers, nor her reference to “current original jurisdiction”, addresses the question of jurisdiction raised by Doctor Boctor that I must rule on.
16. [16]
    Adjudicators, of course, are specialists in their jurisdiction. Again, that is not relevant to whether the Tribunal has jurisdiction in this case.
17. [17]
    Ms McBurnie’s claim for payment of $25,000 is not one for a debt owed, as she submits. There is no debt that Dr Boctor owes her, nor she, he.
18. [18]
    Her claim for a dental fee refund, considered in isolation, may be characterised as a liquidated demand of money because it is ascertained and unapportioned, but it depends for its success on her consumer claim for compensation succeeding. It is, as will appear shortly, one of a number of heads of claim for components making up $25,000 claimed under consumer law.
19. [19]
    In Hashfield v Gold Coast City Council [2020] QCATA 36 at [69], a learned Member of the Appeal Tribunal, said as follows:

I conclude therefore, that for the tribunal to have jurisdiction in this area, the application overall must be to recover a debt or liquidated demand of money. If any substantial part of the claim is not to recover a debt or liquidated demand of money and is not otherwise within the jurisdiction of the tribunal,^[4] then there is no jurisdiction to hear the application.

20. [20]
    I respectfully agree with that conclusion. It applies in principle in the present case.
21. [21]
    Ms McBurnie must establish that Dr Boctor is a trader, whose profession and expertise is within the definition of that term in the QCAT Act for purposes of the consumer claim that she makes. If, and only if, she does so, will the Tribunal have jurisdiction to adjudicate the dispute. In that event, she may go on to prove her allegation that Dr Boctor breached the Australian Consumer Law as alleged, that she suffered loss and damage in the respects that she alleges, and that she is entitled to compensation for her losses as claimed.
22. [22]
    I will return to the “trader” issue a little later.
23. [23]
    I reject Ms McBurnie’s submission that she is not making a claim for personal injury. The overall ambit of her claim (including personal injury) appears in paragraphs 36 and 37 of the attachment to her Application. She swears (amongst other things) to the truth of its contents in her affidavit sworn 5 August 2021 filed in the proceeding. She refers:

    1. (a)
       in paragraph 36, to requesting “a refund for $7,600 annexed D3 as minimum sum compensation” (sic) and that “I would like the QCAT to order this or pay as compensation for damages annexed as F. Subtotal $15,892.77, plus $3000 each tooth damaged from tools and Dr Boctor grinding 3mm off central incisor on 18 September 2018 and 6mm overjet, teeth leaning forwards as a breach of Contract”; and
    2. (b)
       in paragraph 37, to - “Conclusion 3 year time limitation rapidly approaching for personal injury (sic); no more time.” 
24. [24]
    It is well established that the Tribunal has no jurisdiction to entertain personal injury claims. See Bates v Horsnell [2011] QCATA 329, per Wilson J, (then) QCAT President, at [15]-[16]. Therefore, insofar as hers is a personal injury claim for dental injury allegedly inflicted, Ms McBurnie’s claim against Dr Boctor must be dismissed for lack of jurisdiction.
25. [25]
    The narrative of Ms McBurnie claims compensation for damages for (alleged) breaches of the Australian Consumer Law (ACL) is as follows. She refers in Part C1 of her Application for minor civil dispute - consumer dispute, to section 236 of the ACL – action for damages. In part C2, she refers to “Bait selling Division 1. Chapter 2 General Protections. Section 29(1)(a); section 23(1), section 23(a), section 36, section 21, section 18, section 60, section 61, section 29, section 54, section 55, tort.” “The outcome, not as described.”
26. [26]
    Ms McBurnie’s submission that she is a “relevant person” making a claim against a trader arising out of a contract between them, is not correct. She is only a relevant person, within the meaning of those words in section 12(4)(b) of the QCAT Act, if her claim against a trader (Dr Boctor in this case) is one arising out of a contract between a consumer and “trader” as defined in Schedule 3 of the QCAT Act.
27. [27]
    I accept Doctor Boctor’s submissions in their entirety.
28. [28]
    I am satisfied that Dr Boctor acted in the exercise of a discipline that is not ordinarily regarded as within the field of trade and commerce as defined in Schedule 3 of the QCAT Act, in treating Ms McBurnie as a dental patient. I find that he is not, and never was, a “trader” in the relevant sense, as defined in Schedule 3 of the QCAT Act.
29. [29]
    Though not interpretive of the definition of “trader” in the QCAT Act, but rather of analogous provisions in the Consumer Claims Tribunal Act, 1974 (NSW) s. 4, see Holman and Ors v Deol and Ors [1979] 1 NSWLR 640 (Holman).
30. [30]
    Justice Lee of the New South Wales Supreme Court, sitting in its Administrative Law Division in that case, held that work of a professional nature in the field of trade and commerce does not extend to professions of law, medicine or dentistry for the purposes of the Consumer Claims Tribunal Act, 1974 (NSW) s. 4.
31. [31]
    Consistently with the ruling in Holman, I find in the present case that “trader” likewise does not, according to its statutory definition in the QCAT Act, extend to include the profession of dentistry. Nor does it include other health professionals such as medical doctors and specialists, radiographers, and the like.

No Jurisdiction

32. [32]
    The Tribunal therefore has no jurisdiction to entertain Ms McBurnie’s claim.
33. [33]
    In the result, dentists and other health professionals, not already included, are now added to the current list of persons who are not traders for purposes of the definition of “trader” in Schedule 3, read with section 12(1), (2), (3) and 4(b), of the QCAT Act, viz.

accountants, advocacy consultants, architects, auditors, council development approval assessment officers, costs assessors, general accounting and financial management service consultants, marine surveyors, migration agents, optometrists, parties to a franchise agreement, periodontists, town planning consultants, lawyers, real estate agents, and valuers.^[5]

34. [34]
    The enabling legislation, the Fair Trading Act 1954 (Qld) (FTA) and the Australian Consumer Law, does not purport to confer a greater jurisdiction on the Tribunal than that which it has for minor civil disputes under section 12(4)(b) of the QCAT Act, read with the definition of “trader” in Schedule 3, to which I have referred.^[6] Specifically, see section 50(1)(a)(i) of the FTA which confers jurisdiction on the Tribunal where “the subject of the proceeding would be a minor civil dispute (sic) within the meaning of the QCAT Act.”^[7]

Abuse of Process

35. [35]
    There is one other matter that I will address before concluding. I may inform myself of any matter as I see fit, am not bound by the rules of evidence, and have informed myself from the QCAT case database that:

    1. (a)
       Ms McBurnie is an experienced litigator in QCAT. She is familiar with the concepts of abuse of process and lack of jurisdiction.
    2. (b)
       She routinely obtains a fee waiver for filing applications in QCAT, thus paying nothing for using the Tribunal’s time and resources.
    3. (c)
       Claims that she has filed since 2018 include (but are not limited to) Q17/18 (Coolangatta), Q20/18 (Coolangatta), Q20/19 (Coolangatta), Q9/20 (Coolangatta), Q24/20 (Coolangatta) and Q47/20 (Coolangatta).
    4. (d)
       Ms McBurnie’s claim in Q9/20 against CHU Insurance was dismissed for lack of standing to sue.
    5. (e)
       Her claim in Q20/19 against Garcia Valsega & Another was dismissed for non-compliance with section 416 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), a prerequisite to jurisdiction.
    6. (f)
       Her claim in Q24/20 against CHU Underwriting Agencies Pty Ltd under a policy of insurance to which she was not privy was dismissed for abuse of process.
    7. (g)
       Her consumer claim against Vodafone Australia Pty Ltd in Q47/20 was dismissed for lack of merit.
    8. (h)
       Her appeal in APL131-20 against the decision in Q24/20 dismissing her claim against CHU Underwriting Agencies Pty Ltd was dismissed for non-compliance with Tribunal directions.
36. [36]
    Also, as is evidenced in a copy of a detailed letter of demand from litigation lawyers filed with her Application for consumer dispute, Ms McBurnie sought and obtained legal advice before commencing these proceedings.
37. [37]
    Filing a claim which the Tribunal has no jurisdiction to hear, as Ms McBurnie has done again in this case, is an abuse of process,^[8] and vexatious. Ms McBurnie’s claim will therefore be dismissed both for lack of jurisdiction and abuse of process. The Tribunal’s limited time and resource should not be used up freely, at the expense of genuine claimants waiting in line for their cases to be heard and decided as has occurred in this case.
38. [38]
    I find that Ms McBurnie has unnecessarily inconvenienced Dr Boctor. He has had to defend himself against claims in a Tribunal without jurisdiction to entertain them. He was put to obtaining the advice and assistance of the ADAQ. He will have had to notify his professional indemnity insurer of Ms McBurnie’s allegation of gross negligence, which she says is a policy exclusion, and, I infer, AHPRA as well.
39. [39]
    As I noted in Fisher v Wenzel & Anor [2016] QCAT 456 at [149] to [152], the Tribunal in its minor civil jurisdiction is constrained by section 102 of the QCAT Act and Rule 83 of the Queensland Civil and Administrative Tribunal Rules 2008 (Qld), so:

A vexatious and frivolous litigant can therefore make an unmeritorious application with impunity in the knowledge that the Tribunal has no power to award costs against him and compensation to his victims. There is a statutory immunity from monetary penalty.

40. [40]
    As required by section 29, I explain to the parties that section 49(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) prohibits Ms McBurnie from again applying to the Tribunal in respect of the matters the subject of this case without first obtaining the leave of the President or Deputy President of the Tribunal.
41. [41]
    I order as follows.

Orders

1. The Application for minor civil dispute – consumer dispute filed on 9 August 2021 is dismissed for lack of jurisdiction, and under section 47(1)(c) and section 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) for abuse of the Tribunal’s process.