Stoker v Picken - [2009] FMCA 1327

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STOKER v PICKEN

[2009] FMCA 1327

PRACTICE AND PROCEDURE – Issue estoppel – res judicata – effect of order of a Small Claims Tribunal – Anshun estoppel.

Small Claims Tribunal Act 1973 (Q)

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Judges of the District Court Brisbane; Ex parte Kruger Enterprises (1982) Qd R 623
Love v The Attorney-General for New South Wales (1990) 169 CLR 307
Precision Data Holdings Limited v Wills (1991) 173 CLR 167
W & T Enterprises Queensland Pty Ltd v K O Taylor, Referee, Small Claims Tribunal [2005] QSC 360
Amos v Elizabeth Hall, Referee, Small Claims Tribunal (2006) Qd R 397

Applicant:

BRIAN JAMES STOKER

Respondent:

MARK ANTHONY PICKEN TRADING AS GOLD COAST RV AND BOATING SERVICES

File Number:

BRG 854 of 2008

Judgment of:

Jarrett FM

Hearing date:

30 March 2009

Date of Last Submission:

30 March 2009

Delivered at:

Brisbane

Delivered on:

31 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Fisher

Solicitors for the Applicant:

Neumann & Turnour Lawyers

Counsel for the Respondent:

Mr Blaxland

Solicitors for the Respondent:

Lili Bulyk

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 854 of 2008

BRIAN JAMES STOKER

Applicant

And

MARK ANTHONY PICKEN TRADING AS GOLD COAST RV AND BOATING SERVICES

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

The application before me was commenced in the Federal Court on 4 December last year. In the proceedings the applicant, who owns a motor vessel, claims that he is entitled to possession of the motor vessel presently in the possession of the respondent and that the respondent is:
not entitled to be paid for the repairs effected to the Whitley Cruise Master on the applicant.
He also claims damages for breach of contract and/or breach of the Trade Practices Act 1974 or, alternatively, the Queensland Fair Trading Act 1989. He claims interest on the damages and costs.
The respondent, who was called upon by the applicant in times past to perform some repair work to the vessel, opposes the applicant’s claims and, by way of counterclaim, seeks an order that his fees and charges for performing work on the vessel be paid together with a claim for storage expenses, interest and costs. He asserts a right to sell the vessel to satisfy his claims. It presently remains in his possession.
The proceedings were transferred to this Court by Dowsett J of the Federal Court. The proceedings were properly before the Federal Court, it involving both a proprietary and general maritime claim, as those terms are defined in the Admiralty Act 1988. The respondent’s claim is also, at least in part, a general maritime claim.
There is no difficulty with jurisdiction and neither party suggested that there was. These reasons are necessary because the respondent, when the trial was set to commence yesterday sought to agitate a preliminary argument. The respondent says that the applicant’s claims ought not be allowed to proceed further because they had already been determined once in the Small Claims Tribunal and they ought not be allowed to proceed again. The applicant for his part says that that application and the submissions made in support of it are misconceived and the proceedings should move on.
The Small Claims Tribunal is a central feature in the application because there was an application made by Mr Stoker to the Small Claims Tribunal for relief under the Small Claims Tribunal Act 1973 (Q).
The affidavit of Mr Picken that was filed on 16 March 2009 attaches to it two of the relevant documents. The first is the claim made by the applicant to the Small Claims Tribunal and the second is the decision record of the Tribunal dismissing the applicant’s claim.
Before I deal in similar detail with the nature of the claim made by the applicant to the Small Claims Tribunal it is necessary I think to gain an understanding of the nature of the Tribunal and its work. There are two explanations and discussions of the nature of the Tribunal that are relevant. The first appears in the decision of the R v Judges of the District Court Brisbane; Ex parte Kruger Enterprises (1982) Qd R 623. It is a decision of the Full Court of the Supreme Court of Queensland and the leading judgment was given by McPherson J.
In that case his Honour set out the history and nature of the Small Claims Tribunal. One of the issues that his Honour considered, but did not come to a concluded view on in that case, is whether the Tribunal was bound to apply the general law to disputes before the Tribunal. His Honour at page 628 of the judgment inclined to the view, I think, that the Tribunal was not bound to apply the general law, but rather was to discharge its statutory function, but his Honour did not decide the point.
What his Honour does say about the Small Claims Tribunal is that:
The general scheme of the Act as disclosed by its principal provision is to encourage the settlement of claims or, failing this, to facilitate their determination with as little formality and expense as possible. To this end it is provided by section 10(2) that if settlement appears to be impossible the function of the referee constituting the Tribunal "shall be to make such an order with respect to the issue in dispute as is fair and equitable to all parties to the proceeding concerning the dispute or where he thinks the case requires it," an order dismissing the claim.
His Honour goes on:
The same policy is implicit in the further provisions that the Tribunal is not bound by the rules and practice as to evidence, but may inform itself on any matter in such a manner as it thinks fit - section 33(3). That a party shall not in general be entitled to be represented or, at any rate, not by a person having legal qualifications - section 32. The Tribunal and the orders it makes are immune from judicial supervision or control except where jurisdiction is absent or a denial of natural justice has occurred - section 19.
More recently the history of the Act was explained by Byrne J of the Supreme Court of Queensland in W & T EnterprisesQueensland Pty Ltd v K O Taylor, Referee, Small Claims Tribunal [2005] QSC 360. His Honour says this of the Small Claims Tribunal:
[1] When the first Small Claims Tribunal was established in Queensland more than 30 years ago, it consisted of one referee, who was responsible for disposing of all Small Claims in the State. Over the years, the jurisdiction of these tribunals has gradually been enlarged. As the volume of claims increased, the legislation was amended to appoint all magistrates as referees.
[2] By the 1990s, the work of the tribunals ranged over claims for payment, and relief from payment, of money "not exceeding the prescribed amount", as well as contests involving motor vehicle property damage, dividing fences, and rental bonds. In 1994, all residential tenancies disputes came within their jurisdiction – an initiative that resulted in a rapid increase in workload. In 1999, the Brisbane Tribunal alone processed more than 7,000 claims.
[3] The popularity of the tribunals, with government and the community, is influenced by the informality of the proceedings and the finality of outcomes.
[4] Small Claims Tribunals function without the usual formalities of a court, are not bound by the rules of evidence, and before a lawyer may be heard, all parties must agree.
[5] Finality is an important characteristic of orders of the tribunals. Several legislative provisions combine to restrict the scope for challenges to determinations of referees: no official record of evidence is kept; "no appeal shall lie in respect" of a settlement or order; and, most significantly for present purposes, by s 19 of the Small Claims Tribunals Act 1973 ("SCTA"):
“No writ of certiorari, or prohibition, or other prerogative writ shall issue, and no declaratory judgment shall be given in respect of a proceeding taken or to be taken by or before a small claims tribunal or in respect of any order made therein save where the court before which such writ or judgment is sought is satisfied that the tribunal had or has no jurisdiction conferred by this Act to take the proceeding or that there has occurred therein a denial of natural justice to any party to the proceeding.”
His Honour then goes on to deal with some changes to the legislation that were relevant to the case then before his Honour. I will return to W & T Enterprises shortly.
In this particular case Mr Stoker’s claim to the Small Claims Tribunal sought relief against payment and the return of his vessel. They are two forms of relief that the Tribunal is empowered to give under the relevant statute. There is no suggestion that Mr Stoker was not a claimant as that term is defined in s.4 of the Small Claims Tribunal Act, nor is there any dispute that he was a consumer as that phrase is defined in s.4 of the Act. It was not suggested that Mr Picken was not a trader as that term is defined in the Act.
Having regard to the relevant definitions and the evidence that is contained in the affidavit material and the basis upon which the submissions before me proceeded, I think I can comfortably come to the conclusion that in fact Mr Stoker was a claimant and a consumer and Mr Picken was a trader. It was not suggested that the proceedings before the Small Claims Tribunal were inappropriately commenced and, as I say, the relief that was sought in the proceedings was relief that was open to the Tribunal to grant in the proceedings, save for one matter to which I shall refer shortly.
The orders that can be made by the Tribunals are set out in s.20 of the Small Claims Tribunal Act. There are a number of different forms of relief depending on the type of claim that is before the Tribunal, but for the purposes of this case it seems that there were relevantly five forms of relief that might have been granted:
a)An order that required a party to the proceeding before it to pay money of a value specified in the order. That was not sought in the proceedings before the Tribunal.
b)An order that money of a value specified in the order is not due and owing. That is the type of claim that Mr Stoker sought to agitate.
c)An order that the party to the proceeding before it perform work to rectify a defect in good or services. There was no claim for that.
d)An order that required a party to the proceeding to return goods to which the claim in the proceeding relates and which are in that party’s possession or control. There was a claim for that in respect of the boat.
The final form of relief that might be granted by a Tribunal might be a combination of any of the four to which I have just referred.
It is relevant to note that s.21 of the Small Claims Tribunal Act provides a restriction on the Tribunal’s orders in that if an order is made that requires the payment of money or the performance of work or the return of goods of a value exceeding the prescribed amount, that is $7500, the Tribunal’s order is of no force and effect.
That seems to be the reason why the relief granted at the end of the hearing before the Tribunal seems to be limited to the claim for relief from payment. The order made by the Tribunal was that the claim for relief from payment “is refused”, but there is no reference in the determination to the return of the vessel.
There is no evidence before me about the value of the vessel, but for the purposes of this preliminary application I am prepared to assume that the vessel is probably worth more than $7,500. If that is the case then it explains the absence of an order dealing with the question of the return of goods, it being sought in respect of property, the value of which exceeded the prescribed amount. Even if the Tribunal had made an order in respect of it it would have been of no force and effect having regard to s.21 of the Act.
So it seems clear enough that the relief sought in the Small Claims Tribunal was relief against payment. That looks remarkably similar to the relief that the applicant claims in these proceedings, at least some of it, whereby he seeks a declaration that the respondent is not entitled to be paid for the repairs affected to the Whitley Cruise Master of the applicant.
The affidavit material of each of the applicant and the respondent in this case makes it clear that the amount sought to be avoided by the applicant in these proceedings is the same amount that he sought to avoid in the Small Claims Tribunal proceedings and it is the same amount, leaving aside the question of storage charges, which the respondent now seeks an order for in these proceedings.
Insofar as the present proceedings seek an order that the applicant is entitled to possession of the vessel I am not satisfied that that claim has been adjudicated upon by the Tribunal. That is to say, no res judicata arises in respect of that claim, nor in my view does an issue estoppel arise in that claim because there is not, on the record of the Tribunal proceedings, any determination of any issue that relates to the possession of the vessel.
Insofar as this preliminary application seeks to have the proceedings dismissed or stayed insofar as they claim a declaration to possession or of entitlement to possession the application is dismissed.
In respect of the claim for relief from payment it seems to me that that claim has in fact been dealt with by the Small Claims Tribunal. It was said by the applicant in response to the present application that no res judicata could apply or arise because the determination of the Small Claims Tribunal was not a judicial determination, but rather a determination of an administrative character. The problem with that submission is that the authorities are against it.
In W & T Enterprises, the decision of Byrne J to which I referred earlier, one of the issues in dispute in that case that his Honour needed to determine to decide the application was whether the decision of the Tribunal in that case was judicial or administrative. His Honour concluded after considering two decisions of the High Court - Love v The Attorney-General for New South Wales (1990) 169 CLR 307 at 319 and Precision Data Holdings Limited v Wills (1991) 173 CLR 167 at 189 to 190 - that the decision of the Small Claims Tribunal in that case was judicial, not administrative. His Honour says this:
[51]W & T also seeks a statutory order of review pursuant to Part 3 of the JRA. The refusal of permission to terminate is said to be "a decision of an administrative character ..."
[52] The character of the Referee’s decision was judicial, not administrative.
[53] After an adjudicative process that required procedural fairness to be accorded, the rejection ofW & T’s case was a determination necessarily based on the application of the law – the grounds stated in s 10 of the MHA – to the pertinent facts as they were found to be. The fact-finding involved an evaluation of the rival contentions as the controversy was developed in evidence and argument. Policy played no part in the decision. The decision was not made in the implementation of some executive governmental power or function. And the exercise in which the Referee engaged related to the determination of existing rights.
In that case the referee’s decision was a decision in respect of a dispute that the Tribunal had jurisdiction to adjudicate upon pursuant to the Mobile Homes Act 1989 (Q). It required the owner of a mobile home site and who had a lease agreement in place with an occupant of that site to obtain the permission of a Small Claims Tribunal to terminate the occupancy agreement in certain circumstances. The Tribunal was granted the power to permit determination of the relevant agreement, even if it was satisfied that the ground on which the application for the order was based had been made and the Tribunal was satisfied that the making of the order was "reasonable and just in the circumstances"
Whilst in 1982 McPherson J wondered about whether the Tribunal was required to apply the general law to determinations of disputes under the Small Claims Tribunal Act it seems that the view taken by Byrne J was that provided the Tribunal accorded with the legislation that granted it jurisdiction to make the relevant determinations that in itself was a determination according to law. That is to say, the Tribunal was obliged to make its decision under the Mobile Homes Act if it was satisfied that the making of the order was reasonable and just in the circumstances - two terms which are by their very nature broad - and provided the Tribunal made that consideration then there had been a determination according to law.
There is no evidence before me and, indeed, it might be the case that there could not be any having regard to the terms of the Small Claims Tribunal Act about the way in which this particular claim was decided, but that is not to the point. The Tribunal was charged with making a decision in this case on a certain basis and it appears to have done so.
Byrne J's decision about the nature of a determination in the Small Claims Tribunal was considered briefly, but applied by Atkinson J in Amos v Elizabeth Hall, Referee, Small Claims Tribunal (2006) Qd R 397. Her Honour dealt with Byrne J's decision in W and T Enterprises by referring to it in large measure and then applied his Honour's determination that a determination of a Small Claims Tribunal is judicial in character rather than administrative. That was necessary for her Honour's decision in that particular case and so it forms part of the ratio of that case.
The decision sought to be challenged before Atkinson J was not a decision made by a Small Claims Tribunal pursuant to the Mobile Homes Act, but was a decision made by the Small Claims Tribunal exercising its residential tenancies jurisdiction. The significance of that is that it demonstrates that irrespective of the nature of the jurisdiction being exercised by the Tribunal the Tribunal’s function is judicial rather than administrative.
Although neither decision binds me I accord the decisions in both W & T and Amos significant weight. They are decisions of the Supreme Court of Queensland that deal generally with this type of proceeding as it arises under State law. I see no reason to depart from those decisions and I am satisfied therefore that the decision of the Small Claims Tribunal in this case was judicial.
It finally determined the rights of these parties insofar as the claim that was made was before it. It is also clearly a merits based determination, it is not suggested otherwise in the evidence, although there is a suggestion in the argument and the written submissions filed in support of the opposition to the application that it was not a merits based determination. But clearly it is.
The discussion in W & T Enterprises demonstrates that the decisions of the Small Claims Tribunal are important in the dispute determination regime that operates in Queensland and that notwithstanding the informality in the way in which the Tribunals operate, both by way of procedure and its evidence gathering, nonetheless its determinations are final and binding on the parties to the disputes between them.
In those circumstances, I am satisfied that insofar as the applicant now claims relief from payment that claim is barred by operation of res judicata. That claim has been determined once and the applicant is not entitled to have it determined again.
The applicant has other claims in these proceedings. He claims damages for breach of contract, breach of the Trade Practices Act and alternatively the Queensland Fair Trading Act. In the written outline of submissions delivered on behalf of the applicant those claims are expanded upon without amendment to the initiating application to include claims for damages for detinue and/or conversion. The applicant’s reliance upon the Trade Practices Act seems to have given way to a more strenuous reliance upon the Queensland Fair Trading Act and perhaps a claim for damages for breach of contract.

None of those claims were agitated before the Small Claims Tribunal in the sense that any monetary recompense was sought for them. Nonetheless, the respondent to these proceedings says that the applicant is estopped from proceeding on those claims in this Court because of the decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Put shortly, Anshun requires parties to bring forward in the one judicial proceeding all of their claims or defences against the other party to those proceedings where it is reasonable to do so, and in the absence of doing so a party will not be permitted to litigate those issues in fresh proceedings.
The problem with an application of that principle in this case really comes down to being satisfied that these proceedings could have been prosecuted in the Small Claims Tribunal.
It seems to me that it is arguable that they could not have been because of the monetary limit attendant upon proceedings in the Small Claims Tribunal. Even if the claims now under consideration had been prosecuted in the Tribunal, it is not clear that any order of the Tribunal would have been of any effect. I am not able to be satisfied that the amount claimed would not have exceeded the $7500 limit of the Small Claims Tribunal. It might be that he was not entitled to bring them at all because his claim exceeded that amount.
The respondent before me presses the argument, namely to persuade me that the Anshun principle operates to preclude the prosecution of the statutory causes of action in this court. I am not so persuaded.
Similarly, it was said by the applicant in this case that reliance on Anshun was a two-edged sword for the respondent because the respondent would also be estopped from pursuing the claim that he now pursues before me for an order for the payment of his repair charges, storage costs and the like. That assertion it seems to me is ill-founded because there is nothing in the Small Claims Tribunal Act or the regulations which permits the bringing of a claim by a trader against a consumer for payment.
The Small Claims Tribunal Act is structured in a very clear way. A claimant needs to be either a trader where the proceedings arise between traders, or a consumer where the proceedings arise between a consumer and a trader. A trader cannot be a claimant against a consumer in the Small Claims Tribunal nor is there facility for the bringing of a counterclaim.
Indeed there is not even a facility for the filing of a defence. When one has regard to the prescribed forms under the Small Claims Tribunal Act one will see that there is no prescribed form at all for a notice of defence, a notice of appearance or anything resembling such a document, nor is there a prescribed form for a counterclaim. The Act simply refers to the making of a claim, the referral of that claim to a referee whose primary obligation is to attempt settlement of the claim and thereafter determination of the claim if it cannot be settled. There was no provision for the respondent to bring a claim himself against the applicant for his work charges and so that assertion by the applicant in this case fails.
What that means is that presently live in these proceedings is a claim for return of the vessel, the proprietary maritime claim. There is also a claim for damages it seems to me for either breach of contract, breach of the Trade Practices Act or alternatively the Queensland Fair Trading Act and the matter should proceed forward in respect of those matters and in respect of the counterclaim made by the respondent against the applicant for both his work charges and the claim in respect of storage.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Jarrett FM delivered orally on 31 March, 2009.

Associate:

Date: 30 July 2010