Jindal v Michael Kenneth Eagles (no 2) - [2023] QCAT 229

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jindal & Anor v Michael Kenneth Eagles & Ors (no 2) [2023] QCAT 229

PARTIES:

AMIT JINDAL
(FIRST APPLICANT)
AND
JYOTI BHATIA

(second applicants)

v

MICHAEL KENNETH EAGLES
(FIRST RESPONDENT)
AND
PAUL EAGLES
(SECOND RESPONDENT)
AND
PRE INVESTMENTS PTY LTD
(THIRD RESPONDENT)
AND
JENNY EAGLES

(fourth respondent)

APPLICATION NO/S:

BDL242-21

MATTER TYPE:

Building matters

DELIVERED ON:

24 May 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.       The part of the proceeding against Pre Investments Pty Ltd, Jenny Eagles and Paul Andrew Eagles is dismissed.

2.       Pre Investments Pty Ltd, Jenny Eagles and Paul Andrew Eagles are removed as respondents.

3.       Amit Jindal and Jyoti Bhatia must file in the Tribunal two (2) copies and give to Michael Kenneth Eagles one (1) copy of an amended application for domestic building disputes which reflects the removal of Pre Investments Pty Ltd, Jenny Eagles and Paul Andrew Eagles as respondents and sets out the claim by Amit Jindal and Jyoti Bhatia against Michael Kenneth Eagles, by: 4:00pm on 7 June 2023.

4.       Michael Kenneth Eagles must file in the Tribunal two (2) copies and give to Amit Jindal and Jyoti Bhatia one (1) copy of an amended response (if any), by: 4:00pm on 21 June 2023.

5. Amit Jindal and Jyoti Bhatia must pay Pre Investments Pty Ltd’s, Jenny Eagles’ and Paul Andrew Eagles’ costs of the proceeding to be agreed or failing agreement to be assessed on the standard basis on the Magistrates Court Scale in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been brought in the Magistrates Court.

6.       The matter is listed for a Directions Hearing in Brisbane on a date and time to be advised.

7.       The parties must attend the Directions Hearing by remote conferencing.

CATCHWORDS:

COURTS AND JUDGES – COURTS – JURISDICTIONS AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS – OTHER MATTERS – where the tribunal does not have jurisdiction to decide the claims by the applicants against the second, third and fourth respondents – where the originating application filed by the applicants does not articulate a comprehensible and cohesive claim against the respondents – whether the application is in a form sufficiently consistent with a pleadings jurisdiction – whether the tribunal should order the transfer of the proceedings to the Magistrates Court

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the proceedings against the second, third and fourth respondents were dismissed – whether it is in the interests of justice to make an order for costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1), s 52(2), s 100, s 102(1), s 102(3)

Dare v Pulham (1982) 148 CLR 658

M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 24 May 2023 I made orders dismissing the proceeding against the second, third and fourth respondents. These are my reasons.
I previously decided that the claim by the applicants against the second, third and fourth respondents was not a building dispute.[1] I directed the parties to file submissions as to the further disposal of the proceedings against all respondents. In my reasons for decision I stated:
[41] It should be stressed that I am not determining the merits of the applicants’ claims against Paul Eagles, Jennifer Eagles and PRE Investments other than to the extent such claims fall (or do not fall) within the jurisdiction of the Tribunal. The applicants may wish to pursue their claims against the respondents in another court. If they do wish to do so, it seems to me that the appropriate course of action would be to entertain the transfer of the proceeding in its entirety to a court of competent jurisdiction. Whether that is the Magistrates Court or the District Court will depend upon the quantum of the applicants’ claim.
[42] I will therefore make directions for the parties to file submissions as to the appropriate orders to give effect to these reasons.
[1]Jindal & Anor v Michael Kenneth Eagles & Ors [2023] QCAT 119.
All parties filed submissions.
The applicants said:
(a)The proceeding against Michael Eagles should continue in the Tribunal as a building dispute;
(b)The part of the proceeding against the other respondents should be transferred to the Magistrates Court;
(c)Each party should bear their own costs or there should be no order as to costs.
The respondents said:
(a)The second, third and fourth respondents should be removed as parties;
(b)The claim by the applicants against the second, third and fourth respondents should be dismissed;
(c)The applicants pay the second, third and fourth respondents costs on the indemnity basis;
(d)Directions be made to progress the claim against the first respondent to hearing.
Consideration
Section 52(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides as follows:
(2) If the tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the tribunal may, by order, transfer the matter or matters for which it does not have jurisdiction to—
(a) a court of competent jurisdiction; or
(b)another tribunal or entity having jurisdiction to deal with the matter or matters.
The Tribunal does not have jurisdiction to decide the claims by the applicants against the second, third and fourth respondents. For the reasons that follow I decline to order the transfer of the proceedings to the Magistrates Court.
Firstly, the claims by the applicants against the second, third and fourth respondents are not presented in a form harmonious with proceedings in the Magistrates Court. The Magistrates Court is a pleadings jurisdiction. Pleadings and particulars provide a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it and they define the issues for decision in the proceeding enabling the relevance and admissibility of evidence to be determined at the trial.[2] In the Tribunal, it is the statements of evidence of the parties that serve to identify the issues in dispute to be determined. The originating application filed by the applicants does not articulate a comprehensible and cohesive claim against the respondents. While the subsequent submissions filed by the applicants in response to the respondents’ dismissal application go some way to clarifying the claims made, this highlights the difficulties I have identified when considering the transfer of a proceeding from this Tribunal to a pleadings jurisdiction. If the proceeding against the second, third and fourth respondents is transferred to the Magistrates Court the applicants will be required to re-plead their claim in an appropriate way sufficient to identify the cause or causes of action against the respondents and setting out the material facts relied upon by the applicant for the relief sought and identifying the relief itself. The difficulties associated with the transfer of a proceeding from the Tribunal to a court were highlighted by (then) QCAT President Alan Wilson in M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors:[3]
[13] Section 52 of the QCAT Act provides that if the Tribunal considers it does not have jurisdiction to hear all matters in a proceeding it may transfer all or parts of it to a court of competent jurisdiction. An order may also be made if QCAT considers the subject matter of the proceeding may more appropriately be dealt with by a court or other entity. In their submissions, the lawyers for the lessors suggest the transfer of all of M & J’s proceedings to the Supreme Court. Although M & J’s lawyers filed submissions in response they did not address that submission.
[14] Under s 52 QCAT may, if inclined to order a transfer, also give directions to “...facilitate the transfer, including an order under an Act or other law for starting a proceeding before the relevant entity”. Procedural difficulties will arise here if M & J’s application to QCAT is transferred to the Supreme Court. Despite substantial verbiage and attachments, it is not in a form which would constitute an adequate pleading. Because it was filed before the lessors’ action was commenced in the Supreme Court, it is also unresponsive and on any view M & J, or both parties, would be required to re-plead if the QCAT application was simply transferred to the Court.
[15] It is not, then, a matter in which a transfer to the Court can be readily or comfortably facilitated. It is not impossible that, had M & J’s legal representatives turned their minds to the matter, appropriate directions may have been fashioned but, in the absence of any attempt to do that, the better course is to simply dismiss the QCAT proceeding and allow M & J to seek its relief in the present Supreme Court action (or elsewhere if it chooses).
[2]Dare v Pulham (1982) 148 CLR 658, 664.
[3][2010] QCAT 454.
For the reasons I have set out, this is not a matter in which a transfer of the part of the proceedings relating to the claims against the second, third and fourth respondents can be readily or comfortably facilitated.
Secondly, it is only part of the proceeding that would be transferred to the Magistrates Court. The claim against the first respondent will remain in the Tribunal. The applicants’ submissions offer no useful guidance or suggestions as to how the transfer of only part of the proceeding is to be facilitated. As I referred to in my earlier decision, if a transfer of the proceeding to the Magistrates Court were to be contemplated it seems to me that it would be appropriate for the entire proceeding to be transferred noting that there is likely to be significant commonality of relevant facts and issues. Transferring that part of the proceeding against the second, third and fourth respondents would potentially create the unattractive outcome of having two sets of proceedings in different jurisdictions addressing the same or very similar questions of law and questions of fact. Such an outcome is, in my view, to be avoided.
Noting the applicants’ express wish that the proceeding against the first respondent continue in the Tribunal, the appropriate course of action is to dismiss the proceeding against the second, third and fourth respondents. The applicants may of course commence a proceeding in the Magistrates Court against those parties and will no doubt need to turn their minds to properly pleading their claims against the respondents. If they adopt this course of action, it remains open to the applicants to transfer the remaining claim against the first respondent to the Magistrates Court and apply to have the claim consolidated with any proceeding brought against the other respondents. In that way, the problems associated with having two sets of proceedings in different jurisdictions dealing with overlapping issues may be avoided.
The appropriate order is that the part of the proceeding against the second, third and fourth respondents is dismissed pursuant to s 47(1) of the QCAT Act. I order that the second, third and fourth respondents are removed as respondents. I order the applicants to file an amended application for domestic building disputes which reflects the removal of the respondents and sets out the claim by the applicants against the first respondent. I make orders for the filing of any amended response by the first respondent and for the matter to be thereafter listed for a directions hearing.
I turn now to the issue of the costs of the proceedings against the second, third and fourth respondents. I have found that the claim against each of the respondents is not a building dispute. As such, costs fall to be determined in accordance with the provisions of the QCAT Act.[4]
[4]Kartell Pty Ltd v Hennig Bros Construction Pty Ltd; DSGN Kartell Pty Ltd v Craig Russell Stranger t/as ACE Space Design [2020] QCAT 211.
The starting point in relation to costs is that each party must bear their own costs.[5] The Tribunal may however make an order for costs if the interest of justice require such an order.[6] I will consider each of the matters referred to in s 102(3) of the QCAT Act.
(a)Section 102(3)(a) – did the applicants act in a way that unnecessarily disadvantaged the respondents? I am not satisfied that they did. I do not consider this factor weighs in favour of an order for costs;
(b)Section 102(3)(b) – the nature and complexity of the dispute the subject of the proceeding. I am satisfied that there was a degree of complexity to the dispute involving the second, third and fourth respondents. This factor weighs in favour of an order for costs;
(c)Section 102(3)(c) – the relative strengths of the claims made by each of the parties. Clearly, the claims by the applicants against the second, third and fourth respondents, insofar as such claims were within the jurisdiction of the Tribunal, were not strong. Indeed, the claims were misconceived. This factor tells in favour of an order for costs;
(d)Section 102(3)(e) – the financial circumstances of the parties. There is no evidence before the Tribunal regarding this consideration. It is not a factor that weighs one way or the other;
(e)Section 102(3)(f) – any other relevant circumstance. The parties had, by consent, been granted leave to be legally represented relatively early in the proceeding. The respondents have incurred legal costs in defending a claim which was without substance. This factor weighs in favour of an order for costs.
[5]QCAT Act, s 100.
[6]Ibid, s 102(1).
Taking all of these matters into consideration, I am of the view that this is a case in which it is in the interests of justice to make an order for costs. The appropriate order is that the applicants pay the second, third and fourth respondents’ costs of the proceeding to be agreed or failing agreement to be assessed on the standard basis on the Magistrates Court Scale in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been brought in the Magistrates Court.