Fox v Queensland Building Services Authority
[2013] QCAT 480
| CITATION: | Fox v Queensland Building Services Authority & Greygull Pty Ltd [2013] QCAT 480 |
| PARTIES: | Matthew James Fox (Applicant) |
| V | |
| Queensland Building Services Authority Greygull Pty Ltd (Respondents) |
| APPLICATION NUMBER: | GAR076-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member |
| DELIVERED ON: | 11 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
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| CATCHWORDS: | Compulsory conference – where party did not attend – where application to reopen refused – whether bound by the consent order made at the compulsory conference in the absence of a party – whether proceeding against the party joined should be struck out – where applicant contends the consent orders made at the compulsory conference about costs incorrect – whether Tribunal should correct the orders. Queensland Civil and Administrative Tribunal Act 2009 ss 3 and 42 Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601. |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This matter highlights some of the difficulties when third parties are joined to applications to review administrative decisions. The proceeding, as between the applicant and the Queensland Building Services Authority was settled at a compulsory conference in the absence of Greygull Pty Ltd. Greygull applied to reopen the proceeding but that application was refused because Greygull did not satisfy the Tribunal that it had a reasonable excuse for not attending the compulsory conference. The Tribunal then made directions about whether the application against Greygull should be struck out and invited the parties to make written submissions so that question could be determined on the papers. That is the issue I am to determine here.
A little more history is necessary to fully understand the genesis of the decision to consider whether the application, insofar as it concerns Gerygull, should be struck out.
Mr Fox contracted with Greygull to carry out tiling at his home in Glencoe. He was dissatisfied with the work and made a complaint to the Queensland Building Services Authority. After investigating the complaint the Authority issued a direction to rectify to Greygull on 30 January 2011. Mr Fox did not think the direction to rectify went far enough based on an independent expert report he had about the tiling work so he filed an application to review the Authority’s decision. On the application of Mr Fox, Greygull was joined as a second respondent to the proceeding on 4 September 2012. After making directions for the filing of statements of reasons and evidence, the application was listed for a compulsory conference on 3 December 2012. Greygull did not attend the compulsory conference.
Upon the Tribunal Member who conducted the compulsory conference being satisfied that Greygull had been given notice of the conference, she proceeded to conduct the conference. In the end an agreement was reached between Mr Fox and the Authority. The agreement was reduced to a consent decision which is in the following terms:-
IT IS AGREED BY CONSENT AS FOLLOWS:-
1.The decision of the Queensland Building Services Authority made 30 January 2012 be set aside.
2.That pursuant to section 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2000, a decision be substituted that a direction to rectify and/or complete be issued to Greygull Pty Ltd that Greygull Pty Ltd causes to be rectified items 1 to 7 of the attached schedule.
3.Each party pay their own costs of and incidental to this proceeding.
4.This consent order is in full and final satisfaction of all claims made by Matthew James Fox against the Queensland Building Services Authority.
As Greygull was not at the compulsory conference it could not consent to the terms of the consent order between Mr Fox and the Authority.
Greygull applied to reopen the proceeding because it said it had a reasonable excuse for not attending the compulsory conference. That application was considered by a Tribunal Member on 24 May 2013 and dismissed on the basis that Greygull did not establish a reopening ground under section 137 of the QCAT Act. The Tribunal Member left open, because the dispute between Mr Fox and QBSA had been resolved, whether the “application against Greygull ought now be struck out”. Directions were made for the filing of submissions in respect of that direction.
The first point to be made about the direction is that there is no application or proceeding against Greygull. Even if this application had proceeded to a hearing no order could be made against Greygull under section 24 of the QCAT Act. All the Tribunal could do is to decide whether the Authority should issue a further direction to rectify to Greygull. For the purposes of the proceeding Greygull is simply a party who should be bound or have the benefit of the decision and whose interest might be affected by the proceeding.[1] That is, if the matter proceeded to a hearing it would no doubt contend that the application for review should be dismissed and if a final decision was made by the Tribunal, then it would be bound by that decision. That is not what happened here. One of the difficulties here is that there is no proceeding, as such, against Greygull capable of being struck out. Because the consent orders made were between Mr Fox and the Authority did not involve Greygull the proceeding is still, technically, on foot.
[1] QCAT Act s42
The Authority contends that by virtue of section 72(3) of the QCAT Act, Greygull is bound by the consent order made at the compulsory conference. Section 72 sets out what can occur if a party does not attend a compulsory conference. Subsection (1) provides that a conference can proceed in the absence of a party and if all parties present agree the presiding Member can make a decision adverse to the absent party and any appropriate orders, including orders for costs.
The decision made, albeit by consent, is adverse to Greygull and it seems to me to be of a type contemplated by section 72(1)(b)(i). It is simply a decision to give effect to an agreement made between Mr Fox and the Authority, which will not doubt result in a direction to rectify being issued to Greygull. Because the dispute between Mr Fox and the Authority is resolved what is the status of the proceeding in so far as it relates to Mr Greygull? It follows from the application of the section it must bound by the consent decision because no orders or decision can be made against it in the proceeding. This, as I said, raises one of the difficulties of joining parties in review applications.
Even if I am wrong about the application of s 72 and Greygull chose to continue to contest the review application, this would be a futile exercise because no order could be made against it. In any event Greygull says the application should be struck out against it. Once again this seems to me to be academic because whether it is struck out or not, as I have said, the Authority can now issue a direction to rectify to Greygull and if Greygull so chooses, it can apply to review the decision under section 86 of the QBSA Act.
There is no utility in keeping these proceedings on foot. If it is struck out against Gerygull, they come to an end or alternatively because of the orders made at the compulsory conference under s 72 they should be dismissed. Either there needs to be finality. Had the parties at the compulsory conference turned their minds to these issues I am confident the Member would have made an order that the application be dismissed.
The Authority filed, with its submissions, a request for an oral hearing. The directions made on 24 May 2013 were that any strike out application will be determined on the papers after 11 June 2013. Having read the parties submissions, in particular those of the Authority, I simply don’t see any advantage in listing this matter for an oral hearing in view of the directions already made. It wasn’t until the Authority filed submissions in reply, without being directed to do so, was the question of an oral hearing first raised. Therefore, I do not propose to list it for an oral hearing.
There is an outstanding issue about costs. On 21 March 2013 Mr Fox filed an application for a correction of the order because he contends that the Member made a mistake in the order and that the agreement was that costs be reserved. He says that there was agreement as between himself and the Authority that each party should pay their own costs but costs, as against Greygull, were to be reserved.[2] This discussion occurred out of earshot of Mr Turnbull, who represented the Authority at the compulsory conference. All Mr Turnbull can recall is an agreement that each party pay their own costs.
[2] Affidavit of Matthew Fox sworn 11 June 2013.
Section 100 of the QCAT Act mandates that each party must bear its own: This presumption may, however, be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party: QCAT Act, s 102(1). The phrase ‘in the interests of justice’ is not defined in the Act but is to be construed according to its ordinary and plain meaning, which confers a broad discretionary power on the decision-maker.[3]
[3] Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601 at 613 per Kirby P.
In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party: QCAT Act, s 102(3).
This application was a review of a decision of the Authority not to issue a direction to rectify. Greygull had no part in that decision making process. As I have already said it was brought into the litigation as a party whose interests might be affected by the proceeding. No relief could be sought against it. Even though it did not attend the compulsory conference both Mr Fox and the Authority reached an agreement suitable to them both, but not necessarily to Greygull.
It is difficult to see, in these circumstances, how a costs order against Greygull could be justified. It is in the interests of all parties that there finality to this litigation. Section 3 of the QCAT Act directs the Tribunal to deal with matters in a way that is fair, just, economical and quick in order to minimise costs to the parties. In these circumstances I see no need to correct the order made at the compulsory conference.
I therefore propose to dismiss Mr Fox’s application for a correction.
I also propose to dismiss the application.
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