Lang v Centa E Pty Ltd
[2013] QCAT 516
•27 September 2013
| CITATION: | Lang v Centa E Pty Ltd [2013] QCAT 516 |
| PARTIES: | Mr Gregory Lang (Applicant) |
| v | |
| Centa E Pty Ltd (Respondent) |
| APPLICATION NUMBER: | RSL057-13 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 27 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for miscellaneous matters (application for punishment for contempt) filed by the applicant on 20 May 2013 is dismissed. |
| CATCHWORDS: | PRACTICE AND PROCEDURE – CONTEMPT – where the respondent agreed to pay the applicant a sum of money in full and final settlement of the dispute and of all proceedings – where the applicant applied to the Tribunal for an order that the respondent be punished for contempt of the tribunal – where the applicant contends a defect in an interim application filed by the respondent constitutes contempt of the tribunal – whether the defect amounts to contempt of the tribunal – whether the terms of the settlement may be pleaded as a complete defence Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 47(2)(a), 216, 218, 219 Consolidated Press Ltd v McRae (1955) 93 CLR 325, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
QCAT has powers to punish persons who act in ways which constitute a ‘contempt’ of the Tribunal.[1] Under s 218 of the QCAT Act, circumstances which may constitute contempt include insulting an official; obstructing or hindering proceedings or parties, or unreasonably interrupting them; creating disturbances; contravening an undertaking to QCAT; or, failing to comply with an order of the Tribunal.[2]
[1]QCAT Act s 219.
[2]Ibid s 219; See also Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 925.
Under s 219(4), QCAT’s jurisdiction and powers to punish a contempt of the Tribunal may be exercised on the application of a person, or on its own initiative (or, on the application of the principal registrar: s 219(3)). Section 219(1) gives the Tribunal all the protection, powers and jurisdiction the Supreme Court has in relation to contempt. Rule 99 of the Queensland Civil and Administrative Rules 2009 prescribes how the UCPR applies in relation to contempt of the Tribunal. Adapting UCPR r 926 to QCAT, a person applying for punishment of a contempt must file an application specifying the alleged contempt.
Mr Lang brought an application of that kind here. The respondent, Centa E Pty Ltd, cross-applied to have his application struck out on the basis that the Tribunal lacks jurisdiction and that the application is misconceived.
After receiving Mr Lang’s application and the respondent’s application to strike out, the Tribunal directed an exchange of written submissions, firstly, from Mr Lang in support of his application and with submissions about penalty, followed by submissions from Centa E Pty Ltd addressing the same issues. The Tribunal then held a directions hearing on 15 August 2013 at which it was ordered that the parties exchange any further submissions upon which they wished to rely, whereafter the application would be determined on the papers.[3] The parties have exchanged those submissions.
[3]QCAT Act s 32.
Mr Lang’s application alleging conduct constituting contempt on the part of the respondent arises from earlier proceedings in QCAT’s Retail Shop Leases jurisdiction and, also, the Magistrates Court. Those proceedings were all brought to an end when the parties signed terms of settlement on 9 October 2012.
In the retail shop lease proceedings in the Tribunal[4] Mr Lang appears to allege that, on 6 July 2011, Centa E Pty Ltd filed a QCAT application for miscellaneous matters (in Form 40) containing six numbered pages of which the sixth, he says, is from another form of application for leave to be represented, but with the date altered. This, he alleged in his original application for punishment for contempt, is a ‘… clear breach of QCAT laws and regulations’.
[4]RSL036-11 and RSL122-11.
According to the very lengthy submissions he filed following my directions order of 15 August 2013, he entered into a lease for retail shop premises in a Brisbane suburban shopping centre in 2008. Centa E Pty Ltd was the lessor. There were, he alleges, a number of problems with the premises regarding the electricity supply, a leaking roof, and other difficulties. Eventually, his shop was closed. The lessor commenced proceedings in QCAT for, among other things, arrears of rent.
Eventually the QCAT proceedings (and Magistrates Court proceedings) were settled on terms which are contained in a document titled ‘Terms of Settlement’ signed by Mr Lang, and the respondent. Centa E Pty Ltd agreed to pay Mr Lang a specified sum of money in full and final settlement of the dispute, and of all proceedings.
In his submissions in this contempt proceeding Mr Lang repeats the assertion in his original application that there was some defect in an interim application filed by Centa E Pty Ltd in the original retail shop lease proceedings which, he asserts, constitutes an ‘… offense under s 216 of the QCAT Act’.
It is not suggested the document, if it contained an error, did so in a way intended to deliberately mislead the Tribunal, or Mr Lang.
Section 216 of the QCAT Act provides that a person must not state, to an official, anything the person knows is false or misleading in a material particular. A penalty of up to 100 penalty units may be imposed upon a person convicted of an offence under that section. Under s 216(2) a person must not give an official a document containing information the person knows is false or misleading in a material particular – with the same penalty.
Despite having, now, two opportunities to file material Mr Lang is not able to stipulate the offence Centa E is alleged to have committed by reference to s 216 or the conduct said to constitute that offence. In particular it is not alleged (or proved) that the signature attached to the document he seeks to attack is not, in fact, that of an official of Centa E; nor that the information contained in the document is not true to the best of the applicants knowledge; or, that some or all of the information contained in the document was knowingly false or misleading, in a material particular; or that a statement was made to an official that was knowingly false or misleading in a material particular.
The relevant part of the document Mr Lang seeks to attack is headed ‘CHECKLIST AND SIGNATURE’. It does not require an acknowledgement, assertion or undertaking by the signer that the relevant part of the document is true and correct. Nor, to reiterate, has Mr Lang produced any evidence at all to establish, either to the criminal standard or the civil standard of proof on the balance of probabilities, any of the matters required under s 216. As is submitted for Centa E, mere proof that one page of a document filed in QCAT was replaced with another page from another document does not suggest and, certainly, falls far short of compelling the conclusion that Centa E committed any offence under s 216.
In fact, the error was plain and obvious – there was a date change in hand writing and the relevant page in the form actually shows, on its face, that it was a part of another form altogether.
In short, nothing in Mr Lang’s submissions can be said to even begin to establish, or to prove, the misconduct inherent in a serious allegation like misconduct constituting contempt.
There are, in any event, other reasons why Mr Lang’s application cannot succeed.
There is nothing in Mr Lang’s submissions which is persuasive that Centa E has committed any offence, let alone the alleged offence.
Under s 218(1)(g) a person may be in contempt of the Tribunal if he or she commits an offence against Part 1, Chapter 5 of the QCAT Act.
In QCAT’s predecessor tribunal, the Commercial and Consumer Tribunal, the Honourable James Thomas AM QC held that disciplinary proceedings founded upon a part of the Queensland Building Services Authority Act 1991 required the BSA to first prove the conviction in another court before it could pursue contempt proceedings in that Tribunal.[5] Here, the parties were involved in civil proceedings, but contempt proceedings are criminal in nature and the onus of proof is beyond a reasonable doubt.[6] No conviction of any kind has been recorded against Centa E Pty Ltd. While it is unnecessary to decide the question, it appears that s 218(1)(g) may point to the conclusion that Parliament intended that a conviction must first be proved in another court.
[5]Queensland Building Services Authority v Harlequin Paints Pty Ltd [2008] QCCTB 56.
[6]Whitham v Holloway (1995) 183 CLR 525.
The next bar to successful proceedings by Mr Lang arises out of the Terms of Settlement in which clause 12, in consideration of the payment of a not insubstantial sum to Mr Lang, unconditionally and irrevocably released and discharged each party from all actions, suits, claims, demands and causes of action whatsoever at law in equity and under statute, and the document could be pleaded as a complete defence. Those terms must be read in light of the circumstance that Mr Lang had previously raised the very matter he now presses as the basis for a contempt charge in both of the retail shop lease proceedings. In light of that covenant he cannot now be allowed to revive what is an old complaint addressed in those earlier proceedings and, effectively, extinguished by the Terms.
Next, he has not properly particularised the charge he says underpins and justifies a finding of contempt against Centa E. That is required under UCPR r 926(1), and with strict proof.[7] While Mr Lang’s non-compliance with the obligation to give very clear particulars is, in itself, no more than an irregularity it is yet another deficit in proceedings which, because of their serious consequences, must involve strict compliance with the procedural steps including proper particulars.
[7]Consolidated Press Ltd v McRae (1955) 93 CLR 325 at 333.
The Tribunal has power under s 47(2)(a) of the QCAT Act to summarily dismiss or strike out an application if, in the terms used in s 47(1), it is ‘frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process’. For the reasons discussed above Mr Lang’s application lacks any substance. In the absence of proper particularisation it can also, fairly, be described as frivolous, vexatious or misconceived; and, in light of the Terms of Settlement it can also, fairly, be categorised as an abuse of process. It should not have been brought, and cannot be allowed to proceed. It will be struck out.
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