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[2023] QSC 40
General information, not legal advice.
Supreme Court of Queensland
2023-03-08
Kelly J
Original judgment source is linked above.
[12] Finally, on 23 December 2022 at 6.57 pm, the tenant's solicitors forwarded QCAT's email attaching QCAT's interim decision to the landlord's present solicitors.
[13] On 30 December 2022, the landlord's solicitors sent a letter by email to the tenant's solicitors in the following terms:
Paragraph 1 of [QCAT's interim decision] orders that our client be restrained from terminating the [l]ease or re-entering the [property] until the determination of your client's application for interim orders filed 23 December 2022 provided that your client provides the usual undertaking as to damages.
To date, your client has failed to provide the undertaking as to damages. This is particularly important given, as your client already knows, your client's action risks interfering with out client's ability to perform a new lease with a new tenant for the [property].
Absent the provision of such undertaking, the restraint imposed on our client by [QCAT's interim decision] does not take effect. Accordingly, should we fail to receive such undertaking by 9am on Tuesday, 3 January 2023, our client will proceed to re-enter the [property] in the usual course. In such case, the [property] will be secured by our client, and supervised access will be allowed to enable your client or third parties to remove chattels owned by them. Our client's rights are reserved generally."
[14] On 3 January 2023, a mercantile agent engaged by the landlord attended the property to re-take possession and, for that purpose, placed a lock on the front gate.
[15] On 4 January 2023, the tenant's solicitors sent a letter by email to the landlord's solicitors in the following terms:
"1. We refer to the above matter and your letter received at approximately 4:55pm on Friday 30 December 2022.
[16] Having received the 4 January 2023 letter, the landlord's general manager "... instructed the mercantile agent to remove the lock to enable [the tenant] to retain possession of the [p]roperty".[1]
[17] On 10 January 2023, the tenant's solicitors emailed to QCAT an undertaking as to damages. The landlord's solicitors were copied into that email.
[18] On 13 January 2023, the landlord filed in QCAT:
(a) a Form 56 styled "Application for leave to be represented";
(b) written submissions ("the landlord's QCAT submissions") and
(c) an affidavit of Mr Gerard Dowling, the landlord's general manager ("the landlord's QCAT affidavit").
[19] The substantive submission made by the landlord's QCAT submissions was to the effect that, as the property was not "a retail shop" and the lease was not a "retail shop lease" there was no "retail tenancy dispute" within the meaning of those terms as contained in the Retail Shop Leases Act. For reasons further developed in the landlord's QCAT submissions, the landlord submitted that QCAT did not have jurisdiction to grant the interim order or the order sought by the substantive application. Those submissions noted that the issue of jurisdiction involved "complex questions of law". [2] Apart from advancing substantive arguments, the landlord's QCAT submissions sought leave for the landlord to be legally represented by solicitors and counsel and requested an oral hearing of the interim application.
[20] On 18 January 2023, the tenant filed in QCAT written submissions in reply to the landlord's QCAT submissions.
[21] On 20 January 2023, QCAT made a direction that the landlord and the tenant each have leave to be legally represented in the QCAT proceedings.
[22] On 30 January 2023, the tenant filed in QCAT a further affidavit of Ms Wright ("the tenant's further QCAT affidavit").
[23] QCAT is yet to conduct an oral hearing in relation to the interim application.
[24] The submissions and affidavits filed in QCAT raise disputed questions of fact. Without seeking to be exhaustive, the disputed questions of fact include:
(a) whether the property was wholly or predominantly used for carrying on a retail business at the time of entering into the lease;[3]
(b) whether a sales office was situated on the property at material times until 30 November 2022;[4]
(c) the use made of any sales office;[5]
(d) whether the activity conducted by the tenant at the property involved the sale and the storage of second-hand structures or just the storage of second hand structures;[6]
(e) whether the landlord subjectively understood that the property was only being used for storage;[7] and
(f) the nature and extent of the relevant floor area of the lease.[8]
[25] The landlord's QCAT submissions raised further questions as to the lawfulness of any use in fact made of the property.
[26] On 9 February 2023, the originating application was filed.
[27] The originating application was filed together with a supporting affidavit of Mr Dowling ("the landlord's Supreme Court affidavit") which exhibited the substantive, interim and leave applications, the tenant's QCAT affidavit, the landlord's QCAT affidavit, the tenant's further QCAT affidavit, the tenant's QCAT submissions and the respondent's QCAT submissions. The landlord's Supreme Court affidavit revealed that there were proceedings commenced in QCAT involving the parties in which a substantial issue in dispute concerned whether the lease was a retail shop lease. Further, the landlord's Supreme Court affidavit revealed that this substantial issue in dispute was affected by numerous disputed questions of fact and law including those described in paragraphs 24 and 25 of these Reasons.
[28] The landlord's Supreme Court affidavit did not provide any explanation as to why the landlord had commenced the Supreme Court proceeding, notwithstanding its active participation in the QCAT proceedings.
[29] The originating application was made returnable in the applications list on 16 February 2023 and listed for 2 hours. On the return date, consent orders were made in the following terms:
"1. By 16 February 2023, the [landlord] file and serve its outline of submissions.
[30] The cross-application contemplated by the consent orders was the interlocutory application, which was filed by the tenant on 21 February 2023. In the alternative to a stay, the interlocutory application sought orders referring the Supreme Court proceeding to alternative dispute resolution.
Relevant provisions of the QCAT Act and the Retail Shop Leases Act
[31] It is convenient to outline QCAT's relevant jurisdiction. QCAT has jurisdiction to deal with "matters it is empowered to deal with under ... an enabling Act".[9] That jurisdiction is comprised of original, review and appeal jurisdiction.[10] An enabling Act confers jurisdiction on QCAT to "deal with a matter" if the enabling Act "provides for an application ... to be made to [QCAT] in relation to the matter".[11] QCAT is specifically empowered to do all things necessary or convenient for exercising its jurisdiction.[12] QCAT's original jurisdiction includes the jurisdiction conferred on QCAT under an enabling Act "to decide a matter in the first instance".[13] QCAT may exercise its original jurisdiction conferred by an enabling Act if a person has, under the QCAT Act, applied to QCAT to exercise its original jurisdiction.[14] In exercising its original jurisdiction conferred by an enabling Act, QCAT may perform the functions conferred on QCAT by the QCAT Act or the enabling Act.[15]
[32] There are some further matters about QCAT which may be noted as follows:
(a) An object of the QCAT Act is to have QCAT deal with matters in a way that is accessible, fair, just, economical, informal and quick.[16] To achieve that object, QCAT must ensure that its proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice.[17]
(b) A proceeding in QCAT starts when the principal registrar of QCAT accepts an application.[18]
(c) QCAT is not bound by rules of evidence and must act with little formality and technicality.[19]
(d) Section 33 of the QCAT Act applies if the QCAT Act, or an enabling Act, provide that a person may apply to QCAT to deal with a matter. Section 33(2) provides that the application must be in a form substantially complying with the rules made under the QCAT Act ("the QCAT Rules"), state the reasons for the application and be filed in the Registry.
(e) However, the procedure for a QCAT proceeding is at the discretion of QCAT, subject to the QCAT Act, the enabling Act and the QCAT Rules.[20]
(f) QCAT has power to waive compliance with a procedural requirement under the QCAT Act, the enabling Act or the QCAT Rules.[21]
(g) QCAT has the power to make interim orders it considers appropriate in the interests of justice to protect a party's position for the duration of the proceeding or to require something to be done to secure the effectiveness of the exercise of QCAT's jurisdiction for the proceeding.[22] QCAT may make an interim order on the application of a party or on its own initiative.[23]
(h) QCAT also has the power to grant an injunction, including an interim injunction in a proceeding if it is just and convenient to do so.[24] QCAT may make an order granting an interim injunction whether or not it has given any person whose interests may be affected by the order an opportunity to be heard.[25]
[33] The presently relevant enabling Act is the Retail Shop Leases Act. The object of the Retail Shop Leases Act is to promote efficiency and equity in the conduct of certain retail businesses in Queensland.[26] That object is to be achieved through, inter alia, a low-cost dispute resolution process for retail tenancy disputes.[27] The Retail Shop Leases Act contains provisions directed to the resolution of "retail tenancy disputes". The expression "retail tenancy dispute" means "any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease".[28] Broadly stated, a "retail shop lease" is a lease of a retail shop.[29] Relevantly, "a retail shop" means premises used wholly or predominantly for the carrying on of a retail business.[30]
[34] Part 8 of the Retail Shop Leases Act is headed "Retail tenancy dispute resolution". As a preliminary matter, s 54 notes that if a provision of a retail shop lease requires or permits a dispute under or about the lease to be referred to arbitration or heard by any court or tribunal, that provision does not limit a party's rights under Part 8.
[36] In terms of a mediator's jurisdiction, s 97 relevantly provides that a mediator has jurisdiction to mediate retail tenancy disputes other than a retail tenancy dispute about "an issue between the parties" that "is before ... a court".[34] Section 55 then provides that a party to a retail tenancy dispute that is within a mediator's jurisdiction may lodge notice of the dispute with the principal registrar of QCAT.[35] The notice of a retail tenancy dispute is referred to as "a dispute notice".[36] Pursuant to s 56, once a dispute notice is lodged, the principal registrar must nominate a mediator. Sections 56 to 62 of the Retail Shop Leases Act then deal with the process of mediation. In the event the mediation is unsuccessful, the mediator, in certain circumstances, and if the matter is within QCAT's jurisdiction, must refer the dispute, as provided under the QCAT Act, to QCAT.[37]
[37] Section 64 of the Retail Shop Leases Act provides for an application to QCAT by a party to a retail tenancy dispute for an order to resolve the dispute. Section 64(1) relevantly provides that such an application may be made if the lease has not ended more than one year before the dispute notice was lodged and any of the following apply:
(a) the party claims that another party to a mediation agreement has not complied with the agreement within the time stated in it or, if no time is stated, within 2 months after the agreement is signed;
(b) a mediator refuses to refer the dispute to QCAT because the mediator is of the opinion that the dispute is not within QCAT's jurisdiction;
(c) a court has ordered that a proceeding started in the court for the dispute be removed to QCAT or another tribunal.
[38] QCAT's original jurisdiction is then dealt with by s 103 of the Retail Shop Leases Act which relevantly provides that QCAT has jurisdiction to hear retail tenancy disputes, other than a retail tenancy dispute about "an issue between the parties" that "is before ... a court."
[39] Finally, it is convenient to note two other provisions of the Retail Shop Leases Act which concern the situation where a person has lodged a dispute notice. Section 91 of the Retail Shop Leases Act provides that a person may withdraw a dispute notice lodged by the person unless a mediator has referred the dispute to QCAT under s 63(2) or the person has made an application about the dispute to QCAT under s 64.[38]
[40] Section 94 of the Retail Shop Leases Act is headed "Exclusion of other Jurisdictions" and provides:
"(1) On and after the lodgement of a dispute notice for a retail tenancy dispute, the dispute must not be referred to arbitration or heard by any court.
(a) the notice of the dispute is withdrawn under section 91 or the referral of, or application for, the dispute is withdrawn under the QCAT Act; or
(b) a proceeding about the issue in dispute was started in a court before the dispute notice was lodged and the proceeding has not been removed, or transferred, to QCAT; or
(c) an application for an order in the nature of an injunction about the issue in dispute is made to a court; or
(d) a mediator or QCAT refuses to mediate or hear the dispute because the mediator or QCAT is of the opinion the dispute is not within the jurisdiction of a mediator or QCAT; or
(e) the mediator has given a notice about the outcome of the mediation under section 61A(a)(ii) because the dispute was not resolved, and QCAT does not have jurisdiction to hear the dispute.
(3) For subsection (2)(b), a proceeding is taken to have been started before a court if the lessor has -
(a) served on the lessee a notice under section 124 of the Property Law Act 1974; or
(b) given to the lessee a notice under section 131 of the Property Law Act 1974.
(4) If an application for an order mentioned in subsection (2)(c) is made to a court, the QCAT proceeding for the dispute ends only if the court -
(b) makes an order that is inconsistent with allowing the QCAT proceeding to continue."
[41] The tenant's submissions may be outlined as follows. Proceedings have been commenced in QCAT which involve a dispute as to the existence of a jurisdictional fact, namely whether the lease is a retail shop lease within the meaning of that term as contained in the Retail Shop Leases Act. QCAT, empowered to do all things necessary or convenient for exercising its jurisdiction, should be allowed to decide the dispute as to the existence of that jurisdictional fact. The tenant conceded that, if it were unable to establish that the lease was a retail shop lease, there was no other basis upon which it could assert a right to occupy the property.[39] It was unfair and unjust for the tenant to be burdened with the Supreme Court proceeding in circumstances where the Supreme Court proceeding would involve substantive factual issues that QCAT was empowered to decide. The landlord had participated fully in the QCAT proceedings and was seeking relief in the Supreme Court that was inconsistent with QCAT's interim decision, despite not having sought leave to appeal QCAT's interim decision[40] or sought the transfer of the proceeding from QCAT.[41] No explanation had been offered for the commencement of the Supreme Court proceeding. The QCAT proceedings should be resolved first, particularly having regard to the objects of the QCAT Act. There was a risk of inconvenience and embarrassment if the same issue was to be litigated in this Court and in QCAT according to different regimes which might permit of different outcomes.
[42] Although it was not a point made with clarity, the landlord advanced what might be described as a preliminary point in relation to s 103(1)(a)(iii) of the Retail Shop Leases Act. The argument advanced was to the effect that, even if the matter before QCAT was properly described as a "retail tenancy dispute" and QCAT had initially been conferred with jurisdiction to hear and determine that dispute, QCAT's jurisdiction ceased at the point in time when the landlord started the Supreme Court proceeding because, by reason of s 103(1)(a)(iii), at that time, the retail tenancy dispute became a dispute about an issue that "is before ... a court". [42]
[43] Beyond that preliminary point, the landlord conceded that QCAT had jurisdiction to decide, as a matter of jurisdictional fact, whether the lease was a retail shop lease. However, in making that concession, the landlord sought to draw a distinction between QCAT's jurisdiction to grant interim relief and its jurisdiction to grant final relief.[43] The landlord submitted that whilst QCAT was "seized with dealing" with the interim application,[44] the substantive application had not been filed in accordance with procedural requirements, meaning that "QCAT has not yet been seized with jurisdiction to deal with the final relief that [the tenant] seeks".[45] The substantive application had not been commenced through s 55 of the Retail Shop Leases Act, which was described as a "gateway" provision.[46] Accordingly, the substantive application had not been "referred to QCAT in accordance with the provisions of the legislation".[47]
[44] The landlord's further submissions may be outlined as follows. The discretion to grant a stay did not arise where this Court had jurisdiction to grant relief in respect of an application by a lessor for ejectment and the proceeding did not involve a retail tenancy dispute. Having regard to the facts, QCAT did not have jurisdiction to decide any matter between the landlord and tenant because the Retail Shop Leases Act had no application to the lease. The landlord's burden in the Supreme Court proceeding was merely to prove that it owned the property, it then being for the tenant to set up a right or title to possession consistent with the ownership vested in the landlord. In the Supreme Court proceeding, the tenant had not filed evidence which raised any factual or legal dispute in substantive defence of the claim for ejectment. In the event a discretion to order a stay arose, the discretion should not be exercised in favour of a stay because the relief sought by the landlord in the Supreme Court proceeding was not available in QCAT, this Court was in a position to decide the landlord's entitlement to possession on a final basis without deciding a factual dispute, QCAT was yet to list the oral hearing of the interim application and the substantive application had not been properly commenced in QCAT. Finally, the landlord submitted that if the Supreme Court proceeding was not promptly heard and determined, QCAT's interim decision would finally determine the rights of the parties as the substantive application only sought an extension of the lease until 18 June 2023.
The preliminary point: s 103(1)(a)(iii) of the Retail Shop Leases Act
[45] I will first deal with the landlord's argument addressed to s 103(1)(a)(iii) of the Retail Shop Leases Act. The landlord submitted that, by reason of the commencement of the Supreme Court proceeding, QCAT had been deprived of jurisdiction. That was submitted to be "the effect of s 103".[48] Implicitly, the landlord submitted that the Supreme Court proceeding involved "an issue" and there existed a retail tenancy dispute about that issue between the parties. The landlord's argument appeared to be that, once the Supreme Court proceeding started, the issue was to be regarded as before a court within the meaning of s 103(1)(a)(iii). According to that construction, a respondent to a QCAT proceeding involving a retail tenancy dispute could start a court proceeding about an issue involved in the dispute and thereby deprive QCAT of jurisdiction.
[46] I reject this construction. It would countenance a respondent being able to stymie QCAT's dispute resolution process by a unilateral act, namely starting a court proceeding. That outcome is inconsistent with the object of the Retail Shop Leases Act and how that object is meant to be achieved. It would also significantly undermine QCAT's intended function of ensuring that proceedings are conducted in an informal, quick way which minimises costs. That function is related to one of QCAT's objects, which is to have QCAT deal with matters in an accessible, fair, just, economical, informal and quick way.
[47] Prior to the commencement of the QCAT Act, the Retail Shop Leases Act had contemplated retail tenancy disputes being heard by the then Retail Shop Leases Tribunal ("the tribunal"). The former s 109(1)(a)(iii) was in materially identical terms to the current s 103(1)(a)(iii), the former provision having provided that the tribunal had jurisdiction to hear retail tenancy disputes other than a retail tenancy dispute "about an issue between the parties" that "is before ... a court". The explanatory notes to the Retail Shop Leases Bill 1994 explained cl 109 as providing that the tribunal could not hear a dispute that "is currently the subject of... a court hearing". There is some ambiguity in the word "is", in the sense that it is not entirely clear what point in time is being referenced. I prefer the view that the point in time being referenced by the word "is", as it appears in s 103, is the point in time when a party files an application to QCAT for an order to resolve a retail tenancy dispute. The correct interpretation of s 103, is that an issue "is before... a court", if the issue is the subject of a court hearing when a party applies to QCAT for an order to resolve a retail tenancy dispute. If, at that time, the issue is not the subject of a court hearing, it is not to be regarded as before a court for the purpose of determining QCAT's jurisdiction under s 103. On the present facts, there was no issue before a court at the relevant time when the tenant applied to QCAT for an order to resolve a retail tenancy dispute.
[48] The parties referred me to HR & CE Griffiths Pty Ltd v Rock Bottom Fashion Market Pty Ltd ("Griffiths")[49] and To v Choi.[50] Each of these cases contained observations in the nature of obiter dicta directed to the possible meaning of the expression "is before ... a court". Griffiths is also relevant because it considered whether a claim for ejectment by a lessor under a retail shop lease had been excluded from the jurisdiction of this Court by reason of the provisions of the Retail Shop Leases Act.
[49] In Griffiths,[51] Thomas J dealt with an application for summary judgment against a lessee for possession and mesne profits and against guarantors for monies due and owing. It was common ground that the lease was a retail shop lease. There was a factual dispute as to whether the lessee had validly exercised an option to renew. That dispute had been the subject of a notice of dispute to the tribunal. The relevant chronology was as follows. On 30 October 1996, the lessee gave the notice of dispute to the landlord and the tribunal. On 1 November 1996, the landlord issued a Supreme Court writ. On 6 November 1996, the Chief Executive of the tribunal nominated a mediator and a date for mediation. The landlord subsequently did not attend the mediation. On 11 December 1996, at a directions hearing, the tribunal set a hearing date of 17 February 1997.
[50] When the application for summary judgment came before Thomas J on 12 December 1996, the defendants raised the preliminary point that, because the lease was a retail shop lease and the essential issues in the summary judgment application constituted a retail tenancy dispute which had been referred to the tribunal, the Supreme Court had no jurisdiction to entertain the application for summary judgment. Relying upon s 94 of the Retail Shop Leases Act, the defendants submitted that the jurisdiction of the tribunal was exclusive. Thomas J described "the real question" as being "whether the Tribunal now has exclusive jurisdiction in matters such as ejectment and the determination of the exercise of option rights".[52] Thomas J observed that relief against the loss of a lessee's option under s 128 of the Property Law Act 1974 (Qld) ("the Property Law Act") was a defence only available in the Supreme Court. His Honour found that this consideration made it "difficult to think that the traditional jurisdiction of the Supreme Court has been taken away in favour of a tribunal that lacks the power to grant the same remedies".[53] His Honour also noted that the Supreme Court and the District Court had powers of relief against forfeiture as well as associated powers under ss 124, 126 and 127 of the , which powers the tribunal did not have.
[51] Thomas J ultimately expressed conclusions in these terms:[54]
"I would prefer to have had more extensive argument on the important jurisdictional questions raised in this case. I express my views, somewhat tentatively as follows:
I therefore rule that the proceedings are competent. The parties may now make further submissions on the question of summary judgment".
[52] Prior to expressing those conclusions, Thomas J had made the following observations about the then s 109(1)(a)(iii) of the Retail Shop Leases Act:
"I note in passing that s.109(1)(a)(iii) ... on its face gives primacy to proceedings that are before a court irrespective of when they were commenced. This raises an inconsistency with s.94. It is possible to regard s.109(1)(a)(iii) as extending the exclusion stated in s.94(2). It is equally possible to regard s.94 as dominant as requiring s.109(1)(a)(iii) to be read down. If the choice is open, I would prefer the construction which does not cut down the established powers of the courts."
[53] These latter observations of Thomas J do not sit comfortably alongside observations made by Fryberg J in To v Choi.[55] There, Choi, the tenant, lodged a notice of dispute under s 55 of the Retail Shop Leases Act. A mediation conference had been held and the dispute was not resolved. Pursuant to s 63 of the Retail Shop Leases Act, the mediator had referred the dispute to QCAT. At a directions hearing in QCAT, Wah, the landlord, foreshadowed an application being made to QCAT for the matter to be transferred to the Supreme Court pursuant to s 52 of the QCAT Act. QCAT made directions for the hearing of that foreshadowed application. Wah then started a proceeding in the Supreme Court seeking rectification of the lease. In the alternative, Wah sought a declaration that Choi's interest in the leased premises wrongly included land in which Wah had an interest. In the further alternative, Wah sought a declaration that there was no lease and an order cancelling the lease. Having started that proceeding in the Supreme Court, Wah then sought an order in QCAT transferring the proceedings in QCAT to the Supreme Court or alternatively an order dismissing, staying or adjourning the proceedings in QCAT. QCAT made an order staying or adjourning the proceedings in QCAT until the determination of the proceedings in the Supreme Court. Cho then applied in the Supreme Court before Fryberg J for an order that the proceeding in the Supreme Court be dismissed for want of jurisdiction.
[54] Fryberg J found that the dispute before QCAT was accurately described as a dispute about a retail shop lease and as about the use or occupation of a leased shop under such a lease. His Honour found that the dispute was a retail tenancy dispute within the meaning of the Retail Shop Leases Act. His Honour ultimately concluded that s 94(1) of the Retail Shop Leases Act operated to prevent the Supreme Court from hearing the dispute the subject of the proceeding commenced in the Supreme Court. In the course of reaching that conclusion, Fryberg J considered s 97(1)(a)(iii) of the Retail Shop Leases Act which concerned the jurisdiction of a mediator and contained the expression "an issue between the parties that is before ... a court". Fryberg J relevantly said:[56]
"As will appear, I accept that the real dispute the subject of the Supreme Court proceedings is also how much of the area of the ground floor of the building was agreed to be leased. That is not quite the same thing as saying that this question is an issue in the Supreme Court proceedings. "Issue" has a technical meaning. It refers to a point which the parties have chosen to litigate, as demonstrated by the pleadings. It is difficult to see how something can be an issue between parties before each has filed a pleading. However, let it be assumed for present purposes that the question which constitutes the real dispute between the parties also constitutes an issue within the meaning of s 97(1).
The question then is whether that issue was before the Supreme Court. The question must be answered by reference either to the date of lodgement of the dispute notice or at the latest the date of the mediation hearing. The terms of s 55 suggest the former date, but it is unnecessary to determine the matter. On no view was the issue before the Supreme Court on either date."
[55] The observations of Fryberg J are more consistent with the construction of s 103 which I have preferred, as his Honour appears to have favoured a construction of "is" which directs attention to a state of affairs existing at the time of filing a relevant document in QCAT. That approach to construction fosters certainty and ensures that QCAT, once conferred with jurisdiction, is able to exercise that jurisdiction efficiently and effectively and without its jurisdiction being thwarted by the subsequent unilateral act of a respondent.
[56] I should also note that s 94 of the Retail Shop Leases Act is not directed to QCAT's original jurisdiction but to a different consideration, namely, the exclusivity of QCAT's established jurisdiction on and from the lodgement of a dispute notice for a retail tenancy dispute. The lodging of a dispute notice is a circumstance contemplated by s 55. On the present facts, there has been no dispute notice lodged pursuant to s 55 and s 94 has no operation. I find that this Court has jurisdiction to hear and decide the Supreme Court proceeding.
The significance of non-compliance with Part 8 Div 2 and 3 of the Retail Shop Leases Act
[57] I now turn to the issue raised by the landlord's submissions as to the nature of the proceedings before QCAT. The substantive point raised by the landlord appeared to be directed to the jurisdiction of QCAT. At various times, the Landlord made submissions in terms of what dispute or proceeding QCAT was "seized" of or with. The landlord conceded that the interim application was a proceeding that had been properly commenced before QCAT.[57] However, the landlord submitted that in terms of the substantive application, ss 55, 63 and 64 were intended to provide the gateway to QCAT's jurisdiction and, because those provisions had not been complied with, QCAT lacked jurisdiction in respect of the substantive application. Hence, the fundamental point sought to be made was that, whilst the interim application was properly brought, the substantive application had not complied with statutory requirements and QCAT had no power to hear that application by reason of that non-compliance.
[58] The parties referred me to the decision of Wilson J, sitting as President of QCAT, in McDonalds Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293. In that case a tenant ("McDonalds") and landlord ("Emaaas") were in dispute about water leaking through the ceiling of a retail shop. It was common ground that the dispute involved a retail tenancy dispute. McDonalds submitted that QCAT could make orders in the nature of an injunction, notwithstanding that the parties were yet to proceed through a mediation process. Emaaas argued that QCAT lacked jurisdiction to make any such orders. Emaaas relied upon ss 55, 56, 63 and 64 of the Retail Shop Leases Act, to submit that a party was precluded from seeking relief from QCAT under s 103 of the Retail Shop Leases Act unless and until the mediation process provided for in the Retail Shop Leases Act had been undertaken.
[59] The President rejected that submission. In a passage which warrants setting out in some detail, the President reasoned as follows:[58]
It is to be observed that the contrary construction would mean that a party involved in a retail tenancy dispute who seeks to apply to the Tribunal and to use, for that purpose, powers under the QCAT Act like the injunctive power arising under s 59 would be precluded from doing so and must, of necessity, bring separate proceedings for injunctive relief in the Supreme or District Court.
In circumstances where QCAT is plainly invested with a broad jurisdiction to hear and determine retail tenancy disputes, that construction would be inimical to the objectives of the QCAT Act to have the Tribunal deal with matters in ways that are accessible, economical, informal, quick and just. It would also expose the Tribunal, the Courts and the legislature to the criticism that they have allowed the dispute resolution system for retail shop matters to fall victim to the kinds of sterile jurisdictional questions referred to by Atkinson J in Independent Finance Group Pty Ltd v Mytan Pty Ltd [2003] 1 Qd R 374 at 392.
It was argued for the respondent that s 33(1) of the QCAT Act means that, read with the [Retail Shop Leases] Act, McDonald's could not bring an application for an injunction at the time it did and, thereby, successfully invoke QCAT's jurisdiction. The argument is on the lines that a party cannot apply to QCAT in respect of a retail tenancy dispute save via s 64 ... - that is, only after the mediation process has been attempted and, in effect, failed: s 64(1). Then and only then, it is said, can an application be brought in QCAT because s 33(1) of the QCAT Act provides that an application may be brought '... if this Act or an enabling Act provides that a person may apply to [QCAT] to deal with the matter'. Because McDonald's has not complied with the mediation process set up under the [Retail Shop Leases Act], it is said that it has not attracted jurisdiction under this section.
The argument invests s 33 with an effect, and a power, it does not have. It does not impose an obligation, restriction or limitation on when a party can apply to [QCAT]. Rather, on its face, it is a procedural provision designed to set out formal requirements for applications filed in the registry....
QCAT's jurisdiction to deal with this matter has its foundation, rather, in s 9(1) of the QCAT Act which gives [QCAT] jurisdiction to deal with matters that it is empowered to deal with under the QCAT Act itself, or an enabling Act. ... Under s 9(3) an enabling Act confers jurisdiction if that Act provides for an application, referral or appeal to be made to QCAT '... in relation to the matter'.
QCAT can exercise the original jurisdiction conferred by an enabling Act if an application is brought to it: s 15. In exercising that jurisdiction QCAT may perform the functions conferred upon it by the QCAT Act or the enabling Act: s 16.
Under s 9(4) [QCAT] also has jurisdiction to '...do all things necessary or convenient for exercising its jurisdiction'. The Tribunal's powers relevantly include, under s 60, the traditional equitable powers of courts to make declarations and, under ss 58 and 59, to make interim orders or grant injunctions.
Certainly, the [Retail Shop Leases Act] is an enabling Act but, for the reasons already explored, QCAT has jurisdiction under s 103 of that Act to hear retail tenancy disputes. If (as has been concluded) the dispute here falls within the ambit of s 103, s 33 of the QCAT Act simply provides the mechanism for the applicant (clothed with jurisdiction) to apply to QCAT."
[60] I reject the landlord's submissions on this issue. Section 103 of the Retail Shop Leases Act confers a broad jurisdiction upon QCAT and, subject to some exceptions which are not presently relevant, empowers QCAT to deal with the matter of a retail tenancy dispute. Section 64 of the Retail Shop Leases Act is not the only gateway to QCAT's original jurisdiction. Rather, s 15 of the QCAT Act provides that QCAT may exercise its broad jurisdiction conferred by s 103 of the Retail Shop Leases Act, where a person has, under the QCAT Act, applied to QCAT to exercise that jurisdiction. Section 33 of the QCAT Act does not restrict or limit when a party can apply to QCAT but is a procedural provision directed to formal requirements of applications. QCAT may do all things necessary and convenient for exercising its jurisdiction and may waive compliance with a procedural requirement under the QCAT Act.
[61] In the present case, the interim application was made pursuant to s 58(2) of the QCAT Act and the substantive application was made pursuant to s 33 of the QCAT Act. The landlord makes no complaint about the form of the interim application. Rule 7(1) of the QCAT Rules required the substantive application to be made in the approved form, which was Form 34. Section 33(2)(a) of the QCAT Act required the substantive application to be in a form which substantially complied with the QCAT Rules. I have noted at [7] of these Reasons, that the substantive application was incomplete at Part D of the Form 34. It should also be noted that the box which the tenant had crossed in Part D, was only applicable where a dispute notice had been lodged. No dispute notice had been lodged in this case. It is well arguable that the non-compliance with the requirements of Part D of the Form 34 was substantial. Even accepting that to be the case, the substantial non-compliance was with a procedural provision and was able to be waived by QCAT. QCAT, acting through the principal registrar, accepted the substantive application and, by reason of s 36 of the QCAT Act, a proceeding then started in respect of the substantive application. The acceptance of the substantive application would appear to have involved QCAT waiving any non-compliance with the procedural requirements of s 33(2)(a). For these reasons, I find that the tenant has applied to QCAT to exercise its original jurisdiction conferred by s 103 of the Retail Shop Leases Act.
QCAT has jurisdiction to decide jurisdictional facts relating to the QCAT proceedings
[62] In the present case, it may be accepted that there is a substantial dispute between the parties as to whether the lease is a retail shop lease and whether the dispute between the parties is a retail tenancy dispute. The interim and substantive applications squarely raise questions as to whether:
(a) the lease is a retail shop lease; and
(b) the dispute between the parties as to the relevance and operation of s 46AA of the Retail Shop Leases Act involves a retail tenancy dispute.
[63] These questions are properly characterised as questions of jurisdictional fact. QCAT has jurisdiction to decide these questions as an essential preliminary to the exercise of its substantive jurisdiction.[59] The expressions "excess of jurisdiction" and "want of jurisdiction" are sometimes used to describe acts of inferior tribunals performed in beach of the conditions which circumscribe their power and authority. A want of jurisdiction refers to a situation where a tribunal does an act which is beyond its general power or authority. An excess of jurisdiction refers to an act ordinarily within the general power or authority of a tribunal but which is performed in breach of the conditions which authorise its performance. The jurisdictional questions are not questions involving matters of discretion. QCAT is not empowered to answer these questions wrongly. If it answers them wrongly it would be acting beyond the limits of its jurisdiction, that is to say, in excess of its jurisdiction.[60]
[64] I find that QCAT has jurisdiction to decide the jurisdictional questions I have identified.
[65] A superior court has an inherent jurisdiction to stay a proceeding as an abuse of process. The general principle is that "the court can and will interfere whenever there is vexation and oppression to prevent the administration of justice being perverted for an unjust end".[61] In this context, "oppressive" is understood as meaning "seriously and unfairly burdensome, prejudicial or damaging" and "vexatious" is understood as meaning "productive of serious and unjustified trouble and harassment".[62]
[66] The High Court has recognised, as a general proposition, that it is "prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue".[63] That general principle draws upon Moore v Inglis[64] which involved a plaintiff commencing two court proceedings, one in the High Court and one in a Supreme Court. That circumstance led Mason J to consider whether there could be discerned a legitimate reason "for allowing the plaintiff to maintain a second proceeding in this Court relating to the subject matter already in course of litigation in the Supreme Court".[65]
[67] An example of the operation of this general principle can be seen in L. Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd.[66] In that case, an action was commenced in the Supreme Court of the Northern Territory against the party who later commenced an action in the Federal Court. A judge of the Federal Court stayed the Federal Court proceeding. An appeal from that decision was unsuccessful. The Full Court of the Federal Court relevantly observed:[67]
"As matters stood therefore there was the duplicity of proceedings in relation to the question whether the goods in question were supplied to the first appellant. In these circumstances a discretion arose in the learned Judge to decide whether it was in the interests of justice that one of the actions should proceed before the other and if he consider that the action of the Northern Territory should proceed before the action in this Court and that a stay of this action was appropriate for that purpose, then he had jurisdiction so to order".
[68] The exercise of the discretion to grant a stay in these types of circumstances is an illustration of the exercise of the Court's general power to control its own proceedings.[68] Hence, a recognised situation where the inherent power to stay may be exercised is "to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people".[69]
[69] The factors relevant to the exercise of the discretion to grant a stay will always be fact specific. In Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd,[70] Lockhart J outlined some considerations which, depending on the facts of a case, may be relevant to the exercise of discretion to stay where multiple proceedings are commenced. Those considerations relevantly include:
(a) Which proceeding was commenced first?
(b) Whether the termination of one proceeding is likely to have a material effect on the other?
(c) The public interest.
(d) The undesirability of two courts competing to see which of them determines common facts first.
(e) The circumstances relating to witnesses.
(f) Whether the preparatory work done to prepare a proceeding might be wasted?
(g) How far advanced the proceedings are advanced in each court?
(h) Generally balancing the advantages and disadvantages to each party.
[70] His Honour also noted that "the law should strive against permitting multiplicity of proceedings in relation to similar issues".[71]
[71] I have concluded that it is appropriate to stay the Supreme Court proceeding as an abuse of process. I have formed the view that to allow the Supreme Court proceeding to continue in parallel with the QCAT proceedings would be manifestly unfair to the tenant and would bring the administration of justice into disrepute among right thinking people. My reasons for forming these conclusions may be set out as follows:
(a) The QCAT proceedings were commenced first in time.
(b) The parties have each taken steps in the QCAT proceedings to advance those proceedings. An interim decision has been made in the QCAT proceeding and, as the price of that order, the tenant has provided, to its detriment, an undertaking as to damages.
(c) An oral hearing of the interim application has been requested by the landlord and the preparatory work necessary for the oral hearing of the interim application has been substantially completed by the parties.
(d) QCAT has jurisdiction to decide the questions of jurisdictional fact which have arisen between the parties concerning whether the lease is a retail shop lease and the dispute is a retail tenancy dispute. Given the objects of the Retail Shop Leases Act and of the QCAT Act, it is appropriate that QCAT is given the opportunity to decide these jurisdictional facts. The answer to the jurisdictional questions can be expected to effectively resolve the dispute between the parties.
(e) On the oral hearing of the interim application, the tenant will carry the burden of demonstrating a prima facie case that the lease is a retail shop lease and the dispute is a retail tenancy dispute. If the interim application is dismissed, the dispute between the parties will be effectively resolved.
(f) QCAT is obliged to act with as little formality and technicality and as much speed as a proper consideration of the matters before it permits. Given the comparatively advanced stage of the evidence in QCAT, the parties can expect to receive a timely resolution of their dispute.
(g) The Supreme Court proceeding was commenced by originating application. I find that it was inappropriate to commence the Supreme Court proceeding by originating application because the landlord's Supreme Court affidavit clearly revealed that substantial disputes of fact were likely. There had also been sufficient time to prepare a claim because the dispute between the parties had crystallised in December 2022 and yet the originating application was not filed until 9 February 2023.
(h) I do not accept that this is a case where absent the urgent intervention of this Court, the QCAT interim decision will finally determine the substantive rights of the parties. That submission overlooks the fact that the tenant has provided an undertaking as to damages as the price of the interim order. There is no suggestion that the undertaking is not valuable or that the landlord will suffer loss and damage to which the undertaking will not respond.
[1] Affidavit of Gerard Dowling, exhibit bundle p 110.
[2] Affidavit of Gerard Dowling, exhibit bundle p 105 [46].
[3] Affidavit of Gerard Dowling, exhibit bundle p 103 (the landlord's QCAT submissions at [34]).
[4] Ibid, exhibit bundle p 31 (the tenant's QCAT affidavit [14]) p 111 (the landlord's QCAT affidavit at [40]).
[5] Ibid, exhibit bundle p 216 (the tenant's further QCAT affidavit at [10]-[12]).
[6] Ibid, exhibit bundle p 30 (the tenant's QCAT affidavit at [5]) p 31 (the tenant's QCAT affidavit at [12]) p 85 (the tenant's QCAT submissions at [14]).
[7] Ibid, exhibit bundle p 110 (the landlord's QCAT affidavit at [39]).
[8] Ibid, exhibit bundle p 103 (the landlord's QCAT submissions at [38]-[40]).
[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'), s 9(1).
[34] Ibid, s 97(1)(a).
[40] Refer to QCAT Act, ss 142 and 143.
[59] Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398 at 413 [31] (French CJ).
[60] Ibid at [31] and [34] (French CJ) and [65] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[61] McHenry v Lewis [1882] UKLawRpCh 260; (1882) 22 Ch D 397 at 408 (per Bowen LJ).
[62] Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1987-8) 165 CLR 197 at 247 (Deane J).
[63] Henry v Henry [1996] HCA 51; (1995-1996) 185 CLR 571 at 591.
[64] (1976) 9 ALR 509 at 515.
[68] Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd [1978] FCA 49; (1978) 35 FLR 346 at 353 (Bowen CJ); Muller v Fencott [1981] FCA 129; (1981) 53 FLR 184 at 189 (Toohey J).
[69] Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 536 (per Lord Diplock); Walton v Gardiner (1993) 177 CLR 378 at 393 (per Mason CJ, Deane and Dawson JJ).
[70] (1992) 34 FCR 287 at 291.
Wagners Properties Pty Ltd
Atlas House Removers Pty Ltd [2023] QSC 40
Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd [1978] FCA 49; (1978) 35 FLR 346
Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529
L. Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd [1978] FCA 17; (1978) 33 FLR 170
McDonalds Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293
Muller v Fencott [1981] FCA 129; (1981) 53 FLR 184
Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
To v Choi [2011] QSC 2
(1996) 185 CLR 571
(1978) 35 FLR 346
(1978) 33 FLR 170
(1976) 9 ALR 509
(1981) 53 FLR 184
(1988) 165 CLR 197
(2012) 249 CLR 398
(1992) 34 FCR 287
(1993) 177 CLR 378
(i) The landlord adopted inconsistent positions on the hearing of the stay application. On the one hand, the landlord submitted that this Court, in the course of deciding the claim for possession, should "make a decision in relation to whether this is a retail tenancy dispute".[72] Yet on the other hand, the landlord urged the Court to decide the claim for possession on the basis that the tenant had adduced no evidence about the factual issues in QCAT and the landlord had proved its entitlement to possession consistent with the fact of ownership of the property.[73]
(j) The tenant, burdened with the Supreme Court proceeding in the context of existing QCAT proceedings, acted reasonably by applying for a stay without incurring the costs and expense of preparing evidence directed to issues in its prospective defence of the Supreme Court proceeding.
(k) Having regard to the requirements of rule 5 UCPR and the factual disputes which are already apparent from the landlord's Supreme Court affidavit, there is likely to be substantial work, time and cost involved in preparing the Supreme Court proceeding for a trial. The proceeding will require pleadings, or at least points of claim and defence, to enable the identification of the real issues in dispute. Given the present state of preparation of the Supreme Court proceeding, a trial in this Court is still some time away and would likely be more expensive to prepare and run than the costs of further preparing and running the QCAT proceedings to a final hearing.
(l) The landlord has provided no explanation as to why it commenced the Supreme Court proceeding when it did. The absence of an explanation is of some significance and entitles me to infer, and I do infer, that the landlord is pursuing the Supreme Court proceeding with a view to circumventing the QCAT interim decision and facilitating the determination of issues that are already live before QCAT.
(m) The landlord did not apply to QCAT to have the QCAT proceedings transferred to this Court nor did the landlord seek leave to appeal QCAT's interim decision. The Supreme Court proceedings seek no orders or relief in respect of QCAT's interim decision. In these circumstances, the commencement of the Supreme Court proceedings gives rise to the prospect of an order being made by this Court which is directly inconsistent with QCAT's interim decision.