DB v CB[2023] QCAT 511

REASONS FOR DECISION

Family Court context

1. [1]
   I have de-identified the parties because these Applications for minor civil dispute – minor debt arise from final orders made in the Federal Circuit and Family Court of Australia (‘FCAFCA’) adjusting matrimonial property rights in respect of the pool of matrimonial assets accumulated during their former marriage.
2. [2]
   Of my own motion, I will make a non-publication order in respect of the parties’ actual names, addresses, and contact details.

The 3 MCD Applications

3. [3]
   DB simultaneously filed the three separate minor civil debt (‘MCD’) Applications in Q176/23, Q177/23 and Q178/23 with the Tribunal Registry at Southport on 28 March 2023 and served them on CB on Easter Sunday (9 April 2023) when in the Applicant’s words she “picked up boys at mum’s place.” 
4. [4]
   The Applications have much in common. They each relate to costs associated with the same matrimonial property the subject of the FCAFCA proceedings. Each claim relies on the terms of Court ordered indemnity in conjunction with an agreement in writing (allegedly) signed by CB who says her signature was forged by DB.
5. [5]
   The facts recited by DB said to give rise to the liability are essentially the same in each proceeding.

Facts

6. [6]
   The facts common to each application are as follows.
7. [7]
   The parties became engaged in March 2005, married on 14 December 2005, and separated on 3 July 2015.
8. [8]
   On 9 February 2006 during the marriage, CB was registered on title of the property being Lot 445 on Survey Plan 176947 Local Government Gold Coast with a 99/100 interest as a tenant in common with THOD Pty Ltd ACN 110 910 702 (‘THOD’)^[1] as Trustee with a 1/100 interest.
9. [9]
   At the time of commencement of the QCAT proceedings, the parties were still so registered as owners.
10. [10]
    The property address is 23 Casuarina Drive, Molendinar, or “the Molendinar property” as DB calls it.
11. [11]
    DB was (and currently apparently still is) sole Director and Shareholder of THOD, trustee for the House of David Master Trust (‘THODMT’).
12. [12]
    In terms of an agreement in writing dated 29 July 2005, if the parties in future separated, ownership of all assets purchased using compensation payable to DB from a certain insurance claim would revert to him.
13. [13]
    The Molendinar property was purchased with some of the insurance payout received by DB.
14. [14]
    CB did not transfer ownership of the Molendinar property back to DB (THOD) after separation.
15. [15]
    Final Property Orders were made in the Federal Circuit and Family Court of Australia by Judge Middleton on 14 April 2022.
16. [16]
    The disposal of the Molendinar property and payment of the net proceeds after sale of it is to be dealt with according to those Orders, not the 2005 agreement.
17. [17]
    Order 7 of those orders was in terms that CB indemnify DB for certain debts which he sought to enforce in the Federal Circuit and Family Court of Australia.
18. [18]
    DB’s enforcement attempt was unsuccessful.
19. [19]
    DB allegedly was told by CB’s lawyer that they could be pursued in QCAT or the Magistrates Court.
20. [20]
    The enforcement Judge allegedly concurred with that statement; however, DB cannot afford to pay for transcript to prove it.
21. [21]
    DB’s appeal against the Final Property Orders was dismissed on 5 October 2022.

Claims

22. [22]
    The several amounts claimed by DB are, in Q176/23 - $16,994.96, in Q177/23 - $ 10,355.06, and in Q178/23 - $16,232,64, in sum $43,582.66 before interest and costs.
23. [23]
    The sum of the claims exceeds the limit of the Tribunal’s monetary jurisdiction of $25,000 by the difference of $18,582.66.

Application Q176/23

24. [24]
    In Q176/23, the claim as of 27 March 2023 for $16,994.96 is for expenses allegedly paid personally by DB on behalf of CB for local government rates for the Molendinar property in the period 13 July 2015 to 25 August 2022 plus interest of $4.650.03 from 23 July 2015, for a total of $21,644.99 plus filing and service fees.
25. [25]
    It appears on the face of each Application that DB obtained a fee waiver from the QCAT Deputy Registrar and no service fee was incurred because the Application was served in the way I recited earlier.

Application Q177/23

26. [26]
    In Q177/23, the claim as of 27 March 2023 is for $10,355.06 for expenses allegedly paid personally by DB on behalf of CB for local government water rates for the Molendinar property in the period 11 August 2015 to 21 December 2022 plus interest of $2,990.69 for the period 3 July 2015 to 27 March 2023, for a total of $13,345.76.

Application 178/23

27. [27]
    In Q178/23, the claim as of 27 March 2023 is for $16,232.64 for expenses allegedly paid by DB on behalf of CB for insurance premiums for the Molendinar property in the period February 2015 to February 2023 plus interest of $3,830.33 for the period 3 July 2015 to 27 March 2023, in total $20,062.98.

Schedules to claims in Q176/23 and Q177/23

28. [28]
    The claims for principal and interest in Q176/23 and Q177/23 are each supported by a spreadsheet setting out computation of principal and interest based on CB’s 99/100^th interest in the Molendinar property with arithmetical clarity. No further explanation is required for present purposes.

Schedule to claim in Q178/23

29. [29]
    The claim for principal and interest in Q178/23 for insurance premium in Q178/23 is likewise supported by a spreadsheet prepared by DB setting out the computation of principal and interest with clarity, but it is appropriate that I briefly summarise the basis of the claim.
30. [30]
    In the Attachment to Q178/23, DB at paragraph [33] says that he has never agreed to pay insurance premiums on behalf of CB on the basis that she did not have to repay him.
31. [31]
    Accordingly, he says that she has at “all material times” had a debt to him for insurance premiums relating to the Molendinar property and including for coverage of CB’s jewellery left at the property.

Applicant’s submissions

32. [32]
    DB’s written submissions filed with the Tribunal on 29 September 2023 inform the Tribunal of his methodology and reasons for splitting the claims across 3 separate Applications for minor debt.
33. [33]
    He submitted the following.
34. [34]
    In paragraph [32]:

Due to the nature of the debts, I already consolidated (sic) each of the separate debts into their 3 different categories eg Rates, Water, Insurance when filing my 3 claims in order to streamline and expedite the hearing of all claims, and minimise the resources and time for the Tribunal and the parties.

35. [35]
    In paragraph [33]:

Each category/claim is therefore comprised of multiple debts, each with a value for the debt plus interest from the date of it became due and payable, which are each below the threshold of $25,000.

36. [36]
    In paragraph [34]:

Additionally, each category/claim also has its own total claim amount comprising the total debt/s owed plus total interest. The total amount of each category/claim is therefore capable of being heard in QCAT.

37. [37]
    In paragraph [36]:

Medical evidence has already been provided to the Tribunal that my age and medical conditions and injuries prevent me from attending to all claims at the same time and/or on the same day. To require me to act contrary to and beyond my capabilities would be to deny me natural justice and be grounds for appeal. 

38. [38]
    Implicit in those submissions is that all the claims could have been made in one Application but were not, for the reasons advanced by DB.
39. [39]
    The submissions expressly disclose DB’s conscious decision to bring the totality of DB’s claims within the Tribunal’s monetary jurisdictional limit of $25,000 by splitting them across three separate Applications.

Application for dismissal

40. [40]
    In a Form 40 Application filed on 14 June 2022, CB applied for orders that the three Applications in these proceedings be heard together and for dismissal of DB’s Applications for abuse of process.
41. [41]
    The following are the grounds for CB’s dismissal application.

3. 1.
   The Applicant (ex-Husband) claims the expenses that he paid during his sole occupation of the property (matrimonial house) for the period from 3/7/2015 (separation) to 27/3/2023 (the date when the Applicant filed to QCAT). All the property matters between the Applicant and I (Respondent) were dealt with by the Final Property Orders (Please see the attachment) made on 14/4/2022 by Judge Middleton. The Applicant appealed against the Orders, and the Appeal was dismissed on 5/10/2022 by Justice Tree (Please see the attachment).

3. 2.
   The total amount of the claim is over $25,000. Q176/23 – Rates ($21,644.99), Q177/23 - Water Rates ($13,345.76), and Q178/23 – Insurance premiums ($20,062.98).

3. 3.
   The Applicant retained sole possession of the property to my exclusion for the entire period from 3/7/2015 (separation) to 27/3/2023 (the date when the Applicant filed to QCAT). The Applicant didn’t pay any rent during that period. The Applicant refused to move out of the property so I have been forced to rent private accommodations for the children and myself since the separation on 3/7/2015.

The issues

42. [42]
    The issues are –

    1. whether DB has impermissibly split claims between three Applications in abuse of the Tribunal’s process, to circumvent the $25,000 monetary limit in the Tribunal’s minor civil dispute jurisdiction; and
    2. whether DB’s remedy lies in another forum, not QCAT.

Discussion

43. [43]
    The terms of Judge Middleton’s Final Property Orders are not controversial.
44. [44]
    Order 7 of the Orders made on 14/4/2022, a copy of which is attached to the Application for dismissal, provided that CB shall pay, be liable for and indemnify DB in respect of any debt, liability, or loan in the name of CB. Order 6 was in reciprocal terms that DB likewise pay, be liable for and indemnify CB in respect of any debt, liability, or loan in his name.
45. [45]
    On 22 June 2023, I ordered that DB’s three Applications be heard together and that the dismissal application be determined first at the hearing.
46. [46]
    Not content with those Orders, DB filed a Form 40 on 22 August 2023 (in effect) for “referral” and reversal of the order that the three Applications be heard together.
47. [47]
    He submits that there was no proper basis for that order and that he was denied procedural fairness because the attachments to CB’s Form 40 Application originally received by him from Registry were incomplete.
48. [48]
    It is appropriate in that context that I summarise some of the other interim orders previously made along the way.
49. [49]
    On 14 July 2023, I ordered that –

    1. QCAT Registry re-email CB’s Form 40 Application and attachments filed on 14 June 2023 to DB.
    2. DB file any further submissions and email them to her by 4pm on 14 August 2023.
    3. The dismissal application be heard first at commencement of the hearing then scheduled for 24 August 2023.
50. [50]
    I am satisfied that QCAT Registry did completely re-email CB’s Form 40 Application and attachments filed on 14 June 2023 to DB. Doing so removed any basis for further prevarication by DB.
51. [51]
    On 24 August 2023, I refused an application by DB to adjourn the hearing in circumstances where he had successfully applied for adjournment previously. Further adjournment will have unnecessarily inconvenienced CB.
52. [52]
    I heard DB in lengthy address and evidence on 24 August 2023 concerning his three Applications for minor debt, his Form 40 application that they be heard separately, and his response to CB’s dismissal application.^[2]
53. [53]
    At the conclusion of that hearing, I ordered that DB file and serve final submissions and documents on which he wished to rely.
54. [54]
    I have already referred to some of DB’s written submissions filed on 22 September 2023. I have considered them in their entirety along with the other extensive material filed by him during the several proceedings to date in QCAT.
55. [55]
    I reserved my decision on 3 October 2023.

Decision/s and reasons

Application by DB for hearing separation - refused

56. [56]
    I find that DB’s Form 40 Application filed on 22 August 2023 was brought for the impermissible ulterior purpose of undermining CB’s application for dismissal of the 3 Applications for claim-splitting.
57. [57]
    I decline to set aside the Order made on 22 June 2023 that the claims be heard together because the original order was correctly made and a reversal now would condone DB’s failure to make all his claims in one Application.

Application by CB for dismissal of DB’s 3 Applications for minor debt - allowed

Claim-splitting

58. [58]
    As I said earlier, the underlying facts and matters giving rise to the alleged liabilities are the same, the cause of action in each application is the same, and each application relies on Court ordered indemnity in paragraph 7 of the Final Property Orders of Judge Middleton dated 14 April 2022.
59. [59]
    If they were justiciable here, all DB’s claims must have been made in one Application in which event the overall sum claimable would be limited to the maximum of the Tribunal’s monetary jurisdiction – $25,000 by operation of section 12(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the definition of “prescribed amount” to that effect.
60. [60]
    DB chose the device of filing three separate Applications in a thinly disguised attempt to circumvent the $25,000 claim limit in the Tribunal’s minor civil dispute jurisdiction. He has abused the process of this Tribunal in attempting to evade it.^[3]
61. [61]
    DB’s pretext of personal convenience and a medical condition as the reason for splitting his claims is hollow. At a much earlier stage of proceedings, I ordered that he may be represented if he chose. He did not take up the opportunity.
62. [62]
    DB’s assertion that preventing him from splitting claims would deny him natural justice is baseless.
63. [63]
    DB is bound by the provisions of the QCAT Act relating to jurisdiction and procedure and what is and is not permissible in this Tribunal just like any other litigant who comes to this jurisdiction to resolve disputes.
64. [64]
    In Garrett v L J Hooker Cleveland [2018] QCATA 134 at [23], Dr J R Forbes excerpted the following from High Court authority^[4] on the doctrine of abuse of process.

(A)buse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.

65. [65]
    The test is satisfied in the present case.
66. [66]
    Section 47(2)(a) of the QCAT Act empowers me to dismiss DB’s Applications if, pursuant to section 47(1)(c), I consider them to be an abuse of process.
67. [67]
    I consider that DB’s several Applications are an abuse of process for the reasons just given, and for other reasons to which I now turn.

Incorrect Forum

68. [68]
    DB has come to the wrong place (the Tribunal) to vindicate his claim for court ordered indemnity.
69. [69]
    Enforcement of Order 7 of Judge Middleton’s Final Property Orders in the Federal Circuit and Family Court of Australia is where DB’s remedy (if any) lies.^[5]
70. [70]
    The provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCAFCA Act’) and Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ('FCAFCA Rules’) regulate procedures for the enforcement of Family Court Orders.^[6] 
71. [71]
    The general enforcement powers of the FCAFCA are set out in the FCAFCA Rules and are directly relevant to jurisdiction, including the following.
72. [72]
    Rule 11.07(a) provides that the court (that is – the Federal Circuit and Family Court of Australia) may make an order declaring the total amount owing under an obligation.
73. [73]
    The indemnity in Order 7 is such an obligation.
74. [74]
    DB may ask for the declaration there in seeking enforcement if he has not already done so, not here.
75. [75]
    CB’s defence (if any) to the claim for enforcement is likewise justiciable there, not here.
76. [76]
    Rule 11.07(d) provides that the court may make an order for enforcement of an obligation to pay money (see Rule 11.05); or (e) in aid of enforcement of an obligation.
77. [77]
    I explained to DB, the sum of money (if any) payable or not payable to DB is to be determined in enforcement proceedings there, not here.^[7]
78. [78]
    A refusal by FCAFCA to enforce its own Orders (as alleged by DB) may be appealable in that jurisdiction, but it is not appealable here by subterfuge.
79. [79]
    DB conceded that he had raised “early on” (but not in a final affidavit) in the proceedings in the Federal Circuit and Family Court of Australia the matters he now seeks to litigate in QCAT.^[8]
80. [80]
    As I explained to DB, the Tribunal has no jurisdiction to retry disputes previously heard and determined by the Federal Circuit and Family Court of Australia.^[9]
81. [81]
    The Tribunal has no delegated jurisdiction to ascertain the monetary liability of one party to another under Family Court-ordered indemnity and it cannot exercise federal jurisdiction that is not enabled by State legislation.
82. [82]
    Pronouncements or statements by others to the contrary^[10] as alleged by DB^[11] cannot vest the Tribunal with jurisdiction it otherwise does not have according to law.
83. [83]
    DB’s several Applications are therefore for claims which the Tribunal has no jurisdiction to adjudicate.
84. [84]
    The three Applications for minor debt claims are on that account also an abuse of process.
85. [85]
    Additionally, I find that DB’s conduct in this Tribunal during the three proceedings has caused his former wife, CB, “serious and unjustified trouble and harassment” in the sense of that phrase used by Phillipides J in Lu v Petrou [2011] QSC 57, which conduct itself is also an abuse of process.
86. [86]
    There is unfortunately no sanction under the QCAT Act that I can bring to bear to compensate CB.
87. [87]
    Nor can I award her any costs in this minor civil dispute jurisdiction.

Disposal

88. [88]
    DB’s several abuses of process will attract the same outcome in this Tribunal – dismissal pursuant to section 47(1)(c) and 47(2)(a) of the QCAT Act.
89. [89]
    I make the non-publication Order, refuse DB’s application for separate hearings, and dismiss DB’s Applications Q176/23, Q177/23, and Q178/23 for abuse of process.