Butler v Corporate Consulting Services Pty Ltd
[2012] QCAT 258
•22 June 2012
| CITATION: | Butler v Corporate Consulting Services Pty Ltd [2012] QCAT 258 |
| PARTIES: | Allan Reginald Butler (Applicant) |
| v | |
| Corporate Consulting Services Pty Ltd t/as Leigh Bernhardt Corporate Consulting Services Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO1252-11 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 16 May 2012 |
| HEARD AT: | Southport |
| DECISION OF: | Christine Trueman, Adjudicator |
| DELIVERED ON: | 22 June 2012 |
| DELIVERED AT: | Southport |
ORDERS MADE: | [1] THAT the Claim is struck out for want of jurisdiction. |
| CATCHWORDS: | Minor Civil dispute – Consumer claim – Applicant seeks refund of monies paid for consultancy services – where alleged consultant was incompetent and services provided were inadequate – whether claim filed out of time – action being barred under the Limitations of Actions Act 1974 – whether Consumer application is valid – whether Respondent is a trader Limitation of Actions Act 1974, s 10 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Mr Allan Reginald Butler |
| RESPONDENT: | Mr Leigh Bernhardt |
REASONS FOR DECISION
The Applicant, Mr Allan Reginald Butler (“Mr Butler”) filed a claim for minor civil matter consumer dispute on 30 November 2011 seeking orders that the Respondent Corporate Consulting Services Pty Ltd trading as Leigh Bernhardt Corporate Consulting Services Pty Ltd reimburse to him the sum of $4,000.00 and pay a filing fee of $95.00. The claim seeks the repayment of a sum that Mr Butler paid to the Respondent for consulting services pursuant to an agreement whereby Mr Leigh Bernhardt, the Director of the Respondent company, would provide advocacy and other services. The consulting and advocacy services were to be provided to Mr Butler to assist him in relation to a claim alleging unfair dismissal in the Queensland Industrial Relations Commission (“IRC”).
Mr Butler signed with witness an Agreement for Consulting Services[i] on 23 December 2005. The Agreement was counter signed by Mr Bernhardt noting that the parties agreed that the assignment commenced in November 2005.
Mr Butler alleges that Mr Bernhardt was incompetent in the provision of the advocacy services. His complaints are summarised in that he stated that Mr Bernhardt did not prepare his case properly, did not call relevant witnesses, did not follow instructions and charged him for preparing documents and statements that were not necessary or were not done correctly. He stated that the incompetent representation occurred at the hearing that proceeded at the IRC on 6 February 2006.
Is the Claim Filed out of Time and Statute Barred?
Mr Bernhardt sought orders from the tribunal that the claim should be struck out as filed out of time. He stated that as the agreement was signed in December 2005 noting that initial instructions and work commenced for Mr Butler in early to mid November 2005 that the 6 year limitation period ceased in November 2011. He stated that the claim filed 30/11/2011 is barred under the Limitations of Actions Act 1974 and must be struck out.
The agreement does not state what date in November that the engagement commenced. The itemised tax invoices[ii] relating to payments made by Mr Butler to Mr Bernhardt that were provided to the tribunal indicate that initial instructions were given by Mr Butler to Mr Bernhardt at a meeting on 18 November 2005. Mr Bernhardt alleges that the 6 year limitation period commenced from that date and that the claim is statute barred if filed after 18 November 2011. The claim was filed on 31/11/2011 and on this basis Mr Bernhardt alleges the claim is out of time and therefore statute barred.
Section 10 of the Limitations of Actions Act 1974 provides:
10 Actions of contract and tort and certain other actions
(1) The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose:
(a) subject to section 10AA, an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person;
(b) an action to enforce a recognisance;
(c) an action to enforce an award, where the agreement to arbitrate is not by an instrument under seal;
(d) an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture.(2) An action for an account shall not be brought in respect of a matter that arose more than 6 years before the commencement of the action.
(3) An action upon a specialty shall not be brought after the expiration of 12 years from the date on which the cause of action accrued.
(3A) Subsection (3) does not affect an action in respect of which a shorter period of limitation is prescribed by any other provision of this Act.
(4) An action shall not be brought upon a judgment after the expiration of 12 years from the date on which the judgment becomes enforceable.
(4A) For the purposes of subsection (4), a judgment of a court of a place outside the State becomes enforceable on the date on which the judgment becomes enforceable in the place where the judgment is given.
(5) An action to recover a penalty or forfeiture or sum by way of a penalty or forfeiture shall not be brought after the expiration of 2 years from the date on which the cause of action accrued.
(5A) In subsection (5) penalty does not include a fine to which a person is liable on conviction of a criminal offence.
(6) This section:
(a) does not apply to a cause of action within the Admiralty jurisdiction of the court that is enforceable in rem; and
(b) does not apply to a claim for specific performance of a contract or for an injunction or other equitable relief, save so far as any provision thereof may be applied by the court by analogy in the same manner as the corresponding enactment repealed by this Act has heretofore applied.
The relevant consideration in this matter is that the limitation period commences from the date on which the cause of action arose. It is clear that in this case Mr Butler did not become disgruntled with the services of Mr Bernhardt until after the hearing in the Industrial Relations Commission which occurred on 6/2/2006. The cause of action therefore arose on 6/2/2006. The claim was required to be filed within 6 years from 6/2/2006. The claim therefore should have been filed on or before 6/2/2012. The claim was filed on 30/11/2011 and is therefore filed within time, by some three months, and the assertion by Mr Bernhardt that the claim is out of time and statute barred is incorrect.
Does the Tribunal have Jurisdiction to Hear the Claim?
This Tribunal has jurisdiction to hear particular types of civil matters pursuant to section 11 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). The relevant section of the QCAT Act that provides for when jurisdiction is to be exercised for minor civil matters is contained in section 12 which states that:
12 When jurisdiction for minor civil dispute exercised
(1) The tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under this Act, applied to the tribunal to deal with the dispute.
(2) A relevant person may, as provided for in subsection (3), agree to limit the person's claim to the prescribed amount in order to bring the claim within the tribunal's jurisdiction for a minor civil dispute.
(3) A relevant person limits the person's claim to the prescribed amount by applying to the tribunal to deal with the claim as a minor civil dispute.
(4) In this section—
relevant person means—
(a) for a claim to recover a debt or liquidated demand of money—a person to whom the debt is owed or money is payable; or
(b) subject to paragraphs (c) to (g), for a claim arising out of a contract between a consumer and a trader—the consumer; or
(c) for a claim arising out of a contract between 2 or more traders—any of the traders; or
(d) for a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle—a person incurring loss because of the damage; or
(e) for a claim for repair of a defect in a motor vehicle under the Property Agents and Motor Dealers Act 2000, section 248 or 324—the buyer of the vehicle; or
(f) for a tenancy matter—a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the tribunal for a decision in relation to the matter; or
(g) for a claim that is the subject of a dispute under the Neighbourhood Dispute Resolution Act 2011—a party to the dispute; or
(h) for a matter under the Building Act 1975, chapter 8, part 2A—a person who, under Building Act 1975, chapter 8, part 2A may apply to the tribunal for a decision in relation to the matter.
The definition of trader in the QCAT Act had been referred to in a QCAT appeal decision of Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro[iii]. In that case it was found that the definition of trader in the QCAT Act is both inclusive and exclusive. It is inclusive in that it encompasses activities carried out in trade or commerce but then excludes such activity where the person acts in the exercise of a discipline not normally associated with trade or commerce. The exemption is directed to the person and their discipline rather than fixing on the nature of the activity.
In the QCAT Act the definition of trader is[iv]
1. A trader –
(a) Means a person who in trade or commerce –
(i) carries on a business of supplying goods or providing services; or
(ii) regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and .....2. However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services –
(a) the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; ... (emphasis added)
In the decision of Early Property Group Pty Ltd t/a/Early Group Valuers v Cavallaro, her Honour Kingham J stated:
“A valuer’s opinion may well be a product that could be used in trade or commerce but it is produced as a result of intellectual activity. A valuer brings an independent mind to the question of land value. In expressing an opinion, a valuer must apply the methodology and principles developed and accepted in the discipline of valuation. In my view, the act of providing that opinion is an act in the exercise of a discipline not ordinarily regarded as within the field of trade or commerce.”
The exemption in the definition of trader that precludes a person who acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce then requires further examination of the definition of a discipline. Her Honour referred to the definition as a “branch of instruction or learning” as defined by the Butterworths Australian Legal Dictionary.
Her Honour considered in her decision the case of Prestia v Aknar[v] and findings by Santow J who explored the meaning of profession. His Honour offered the following as a working definition:
“This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.”
Kingham J applied that approach in the case of Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro and found that:
“it can be readily accepted that valuer’s are professionals. The Valuer’s Registration Act 1992 (Qld) affirms that status and sets up processes for handling complaints about valuer’s and to discipline them for unsatisfactory professional conduct or professional misconduct. A valuer’s opinion may well be a product that could be used in trade or commerce but it is produced as a result of intellectual activity. A valuer brings an independent mind to the question of land value. In expressing an opinion, a valuer must apply the methodology and principles developed and accepted in the discipline of valuation. In my view, the act of providing that opinion is an act in the exercise of a discipline not ordinarily regarded as within the field of trade or commerce.”
In light of the findings by her Honour in the Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro case, as in this case, it is clear that Mr Butler is a consumer being an individual for whom services were supplied for a fee or reward[vi] but Mr Bernhardt is not a trader.
I find that Mr Bernhardt is an advocate that provides consultancy services including advice and advocacy, he prepared and lodged legal documents and represented Mr Butler in all actions against him within the industrial tribunals. His advice and opinion is produced as a result of intellectual activity and Mr Bernhardt acts for and represents clients in legal industrial relation disputes. Mr Bernhardt is a highly qualified industrial relations practitioner and advocate and appeared as advocate for clients for many years in both State and Federal industrial tribunals. His representation of clients, the giving of advice, preparing tribunal and court documents and conducting defended cases for various tribunals require specialised skills and expertise that in my view are outside the skills required to conduct a business within the field of trade or commerce.
I find that in the provision of advocacy services that an advocate must apply the methodology and principles developed and accepted within a legal context and within the specific arena of the law specialising in industrial relations and that in my view this discipline is an act in the exercise of a discipline not ordinarily regarded as within the field of trade or commerce.
Conclusion
For the reasons I have given I find that the tribunal does not have jurisdiction to hear the matter and the claim must be struck out. The order that will give effect to the decision I have reached for the reasons given is as follows.
Order
THAT the Claim is struck out for want of jurisdiction.
[i]Exhibit 6.
[ii]Exhibit 1.
[iii][2010] QCATA 65.
[iv]Queensland Civil and Administrative Tribunal Act 2009, Schedule 3, definition of trader (2)(a).
[v](1996) 40 NSWLR 165 at pp 22-23.
[vi]Queensland Civil and Administrative Tribunal Act 2009, Schedule 3, definition of consumer (b).
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