Federal Court of Australia

Quach v McIntyre [2024] FCA 564

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2.    The applicant is to pay the costs of the respondent as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2.    The applicant is to pay the costs of the respondent as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

1    The respondents in two separate proceedings apply, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and rule 26.01(1) of the Federal Court Rules 2011 (Cth), for summary judgment in their respective proceeding or, in the alternative, for orders that the relevant amended statement of claim be struck out under r 16.21 of the Rules.

2    Section 31A(2) of the FCA Act includes:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

3    Rule 26.01(1) includes:

Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)     the proceeding is frivolous or vexatious; or

(c)     no reasonable cause of action is disclosed; or

(d)     the proceeding is an abuse of the process of the Court; or

(e)     the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

4    In his original statement of claim in QUD 16 of 2024, Dr Quach pleaded:

Background

1.    Mark Phillip McIntyre sold his property management rights business at 39-41 Lawson Street, Byron Bay NSW 2481 (SP48462), to the [applicant], which settled on 29 June 2023.

Cartel conduct

2.    Mark Phillip McIntyre directly or indirectly installed a new property manager at SP48462.

3.    The [applicant] claims:

i.    Compensatory damages.

ii.    Costs

iii.    Interests

5    In his original statement of claim in QUD 39 of 2024, Dr Quach pleaded:

Background

1.    Helen Jayne Dorothy Davenport is an on-site residential property manager at Lennox Head Beachfront Apartments (SP45001), 77-83 Ballina Street Lennox Head NSW 2478.

2.    The [applicant] purchased the property management rights business at SP48462, 39-41 Lawson Street Byron Bay 2481, which settled on 29 June 2023.

Cartel conduct

3.    Helen Jayne Dorothy Davenport is directly or indirectly installed by another real estate agent(s) as the property manager for SP48462, 39-41 Lawson Street Byron Bay NSW 2481.

4.    The [applicant] claims:

i.     Compensatory damages

ii.    Costs

iii.    Interests

6    Both respondents had raised a number of issues with Dr Quach about deficiencies in the statements of claim which he had filed. The Court made orders granting leave to Dr Quach to file and serve amended statements of claim.

7    On 5 April 2024, Dr Quach filed an amended statement of claim in QUD 16 of 2024. The statement of claim was in the following terms:

Background

1.    Mark Phillip McIntyre (McGolf Pty Ltd) and the installed property manager for SP48462 are competitors in the Byron Bay holiday letting market.

2.    Mark Phillip McIntyre sold his property management rights business at 39 – 41 Lawson Street, Byron Bay NSW 2481 (SP48462) and Lot 5 of the SP48462, to the [applicant], which settled on 29 June 2023.

3.     The installed property manager for SP48462 does not own any part of the SP48462, which is a breach of the condition under the by-laws of SP48462.

Cartel conduct

4.    Mark Phillip McIntyre directly or indirectly installed his competitor as the property manager at SP48462.

5.    Without any standing in the strata of SP48462, the installed property manager was provided with unrestricted access to SP48468 by Mark Phillip McIntyre, while he restricted access to the [applicant], who owns part of the strata at SP48462.

6.    Mark Phillip McIntyre, prevented, restricted and limited the capacity (forward bookings) of the business that he sold to the [applicant].

7.    The installed property manager charges higher room rates than Mark Phillip McIntyre with respect to each apartment at SP48462.

8.     Mark Phillip McIntyre is guilty of cartel conduct under the Cartel provisions defined in s 45AD Consumer And Competition Act 2010 (Cth), against the [applicant/applicant’s] entities.

8    On 6 May 2024, Dr Quach filed an amended statement of claim in QUD 39 of 2024. The statement of claim was in the following terms:

Background

1.    Helen Jayne Dorothy Davenport is an on-site residential property manager at Lennox Head Beachfront Apartments (SP45001), 77-83 Ballina Street Lennox Head NSW 2478.

2.     The property management of SP48462, 39-41 Lawson Street Byron Bay NSW 2481, is a competing business with the respondent in the Byron Bay holiday letting market.

3.     It is a requirement under the by-laws of SP48462, 39-41 Lawson Street Byron Bay NSW 2481, that the property manager owns part of the strata. The respondent does not own any part of the strata of SP48462.

4.    The [applicant] purchased from the respondent’s competitor, the property management rights business at SP48462, 39 – 41 Lawson Street Byron Bay NSW 2481, which settled on 29 June 2023.

5.     There was no vacancy for a property manager at SP48462, 39 – 41 Lawson Street Byron Bay NSW 2481.

Cartel conduct

6.     Helen Jayne Dorothy Davenport is directly or indirectly installed by another real estate agent(s) as the property manager for SP48462, 39 – 41 Lawson Street Byron Bay NSW 2481.

7.     On 28 September 2023, the respondent stated in an email, ‘I will be coming onsite as I will be running 11 out of the 12 apartments and just waiting for communication about the 12th.’

8.    The respondent and her competitor, prevented, restricted and limited the capacity of the [applicant] to operate holiday letting at Byron Bay.

9.    The respondent was provided with unrestricted access to SP48462 by her competitor, even though, she does not have any standing in the strata of SP48462.

10.     The respondent withheld access to key facilities, such as laundry and the [applicant’s] own cupboard used for linen storage.

11.    The respondent charges higher room charges compared to her competitor, with respect to each apartment at SP48462.    

12.    Helen Jayne Dorothy Davenport is guilty of cartel conduct under Cartel provisiosn [sic] defined in s 45[A]D Consumer and Competition Act 2010 (Cth), against the [applicant/applicant’s entities].

9    The proceedings arise out of the same essential facts and the parties agreed that the respondents’ interlocutory applications should be heard together.

APPLICATION FOR RECUSAL

10    Near the commencement of the hearing, Dr Quach applied for me to recuse myself on the ground of apprehended bias. Dr Quach’s application was put on two bases:

    first, that his case has been prejudiced by my “decision not to allow discovery”, which was a reference to the fact that I had refused to grant leave to Dr Quach to issue subpoenas; and

    secondly, that I had previously decided a case against Dr Quach, namely Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 578 (Quach v AHPRA).

11    I declined to recuse myself at the hearing for reasons which would be given in the judgment on the interlocutory applications.

Legal principles

12    The criterion to establish apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65 at [37]. The criterion logically entails: (1) identification of the fact which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that fact and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer: QYFM at [38].

Refusal to grant leave to issue subpoenas

13    Dr Quach submitted that my decision to refuse leave to issue subpoenas demonstrated an apprehension of bias. To the extent the subpoenas related to the pleaded case, the schedules to the proposed subpoenas were each oppressive and in the nature of fishing.

14    Dr Quach submitted that the Court would be assisted by having further documents placed before it, which is the reason why he had sought leave to issue the subpoenas. To the extent the subpoenas were issued in order for Dr Quach to seek to determine whether he might have a case which he could bring against the respondents, that is not an appropriate use of a subpoena.

15    There is no logical connection between a refusal to grant leave to issue a subpoena in these circumstances and an apprehended deviation from deciding the proceedings otherwise than impartially and on the merits. It is a regular occurrence that the Court will refuse to grant leave to issue a subpoena which is oppressive. This does not prevent a party from seeking leave to issue a subpoena which is not oppressive. The events which have occurred in relation to the request to issue subpoenas does not give rise to a reasonable apprehension on the part of a fair-minded lay observer of the possibility that I might determine the proceedings otherwise than neutrally and on the merits.

Previous judgment involving Dr Quach

16    Dr Quach submitted that my previous decision dismissing his application in Quach v AHPRA would give rise to an apprehension of bias. In Quach v AHPRA, I dismissed Dr Quach’s application for extension of time and leave to appeal from another judgment of this Court. The decision did not involve any question of credit. I accepted Dr Quach’s explanation for his delay and there was no criticism of Dr Quach or the manner in which he conducted his case. The decision turned on the prospects of success of an appeal if time were extended. I concluded that the prospects of success were insufficient to grant an extension of time for leave to appeal.

17    It is not unusual for judges to have to hear cases in which one of the parties was also a party in an earlier case or cases. That fact, of itself, is insufficient to demonstrate an apprehension of bias. My previous judgment in Quach v AHPRA is not sufficient to give rise to a reasonable apprehension on the part of a fair-minded observer of the possibility that I either formed or retained an attitude towards Dr Quach which might lead me to decide the case otherwise than on its merits and neutrally or that I might determine the case otherwise than neutrally for some other reason.

18    In oral argument on the topic of apprehended bias, Dr Quach stated that he was ill at the time Quach v AHPRA was decided and that I had refused an adjournment application: Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576.

19    In that decision, I referred to two medical certificates, neither of which provided a proper basis for granting an adjournment and one of which identified the main difficulty as being that Dr Quach had a chest infection and consequent urge to cough. I stated:

[11]    Having heard Dr Quach advance submissions on his adjournment application, it is plain that he is able to participate meaningfully during the hearing.

[12]    I am not satisfied that an adjournment is warranted in the interests of the administration of justice, having regard to Dr Quach’s condition and the fact that the case has been before the Court for some considerable time and the parties have had the opportunity to file submissions and evidence. I also take into account that the Court can afford Dr Quach time, during the course of this morning, to advance whatever submissions in whatever time he requires in order to ensure that fairness is afforded to him in the presentation of his case.

20    Nothing that was said or done in that case could give rise to a reasonable apprehension of bias in relation to the two applications presently before the Court.

SUMMARY JUDGMENT

Legal principles

21    The power to dismiss an action summarily is not to be exercised lightly: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [60], although it does not require that the proceedings be seen as “frivolous”, “untenable” or “groundless”: Spencer at [24]; [53] – [60]. The critical question is whether the moving party has persuaded the Court that the opposing party has no reasonable prospect of success. The requirements for summary dismissal were described by French CJ and Gummow J in Spencer at [22] in the following way:

[Section 31A] authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

22    In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [27]-[29], McKerracher J stated:

27     Section 31A was inserted into the Federal Court Act to give the Court greater flexibility in granting summary judgment. Its terms are reflected in r 26.01 of the Federal Court Rules. Save that s 31A(3) is not contained in r 26.01(1), the section and the rule otherwise contain identical tests. Accordingly, the authorities on s 31A are useful in considering r 26.01.

28     The effect of s 31A was to lower the bar for a successful application for summary judgment or summary dismissal from the common law principles stated by Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (at 91) and by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 (at 129-130). In Spencer v Commonwealth (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ (at [53] and [60]), the High Court recognised the radical departure of s 31A from the common law by the introduction of the standard of ‘no reasonable prospects of success’. The majority said, amongst other things, that (at [50]-[53], [58]-[60]):

(a)     consideration of the operation and application of s 31A must begin from consideration of its text. The central idea about which the provisions pivot is ‘no reasonable prospect’. The choice of the word ‘reasonable’ is important;

(b)     effect must be given to the negative admonition in subs (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is ‘hopeless’ or ‘bound to fail’. It is important to recognise that the combined effect of subs (2) and subs (3) is that the inquiry required is whether there is a ‘reasonable’ prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail;

(c)     in this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail;

(d)     with respect to how the expression ‘no reasonable prospect’ should be understood, no paraphrase of the expression would provide a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is ‘no reasonable prospect’. The creation of a lexicon of words or phrases to capture the operation of the statutory phrase should be avoided;

(e)     in many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described as ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’. But none of those expressions should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A;

(f)     rather, full weight must be given to the expression as a whole. The Court may exercise power under s 31A if, and only if, satisfied that there is ‘no reasonable prospect’ of success; and

(g)     the power to dismiss an action summarily is not to be exercised lightly.

29     Other principles that have been identified in relation to s 31A include that:

…

(b)     there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: “Sam Hawk” v Reiter Petroleum Inc (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]), cited in Buurabalayji (at [3]);

(c)     an application for summary dismissal is likely to succeed where the applicant’s success in the principal proceedings relies upon a question of fact that can truly be described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, an application for summary dismissal is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [47]);

(d)     similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed if it is able to demonstrate to the Court that the applicant’s success in the principal proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority: Cassimatis (at [48]); see also: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [14]- [15]): s 31A is amenable to resolving straightforward questions of law; SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]): summary judgment may still be appropriate if a question raised is of some complexity; McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited): s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial;

(e)     a Court should be particularly cautious about ordering summary determination where proceedings involve questions of fact and law, or mixed questions of fact and law, as these combinations usually give rise to some complexity that would require a full hearing. In such circumstances the moving party, as a general principle, would need to show a substantial absence of merit on either of the question of fact or law concerned, or on the mixed question: Cassimatis (at [49]); and

(f)     if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]), cited in Buurabalayji (at [3]). See also Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J (at [6]).

Background

23    The background is as follows. Mr McIntyre is the sole director and shareholder of McGolf Pty Ltd. From 31 March 2014 to 29 June 2023, McGolf carried on a “management business” as an onsite caretaker and manager of property located at 39-41 Lawson Street in Byron Bay in New South Wales. That property was known as Byron Bay Beachfront Apartments.

24    McGolf was contracted to provide the onsite services by the Owners Corporation of Strata Plan No 48462 under a “Management Agreement”. Under that agreement, McGolf was required to own and reside in a unit on the property. This was done by Mr McIntyre owning, and residing in, Lot 5 of SP48462.

25    McGolf also carried on a “residential letting business”. McGolf’s activities involved providing residential letting services to persons who owned apartments located within the property and to others. The ability to conduct such a business was provided for in clauses 14.1 to 14.18 of the Management Agreement. In order to carry out the residential letting business, Mr McIntyre held a licence under the Property and Stock Agents Act 2002 (NSW) as a Class 1 Agent – Real Estate – Sales or Leasing and McGolf held a corporation licence under that Act. Both licences have been surrendered and are no longer held.

26    On 3 April 2023:

    McGolf and QE Family Pty Ltd as trustee for QE Tai Sing Family Trust executed a contract for the sale and purchase of the management business and the residential letting business (the Business Sale Contract).

    Mr McIntyre and Dr Quach’s wife, Ms Veasna Quach, executed a contract for the sale and purchase of Lot 5. Ms Quach was the sole director of QE Family Pty Ltd.

27    Mr McIntyre stated in his affidavit that the Business Sale Contract was amended by emails between the relevant solicitors on 20 and 21 June 2023 to the effect that the Management Agreement (and the letting agreement in clauses 14.1 to 14.18 in the Management Agreement) were not to be assigned to QE Family Pty Ltd. These emails were not in evidence. According to Mr McIntyre’s affidavit, the amendments arose because the Owners Corporation was not willing to provide its consent to an assignment of the Management Agreement. I do not reach any concluded view about these matters.

28    The contracts settled on 29 June 2023.

29    Mr McIntyre stated in his affidavit that, on about 17 July 2023, he sent an email to each of the lot owners within the rent roll (now owned by QE Family Pty Ltd) to advise owners that Ms Veasna Quach and Dr Michael Quach had bought the management business. He provided Ms Quach and Dr Quach with assistance in relation to the computer systems of the letting business.

30    The evidence included later emails from two owners terminating their letting arrangements with Ms Quach and Dr Quach or QE Family Pty Ltd. As has been mentioned, it would seem that all 11 owners have now terminated arrangements.

31    McGolf continued as manager under the Management Agreement until 1 November 2023, at which point the Management Agreement was terminated by agreement between McGolf and the Owners Corporation.

32    Since 1 November 2023, neither Mr McIntyre nor McGolf has carried on any business in any industry. In his affidavit, Mr McIntyre stated:

[22]    Since the date of the Settlement, I have not:

(a)    made any recommendations to any person who owns a lot within the Property as to who that owner should use as a residential letting agent;

(b)     been a party to any agreement, understanding, partnership, undertaking or venture that involves a person or entity acquiring letting appointments from persons that own lots within the Property;

(c)     entered into any discussions with any persons regarding the acquisition of letting appointments from persons who own lots within the Property;

(d)    engaged in any discussions with any persons involved with the Property that is critical or harmful to QE Family Pty Ltd as trustee or its reputation;

(e)     had any discussions with any persons that are offering competing letting businesses to persons who own lots within the Property;

(f)     caused for or arranged for a person to become a property manager for the Property; or

(g)     prevented, restricted or limited the capacity of the QE Family Pty Ltd as trustee (or any other person or entity) to operate a residential letting business.

33    Ms Davenport is a shareholder in and director of Byron Bay Luxury Homes Pty Ltd. Luxury Homes is presently a booking agent for luxury properties in the Byron Bay region, including for 11 of the 12 lots at Beachfront Apartments. It also has individual management agreements with the owners of those 11 lots.

Consideration

34    In each proceeding, Dr Quach pleads that an individual (Mr McIntyre and Ms Davenport) is guilty of cartel conduct under the Competition and Consumer Act 2010 (Cth) (CCA). Sections 45AJ and 45AK of the CCA provide:

45AJ    Making a contract etc. containing a cartel provision

A corporation contravenes this section if:

(a)    the corporation makes a contract or arrangement, or arrives at an understanding; and

(b)     the contract, arrangement or understanding contains a cartel provision.

45AK    Giving effect to a cartel provision

(1)    A corporation contravenes this section if:

(a)     a contract, arrangement or understanding contains a cartel provision; and

(b)    the corporation gives effect to the cartel.

    …

35    Section 45AD relevantly provides:

45AD    Cartel provisions

(1)    For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:

(a)    either of the following conditions is satisfied in relation to the provision:

(i)    the purpose/effect condition set out in subsection (2);

(ii)     the purpose condition set out in subsection (3); and

(b)    the competition condition set out in subsection (4) is satisfied in relation to the provision.

Purpose/effect condition

(2)    The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly:

 (a)     fixing, controlling or maintaining; or

 (b)     providing for the fixing, controlling or maintaining of;

the price for, or a discount, allowance, rebate or credit in relation to:

(c)     goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or

(d)     goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or

(e)     goods or services re-supplied, or likely to be re-supplied, by persons or classes of persons to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or

(f)     goods or services likely to be re-supplied by persons or classes of persons to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding.

Note 1:     The purpose/effect condition can be satisfied when a provision is considered with related provisions—see subsection (8).

Note 2:     Party has an extended meaning—see section 45AC.

Purpose condition

(3)     The purpose condition is satisfied if the provision has the purpose of directly or indirectly:

 (a)     preventing, restricting or limiting:

 (i)     the production, or likely production, of goods by any or all of the parties to the contract, arrangement or understanding; or

(ii)    the capacity, or likely capacity, of any or all of the parties to the contract, arrangement or understanding to supply services; or

(iii)     the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or

(iv)     the acquisition, or likely acquisition, of goods or services from persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or

(b)     allocating between any or all of the parties to the contract, arrangement or understanding:

(i)     the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding; or

(ii)     the persons or classes of persons who have supplied, or who are likely to supply, goods or services to any or all of the parties to the contract, arrangement or understanding; or

(iii)     the geographical areas in which goods or services are supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or

(iv)     the geographical areas in which goods or services are acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or

(c)     ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services:

(i)     one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or

(ii)     2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; or

(iii)     2 or more parties to the contract, arrangement or understanding bid, but not all of those parties proceed with their bids until the suspension or finalisation of the request for bids process; or

(iv)     2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or

(v)     2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of those bids is worked out in accordance with the contract, arrangement or understanding.

Note 1:     For example, subparagraph (3)(a)(iii) will not apply in relation to a roster for the supply of after-hours medical services if the roster does not prevent, restrict or limit the supply of services.

Note 2:     The purpose condition can be satisfied when a provision is considered with related provisions—see subsection (9).

Note 3:     Party has an extended meaning—see section 45AC.

Competition condition

(4)     The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding:

 (a)     are or are likely to be; or

 (b)    but for any contract, arrangement or understanding, would be or would be likely to be;

in competition with each other in relation to:

(c)     if paragraph (2)(c) or (3)(b) applies in relation to a supply, or likely supply, of goods or services—the supply of those goods or services in trade or commerce; or

(d)     if paragraph (2)(d) or (3)(b) applies in relation to an acquisition, or likely acquisition, of goods or services—the acquisition of those goods or services in trade or commerce; or

(e)     if paragraph (2)(e) or (f) applies in relation to a re-supply, or likely re-supply, of goods or services—the supply of those goods or services in trade or commerce to that re-supplier; or

(f)     if subparagraph (3)(a)(i) applies in relation to preventing, restricting or limiting the production, or likely production, of goods—the production of those goods in trade or commerce; or

(g)     if subparagraph (3)(a)(ii) applies in relation to preventing, restricting or limiting the capacity, or likely capacity, to supply services—the supply of those services in trade or commerce; or

(h)     if subparagraph (3)(a)(iii) applies in relation to preventing, restricting or limiting the supply, or likely supply, of goods or services—the supply of those goods or services in trade or commerce; or

(i)     if subparagraph (3)(a)(iv) applies in relation to preventing, restricting or limiting the acquisition, or likely acquisition, of goods or services—the acquisition of those goods or services in trade or commerce; or

(j)    if paragraph (3)(c) applies in relation to a supply of goods or services—the supply of those goods or services in trade or commerce; or

(k)     if paragraph (3)(c) applies in relation to an acquisition of goods or services—the acquisition of those goods or services in trade or commerce.

Note 1:     Party has an extended meaning—see section 45AC.

Note 2:     Trade or commerce is defined in section 4 to mean trade or commerce within Australia or between Australia and places outside Australia.

36    Both respondents accepted that it was at least arguable that an individual could be made liable for cartel conduct by reason of the extended operation provided for by s 6(2C)(n) of the CCA, which provides:

6      Extended application of this Act to persons who are not corporations

(2C)     In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:

    …

(n)     each reference in the following provisions of this Act:

(i)     Division 1 of Part IV (other than section 45AD);

(ii)     any other provision (other than section 4, 45AD, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;

to a corporation included a reference to a person not being a corporation.

37    I do not need to decide whether that concession was properly made.

38    At the centre of Dr Quach’s case against Mr McIntyre and Ms Davenport is the proposition that they are competitors. Paragraph 1 of the amended statement of claim in the proceeding against Mr McIntyre is:

Mark Phillip McIntyre (McGolf Pty Ltd) and the installed property manager for SP48462 are competitors in the Byron Bay holiday letting market.

39    Dr Quach stated that he did not need to identify who the “installed property manager” was the subject of paragraph 1 of his amended statement of claim, but indicated that the Court could proceed on the basis that it was a reference to Ms Davenport.

40    Paragraph 8 of the amended statement of claim in the proceeding against Ms Davenport is:

[Ms Davenport] and her competitor [Mr McIntyre], prevented, restricted and limited the capacity of [Dr Quach] to operate holiday letting at Byron Bay.

41    Dr Quach has no reasonable prospect of successfully prosecuting the proceedings. There is nothing to suggest that Mr McIntyre and Ms Davenport are competitors in any industry. Mr McIntyre and his company are not in business at all and there is no pleaded basis for a conclusion that he has a business in competition with Ms Davenport. The contracts which were entered into between Mr McIntyre’s interests and Dr Quach’s interests were entered into in a context where Mr McIntyre was leaving the industry or industries in which he and McGolf had previously operated. As noted earlier, McKerracher J observed in Prior at [29(c)] that:

an application for summary dismissal is likely to succeed where the applicant’s success in the principal proceedings relies upon a question of fact that can truly be described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials.

42    This observation applies to the present proceedings.

43    Both amended statements of claim have other problems. They fail sufficiently to identify the asserted contract, arrangement or understanding or its terms or the parties to it or when it was entered into. There are insufficient facts pleaded in order to determine how it is said that the “purpose/effect condition” or the “purpose condition” or the “competition condition” are contended to be engaged: see ss 45AD(2) – (4) CCA. There is no identification of loss or the basis upon which “compensation” is claimed.

44    In relation to [1] and [3] of the amended statement of claim in the proceedings against Ms Davenport, there is no apparent basis for the assertion that Ms Davenport is the “on-site residential property manager” of Beachfront Apartments, if (as appears to be the case) that is intended as meaning that she has a management agreement with the Owners Corporation, in which Ms Davenport is required to reside at the Beachfront Apartments, such as that which McGolf had with the Owners Corporation.

45    I note that Dr Quach has already been provided with an opportunity to amend his pleadings.

46    Dr Quach submitted that he could add paragraphs 11 to 19 of his affidavit into the amended statements of claim. These paragraphs provide:

What McIntyre knew or believed about Davenport’s contravention

11.    McIntyre knew that the Owners Corporation SP48462 would not assign the Management agreement to me.

12.     McIntyre believed that his competitor, Davenport, could be installed as the manager for SP48462.

13.     McIntyre knew that his competitor, Davenport, does not own a Lot on SP48462, and would contravene the Management Agreement, to be onsite manager for SP48462.

Nature of the contravention McIntyre intended to aid, abet, counsel or procure.

14.    McIntyre aided his competitor, Davenport, and provided unrestricted access to the property SP48462.

15.     McIntyre restricted my access to SP48462 and my property by changing all locks at SP48462 (Annexure “MQ6” to “MQ9”), except for my apartment door:

I.     my linen cupboards on Lot 5 parking bay,

II.     the linen that I hired and paid for, which was previously stored in cupboards in other parking bays.

III.    access to common areas such as the storage shed.

IV.     stolen my key safe.

16.     McIntyre knew that his competitor, Davenport, needed to have an experienced person to properly supervise Davenport’s business at SP48462.

17.     McIntyre sponsored Anni Puranen to supervise his competitor’s business, Byron Bay Luxury Homes, carried out at SP48462.

18.     McIntyre agreed to provide guests contact details to his competitor, Davenport, to procure their future bookings with Davenport (Annexure “MQ10”).

Effect that McIntyre and Owner’s Corporation’s (SP48462) conduct in fact aided, abetted, counselled or procured Davenport’s contravention

19.    The effect of McIntyre and Owners Corporation’s (SP48462) conduct:

a)     Control and maintenance of SP48462 was given to Davenport (Annexure “MQ11”).

b)     Provided for the fixing, controlling or maintaining; the price for, or discount of holiday letting room rates for the booking acquired from McIntyre was given to Davenport (Annexure “MQ11”).

c)     Goods and services supplied by me, the Plaintiff, was restricted. My linen and consumables were locked away and stolen. Locks were changed to restrict access to common areas, such as the storage ‘shed.’ The laundry was not accessible to me nor customers because Davenport had control of the keys, and refused to give me a copy.

d)     Goods or services acquired by me, the Plaintiff, was affected defacing my signage with Davenport’s phone number. My guests who came to stay were procured by Davenport. Forward bookings were procured by Davenport. The linen service, Lord’s Linen refused to supply linen to me. Lord’s Linen supplied Davenport (Annexure “MQ12”).

e)     Goods or services re-supplied, or likely to be re-supplied, ie. forward bookings and returned guests were procured by Davenport (Annexure “MQ10”).

f)     Goods or services likely to be re-supplied, ie. future bookings for eleven apartments under the agency agreements have been procured by Davenport (Annexure “MQ10”).

47    MQ6 to MQ9 contain various emails and typed versions of SMS messages in August and October 2023. These reveal a dispute brewing between Dr Quach and the Owners Corporation. MQ10 contains parts of an email chain between Ms Davenport and Wayne, a longtime renter and guest of Beachfront Apartments. On 13 October 2023, Ms Davenport requested that Wayne contact her to discuss his booking and that “Mark the old manager has given me your details”.

48    MQ11 contains the minutes of SP48462’s Strata Committee Meeting on 15 March 2024. The minutes refer to a resolution to instruct lawyers to write a letter of demand to the owner of Lot 5 and to engage and pay for lawyers to act for the owners “on matters relating to On Site Rentals and Veasna and Michael Quach”. The minutes provide that Luxury Homes “is authorised to display the contact number for property management on signs on common property as an external agent”. The minutes provide that “Wayne Davenport will complete 15 hours of caretaking duties” at the property. The minutes state that the “current caretaker and assistant” will be engaged to undertake certain identified maintenance. The minutes make no mention of allowing Ms Davenport to fix a price for holiday rentals and they do not transfer “control and maintenance” of Beachfront Apartments to Ms Davenport. The minutes do not suggest that Ms Davenport is the on-site manager or caretaker. The minutes show that control and maintenance remain at the direction of the Owners Corporation, and that maintenance was being undertaken by persons other than Ms Davenport. The Owner’s Corporation is not a party to the proceedings.

49    MQ12 contains various photographs of persons changing the contact details of signs at Beachfront Apartments, a lockbox and a linen cupboard. The photographs do not establish that Dr Quach’s bookings were “procured by” or “forwarded to” Ms Davenport.

50    Even with paragraphs 11 to 19 of his affidavit inserted into the amended statements of claim, Dr Quach does not have reasonable prospects of successfully prosecuting cartel conduct proceedings against Mr McIntyre and Ms Davenport. Even if a contract, arrangement or understanding had been properly identified, there is no real prospect of prosecuting at trial that the “purpose/effect condition” or “purpose condition” is satisfied or that the “competition condition” is satisfied. I would therefore summarily dismiss both sets of proceedings with costs.

51    Dr Quach submitted that both proceedings were “criminal proceedings” and that the respondents were “statute barred” from applying for summary judgment by reason of s 31A(5) of the FCA Act.

52    Making a contract containing a cartel provision or giving effect to a cartel provision are indictable offences – see: ss 45AF and 45AG of the CCA. Dr Quach has no authority to bring criminal proceedings in relation to an indictable offence in this Court – see: Taylor v Attorney-General (Cth) [2019] HCA 30; (2019) 372 ALR 581 at [17] – [23]; Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 at [36]-[39]; Quach v AHPRA at [19], [20]. The proceedings commenced by Dr Quach against Mr McIntyre and Ms Davenport are not “criminal proceedings” within the meaning of s 35A(5).

CONCLUSION

53    The respondents’ applications for summary judgement should be allowed. The respondents have both established that Dr Quach has no reasonable prospect of successfully prosecuting cartel conduct proceedings against Mr McIntyre or Ms Davenport.

Associate:

Dated:    28 May 2024