Carlson v QBT

[1998] QSC 168

IN THE SUPREME COURT

OF QUEENSLAND

No. 5446 of 1998
Brisbane

Before             White J

[Carlson v QBT & Anor]

BETWEEN:

DAVID CARLSON, PETER ZAK AND IAN BONIFACE

Applicants

AND:

THE QUEENSLAND BUILDING TRIBUNAL and

THEO HARALAMPOU and BARRY COTTERELL

First Respondents
AND:

JOHANNES MARIA STRIK and DESLEY STRIK

Second Respondents

CATCHWORDS: Mandamus order - s.43 Judicial Review Act 1991 - Building Tribunal refusal to entertain s.88 application - proceeding.

Counsel:Mr Ian Boniface on his own behalf

Mr L Paramasivam for first respondents

No appearance for second respondents

Solicitors:Self-representation by third named applicant

Crown Solicitor for first respondents

Hearing Date:              21 August, 1998

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 28 August 1998

The applicants seek a mandamus order pursuant to Part 5 of the Judicial Review Act 1991 directed to the Queensland Building Tribunal, Theo Haralampou (the Registrar of the Tribunal) and Barry Cotterell (the President of the Tribunal) to set down and hear and determine the applicants’ application for compensation pursuant to s.88 of the Queensland Building Services Authority Act 1991 (“the Act”).

The applicant Ian Boniface, who appears on his own behalf, has the concurrence of the other applicants, David Carlson and Peter Zak in the submissions which he makes.  The first respondents were represented by Mr Paramasivam of counsel instructed by the Crown Solicitor.  He, appropriately, made no substantive submissions, The Queen v Australian Broadcasting Tribunal : Ex parte Hardiman (1980) 144 CLR 13 at p. 35. The first respondents abide the order of the court. Mr Paramasivam made submissions as to costs since a costs order is sought against the first respondents. The second respondents have been served and kept informed of the hearing date of the application but did not appear and were not represented. The solicitors for the second respondents indicated in correspondence that their clients did not consider that they were affected by the orders sought by the applicants. That is not the case, since if the application in this court is successful the second respondents will be exposed to an order for compensation in the Building Tribunal. But, of course, that is a matter for the second respondents.

This matter has an unfortunate history.  Briefly, the relationship between the applicants and the second respondents, (“the Striks”) to the extent that it needs to be referred to, is that in 1993 they entered a joint venture partnership to construct residential units on land owned by the Striks’ to sell the units and to share in the profits.  The applicants’ contribution to the joint venture was to arrange and supervise the building works and to provide financial/accounting advice.  The Striks contribution was to provide the land, finance the works and to market the units.  When the building works were substantially completed the Striks terminated the joint venture partnership, completed the works and sold the units.  They did not account to the applicants for their share of the profits.

The applicants commenced proceedings against the Striks by a District Court Plaint filed on 13 May 1996.  Those pleadings are not before the court but Mr Boniface deposes that those proceedings were to recover the applicants’ share of the joint venture nett profit.  Mr P Lohrisch, who constituted the Queensland Building Tribunal in 1997 in respect of this matter, says in his reasons for decision, to which I shall refer subsequently, that an alternative claim based on a quantum meruit for the applicants’ work on the project was also made, at least in the Tribunal.

On 13 August 1996 judgment was entered in default of the Striks filing an entry of appearance and defence in the District Court proceedings.  By summons dated 9 September 1996 the Striks applied to the District Court for orders that the default judgment be set aside, that they have leave to defend and to file an entry of appearance and defence and counter claim, that the action be transferred to the Queensland Building Tribunal, and that the applicants herein pay their costs of that application.  The Striks were represented by counsel, the applicant Mr Boniface appeared on his own behalf and was supported by the other applicants.

The applicants consented to judgment in default being set aside but opposed the application to transfer the action to the Queensland Building Tribunal on the ground that the Tribunal did not have jurisdiction to hear the action and also opposed the application for costs. On 12 September 1996 his Honour Judge Healy QC ordered by consent that the judgment be set aside and ordered that the action be transferred to the Queensland Building Tribunal pursuant to s.97(1) of the Act and ordered the applicants to pay Striks’ costs of and incidental to the application.

The applicants did not appeal that order and on or about 1 October 1996 the action was transferred to the Queensland Building Tribunal.  On or about 22 November 1996 the Striks filed a defence and counterclaim in the Queensland Building Tribunal.  The hearing commenced on 19 August 1997 before Mr P Lohrisch.  During the first 3 days of the hearing Mr Boniface and Mr Carlson swore their witness statements as their evidence in chief and were cross-examined.  On the morning of the fourth day of the hearing counsel for the Striks informed the Tribunal that an application would be made to contest the Tribunal’s jurisdiction to hear the matter but proposed that that should occur at the end of the applicants’ case.  Mr Boniface brought to the Tribunal’s attention that it was the Striks who had successfully applied to have the action transferred from the District Court  to the Queensland Building Tribunal and that the applicants had spent considerable time and cost in conducting the hearing in the Tribunal to that date and sought costs if the Tribunal found it had no jurisdiction.  The hearing was adjourned and on 7 October 1997 Mr Lohrisch found that the Tribunal was without jurisdiction in the application  and that the Tribunal “in these circumstances” had no power to award costs. 

As can be readily seen, the applicants were in something of a dilemma being denied jurisdiction in both the District Court and the Queensland Building Tribunal. They filed a notice of motion in the Court of Appeal on 27 March 1998 applying for an extension of time in which to apply for leave to appeal the order of Healy DCJ transferring the action to the Queensland Building Tribunal and his order for costs. On 5 May 1998 the Court of Appeal granted the extension of time, gave leave to appeal, allowed the appeal and set aside the orders made in the District Court and ordered that the applicants’ action be transferred to the Supreme Court and that the Striks pay the applicants’ costs in both the District Court and the Court of Appeal. Although the question of the costs in the Queensland Building Tribunal hearing was raised the court held that it had no jurisdiction with respect to those costs. The formal order of the court was entered on 12 May 1998 and the following day the applicants applied to the Registrar of the Queensland Building Tribunal for a directions hearing in respect of an application for compensation pursuant to s.88(b) of the Act or, alternatively, that the Tribunal reconsider its order of 7 October 1997 that it had no jurisdiction to award costs. The Registrar responded on 2 June 1998:

“Reference is made to the above mentioned application and to your letter of 13 May 1998 which has been considered by the Tribunal in conjunction with the decision of the Court of Appeal.

The Order made by the Tribunal Member Mr Lohrisch of 7 October 1998 has now been upheld by the Court of Appeal setting aside the District Court Order of 12 September 1996 which transferred this application to the Tribunal in the first place.

It has now been determined that this matter is not a domestic building dispute.  Therefore it should never have been transferred to the Tribunal, as the Tribunal has no jurisdiction to deal with it.

Likewise, the Tribunal has no jurisdiction to deal with the application you are now making.  These are matters that should be raised in the Supreme Court in that action.”

Mr Boniface was informed by the Registrar that that letter constituted a determination. He responded on 3 June 1998 that he had some doubts as to whether that was so, but sought a review of the determination pursuant to s.92 of the Act. That section provides that the Tribunal may on the application of a party to a proceeding reconsider a determination given in the proceeding. The Tribunal under the hand of the Registrar responded that in order for an application to proceed there needed to be a valid application in existence pursuant to s.95 of the Act and since that was not the case it had no power to hold a directions hearing or to consider the application. Section 95 provides that the Tribunal may on application by a party to a domestic building dispute make such orders and directions as may be just to resolve the dispute and any other matters of issue between the parties.

Mr Boniface wrote again to the Registrar of the Tribunal on 10 June 1998 setting out in detail why the position adopted by the Tribunal was not correct and sought to have a directions hearing set down in respect of an application under s.88. The following day he drew to the Registrar’s attention one of the Tribunal’s own decisions which supported his contention.

By a letter dated 11 June 1998 the Registrar responded:

“We refer to your letter of 10 June 1998.

This letter has been referred to the Chairperson of the Tribunal who has requested that I refer you to the Tribunal’s letters of 2 and 3 June 1998 and advise you that the Tribunal has no power to hold a Directions Hearing or any other hearing as you request under s.88. There is no proceeding in the Tribunal. The application has been held by the Court of Appeal to have been wrongly transferred to the Tribunal and the Tribunal has previously held that it had no jurisdiction.

The Tribunal Chairperson has directed that I advise you that, under the circumstances, the Tribunal will not comply with your request for a Hearing and that you can pursue the issue of costs in the Supreme Court action.

The threat of judicial review of the Tribunal is a matter for you, but you should perhaps obtain some legal advice before proceeding.”

Part 7 of the Act concerns the establishment of the Queensland Building Tribunal and Part 8 the jurisdiction of the Tribunal. The Tribunal has jurisdiction to resolve domestic building disputes, ss.95-97; to review certain decisions of the Queensland Building Services Authority, ss.98-99A; to conduct an enquiry in respect of disciplinary action against a licensee or a relevant person who is not a licensee, s.101; to make stop or suspension orders in respect of building work, ss.102-102A; and to make determinations about debts to the Queensland Building Services Authority arising out of payments made under the insurance scheme or in respect of a penalty, s.103.

Where the Tribunal has made a determination a party to the proceeding may apply to the Tribunal to reconsider that determination in quite narrow circumstances, s.92. A party to a proceeding before the Tribunal may, by leave of the District Court, appeal against a determination of the Tribunal in the proceeding within 28 days of the determination or such further period as may be allowed by the District Court, s.94. It is clear that s.92 is not available to the applicants even if, which does not seem to be the case, the refusal of all or any of the first respondents to set down , and/or hear and determine the application under s.88 constituted a “determination”. Section 92(4)(b) requires that the application:

“Must be based on a clerical mistake or factual error in the findings of the Tribunal that is of sufficient significance to have influenced the outcome of the proceeding.”

Similarly there has been no determination in a proceeding to fall within the ambit of s.94 governing appeals to the District Court. The application of the Judicial Review Act 1991 is excluded but only with respect to a minor domestic building dispute proceeding, s.100 and Schedule 1 of the Judicial Review Act as amended.

An order for mandamus may be made by way of an application for review, ss.41, 43.  No substantive change to the law has been affected by the abolition of the prerogative writs, Mackie v Lui (1994) 58 LGERA 353 at p. 359. If the first respondents, or any of them, have misconceived their statutory jurisdiction and as a consequence have failed to exercise their jurisdiction, then a mandamus order is the appropriate remedy, Sinclair v The Mining Warden at Maryborough (1995) 132 CLR 473, at p. 478 and p. 486. See generally S.D. Hotop Principles of Australian Administration Law (6th ed) (1985) at p. 281.

The first respondents have refused to entertain the applicants’ request to hear an application pursuant to s.88 and have done so on various grounds:

•“Likewise the Tribunal has no jurisdiction to deal with the application you are now making.” Letter 2 June 1998.

•“In order for your application to proceed there must be a valid application in existence under section 95 of the Act. That is clearly not the case on the basis of the Tribunal’s previous decision and the Court of Appeal’s decision.” Letter 3 June 1998.

•“... The Tribunal has no power to hold a Directions Hearing or any other Hearing as you request under section 88. There is no proceeding in the Tribunal.” Letter 11 June 1998.

•“You can pursue the issue of costs in the Supreme Court action.” Ibid.

•The Registrar raised in a telephone conversation with Mr Boniface the wording of s.88 which he suggested offered relief only to the person against whom the proceedings were brought and noted that the applicants were the applicants in the Queensland Building Tribunal hearing.

There is nothing in s.88 or elsewhere in the Act which would confine its operation to applications relating to domestic building disputes, which is what s.95 concerns. There is nothing to suggest that the section may not be invoked with respect to disciplinary proceedings or in respect of any other subject matter within the Tribunal’s jurisdiction and indeed has done so, Shand Constructions Pty Ltd v Queensland Building Services Authority BC 9302715 decision of 23 March 1993. What the first respondents appear to be asserting is that the proceeding concerning which compensation is sought must itself be within jurisdiction. Section 88 provides:

“If, in the tribunal’s opinion, a proceeding has been brought vexatiously or oppressively, the tribunal may -

(a)summarily dismiss the proceeding; and

(b)order the person by whom the proceeding was brought to compensate the person against whom it was brought for loss, inconvenience and embarrassment resulting from the proceeding.”

The Tribunal’s jurisdiction under s.88 is enlivened when “a proceeding has been brought vexatiously or oppressively”. Proceeding is not defined in the Act. A proceeding means a legal or other action or proceeding, s.36 Acts Interpretation Act 1954 as amended. The application initially embarked upon by the Tribunal in 1997 was clearly a proceeding. There is nothing in the section which precludes an application for compensation being made to the Tribunal after a proceeding has been dismissed. It is necessary only that a proceeding “has been brought”. A proceeding is started before the Tribunal by application. Even though, eventually the Tribunal held that it had no jurisdiction to hear and determine that application there is certainly no suggestion that the Tribunal lacks jurisdiction to determine whether it has jurisdiction to hear and determine a particular proceeding. There is nothing in s.88 to limit the relief which might be given to proceedings brought within jurisdiction. It would be a curious result if proceedings beyond jurisdiction could not be accommodated within the section as they would be in many circumstances brought vexatiously and/or oppressively. In Ocean Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197, a case concerning forum non conveniens, Deane J said at p. 247:

“... on that approach, “oppressive” should in this context be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while “vexatious” should be understood as meaning productive of serious and unjustified trouble and harassment”.

Subject to discussion of the final matter raised by the Registrar, on a proper construction of the section, the Tribunal is not precluded from setting down and hearing and determining the application under s.88.

It was suggested by the Registrar that the s.88 is available only to a respondent to an application. The applicants being the plaintiffs in the District Court action, which was against their objection transferred to the Tribunal, they were necessarily the applicants in the Tribunal. Further, the Striks made a substantial counterclaim in the Tribunal. The section is a beneficial one and ought not to be construed narrowly or with undue technicality. Its aim is to prevent proceedings being improperly brought before the Tribunal. Formal expressions such as applicant and respondent are not used. The Striks caused the proceedings to be brought in the Tribunal. They set up a counterclaim. There is no merit in confining relief pursuant to s.88 only to a party who formally constitutes an applicant.

Finally, the first respondents suggest that the applicants may seek relief in respect of the costs in the Tribunal in the Supreme Court action.  The applicants do not seek their costs, they seek compensation for “loss, inconvenience and embarrassment”.  Compensation is potentially far more extensive than taxed costs, particularly, as here, where the litigants appear in person.  In any event it is difficult to envisage how those costs lost in the Tribunal could be recovered an action for an account of profits on the dissolution of a partnership which is the subject matter of the Supreme Court action. 

In his letter of 13 May 1988 Mr Boniface seeks in the alternative that the Tribunal reconsider its order of 7 October 1997 that it had no jurisdiction to award costs. That relief is not sought in the application for review and was not the subject of submission. I would say briefly in respect of that matter, that it is unlikely to fall within the provisions of s.92 of the Act which I have discussed above. The appropriate course would have been an appeal to the District Court pursuant to s.94 of the Act. Such an appeal would now be well out of time and in view of the very limited power which the Tribunal has to award costs, an appeal would not be attended with significant prospects of success. It has, for example, no such general power as does the Land Appeal Court by virtue of s.521 of the Land Act 1994 which was found sufficient to ground its power to award costs when that Court had no jurisdiction to entertain a particular application for compensation, Sargent v Powerlink and SEQEB CA No. 8119 of 1997; unreported decision of 26 May 1998 at p. 6 of the reasons of the Court.

Accordingly, the Registrar of the Queensland Building Tribunal is directed to accept the application of the applicants brought pursuant to s.88 of the Queensland Building Services Authority Act.  The Tribunal in accordance with its rules and practices should proceed to hear and determine the application.

The applicants seek costs against the first respondents pursuant to s.49 of the Judicial Review Act 1991 and particularly s.49(2)(b) because the issue agitated involves a matter of public interest relating to the exercise of its jurisdiction by the Tribunal. It is not an order that is ordinarily made particularly in respect of applications in the nature of prerogative relief. There is no conduct on the part of any of the first respondents which would attract such an order. That I have found that each has mistakenly concluded that there was no jurisdiction to entertain the application under s.88 is no basis for making a costs order against any of them. They were engaged in a carrying out their statutory duties, R v McKay exparte Cassaniti [1993] 2 Qd R 95 at p.103.

The order will be as I have said above.