Margetts v McIntyre[2023] QCAT 407

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 17 April 2023, in matter NDR150-22 McIntyre v Margetts, the parties participated in a compulsory conference. This was in respect of a tree dispute, which had been filed in QCAT on 18 July 2022. That compulsory conference was resolved by way of a consent order, as follows:

The Respondent is to arrange and pay for a level 3 AQF qualified arborist to trim back all vegetation to a vertical plane along the common boundary between the properties of the parties before 31 March 2024 and then before 31 March every year thereafter, save for the following:

1. a.
   The only trimming to the Pandanus tree is the removal of branch 1.1 as identified on page 32 of the Respondent’s statement of evidence filed 24 February 2023. The respondent is to arrange and pay for this work to be carried out before 1 June 2023.

2. b.
   The Frangipani tree, identified as Tree 7 in the Parkes Tree Consultancy report dated 1 September 2022, is to be trimmed back to a vertical plane along the common boundary between the properties of the parties. The Respondent is to arrange and pay for this work before 1 June 2023 and then before 31 March every year thereafter.

3. c.
   The Frangipani tree, identified as Tree 11 in the Parkes Tree Consultancy report dated 1 September 2022, is to be trimmed back to a vertical plane 30cm from the common boundary between the properties of the parties. The Respondent is to arrange and pay for this work before 1 June 2023 and then before 31 March every year thereafter.

2. [2]
   At the time Mr Margetts entered into that agreement at the compulsory conference, he suspected that Ms McIntyre had made false or misleading statements in a number of respects, and provided multiple examples of allegedly false or misleading statements to the Tribunal in the course of these proceedings.
3. [3]
   In his application for contempt, he included an affidavit detailing aspects of the alleged falsities but also stated in the affidavit, at paragraph 6, that he had previously detailed the allegations of falsities in his response to the original QCAT application by Ms McIntyre and in his statement of evidence. Mr Margetts postponed his decision to bring an application for contempt until after the compulsory conference. He advised that he did that due to various stressors at play.
4. [4]
   On 1 August 2023, an application was received by QCAT seeking to have Ms McIntyre held in contempt in respect of those alleged falsities and misleading documents. The basis of the purported contempt considered before me is clause 1 of the application, which alleges a contravention of s 216(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), which provides that a person must not give an official a document containing information the person knows is false or misleading in a material particular. The gravamen of the allegation of contempt is that Ms McIntyre had submitted several documents she knew to be false and/or misleading.
5. [5]
   Because the tree dispute resolved by way of compulsory conference, there was no factual determination by the Tribunal as to whether or not the documents were false or misleading and, if they were false, whether they were intentionally false and whether they were possessed with the necessary elements required to establish contempt.
6. [6]
   Much of the alleged falsity is disputed by Ms McIntyre and the other allegations have been met with a proffered response or purported explanation which, in themselves, are not accepted by Mr Margetts.
7. [7]
   In my view, this application for contempt should be dismissed pursuant to s 47 of the QCAT Act. It is not an appropriate avenue for Mr Margetts to pursue a contempt application in all the circumstances of the case. It is misconceived and a waste of the Tribunal’s time and an abuse of process, given the circumstances. The alleged falsities or misleading documents were known or suspected by Mr Margetts during the original dispute. He then chose to reach a resolution before the Tribunal and then decided to pursue further acrimonious litigation by way of this contempt application against Ms McIntyre in the face of an agreement which had been reached at a compulsory conference.
8. [8]
   The law of contempt of court or tribunal is well established. It is clear that:^[1]

Proceedings for contempt are criminal in nature. Contempt charges must be proved beyond reasonable doubt.^[2] In such proceedings, “the utmost strictness in procedure and proof is demanded.”^[3]

9. [9]
   The nature of the orders sought by the applicant, Mr Margetts, also does not assist him in persuading the Tribunal that these proceedings are ones which ought to be continued in the Tribunal. In that respect, he seeks costs against Ms McIntyre for unliquidated damages, distress, loss of income and costs incurred caused by her actions, and a striking out of the orders made at the compulsory conference held on 17 April 2023. I previously noted that those orders were reached upon agreement, with Mr Margetts already holding relevant suspicions in respect of false or misleading information, and I further note there was no application to reopen the matter. (I am not suggesting any application to reopen would succeed in circumstances where Mr Margetts already held suspicions of falsities.)
10. [10]
    Mr Margetts additionally seeks an order that Ms McIntyre provide written apologies to Mr James Parkes and to him for allegedly false claims and comments made against them.
11. [11]
    The relief sought in this contempt application is unusual. Ordinarily, contempt is punishable by imprisonment or fine or both.^[4] It is noted in Halsbury’s Laws of England, 4^th ed reprint, at paragraph 1110, as cited in Maggbury at paragraph [34]:

The court does not encourage motions to commit where committal is not really sought, and all that is asked for is an apology and the payment of costs. In such cases the party moving ought not be allowed his costs and the motion may be refused with costs.

12. [12]
    Maggbury also contains the following at paragraphs [35] through [37]:

In In re New Gold Coast Exploration Company [1901] 1 Ch 860, Cozens-Hardy J expressed strong disapproval of the bringing of applications for committal for contempt where it was not intended to pursue such an order. He quoted with approval the following passage from the judgment of James LJ in Plating Co Farquharson (1881) 17 Ch D 49, 59—

“I certainly, in such cases, would not only not give the party moving his costs, but  I should be inclined to make him pay costs. I think these motions are a contempt of Court in themselves, because they tend to waste the public time.”

The above observations of James LJ remain valid. The Uniform Civil Procedure Rules and their predecessors make provision for contempt proceedings in order to provide for the enforcement of the process and orders of the Court and the punishment of acts which impede the due administration of justice ... resort to contempt proceedings by litigants for the purposes of forensic manoeuvring should be discouraged.

[citations omitted]

13. [13]
    This reasoning applies by analogy here. I am of the view that the application for contempt brought by Mr Margetts impedes the due administration of justice. It is not an appropriate avenue for the Tribunal to use its power to hear and determine a contempt application.

Orders

14. [14]
    I dismiss the application on the basis that it is misconceived and otherwise an abuse of process.
15. [15]
    In the exercise of my discretion under r 932 of the Uniform Civil Procedure Rules 1999 (Qld), I make no order as to costs.