Peterson Management Services Pty Ltd (ACN 094 234 474) as trustee for the Peterson Family Trust v Body Corporate for the Rocks Resort Community Title Scheme 9435 (No. 2)
[2014] QCAT 542
•4 August 2014
| CITATION: | Peterson Management Services Pty Ltd (ACN 094 234 474) as trustee for the Peterson Family Trust v Body Corporate for the Rocks Resort Community Title Scheme 9435 (No. 2) [2014] QCAT 542 |
| PARTIES: | Peterson Management Services Pty Ltd (ACN 094 234 474) as trustee for the Peterson Family Trust (Applicant) |
| v | |
| Body Corporate for the Rocks Resort Community Title Scheme 9435 (Respondent) |
| APPLICATION NUMBER: | OCL190-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Favell |
| DELIVERED ON: | 4 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application Dismissed |
| CATCHWORDS: | Application to strike out application – whether breach of directions – whether guillotine direction engaged Queensland Civil and Administrative Tribunal Act 2009 s 48 |
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
The matter has had some considerable history since 2010. It has been the subject of numerous applications and directions.[1]
[1]Peterson Management Services Pty Ltd (ACN 094 234 474) as trustee for the Peterson Family Trust v Body Corporate for the Rocks Resort Community Title Scheme 9435 (No. 1) (Unreported, QCAT, Member Favell, 4 August 2014).
On 14 July 2014, the Body Corporate for the Rocks Resort filed a further application for miscellaneous matters seeking three orders as follows:
(1) The application as submitted by Peterson Management Services Pty Ltd Vs Body Corporate for the Rocks Resort cts 9435 is struck out as per direction 15 of directions on the 3 June 2014 and also under section 48 of the Act due to the failure to follow directions and the late pleadings as submitted in point two thus disadvantaging the respondent.
(2) Costs be awarded to the respondent from 22 December 2010 up until todays date as per section 44(2)(c) of the Act.
(3) Urgent decisions be made to resolve outstanding applications submitted by the Respondent.
The basis of the application is set out in Annexure A to the application as follows:
In brief, the applicant missed the filing date as directed by member Hanly’s directions of 3 June and failed to deliver one copy of all documents to the respondent by 4pm on the 4 July 2014.
The Body Corporate refers the Tribunal to what it says is the guillotine order at point fifteen of QCAT directions 3 June 2014 set out as, ‘If any party fails to comply with any of the above directions in relation to the filing of documents then that parties’ application is dismissed’.
The Body Corporate refers to section 45 of the QCAT Act insofar as it relates to the general obligations of the party and states, ‘each party to a proceeding must act quickly to in any dealing relevant to the proceedings’.
It submits that the late submission has unnecessarily disadvantaged the respondent. No particulars of that alleged disadvantage have been provided.
This Tribunal on the 5 March 2013 refused an application by the Body Corporate to dismiss/strike out under section 48 of the QCAT Act.
Section 48 of the QCAT Act deals with dismissing, striking out or deciding if a party is causing disadvantage. It provides:
(1) This section applies if the Tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
(a) not complying with a Tribunal order or direction without reasonable excuse; or
(b) not complying with this Act, an enabling Act or the rules; or
(c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
(d) causing an adjournment; or
(e) attempting to deceive another party or the tribunal; or
(f) vexatiously conducting the proceeding; or
(g) failing to attend mediation or the hearing of the proceeding without reasonable excuse.
(2) The Tribunal may—
(a) if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out; or
(b) if the party causing the disadvantage is not the applicant for the proceeding—
(i) make its final decision in the proceeding in the applicant's favour; or
(ii) order that the party causing the disadvantage be removed from the proceeding; or
(c) make an order under section 102, against the party causing the disadvantage, to compensate another party for any reasonable costs incurred unnecessarily.
(3) In acting under subsection (2), the Tribunal must have regard to the following—
(a)the extent to which the party causing the disadvantage is familiar with the Tribunal's practices and procedures;
(b)the capacity of the party causing the disadvantage to understand, and act on, the Tribunal’s orders and directions;
(c)whether the party causing the disadvantage is acting deliberately.
As the Tribunal said in its decision on the 5 March 2013 when discussing section 47 of the QCAT Act:
[19] The grounds set out in section 47 of the QCAT Act reflect the approach of the High Court of Australia in its inherent jurisdiction to applications for dismissing and striking out proceedings. The Tribunal has clearly articulated those principles[2] and they are that ‘an argument for striking out a claim must be very clear to justify QCAT’s intervention to prevent a party from submitting its case for determination’ (Dey v Victoria Railway Commissioners [1949] 78 CLR 62). It is a very serious matter for QCAT to dismiss a claim without allowing a hearing of that claim to take place.[3]
2.Aigner v State of Queensland and Anor [2012] QCAT 397 upheld on appeal and Jones v Queensland Health [2012] QCAT 167 (Jones v Queensland Health).
[3]Jones v Queensland Health at [17].
Further, in considering section 47 it has been stated that:
The courts have over the years considered applications under other similar legislation or under the rule of court which effectively have sought to bring a summary end to proceedings without a hearing being conducted on the merits of the substantive case. The High Court of Australia has taken a cautious approach in such cases to ensure that the interests of justice are met (Dey v Victoria Railway Commissioners supra and General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] 112 CLR 125).” And “the authorities suggest that there must be a plain and obvious case that the substantive case will not succeed before a decision is made to prevent a claimant from submitting a case for determination. If it appears that there is a case to be determined as to fact or law, then that case should be not summarily dismissed as frivolous, vexatious or an abuse of process.
Insofar as they involve Peterson Management Services Pty Ltd, the relevant directions were directions to 2, 4, 6, 7 and 9.
Direction 2 was:
Peterson Management Services Pty Ltd must file in the Tribunal two copies and give to the Body Corporate for the Rocks Resort cts 9435 one copy of any response to the amended application by 4pm of the 17 June 2014.
That direction is not said to be not complied with.
Direction 4 stated:
Peterson Management Services Pty Ltd must file in the Tribunal two copies and give to the Body Corporate for the Rocks Resort cts 9435 one copy of a) any further statements of witnesses; b) any expert reports; and c) any documents upon which it wishes to rely on in response to the material filed by the Body Corporate for the Rocks Resort cts 9435 in respect of the relief sought in the counter application by 4pm on 4 July 2014.
A similar direction was made in respect of the Body Corporate for the Rocks Resort.
Direction 15 was ‘if any party fails to comply with any of the above directions in relation to the filing of documents, then that parties’ application is dismissed’.
The applicant responds to this application by submitting that there was no breach and that the guillotine was not engaged.
It also submits that if the guillotine was engaged then time for compliance ought to be extended. In my view, for the reasons expressed by the President in Rintoul v State of Queensland and Ors (No 12)[4] if an extension had not been granted before the time for filing passed it is too late because the guillotine would have already self executed.
[4][2014] QCAT 332.
I accept that the guillotine has not been engaged as I am not satisfied that the applicant failed to comply with the directions made.
In my view this is not a case where the discretion conferred by section 48 is engaged or should be exercised.
There is no direction or provision which requires a response to the counter application and the absence of any specific response means that the counter claim is in issue and it will be necessary for the respondent to prove its counter claim.
I am unable to identify any prejudice suffered by the respondent because of the way the material was provided or the timing of the provision of the material.
The application is dismissed.
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