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Abacus Associates Pty Ltd v Rowley[2015] QCATA 37

Abacus Associates Pty Ltd v Rowley[2015] QCATA 37

CITATION:

Abacus Associates Pty Ltd v Graham Rowley (t/a APL/QBC Partnership) [2015] QCATA 37

PARTIES:

Abacus Associates Pty Ltd

(Appellant)

v

Graham Rowley (trading as APL/QBC Partnership)

(Respondent)

APPLICATION NUMBER:

APL509-14

MATTER TYPE:

Appeals

HEARING DATE:

11 and 12 March 2015

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

17 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal is refused.

CATCHWORDS:

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; [2009] VSC 566

Basser v Medical Board of Victoria [1981] VR 953

Carson v Legal Services Commission & Anor [2000] NSWCA 308

Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359

Eastman v Australian Capital Territory (2014) 285 FLR 325; [2014] ACTSC 105

Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330

Hart v Hall & Pickles Ltd [1969] 1 QB 405

James Trowse Constructions Pty Ltd v Spankie & Ors [2011] 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; [2012] WASCA 50

Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd (2002) 140 IR 112; [2002] 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 [1991] 1 Qd R 487

Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98; [2009] 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

  1. [1]
    The appellant (“Abacus”) is an accountancy firm carrying on business at Toowong, Brisbane.
  2. [2]
    The respondent (“Rowley”) conducts a business known as the APL (Australian Poker League)/QBC and was, at all material times, a client of Abacus.
  3. [3]
    On 14 February 2014 Rowley commenced proceedings in this Tribunal[1] against Abacus, claiming, inter alia, $16,526.96, as fees unlawfully[2] charged for debt collection services (“the First Action”).
  4. [4]
    Upon an application by Abacus the Tribunal, on 4 April 2014, ordered that the First Action be struck out and dismissed.
  5. [5]
    On 26 September 2014 Rowley recommenced proceedings against Abacus,[3] again claiming $16,526.96 for debt collection fees unlawfully charged (“The Second Action”).
  6. [6]
    On 2 October 2014 Abacus applied for an order striking out the Second Action.
  7. [7]
    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... [4]

  1. [8]
    From that decision Abacus now seeks leave[5] to appeal.
  2. [9]
    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.[6]
  3. [10]
    No record of the reasons for the 4 April 2014 order is available. However, reasonable and probable inferences can be derived from the submissions[7] of the applicant Abacus on that occasion, in response to the initiating process in the First Action.
  4. [11]
    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.[8]

  1. [12]
    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.[9] All in all, then, Abacus submitted that the First Action should be struck out as misconceived, frivolous or vexatious.[10]
  2. [13]
    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[11] 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.[12]
  3. [14]
    It is apparent that at least one of the reasons for dismissing the First Action – and probably the principal reason – was absence of jurisdiction. A dismissal on that ground creates no estoppel by record,[13] because it is not a finding that the defendant is not liable.[14]
  4. [15]
    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.
  5. [16]
    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.[15] However, as I have found no estoppel in this case, this point need not be taken further.
  6. [17]
    No arguable point of error has been demonstrated.[16] 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.

ORDER

Leave to appeal is refused.

Footnotes

[1]  MCDO333/14.

[2]  Contrary to licensing provisions of the former Property Agents and Motor Dealers Act 2000 s 346.

[3]  MCDO2200/14.

[4]  Decision of Mr Walsh, 24 October 2014, pages 2 and 5.

[5]  As required by QCAT Act s 142(3)(a).

[6] 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 [1991] 1 Qd R 487; McNair v Press Offshore Ltd (1997) 17 WAR 191; Basser v Medical Board of Victoria [1981] 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.

[7]  Submissions of Abacus attached to application to strike out or dismiss proceeding MCDO333/14, filed on 14 March 2014.

[8]  Allegation (v) refers to earlier proceedings with which we are not now concerned.

[9]  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.

[10]  QCAT Act s 47.

[11]  QCAT Act s 12(b) or (c); Schedule 3 “consumer”.

[12] Re AWB Ltd (No 10); Australian Securities and Investments Commission v Lindberg (2009) 76 ACSR 181; [2009] VSC 566 at [218]; Carson v Legal Services Commission & Anor [2000] 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; [2002] FCA 1168 at [21]; James Trowse Constructions Pty Ltd v Spankie & Ors [2011] QCAT 696.

[13] 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; [2012] WASCA 50 at [195]; Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98; [2009] WASCA 29 at [30]; Phipson on Evidence 12th ed 1976 at [1306].

[14] Hart v Hall & Pickles Ltd [1969] 1 QB 405 at 411 per Denning LJ.

[15]Eastman v Australian Capital Territory (2014) 285 FLR 325; [2014] ACTSC 105 at [63].

[16]  Cf Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].

Close

Editorial Notes

  • Published Case Name:

    Abacus Associates Pty Ltd v Graham Rowley (t/a APL/QBC Partnership)

  • Shortened Case Name:

    Abacus Associates Pty Ltd v Rowley

  • MNC:

    [2015] QCATA 37

  • Court:

    QCATA

  • Judge(s):

    Member Forbes

  • Date:

    17 Mar 2015

Appeal Status

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

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