River Gum Homes P/L v Baque

[2010] QDC 151

[2010] QDC 151

DISTRICT COURT

CIVIL JURISDICTION

JUDGE JONES

No 114 of 2010

RIVER GUM HOMES PROPRIETARY LIMITED ACN 065 466 337	Applicant
and
KENNETH CHARLES GERARD BAQUE	Respondent

SOUTHPORT

..DATE 19/04/2010

ORDER

HIS HONOUR: This is an application for what is referred to as a freezing order under rule 260 of the Uniform Civil Procedure Rules. As I indicated during the course of argument, for the purposes of this application, I accept and will proceed on the basis that there was sufficient prospects of success on the part of the applicant in the substantive proceedings to, prima facie, justify an order of the type sought. However, for reasons I will come to in a moment, it is my opinion that the application must fail.

The substantive action underlying the application is in the Queensland Civil and Administration Tribunal for what is essentially a breach of a building contract.  It is submitted that, pursuant to 260D(2)(b), the relief sought is available, notwithstanding that the substantive action is in the Tribunal.

Section 260D(2) relevantly provides that rule 260 applies if an applicant has a good arguable case on an accrued or prospective cause of action that is judiciable in the Court, or, (b) in another Court. Another Court is defined to mean, under the rules, "A Court outside Australia or a Court in Australia other than the Court." Pursuant to rule 3, "the Court" refers to the Supreme Court, District Court and Magistrates Court. So, here a threshold question is whether or not the Tribunal can be properly called a Court for the purposes of the rule.

On behalf of the applicant, it is submitted that it is a Court on two bases.  First, it is said to be a Court of record pursuant to the Civil and Administrative Tribunals Act 2009, and, second, that the Tribunal functions as a Court for all intents and purposes.

As to the first of these, I do not consider it to be decisive, but without finally deciding the matter, it is my, at least preliminary, view that it is more likely than not that in the circumstances of this case, the Tribunal is a Court for the purposes of rule 260D. While it is true that there are a number of features which distinguish it from a Court, for example, that many of its members are not tenured, and, in fact, sit on a part-time basis, as I understand it on an hourly or daily rate. Also, as I understand it, some of the members of the Tribunal are not lawyers. The President and Vice President of the Tribunal are respectively a Justice of the Supreme Court and a Judge of the District Court.

However, in cases such as the substantive case underlying this application, the Tribunal will be, in all likelihood, required to deal with matters of fact and law.  I should say that that would be typical of many of the cases that come before that Tribunal, and in such cases, the Tribunal will be acting in a judicial way in the sense that it will be determining questions of law in deciding cases in accordance with the law.

In this context, in the recent decision of the High Court in Kirk and Industrial Relations Commission and Others [2010] High Court Australia 1, a decision delivered on 3 February 2010.  Six of the seven Justices said, at paragraphs 68 and 69, "The basis for the distinction thus drawn between courts and administrative tribunals was identified in the lack of authority of an administrative tribunal (at least in the absence of contrary intent in the statute or other instrument establishing it) 'either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law'.  By contrast, it was said that 'the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine'.  Behind these conclusions lies an assumption that a distinction can readily be made between a court and an administrative tribunal'."

This, of course, does not mean that the tribunal is necessarily a Court properly so called of the State of Queensland. But in my view, in this sort of case, it should be regarded as a Court for the purposes of 260D of the rules.  If I am wrong about that, as was pointed out by Mr Sheaffe of counsel, this would create a significant gap in the intended protection meant to be provided by orders such as these. There will no doubt be circumstances when the Tribunal is sitting more as an administrative Tribunal and not as a Court but that is not the case here.

Notwithstanding that, however, in my opinion, the applicant has failed to show to a sufficient degree that there is a danger that the respondent will dissipate assets in a way likely to defeat or avoid any relief or award granted by the Tribunal in the substantive proceedings.

I was referred, in the written submissions of the applicant, to the decision of Patterson and BTR Engineering Australia Limited [1989] 18 NSWLR 319 at 321 per Chief Justice Gleeson. I have read the passage set out in the written submissions and I also have had regard to those cases set out in footnotes 4 and 5 of the Uniform Civil Procedure Rules dealing with this topic and would accept that it is not necessary for the plaintiff to show that the purpose of the defendant's disposition of assets, whether occurring or apprehended, is to prevent recovery of the amount of any judgment which might be obtained. A proper basis for a freezing order can arise where the plaintiff shows that there is a danger of dissipation of assets by the defendant which is likely to prevent such recovery.

The evidence relied on, or one of the matters relied on by the applicant, is that the respondent has indicated a reluctance to be served.  There is, however, no probative evidence that the respondent has, in fact, been deliberately avoiding service. There is some evidence that he may, in fact, be working as a miner in the coal mines of North Queensland.  In that regard, I've had regard to Exhibit IRK19 of the affidavit of Mr Ian Kennedy filed 19 February 2010.

The real basis for the application, however, is the letter by the respondent's then solicitor, dated 11 November 2009, which relevantly said, "Our client has the land for sale and there are parties interested in the land, and consequently it is a matter of urgency that your client remove its property.  We hereby give you notice and opportunity to arrange removal and collection of the said portable dwelling.  Our client will allow access for the purpose of removal.  Please be advised that in the event that arrangements are not made within 14 days of the date of this correspondence to remove the portable dwelling, that our client will be assume you have abandoned the dwelling, and we will take any steps he deems appropriate, including destruction, removal or use of the dwelling."

However, in more recent correspondence dated 17 February 2010 from the respondent's now solicitors, who are different to those who authored the first letter, it is relevantly said that their client, the respondent, has no intention to destroy the dwelling on the land.  It is also pointed out that the respondent was not in the process of absconding from Australia, or seeking to dissipate his assets.

I should also say here that there is no objective evidence that the land is, in fact, being sold, or the property of the applicant being destroyed, other than that earlier letter, largely refuted by the more recent letter that I have referred to.  There is, in my view, as the matters presently stand, insufficient evidence to justify the orders sought, and the application must be dismissed.  If, however, probative evidence showing that steps are in fact being taken intended or likely to defeat any judgment in favour of the applicant, I am sure that this Court will act appropriately.

The order is that the application is dismissed.

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