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Peauril v Office of Fair Trading, Department of Justice and Attorney-General[2021] QCAT 413

Peauril v Office of Fair Trading, Department of Justice and Attorney-General[2021] QCAT 413

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Peauril & Ors v Office of Fair Trading, Department of Justice and Attorney-General [2021] QCAT 413

PARTIES:

damian peauril

phillip higson

warren cavanagh

(applicants)

V

chief EXECUTIVE, OFFICE OF FAIR TRADING

(first respondent)

WALTER NIELSEN

DAVID JUDGE

MALCOLM KARL HUGHSON

DAVID GIBBS

(second respondents)

APPLICATION NO/S:

GAR366-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

18 November 2021

HEARING DATE:

15 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. The applications for miscellaneous matters (directions to produce) filed by the applicants on 20 December 2019, 27 May 2020 and 1 November 2020 are each dismissed.
  2. On its own initiative, the Tribunal intends to consider whether the application for review should be dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) because it appears as follows:
    1. (a)
      The decision of the respondent to restore the Register to what it was prior to the lodgement of the applicants’ Forms 10a on 10 August 2019;
    2. (b)
      The decision under review, namely to confirm that internal decision, was made on 14 October 2019;
    3. (c)
      Subsequently, the further meetings of Club members have taken place and been recorded on the Register and will not be impacted by the decision to be made under review;
    4. (d)
      The applicant gave evidence/made submissions before the tribunal on 15 November 2021 to the effect that their application was a “waste of time” and further that the applicants had achieved their purpose;
    5. (e)
      The concerns raised by the applicants as grounds for their application to review a decision, and the evidence they have tendered in its support, do not seem relevant to the fresh decision to made on review; and
    6. (f)
      It appears therefore that there is now no utility in the application for review and that the proceedings are lacking in substance.
  3. Each party (Damian Peauril, Phillip Higson and Warren Cavanagh as applicants, Chief Executive, Office of Fair Trading as first respondent, and Walter Nielsen, David Judge, Malcolm Karl Hughson and David Gibb as second respondents) must file in the Tribunal two (2) copies and give one (1) copy to each other party, their written submissions in respect of whether the application for review of a decision should be dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), by

4:00pm on 10 December 2021.

  1. Each party may file in the Tribunal and serve their submissions in reply to the other parties’ submissions by filed in accordance with Direction 3, above, by

4:00pm on 15 January 2022.

  1. Unless otherwise ordered, the Tribunal will decide whether proceedings should be dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the papers, without an oral hearing, not before 16 January 2022.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – administrative review – incorporated association – whether to issue direction to produce to a party – whether to issue direction to produce to a third party – whether information sought is relevant to decision under review

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – whether proceedings should be dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Associations Incorporation Act 1981 (Qld), s 16, s 58, s 71, s 72, s 73, s 109, s 121A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(1), s 17(1), s 20, s 21, s 47, s 62, 63, s 95, s 114

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 78

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (controllers appointed) v Woolridge [2013] VSC 154

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

Dey v Victorian Railways Commissioners [1949] 78 CLR 62

Fox v Percy (2003) 214 CLR 118

Gedoun Constructions Pty Ltd v Agius [2019] QCAT 129

Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892

Langan & Langan [2013] FCCA 258

Pinnacle Sales & Management Pty Ltd & Ors v Lisa Douglas [2019] QCATA 52

Rae v Qantas Airways Limited [2021] QCAT 376

Saxby v Saxby & Ors [2018] QSC 314

Yeo v Brisbane Polo Club Inc [2013] QCAT 261

APPEARANCES &

REPRESENTATION:

Applicants:

Self-represented by Mr Peauril and Mr Higson (in person)

First Respondent:

Second Respondent:

Mr P Reinhold, Director Industry Licensing & Regulations (in person)

Self-represented by Mr Judge (in person), and by Mr Hughson, Mr Nielson and Mr Gibbs (by phone) 

REASONS FOR DECISION

What is this application about?

The interlocutory applications

  1. [1]
    This decision addresses the applications for miscellaneous matters filed by the applicants on 20 December 2019, 27 May 2020 and 1 November 2020. 
  2. [2]
    The applications are one and the same, as the Registry is said to have informed the applicants that the first two applications were lost.
  3. [3]
    The applicants seek the following directions:
    1. (a)
      pursuant to section 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) that the second respondents produce:

An indexed and paged [sic] numbered bundle containing copies of all documents and things in its possession and control that may be relevant to the Club’s 2017-2018 and 2018-2019 financial statements; and

  1. (b)
    pursuant to section 63(1) of the QCAT Act that Adam Hannant produce:

Certified copies of his finalised Audited Financial Statements & Auditor’s Reports for the 2017-2018 and 2018-2019 financial years of the Canungra Hang Gliding Club

AND

…copies of all correspondence between the Management Committee of the Canungra Hang Gliding Club and the Auditor for the 2017-2018 and 2018-2019 financial years and any document related to this correspondence, for example, file notes.

  1. [4]
    The first respondent and the second respondents seek orders dismissing the applications for directions to produce.

The initiating application

  1. [5]
    The initiating application seeks review of a decision of the Office of Fair Trading (“OFT”) arising out of a dispute between two factions of the Canungra Hang Gliding Club (“the Club”).
  2. [6]
    The Club is an incorporated association regulated by the OFT under the Associations Incorporation Act 1981 (Qld) (“the AIA”) and governed by the AIA and the Club’s constitution. 
  3. [7]
    Section 16 of the AIA requires the OFT to keep a register of incorporated associations (“the Register”). 
  4. [8]
    The Register must include, for each association:
    1. (a)
      the association’s name;
    2. (b)
      the association’s nominated address;
    3. (c)
      the day the association’s particulars are entered in the register; and
    4. (d)
      other particulars the chief executive considers appropriate.
  5. [9]
    The Club is a “Level 1” incorporated association, being an incorporated association with assets or revenue under $100,000.[1]   Therefore, the management committee of the Club must ensure it prepares a financial statement for each reportable financial year, has the financial statement audited and presents the financial statement and the signed audit report to the Club’s annual general meeting (“AGM”) for adoption.
  6. [10]
    Within one month after the financial documents are presented to the AGM, they must be lodged with the OFT, typically in the Annual Return of the Association (Form 12-1), which will also include the particulars of any new management committee members elected at the AGM.
  7. [11]
    A Form 10a is otherwise used to update the OFT’s records of details relating to an incorporated association and must be lodged within one month of the change taking place.
  8. [12]
    The management committee of the Club (comprising the second respondents) did not lodge 2017 and 2018 Annual Returns on time.  The OFT sent reminder letters on 16 April 2018 and 16 April 2019 about the outstanding returns and on 26 June 2019 sent a Show Cause notice inviting submissions by 26 July 2019 as to why the Club should not be wound up.
  9. [13]
    The applicants say that this precarious situation – given the dangerous nature of hang gliding and the risk of death it presents – posed an unacceptable risk to the Club and its participants of losing the benefit of public liability insurance and the protections that come with incorporation under the AIA.
  10. [14]
    The first respondent says that, despite the Show Cause notice being issued, the Club was not in fact in dire or imminent risk of de-registration and that, in any event, all compliance matters have since resolved.  
  11. [15]
    The Club was to have conducted an AGM on 10 August 2019 but, according to the second respondents, this was rescheduled to 7 September 2019 on adequate notice (by email) to Club members.
  12. [16]
    The applicants dispute that any notice of the rescheduled AGM was given and on 10 August 2019 Mr Peauril says he conducted an AGM[2] with only himself present in person but holding the proxies of eight other Club members. 
  13. [17]
    Following Mr Peauril’s meeting on 10 August 2019, and a management committee meeting of the applicants convened on 23 August 2019, Mr Peauril attended upon the OFT on 27 August 2019[3] and filed four Forms 10a notifying the OFT of the replacement of Club’s existing management committee (comprising the second respondents) with a new committee comprising the applicants as follows:
    1. (a)
      replacing Walt Nielsen with Damian Peauril as President;
    2. (b)
      replacing David Gibbs with Philip Higson as Vice-President;
    3. (c)
      replacing Malcolm Hughson with Damian Peauril as Secretary; and
    4. (d)
      replacing David Judge with Warren Cavanagh as Treasurer.
  14. [18]
    The OFT relied on the Forms 10a at face value and recorded the notified changes in the Register on 2 September 2019.  The OFT says they are entitled to such reliance for a number of reasons including the declarations of truth contained in the forms themselves, as well as the statutory obligation of all persons lodging documents with the OFT to not give information that is false or misleading.[4]
  15. [19]
    Neither the second respondents, nor the Club members at large appear to have been aware or informed that a meeting had been conducted by Mr Peauril on 10 August 2019 when the second respondents held with their rescheduled AGM at 8.10am[5] on 7 September 2019, with 36[6] Club members in attendance. 
  16. [20]
    Mr Peauril attended the 7 September 2019 meeting and made the following statement at its opening:[7]

I just want to make a point, of something very quick. I’ll be ten seconds.  I just want to object to your assumption that the meeting is valid.  I would like that to be recorded and thank you for your time.

  1. [21]
    When pressed, Mr Peauril would not identify the basis of his objection, saying[8]:

..there is a bunch of issues, and I just simply made a simple point, and I don’t want to waste everyone’s time in going into great details about things… But I just wanted to raise an objection and that’s it.

  1. [22]
    He was again pressed to explain the objection but did not do so.  The meeting therefore proceeded without his objection being recorded in the meeting minutes. 
  2. [23]
    On 7 September 2019, at 1.57pm, being only a matter of hours after attending what he knew the second respondents and the majority of Club members believed was the Club’s true AGM, Mr Peauril filed at Form 12-1 being the Annual Return of the Club, to which Mr Peauril attached the Audited Financial Report for the year ended 30 June 2019 prepared and signed by “Adam Hannant CPA, Director, Liberty Wealth Group”.
  3. [24]
    Mr Peauril, in lodging the Annual Return:
    1. (a)
      as “President/Secretary” of the Club signed a declaration on page 10 of 12 of the report that:

I understand that the information provided in and with this application may be disclosed publicly under the Right to Information Act 2009.

I am aware that it is an offence to knowingly provide false information.

I have read and agree to the terms and statements above; and

  1. (b)
    signed a statement on front page to the Audited Financial Report that included the following:

The 2019 Financial Statements for the 2018-2019 Financial year were compiled by the former Treasurer Mr David Judge and solely completed and audited under the auspices of the former 2018-2019 Management Committee which consisted of’ Mr Walt Nielsen – President, Mr David Gibbs – Vice-President, Mr David Judge – Treasurer, Mr Malcomb Hughson- Secretary.

The current Management Committee had no involvement with these 2018-2019 Financial Statements.  Lodgement of the 2019 Annual Report to the Office of Fair Trading is done in good faither in order to complete the current Management Committee’s legal duties, obligations and responsibilities.

  1. [25]
    Mr Peauril also signed and dated pages 3, 4 and 5 of the Audited Financial Report that he attached to the Form 12-1. 
  2. [26]
    No attempt appears to have been made by Mr Peauril when lodging the Forms 10a or the Annual Return to bring the fact of the 7 September 2019 meeting to the OFT’s attention, nor to raise any concerns with the OFT regarding the veracity or contents of the Audited Financial Report. 
  3. [27]
    Whilst Mr Peauril submitted the Audited Financial Statement on the basis that they were inherited from the previous committee and he could not vouch for them, he nonetheless submitted them as representing the true and correct, audited financial position of the Club as at 30 June 2019.  Mr Peauril had a positive obligation under section 121A(4)(a) of the AIA to notify the OFT if he believed any lodged information was false or misleading and he did not do so.
  4. [28]
    On 11 September 2019 Mr Peauril acting as “Secretary on behalf of the current 2019-2020 Management Committee” of the Club wrote to the second respondents saying among other things:

Please be advised that in regards to the gathering of lost souls on the ship of fools on 7 September 2019 you are hereby given notice of the following:

Firstly, the premise that the four persons masquerading as the management committee had legal standing to conduct any general meeting or Annual General Meeting of the Association was false.  The persons conducting the gathering had no standing to convene and hold any such meeting.

Secondly, the gathering was not a lawful and valid general meeting of Annual General Meeting of the Association.  All proceedings and appointments resulting from this meeting are illegal and invalid.

…

Thanks to a team of dedicated persons who have worked tirelessly to navigate a legal nightmare the club has been saved and now continues to exist because of a new Management Committee by order of a determination made with the authority of the Department of Justice and Attorney-General, Office of Fair Trading.

  1. [29]
    Mr Judge (representing the second respondents) then made a complaint to the OFT claiming the legitimate AGM of the Club was held on 7 September 2019 and that the Forms 10a lodged by Mr Peauril should be rejected.
  2. [30]
    After investigating and reconciling the information supplied by the two factions, a decision was made by the OFT on 26 September 2019 to rescind the recording of the Forms 10a lodged by Mr Peauril and to restore the Register back to previous entry (namely, a decision was made in favour of the second respondents’ position).
  3. [31]
    On 14 October 2019 an internal review decision of the OFT (“the decision”) confirmed the original decision to restore the particulars of the Club recorded on the Register to what they were prior to the recording of the applicants’ Forms 10a.
  4. [32]
    By their application for review, the applicants ask the tribunal to review the decision.   

Does the tribunal have jurisdiction to review the decision?

  1. [33]
    The tribunal has jurisdiction to deal with matters if empowered to do so by the QCAT Act or by an enabling Act[9] and its review jurisdiction is the jurisdiction conferred upon it by the enabling Act to “review a decision made or taken to have been made by another entity under that Act”.[10] 
  2. [34]
    Under section 109 of the AIA if a person’s interests are affected by a decision made under the AIA, they may apply to the OFT for an internal review of the decision.   If not satisfied with that decision, the person may then apply the tribunal.[11]
  3. [35]
    I am satisfied that the decision is one the tribunal has jurisdiction to review.
  4. [36]
    The ultimate role of the tribunal is to review the circumstances afresh and to produce the correct and preferable decision.[12]
  5. [37]
    The role of the OFT is to assist the tribunal in making that decision,[13] rather than to take an adversarial role or to defend the decision under review.

The scope of the tribunal’s review

  1. [38]
    The material filed in this application is voluminous. 
  2. [39]
    For their part, the applicants raise several serious allegations of financial and operational misconduct by the second respondents, breaches of the AIA and of the rules. 
  3. [40]
    These allegations are summarised in a document titled “Report on the Standard of Governance of the Canungra Hang Gliding Club Incorporated from its 2018 Annual General Meeting held on 4 August 2018 until January 2020” prepared by Ms Houston, who the applicants say is an independent accountant[14] engaged on their behalf and tendered as their submissions in these proceedings.    The Report addresses allegations by “topic” numbers and include:
    1. (a)
      Topic One:  The second respondents “showed consistent and persistent and wide-ranging and generally serious disregard for the [AIA] and the Club’s Constitution” and showed “protracted neglect and indifference to the Club’s mutual legal duties and responsibilities”.  Examples given include allegations that the second respondent did not give Club members a copy of the constitution, notices to general meetings or the AGM, or copies of agendas or nomination forms.
    2. (b)
      Topic Two:  The second respondents showed a “consistent and persistent lack of openness and transparency and frustrating denial to the Club’s membership of key information concerning the Club”.   Examples include not showing members the audited financial statements and auditor’s reports for the financial years ending 2017, 2018 and 2019. 
    3. (c)
      Topic Three:  The second respondents “maintained a consistent and persistent concealment” from members of matters that would have reflected adversely on the second respondents as a management committee. Examples given include not notifying members of the warning letters from the OFT or the Show Cause Notice.
    4. (d)
      Topic Four:   The second respondents have engaged in tactics to influence Club members against Mr Peauril by attacking his message and credibility.  There are allegations in this regard of defamatory comments being made in a “Google Group” discussion.
    5. (e)
      Topic Five:  The individual performances of the second respondents as committee members are criticised, variously, as unfamiliar with legislation, mocking, missing-in-action and neglectful.
    6. (f)
      Topic Six:  One and possibly two of the second respondents have a financial conflict of interest with the Club.  This issue pertains to the use by some committee members of their personal Paypal/bank accounts to collect competition fees during events.
    7. (g)
      Topic Seven:  The standard of both the second respondents’ internal and external communication on Club matters was “grossly deficient and non-compliant”.
    8. (h)
      Topic Eight:   The conduct of the second respondents following the decision by the OFT to reinstate them shows “no obvious new willingness to comply with its legal duties and responsibilities”. 
    9. (i)
      Topic Nine:   The applicants say they were denied natural justice in the first-respondent’s decision-making process and accuse the OFT of secrecy and undue haste in investigating and making the decision under review.
    10. (j)
      Topic Ten:  The applicants put themselves forward as the best alternative management committee as persons who are “all determined to run the Club properly”.
  4. [41]
    Prima facie – and this, no doubt, will be tested at the final hearing should the application proceed – the above grounds/topics covered in Ms Houston’s report do not appear to be relevant to the decision to be made under review.  
  5. [42]
    As Member Hughes (as he then was) noted in his unpublished reasons for an interlocutory decision made in this matter on 19 July 2021 (my emphasis added):

[3] The reviewable decision related to the Chief Executive’s function to keep a register of incorporated associations.  But the Chief Executive’s function is administrative only and does not extend to a forensic analysis of an incorporated association’s finances.

[4] The Supreme Court has jurisdiction to make orders about the rules of the association and enforcing the rights and obligations of its members.[15]  But the Tribunal is limited to exercising the same function as the Chief Executive.[16]  That function is confined to the narrow administrative jurisdiction of keeping the Register.  It does not extend to examining internal disputes about financial mismanagement, governance or annual returns.[17]

  1. [43]
    The narrow issue for the tribunal to decide in these proceedings is – making a fresh decision on the merits - whether the correct and preferable decision is to confirm or set aside the OFT’s decision to restore the particulars of the Club recorded on the Register to what they were prior to the recording of the applicants’ Forms 10a.

The scope of this decision

  1. [44]
    The even narrower scope of this decision is whether to grant or refuse the applicants’ requests for directions to produce.
  2. [45]
    Section 62(1) of the QCAT Act permits the tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
  3. [46]
    Without limiting that power, the tribunal may give a direction requiring a party to the proceeding to produce a document or another thing or provide information to the tribunal or to another party to the proceeding.[18]
  4. [47]
    The tribunal’s power to make a decision in a proceeding (the primary power) includes a power to make such directions as the Tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.[19]
  5. [48]
    The tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the tribunal.[20]   It must also ensure that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.[21]  However, the tribunal may refuse to allow a party to a proceeding to call evidence on a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal.[22]  
  6. [49]
    Rule 78 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (“QCAT Rules”) permits a party to apply to the tribunal for a direction under section 63(1)[23] of the QCAT Act requiring a person to produce a document or other thing.
  7. [50]
    Section 63(1) of the QCAT Act provides that 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 thing relevant to the proceeding to produce that document or thing (my emphasis added).
  8. [51]
    For a notice to produce to be granted, it must be relevant to a proceeding and a lack of relevance is, of itself, grounds by which the tribunal can decline issue the notice to produce.[24] 
  9. [52]
    Noting that the onus is on the party alleging relevance,[25] it nonetheless can be gleaned from the application and material filed in the proceedings.[26]
  10. [53]
    There must also be a legitimate forensic purpose for issuing the direction to produce.[27]  The production of documents cannot be compelled for the purpose of trawling through what was produced in the hope of generating lines of enquiry not otherwise available to support the case in question (or any other case for that matter), or, in other words, the production of documents cannot be used for a “fishing expedition”.[28]
  11. [54]
    The appropriate test to apply to ascertain legitimate forensic purpose is whether or not the documents sought will materially assist the applicants’ case.[29]

Discussion and findings on the applications for directions to produce

  1. [55]
    The applicants say that the documents sought from the second respondents are necessary because “the Club’s current Management Committee have not been open and transparent with the Club’s true financial position”[30] and outline a number of concerns regarding financial decision-making and mismanagement.
  2. [56]
    In terms of the documents sought from Mr Hannant, the applicants say that they have reason to believe that Mr Hannant “was not provided with a full and frank disclosure of information regarding the Club’s financial affairs”,[31] that he was not told about the “Show Cause” letters and that the audited financial statements were never presented to the Club’s members, let alone discussed and voted upon. 
  3. [57]
    In neither case have the applicants demonstrated how production of the documents requested will materially assist the applicants’ case in these proceedings. 
  4. [58]
    The first respondent correctly points out that the “the current appeal is not about a decision by the Delegate in relation to any financial investigation at [the Club]”.[32]  
  5. [59]
    To reiterate Member Hughes, the tribunal’s present jurisdiction in these proceedings “does not extend to examining internal disputes about financial mismanagement, governance or annual returns”.[33]     
  6. [60]
    The decision under review is the OFT’s decision to restore the particulars of the Club recorded on the Register to what they were prior to the recording of the applicants’ Forms 10a.
  7. [61]
    The “effective date of the change” in Part 2 of each Form 10a is noted as being “10/08/2019”.  
  8. [62]
    The applicants’ case therefore relies on the applicants establishing that the AGM they conducted on 10 August 2019 was the properly held AGM of the Club and that the Forms 10a they lodged accurately recorded valid changes made to the constituency of the Management Committee of the Club at that meeting.
  9. [63]
    In this regard, it is the conduct of the applicants that is under scrutiny.  The conduct of the second respondents merely provides context in that second respondents’ position represents the status quo to which the decision under review restored the Club.       
  10. [64]
    In that context is it difficult to see how any documents pertaining to the Club’s 2017-2018 and 2018-2019 financial statements – audited or otherwise – or indeed any evidence concerning the financial management of the Club has any bearing on these proceedings.  

Direction to produce issued to the second respondents

  1. [65]
    For those reasons, I am not satisfied that “copies of all documents and things in its possession and control that may be relevant to the Club’s 2017-2018 and 2018-2019 financial statements” are relevant to the decision under review.  If they are relevant, the financial statements themselves are already in evidence. 
  2. [66]
    Moreover, there is simply no evidence that the information sought from the second respondents will assist the applicants’ case – materially or otherwise.   There are no grounds to direct the second respondents to produce these documents and the request for that direction must be dismissed.

Direction to produce requested of Mr Hannant

  1. [67]
    As for Mr Hannant, for the same reasons, I am not convinced that production of:

Certified copies of his finalised Audited Financial Statements & Auditor’s Reports for the 2017-2018 and 2018-2019 financial years of the Canungra Hang Gliding Club

AND

…copies of all correspondence between the Management Committee of the Canungra Hang Gliding Club and the Auditor for the 2017-2018 and 2018-2019 financial years and any document related to this correspondence, for example, file notes.

will produce material relevant to the decision under review.  Again, there is no evidence that the information sought from him will assist the applicants’ case – materially or otherwise and on that basis the application to produce pertaining to his records should also be refused.

  1. [68]
    I also note the following in relation to the request of Mr Hannant:
    1. (a)
      It is not disputed that the prior year returns were prepared late nor that “show cause” notices were issued.   Even if Mr Hannant as auditor was not aware of “show cause” notices or threatened OFT action, he knew – because he prepared several years of statements at once – that audits had not taken place and that annual returns, therefore, could not have been lodged on time.   Nothing relevant to the decision under review turns on whether he had actual notice of the “Show Cause” notice or the latter commencement of these proceedings; and
    2. (b)
      The mechanism for third party disclosure should not be used oppressively and non-parties should not be inconvenienced more than is necessary.[34]  Without hearing from Mr Hannant, I cannot determine the likely costs, time and oppression to Mr Hannant to produce the documents sought, but as the request fails on relevance, this is of no consequence. 

Decision on the applications for miscellaneous matters (directions to produce)

  1. [69]
    For the reasons given, the decision of the tribunal is to dismiss the applications for miscellaneous matters (directions to produce) filed by the applicants on 20 December 2019, 27 May 2020 and 1 November 2020.

Directions for the future conduct of the application – consideration of section 47

  1. [70]
    When perusing the application for review for the purpose of considering the applications for miscellaneous matters, the very narrow scope of the decision under review was apparent.  As mentioned, Member Hughes took the unusual step of providing written reasons with an earlier direction given in these proceedings to highlight for the benefit of the parties the restricted nature of the review.
  2. [71]
    The tribunal has no power in this application to address the applicants’ concerns about misconduct, financial mismanagement, poor governance or non-compliant annual returns.   These complaints, even if substantiated, are not relevant to the decision under review, as I already mentioned in paragraph [41] above. 
  3. [72]
    Unfortunately, those complaints seem to form the entire grounds of the application.
  4. [73]
    Further, when taking further evidence from Mr Peauril in the hearing he stated, more than once, that the applications for miscellaneous matters, and the application for review – all initiated by the applicants - were a “waste of time”.
  5. [74]
    When asked to expand, Mr Peauril said that the applicants had achieved what they had set out to do, which was to save the Club from de-registration.
  6. [75]
    If it was the intention of the applicants to “save the Club” in lodging the Forms 10a they lodged on 27 August 2019 – even if they were ultra vires - then surely, in Mr Peauril’s own words, the applicants achieved what they set out to do.   
  7. [76]
    If the intention of the application was to bring to light to Club members the applicants’ complaints and concerns regarding the second respondents’ management of the Club – although, surely, the 7 September 2019 AGM would have been a more appropriate forum of Club members for that – that, too, has been achieved because in evidence are the various circulars and updates to Club members as to actions taken by the applicants that lead to the decision under review and as to the progress of these proceedings.
  8. [77]
    Notably, the Club has also moved on with time since the decision under review was made.   With the 2020 and 2021 AGM’s having taken place, it is difficult to see any practical effect and certainly no benefit to the applicants of a decision in their favour.   Updating the Register to allow the Forms 10 lodged on 10 August 2019 will not impact subsequent entries or the current constituency of the Club.
  9. [78]
    Further, a final hearing is unlikely to present an opportunity to the applicants to explore and question the second respondents on the topics of Ms Houston’s report if that evidence is not relevant to the decision under review.    
  10. [79]
    Finally, Mr Peauril also commented on the applicants experiencing what I would describe as “litigation fatigue” – describing the impact of the ongoing costs, unpleasantness, time-spent and delays associated with pursuing the matter, first via the OFT and then to the tribunal.  He questioned his own ability to push on.
  11. [80]
    There may be no utility in the application for a decision for review proceeding to a final hearing in these circumstances.
  12. [81]
    The objects of the QCAT Act[35] include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick, and, to that end, section 4 of the Act requires the tribunal, among other things, to:
    1. (a)
      encourage the early and economical resolution of disputes before the tribunal[36]; and
    2. (b)
      ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice[37].
  13. [82]
    The tribunal need also be mindful that their resources serve the public as a whole, not just the parties to the proceedings.   Justice Wilson said just this in Creek v Raine & Horne Real Estate Mossman[38]:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”[39].  Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties[40].

  1. [83]
    The tribunal can act on its own initiative[41] under section 47 of the QCAT Act to strike out or dismiss a proceeding if the tribunal considers a proceeding is:
    1. (a)
      frivolous, vexatious or misconceived; or
    2. (b)
      lacking in substance; or
    3. (c)
      otherwise an abuse of process.
  2. [84]
    The power to strike out ought only to be exercised “sparingly” and “when a claim is groundless or futile”[42]. 
  3. [85]
    Having regard to all of these further considerations and given the COVID-19-adjournment delays that have unusually delayed parties in coming before the tribunal, it is appropriate that I make directions that may assist the parties and the tribunal to an early resolution.  
  4. [86]
    As I said in the matter of Rae v Qantas Airways Limited[43]:

It can be a matter of grave disappointment to an applicant who has waited some time for their matter to be heard to first learn in the hearing that their claim has a fatal defect. 

  1. [87]
    Bearing in mind the tribunal’s obligation to the parties and to the public in terms of the use of its resources, the tribunal will consider summary disposal of the application for review of a decision by dismissal under section 47 of the QCAT Act.
  2. [88]
    The parties will be given an opportunity to make submissions on point, and, therefore, I will make directions to that effect, with a decision to be made by the tribunal on the papers after submissions close.

Footnotes

[1]Section 58 of the AIA.

[2]That this meeting occurred is disputed by the second respondents and their witnesses.

[3]A typographical error on the form records the signature date as “27 October 2019”.

[4]Section 121A of the AIA.

[5]There seems to be a suggestion that the meeting in fact proceeded at 7am but nothing in this decision turns on that point.

[6]According to the minutes of the meeting dated 7 September 2021.

[7]Applicant’s transcript of the recorded meeting.

[8]Ibid.

[9]Section 9(1) of the QCAT Act.

[10]Section 17(1), ibid.

[11]Section 112 of the AIA.

[12]Section 20 of the QCAT Act.

[13]Section 21, ibid.

[14]The first respondent and the second respondents question both the qualifications and independence of Ms Houston.

[15]Sections 71-73 of the AIA.

[16]Section 19 of the QCAT Act.

[17]Saxby v Saxby & Ors [2018] QSC 314.

[18]Section 62(3) of the QCAT Act.

[19]Section 114, ibid.

[20]Section 95(1), ibid.

[21]Pinnacle Sales & Management Pty Ltd & Ors v Lisa Douglas [2019] QCATA 52 at paragraph [14].

[22]Section 95(2), ibid.

[23]Rule 78(1)(b) QCAT Rules.

[24]Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892 at [49]. 

[25]Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892 at [58].

[26]Langan & Langan [2013] FCCA 258.

[27]Rae v Qantas Airways Limited [2021] QCAT 376 at paragraph [42].

[28]Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892 at [50].

[29]Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (controllers appointed) v Woolridge [2013] VSC 154 at [99].

[30]Attachment 2 to the application for miscellaneous matters.

[31]Attachment 3 to the application for miscellaneous matters.

[32]First Respondent’s submissions dated 7 June 2021 at paragraph [51].

[33]Unpublished reasons for an interlocutory decision made in this matter on 19 July 2021.

[34]Gedoun Constructions Pty Ltd v Agius [2019] QCAT 129.

[35]Section 3(b) of the QCAT Act.

[36]Section 4(b), ibid.

[37]Section 4(c), ibid.

[38][2011] QCATA 226 at paragraph [13].

[39]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217.

[40]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.

[41]Section 47(3) of the QCAT Act.

[42]Yeo v Brisbane Polo Club Inc [2013] QCAT 261, [5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62.

[43][2021] QCAT 376 at [56].

Close

Editorial Notes

  • Published Case Name:

    Peauril & Ors v Office of Fair Trading, Department of Justice and Attorney-General

  • Shortened Case Name:

    Peauril v Office of Fair Trading, Department of Justice and Attorney-General

  • MNC:

    [2021] QCAT 413

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    18 Nov 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (controllers appointed) v Woolridge [2013] VSC 154
2 citations
Jump To
Cite 1 - [2013] VSC 154
Cite 2 - [2013] VSC 154
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
2 citations
Jump To
Cite 1 - [2011] QCATA 226
Cite 2 - [2011] QCATA 226
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
2 citations
Jump To
Cite 1 - (1949) 78 CLR 62
Cite 2 - (1949) 78 CLR 62
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Gedoun Constructions Pty Ltd v Agius [2019] QCAT 129
2 citations
Jump To
Cite 1 - [2019] QCAT 129
Cite 2 - [2019] QCAT 129
Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892
4 citations
Jump To
Cite 1 - [2000] FamCA 892
Cite 2 - [2000] FamCA 892
Cite 3 - [2000] FamCA 892
Cite 4 - [2000] FamCA 892
Langan and Langan [2013] FCCA 258
2 citations
Jump To
Cite 1 - [2013] FCCA 258
Cite 2 - [2013] FCCA 258
Pinnacle Sales & Management Pty Ltd v Douglas [2019] QCATA 52
2 citations
Jump To
Cite 1 - [2019] QCATA 52
Cite 2 - [2019] QCATA 52
Rae v Qantas Airways Limited [2021] QCAT 376
3 citations
Jump To
Cite 1 - [2021] QCAT 376
Cite 2 - [2021] QCAT 376
Cite 3 - [2021] QCAT 376
Saxby v Saxby [2018] QSC 314
2 citations
Jump To
Cite 1 - [2018] QSC 314
Cite 2 - [2018] QSC 314
Yeo v Brisbane Polo Club Inc [2013] QCAT 261
2 citations
Jump To
Cite 1 - [2013] QCAT 261
Cite 2 - [2013] QCAT 261

Cases Citing

Case NameFull CitationFrequency
Peauril v Office of Fair Trading, Department of Justice and Attorney-General (No. 2) [2022] QCAT 1712 citations
1

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