Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd

The matter principally concerned an application for a stay of proceedings in the Supreme Court of Queensland. The Supreme Court proceeding had been commenced by a landlord after a tenant had already commenced proceedings in QCAT pursuant to the provisions of the Retail Shop Leases Act 1994. Justice Kelly found that both QCAT and the Supreme Court had jurisdiction over the dispute, and QCAT’s jurisdiction was not extinguished upon the Supreme Court proceedings being commenced. The Court held the Supreme Court proceeding should be stayed as it amounted to an abuse of process.

Kelly J

8 March 2023

The matter concerned a dispute between an applicant landlord and a respondent tenant. Pursuant to provisions of the Retail Shop Leases Act 1994, the tenant commenced proceedings in QCAT. QCAT made orders granting an interim injunction and the parties filed submissions. The landlord maintained in the QCAT proceeding that QCAT lacked jurisdiction.

Before a hearing date had been set down in QCAT for an oral hearing of the interim application, the applicant filed an originating application in the Supreme Court. [23], [26]. The respondent filed an interlocutory application in the Supreme Court proceedings seeking a stay of that proceeding. [1].

In determining the respondent’s interlocutory application, the Court was required to determine three matters. First, a preliminary point concerning the operation of s 103(1)(a)(ii) of the Retail Shop Leases Act 1994. Second, whether a failure to comply with Pt 8, Div 2 and 3 of the Retail Shop Leases Act 1994 meant the respondent’s substantive application in QCAT could not proceed. Third, whether QCAT has jurisdiction to decide jurisdictional facts in the QCAT proceeding.

In respect of the preliminary point, s 103(1)(a)(ii) of the Retail Shop Leases Act 1994 prohibits QCAT from hearing a dispute that “is before … a Court”. The Court rejected an argument from the applicant that the section operated so that QCAT’s jurisdiction ceased at the point in time when the Supreme Court proceedings were commenced. [42], [45]. Rather, Justice Kelly preferred the view that the point in time being reference by the word “is” was the point in time at which a party files an application to QCAT. [47]. That interpretation was consistent with other decisions that considered “is” to direct the Court’s attention to the events at the time of filing of the application. Such a construction would also enable QCAT to exercise the jurisdiction once it is conferred in an efficient and expeditious manner. [55].

The Court also found that although s 94 of the Retail Shop Leases Act 1994 would have operated to prevent the Supreme Court from having jurisdiction the section did not operate in this instance because pre-requisites for its application had not been satisfied. As a consequence, the Supreme Court also had jurisdiction to hear and decide the matter. [56].

In relation to the second issue, the substantive point raised by the applicant was directed to the nature of the proceedings before QCAT. The applicant argued the substantive proceeding in QCAT had not been properly commenced because ss 55, 63 and 64 “provide the gateway to QCAT’s jurisdiction”. As those sections had not been complied with QCAT lacked jurisdiction in respect of the substantive proceeding. [57].

The Court rejected that argument and found that s 103 Retail Shop Leases Act 1994 conferred a broad jurisdiction on QCAT and empowered QCAT to deal with the matter of a retail tenancy dispute. [60]. The Court found s 64 was not the only “gateway” to QCAT’s original jurisdiction. [60]. Rather, s 15 of the QCAT Act provides that QCAT may exercise its broad jurisdiction conferred by s 103 Retail Shop Leases Act 1994 where a person who has applied to QCAT to exercise its jurisdiction. Relatedly, the Court found that the tenant had applied to QCAT to exercise the jurisdiction conferred by s 103 Retail Shop Leases Act 1994. [61].

Finally, the Court found that the substantive dispute between the parties as to whether the lease is a retail shop lease was a jurisdictional fact. QCAT had the jurisdiction to decide that fact as part of its substantive jurisdiction. [62]–[64].

The Court ordered that the Supreme Court proceeding be stayed as it was an abuse of process. [71]. To allow the Supreme Court proceeding to continue would create a situation whereby QCAT’s jurisdiction could be thwarted by a party commencing proceedings in a Court. [55]. The Court observed that would not accord with the expectations of right thinking people and would bring the administration of justice into disrepute. [71].

S Parvez of Counsel