McCann Worldgroup Pty Ltd v Shingyun Pty Ltd
[2018] QCATA 128
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- Unreported Judgment
- McCann Worldgroup Pty Ltd v Shingyun Pty Ltd[2018] QCATA 128
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McCann Worldgroup Pty Ltd v Shingyun Pty Ltd[2018] QCATA 128
McCann Worldgroup Pty Ltd v Shingyun Pty Ltd[2018] QCATA 128
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | McCann Worldgroup Pty Ltd v Shingyun Pty Ltd & Anor [2018] QCATA 128 |
PARTIES: | MCCANN WORLDGROUP PTY LTD (applicant/appellant) v SHINGYUN PTY LTD (first respondent) THE LIMITED LOTTERIES N.V. (second respondent) |
APPLICATION NO/S: | APL416-17 |
ORIGINATING APPLICATION NO/S: | MCD179-17 (Southport) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 7 September 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Allen |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGEMENT – where application for leave to appeal and appeal filed out of time – where the applicant subsequently filed an application to extend time – whether application to extend time should be granted APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where application filed for leave to appeal and appeal decision of the Tribunal – where decision was money order in the Minor Civil Dispute jurisdiction – where applicant in the appeal sought a stay of the money order decision pending the outcome of the appeal – whether a stay should be granted APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – AMENDMENT – amendment of application – general principles as to grant or refusal – where application filed for leave to appeal and appeal decision of the Tribunal – where applicant files amended application for leave to appeal and appeal at early stage – where delay in filing application for leave to amend – whether leave to amend should be granted. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 64, s 145(2) Avilake Pty Ltd v Tucker (No 2) [2012] QCATA 261 Benson v Ware [2012] QCATA 24 Campbell & Anor v Lane & Anor [2013] QCATA 229 Grasso & Anor v CMG Consulting Engineers Pty Ltd [2011] QCATA 244 |
REPRESENTATION: |
|
Applicant: | M Robinson, solicitor of Robinson Locke |
First respondent: | Self-represented |
Second respondent: | Self-represented |
APPEARANCES: |
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This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]McCann Worldgroup is an advertising agency which agreed to provide Workshop and Creative Concepting services to The Limited Lotteries in May 2016 for the amount of $19,745.00. That amount was paid to McCann by Shingyun on behalf of The Limited Lotteries. Following the workshop it was discovered by the representatives of The Limited Lotteries that part of the campaign ideas closely resembled a lottery advertising campaign that had occurred in the United Kingdom several years earlier. An application was made to the Tribunal in its minor civil dispute jurisdiction by Shingyun which was dismissed for want of jurisdiction. A further application was made with both Shingyun and The Limited Lotteries as applicants and the Tribunal ordered that McCann pay Shingyun $20,065.70. McCann appealed that decision and the Tribunal treated the appeal as an application for the proceeding to be reopened under s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The application for reopening was granted and the matter was relisted for hearing before the learned adjudicator. The application was heard on 10 November 2017 with McCann being ordered to pay $19,745.00 to Shingyun with Shingyun then to pay that amount to The Limited Lotteries when it was received. McCann was also ordered to pay Shingyun $315.70 in respect of the filing fee.
- [2]Mr Zain Hoosen, a director of McCann Worldgroup, filed an application for leave to appeal and appeal and an application to stay the learned adjudicator’s decision on 21 December 2017. The appeal application had him as the applicant and The Limited Lotteries as the respondent. An amended application for leave to appeal and appeal and amended application for a stay was filed by McCann on 6 February 2017.
- [3]The appeal Tribunal made directions on 7 February 2017 for McCann Worldgroup to file an affidavit of service of the abovementioned applications on the respondents and for the parties to provide submissions in regard to the amended stay application with that to be heard orally. The affidavit of service confirmed that the applications were served on 12 February 2018. McCann Worldgroup was also directed to file an application for leave to amend its application for leave to appeal with supporting submissions. The respondents were directed to file submissions in reply with that application to be determined on the papers unless otherwise ordered by the appeal tribunal. The operation of the order of the Tribunal in MCD0179/17 was suspended by the appeal tribunal until the determination of the amended application to stay a decision.
- [4]McCann Worldgroup on 8 February 2018 filed an application for an extension of time to file the application for leave to appeal and appeal from 8 December 2018 to the date on which it was filed, 21 December 2018. The appeal tribunal then made directions on 16 February 2018 for the respondents to file their submissions in regard to the extension of time application with McCann to file its submissions in reply with the application for an extension of time to be determined on the papers.
- [5]The amended stay application came for hearing before me on 2 May 2018. It was clear that there had been certain deficiencies in regard to the matter in particular McCann Worldgroup had not as directed filed its application for leave to amend the application for appeal and leave to appeal and as a result the respondents had made their submissions in regard to the amended stay application based on the original appeal grounds. McCann’s legal representative also attended the hearing but there had been no grant of leave. Mr Woods, one of the officers of the respondents, appeared for them. I considered that it would assist the Tribunal for McCann to be granted leave to be legally represented at that days hearing while noting Mr Woods objections. The grant of representation was for the hearing of the 2 May 2018 only and a formal application for leave to be represented will need to be filed.
- [6]To ensure procedural fairness to all parties, and after advising McCann Worldgroup that its inadvertence in not filing the application for leave to amend had caused some inconvenience to the respondents, I made directions for the filing of the application for leave to amend with submissions; for the respondents to provide their submissions with all current miscellaneous applications to be determined on the papers.
- [7]A party to a proceeding may appeal to the appeal tribunal against a decision of the Tribunal.[1] An appeal in respect of minor civil dispute requires the leave of the appeal tribunal[2]. An application for the appeal tribunal’s leave to appeal must be filed within 28 days after in this case the person received notice of the decision.[3] The start of an appeal does not affect the operation of the decision or the taking of action to implement the decision.[4] The appeal tribunal may make an order staying the decision being appealed against until the appeal is finally heard.[5]
- [8]The appeal tribunal has power to extend a time limit fixed for the start of a proceeding, in this case an appeal, except if to do so would cause prejudice of detriment, not able to be remedied by an appropriate order for costs or damages, to a party to a proceeding.[6]
- [9]The appeal tribunal also power at any time in a proceeding to make an order requiring that a relevant document be amended.[7]
- [10]The applications for determination are:
- (a)the application to extend time;
- (b)the amended application for a stay; and
- (c)the application for leave to amend the application for leave to appeal and appeal.
- (a)
- [11]I will deal with each of these applications separately having regard to the submissions of the parties.
Extension of time
- [12]McCann Worldgroup have submitted that:
- (a)the delay in filing the application for leave to appeal and appeal was only 13 days late;
- (b)Mr Hoosen as the representative for McCann considered that that time in regard to the filing of the application began when the decision of the Tribunal was served on McCann Worldgroup;
- (c)no steps had been taken in the interim; and
- (d)on that basis the application to extend the time limit for lodging the application should be extended based on the normal principles governing extensions of time.
- (a)
- [13]The Respondents on the other time considered that the application to extend time should be refused. They noted that:
- (a)the Tribunal’s position in regard to the grant of extensions of time was set out in the decision in Benson v Ware;[8]
- (b)the Tribunal must consider whether ‘the interests of justice of justice are served by granting or refusing the extension sought’; and
- (c)the relevant factors to be considered in exercising the discretionary power to extend time include:
- The length of the delay and whether a satisfactory explanation has been provided for the delay;
- The merits of the application; and
- The degree of prejudice, if any, to the other party if the application to extend time is granted.
- (a)
- [14]The Tribunal accepts that those considerations are the appropriate ones in regard to the application to extend time. While McCann Worldgroup considered the length of the delay was minimal this was not accepted by the Respondents. On its face though the delay is only 13 days. This is complicated by the fact that the Respondents were not advised of the filing of the application until 11 January 2018. The respondents had also despite the submissions of McCann Worldgroup to the contrary taken steps to enforce the decision of the Tribunal. As submitted by the Respondents McCann Worldgroup had legal representation from an interstate firm during this period it would appear though that the advice of that firm was deficient, and it was only when a Queensland firm became involved that the issues in regard to the late filing of the application were realised. The Respondents also submitted that there were public policy grounds for refusing the application for extension of time. I consider that where the period of delay was relatively short that the reasons raised by McCann Worldgroup for the delay are adequate.
- [15]The submission by McCann Worldgroup in regards to the merits of the application are set out in the stay application submissions and are based on the grounds set out in the amended application. They firstly go to the jurisdiction of the Tribunal in regard to the original application as it was brought as a trader-trader dispute and it is submitted that none of the parties are in fact traders. The respondents confirm that the dispute was a trader-trader dispute and submit that all of the parties were traders as relevantly defined McCann Worldgroup’s next ground is that the contract was with The Limited Lotteries and that it was improper for the Tribunal to order that payment should be made to Shingyun Pty Ltd. The Respondents submitted that Shingyun had been acting as agent for The Limited Lotteries and had made the payment on its behalf and was entitled to be repaid.
- [16]McCann Worldgroup’s final ground was that the Tribunal was wrong in law in making a finding that the money should be repaid when this was not justified in law. There was contract for the performance of marketing and concept design which was performed and there was no total failure of consideration and there was no basis to allege that unjust enrichment or money had and received applied. It was clear that work was performed and that work was more than development of one slogan. There was therefore no total failure of consideration. The Respondent says that the Tribunal’s finding in regard to total failure of consideration was based on an email sent by employee of McCann Worldgroup to the Respondents and also the learned adjudicators finding in regard to other evidence provided by McCann Worldgroup.
- [17]When the Tribunal is looking at the merits of the application, it is not required to determine whether a grant of leave would be made, only whether there are grounds which, if accepted by the appeal tribunal, would result in the leave to appeal being allowed and the appeal being granted. I am satisfied that the grounds raised by McCann Worldgroup in regard to jurisdiction and the question of an error in the finding of a total failure of consideration show that the case has merit.
- [18]There is clear detriment and prejudice to the Respondents if the extension of time is granted having regard to the costs that they have incurred in the enforcement of the original decision. Section 61 makes it clear that this detriment or prejudice would count against McCann Worldgroup unless it could be remedied by an appropriate order for costs or damages. The Respondents filed the decision in the Magistrates Court on 6 December 2017 and served a demand for payment and statement of financial position on McCann Worldgroup which was not answered. They then on 22 December 2017 filed an application for an enforcement hearing in the Magistrates Court and a summons was issued for a representative of McCann Worldgroup to attend Court on 9 February 2018. I note that despite the application for leave to appeal being filed on 21 December 2017: it was not brought to the attention of the Respondents until 112 January 2017; this was in a form which was defective having regard to the nominated parties; it was not formally served until 30 January 2018; and the amended application and the amended stay application were not provided to the Respondents until 6 February 2018.
- [19]I am satisfied that I should exercise my discretion to grant the extension of time to file the application for leave to appeal and appeal having regard to the relatively short delay. Having regard to the detriment and prejudice suffered by the Respondents, this is subject to McCann Worldgroup being responsible for the standard costs of the Respondents in regard to the enforcement of the original decision calculated on the Magistrate Court Scale. Such order as to costs to be subject to submission when the application for leave to appeal and appeal is finally decided.
Amended application for a stay
- [20]It was submitted for McCann Worldgroup that the criteria for granting a stay has been discussed in a number of cases, for example, in Campbell & Anor v Lane & Anor [2013] QCATA 229, at paragraphs 3 and 6, quoting Justice Wilson, the then President of the Tribunal:
[3] The question whether a stay of an original decision should be granted is usually addressed according to established principles: Is it an appropriate case to grant a stay? [Croney v Nand [1998] QCA 367; [1999] 2 QdR 342 at 348.] Does the applicant have an arguable case on appeal? [Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322; [2008] 2 Qd R 453 at 455.] Would a refusal of a stay render the appeal nugatory? [Chief Executive Officer, Department for Child Protection v S [2007] WASCA 230; (2007) 98 ALD 329 at 331.] Does the balance of convenience favour granting the stay? [Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311.]
…
[6] As Jerrard JA observed in Elphick v MMI General Insurance Ltd [2002] 347 at [4], an applicant for a stay should demonstrate he or she has a good arguable case on appeal, that they will be disadvantaged if a stay is not ordered, that the competing disadvantage to the respondents, should the stay be granted, does not outweigh the disadvantage suffered by the applicants if the stay is not granted; and, that the applicant’s success on appeal would be rendered nugatory if the order appealed from is not stayed in the interim.
- [21]McCann’s Worldgroup submitted that they did have a good arguable case in regard to the grant of leave to appeal and appeal and this was the grounds contained in the amended application which has been discussed above.
- [22]McCann Worldgroup also considered that it was important to grant the stay having regard to the financial credibility of the respondents them being non-trading entities without assets and that if the funds were remitted to The Limited Lotteries there would be grave difficulty in having the money repaid as that company was incorporated in the Dutch Caribbean and the process of enforcing Tribunal in that jurisdiction would be complicated,
- [23]The Respondents in their submissions noted that as well as the matters raised by the Applicant, in Avilake Pty Ltd v Tucker (No 2) [2012] QCATA 261 Senior Member Oliver and Member Deane outlined at paragraph 4 that:
The granting of a stay of a decision is an exercise of discretion… The fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the fruits of its judgment, and the question is whether or not there is some particular feature of the case which warrants departure from that position.
This is supported by Chief Justice de Jersey, as he then was, in Berry v Green [1999] QCA 213 at 2.
- [24]This would tend to indicate that the starting position is that a stay should not be granted unless the other conditions can be satisfied. The Respondents submitted that as the successful parties in the original QCAT proceedings the respondents are prima facie entitled to the ‘fruits of their judgment’ unless the Applicant can show some particular feature of the case which would warrant a departure from this position.
- [25]While I am satisfied that McCann Worldgroup has a good arguable case, the decision the subject of the appeal is a monetary one and it cannot be said that the refusal of a stay would render the appeal nugatory. I am, though, sympathetic to the concerns of McCann Worldgroup that if the appeal was successful then the return of funds from The Limited Lotteries would be hard to enforce. Shingyun Pty Ltd has submitted that it is a company incorporated in Australia and that it does have assets. If the payment was made to Shingyun Pty Ltd having regard to the fact that the matter was under appeal the directors would be minded to ensure that the funds were available if the appeal favoured McCann Worldgroup and they offered to hold the funds on trust. McCann Worldgroup have not provided any submissions that they would be financially disadvantaged by the payment of the monies to Shingyun Pty Ltd. I am not satisfied that there is any consideration to displace the entitlement of Shingyun Pty Ltd to the fruits of the judgment. The stay in regard to order 1 of the Tribunal’s order in regard to the payment to Shingyun Pty Ltd is refused.
- [26]I accept the concerns that McCann Worldgroup has in regard to payment to The Limited Lotteries. It is appropriate that order 2 of the order made by the Tribunal on 10 November 2017 requiring Shingyun Pty Ltd in turn to pay the Limited Lotteries N.V. $19,745 when received is stayed pending the final outcome of the application for leave to appeal and appeal.
Leave to amend
- [27]McCann submitted that the discretion in section 64 of the QCAT Act enabling the Tribunal to make an order allowing amendment of an application should be exercised in accordance with the principles set out in the decision of Justice Wilson, the former President of the Tribunal in Grasso v CMG Consulting Engineers Pty Ltd.[9] This decision adopted principles the courts used in granting leave to amend pleadings which are set out in the High Court decision in Aon Risk Services Aust Ltd v Australian National University.[10] It was submitted that numerous other tribunal cases[11] have considered the issue of amendment by reference to the Aon Risk Services Australian v Australia National University decision. The Respondents’ submissions in regards to the criteria for determining whether leave to amend should be granted were in the same terms as those submitted McCann Worldgroup.
- [28]The criteria then for considering the exercise of the discretion to grant leave to amend are as follows:
- (a)The consequences of the amendment such as whether the amendment causes delay or excessive waste of cost;
- (b)The stage the litigation has reached – i.e. is it early or at, or almost at, hearing?
- (c)Whether the amendments have been undertaken with reasonable diligence;
- (d)The significance of the amendments to what is actually claimed in the proceedings;
- (e)The concerns of case management and the public resources and whether the amendment would cause disruption; and
- (f)Explanation of delay.
- (a)
- [29]McCann Worldgroup submitted that the proposed amendments were filed on 6 February 2018 which was an early stage of the proceeding as it was before the appeal tribunal had issued directions. While that is the case the respondents are concerned that the application for leave to amend was directed to be filed on 19 February 2018 and it was not filed until 4 May 2018 following my direction at the hearing of the amended application for the stay. One of the results of which was that the original submissions made by the Respondents in respect of the extension of time and stay application were based on the original application for leave to appeal and appeal. So while the amended application was filed at an early stage of the proceeding the application to amend was not filed in a timely manner and that has caused some inconvenience to the Respondents. I have attempted to ameliorate that by ensuring that all of the miscellaneous applications were determined at once.
- [30]McCann Worldgroup submitted in regards to the significance of the amendments that the amendments will simplify the proceedings. They may require consideration as to whether further evidence may be adduced but overall the new grounds are narrow points of law as opposed to the previous grounds which would involve complex analysis and lengthy analysis of the events and evidence at the proceeding. The respondents did not make any specific submissions in that regard. Having regard to the original application for leave to appeal and appeal I am satisfied that the amended application will simplify the appeal proceedings.
- [31]Clearly there has been some delay especially in regard to filing of the application for leave to amend which resulted in the Respondents’ submissions in respect of the stay and extension of time being based on the original application. The appeal tribunal and the respondents were on notice though at an early stage of the amended application and the matter has not proceeded beyond the preliminary stages.
- [32]I am satisfied that, having regard to the early stage of the proceeding and the fact that the amended application for leave to appeal and appeal will simplify the proceeding, that leave should be granted to amend the application in accordance with the amended application filed on 6 February 2018.
Footnotes
[1]QCAT Act s 142(1).
[2]QCAT Act s 142(3)(a)(i).
[3]QCAT Act s 143(3) and (5).
[4]QCAT Act s 145(1).
[5]QCAT Act s 145(2).
[6]QCAT Act s 61(1) and (3).
[7]QCAT Act s 64.
[8][2012] QCATA 24, [9].
[9][2011] QCATA 244.
[10](2009) 239 CLR 175.
[11]Sinden v State of Queensland [2011] QCAT 436, [45]; HK Developments Pty ltd v Doeuk [2013] QCAT 504, [20], [21]; Amjad Enterprises Pty ltd v Crux Investments Pty Ltd [2013] QCAT 203, [22]; MacKrell Building Trust v Stirling [2010] QCAT 630, [33].