ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - MINOR CIVIL DISPUTES JURISDICTION - TRADER DISPUTE - definition of "trader" - whether accounting a discipline not normally associated with a trade or commerce - whether Tribunal has jurisdiction over accountants in Minor Civil Dispute jurisdiction

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - where Tribunal has original jurisdiction over matters set out in s 450 of the Property Agents and Motor Dealers Act 2000 (Qld) - whether the Tribunal has jurisdiction over contraventions of PAMDA outside this section - whether director of a company not in breach of PAMDA should be named as respondent

Property Agents and Motor Dealers Act 2000 (Qld) (repealed), s 346

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10(1)(b), s 12(4)(a), s 12(4)(c)

Abacus Associates Pty Ltd v Graham Rowley t/a APL/QBC Partnership [2015] QCATA 37

Early Property Group Pty Ltd trading as Early Group Valuers v Cavillario [2010] QCATA 65

Prestia v Aknar (1996) 40 NSWLR 165

[1] This application, filed on 26 September 2014, has some considerable history both before QCAT and in the Magistrates Court, which I will now set out.

[2] In about January 2008 a partnership ('APL/QBC') consisting of Graham Rowley, Martin Harvey and Michael Jackson was commenced. On or about 13 August 2009 Abacus and Associates Pty Ltd ('Abacus Associates') was engaged by Martin Harvey to perform accounting and bookkeeping services on behalf of the partnership. The APL/QBC partnership dissolved, yet Abacus Associates continued to undertake accounting work associated with the finalisation of the partnership. This appears to have included some debt collection work.

[3] On 20 September 2013, the present applicant, Mr Graham Milton Rowley commenced proceedings in the Brisbane Magistrates Court against Abacus Associates seeking recovery of accounting fees paid by the partnership for debt collection work. The basis for that claim is that Abacus Associates is alleged to have carried out unlicensed debt collection work, in contravention of the (now repealed) Property Agents and Motor Dealers Act 2000 (Qld) ('PAMDA'). The relevant provision in PAMDA is s 346.

[4] Whilst the Magistrates Court proceedings were still on foot, on 14 February 2014, the Applicant commenced simultaneous minor civil dispute proceedings (MCD 0333/14) against Abacus Associates in respect of the same matters already claimed in the Magistrates Court. The claim was for $16,526.96 for debt collection fees, unlawfully charged.

[5] On 14 March 2014 Abacus Associates commenced an application to strike out the proceedings, contending that (a) QCAT did not have any jurisdiction under PAMDA to hear the matter, and (b) the proceedings were an abuse of process because consistent proceedings were already underway in the Magistrates Court. On 4 April 2014 the Tribunal granted the application to strike out MCD 0333/14.

[6] On 9 May 2014 Magistrate Gordon ordered that the name of the plaintiff in then still current Magistrates Court proceedings should be changed to 'Graham Rowley, Martin Harvey and Michael Jackson, trading as APL/QBC Partnership', in order to correctly reflect the proper name of the partnership. On 22 May 2014 the Applicant filed an amended statement of claim in respect of the Magistrates Court proceedings, yet this statement of claim was subsequently struck out, by order of Magistrate Cull, on 27 June 2014. At that time Magistrate Cull also indicated that Mr Rowley was at liberty to discontinue his Magistrates Court proceedings and to recommence at QCAT, if he felt so inclined.

[7] On 5 August 2014 the Applicant filed an application to re-open MCD 0333/14. This was refused, on 4 September 2014. Shortly afterwards, on 26 September 2014, Mr Rowley commenced these proceedings, again claiming $16,526.96 for debt collection fees unlawfully charged. The claim is in consistent terms to those used in MCD 0333/14, other than Mr Rowley now contends it to be a "trader versus trader" minor civil dispute, this time commenced under s 12(4)(c) of the QCAT Act.

[8] On 2 October 2014 Abacus Associates again applied to strike out the current proceedings. On 24 October 2014 for reasons that are unclear (yet which are presumed to have their basis in the fact of an impending mediation that had already been ordered for 30 October 2014), the Tribunal refused to strike out the claim (or at least postponed the strike out), observing inter alia:

[Abacus'] submissions, essentially, are that these proceedings ... involve the same parties and depend on the same facts and circumstances as in [MCD 0333/14] ... If the original dismissals in [MCD 0333/14] were [for] ... lack of ... jurisdiction, then it seems to me, at this stage, that the Tribunal is able to entertain [the Second action as] ... not [being] res judicata. ...I think that it would be premature to dismiss [the Second action] at this stage.[1]

[9] The decision by the Tribunal refusing/postponing the strike out of this claim was taken on appeal. The appeal was heard by the Appeal Tribunal on 11 and 12 March. On 17 March 2015, the Tribunal refused leave to appeal.[2] That result appears to have turned on a fairly narrow point: whether the dismissal of MCD 0333/14 on 4 April 2014 was a 'hearing on the merits' giving rise to a res judicata estoppel; or whether it was a dismissal of that claim based on want of jurisdiction. The Tribunal ultimately concluded that MCD 0333/14 had been dismissed due to lack of any jurisdiction for QCAT to hear the matter.[3] And, because there had been no determination as to liability, there could not be said to be an estoppel by record. On that basis the appeal against the refusal to strike out MCD 2200/14 was dismissed. In the appeal decision the Tribunal was clear to express no view regarding the actual merits of the re-formulated claim.[4]

[10] The matter has now proceeded to a hearing before me. The claim, together with its (by now) small mountain of accompanying paper was added to the end of a busy minor civil disputes hearing list with no prior notice to me, as the presiding member. That is regrettable as in hindsight the matter should have been listed for a discrete hearing, with pre-trial directions. That listing error has made the determination of this claim more complicated and time consuming that it ought to have been.

[11] As was the case in MCD 0333/14, Mr Rowley continues to claim $16,526.96 as fees unlawfully charged by Abacus Associates for debt collection services. I concur with the observations by the Tribunal that it is trite law that QCAT has no jurisdiction to entertain allegations of criminal misconduct and that the Applicant's continuing demands for findings in relation to offences are misconceived.[5]

[12] The Respondents raise several preliminary issues with the fresh claim. Firstly, the Respondents contend that the application commenced by 'Graham Rowley trading as APL/QBC' has been commenced by the wrong Applicant, contrary to Rule 12(3) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), by reason that the partnership name when the subject matter of the proceeding arose was 'Graham Rowley, Martin Harvey and Michael Jackson trading as APL/QBC Partnership'. That problem is then compounded by the absence of any signed authority from either of Martin Harvey or Michael Jackson for the commencement of these proceedings. In my view, there is considerable force to that submission. No evidence has been shown to me by Mr Rowley to demonstrate that he had obtained the necessary prior authority from his other partners to commence this claim.

[13] Next, the Respondents contend that the proceedings have incorrectly named Mr Ian Prescott as a co-respondent, given that at all material times Ian Prescott was acting only as a director/employee of Abacus Associates. As there has not been a finding that Abacus Associates committed an offence under PAMDA, s 591 of PAMDA is not available as a basis for including Mr Ian Prescott as a co-respondent. That submission appears to me to be correct as well.

[14] Although the Applicant contends that it has a cause of action for unlicensed debt collection in breach of PAMDA, that claim is only theoretical, as no charge has been brought (much less proved) against Abacus Associates by the relevant authorities. Moreover, s 450 of PAMDA, as the relevant provision of a QCAT 'enabling Act' (which has continuing operation despite the repeal of PAMDA because of s 261 of the Property Occupations Act 2014), only confers the following specific jurisdiction on QCAT, (and none of which creates the necessary original jurisdiction for purposes of s 10(1)(b) of the QCAT Act):

1. to hear and decide disciplinary matters involving licensees and registered employees;

2. to hear and decide claims, other than minor claims, against the fund;

3. to hear and decide applications under this Act relating to marketeers;

4. to review decisions of the chief executive in relation to minor claims;

5. to review decisions of the chief executive in relation to licensing and registration.

[15] That this matter cannot be heard and determined by QCAT as part of its enabling Act jurisdiction[6] has already been remarked upon by the Tribunal in its 4 September 2014 decision refusing Mr Rowland's application to re-open MCD 0333-14 (at [11]). Since that time the Applicant has however manoeuvred his claim, and now proclaims it to be a minor civil dispute able to be heard because of s 12(4)(c) of the QCAT Act.

[16] The Tribunal may exercise its jurisdiction to hear and determine a minor civil dispute if a 'relevant person' has, under the QCAT Act, applied to the tribunal to deal with the dispute.[7] So far as is presently germane a "relevant person" for purposes of s 12(1) is defined in s 12(4) to mean:

(a) for a claim to recover a debt or liquidated demand of money - a person to whom the debt is owed or money is payable; or

(c) For a claim arising out of a contract between two or more traders - any of the traders.

[17] For the claim to proceed as a debt or liquidated demand for money under s 12(1)(a), it would be necessary, as a preliminary exercise, for conduct by the Respondent in breach of s 346 of PAMDA to be (i) proved as an offence; and (ii), for the amount obtained in fees from the Applicant in breach of that provision to be precisely proved, in distinction from any other sums legitimately paid to Abacus Associates for conventional accounting services. Neither of those things have happened.

[18] As indicated, Mr Rowlands now contends that the claim may nonetheless proceed as a minor civil dispute on an alternative basis, under s 12(4)(c), as a dispute between two traders. Although it may be accepted that the Applicant qualifies as a trader, the minor civil disputes jurisdiction will only engage if Abacus Associates also qualifies as a trader.

[19] The Dictionary in Schedule 3 of the QCAT Act defines 'trader' in these terms (emphasis inserted):

(i) carries on a business of supplying goods or providing services; or

(ii) regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and

(b) includes a person who is or was the landlord of premises let to a tenant as a dwelling other than for -

(i) assigning or subletting the dwelling to someone else; or

**2 However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services - **

(a) the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; or

(b) the person is giving effect to the instructions of someone else who in providing the instructions acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce, and the goods supplied or the services provided are in all respects in accordance with the instructions.

[20] This definition was considered by the QCAT Appeal Division in Early Property Group Pty Ltd trading as Early Group Valuers v Cavillario [2010] QCATA 65 where her Honour Judge Kingham determined that the definition of trader "must operate to exclude professionals whose disciplines are not ordinarily regarded as within the fields of trade or commerce" (at [17]). That decision, made in relation to property valuers, recognised valuers to be professionals undertaking a discipline not normally associated with trade or commerce by reference to the decision of Santow J in Prestia v Aknar (1996) 40 NSWLR 165, wherein his Honour had stated (at p.186), that a profession is a discipline and is not within the field of trade or commerce. In part, his Honour observed that a discipline differentiates from trade or commerce as an endeavour that:

...embrace[s] intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence and qualification.

[21] In my view, the Respondent is engaged in a professional discipline, being that of accounting which is an intellectual activity undertaken for reward involving training, accreditation, and adherence to professional standards. These factors mean that the Respondent does not qualify as a trader for the purposes of the QCAT Act. Section 12(4)(c) of the QCAT Act is thus not engaged, and QCAT has no jurisdiction to deal with this claim as a minor civil dispute.

[22] The Application is dismissed.

[1] Abacus Associates Pty Ltd v Graham Rowley t/a APL/QBC Partnership [2015] QCATA 37 at [7].

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 10(1)(b).

[7] Ibid s 12(1).