Ritson v Ryan[2021] QCAT 364

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The following reasons were delivered orally on 21 October 2021 at the Brisbane Registry of the Queensland Civil and Administrative Tribunal (“the QCAT”):
2. [2]
   The Appeal Tribunal directed that the amended claim filed 1 November 2018 be remitted to the Tribunal to be decided on the papers with reference to all materials contained in the file and with reference to the transcripts from 14 March 2019 and 16 May 2019.
3. [3]
   The Applicant is the Assignee for four individual assignments. For consistency, the Assignors will be identified as GS, LG, BC and CA in accordance with the description adopted by the Appeal Tribunal. The Applicant brings proceedings to the QCAT on the basis of assigned rights from the Assignors. That is, the Applicant/Assignee is bringing proceedings that, on the case of the Applicant, the Assignors would have been able to bring themselves prior to the assignments.
4. [4]
   Prior to statutory intervention in all jurisdictions in Australia, the bare right to litigate could not be assigned. To do so would have raised concerns in relation to maintenance and champerty, or the making of industry out of litigation. In Queensland, section 199 of the Property Law Act 1974 (Qld) (“the PLA”) now permits assignment of a chose or thing in action. The Appeal Tribunal considered section 199 of the PLA in relation to the question of whether a chose in action or legal or other remedy could be assigned. The Appeal Tribunal stated at paragraph 62 that “There is no reason to read this restrictively and it must include the rights which the assignors may have had at the time of their respective assignments to bring a claim against [the Respondent/Obligor] in the tribunal.” This sentence just read is particularly important in the consideration of this matter. 
5. [5]
   Therefore, in considering this matter, this Tribunal must have regard to the rights which the Assignors had at the time of their respective assignments to bring a claim in the QCAT. Nemo dat quod non habet means that one cannot give what one does not have. Put another way, an assignor cannot transfer to an assignee a better or different right than he or she holds. A better right would be a right to bring an action in a jurisdiction that was not available to an assignor. This would be an additional right to sue in a new jurisdiction not available to an assignor prior assignment. To purport by assignment to enlarge the rights or even to vary the rights of an assignor in any manner whatsoever would offend the nemo dat principle that applies to any such transfer of rights.
6. [6]
   So, did the Assignors have a right to bring claims against the Respondent/Obligor in the QCAT at the time of the assignments? Or, is the Applicant/Assignee seeking to obtain a right to bring proceedings in the QCAT when that right was not available to any of the Assignors? The relevant question is not whether the Applicant/Assignee, who has a Queensland address, can bring a claim in the QCAT for a chose in action or debt but rather, did the Assignors have a right to bring their claims in the QCAT at the time of the assignments?
7. [7]
   In the deed of assignment with GS, the address of GS is stated to be in Victoria. The “new inquiry” correspondence attached to the statement of GS dated 2 July 2016 lists Victoria as the relevant location at the material time of dealings between GS with the Respondent/Obligor.
8. [8]
   In the deed of assignment with LG, the address of LG is stated to be in Western Australia. Correspondence attached to a statement of LG undated but stamped “received at hearing 16 May 2019” provides that LG was located in New South Wales at the material time of dealings between LG and the Respondent/Obligor.
9. [9]
   In the deed of assignment with BC, the address of BC is stated to be in Victoria. The “new inquiry” correspondence attached to the statement of BC dated 28 November 2015 sets out that BC was located in Victoria at the material time of dealings between BC and the Respondent/Obligor.
10. [10]
    In the deed of assignment with CA, the address of CA is stated to be in Victoria. The “new inquiry” correspondence attached to the statement of CA dated 23 November 2015 sets out that CA was located in Victoria at the material time of dealings between CA and the Respondent/Obligor.
11. [11]
    None of the Assignors nor the Respondent/Obligor were residents of Queensland. That is, none were located in Queensland at the material times of the dealings nor at the time of the assignments. There are no factual matters that relate to Queensland. There was no formation of contract in Queensland (being the point at which communication of acceptance of the offer is received). There were no dealings in Queensland. No payments in Queensland. The Assignors, the Respondent/Obligor and even the Applicant/Assignee all entered their addresses in the deeds of assignment as somewhere outside Queensland. No cause of action arose in Queensland. There is no connection with Queensland whatsoever – not even the location of the Assignee at the point in time of the assignment (in any event, it must be emphasised that the location of the Assignors, not the Assignee, is the relevant concern).
12. [12]
    In effect, the question becomes, can the QCAT be a forum for a dispute between two residents from another state when that dispute has no connection whatsoever with Queensland? This question goes beyond the consideration of whether the QCAT has federal jurisdiction for disputes between residents of different states pursuant to sections 75 and 77 of the Constitution. It is not the case here that one party was in Queensland and one party was in another state. So the factual matters here go beyond the federal jurisdictional issue considered in 2018 by the High Court in Burns v Corbett [2018] HCA 15 regarding the situation where one party is a resident in the state where a tribunal operates and one party is not. Likewise, the issue here goes further than whether the QCAT is a court of the state as considered by the Queensland Court of Appeal in 2012 in Owen v Menzies [2012] QCA 170. In the present matter, the Assignors were not resident within Queensland at any material time and there was no connection with Queensland whatsoever unlike the Burns and Owen matters. 
13. [13]
    The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) does not define the territorial jurisdictional limit of this Tribunal. Instead, section 12(1) of the QCAT Act states, in relation to Minor Civil Disputes, that “The tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under this Act, applied to the tribunal to deal with the dispute”. A relevant person means “for a claim to recover a debt or liquidated demand of money – a person to whom the debt is owed or money is payable”
14. [14]
    Section 5 of the QCAT Act states “This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.”
15. [15]
    Could it therefore actually be that the correct interpretation of section 12(1) together with section 5 means that two people from faraway lands with a dispute not factually connected in anyway whatsoever to Queensland can have their dispute dealt with in Queensland through the QCAT? The answer is no because that literal interpretation is an absurdity that would attempt to provide universal territorial jurisdiction to the QCAT. To interpret those provisions in such a way would make the QCAT, or Queensland, the destination for litigation tourism.
16. [16]
    Regarding the purposive approach to interpretation, there is nothing in the Explanatory Note to the QCAT legislation nor elsewhere that indicates any such purpose or intention (however odd it might be if such purpose or intention did exist) to establish a tribunal that universally caters for non-resident parties with disputes that are in no way connected to Queensland, notwithstanding what might be implied from the name the ‘Queensland’ Civil and Administrative Tribunal.
17. [17]
    Even if this Tribunal were to adopt the absurd interpretation and to hold that because the QCAT Act does not specify geographic jurisdictional limits and therefore two non-resident parties can travel to Queensland and have their dispute from a different jurisdiction decided in Queensland, the use of the words “may exercise its jurisdiction” in section 12(1) would require an exercise of discretion by the Member or Adjudicator regarding whether the matter should be heard in the QCAT. In considering what the ‘proper law of the contract’ was, this Tribunal could not find other than the proper law is the law as it applied in Victoria having regard to the factual circumstances of the matters. The logistics in relation to the location and the burden to parties and witnesses would, in and of itself, be sufficient to find that the QCAT is a forum non conveniens. The oft quoted test for the proper law was stated by Lord Simonds in Bonython v The Commonwealth (1950) 81 CLR 486 as "the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection". The contract was not made in Queensland. There is no close connection nor any real connection with Queensland in this matter whatsoever. At international law there is some enthusiasm for neutral third party non-connected jurisdictions to be forums for arbitration and potentially even litigation when parties expressly provide such jurisdictional clauses within their agreements. Of course, this matter is not an international law matter and there was no such jurisdictional clause included in any agreements. If, hypothetically, there was some basis for jurisdiction in the QCAT and this Tribunal were to consider whether jurisdiction ‘should’ be exercised, the answer would be, for the reasons stated, a resounding ‘no’.
18. [18]
    In the present application before this Tribunal, the only possible connection with Queensland is the Applicant/Assignee’s address contained in the Application. Could it actually be that section 199 of the PLA displaces nemo dat and permits a claim that was not available to the Assignors (nor even available to the Assignee) having regard to the addresses on the Deeds of Assignment. This interpretation would have the effect of permitting an industrious person to seek out debt claims from far away jurisdictions, literally anywhere, such claims having no connection with Queensland, and then by statutory assignment have the claims heard in Queensland and require the QCAT in a Minor Civil Dispute to apply the law as it applied in the jurisdiction where the debt arose. And then the matters are apparently to be dealt with in a quick and informal manner according to section 3 of the QCAT Act. 
19. [19]
    To apply the absurd literal interpretation gives rise to an interpretation that would displace the nemo dat rule if it is held that a transferred right to claim a debt becomes something claimable in Queensland after assignment when it was not claimable in Queensland prior to nor at the time of assignment? Was that the purpose or intention of Parliament to displace the nemo dat rule and vary a right to sue such that territorial or geographic jurisdiction is now activated post transfer by operation of statute when there was no jurisdiction prior transfer? That would be to enlarge or at least vary the rights transferred. It would change the rights attached to what is transferred. Something so significant as to displace a fundamental rule such as nemo dat, a rule that has existed for centuries, would likely be worthy of some expression in the legislation. There is no such expression. Only a very courageous Tribunal would read into the relevant provision an implication that the nemo dat rule is silently displaced. There is nothing to support an implied purpose or intention to displace the rule.
20. [20]
    As a side note, the Applicant/Assignee in the QCAT application form has listed a Queensland post office box as the address for the Applicant. The Assignee address in all the deeds is actually a New South Wales address. Even viewing possible jurisdiction from the Assignee’s position and accepting incorrectly the displacement of the nemo dat principle, nay, the nemo dat rule, the issue of jurisdiction would still require further consideration as to whether the Assignee’s address enlivens the jurisdiction of the QCAT.
21. [21]
    In conclusion, the Assignors could not have brought an action in the QCAT. Yes, the right to bring legal proceedings can be assigned in accordance with statute. However, this does not mean that the assignments granted a jurisdictional right to the Assignee to bring the proceedings in the QCAT when the Assignors did not have any such right prior to the assignments. There was no basis whatsoever for the Assignors to bring their claims in the QCAT. In accordance with statute, an assignment can transfer a right to litigate but it cannot transform, enlarged or vary that right such that territorial jurisdiction is somehow established in a different state post assignment merely by virtue of an assignee identifying their own address in a different state when the dispute/s had no connection whatsoever with that different state.
22. [22]
    Therefore, the QCAT does not have jurisdiction to hear the matter and it must be dismissed.