Pomroy v Emmetlow Pty Ltd

Case [2014] QCATA 74


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
Attorney-General v Kowalski [2014] SASC 1

Baines v State Bank of New South Wales [1985] 2 NSWLR 729
Birkett v James [1978] AC 297

Body Corporate for Bayview Shores v Bermingham and Anor [2012] QCATA 183
Briginshaw v Briginshaw (1938) 60 CLR 336
Emmetlow Pty Ltd v Pomroy & Ors [2013] QCATA 186
Emmetlow Pty Ltd v Pomroy & Ors [2013] QCATA 186
Exley…

Continue reading Pomroy v Emmetlow Pty Ltd

Sign in free to access the full text

Details
AGLC
Pomroy v Emmetlow Pty Ltd [2014] QCATA 74
Case
[2014] QCATA 74
Decision Date

CaseChat Overview and Summary

The appeal in Pomroy v Emmetlow Pty Ltd involved a dispute between the plaintiff, Pomroy, and the defendant, Emmetlow Pty Ltd, concerning charges for essential services such as water, electricity, and gas at a residential park for manufactured homes. Pomroy argued that the charges made by Emmetlow Pty Ltd exceeded the rates permitted by law under the Manufactured Homes (Residential Parks) Act 2003. The primary tribunal had previously dismissed Pomroy's application on procedural grounds, holding that it did not present a concrete money claim and, therefore, did not constitute a justiciable matter. Pomroy subsequently filed a second application, which was again dismissed on the basis that the issues had already been determined and were res judicata.

The legal issues before the court were whether the doctrine of res judicata applied to bar Pomroy's second application, whether the primary tribunal correctly identified the previous decision as a decision on the merits, and whether the primary tribunal erred in applying the res judicata rule. Additionally, the court considered whether Pomroy's application was properly formulated and whether it should be dismissed on procedural grounds if the claim was not properly pleaded.

The court found that the primary tribunal had erred in applying the res judicata rule. The previous decision had been made on procedural grounds, not on the merits, and thus did not constitute a final determination of the issues at hand. The court further held that Pomroy's application, while initially flawed, could be remedied by allowing Pomroy to amend the claim to particularise the alleged excess charges. Consequently, the appeal was allowed, and the respondent was ordered to produce relevant documents. Pomroy was given the opportunity to file an amended claim, with a subsequent hearing scheduled if the amended claim was filed. If Pomroy did not file an amended claim, the application was to be dismissed without further order. The question of costs was reserved for later determination.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.