Kerlin v MLK Marketing[2024] QCAT 601

1. REASONS FOR DECISION

1. [1]
   On 11 November 2024, I made certain directions in this matter, including that both proceedings remain as separate proceedings but be heard and decided together.  As any order in either proceeding presupposes jurisdiction, these are written reasons for that decision.
2. [2]
   There are two separate minor civil disputes before the Tribunal, one of which was listed before me on 11 November 2024; and the other listed for 25 November 2024.
3. [3]
   By Minor Civil Dispute filed 16 April 2024 in proceeding Q 1/24, the applicant in the first proceedings, Ms Kerlin t/as Safe Little Bub, seeks the liquidated sum of $16,986.90 including $16,608.90 she alleges she paid to the respondent who is also the applicant in proceeding Q10264-24 (referred to as “MLK” for ease of reference).
4. [4]
   By Minor Civil Dispute filed 11 July 2024, MLK claims $18,617.50 plus filing fee.
5. [5]
   On 11 November 2024, MLK urged upon me that I should adjourn the first proceeding as it related to the same subject matter as the second; and that the proceedings should be heard together. Ms Kerlin did not oppose the proceedings being dealt with together but did want her matter to proceed on 11 November 2024. It was not ready for hearing.

1. Jurisdiction

6. [6]
   As the Appeal Tribunal has observed, “there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it.”^[1]
7. [7]
   The Minor Civil Dispute by Ms Kerlin appears to be a trader v trader dispute seeking a debt or liquidated demand. So too does the Minor Civil Dispute filed by MLK.
8. [8]
   This is notwithstanding that some of Ms Kerlin’s correspondence annexed refers to matters under the Modern Slavery Act 2018 (Cth). The Modern Slavery Act is Commonwealth legislation which requires entities based, or operating, in Australia, which have an annual consolidated revenue of more than $100 million, to report annually on the risks of modern slavery in their operations and supply chains, and actions to address those risks. Other entities based, or operating, in Australia may report voluntarily. I do not understand it to be alleged that MLK earns over $100 million.
9. [9]
   Ms Kerlin’s claim appears to be for refund of a fee paid for services and primarily in contract, that is, that is the work agreed to be performed was either not performed or was not performed in the way expressly promised, represented or implied.

1. Tribunal’s Jurisdiction for Minor Civil Disputes

10. [10]
    By section 11 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Tribunal has jurisdiction to hear and decide a minor civil dispute.
11. [11]
    “Minor Civil Dispute” is defined in Schedule 3, relevantly as follows:

3. ““Minor Civil Dispute” means

3. (a)
   a claim to recover a debt or liquidated demand of money of up to the prescribed amount;^[2] or

3. (b)
   a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders:^[3] 

3. (i)
   for payment of money of a value not more than the prescribed amount; or

3. (ii)
   for relief from payment of money of a value not more than the prescribed amount; or

3. (iii)
   for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or

3. (iv)
   for return of goods of a value not more than the prescribed amount; or

3. (v)
   for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; or

3. (c)
   a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle; or

3. (d)
   a tenancy matter; or

3. (e)
   a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, chapter 2 and is for an amount not more than the prescribed amount; or

3. (f)
   a matter in relation to which a person may, under the Building Act 1975, chapter 8, part 2A apply to the tribunal for an order.”

12. [12]
    However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.
13. [13]
    A claim mentioned in paragraph 1(b) does not include a claim in a proceeding to which the Fair Trading Act 1989, section 50A applies.
14. [14]
    Section 50A Fair Trading Act pertains to claims relating to motor vehicles under $100,000 to which the Australian Consumer Law (Qld) applies.
15. [15]
    For completeness, by paragraph 2 of the definition, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.
16. [16]
    The prescribed amount is, currently, $25,000.^[4] A relevant person may agree to limit it claim to this amount (s 12(2)) and can be taken to have done so by applying to the Tribunal (s 12(3)).
17. [17]
    Under section 12(1) of the QCAT Act, the tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under the Act, applied to the tribunal to deal with the dispute. ‘Relevant person’ is defined in section 12(4) QCAT Act as:

3. ““relevant person” means—

3. (a)
   for a claim to recover a debt or liquidated demand of money—a person to whom the debt is owed or money is payable; or

3. (b)
   subject to paragraphs (c) to (f), for a claim arising out of a contract between a consumer and a trader—the consumer; or

3. (c)
   for a claim arising out of a contract between 2 or more traders—any of the traders; or

3. (d)
   for a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle—a person incurring loss because of the damage; or

3. (e)
   for a tenancy matter—a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the tribunal for a decision in relation to the matter; or

3. (f)
   for a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 —a party to the dispute; or

3. (g)
   for a matter under the Building Act 1975, chapter 8, part 2A —a person who, under the Building Act 1975, chapter 8, part 2A may apply to the tribunal for a decision in relation to the matter.”

18. [18]
    Thus, the Tribunal only has jurisdiction if the applicant is a “relevant person” as defined in subsection 12(4) of the QCAT Act, that is (paraphrasing), (a) a person with a debt or liquidated demand of $25,000 or less (b) or (c) a consumer with a contract with a trader or two or more traders between themselves seeking payment, excusal of payment, performance of work or return of goods (all $25,000 or less) (d) a person incurring loss or damage of $25,000 or less because of a vehicle, (e) a person seeking relief in relation to a residential tenancy matter, (f) a person with a fence or tree dispute with their neighbour; or (g) a person who may apply for relief under the Building Act 1975.
19. [19]
    “Consumer” and “trader” are both defined in Schedule 3. Ms Kerlin is a trader acquiring services for fee or required in relation to a trade or business carried on by her, namely her business, Safe Little Bub.
20. [20]
    I do not understand anyone to be saying that MLK is carrying on a professional discipline not in trade or commerce that might be excluded from the definition of a trader (such as lawyers, medical professionals, real estate agents etc.)
21. [21]
    Accordingly, Ms Kerlin could bring a claim against MLK either as a consumer or a trader but MLK could not bring a claim against Ms Kerlin unless she was a trader.
22. [22]
    The limited relief the Tribunal can grant is set out in section 13. It relevantly provides:

3. “(1)
   In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application.

3. (2)
   For subsection (1), the tribunal may make only the following final decisions to resolve the dispute—

3. (a)
   for a claim mentioned in schedule 3, definition minor civil dispute, paragraph 1(a), (b) or (c)—

3. (i)
   an order requiring a party to the proceeding to pay a stated amount to a stated person; or

3. (ii)
   an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant; or

3. (iii)
   an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates; or

3. (iv)
   an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person; or

3. (v)
   an order combining 2 or more orders mentioned in subparagraphs (i) to (iv).”

23. [23]
    There are countless cases in the Tribunal where repayment (a refund) has been ordered, including under a contract for supply of services or for breach of a guarantee under the Australian Consumer Law.  For examples where claims for unjust enrichment or a refund for failure of consideration, unjust enrichment, or breach of implied term or recission for misrepresentation or claims in restitution (where the amount in dispute is known) have been found to be within jurisdiction, see Davis v Gray [2018] QCATA 147 at [55] and [64], Rains v Scamp [2013] QCATA 96 at ([2], [4]-[5], Ritnas v Ryana [2021] QCATA 100 [6], Yang v Wellcamp Properties Pty Ltd [2018] QCATA 61, Exeter Nominees v Roar Marketing Concepts Pty Ltd [2020] QCATA 118.
24. [24]
    Accordingly:

    1. Both appear to be a minor civil dispute under section 11;
    2. Ms Kerlin is a relevant person within the meaning of section 12 as a person with a debt or liquidated demand of $25,000 or as a trader seeking payment, excusal of payment, performance of work or return of goods from another trader;
    3. MLK is a relevant person within the meaning of section 12 as a relevant person within the meaning of section 12 as a person with a debt or liquidated demand of $25,000 or as a trader seeking payment from another trader;
    4. Ms Kerlin’s application is within the jurisdiction of the Tribunal.
    5. MLK’s application is within the jurisdiction of the Tribunal.

1. Should the Proceedings be Consolidated or Heard Together?

25. [25]
    Section 54(1) of the QCAT Act provides:

“The tribunal may direct that 2 or more proceedings concerning the same or related facts and circumstances be consolidated into 1 proceeding.”

26. [26]
    Section 55(1) of the QCAT Act provides:

“The tribunal may direct that 2 or more proceedings concerning the same or related facts and circumstances –

(a)  remain as separate proceedings but be heard and decided together; or

(b)  be heard in a particular sequence.”

27. [27]
    As summarised by (then) Deputy President Judge Allen QC in Ting v Medical Board of Australia; Ting v Queensland Health [2019] QCAT 192, the objects of the QCAT Act include having the Tribunal deal with matters in a way that is economical, informal and quick;^[5] and the Tribunal must ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent in achieving justice.^[6] 
28. [28]
    Considerations of savings of time and costs and avoiding duplicity of decisions would generally favour the proceedings being heard together, whether it be as consolidated or separate proceedings, unless there is a reason that this would be irregular, inappropriate or unfair.^[7]
29. [29]
    Sections 54 and 55 of the QCAT Act are in similar terms to rules 78 and 79 of the Uniform Civil Procedure Rules 1999 (Qld), in respect of which Justice Crow observed in Wan & Anor v Merlot Gordon & Ors; Merlot Gordon & Ors v Olsen Lawyers [2019] QSC 142 at [21] to [23]:

3. “[21]
   In Bishop v Bridgelands Securities^[8] Wilcox J said:

3. “The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.”

3. [22]
   In Ghose v CX Reinsurance Company Ltd & Ors^[9] Austin J said:

3. “[27]
   Although his Lordship speaks of consolidation, in my view the same principles apply where the application is for a joint hearing. His Lordship's observations make it clear that the Court's essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings). A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of litigation if the proceedings remain separate. A pragmatic approach involves the Court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to the Court. I was referred to s 56(1) of the Civil Procedure Act 2005 (NSW), but in my view the articulation of the overriding objective of facilitating the just, quick and cheap resolution of the real dispute between the parties simply confirms the approach to be taken to such matters as consolidation or joint hearing of proceedings.”

3. [23]
   In Humphries v Newport Quays Stage 2A Pty Ltd,^[10] Besanko J said:

3. “11.
   There is no dispute that the eight proceedings engage O 29 r 5(a). The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows:

3. 1.
   Are the proceedings broadly of a similar nature?

3. 2.
   Are there issues of fact and law common to each proceeding?

3. 3.
   Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

3. 4.
   Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?

3. 5.
   Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?

3. 6.
   Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

3. 7.
   Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

3. 8.
   Is one proceeding further advanced in terms of preparation for trial than the others?

3. 9.
   Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?”

3. [24]
   It is plain that r 79 of the UCPR confers a broad and unfettered discretion upon a court to order two or more proceedings to be heard together. Convenience to the parties and the court, the desirability of avoiding a multiplicity of actions, and a saving of time and expense are all important matters when considering such an unfettered discretion. It is important that the interests of the plaintiffs in the [subject] litigation are not prejudiced by the making of an order for joinder…”

30. [30]
    The two proceedings concern “the same or related facts and circumstances” being the alleged agreement for and supply of online marketing services by MLK for Safe Little Bub and concern common issues. The same witnesses are likely to be called. Both matters are in the early stages.
31. [31]
    The amounts claimed appear to overlap but if the proceedings were consolidated, there is a risk that the Tribunal’s jurisdiction ($25,000 for Minor Civil Disputes might be exceeded. There is also a practical reason: the first dispute started before the implementation of QCASE and so all documents in relation to it have been or are to be filed in paper form to preserve the integrity of the Court’s records; the subsequent proceeding was commenced electronically via QCASE, and all documents are uploaded to QCASE. It is not therefore practicable to consolidate the files as there would then be no singular source of truth (physical v electronic) for the Tribunal’s files.
32. [32]
    For the above reasons, it is appropriate that the proceedings remain as separate proceedings but be heard together.