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Pinnacle Sales & Management Pty Ltd v Douglas[2019] QCATA 52

Pinnacle Sales & Management Pty Ltd v Douglas[2019] QCATA 52

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Pinnacle Sales & Management Pty Ltd & Ors v Lisa Douglas [2019] QCATA 52

PARTIES:

PINNACLE SALES & MANAGEMENT PTY LTD

(first appellant)

JON FAULDER

(second appellant)

 

v

 

LISA DOUGLAS

(respondent)

APPLICATION NO:

APL018-19

ORIGINATING APPLICATION NO:

ADL060-17

MATTER TYPE:

Appeals

DELIVERED ON:

18 April 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding

Member Browne

ORDERS:

  1. Leave to appeal is granted.
  2. The Tribunal’s decision of 6 December 2018 is amended as follows:
    1. (i)
      Order 1 is amended to include, after the conclusion of 1(c):
      1. Bartercard Operations Aus Pty Ltd of Level 1, 121 Scarborough Street, Southport, Qld 4215, seeking all documents (including electronic documents) relating to transaction numbers 5465427, 9767103 and 9924183 (on 4 May 2017, 4 September 2017 and 7 September 2017 respectively) in respect of account number 6009 1261 7673 7320 in the name of Security Enterprises Pty Ltd; and
    1. (ii)
      Order 2 is amended to include, after the conclusion of 2(f):
      1. Documents directly relevant to any tenancy to which Lisa Douglas was a party as at 5 January 2017 including but not limited to the 2-year lease agreement alleged in Lisa Douglas’ Amended Statement of Contentions, within 14 days of the date of these amended directions (and make available upon request the original documents for inspection).

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where application for miscellaneous matters filed for notice to produce and production of documents – where the tribunal has the power to order a notice to produce under s 63 and to make a direction under s 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether tribunal should order a person who is not a party to the proceeding to produce documents – whether tribunal should make directions that a party produce certain documents – whether error in the exercise of the tribunals’ discretion

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 62, s 63 and s 142, s 146(b)

House v King (1936) 55 CLR 499

Lovell v Lovell (1950) 81 CLR 513

Pickering v McArthur [2005] QCA 294

REPRESENTATION:

 

Applicant:

Birch & Co Solicitors

Respondent:

Finemore Walters & Story Solicitors

APPEARANCES:

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. [1]
    Pinnacle Sales and Management Pty Ltd and Jon Faulder are the second and third respondents in a proceeding before the Tribunal concerning a complaint of unlawful discrimination under the Anti-Discrimination Act 1991 (Qld) made by Lisa Douglas as the applicant (‘ADL060-17’).
  2. [2]
    In ADL060-17, Ms Douglas contends that she was unlawfully discriminated against on the basis of parental status and/or family responsibilities by Pinnacle Sales and Mr Faulder by denying her an opportunity to apply to rent a two bedroom unit situated above a dental practice at $360 per week because she has a five-year-old son.
  3. [3]
    Pinnacle Sales and Mr Faulder filed an application for miscellaneous matters in ADL060-17 seeking orders that, amongst other things, Ms Douglas disclose certain documents pursuant to s 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’); and that notices to produce be issued to third parties pursuant to s 63 of the QCAT Act.[1]
  4. [4]
    The Tribunal allowed Pinnacle Sales and Mr Faulder’s application in part. In particular, the Tribunal in treating the request for further particulars as an application for directions under s 62 of the QCAT Act, directed that certain documents be produced by Ms Douglas. The Tribunal made directions for Ms Douglas to produce the documents sought that it considered the ‘most relevant.’ The Tribunal otherwise determined that documents requested were ‘less relevant’ and did not allow the application. The documents that were considered by the Tribunal to be less relevant, related largely to Ms Douglas’ credibility. The Tribunal said as follows:

[7] I have decided to allow the application in respect of documents or categories of documents that are most relevant to the important issues in the case, namely those which relate to the telephone call on 5 January 2017, whether the applicant had the financial capacity to pay the rent for the relevant property at the time, whether the applicant suffered financial loss and/or trauma, anxiety and grief as a result of being denied the opportunity to apply to rent the relevant property.

[8] Other documents or categories of document less relevant and often directed to the issue of the applicant’s credibility have not been made the subject of the order to disclose. I have not made directions requiring the applicant to provide information to the respondents beyond requiring production of certain documents.[2]

  1. [5]
    In relation to the notices to produce, the Tribunal determined that the information sought from the third parties is relevant to the compensation claimed by Ms Douglas and otherwise ordered that the notices be issued. The Tribunal held as follows:

[10]  The respondents also applied for Notices to Produce to be issued to relevant third parties pursuant to s 63 of the QCAT Act. I have decided to order that the Notices be issued because the information sought from the third parties is relevant to the compensation claimed by the applicant and more generally to the issue of whether the alleged unlawful discrimination caused the financial loss and disruption claimed by the applicant.[3]

  1. [6]
    Pinnacle Sales and Mr Faulder want to appeal the Tribunal’s decision.[4] They contend that the Tribunal ought to have directed that Ms Douglas disclose copies of any documents related to any tenancy to which Ms Douglas was a party as at 5 January 2017 including but not limited to the ‘2 year lease agreement’.  Pinnacle Sales and Mr Faulder say that the documents are not merely directed to Ms Douglas’ credibility but rather the documents are relevant to the question of causation concerning the events that allegedly followed the date of the alleged discrimination, and the loss and damage suffered by Ms Douglas in consequence thereof.[5] Further, Pinnacle Sales and Mr Faulder submit that the Tribunal omitted to order a Notice to Produce be issued to Bartercard Operations Aus Pty Ltd. That is, they contend that despite the Tribunal’s decision ‘to order that the Notices [to Produce] be issued’, the Tribunal omitted to order that a Notice to Produce issue to Bartercard.
  2. [7]
    Pinnacle Sales and Mr Faulder seek orders from the Appeal Tribunal including granting the leave to appeal. Leave to appeal is necessary because the Tribunal’s decision of 6 December 2018 is not the final decision in the ADL060-17 proceeding.[6] Further, Pinnacle Sales and Mr Faulder seeks final orders to amend the decision the subject of the appeal to include additional orders requiring Ms Douglas to produce the relevant documents and to order that a Notice to Produce issue to Bartercard to produce relevant documents.[7]
  3. [8]
    In responding to the application for leave to appeal or appeal, Ms Douglas consents to the orders sought by Pinnacle Sales and Mr Faulder as part of the appeal.[8]

Application for leave to appeal and appeal

  1. [9]
    We are satisfied for reasons explained below, that leave to appeal should be granted and that the appeal proceed. In particular, in granting leave to appeal we have considered the established principles that apply to the question of whether leave to appeal should be granted. We are satisfied that there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by the error.[9] Leave to appeal is granted.
  2. [10]
    There are two primary grounds of appeal that raise errors of law. In particular, an error in the Tribunal’s refusal to direct disclosure of documents by Ms Douglas under s 62 of the QCAT Act; and the Tribunal’s failure to order a notice to produce be issued to a third party pursuant to s 63 of the QCAT.[10]
  3. [11]
    The Tribunal’s decision is made under the QCAT Act to direct a party to produce documents (under s 62) and order a third party to produce documents (under s 63). The Tribunal exercised its discretion in deciding whether the direction and the notice to produce should be issued.
  4. [12]
    The Appeal Tribunal will not usually interfere with the Tribunal’s exercise of discretion unless it can be shown that the learned Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.[11] It must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.[12]
  5. [13]
    The Tribunal’s reasons for decision in directing Ms Douglas to file further documents, correctly identified the relevant legislative provisions and general principles for consideration in determining the application. It referred to s 62(3)(b) of the QCAT as giving the tribunal the power to direct a party to the proceeding to produce a document or another thing to another party to the proceeding. The Tribunal also correctly identified the Tribunal’s power to issue a notice to produce to relevant third parties pursuant to s 63 of the QCAT Act. The Tribunal properly recognised that the power to direct a party to produce certain documents is discretionary. The Tribunal correctly stated that in exercising that discretion the Tribunal will balance the ‘costs, time and possible oppression to the party required to produce against the importance and likely benefits to the applying party’.[13]
  6. [14]
    That said, we are satisfied that the learned Member erred in the exercise of her discretion in determining the application. In particular, the learned Member directed that Ms Douglas produce only the documents that are ‘most relevant’ to the important issues in the case. Ultimately, it is a matter for the Tribunal in determining the ADL060-17 proceeding to consider the evidence and what, if any, weight should be given to it. Relevantly, the Tribunal in conducting a proceeding must, amongst other things, ensure, so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.
  7. [15]
    We accept the submission advanced by Pinnacle Sales and Mr Faulder that the other documents sought from Ms Douglas ought properly to have been the subject of a direction that she produce them. They are relevant to whether Ms Douglas was under a “tight timeframe” to obtain alternative accommodation and whether the alleged discrimination caused her any loss and disruption. There is no suggestion that producing these documents had significant cost or time consequences, nor were they oppressive. The learned Member ought to have directed that Ms Douglas provide all documents sought that were relevant to the issues in the ADL06017 proceeding. The Tribunal erred in deciding to allow the application only in respect of the ‘most relevant’ documents. The directions should have required that all relevant documents be produced.
  8. [16]
    In relation to the Notice to Produce, the learned Member failed to properly exercise her power and discretion under s 63 of the QCAT Act in failing to order that a Notice to Produce issue to Bartercard.  We accept the submission advanced by Pinnacle Sales and Mr Faulder that despite the broad terms of the intended order as set out in paragraph [10] of the Tribunal’s reasons, only three of the four notices to produce sought in the application were ordered to issue by the Tribunal. No reason was given by the Tribunal for refusing to not issue a Notice to Produce to Bartercard. Indeed, it appears that the making of an order in respect of it was simply overlooked. We are satisfied that the Notice to Produce should have been issued to Bartercard to produce certain information that is relevant to the compensation claimed by Ms Douglas.
  9. [17]
    The appeal should succeed.

Conclusions and orders

  1. [18]
    For the reasons explained, leave to appeal is granted and the appeal is allowed.
  2. [19]
    In deciding the appeal under s 146(a) of the QCAT Act, the Tribunal’s order of 6 December 2018 should be amended as follows:
  3. [20]
    Order 1 should be amended to include, after the conclusion of 1(c):
    1. (d)
      Bartercard Operations Aus Pty Ltd of Level 1, 121 Scarborough Street, Southport, Qld 4215, seeking all documents (including electronic documents) relating to transaction numbers 5465427, 9767103 and 9924183 (on 4 May 2017, 4 September 2017 and 7 September 2017 respectively) in respect of account number 6009 1261 7673 7320 in the name of Security Enterprises Pty Ltd; and
  4. [21]
    Order 2 should be amended to include, after the conclusion of 2(g):
    1. (g)
      Documents directly relevant to any tenancy to which Lisa Douglas was a party as at 5 January 2017 including but not limited to the 2-year lease agreement alleged in Lisa Douglas’ Amended Statement of Contentions, within 14 days of the date of these directions (and make available upon request the original documents for inspection).
  5. [22]
    We make orders accordingly.

Footnotes

[1]  Application for miscellaneous matters filed 3 October 2018 in ADL060-17.

[2]  Ibid [7]-[8] (emphasis added).

[3]  Ibid [10].

[4]  Application for leave to appeal or appeal filed 11 January 2019 and applicants’ submissions filed 15 February 2019.

[5]  Application for leave to appeal or appeal filed 11 January 2019 and applicants’ submissions filed 15 February 2019.

[6]  QCAT Act s 142(3).

[7]  Application for leave to appeal or appeal filed 11 January 2019 and applicants’ submissions filed 15 February 2019.

[8]  Email from Zack McKay Solicitor from Finemore Walters & Story Solicitors to the Tribunal dated 18 March 2019.

[9] Pickering v McArthur [2005] QCA 294, [3].

[10]  Application for leave to appeal or appeal filed 11 January 2019 and applicants’ submissions filed 15 February 2019.

[11] House v King (1936) 55 CLR 499, 504.

[12] Lovell v Lovell (1950) 81 CLR 513.

[13]  Tribunal reasons, [6].

Close

Editorial Notes

  • Published Case Name:

    Pinnacle Sales & Management Pty Ltd and Jon Faulder v Lisa Douglas

  • Shortened Case Name:

    Pinnacle Sales & Management Pty Ltd v Douglas

  • MNC:

    [2019] QCATA 52

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Browne

  • Date:

    18 Apr 2019

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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