McDonald's Australia Ltd v Emaaas Pty Ltd
[2011] QCAT 293
•22 June 2011
| CITATION: | McDonald’s Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293 |
| PARTIES: | McDonald’s Australia Ltd (Applicant/Appellant) |
| v | |
| Emaaas Pty Ltd (Respondent) |
| APPLICATION NUMBER: | RSL010-11 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 22 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Declare that the Tribunal had jurisdiction to make the orders made by consent on 8 February 2011, and affirm those orders. |
| CATCHWORDS: | RETAIL SHOP LEASES – ORDER BY CONSENT IN NATURE OF INJUNCTION – JURISDICTION TO MAKE ORDER UNDER RETAIL SHOP LEASES ACT 1994 – where applicant leases premises from respondent – where the parties sought an order by consent in the nature of an injunction to resolve a dispute about water allegedly leaking through the ceiling of the premises – where the Tribunal made the order sought on 8 February – where the parties subsequently indicated that QCAT may not have had jurisdiction to make the order as the Retail Shop Leases Act 1994 required the parties to first proceed through a mediation process – whether QCAT had jurisdiction to make the order Acts Interpretation Act 1954, s 14A Independent Finance Group Pty Ltd v Mytan Pty Ltd [2003] 1 Qd R 374, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
This proceeding concerns the McDonald’s food outlet in Surfers Paradise. It occupies premises which the applicant leases from the respondent. A dispute arose between them about what should be done about water allegedly leaking into the premises through the ceiling. On 8 February 2011 both parties in the matter, each appearing by counsel, sought an order by consent in the nature of an injunction.
At the time the orders were made both counsel also flagged the existence of a question whether or not QCAT had jurisdiction to make the consent orders they sought and, in particular, whether the Retail Shop Leases Act 1994 (the RSL Act) required that the parties first proceed through a mediation process before they could obtain orders of the kind they were seeking.
After some discussion of the legislation the orders were made. Shortly afterwards, however, the parties asked for the matter to be relisted and, through counsel, informed the Tribunal that the tenant, McDonald’s, continued to assert that QCAT did have jurisdiction but the respondent Emaaas now argued that it did not. The Tribunal directed that the question of jurisdiction be determined on the papers, following an exchange of written submissions between the parties, which has occurred.
The question whether QCAT has jurisdiction does not admit of an easy answer. As will be seen, the legislation that applies has some inherent tensions. It is impossible to escape the conclusion that amendments to the RSL Act at the time of the advent of QCAT failed to sufficiently address, and define, the nature and extent of this Tribunal’s jurisdiction.[1]
[1] As Fryberg J has already observed: To v Choi [2011] QSC 002.
In particular the legislative framework leaves it uncertain whether there are limitations on the circumstances in which a party seeking relief in a dispute which is properly categorised as a ‘retail tenancy dispute’ under the RSL Act can seek urgent injunctive relief from this Tribunal and whether, if they have not been through a mediation process under the RSL Act, they must instead approach the Supreme or District Courts for that purpose – despite the fact that this Tribunal has been granted injunctive power, and the power to provide interim relief, under ss 58 and 59 of the QCAT Act.
When it first came to QCAT McDonald’s filed what is called a Notice of Dispute under the RSL Act. Under s 55 of that Act those notices can be lodged by a party to a retail tenancy dispute with what the Act calls the chief executive. At all relevant times the chief executive was, and is, the Principal Registrar of QCAT.[2] On the same day it filed its Notice, McDonald’s also filed an application for an interim order or injunction under ss 58 and 59 of the QCAT Act.
[2]Instrument of delegation from the Director General of the Department of Justice and Attorney General to the Principal Registrar, 1 December 2009.
Under s 10(1)(b) of the QCAT Act this Tribunal has the original jurisdiction conferred on it under what that legislation calls ‘enabling Acts’; and, for present purposes, the RSL Act is an enabling Act and jurisdiction is conferred upon QCAT under s 103 of it. That jurisdiction specifically relates to ‘retail tenancy disputes’, which are defined in the RSL Act to include disputes (as the parties agree) of the kind arising here and obligations to rectify them; and, the meaning and effect of some parts of the lease creating the retail tenancy.
QCAT’s jurisdiction under s 103 of the RSL Act is broad, but subject to some qualifications and limitations. The orders QCAT can make are set out earlier in the RSL Act, at s 83, and include declaratory orders and ‘enforcement’ orders directing a party to do, or not to do, something.
Elsewhere, s 94 of the RSL Act also addresses questions of jurisdiction. It provides that, after a dispute notice is lodged, the dispute ‘… must not be referred to arbitration or heard by any court’. An exception arises, however, if a party applies to a court for relief in the nature of an injunction (s 94(2)(c)); but QCAT’s jurisdiction only ends if the court grants the application and makes an order that is inconsistent with allowing the QCAT proceeding to continue (s 94(4)).
[10] It is to be observed that s 94 makes no reference to QCAT’s powers to grant injunctions under s 59 of the QCAT Act and it does not state that, if a party to a retail tenancy dispute is seeking an order in the nature of an injunction, it must and can apply only to a court.
[11] It is other provisions of the RSL Act which confuse the question. In particular the respondent points to ss 55 and 56, and 63 and 64, and contends that they mean that a party is precluded from seeking relief from QCAT under s 103 unless and until the mediation process provided for in the RSL Act has been undertaken.
[12] Under s 55 a party to a retail tenancy dispute that is ‘… within a mediator’s jurisdiction under section 97’ can lodge a notice of dispute with the chief executive and, under s 56 the latter is then obliged to nominate a mediator, to mediate the dispute.
[13] Under s 97 mediators have jurisdiction to mediate retail tenancy disputes but the jurisdiction is subject to some limitations (which are not dissimilar to those appearing in s 103, with reference to QCAT). Interestingly, however, QCAT’s jurisdiction under s 103 is constrained by the monetary limit jurisdiction of the District Court, but the mediators’ powers are not so limited under s 97.
[14] Section 63 provides that if a retail tenancy dispute is within QCAT’s jurisdiction but the mediator cannot resolve it, it must be referred to QCAT.
[15] Section 64 provides that, if a party asserts that there has been non-compliance with a mediation agreement or a mediator is unwilling to refer the mediated dispute to QCAT, that party can apply to have the agreement enforced or the dispute referred; or, if a party has brought a proceeding in a court which was then removed to QCAT, the party can bring applications within QCAT.
[16] On its face, s 64 appears to be designed to remove any confusion around the question whether, although a party has brought court proceedings, it can also apply to QCAT.
[17] It is not apparent, however, that ss 63 and 64 are intended under the RSL Act to provide the only gateway to QCAT. Those provisions do not expressly qualify the broad jurisdiction given to QCAT under s 103.[3]
[3]In contrast with the equivalent statutory regimes in Victoria, and New South Wales: Victorian Retail Leases Act 2003, s 87; NSW Retail Leases Act 1994, s 68, which expressly curtail the jurisdiction of a tribunal or court unless and until the mediation process is complete.
[18] It is to be observed that the contrary construction would mean that a party involved in a retail tenancy dispute who seeks to apply to the Tribunal and to use, for that purpose, powers under the QCAT Act like the injunctive power arising under s 59 would be precluded from doing so and must, of necessity, bring separate proceedings for injunctive relief in the Supreme or District Court.
[19] In circumstances where QCAT is plainly invested with a broad jurisdiction to hear and determine retail tenancy disputes, that construction would be inimical to the objectives of QCAT Act to have the Tribunal deal with matters in ways that are accessible, economical, informal, quick and just.[4] It would also expose the Tribunal, the Courts and the legislature to the criticism that they have allowed the dispute resolution system for retail shop matters to fall victim to the kinds of sterile jurisdictional questions referred to by Atkinson J in Independent Finance Group Pty Ltd v Mytan Pty Ltd [2003] 1 Qd R 374 at 392.
[4] QCAT Act, s 3(b).
[20] It may also be observed that a construction that permits an immediate application for injunctive relief, despite the absence of any pre-application mediation process, is not discordant with s 94(1) – although a question may arise whether s 94(2)(c) (which gives a court jurisdiction if an application for injunction has been made to it) has that affect. On its face, however, the subsection is permissive and simply provides that a party may apply to a court (preserving the court’s power to grant injunctive relief).
[21] It was argued for the respondent that s 33(1) of the QCAT Act means that, read with the RSL Act, McDonald’s could not bring an application for an injunction at the time it did and, thereby, successfully invoke QCAT’s jurisdiction. The argument is on the lines that a party cannot apply to QCAT in respect of a retail tenancy dispute save via s 64 of the RSL Act – that is, only after the mediation process has been attempted and, in effect, failed: s 64(1). Then and only then, it is said, can an application be brought in QCAT because s 33(1) of the QCAT Act provides that an application may be brought ‘… if this Act or an enabling Act provides that a person may apply to the tribunal to deal with the matter’. Because McDonald’s has not complied with the mediation process set up under the RSL Act, it is said that it has not attracted jurisdiction under this section.
[22] The argument invests s 33 with an effect, and a power, it does not have. It does not impose an obligation, restriction or limitation on when a party can apply to the Tribunal. Rather, on its face, it is a procedural provision designed to set out formal requirements for applications filed in the registry. The Explanatory Memorandum states, relevantly, that ‘… cl 33 sets out how an application may be made to the Tribunal’. It appears at the beginning of Part 3 of Chapter 2 of the Act, immediately under the heading ‘Starting proceeding’.
[23] QCAT’s jurisdiction to deal with this matter has its foundation, rather, in s 9(1) of the QCAT Act which gives the Tribunal jurisdiction to deal with matters that it is empowered to deal with under the QCAT Act itself, or an enabling Act. An enabling Act, defined in s 6(2), is another Act that confers original, review or appeal jurisdiction on QCAT, or subordinate legislation that has that effect. Under s 9(3) an enabling Act confers jurisdiction if that Act provides for an application, referral or appeal to be made to QCAT ‘… in relation to the matter’.
[24] QCAT can exercise the original jurisdiction conferred by an enabling Act if an application is brought to it: s 15. In exercising that jurisdiction QCAT may perform the functions upon it by the QCAT Act or the enabling Act: s 16.
[25] Under s 9(4) the Tribunal also has jurisdiction to ‘…do all things necessary or convenient for exercising its jurisdiction’. The Tribunal’s powers relevantly include, under s 60, the traditional equitable powers of courts to make declarations and, under ss 58 and 59, to make interim orders or grant injunctions.
[26] Certainly the RSL Act is an enabling Act but, for the reasons already explored, QCAT has jurisdiction under s 103 of that Act to hear retail tenancy disputes. If (as has been concluded) the dispute here falls within the ambit of s 103, s 33 of the QCAT Act simply provides the mechanism for the applicant (clothed with jurisdiction) to apply to QCAT.
[27] It was also suggested that QCAT’s injunctive power under s 59 could not be successfully invoked by McDonald’s because that section provides that the Tribunal can only make an order of that kind ‘… in a proceeding …’, and no proceeding was extant here; but, the word ‘proceeding’ is defined in Sch 3 of the QCAT Act to mean a proceeding before the Tribunal, and the application for an injunction itself would appear to qualify.
[28] It is also suggested, for McDonald’s, that the Notice of Dispute itself is a proceeding because it is now ‘lodged’ in QCAT. In light of the conclusion just set out it is unnecessary to express a view about that submission but, certainly, the fact that the chief executive under the RSL Act is now the Principal Registrar of QCAT creates an obvious harmony between the RSL Act and QCAT proceedings.
[29] Both parties referred to s 14A of the Acts Interpretation Act 1954 and the statutory obligation it creates to construe legislation in ways that promote its purpose and objects. While there is, I accept, some tension within the provisions of the RSL Act about the circumstances in which a party may proceed to seek urgent relief in QCAT, a construction which accepts that the Tribunal has jurisdiction to provide injunctive relief when QCAT has been specifically invested with that jurisdiction does not involve any unacceptable straining in the process of construction.
[30] Different questions may arise, and different conclusions may apply, when proceedings do not involve applications to this Tribunal for relief under ss 58 and 59 of the QCAT Act.
[31] In the circumstances it is appropriate to affirm the orders made on 8 February 2011.
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