Fitzgerald v Brown
[2017] QCAT 192
•6 June 2017
CITATION: | Fitzgerald & Anor v Brown [2017] QCAT 192 |
PARTIES: | Neil Fitzgerald |
| v | |
| Clinton John Brown (Respondent) | |
APPLICATION NUMBER: | REO009-16 |
| MATTER TYPE: | Other civil dispute matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr Cullen, Member |
DELIVERED ON: | 6 June 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for reopening, correction, renewal or amendment in BDL256-14, BDL014-15 and BDL021-15 is dismissed. |
CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTACTS – where parties come to agreement re building works to be carried out – where matter resolved by way of consent COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – DISTINCTION BETWEEN SUPERIOR AND INFERIOR COURTS – where parties want to enforce consent order as respondent failed to comply with a term of the consent order – where application to enforce made incorrectly PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGEMENT AND ORDERS Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 131, s 132, Schedule 3 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
This matter has had a rather unfortunate journey through the legal system. It commenced life as a building dispute, within the Tribunal’s jurisdiction to hear and determine domestic building disputes. Following a compulsory conference in the Tribunal, the matter was resolved by way of a consent order.
The Fitzgeralds[1] then sought to enforce the Tribunal’s consent order in the Magistrates Court, as it was their view that the Respondent had not complied with a term of the consent order. QCAT does not have jurisdiction to enforce its own orders; this process is part and parcel of the work performed by the courts.
[1]Neil and Kersten Fitzgerald were the Respondents to the original proceedings in QCAT, BDL256-14, BDL014-15 and BDL021-15. They are the Applicants in the reopening application now before the Tribunal.
Unfortunately, the Magistrate hearing the Fitzgeralds’ enforcement application did not appear to understand the nature of the work performed in the Tribunal, and this has resulted in the Fitzgeralds being told by the Magistrate to return to QCAT in order for the Tribunal to fix its “mistake”[2].
[2]Page 1-6, line 40 of the Transcript of Proceedings before the Magistrates Court, MAG-1479/16, 16 May 2016.
Whilst the Magistrates Court did not have jurisdiction to determine the Fitzgeralds’ enforcement application, either, it is unfortunate that the opportunity to provide correct information to the parties involved was lost. There was no mistake for QCAT to correct, and this misunderstanding has resulted in the Fitzgeralds making the reopening application that is now before the Tribunal.
Terms of the Consent Order at QCAT
Following a Compulsory Conference, held on 27 April 2015, the parties resolved their dispute by consent. That agreement was then incorporated into a consent order, by the Tribunal, in the following terms:
IT IS THE DECISION OF THE TRIBUNAL BY CONSENT THAT:
1. Kersten Fitzgerald and Neil Fitzgerald pay to Clinton John Brown the sum of $70,000.00 as follows:
(a) $50,000.00 by 11 May 2015; and
(b) $20,000.00 by 11 May 2016.
2. Clinton John Brown will give to Kersten Fitzgerald and Neil Fitzgerald all certificates and other contractual documentation within seven (7) days of receiving the $50,000.00 in Order 1.
3. Each party pays their own legal costs.
4. The applications are withdrawn.
5. The counter-application is withdrawn.
6. These Orders are in full and final satisfaction of the issues in dispute.
As the consent order resulted in the QCAT application and counter-application being withdrawn, the Tribunal’s jurisdiction to make any further decision ended at that point.
Enforcement of QCAT Orders
The Tribunal does not have legislative authority to enforce its own orders. Rather, when necessary, Tribunal orders are enforced by the courts. The rules relating to enforcement are contained in Chapter 2, Part 7, Division 4 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
Section 131 of the QCAT Act relates to the enforcement of monetary decisions, whilst s 132 relates to non-monetary decisions. Although Order 1 of the Consent Order made by the Tribunal provides for payment of money by the Fitzgeralds to Mr Brown, Order 2 is a non-monetary order. As a consequence, it is s 132 of the QCAT Act that applies to enforcement.
A person wishing to enforce a final decision does so by filing a certified true copy of the decision, together with an affidavit setting out the circumstances of non-compliance with the ‘relevant court’. Section 132(7) defines ‘relevant court’ to mean:
relevant court means—
(a) for a final decision of the tribunal relating to a minor civil dispute—the Magistrates Court; or
(b) for another final decision of the tribunal—the Supreme Court.
As this is not a minor civil dispute, it is the Supreme Court that has jurisdiction in relation to enforcement proceedings. I note that s 132(5) provides that the Supreme Court can transfer enforcement proceedings to a lower court if:
(a) the order is of a kind that may be made by the lower court; or
(b) the order is otherwise capable of being enforced in the lower court.
It would then be necessary for the Supreme Court to determine whether the order for which enforcement is sought is of the kind that could be made by the lower court, having regard to the particular jurisdiction of each lower court.
Here, in making a decision on the reopening application before me, it is not necessary for me to determine whether s 132(5) applies in these circumstances. Additionally, I am conscious that I do not wish to usurp the role of a higher court in performing its own work. What is clear is that enforcement proceedings relating to a non-monetary decision of the Tribunal, and which do not arise in the Tribunal’s minor civil dispute jurisdiction, are to be commenced in the Supreme Court.
Confusion to the parties
The Fitzgeralds will have been understandably confused at having been told to come back to QCAT to reopen proceedings.
Helpfully, the Tribunal has been provided with a transcript of the proceedings before the Magistrates Court. The Fitzgeralds explained to the Magistrate that they had made the application in the Magistrates Court, as they had been told that was the only place they could get an enforcement notice.
Essentially, the Fitzgeralds said that they paid the $50,000.00 required of them to Mr Brown, in compliance with Consent Order 1(a). They then say that Mr Brown has failed to provide them with all of the certificates required by Consent Order (2). In turn, Mr Brown asserted that he had provided the Fitzgeralds with all of the certificates, and that the Fitzgeralds now owe him the payment called for by Consent Order 1(b).
Unfortunately, the Magistrate told the Fitzgeralds that they needed to ‘go to the – back to QCAT and have the matter brought on before a District Court judge within QCAT’, and further that the Tribunal needed to fix its “mistake”. It appears that the Magistrate believed that Consent Order 2, involving the exchange of building certification and contractual documents, was not an order that QCAT could make. This is incorrect.
A reference was then made to the matter needing to be brought on within the Tribunal’s review jurisdiction, with a fresh hearing with a decision-maker. Presumably, the Magistrate was labouring under the presumption that this matter somehow involved the Queensland Building and Construction Commission (QBCC), and therefore involved a review of the QBCC in its role as the industry regulator. However, this was not a review matter. Rather, the matter between the homeowners (Fitzgeralds) and builder (Mr Brown) had arisen within the original jurisdiction of the Tribunal to resolve domestic building disputes, pursuant to the Queensland Building and Construction Commission Act 1991 (Qld).
In an ideal world, the Magistrate would not have advised the parties that QCAT had made a mistake, and recognised that the terms of non-monetary QCAT orders are enforced by the courts. At that point, the Magistrate could have directed the parties to the relevant court.
The reopening application
Instead, the Fitzgeralds have returned to QCAT seeking to reopen the proceedings. The sole purpose of the reopening application is to try and obtain some relief by way of enforcement. The Fitzgeralds have engaged solicitors, obviously at some expense that may have been avoided if there had been careful attention to sections 131 and 132 of the QCAT Act.
The grounds for reopening can be found in s 137 of the QCAT Act, which provides, relevantly, that:
(b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
Whilst the Tribunal does not wish to add to the burden to all of the parties here, it cannot reopen proceedings simply on the basis that all of the parties have been inconvenienced.
There is no reopening ground disclosed on the material before me. If the QCAT Act was applied in the manner it should be, the Fitzgeralds would not suffer a “substantial injustice” – there is a mechanism for them to enforce the terms of the consent order. It is regrettable that the parties have wound up back in the Tribunal, but I am obliged to dismiss the application to reopen.
If they wish, the Fitzgeralds could now make the application to enforce the consent order in strict compliance with the QCAT Act. In this respect, they, or their solicitors, should pay particular attention to the provisions contained in s 131 and s 132 of the QCAT Act, and commence the application in the Supreme Court.
Practically, the Fitzgeralds may have difficulty establishing evidence that Mr Brown was obliged to provide them with certificates and contractual documents beyond those Mr Brown has already provided. Equally, Mr Brown may struggle to demonstrate that he has complied with the consent order in this regard, such that he is entitled to the remainder of payment. It would be sensible for the parties to consider the great expense, and time, that they may all be put to in endeavouring the enforce these proceedings in the proper jurisdiction.
Order
1. The Application for reopening, correction, renewal or amendment in BDL256-14, BDL014-15 and BDL021-15 is dismissed.
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