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Abacus Associates Pty Ltd v Rowley QCATA 37
Abacus Associates Pty Ltd v Graham Rowley (t/a APL/QBC Partnership)  QCATA 37
Abacus Associates Pty Ltd
Graham Rowley (trading as APL/QBC Partnership)
11 and 12 March 2015
Dr J R Forbes, Member
17 March 2015
Leave to appeal is refused.
MINOR CIVIL DISPUTE – APPLICATION FOR LEAVE TO APPEAL – where successive proceedings between same parties raise the same or similar issues – where first action summarily dismissed – whether second action barred by estoppel by record – where summary dismissal based on jurisdictional and procedural grounds – where no decision on the merits – where no estoppel by record barring second action – leave to appeal refused
Property Agents and Motor Dealers Act 2000 (rep) s 346
Queensland Civil and Administrative Tribunal Act 2009 ss 12, 32, 47, 142
Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
AWB Ltd (No 10), Re; Australian Securities and Investments Commission v Lindberg (2009) 76 ACSR 181;  VSC 566
Basser v Medical Board of Victoria  VR 953
Carson v Legal Services Commission & Anor  NSWCA 308
Drew v Bundaberg Regional Council  QPELR 350;  QCA 359
Eastman v Australian Capital Territory (2014) 285 FLR 325;  ACTSC 105
Felton and Anor v Raine and Horne Real Estate  QCATA 330
Hart v Hall & Pickles Ltd  1 QB 405
James Trowse Constructions Pty Ltd v Spankie & Ors  QCAT 696
McNair v Press Offshore Ltd (1997) 17 WAR 191
Miller v University of New South Wales (2003) 132 FCR 147
Milojevic v ROH Industries Pty Ltd (1991) 56 SASR 78
Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91;  WASCA 50
Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd (2002) 140 IR 112;  FCA 1168
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287
Victorian Professional Group Management Pty Ltd v The Proprietors “Surfers Aquarius” Building Units Plan 3881  1 Qd R 487
Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98;  WASCA 29
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- The appellant (“Abacus”) is an accountancy firm carrying on business at Toowong, Brisbane.
- The respondent (“Rowley”) conducts a business known as the APL (Australian Poker League)/QBC and was, at all material times, a client of Abacus.
- Upon an application by Abacus the Tribunal, on 4 April 2014, ordered that the First Action be struck out and dismissed.
- On 26 September 2014 Rowley recommenced proceedings against Abacus, again claiming $16,526.96 for debt collection fees unlawfully charged (“The Second Action”).
- On 2 October 2014 Abacus applied for an order striking out the Second Action.
- That application came before Adjudicator Walsh, for hearing on the papers, on 24 October 2014. The Adjudicator refused (or postponed) Abacus’ application to strike out, observing, inter alia:
[Abacus’] submissions, essentially, are that these proceedings ... involve the same parties and depend upon the same facts and circumstances as in [the First Action]. ... If the original dismissals in [the First Action] were [for] ... lack of ... jurisdiction, then it seems to me, at this stage, that the Tribunal is able to entertain [the Second Action as] ... not res judicata. ... I think that it would be premature to dismiss [the Second Action] at this stage... 
- From that decision Abacus now seeks leave to appeal.
- And so, from a minor mountain of paper, one present question arises: Was the dismissive order made on 4 April 2014 a hearing on the merits, or was it based on a want of jurisdiction, or other purely procedural grounds? In appropriate circumstances an estoppel by record may arise from the decision of a State administrative tribunal.
- No record of the reasons for the 4 April 2014 order is available. However, reasonable and probable inferences can be derived from the submissions of the applicant Abacus on that occasion, in response to the initiating process in the First Action.
- That action was framed as a Minor Civil Dispute – Consumer Dispute. It sought an amount of $16,526.96 plus costs, but was otherwise in the nature of a criminal complaint, assertively seeking orders that:
(i) [Abacus] committed offences under the Property Agents and Motor Dealers Act 2000 by providing debt collection services to the applicant; (ii) [Abacus] unlawfully claimed reward for those offences from the applicant; (iii) [Abacus] was unlicensed to perform debt collection services ... (iv) An offense [sic] was committed by offering to provide unlicensed debt collection, and that an offense [sic] was committed by providing unlicensed debt collection services; and (v) a further offense [sic] for using QCAT to claim reward.
- In support of its application for summary dismissal Abacus submitted that QCAT has no jurisdiction to entertain allegations of criminal misconduct, that the proceedings were improperly framed as a consumer dispute, and that they constituted an abuse of process, because the same or similar issues between the parties were then pending in the Magistrates Court. All in all, then, Abacus submitted that the First Action should be struck out as misconceived, frivolous or vexatious.
- It is trite law that QCAT is not a court of criminal jurisdiction. In that respect Rowley’s demands for findings of offences were clearly misconceived. The question whether this case is properly described as a consumer dispute is merely procedural, and the procedural discretion to stay or strike out proceedings already begun in another jurisdiction is well established, commonly, albeit not invariably, under the rubric of abuse of process.
- On the available materials I am satisfied that the order made on 4 April 2014 is not a decision upon the merits, and that, accordingly, it is no bar to the Second Action. It is inconceivable that the Tribunal would enter, on the papers, summary judgement upon the merits of a claim, without published reasons and absent an examination of witnesses on likely issues of credit.
- It has been observed that the claims in the Second Action are framed differently, in a style more appropriate to civil litigation. Indeed, it has been held that new issues, even when mixed with others that have finally been decided, may rescue a second proceeding from estoppel by record, at least in part. However, as I have found no estoppel in this case, this point need not be taken further.
- No arguable point of error has been demonstrated. Therefore, leave to appeal will be refused. However, I need hardly emphasise that this decision implies no view as to the merits of the Second Action.
Leave to appeal is refused.
 Contrary to licensing provisions of the former Property Agents and Motor Dealers Act 2000 s 346.
 Decision of Mr Walsh, 24 October 2014, pages 2 and 5.
 As required by QCAT Act s 142(3)(a).
 Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453; Victorian Professional Group Management Pty Ltd v The Proprietors “Surfers Aquarius” Building Units Plan 3881  1 Qd R 487; McNair v Press Offshore Ltd (1997) 17 WAR 191; Basser v Medical Board of Victoria  VR 953; Milojevic v ROH Industries Pty Ltd (1991) 56 SASR 78. For constitutional reasons the position of federal tribunals is different: Miller v University of New South Wales (2003) 132 FCR 147.
 Submissions of Abacus attached to application to strike out or dismiss proceeding MCDO333/14, filed on 14 March 2014.
 Allegation (v) refers to earlier proceedings with which we are not now concerned.
 The Magistrates Court proceedings were discontinued on 27 June 2014, some 10 weeks after the First Action was dismissed and approximately 3 months before the Second Action was instituted.
 QCAT Act s 47.
 QCAT Act s 12(b) or (c); Schedule 3 “consumer”.
 Re AWB Ltd (No 10); Australian Securities and Investments Commission v Lindberg (2009) 76 ACSR 181;  VSC 566 at ; Carson v Legal Services Commission & Anor  NSWCA 308; Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287 at 290-291; Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd (2002) 140 IR 112;  FCA 1168 at ; James Trowse Constructions Pty Ltd v Spankie & Ors  QCAT 696.
 Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91;  WASCA 50 at ; Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98;  WASCA 29 at ; Phipson on Evidence 12th ed 1976 at .
 Hart v Hall & Pickles Ltd  1 QB 405 at 411 per Denning LJ.
Eastman v Australian Capital Territory (2014) 285 FLR 325;  ACTSC 105 at .
 Cf Drew v Bundaberg Regional Council  QPELR 350;  QCA 359 at ; Felton and Anor v Raine and Horne Real Estate  QCATA 330 at .
- Published Case Name:
Abacus Associates Pty Ltd v Graham Rowley (t/a APL/QBC Partnership)
- Shortened Case Name:
Abacus Associates Pty Ltd v Rowley
 QCATA 37
17 Mar 2015