Pomroy v Emmetlow Pty Ltd
[2014] QCATA 74
•11 April 2014
| CITATION: | Pomroy v Emmetlow Pty Ltd [2014] QCATA 074 |
| PARTIES: | Gregory Malcolm Pomroy (Appellant) |
| v | |
| Emmetlow Pty Ltd (t/a Colonial Village) (Respondent) |
| APPLICATION NUMBER: | APL541-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 11 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The respondent Emmetlow Pty Ltd, its servants or agents, shall, by 4 pm on 28 April 2014 produce and give the appellant access to – (a) all documents in its possession or power evidencing charges to, and payments by the respondent Emmetlow Pty Ltd for water, electricity and gas purchased by it and supplied to the appellant Pomroy’s home site from 1 March 2011 to the date of inspection; and (b) all accounts rendered by the respondent Emmetlow Pty Ltd to the appellant for his use of, and access to such water, electricity and gas from 1 March 2011 to the date of inspection. 4. The appellant shall be at liberty, at reasonable times and at his own expense, to make copies of, or extracts from, the said documents. 5. The appellant may file and serve an amended claim for the alleged excess charges, particularised by reference to the documents searched in Order 3, by 4pm on Friday 23 May 2014. 6. In the event that an amended claim is filed, the respondent must file a response to that application, two weeks following the 23 May 2014 and, application OCL065-13 be returned to the Tribunal for a directions hearing four weeks after the 23 May 2014. 7. If the appellant does not file an amended claim, the application OCL065-13 is dismissed without further order. 8. The question of costs, if any, is reserved. |
| CATCHWORDS: | APPEALS – OTHER CIVIL CLAIMS – MANUFACTURED HOMES DISPUTE – Manufactured Homes (Residential Parks) Act 2003 – charges to home owners for essential services – whether charges exceeding rates permitted by law – whether a justiciable claim presented – whether prior decision that no such claim presented renders present application res judicata – whether prior decision a decision on the merits – whether primary tribunal erred in applying res judicata rule – whether present application properly formulated – whether present application should be dismissed on procedural grounds – order for discovery and hearing on merits if money claim properly pleaded – in default of proper pleading, application for dismissal may be renewed Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 143, 216 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Baines v State Bank of New South Wales [1985] 2 NSWLR 729 Body Corporate for Bayview Shores v Bermingham and Anor [2012] QCATA 183 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
The appellant Pomroy is a resident in Emmetlow Pty Ltd’s “Colonial Village” at Taigum, near Brisbane. His tenure is secured by a site agreement made under the Manufactured Homes (Residential Parks) Act 2003 (Qld) (“the MHRPA”) on 19 October 2008.
The substantive question is whether Emmetlow is overcharging Pomroy for water and other essential services. His first action in that regard (OCL095-11) was dismissed for procedural error, and he seeks to revive the dispute in application OCL065-13 (“the second action”).
The second action was dismissed on 17 September 2013, and Pomory now applies for leave to appeal that decision.
Emmetlow says that the application for leave to appeal is out of time.[1] Logically, that is the first question to consider.
[1]Submissions of the Village, filed 28 February 2014 page 6.
Is the application out of time?
The normal time for filing an application for leave to appeal is within 28 days of the “relevant day”.[2] That day, for present purposes, is the day that Pomroy was given written reasons for the decision in question.[3]
[2]QCAT Act s 143(3).
[3]Ibid s 143(5)(a).
According to Pomroy, he received reasons for the subject decision on 14 November 2013.[4] The decision was made summarily on 17 September 2013, and the reasons for it were delivered on 1 October 2013. The present application for leave was filed on 12 December 2013.
[4]Application for leave to appeal, filed 12 December 2013, Part B.
Emmetlow disputes Pomroy’s claim that he did not receive the reasons for decision until 14 November 2013:
The Respondent submits that this assertion is implausible, given that the Respondent [i.e. the Village] received the decision (albeit without reasons) on 20 September 2013. [Pomroy] provides no information as to what [he] has actually received, and when. ... [T]he Respondent submits that the application was required to be filed ... no later than 18 October 2013 ... [It] was filed ... approximately two months late”.[5]
[5]Ibid page 6 paragraphs 16-20.
Part B of Form 39[6] is clearly designed to show whether or not an application has been made within time. In view of the fact that time runs from the day when reasons are received, it is implicit that the question: “When did you receive the decision?” means “When did you receive reasons for the decision? To that question Pomroy replied: “14/11/2013”.
[6]Form of application for leave to appeal or appeal.
Emmetlow’s suggestion that this statement is untrue is based not on evidence, but on speculation, scepticism or suspicion. In effect, Emmetlow suggests that Pomroy has given false or misleading information to the Tribunal - a serious offence.[7] I am by no means prepared to make such a finding in the absence of cogent evidence to support it. It is never prudent to suggest dishonesty without such support.[8]
[7]QCAT Act, s 216.
[8]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362; Rejfek v McElroy (1965) 112 CLR 517 at 521.
In fact, an inquiry by the Registry indicates that the preparation of the reasons was delegated to Auscript, and that some delay ensued. The reasons were eventually posted to Pomroy on 11 November 2013. I accept that he received them at Taigum on 14 November 2013, and that his application was filed (just) in time.
I turn to the merits of the application.
Reasons for the primary decision
The learned Member stated:
[O]n 17 September 2013, the tribunal dismissed the application ... filed in OCL065 of 13 by Mr Pomroy. The reason ... is relatively straightforward. The application seeks to relitigate matters which have already been litigated and appealed in a previous application[9] and for which extensive reasons have been provided. The appeal matter was APL374 of 2012[10] ... [T]he matter has already been litigated and, for this reason, the [present] application must fail.[11]
[9]OCL 095-11.
[10]Emmetlow Pty Ltd v Pomroy & Ors [2013] QCATA 186.
[11]Reasons for decision 1 October 2013, page 1 lines 7-10, page 2 lines 8-9.
In essence, she decided that the issues sought to be raised in the second action are res judicata. Res judicata is a fundamental legal doctrine, designed to secure finality in litigation, and to prevent the harassment of successful litigants by erstwhile opponents. When a claim is decided by a competent court or tribunal, and the decision is not disturbed on appeal, the same dispute cannot be revived.[12] An attempt to do so is an abuse of process.[13]
[12]Thoday v Thoday [1964] P 181 at 197 (“cause of action estoppel”); Hall v Walford (No 2) [1960] QWN 51.
[13]R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26.
The first action was dismissed on procedural grounds, rather than on the merits, in Emmetlow Pty Ltd v Pomroy & Ors.[14]. It was then decided that Pomroy and his co-applicants had failed to formulate a claim that the Tribunal could lawfully entertain:
The owners have not alleged or particularised any unlawful charges; nor have they attempted to quantify a money claim. ... The expression “dispute” does not enliven a general advisory jurisdiction whenever parties have different views on what an Act requires.[15] There must be a concrete dispute, such as a money claim. ... In effect, the Owners have come to the Tribunal simply asking: “What does this section mean?” ... In the absence of a concrete dispute, the questions ... about the meaning and proper application of section 99A are hypothetical. ... The pressure upon the Tribunal’s already-stretched resources would be intolerable if it were to become a bureau for legal advice and advisory decrees. ... [The applicants] have come to the Tribunal without crystallising issues that it can properly decide.[16]
[14][2013] QCATA 186.
[15]McNab Constructions Australia Pty Ltd v Building Services Authority [2013] QSC 57 at
[19]; Randall v Body Corporate for Runaway Cove Bayside [2011] QCATA 10 at [32]; Luna Park Ltd v The Commonwealth (1923) 32 CLR 596 at 600; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; Williams v Body Corporate for Magic Mountain Apartments Two [2013] QCATA 217 at [1]; Body Corporate for Bayview Shores v Bermingham and Anor [2012] QCATA 183 at [23].
[16]Emmetlow Pty Ltd v Pomroy & Ors [2013] QCATA 186 at [9], [13].
I respectfully adopt the comments of Member Milburn in Wilson & Ors v Leknarf Pty Ltd trading as Australiana Top Tourist Park:
The decision in the Pomroy case makes it clear that applicant home owners must do more than make a generalised complaint for consideration by the tribunal if they wish to obtain a successful outcome. It is not sufficient that they point to raw dataand invite the tribunal to make a case for them. The tribunal cannot economically resolve disputes ... if it is presented with copious amounts of financial and other material and invited, in effect, to "make something of this".[17]
[17][2013] QCAT 676 at [13].
It is only a decision on the substantive merits of a case that can bring the res judicata principle into play.[18] In particular, res judicata does not flow from a dismissal for failing to show a cause of action.[19]
[18] Pople v Evans [1969] 2 Ch 255; Birkett v James [1978] AC 297; Baines v State
Bank of New South Wales [1985] 2 NSWLR 729; Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285 at 296-297; Attorney-General v Kowalski [2014] SASC 1 at [188].
[19] Rogers v Legal Services Commission (SA) (1995) 64 SASR 572.
Mr Pomroy’s first action was not dismissed on the merits, but upon procedural grounds.[20] With respect, the primary tribunal fell into error when it held that the second action is res judicata. Accordingly leave to appeal must be granted, the appeal allowed, and the primary order set aside.
[20]Emmetlow Pty Ltd v Pomroy & Ors [2013] QCATA 186 at [5]-[6]
What next?
What order should now be made? Unfortunately, Mr Pomroy’s current action possesses the same vice as its predecessor, in that it does not present a quantified money claim, or allege a specific basis or bases for such a claim. The second action, as it stands, merely seeks a declaration or advisory opinion, in the absence of substantive relief. For reasons already given,[21] that is not a justiciable claim. The quest for an order “that all excess charges paid by the home owners[22] since 1 March 2011 be refunded”, bereft of any quantified claim, is not suitable for adjudication.
[21]Emmetlow Pty Ltd v Pomroy & Ors [2013] QCATA 186 at [12] – [13].
[22]Incidentally, there is now only one owner involved.
However, I do not consider that it would be in the spirit of QCAT’s charter to order a second dismissal, leaving the matter unresolved, and the way open for yet another application.
The Tribunal has before it an application by Pomroy for discovery by Emmetlow of data which may or may not enable him to present a justiciable money claim.[23] While orders for disclosure prior to a viable pleading are the exception rather than the rule,[24] this is a case in which the appellant is entitled to see the raw materials upon which the subject charges are based, litigation or no litigation.
[23]Application for miscellaneous matters filed 4 September 2013.
[24]Exley v Wyong Shire Council, unreported, Sup Ct NSW (Allen M) 10 December 1976; Lawrance v Pickles [2005] NSWSC 718 at [5].
Therefore I propose to order that the respondent give access to the appellant, of documents that are in its possession, and are relevant to the alleged excess charges, so that the appellant may have a final opportunity to formulate a proper money claim, and, if he can do so, to amend application OCL065-13 accordingly. If he does not do so by 23 May 2014, the application OCL065-13 is dismissed without further order. If a justiciable claim does emerge within time, application OCL065-13 will be remitted to the primary Tribunal for a directions hearing, after the respondent files its response, and determined according to law.
ORDERS:
The application for leave to appeal is granted.
The appeal is allowed.
The respondent Emmetlow Pty Ltd, its servants or agents, shall, by 4 pm on 28 April 2014 produce and give the appellant access to –
(a)all documents in its possession or power evidencing charges to, and payments by the respondent Emmetlow Pty Ltd for water, electricity and gas purchased by it and supplied to the appellant Pomroy’s home site from 1 March 2011 to the date of inspection; and
(b)all accounts rendered by the respondent Emmetlow Pty Ltd to the appellant for his use of, and access to such water, electricity and gas from 1 March 2011 to the date of inspection.
The appellant shall be at liberty, at reasonable times and at his own expense, to make copies of, or extracts from, the said documents.
The appellant may file and serve an amended claim in OCL065-13, for the alleged excess charges, particularised by reference to the documents searched in Order 1, by 4pm on Friday 23 May 2014.
In the event that an amended claim is filed, the respondent must file a response to that application, two weeks following the 23 May 2014 and, application OCL065-13 be returned to the Tribunal for a directions hearing four weeks after the 23 May 2014.
If the appellant does not file an amended claim, the application OCL065-13 is dismissed without further order.
The question of costs, if any, is reserved.
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