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Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie[2022] QCATA 3

Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie[2022] QCATA 3

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie [2022] QCATA 3

PARTIES:

spedding estates pty ltd atf the spedding family trust

(appellant)

v

don cotterill

peta downie

(respondents)

APPLICATION NO/S:

APL331-20

ORIGINATING

APPLICATION NO/S:

MCDO 375 of 2020 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

7 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

  1. The application to adduce ‘fresh’ evidence before the Appeal Tribunal is refused.
  2. Leave to appeal is granted. 
  3. The appeal is dismissed.
  4. The stay granted by the Appeal Tribunal on 18 December 2020 of the decision made in MCDO 375 of 2020 (Southport) on 14 October 2020 pending this appeal is lifted.

CATCHWORDS:

COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – COURTS OF RECORD –PARTICULAR COURTS – where minor civil dispute applicants live in Queensland but the respondent is a company running a business in New South Wales – whether a connection with Queensland is necessary for the tribunal to have jurisdiction – whether the fact that the tribunal is a court of a State in minor civil dispute matters is relevant to jurisdiction in the case of a party which is a company

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the tribunal has jurisdiction but issues of inappropriate forum arise – whether the tribunal has power to stay, strike out or dismiss – the principles under which such power may be exercised

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – IMPOSSIBILITY OF PERFORMANCE – IN WHAT CASES PERFORMANCE EXCUSED – FRUSTRATION – where there was a contract to provide wedding and reception services for 110 people on a certain date – where the contract was varied to 80 people because of government restrictions in response to the pandemic – where further government restrictions limited the attendees to 30 people, and then to five people – where the wedding couple and guests could not attend because of border restrictions – whether the contract was frustrated – whether the force majeure clause applied to govern the consequence of the events

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where the appellant sought an adjournment of the minor civil dispute hearing to await reasons for the tribunal’s refusal to strike out the claim on jurisdictional grounds – where the Adjudicator hearing the matter refused to do so – whether procedurally unfair – whether the appellant had an opportunity to adduce evidence in defence of the application  – whether the appeal tribunal should accept the evidence now submitted as ‘fresh evidence’

Australian Constitution, s 75, s 76, s 77

Frustrated Contracts Act 1978 (NSW)

Human Rights Act 2019 (Qld), s 31

Judiciary Act 1903 (Cth), s 38, s 39

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 52, s 126(2), s 164

Service and Execution of Process Act 1992 (Cth), s 20, s 48

AB v CD [2020] QCAT 295

Australian Temperance & General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290

Brayalei Pty Ltd v ABC Scaffolds Pty Ltd [2018] QCAT 299

Burns v Corbett (2018) 265 CLR 304

Charlie Bridge Street Pty Ltd v Petrazzuolo [2019] NSWCATAP 184

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Derrick v Mitchell & Ors [2018] QCATA 145

Hartley v Bennette [2014] QCAT 091

Li v Medical Board of Australia (No 1) [2013] QCAT 595

L J Hooker Stafford v Roberts [2020] QCATA 94

Mackellar Mining Equipment Pty Ltd & Ors v Thornton & Ors [2019] QCA 77

Owen v Menzies [2012] QCA 170

Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost Pty Ltd [2015] QCAT 463

Ritson v State of New South Wales [2021] NSWPIC 409

St George Bank Ltd v McTaggart [2003] QCA 59

Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd [1996] FCA 703

Toyota Material Handling Australia Pty Ltd v Cardboard Collection Service Pty Ltd [2020] NSWDC 667

Voth v Milandra Flour Mills Pty Ltd (1990) 171 CLR 538

World Firefighters Games Brisbane v World Firefighters Games Western Australia Incorporated & Ors [2001] QSC 164

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented but assisted by MKW Legal.

Respondent:

Self-represented but assisted by Hoy McCormack & Moloney, solicitors.

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]
    This appeal requires the Appeal Tribunal to consider whether the tribunal has minor civil dispute jurisdiction when the claim is brought by parties living in Queensland, against a company registered in New South Wales, whose directors and shareholders live in NSW, where the contractual obligations are to be performed by the company’s business in NSW, and where it is unclear whether the contract was made in, and governed by the law of, NSW or Queensland.
  2. [2]
    I shall be considering generally what connection with Queensland either by residence of the parties or by the subject matter of the dispute, is required for the tribunal to have minor civil dispute jurisdiction, and I shall be considering whether the tribunal can hear and determine a minor civil dispute where the parties ‘reside’ in different States, and whether the answer to this is any different when a party is a company as opposed to an individual. 
  3. [3]
    I shall be considering what powers the tribunal has to refuse to hear a minor civil dispute on the grounds of inappropriate forum and how those powers should be exercised.
  4. [4]
    Because these issues are of some importance, I will be granting leave to appeal.
  5. [5]
    The appeal also raises an issue about whether the tribunal was right to press ahead to hear the application in the face of a request for an adjournment to await reasons for the tribunal’s earlier decision not to strike out or dismiss the claim on the jurisdictional issue and inappropriate forum issues.
  6. [6]
    Finally, the appeal concerns whether a contract to provide wedding and reception services was frustrated because the numbers who could attend were restricted by the government in response to the Covid-19 pandemic, and by border closures, and if so whether the tribunal was correct in its decision about the consequences of such frustration.
  7. [7]
    A wedding and reception for the respondents to this appeal, Don Cotterill and Peta Downie, was to be held on 2 April 2020 at the Summergrove Estate in Carool in New South Wales.  Summergrove Estate is a business name used by the appellant, Spedding Estates Pty Ltd as trustees for the Spedding Family trust.  It is a business operating in NSW.
  8. [8]
    By the contract made on 7 June 2019, there were going to be 110 guests, and Mr Cotterill and Ms Downie paid $19,070 in advance.  When numbers were restricted to 80, Summergrove refunded $5,800 to suit the new number of guests. 
  9. [9]
    The numbers were then restricted to 30 including the celebrant, and there were leaving home and border restrictions applying to Mr Cotterill and Ms Downie and to those wedding guests who lived in Queensland.  Mr Cotterill and Ms Downie asked for a full refund.  Subsequently the numbers were further restricted to five including the celebrant, the wedding couple and witnesses. 
  10. [10]
    Summergrove did not give a full refund but offered alternative dates or other forms of ceremony and arrangements or a credit note for the amount paid, but none of these options were accepted by Mr Cotterill and Ms Downie.  Instead, on 4 June 2020 they brought a minor civil dispute application in the Southport registry of the tribunal seeking an order for a refund of the balance of $13,270 plus interest and formal costs.
  11. [11]
    At the hearing on 14 October 2020, the tribunal found that the contract had been frustrated and ordered Summergrove to pay Mr Cotterill and Ms Downie the sum of $13,712.08 which was the total amount claimed.
  12. [12]
    Summergrove now appeals against that decision.  The grounds of appeal are:[1]
    1. (a)
      The tribunal did not have jurisdiction to make the decision.
    2. (b)
      The tribunal was not the appropriate forum to hear the application.
    3. (c)
      The tribunal should have acceded to Summergrove’s application for an adjournment or contacted Summergrove at the hearing to provide oral evidence.  It is said that:
      1. an adjournment would have allowed the jurisdiction issue to have been finally determined prior to the decision which was made and would have permitted Summergrove a reasonable opportunity to file a response to the claim;
      2. an adjournment or at least contacting Summergrove at the hearing would have enabled Summergrove to provide oral evidence, and to adduce the evidence about its costs and the work performed under the contract and therefore would have avoided errors in factual findings which were decided on inadequate evidence.
    4. (d)
      It was an error of law to find that the contract was frustrated.
    5. (e)
      It was an error of law to find that the force majeure clause did not apply to the circumstances which prevailed.
  13. [13]
    It is also said that the tribunal failed to refer the application to alternative dispute resolution but it is not explained how this could be an effective point on appeal.
  14. [14]
    Summergrove has also applied to put fresh evidence before the Appeal Tribunal and that application needs to be determined.  It seems convenient to deal with the application to adduce fresh evidence at the same time as dealing with ground (c) in the appeal.

Ground (a) – no jurisdiction because parties in different States

  1. [15]
    Summergrove submits that the tribunal had no jurisdiction to hear the matter because its registered office and place of business is in NSW, its directors reside in NSW, it provides wedding events in NSW (and seemingly not in Queensland) and the wedding event to be provided by the contract was in NSW.
  2. [16]
    Summergrove accepts that Mr Cotterill and Ms Downie reside in Queensland and that a debt would need to be repaid at that address, but it is said that this is irrelevant to the question of jurisdiction.[2]
  3. [17]
    In ground (a), Summergrove has raised a matter in this appeal that was actually decided in a different tribunal decision from the one appealed against.  What happened was that Summergrove applied to the tribunal on 27 August 2020 to dismiss or strike out the claim on the grounds that the tribunal had no jurisdiction to hear it,[3] but also because the ‘correct and proper jurisdiction is New South Wales’.[4] 
  4. [18]
    On 11 September 2020 Adjudicator Alan Walsh refused to strike out the claim because there was sufficient connection with Queensland for the tribunal to have jurisdiction.  He also dealt with the inappropriate forum issue as can be seen below.  His reasons were given orally that day in the absence of the parties.  The Appeal Tribunal has a transcript of the reasons given that day.
  5. [19]
    It seems that Summergrove has made a decision not to appeal against the decision made on 11 September 2020.  This is shown by the fact that it, or its legal advisers, asked for reasons for that decision to be provided.[5]  These reasons were sent to Summergrove or its solicitors at some point,[6] but there was no appeal.
  6. [20]
    The question arises whether, if Summergrove wishes to argue in this appeal that the tribunal has no jurisdiction to hear the application, it should have appealed against the decision made on 11 September 2020 by Adjudicator Walsh.  I think the answer to this is that probably it should have done so.  However, I can decide in my discretion whether to permit ground (a) to be argued anyway. 
  7. [21]
    I take the view that it is clearly right to allow ground (a) to be argued in this appeal.  This is because the decision made on 14 October 2020 could not have been made at all if the tribunal had no jurisdiction to make it.  And the Appeal Tribunal is bound to have regard to such jurisdictional matters when deciding appeals.[7]  And a second reason is that both parties have provided comprehensive submissions on the issue.
  8. [22]
    In support of ground (a), Summergrove relies on the approach taken by Adjudicator Walsh in Brayalei Pty Ltd v ABC Scaffolds Pty Ltd [2018] QCAT 299 in which he noted that rule 35 of the Uniform Civil Procedure Rules 1999 (Qld) required proceedings to be started either in the district of the respondent’s residence or place if business, or where the debt is payable, or where all or part of the claim or cause of action arose.
  9. [23]
    Mr Cotterill and Ms Downie point out that in Brayalei both parties were in NSW and the only connection with Queensland was the address of the debt collection agent that had filed the application.  They submit that all that is needed for the tribunal to have jurisdiction over any matter is that the applicant lives in Queensland.
  10. [24]
    It is clear however that in Brayalei, Adjudicator Walsh relied on rule 35 to identify the appropriate forum to hear the matter, and not as defining the territorial limit of the tribunal’s jurisdiction.  This is clear from the reasons for his decision which were expressed as ‘I therefore decline to exercise QCAT jurisdiction, assuming that it exists, to hear and determine the dispute’.

The true question in ground (a)

  1. [25]
    Instinctively, tribunal decision makers might expect there to be some connection with Queensland, either by residence of the parties or by the subject matter of the dispute, before the tribunal will hear and determine it.  This is of course quite correct, but from my review, these are not matters which go to the tribunal’s jurisdiction.  Instead, they are matters which go to the question whether the tribunal is an inappropriate forum.
  2. [26]
    This is an important difference because staying a proceeding, transferring it, dismissing it or striking it out on the grounds of inappropriate forum, can only be done under identifiable statutory provisions and upon the exercise of judicial discretion.  That involves a consideration of whether it is fair and consistent with the aims and objects of the QCAT Act to take such action at the point in time when it is being considered. 
  3. [27]
    The danger is that, if the need for some connection with Queensland is regarded as going to the tribunal’s jurisdiction rather than to inappropriate forum as it should be, then such discretion will not be exercised.  The decision maker will consider that there is no available discretion when in fact there is.
  4. [28]
    I shall now explain how I have reached the view stated above, in the context of minor civil disputes, in the light of recent authority.  I shall consider:
    1. (a)
      Whether some ‘connection’ with Queensland is required for the tribunal to have jurisdiction over a matter.
    2. (b)
      How section 75(iv) of the Australian Constitution might affect this, and whether this is any different for minor civil disputes.
    3. (c)
      The section 75(iv) issue where there is:
      1. a claim where a company is a party;
      2. a claim between individuals.
    4. (d)
      On the assumption there is jurisdiction, how questions of inappropriate forum can be addressed and decided.

Whether some ‘connection’ with Queensland is required for the tribunal to have jurisdiction over a matter.

  1. [29]
    I considered this in Hartley v Bennette [2014] QCAT 091.  That was a claim concerning a sale of land in New South Wales where the only connection with Queensland was that the applicant lived in the State.  A review of the statutory provisions revealed that unlike in the Supreme Court, District Court and Magistrates Court there were no statutory provisions governing such matters for the tribunal.  In accordance with the rule described by the High Court in Laurie v Carroll (1958) 98 CLR 310, the tribunal’s territorial limits seemed to be defined by the ability of the applicant legally to serve initiating process upon a respondent.[8]  Under the Service and Execution of Process Act 1992 (Qld) (SEPA) such process could be served interstate without restriction since the tribunal was a court of a State.[9] 
  2. [30]
    Although in Hartley the applicant did live in Queensland, at least at the time when the application was made, this was not what gave the tribunal its jurisdiction.  There is nothing in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), regulations or rules which requires an applicant to live in Queensland.  There is nothing which requires a respondent to live in Queensland either.
  3. [31]
    In some minor civil disputes, such as a residential tenancy dispute, it is obvious that the tenancy must be in Queensland because otherwise the Residential Tenancy and Rooming Accommodation Act 2008 (Qld) would not apply to the tenancy.  But apart from such a case, there is no reason why the tribunal’s jurisdiction is, or should be, limited to Queensland residents.
  4. [32]
    In turn, there is nothing requiring the subject matter of a dispute before the tribunal to be connected with Queensland.  In Hartley, I contrasted the position under SEPA of tribunals which are not courts of a State.  There are comprehensive provisions under section 48 of SEPA restricting service of an initiating process in a tribunal which is not a court of a State – requiring of particular relevance here, a contractual obligation which should be performed in the State.  Section 48 does not apply to QCAT.  It only applies to a tribunal which is not a court of a State.  There is no restriction in SEPA for service of QCAT initiating process.
  5. [33]
    It follows that for the tribunal to have jurisdiction in a minor civil dispute, no particular connection with Queensland, either by residence of the parties or by the subject matter of the dispute is required.

How section 75(iv) of the Australian Constitution might affect this, and whether this is any different for minor civil disputes

  1. [34]
    Recent Appeal Tribunal authority has clarified the answer to this issue.  The issue arising from parties in different States can be expressed as follows.  The QCAT Act was passed by the Queensland Parliament and gave the tribunal authority to hear and determine certain types of disputes.  Where all parties reside in Queensland then there is no difficulty.  But the question is whether the Queensland Parliament could give authority to the tribunal to hear and determine disputes where one of the parties is not in Queensland or even where no party is in Queensland.
  2. [35]
    Section 75 of the Constitution gives a list of types of ‘original jurisdiction’ conferred on the High Court.  One of the matters in the list is relevant to this appeal.  It is in section 75(iv), covering matters:

between States, or between residents of different States, or between a State and a resident of another State;

  1. [36]
    Section 77 of the Constitution gives the Commonwealth Parliament power to make laws (of relevance here), ‘investing any court of a State with federal jurisdiction’.  It was held by the High Court in Burns v Corbett (2018) 265 CLR 304 that section 77 provided the only way an organ of government of a State could be conferred with such jurisdiction.[10]  In other words, if a court or tribunal has not been given federal jurisdiction under section 77 powers, then it does not have federal jurisdiction.
  2. [37]
    Federal jurisdiction is not defined, but certainly includes matters such as those described in section 75(iv), that is (of most relevance here) where the matter is between residents of different States.
  3. [38]
    Such federal jurisdiction was conferred on the courts of the States by section 39(2) of the Judiciary Act 1903 (Cth).  Section 39 is made subject to section 38.  In its current form these sections read:

38  Matters in which jurisdiction of High Court exclusive

Subject to sections 39B and 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters:

  1. (a)
    matters arising directly under any treaty;
  1. (b)
    suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State;
  1. (c)
    suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State;
  1. (d)
    suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth;
  1. (e)
    matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court.

Note: Under the Jurisdiction of Courts (Cross vesting) Act 1987, State Supreme Courts are, with some exceptions and limitations, invested with the same civil jurisdiction as the Federal Court has, including jurisdiction under section 39B of this Act.

39  Federal jurisdiction of State Courts in other matters

  1. (1)
    The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section.
  1. (2)
    The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subjectmatter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions:
  1. (a)
    A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.

Special leave to appeal from decisions of State Courts though State law prohibits appeal

  1. (c)
    The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.
  1. [39]
    Hence, if section 39(2) of the Judiciary Act 1903 (Cth) applies to QCAT because it is a court of a State, it would have power to decide matters between residents of different States, unless this is limited by its statutory authority.
  2. [40]
    There is no such limit to statutory authority in the QCAT Act, regulation or rules.  So the question is whether QCAT is a court of a State within the meaning of section 39(2) and within the meaning of section 77 of the Constitution.
  3. [41]
    It was decided by the Queensland Court of Appeal in Owen v Menzies [2012] QCA 170 that QCAT is a ‘court of a State’ within the meaning of these provisions.  Special leave to appeal to the High Court was sought but refused.[11]
  4. [42]
    Hence QCAT is able to decide matters between residents of different States, in other words, it does have federal jurisdiction in that respect.
  5. [43]
    Since this is an appeal in a minor civil dispute, I need to be sure that the above applies to minor civil disputes.
  6. [44]
    Owen was not about a minor civil dispute.  It was a complaint under the Anti-Discrimination Act 1991 (Qld) where it was suggested that the complaint of vilification on the ground of sexuality in section 124A of that Act was unconstitutional, and since matters about the constitution required federal jurisdiction to resolve, the tribunal was unable to decide it.  The answer to this turned on whether the tribunal was a court of a State under section 77(iii) of the Constitution.[12]
  7. [45]
    In Owen, the factors demonstrating that the tribunal was a court of a State were:[13]
    1. (a)
      QCAT was stated to be a ‘court of record’ in section 164 of the QCAT Act;
    2. (b)
      it was an independent tribunal resolving disputes between parties;
    3. (c)
      the tribunal had to act independently and was not subject to direction or control by any entity, including any Minister – and these were pivotal features of a judicial process;
    4. (d)
      its independence was not jeopardised solely because the majority of its judicial offers are part-time and did not have the same financial security or security of tenure enjoyed by Queensland magistrates and District and Supreme Court judges;
    5. (e)
      decisions bound the parties [referring to section 126(1)] of the QCAT Act;
    6. (f)
      the tribunal decided controversies between the parties before it, making ‘binding and authoritative’ decisions which would ordinarily characterize the exercise of judicial power, citing Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357;
    7. (g)
      decisions were enforceable and the fact that the enforcement of QCAT decisions turned on the filing of material in another court did not mandate that QCAT is not exercising judicial power;
    8. (h)
      QCAT hearings were ordinarily in public;
    9. (i)
      the tribunal was required to give reasons for its decisions;
    10. (j)
      the decisions as a court of summary jurisdiction were subject to appeal and to the Supreme Court’s supervisory and appellate jurisdiction;
    11. (k)
      although the majority of members of QCAT were not called judges, this was a ‘chicken and egg’ argument as it raised a question of what was a judge and in any case many courts were presided over by non-judges.
  8. [46]
    Various points against the tribunal being a court of a State were made in submissions but it was found that it makes no difference that most QCAT members are part-time and with limited tenure, or that the tribunal was not bound by the law of evidence or any practice or procedure applying to courts of record, or that the power to punish for contempt is only exercisable by the President or Deputy President, or that senior and ordinary members of the tribunal could be removed for nothing more than inefficiency, or under power of the President with Minister’s approval, and that the tribunal could not enforce its own orders.
  9. [47]
    Submissions were made to the Court of Appeal in Owen that the statutory provisions applicable to the tribunal’s minor civil dispute jurisdiction demonstrated that the tribunal was not a court of a State.
  10. [48]
    One of the provisions referred to was section 126(2) of the QCAT Act.  That provides that:

The making, by the tribunal, of a final decision in a proceeding for a minor civil dispute does not prevent a court or another tribunal making a decision about an issue considered (whether or not decided) by the tribunal in the proceeding if the issue is relevant to a proceeding for another matter before the court or other tribunal.

  1. [49]
    In respect of this, Chief Justice de Jersey with whom Margaret McMurdo P agreed, having heard in submissions in reply that similar provisions appear in other jurisdictions, for example the Magistrates Courts, decided that this consideration was ‘of no substantial weight in the end’.
  2. [50]
    The intended practical effect of section 126(2) was explained in the explanatory notes to the QCAT Bill as permitting (for example) the tribunal to determine a damage to property claim arising out of a collision between two vehicles (which is in its jurisdiction), but enabling a court to hear a personal injury claim arising out of the same collision (which is not in its jurisdiction).
  3. [51]
    This intended practical effect may not have been achieved by the wording of section 126(2) because it appears to be limited to issue estoppel and not to extend to res judicata.[14] 
  4. [52]
    Either way, having regard to discussion in Owen about the effect to section 126(2) it certainly does appear that the terms of section 126(2) would not mean that the tribunal is not acting as a court of a State when exercising its minor civil disputes jurisdiction.
  5. [53]
    It was also submitted in Owen that in deciding a minor civil dispute the tribunal was required by section 13 to make orders that it considers ‘fair and equitable’ and this was unlike a court.  The Chief Justice was of the view however, that in such cases the tribunal was still obliged to make a decision in accordance with parties’ legal rights and obligations and the remainder of the section showed that the tribunal was not unconstrained by the law.[15]
  6. [54]
    It can be seen therefore that in Owen itself the Court of Appeal decided that the tribunal was a court of a State even when exercising it minor civil dispute jurisdiction. 
  7. [55]
    In Li v Medical Board of Australia (No 1) [2013] QCAT 595 Judge Alexander Horneman-Wren SC Deputy President, in a medical disciplinary matter, needed to decide whether a subpoena issued by the tribunal and served outside Queensland should follow the process prescribed in SEPA for courts or the process for tribunals.  The Deputy President decided that, following Owen, QCAT was a court for the purposes of SEPA and so the process for courts should be used.[16] 
  8. [56]
    As a result of the decision in Li, it was recognised in the tribunal that its practice of requiring the form which applied to tribunals (Form 4) to be attached to initiating process served interstate was incorrect.  The following practice direction was made:

QCAT Practice Direction No 2 of 2014

Service of QCAT proceedings in Australia outside Queensland

Effective: 1 May 2014

  1. For the avoidance of doubt for the purposes of the Service and Execution of Process Act 1992 (Cth), the tribunal is a court.
  1. Accordingly QCAT applications to be served in Australia but outside of Queensland must be accompanied by Form 1 as prescribed by Regulation 4 of the Service and Execution of Process Regulations 1993 (Cth).
  1. In those proceedings where personal service of documents is required this Practice Direction is to be read in conjunction with paragraph 12 of Practice Direction No 8 of 2009.
  1. [57]
    No distinction has been made here between a minor civil dispute application and another type of application in the tribunal. 
  2. [58]
    That the tribunal is a court of a State when hearing a minor civil dispute has now been confirmed by Justice Carmody in in Derrick v Mitchell & Ors [2018] QCATA 145.[17]  In that case, a property agent in Western Australia successfully brought a claim in the tribunal in a residential tenancy matter.  The tenant and the premises concerned were in Queensland.  It would appear that the tenant appealed, submitting that the tribunal had no jurisdiction to determine disputes between parties in different States.  The Attorney General for Queensland intervened and successfully submitted to Justice Carmody that since the tribunal was a court of a State it therefore had ‘diversity jurisdiction’ sufficient to settle a tenancy dispute where the parties were in different States.
  3. [59]
    Since a residential tenancy matter is a minor civil dispute,[18] Derrick can be relied on as authority that the tribunal acts as a court of a State when it is hearing a minor civil dispute.
  4. [60]
    Although in AB v CD [2020] QCAT 295 Adjudicator Alan Walsh decided that QCAT was not a court of a State at least for the purposes of the Child Support (Registration and Collection) Act 1988 (Cth) and perhaps generally,[19] this was without citing Derrick and its effect on this question.
  5. [61]
    In Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost Pty Ltd [2015] QCAT 463, [27], Adjudicator Alan Walsh identified some possible impediments to the Queensland parliament being able to create a tribunal which had federal jurisdiction in the way described above.  He pointed to section 2 of the Constitution Act 1867 (Qld) and to section 8 of the Constitution of Queensland Act 2001 (Qld) and to section 35(1)(b) of the Acts Interpretation Act 1954 (Qld) all of which seem to recognise a limit of Queensland legislation to Queensland.
  6. [62]
    This is of course correct, but when exercising its jurisdiction, QCAT does do so in Queensland.  The Queensland parliament would obviously be unable to establish a tribunal in another State or Territory.  This seems to be an issue quite different from whether the tribunal sitting in Queensland can determine disputes between parties who happen to be outside Queensland.
  7. [63]
    The net result is that in minor civil disputes, under section 39(2) of the Judiciary Act 1903 (Cth) the tribunal has jurisdiction (of relevance to this appeal) to hear minor civil disputes, in the words of section 75(iv) of the Constitution:

between residents of different States, or between a State and a resident of another State

  1. [64]
    The position is different for the NSW Civil and Administrative Tribunal (NCAT) and the Victorian Civil and Administrative Tribunal (VCAT) which have been held not to be courts of a State within section 39(2).[20]  The South Australian Civil and Administrative Tribunal (SACAT) is also understood not to be a court of a State.[21]

The section 75(iv) issue where there is: (i) a claim where a company is a party and (ii) a claim between individuals.

  1. [65]
    The different treatment of a claim where there a company is a party and a claim where the parties are all individuals, arises from the wording of section 75(iv).
  2. [66]
    This is because it has been held that a company cannot be a ‘resident’ within this provision.  In Australian Temperance & General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 a company sought to bring a claim in the High Court on the basis that section 75(iv) of the Constitution gave the High Court jurisdiction in all matters ‘between residents of different States’.  Knox CJ and Gavan Duffy J were of the view that a company cannot really reside anywhere and that a company could not be a resident of a State under section 75(iv).  Higgins J thought it was wrong to assume that there was any intention to include corporations in the word ‘resident’ in section 75(iv).
  3. [67]
    Isaacs J dissenting, thought that a company could be a resident of a State under section 75(iv) because at common law a company was a ‘person’ and was able to ‘reside’, which it did where it had its ‘home’ or ‘seat of authority’ which will be where the central management and control abides.  Starke J held a similar view but thought the test of residency should be that of political attachment to a State, in effect the State to which it had the closest connection.
  4. [68]
    The High Court has been asked, but has declined, to reconsider Howe and has confirmed that the words ‘residents’ and ‘resident’ in section 75(iv) refer to natural persons only and not to artificial persons.[22]
  5. [69]
    The effect of Howe is that a tribunal without diversity jurisdiction would be unable to hear an interstate matter where the applicant is an individual living in one State and the respondent is an individual living in another State, but would be able to do so where one of those parties was a company.  This has recently been confirmed in Charlie Bridge Street Pty Ltd v Petrazzuolo [2019] NSWCATAP 184, in the New South Wales Civil and Administrative Tribunal Appeal Tribunal where Cole DCJ, Deputy President, and Dr R Dubler SC, Senior Member said that although NSWCAT was not a court of a State, this only meant that it was unable to decide interstate matters between natural persons:

We are satisfied that we have jurisdiction in this matter because Charlie Bridge is a company and not, therefore, a resident of New South Wales within the meaning of s 75(iv) of the Constitution.  This matter is not, therefore, a dispute between residents of different States.

  1. [70]
    More recently, in Ritson v State of New South Wales [2021] NSWPIC 409, where both sides accepted that the Personal Injury Commission of NSW was not a court of a State and therefore could not hear Mr Ritson’s claim (because he lived in Queensland and had done so for the last eight years), Member John Harris said:[23]

Furthermore, as the High Court determined in Howe and reaffirmed in Crouch, companies not considered to be a State are not affected by the terms of s 75(iv). The Commission will have jurisdiction to determine those matters despite the matter being of an interstate nature.

  1. [71]
    QCAT is not in the same position as the NSWCAT or the Personal Injury Commission of NSW.  As a tribunal which is also a court of a State, it has the necessary diversity jurisdiction under section 75(iv).  Hence by reason of its diversity jurisdiction, QCAT can hear and determine a dispute between individuals who are residents of different States; and it can hear and determine a dispute where a company is an applicant or a respondent anyway [it does not need diversity jurisdiction to do this because this is not within section 75(iv)].

Conclusion in this appeal for ground (a)

  1. [72]
    Spedding Estates Pty Ltd is registered in NSW, it has its registered office and principal place of business there and both of its directors live there.[24]  The company operates two wedding and event function venues known as Summergrove Estate and Ardeena in NSW, and the two directors, Donna Spedding and her husband John Spedding are responsible for the day to day operations of both venues.[25]  There is no doubt that the central control and management of the company and its business is in NSW.  There are two shares issued in the company which are held by the two directors and they are said in the ASIC material to be held by them beneficially. 
  2. [73]
    The original minor civil dispute application was brought against Mr and Mrs Spedding as trustees for the Spedding Family Trust trading as Summergrove Estate, but Summergrove’s solicitors pointed out that the correct trustee entity was Spedding Estates Pty Ltd and on that basis the respondent was corrected by amendment.
  3. [74]
    Although the family trust deed is not before the Appeal Tribunal it seems reasonable to assume that the arrangement is one commonly found in Australia, namely a private trust for the benefit of family members, in this case at least Mr and Mrs Spedding, where the trustee actively trades and may hold property.
  4. [75]
    My conclusion on ground (a) is predicated on these following bases:
    1. (a)
      The tribunal, when hearing a minor civil dispute, has jurisdiction to hear an application even when there is no connection with Queensland provided the initiating process can lawfully be served.[26]
    2. (b)
      The claim was made against a company, which cannot be a ‘resident’ under section 75(iv) of the Constitution.  Therefore the provisions of the Constitution cannot restrict the tribunal’s jurisdiction in this particular case.
    3. (c)
      Even if the provisions of the Constitution might be capable of restricting the tribunal’s jurisdiction in this particular case, the tribunal is a court of a State and has sufficient diversity jurisdiction to hear and determine the application.
  5. [76]
    In other words, the tribunal did have jurisdiction to hear the application which is the subject of this appeal, and so this ground of appeal fails. 
  6. [77]
    This is not to say that the tribunal should hear every application.  As discussed below in ground (b), that the tribunal has a discretion to refuse to hear an application within its jurisdiction, if the tribunal is an inappropriate forum.

Ground (b) – the tribunal was an inappropriate forum

  1. [78]
    This is a forum non conveniens ground.[27]  Here, apart from the physical presence of Summergrove’s directors and the business being in NSW, it is said that the laws of NSW are likely to be relevant to the proceedings because the consequence of frustration may require a detailed determination of ‘matters pertaining to the Frustrated Contracts Act 1978 (NSW)’.
  2. [79]
    Like in the case of ground (a), Summergrove has raised a matter in this appeal which is not before the Appeal Tribunal.  On 11 September 2020 Adjudicator Alan Walsh refused to dismiss the claim on the basis contended for by Summergrove, namely that the tribunal was an inappropriate forum. 
  3. [80]
    The reasons given by Adjudicator Walsh were that unlike in Parcelvalue the applicants to the claim reside in Queensland, and if successful the debt would have to be repaid to them at that address, and the applicants say that the contract was made in Queensland.  Also, on a cursory view of the contract there was nothing to say that NSW law, as opposed to Queensland law, applied to it, but in any case the tribunal could apply NSW law if necessary.  Adjudicator Walsh decided that any question of inconvenience to Summergrove arising from the fact that it was resident in New South Wales could be remedied by permitting attendance by telephone.
  4. [81]
    There is no appeal against that decision.  This is not a mistake arising from a misunderstanding.  The appeal was lodged by solicitors and clearly specifies the name of the Adjudicator who made the decision actually appealed against and the date when that decision was made.  As said above on ground (a), Summergrove received Adjudicator Walsh’s reasons and seems to have made a decision not to appeal against his decision.
  5. [82]
    The question arises whether, if Summergrove wishes to argue ground (b) in this appeal, it should have appealed the decision made on 11 September 2020 by Adjudicator Walsh that the tribunal was not an inappropriate forum.  Again, I think the answer to this is that Summergrove should have done so. 
  6. [83]
    Here I take a different view from that taken in ground (a) and I think it would be wrong to allow ground (b) to be argued in this appeal.  There are a number of reasons for this.
  7. [84]
    Firstly, unlike ground (a), ground (b) does not go to the jurisdiction of the tribunal, but to the tribunal’s exercise of discretion whether on the assumption it has jurisdiction, it was an appropriate forum to hear the claim.
  8. [85]
    Secondly, since Adjudicator Walsh on 11 September 2020 was exercising his discretion, an appeal will be difficult unless some clear error in the exercise of the discretion can be demonstrated.  But Summergrove has not addressed this at all.  Instead, Summergrove simply repeats the submissions it made to Adjudicator Walsh on this issue.  So there is nothing to indicate in which way it is said Adjudicator Walsh was in error.
  9. [86]
    Thirdly, in turn this means that the submissions of Mr Cotterill and Ms Downie are incomplete because they too, are left to guess what error it is alleged Adjudicator Walsh made on 11 September 2020.
  10. [87]
    Fourthly, the decision made by Adjudicator Walsh was not reconsidered or reviewed by the Adjudicator on 14 October 2020.  Correctly, the Adjudicator on 14 October 2020 proceeded on the basis that the decision made by Adjudicator Walsh on 14 September 2020 was valid and effective.
  11. [88]
    In the circumstances I do not think it would be right for me to treat this appeal as also against the decision made by Adjudicator Walsh on 14 September 2020.
  12. [89]
    However, there are important issues which need to be mentioned here about the tribunal’s power to decide not to hear and determine an application on the grounds of inappropriate forum.

Inappropriate forum issues

  1. [90]
    Bearing in mind that [as found above under ground (a)] the tribunal has minor civil dispute jurisdiction even if there is no connection with Queensland, it cannot be the case that the tribunal should hear every minor civil dispute application if it has jurisdiction to do so.  So what are the powers to refuse to hear a matter and in the context of inappropriate forum issues how should those powers be exercised?
  2. [91]
    Applications made to the tribunal go through an ‘acceptance’ stage – a power exercised by the principal registrar.  The principal registrar is unable to reject a claim however, on the grounds that the tribunal appears to be the inappropriate forum.  The principal registrar’s powers in this respect are in section 35 of the QCAT Act.  Although the principal register could reject an application if it does not comply with the QCAT Act, an enabling Act or the rules, there is nothing in the rules or on the approved form which must be used to bring a minor civil dispute, requiring an applicant to give a Queensland address or to give a Queensland address for a respondent.
  3. [92]
    There is limited opportunity in the minor civil disputes jurisdiction for the tribunal to review in advance of the hearing whether it is or is not an inappropriate forum.  Such a review would be triggered however, by an application by a respondent to dismiss or strike out or stay the claim on grounds of inappropriate forum.  If such an application were to be made quickly enough then it would probably be dealt on the papers having received submissions from the parties.  If there was not time to obtain submissions and make a decision before the hearing, such an application would probably be reserved for decision at the hearing.  Even if the question of inappropriate forum had not been raised by the parties, it could be raised by the tribunal itself.
  4. [93]
    Turning to the powers of the tribunal to refuse to hear a matter on the grounds of inappropriate forum, there seem to be three applicable provisions:
    1. (a)
      Section 52 of the QCAT Act, permitting a transfer to another court or tribunal where the application is ‘more appropriately’ dealt with elsewhere.
    2. (b)
      Section 20 of SEPA where that Act has been used in order to effect service on a party outside Queensland, where another court is ‘the appropriate court’.
    3. (c)
      Section 47 of the QCAT Act, permitting a dismissal or strike out of a vexatious claim or a claim which is an abuse of process where the tribunal is a ‘clearly inappropriate forum’.
  5. [94]
    As can be seen from the list above, and the discussion below, there is a distinction to be made between the statutory powers in sections 52 and 20 (which could be invoked if there is a ‘more appropriate forum’) and that in section 47 (which could be invoked if the tribunal is a ‘clearly inappropriate forum’) which is a stricter test. 
  6. [95]
    Section 52 of the QCAT Act permits the tribunal to transfer an application to another tribunal, the court or another entity if the tribunal considers the subject matter of a proceeding or a part of a proceeding would be more appropriately dealt with elsewhere.  However, as Adjudicator Alan Walsh has pointed out in Brayalei,[28] this would not enable an Adjudicator to transfer the matter to a court or tribunal in another State or a Territory.
  7. [96]
    Where the application has been served on a legal entity outside Queensland in accordance with SEPA which is the only valid way to serve the application, then section 20 of that Act provides:

20  Stay of proceedings

  1. (1)
    This section does not apply in relation to a proceeding in which the Supreme Court of a State is the court of issue.
  1. (2)
    The person served may apply to the court of issue for an order staying the proceeding.
  1. (3)
    The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
  1. (4)
    The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:
  1. (a)
    the places of residence of the parties and of the witnesses likely to be called in the proceeding; and
  1. (b)
    the place where the subject matter of the proceeding is situated; and
  1. (c)
    the financial circumstances of the parties, so far as the court is aware of them; and
  1. (d)
    any agreement between the parties about the court or place in which the proceeding should be instituted; and
  1. (e)
    the law that would be most appropriate to apply in the proceeding; and
  1. (f)
    whether a related or similar proceeding has been commenced against the person served or another person;

but do not include the fact that the proceeding was commenced in the place of issue.

  1. (5)
    The court’s order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense.
  1. (6)
    The court may determine the application for an order without a hearing unless the applicant or a party objects.
  1. (7)
     For the purposes of determining the application, the court may hold a hearing by audio link or audiovisual link.
  1. (8)
    A person who is entitled to practise as a barrister, solicitor or both before a court in:
  1. (a)
    the place of issue; or
  1. (b)
    another State in which a person is participating in the hearing by audio link or audiovisual link;

has a right of audience before the court at the hearing.

  1. (9)
    This section does not affect the court’s power to stay a proceeding on a ground other than the ground mentioned in subsection (3).
  1. (10)
    This section does not affect the operation of:
  1. (a)
    the Jurisdiction of Courts (Cross vesting) Act 1987; or
  1. (b)
    a corresponding law of a State.
  1. [97]
    Section 20 does not apply to the Supreme Court,[29] which has its own provisions.[30] 
  2. [98]
    Section 20 applies to ‘civil proceedings in a court’.[31]  Section 3 says ‘court, except in Part 7, means a court of a State and includes an authority exercising the powers of such a court.’[32]  QCAT is such a court of a State.[33]  Section 15 permits service of an initiating process in any part of Australia.  Section 16 and the regulations require such service to be accompanied by prescribed Form 1, otherwise service is not effective.  Form 1 informs a respondent that they may apply for a stay.
  3. [99]
    It can be noted that the requirement in section 20(3), which includes the fact that the court of another State has jurisdiction to hear the matter, has greater importance now that there is right to have a civil proceeding decided by a court or tribunal after a public hearing.[34] 
  4. [100]
    The ‘court of another State’ referred to in section 20(3) does not also refer to a tribunal performing an adjudicative function, such NCAT, VCAT or SACAT.[35]  It is notable that although the Act also permits interstate service in the case of such tribunals,[36] there are no corresponding provisions permitting a stay application.
  5. [101]
    It would appear that section 20(3) is a standalone power and can be invoked even without an application from a party.  But a party relying on this provision has the burden of satisfying the tribunal on the balance of probabilities that the proceedings ought to be stayed.[37]  It is thought that the list of factors in section 20(4) is not exclusive and there may be other factors which can be taken into account.[38]  A decision whether or not to grant a stay will be an exercise of a discretionary judgment which on general principles would not readily be disturbed on appeal unless some clear error in its exercise was demonstrated.[39]
  6. [102]
    Sections 52 and 20 require satisfaction of a ‘more appropriate forum’ test.  The case law applicable to the ‘more appropriate forum’ test was conveniently set out by Philippides J in World Firefighters Games Brisbane v World Firefighters Games Western Australia Incorporated & Ors [2001] QSC 164:[40]

The range of factors considered relevant in assessing which is the “more appropriate forum” are:

  1. (a)
    the application of the substantive law, if it is peculiar to a particular jurisdiction;
  1. (b)
    forensic advantages or disadvantages conferred by the competing procedural laws;
  1. (c)
    the plaintiff’s choice of forum and the reasons for that choice;
  1. (d)
    substantive connections with the forum (eg. residence, domicile, place of occurrence and choice of law);
  1. (e)
    balance of convenience to parties and witnesses;
  1. (f)
    comparative cost and delay;
  1. (g)
    convenience of the court system.
  1. [103]
    An exclusive jurisdiction clause would also clearly be relevant.
  2. [104]
    Where a respondent to a claim lives in Queensland then SEPA would not apply.  And if it were not suitable to transfer the dispute to the Magistrates Court under section 52, then the powers under section 47 of the QCAT Act to strike out the claim as vexatious or an abuse of process could be invoked if the tribunal was a clearly inappropriate forum. 
  3. [105]
    This is clear from Voth v Milandra Flour Mills Pty Ltd (1990) 171 CLR 538:[41]

Before we refer to the judgments of the majority in Oceanic Sun, we should state very briefly what we take to be the common ground between them.  First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise.  Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case.  Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay.  Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised ‘with great care’ or ‘extreme caution’.

emphasis added

  1. [106]
    This passage shows that to reach the level of ‘vexatious or an abuse of process’ so as to engage section 47, the tribunal would need to be a ‘clearly inappropriate forum’ for the application, and that the lower threshold of ‘more appropriate forum’ (such as used in sections 52 and 20) is insufficient to make the application vexatious or an abuse of process.
  2. [107]
    This was confirmed by Sofronoff P (with whom Morrison JA and Boddice J agreed) in a ‘clearly inappropriate forum’ case in Mackellar Mining Equipment Pty Ltd & Ors v Thornton & Ors [2019] QCA 77:[42]

… while the inconvenience, using the word in its ordinary meaning, involved in litigating in the respective jurisdictions is a relevant factor to be taken into account when the ground is relied upon, the authorities stress that it is the ends of justice that is always the fundamental consideration.  It follows that it would be wrong to determine a case merely by balancing competing factors in order to determine which court is the more appropriate.

  1. [108]
    In an application for a strike out on the basis of ‘clearly inappropriate forum’ again the applicant seeking the strike out bears the burden of satisfying the tribunal about this.[43]
  2. [109]
    It is clear that all these powers are discretionary.  They would only be exercised if it were fair and consistent with the aims and objects of the QCAT Act to do so.
  3. [110]
    The circumstances which could arise are numerous and the minor civil dispute decision makers are well practised at applying those principles fairly and effectively. 
  4. [111]
    I might mention one issue which arises from SEPA itself.  A party might wish to bring a claim in Queensland because the respondent lives in Queensland, in the belief that this would make it would be easier to enforce the final decision, rather than trying to enforce a decision obtained in another Australian jurisdiction.  But it is probably not easier.  Part 6 of SEPA provides that a judgment obtained in one jurisdiction in Australia may be enforced in another.  The process is to lodge copy of the decision of a tribunal or court of a State with the local court.  Upon registration, the judgment has the same force and effect, and may be enforced by the same proceedings as would be available, if the judgment had been pronounced in the court in which it is registered.  So this is the same process as is required to enforce a QCAT final decision in Queensland itself.

Summary of the position after considering grounds (a) and (b)

  1. [112]
    In summary therefore, the position seems to be this:
    1. (a)
      The tribunal, when hearing a minor civil dispute, has jurisdiction to hear an application even when there is no connection with Queensland provided the initiating process can lawfully be served.[44]
    2. (b)
      Where the parties are individuals and live in different States then the tribunal may hear and determine the matter because it is a court of a State upon which section 39(2) of the Judiciary Act 1903 (Cth) confers the jurisdiction stated in section 75(iv) of the Constitution, that is to decide matters between residents of different States.[45] 
    3. (c)
      Section 75(iv) of the Constitution does not apply to an interstate dispute with a company, with the result that the tribunal has jurisdiction to hear and determine such disputes even if it is not a court of a State.
    4. (d)
      That is not the end of the matter because it may be necessary to consider inappropriate forum issues.  In that respect there is a distinction to be made between tests of what is a ‘more appropriate forum’ and the stricter test of whether the tribunal is a ‘clearly inappropriate forum’.
    5. (e)
      If there is a respondent served under the Service and Execution of Process Act 1992 (Cth) then either on application or of its own motion, the tribunal may stay the proceedings if it is satisfied that (a) there is a court of another State which has jurisdiction (a matter of importance under the Human Rights Act) and (b) that court is a ‘more appropriate forum’ to determine all matters in issue, having regard to the factors listed in section 20(4) of that Act and any other relevant consideration.
    6. (f)
      If there is no respondent served under the 1992 Act (for example because the respondent is in Queensland) then the tribunal could strike out or dismiss the application as vexatious or an abuse of process under section 47 of the QCAT Act if the tribunal is a ‘clearly inappropriate forum’.
    7. (g)
      A third possibility is that the application could be transferred to the Magistrates Court under section 57 of the QCAT Act if that would be a ‘more appropriate forum’.
    8. (h)
      The tribunal has a discretion whether or not to exercise these powers, and they would only be exercised if it were fair and consistent with the aims and objects of the QCAT Act to do so.
  2. [113]
    It is now right to consider the other grounds of this appeal.

Ground (c) – procedural unfairness, and application to put fresh evidence before the Appeal Tribunal

  1. [114]
    This is the ground of appeal about not allowing an adjournment and not contacting Summergrove’s witnesses at the hearing.  In this ground it is said that there was a breach of natural justice, which section 28(3)(a) of the QCAT Act requires the tribunal to observe, and a breach of section 28(3)(e) which requires the tribunal, so far as is practicable, to ensure that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all relevant facts.  Therefore, it is said, the tribunal did not act fairly and according to the substantial merits of the case as required by section 28(2).
  2. [115]
    Summergrove says that it was not provided with a reasonable opportunity to present its case to the tribunal at the hearing on 14 October 2020.  Submissions in support of the appeal explain that having unsuccessfully applied to strike out the claim on the grounds that the tribunal had no jurisdiction to hear it, and having asked for reasons to be provided (this decision having been made on the papers) and the reasons not having been provided by the time of the hearing on 14 October 2020, then since Summergrove wanted to appeal the jurisdiction decision, it was wrong for the tribunal to proceed to hear the matter.
  3. [116]
    Allied to this procedural unfairness point is the application for the Appeal Tribunal to accept fresh evidence, on the grounds that the evidence could not be put before the tribunal hearing the matter and therefore satisfies the usual test applied by the Appeal Tribunal when deciding whether fresh evidence should be admitted.
  4. [117]
    The fresh evidence which Summergrove seeks to put before the Appeal Tribunal is contained in a statement of Mrs Spedding dated 12 February 2021.  The statement runs through the facts of the case, most of which are uncontroversial and mirror the facts found by the Adjudicator anyway.  An email chain is exhibited which contains the discussions between the two sides about rescheduling and adjustments for fewer guests but showing that ultimately Mr Cotterill and Ms Downie asked for a full refund, and solicitors’ letters for both sides are also attached.  These documents were all before the adjudicator anyway.
  5. [118]
    The only fresh evidence is in the second part of the witness statement.  This contains evidence of costs incurred by Summergrove as the wedding day approached.  I return to that issue below.
  6. [119]
    In order to decide whether it was procedurally unfair not to postpone the hearing of the application and (once the hearing had started) not to adjourn it, I need to recite the sequence of events leading up to the hearing in more detail.

The sequence of events leading up to and at the hearing

  1. [120]
    On 11 September 2020 Adjudicator Alan Walsh refused Summergrove’s strike out application and then gave full directions for the application to be heard.  He listed the hearing of the application at 2pm on 28 September 2020, directed Mr Cotterill and Ms Downie to appear in person, and gave leave to Summergrove and its witnesses to attend by telephone.  That order and a notice of hearing was sent to the parties that day by email and by post.
  2. [121]
    On 15 September 2020 Summergrove requested reasons for the decision made by Adjudicator Walsh.
  3. [122]
    On 24 September 2020, Summergrove requested by email that the hearing on 28 September 2020 be adjourned for 28 days because it was unable to attend by telephone and in any case a hearing was ‘premature’ because although it had requested reasons for the refusal of its strike out application it was yet to receive those reasons, and ‘there was some prospect’ that it would seek to review or appeal the decision because it contended that the tribunal did not have jurisdiction to hear the matter.  The email explained that it would be asking its solicitor to attend the hearing on 28 September 2020 if it were to take place.
  4. [123]
    On 25 September 2020 Summergrove and its solicitors applied for leave for Summergrove to be legally represented.  This application was made formally on Form 56, and was supported by submissions. 
  5. [124]
    On 28 September 2020 the hearing did not take place because the Adjudicator allocated to hear the matter on that day realised that there was a possible conflict.  The order made on that day was that the application was listed for hearing at 2pm on 14 October 2020.  That order and a new notice of hearing was emailed and posted to the parties on that day.
  6. [125]
    On 8 October 2020 Summergrove’s application for leave to be legally represented was considered by an Adjudicator and was granted.  The parties were notified by email.
  7. [126]
    No action was taken by the tribunal on the email request made on 24 September 2020 for a postponement for 28 days.  This was an informal request because it was not made on the appropriate form.[46]  Had it been made on the appropriate form it would have been regarded as a formal request, and would have been referred to an Adjudicator for a decision.  In contrast, the tribunal receives a large number of informal requests each day and sometimes such a request will be referred to an Adjudicator for consideration and sometimes not.  Since they are informal requests, there is no requirement under the rules that they are considered.  Here, one additional problem was that the email was sent at 3.57pm on a Thursday, with the hearing starting the following Monday.  Effectively therefore, the request for a postponement only gave one business day’s notice, making it difficult to deal with in time.  The view of Mr Cotterill and Ms Downie about a postponement would have to be taken, and then an Adjudicator found to consider it, which could be difficult because the application had been lodged in Southport where Adjudicators did not sit every day.  As it turned out, there is nothing on the minor civil disputes file showing that the email request was referred to an Adjudicator.  It just remained on the file. 
  8. [127]
    The Appeal Tribunal has obtained a transcript of the hearing on 14 October 2020 and it can be seen from that what happened.  At the start of the hearing, Summergrove’s solicitor handed up to the Adjudicator an affidavit which had been made that day.[47]  This explained that Summergrove had applied to strike out the application but this was refused.  It said that on 15 September 2020 reasons for the refusal were requested but that they had not been received and the tribunal information was that the reasons could take up to 45 days from the date of the request to be received. 
  9. [128]
    At the hearing, the solicitor explained that Summergrove was asking for an adjournment until ‘the reasons are received’.[48]  Mr Cotterill and Ms Downie indicated however, that they preferred the matter to be heard.  The Adjudicator decided not to grant the adjournment.  The reasons were that the decision made by Adjudicator Alan Walsh about jurisdiction was not obviously wrong because Mr Cotterill and Ms Downie lived in Queensland, and that an adjournment would not accord with the objects of the QCAT Act that the tribunal should act ‘fairly, justly and quickly and informally’.[49]
  10. [129]
    Since the evidence now in Mrs Spedding’s witness statement dated 12 February 2021 was not before the tribunal, Summergrove did not have this evidence available for the hearing of 14 October 2020.  So it is said that overall this was procedurally unfair because Summergrove did not have an opportunity to present its evidence to the tribunal before a final decision was made.
  11. [130]
    So why did Summergrove attend the tribunal hearing by its solicitor, but not put this evidence before the Adjudicator in the usual way?
  12. [131]
    The reason for this is given in the application to adduce fresh evidence, and was also stated at the hearing, as being:

the real likelihood of constituting a submission to jurisdiction at the tribunal by the applicant and prejudicing its position

  1. [132]
    Since no amount of submission to jurisdiction could give the tribunal jurisdiction which it does not have, this must be a reference to the issue of forum non conveniens.  This can be understood.  Once the tribunal had started to hear and determine the matter it would be much more difficult to persuade the tribunal to exercise its discretion to dismiss the application because it was an inappropriate forum.
  2. [133]
    The difficulty with this approach of course, is that the tribunal had already decided not to dismiss the application on the grounds of inappropriate forum.  This meant that, the application having been listed for hearing, for all practical purposes Summergrove had to accept that the likelihood was that the hearing would proceed.  Summergrove and its solicitors should have been aware that this would happen from the notices of hearing, and the email sent to the parties with the new hearing date, which stated:

If you do not attend the hearing the Tribunal may hear and decide the matter in your absence, including making orders against you.

  1. [134]
    As the Adjudicator said to Summergrove’s solicitor at the hearing when discussing whether Summergrove had evidence about costs which had been incurred in performing the contract:

You should have had that information here today.  You could easily have run an alternative argument.[50]

Generally if you’re going to make a request for an adjournment of a hearing, you need to have a backup plan.  If that request is refused, you need to be ready to proceed because there’s no guarantee.  And as I’ve done today, I’ve elected to proceed.[51]

  1. [135]
    I would agree with these comments made by the Adjudicator.  A party cannot simply expect a hearing to be postponed because it wishes to consider an appeal against an earlier interlocutory decision.  On that basis I do not agree that Summergrove did not have an opportunity to present evidence at the hearing.
  2. [136]
    The decision to refuse to adjourn the matter was clearly the correct one for the reasons given by the Adjudicator.  In any case, this decision was an exercise of the Adjudicator’s discretion which is difficult to reverse on appeal.
  3. [137]
    Having missed the opportunity to present evidence at the hearing, it would clearly be wrong to allow Summergrove to adduce such evidence on appeal.
  4. [138]
    The Adjudicator was right not to take the initiative and contact Summergrove’s witnesses as has been suggested in this ground of appeal.  Summergrove’s solicitor was in attendance and it was for the solicitor to take such an initiative if it were appropriate. 
  5. [139]
    It is true that by section 28(3)(e) of the QCAT Act the tribunal must 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.  But where a party is legally represented, the tribunal may assume that there are no available witnesses if nothing is said about this by the legal representative as happened here.  It is also true that the tribunal must observe the rules of natural justice,[52] and certainly whilst liability is still in dispute it would probably be unfair to the other side if the tribunal were to take such an initiative as suggested here.[53]
  6. [140]
    Ground (c) of appeal fails.

Grounds (d) and (e) – frustration and force majeure clause

  1. [141]
    It seems right to take these two grounds of appeal together because they are closely linked.
  2. [142]
    One point made by Summergrove in this appeal is that there was no evidence before the tribunal showing what restrictions were in place in New South Wales on 2 April 2020 when the wedding was due to take place.  I do not think this is correct.  The Adjudicator read an attachment to an email dated 17 September 2020 submitted by Mr Cotterill and Ms Downie headed ‘Your Honour’,[54] and that email gave the restrictions in detail as they developed, including on 2 April 2020 Queenslanders not being able to travel to NSW or even to leave their accommodation for such purposes as a wedding.  Since the tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate,[55] this material was admissible in evidence. 
  3. [143]
    Also, at the hearing, Ms Downie explained to the Adjudicator that on 2 April 2020 she was unable to leave Queensland, and although there were guests based in NSW and Victoria, the wedding party was based in Queensland, and weddings were limited to five people as well.[56]  Mr Cotterill explained that the borders were closed on the day in question.[57]  This evidence was not contradicted by the legal representative attending for Summergrove.  Instead it was submitted that what happened was covered by the force majeure clause.[58]
  4. [144]
    The email thread and the solicitors’ letters from each side which were in the minor civil dispute file also provided the uncontroversial facts about the government restrictions. 
  5. [145]
    On this basis, the Adjudicator found that the contract was entered into on 7 June 2019, and payments were made in advance.  On about 17 March, Summergrove advised Mr Cotterill and Ms Downie that ‘the wedding as agreed could not go ahead on 2 April 2020 for 110 people and, importantly, this is because of government restrictions imposed in response to the Covid-19 pandemic’.  This subsequently changed again a short period later where they were told it could be reduced to 80 people and then they were told that the new government measures announced on 20 March restricted the use of the chapel to 30 people including the celebrant.  The applicant initially agreed to the reduction to 80 guests and was refunded the amount of approximately ‘a bit over $5,000’.  This, however, was then reduced to 30 people and by 29 March there were strict regulations in place of no more than five people.  And there was restricted travel, which meant that the applicants could not have made the wedding, in any event.[59]
  6. [146]
    There was clearly sufficient evidence to make these findings.

Frustration

  1. [147]
    On the point that the Adjudicator was wrong to find that the contract had been frustrated, it is not in contention that the Adjudicator needed to decide whether the situation was, without default of either party, fundamentally different from that contemplated by the contract on its true construction in the light of the surrounding circumstances.[60] 
  2. [148]
    The Adjudicator considered Summergrove’s submission at the hearing that although it was agreed that the wedding could not proceed on 2 April, it could go ahead on a later date, and a list of such later dates had been provided.  The Adjudicator recited Mr Cotterill and Ms Downie’s response to this that the date of the wedding was an essential term of the contract, the suggested dates were very limited and unsuitable, and the services and facilities on offer on those dates were not as originally agreed.[61]  The Adjudicator accepted these arguments.[62]
  3. [149]
    In this appeal, Summergrove says that a mere delay or difficulty in performing a contract is insufficient to frustrate it.  Summergrove points out that time was not of the essence under the contract terms and that it was possible for the event to be delayed – and that Summergrove is still able to provide the event on a different date.
  4. [150]
    I do not think this argument can work for this particular contract.  The contract to provide a ceremony and reception was for a specific day and there was nothing in the contract permitting Summergrove to change that day.  It is obvious that it was fundamental to a contract of this sort that such services should be provided on the day in the contract.
  5. [151]
    This means that any change to the day would require a variation of the contract, or the discharge of the contract and a new contract.  In the absence of any such variation or discharge I cannot see how an offer of another day could avoid a frustration of the contract.
  6. [152]
    There is no doubt that the contract could not be performed in any way approaching that which had been agreed.  It follows that the Adjudicator was right to decide that the contract had been frustrated.  That is subject to the next ground of appeal, in which it is said that the force majeure clause provided for what happened.

Force majeure clause

  1. [153]
    At the hearing, Summergrove relied on the force majeure clause in the contract which stated:

No responsibility or refunds will be provided based on the description of premises, services and furnishings or for any Acts of Mother Nature, including, but not limited to cyclones, bush fires, floods or storms of any kind

  1. [154]
    The Adjudicator found that the force majeure clause did not apply to the situation of a pandemic, because:[63]

When you read this clause it refers to natural events, weather events or events affecting the actual venue, such as bushfires, floods or storms, which make the venue physically unable to host the wedding, because of the fact that it may be damaged as a result of the fires, floods or storms.  It does not contemplate, in my view, a situation such as a pandemic.  It does not contemplate a situation such as terrorism or other situations that are quite commonly included in a term of this nature.

In addition, consideration needs to be given to whether or not the failure by (Summergrove) to be able to provide what was contracted for was a result of the pandemic or as a result of government restrictions.  (Mr Cotterill and Ms Downie) argue that the contract was frustrated as a result of government restrictions in that (Summergrove) was unable to provide the services that it contemplated, not because it could not physically provide it, but because the government imposed restrictions whereby (Summergrove) could not provide the services and similarly the government restricted the movements of Australians during that point in time by putting in place border restrictions for travel, which still are in effect as we speak today to certain locations.

In those circumstances, I’m of the view that the contract was frustrated as a result of government restrictions put in place as a result of the pandemic.

  1. [155]
    In this appeal, Summergrove refers to the definition of ‘Mother Nature’ in the Cambridge Dictionary as:

Nature, especially when considered as a force that controls the weather and all living things.

  1. [156]
    Summergrove suggests that Covid-19 is a living thing and the clause can thereby be construed broadly to include events such as a viral pandemic (and resulting Government restrictions).  And the clause includes the words ‘including but not limited to’ making it clear, it is said, that there is no limit to the matters that may be considered an ‘Act of Mother Nature’. 
  2. [157]
    In answer to this, Mr Cotterill and Ms Downie argue that the inability to perform the contract was a result of the response by various governments and not a result of the Covid-19 virus, and these responses cannot be regarded as an ‘act of Mother Nature’. 
  3. [158]
    I tend to agree with the Adjudicator’s reading of this clause.  It is difficult to describe the Covid-19 virus as an act of ‘Mother Nature’ in the way this expression is used in the clause, even allowing for the words attempting to generalise the meaning of the clause.  I also think the Adjudicator was right to say that the reason why the wedding could not go ahead was the government restrictions and not the virus.  The virus itself did not prevent the wedding, but it was the response of governments which did do so.   The clause definitely does not cover this response of governments.
  4. [159]
    Any suggestion that there was insufficient evidence for the Adjudicator to make a finding that the force majeure did not apply also falls away because it is for the party relying on the clause (Summergrove) to show that what happened was within the clause.[64]
  5. [160]
    This ground of appeal therefore fails.

Consequences of frustration

  1. [161]
    As for the consequences of frustration, in this appeal it is said that there should be an account of the costs incurred by Summergrove.
  2. [162]
    The result of such an account could be different depending on whether the parties intended the contract to be governed by NSW or by Queensland law.  Summergrove contends that NSW law applies and relies on the effect of the Frustrated Contracts Act 1978 (NSW), which it is said requires an account to be taken of the cost to Summergrove of performing the contract up to the date of frustration. 
  3. [163]
    In Queensland there is no similar legislation, so the result of frustration is governed by the common law, with the principle of restitution in the case of unjust enrichment applying.[65]  This would probably mean that Mr Cotterill and Ms Downie would be entitled to a refund but if they had benefited from Summergrove’s work or expenditure they would need to give credit for the value of that benefit.
  4. [164]
    The Adjudicator was aware that it might be fair to make an adjustment.  During the argument at the hearing there was this exchange between Summergrove’s solicitor and the Adjudicator:[66]

Solicitor: I just think in any business, they’re going to incur costs in leading up to and preparing the event.  So if two weeks before they were thinking that the event was going to go ahead, the there’s obviously costs that have been incurred in terms of staff.  They’ve organised suppliers.  They’ve organised things to be delivered.  Our client hasn’t sat there and done nothing while the event’s been ready to go ahead.

Adjudicator: No, I agree.  And if you had turned up here today with some sort of idea of what the costs might have been, then I could have considered it further.  But without that information, it’s not something I can really consider in the sense that – because we have no idea what work has been done.  It may be that they wait until two weeks before the wedding or one month before the wedding before they actually start getting things into line.  I don’t know how your client works.  It might have just been some administrative costs.

  1. [165]
    And when giving reasons, the Adjudicator said:[67]

Now there may well have been an argument that (Summergrove) was entitled to some form of remuneration for work carried out up to this date.  However no evidence has been provided by (Summergrove) setting out what those costs would be.  And I note that (Summergrove’s) position has been that they have applied for an adjournment this morning.  That was refused and (they) have not filed any submissions in the proceeding nor any evidence in relation to the costs which have been incurred.

  1. [166]
    The Adjudicator was right to be cautious here.  The evidence of costs is now contained in the second part of the witness statement of Mrs Spedding dated 12 February 2021, which is the subject of the application to adduce fresh evidence which I have refused.  This evidence shows that although Summergrove had substantial fixed overheads enabling it to make the venue available and to offer the services under the contract,[68] there is no evidence of payments to staff or suppliers specifically for the 2 April 2020 wedding.  Instead, Mrs Spedding has divided the annual fixed overheads by the number of weddings per annum to produce, effectively, an average cost to Summergrove per wedding.  It is said that the refund should be reduced by that amount.  In other words it is said that it is fair for Mr Cotterill and Ms Downie to pay Summergrove’s costs of making the venue available and offering the services under the contract and that the refund should be limited to Summergrove’s profit element.
  2. [167]
    It can be seen that since none of Summergrove’s expenditure directly benefited Mr Cotterill and Ms Downie, this approach might be problematical.  It would only have benefited Mr Cotterill and Ms Downie if they had agreed to a change in the arrangements (either by a much reduced wedding on 2 April 2020, or a postponed one), which didn’t happen.
  3. [168]
    Since I have refused leave to adduce this fresh evidence, I need to consider whether the Adjudicator was right on the evidence which was presented at the hearing to order that the payment should be refunded in full.  It is clear without any such evidence the only order which the Adjudicator could make, was a full refund.  This was the case whether NSW law applied or whether Queensland law applied.  Since there was no evidence about costs, there could be no adjustment under the Frustrated Contracts Act 1978 (NSW) or in Queensland because of unjust enrichment.
  4. [169]
    Therefore this ground of appeal also fails.
  5. [170]
    A further point is made in the appeal by Summergrove that Mr Cotterill and Ms Downie were in breach of a duty to mitigate their loss by failing to take out insurance from one of the providers nominated by Summergrove.  However, this is a new point not raised before the Adjudicator and although I would have a discretion to allow such a new point to be taken on appeal, the problem is the same as for the other points made – all this should have been raised at the hearing.  And as pointed out by Mr Cotterill and Ms Downie this point would probably be the subject of evidence, but there is no such evidence.
  6. [171]
    In the circumstances, I do not think it would be right to allow this new point to be made on appeal.

Conclusion

  1. [172]
    Since there is a question of importance in this appeal, I grant leave to appeal.  It raises issues whether the tribunal has jurisdiction to hear and determine a minor civil dispute where there is no connection with Queensland or where the parties are individuals residing in different States or where a party is a company.  It also raises issues about the provisions under which the tribunal has a discretion to refuse to hear the application on the grounds of inappropriate forum, and how that discretion should be exercised.
  2. [173]
    I have found that the tribunal did have jurisdiction to hear and determine this application and so ground (a) of the appeal fails. 
  3. [174]
    As for ground (b) of the appeal (inappropriate forum), the appeal is not properly made because it has not been made against the right decision.  I have exercised my discretion not to permit this ground of appeal to proceed.
  4. [175]
    Grounds (c) (procedural unfairness) has failed and I have declined to give leave to rely in this appeal on ‘fresh evidence’.  Grounds (d) and (e) (issues arising from the frustrating events) also fail.
  5. [176]
    In the circumstances, I dismiss the appeal.

Footnotes

[1]These grounds appear from the application for leave to appeal and appeal filed on 30 October 2020 and the submissions filed on 13 January 2021.  They have been reorganised and restated to enable them to be dealt with more conveniently in this appeal.

[2]Paragraph 26 of submissions filed on 13 January 2021.

[3]That this was being said appears from the order sought, that ‘the application filed 4 June 2020 be dismissed/struck out for want of jurisdiction’.

[4]Most of the argument in the submissions was directed at the inappropriate forum issues.

[5]This appears from the contents of the file.

[6]The reasons are referred to in Summergrove’s submissions in the appeal dated 15 January 2021 (paragraph 26).

[7]LJ Hooker Stafford v Roberts [2020] QCATA 94 Dr J R Forbes.

[8][15].

[9][23].

[10][50].

[11]Owen v Menzies and Ors [2013] HCATrans 18.

[12][45].

[13][10] to [16] (Chief Justice), and [49] to [52] (Margaret McMurdo P), and [101] (Muir JA).

[14]As found in Arthur v Husheer; Gautron v Husheer [2019] QCATA 146, [32], Senior Member Brown and Member Howe, although Justice Carmody has expressed the view, obiter, that by reason of section 126(2), no issue estoppel or res judicata arises from minor civil disputes: Foxworth Pty Ltd t/as Mango 4 Office Technology v Belz [2016] QCATA 194, [12].

[15][13].

[16][12].

[17][14].

[18]QCAT Act, schedule 3.

[19][38], [72].

[20]It was conceded in Burns v Corbett, [39], that NCAT was not a court of a State, and this has been confirmed in Attorney General for New South Wales v Gatsby [2018] NSWCA 254.  For VCAT this has been confirmed in Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30.  In both NCAT and VCAT, amendments have been made to the legislation governing those tribunals to allow cases involving federal jurisdiction to be dealt with in the State courts rather than in the tribunals.

[21]Raschke v Firinauskas [2018] SACAT 19 (President Hughes), a point conceded as correct on appeal.  In 2018 its governing legislation was also amended to allow cases involving federal jurisdiction to be dealt with in the State courts rather than in the tribunal.

[22]Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22, Mason, Wilson, Brennan, Deane and Dawson JJ, [2] and Gibbs CJ, [5].

[23][59].

[24]Submissions for application to strike out made on 22 August 2020, exhibiting an ASIC search result.

[25]Witness statement of Mrs Spedding dated 12 February 2021, [2] and [3].

[26]Hartley v Bennette [2014] QCAT 91.

[27]It was pointed out by Sofronoff P the Court of Appeal in Mackellar Mining Equipment Pty Ltd & Ors v Thornton & Ors [2019] QCA 77 at [38], that the Latin word conveniens does not mean ‘convenient’.  The word literally means ‘coming together’ in the sense of comformable, consistent and appropriate.

[28][50].

[29]This is by subsection (1).

[30]Section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld).

[31]This is by section 13.

[32]Part 7 of the Act deals with enforcement of fines imposed by courts of summary jurisdiction.

[33]Owen v Menzies [2012] QCA 170; Derrick v Mitchell & Ors [2018] QCATA 145.

[34]Section 31 Human Rights Act 2019 (Qld).  The tribunal must apply and enforce those human rights that relate to court and tribunal proceedings: section 5(2)(a).

[35]The position of NCAT, VCAT and SACAT is considered above under ground (a).

[36]This is provided by Part 4 of the Act – and the regulations require Form 4 to be attached to the initiating process.

[37]St George Bank Ltd v McTaggart [2003] QCA 59, [17] (McPherson JA).

[38]Toyota Material Handling Australia Pty Ltd v Cardboard Collection Service Pty Ltd [2020] NSWDC 667, [42] (Dicker SC DCJ).

[39]St George Bank Ltd, [17].

[40][32].

[41]Mason CJ, Dean, Dawson and Gaudren JJ, [30].

[42][38], citing Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 249.  An appeal was resolved by consent and does not affect this dicta.

[43]Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd [1996] FCA 703.

[44]Hartley v Bennette [2014] QCAT 91.

[45]Owen v Menzies [2012] QCA 170; Derrick v Mitchell & Ors [2018] QCATA 145.

[46]Form 40: application for miscellaneous matters.

[47]Transcript 1-4, line 20.

[48]Transcript 1-3, line 36.

[49]Transcript 1-6, line 9.

[50]Transcript 1-12, line 10.

[51]Transcript 1-12, line 30.

[52]Section 28(3)(a).

[53]The position may be different once liability has been proved and the tribunal needs further evidence as to compensation.

[54]Transcript 1-2, line 42.

[55]Section 28(3)(b) and (c) of the QCAT Act.

[56]Transcript 1-7, line 25.

[57]Transcript 1-8, line 40.

[58]Transcript 1-9, line 5.

[59]Transcript 1-19 to 1-22.

[60]Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, Mason J, [40], [47].

[61]Transcript 1-23.

[62]Transcript 1-24, line 23.

[63]Transcript 1-24, line 1.

[64]Halsbury’s Laws of Australia [110-9613].

[65]Carter on Contract [39.14].

[66]Transcript 1-12, line 36.

[67]Transcript 1-24, line 28.

[68]As shown by exhibit DKS8 of the statement.

Close

Editorial Notes

  • Published Case Name:

    Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie

  • Shortened Case Name:

    Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie

  • MNC:

    [2022] QCATA 3

  • Court:

    QCATA

  • Judge(s):

    Member Gordon

  • Date:

    07 Jan 2022

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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