Lyons v Dreamstarter Pty Ltd
[2011] QCATA 142
•23 June 2011
| CITATION: | Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 |
| PARTIES: | Andrew Lyons (Appellant) |
| v | |
| Dreamstarter Pty Ltd t/a Protech Builders (Respondent) |
| APPLICATION NUMBER: | APL234-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 23 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Tribunal made in BDL222-10 on 14 September 2010 is set aside. 4. BDL222-10 is listed for directions on a date to be notified. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – Interlocutory decision – decision involving the exercise of a discretion – circumstances in which leave will be granted NATURAL JUSTICE – Procedure – On the papers hearing – whether reasonable expectation that the application should be heard orally – whether applicant denied natural justice in the way in which the application was heard COSTS – BUILDING DISPUTES – whether the usual order is that parties must bear their own costs – whether enabling Act otherwise provides – whether the Tribunal has a broad and general discretion to award costs in such proceedings. APPLICATION FOR SECURITY FOR COSTS – discretionary considerations – where Member misled about a relevant factor – where Member applied incorrect test regarding costs – whether discretion miscarried Queensland Building Services Authority Act 1991, ss 77, 77(1)(h) Queensland Civil and Administrative Tribunal Act 2009, ss 3(b),6, 7, 28(3)(a), 32(2), 100, 102 ,142(3)(a)(ii) Commercial and Consumer Tribunal Act 2003, ss 70, 71 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 applied Kioa v West (1985) 159 CLR 550 applied Latoudis v Casey (1990) 170 CLR 534 at 557 applied Niemann Electronic Industries Ltd [1978] VR 355 cited Oshlak v Richmond River Council (1998) 193 CLR 72 applied Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 cited Tamawood Ltd & Anor v Paans [2005] QCA 111 applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Lyons applied for security for his costs in a claim brought against him by Dreamstarter Pty Ltd, the company he engaged to perform building work for him. His application, which was determined on the papers and without an oral hearing, was dismissed. Mr Lyons seeks leave to appeal that decision and, if successful, to appeal it.
Ordinarily there is no right to appeal an interlocutory decision. This recognises the potential to increase delay and costs to parties if appeals are easily brought against decisions made in the course of a proceeding, particularly about matters of practice and procedure.
For matters brought to this Tribunal, the QCAT Act expressly requires leave to appeal a decision which is not the final decision in the proceeding.[1] The object of the provision is clear and the Appeal Tribunal should recognise that in a liberal manner, not begrudgingly.[2] Only a case exhibiting special features that warrant review should be granted leave.
[1] Queensland Civil and Administrative Tribunal Act 2009 s142(3)(a)(ii).
[2] Niemann Electronic Industries Ltd [1978] VR 355 at 364.
In this case, the interlocutory decision involved the exercise of the learned Member’s discretion. An appellate body will be slow to interfere with such a decision; even more so when, as in this case, substantive rights are not effectively determined by the decision.
Mr Lyons’ application for leave to appeal raises questions of natural justice and alleges errors of fact and law. Such grounds, if they can be maintained, may justify leave being granted. If Mr Lyons is likely to suffer an injustice if the decision is allowed to stand, or if there is a general issue of principle involved about which an appeal decision would be of benefit,[3] leave should be granted.
[3] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177.
For the reasons that follow, this is one of those unusual cases in which it is appropriate to review the exercise of discretion on an interlocutory application.
The rules of natural justice were not observed
Mr Lyons’ first ground raises the question of how his application has been dealt with by the Tribunal. The learned Member exercised the power the Tribunal has to determine all or part of a proceeding entirely on the basis of documents, without the parties, their representatives or witnesses appearing at the hearing.[4] The power may be exercised on the Tribunal’s initiative, if it is an appropriate case in which to proceed in that manner.
[4] Queensland Civil and Administrative Tribunal Act 2009, s 32(2).
The Tribunal frequently exercises this power as an efficient means to dispose of interlocutory applications. In so doing, the Tribunal is obliged to observe the rules of natural justice.[5]
[5] Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(a).
As Mason J (as his Honour then was) observed in Kioa v West[6] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations...
[6] (1985) 159 CLR 550 at 584-585.
[10] One of the objects of the Act is for the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[7] The Tribunal’s resources (both physical, in terms of hearing rooms and human, in terms of members and support staff) are limited. Hearings on the papers enable the Tribunal to prioritise access to those being given to limited resources for compulsory conferences, final hearings and those interlocutory matters which will involve oral evidence or which call for oral argument.
[7] Queensland Civil and Administrative Tribunal Act 2009, s 3(b).
[11] A hearing on the papers has cost benefits for parties, because it avoids the expense and inconvenience of a personal appearance. If legal representation is allowed, the cost of a legal representative appearing in person is also avoided. This application for security for costs was amenable to being determined in this manner.
[12] However, Mr Lyons says he did not know his application would be dealt with on the papers. Because of what transpired at a directions hearing in August 2010 he believed it would be dealt with orally. He says he was not given an opportunity to address whether it should be dealt with on the papers and did not have an opportunity to make oral or written submissions before it was determined.
[13] The Appeal Tribunal accepts that Mr Lyons had a reasonable basis for his expectation that his application would be determined at an oral hearing. His application had been filed prior to the August directions hearing. The member who conducted the directions hearing listed the matter for further directions on 30 September 2010. Mr Lyons’ affidavit attests that there was discussion about whether the matter would be determined at the September directions hearing or another date set for the hearing.
[14] A party might not necessarily expect to be given the opportunity to make submissions about whether an application should be determined on the papers. However, if an expectation has been created that an application will be dealt with at an oral hearing, fairness dictates that the applicant is informed if the Tribunal is to deal with it in a different way.
[15] Further, armed with the knowledge of the way in which the application will be determined, the parties should be given a proper opportunity to put before the Tribunal their evidence and submissions in relation to it. The objectives of economy and speed do not override the fundamental obligation to afford parties a fair hearing, whether oral or on the papers.
[16] Evidently the learned Member assigned to determine the application was not aware of the discussions at the August directions hearing. There was no note on the proceedings sheet to indicate how the application would proceed. The directions did not deal with the question. There was nothing to alert the learned Member about the parties’ expectations about how it would be heard.
[17] This case serves to demonstrate the importance of clear directions that communicate to the parties and the Tribunal what will be done with outstanding matters. Had the application been set down for hearing on a specified day or directions made for it to be determined on the papers, Mr Lyons would not be left with a justifiable sense of grievance about how his application was determined.
[18] The learned Member observed in her reasons that Mr Lyons did not provide evidence about or make submissions regarding certain relevant factors. That is so. The matters the Member adverted to were relevant to the question she had to determine. Mr Lyons now says that he would have led further evidence or made such submissions if given the opportunity to do so.
[19] Given the Appeal Tribunal accepts Mr Lyons expected an oral hearing, it follows it should accept he may well have produced further evidence and most certainly would have made oral submissions at another hearing had it occurred. He did not have the opportunity to alert the Tribunal about his intention to do so, before the application was determined. The Tribunal did not observe the rules of natural justice in the way in which it heard Mr Lyons’ application.
The discretion miscarried because the Member was misled about a relevant fact
[20] Because of a deficiency in the directions made at the August directions hearing, the learned Member was misled about a relevant fact.
[21] Initially, the directions hearing was listed for a related application brought by Mr Lyons to review a decision made by the Queensland Building Services Authority in relation to complaints Mr Lyons made about the quality of Dreamstarter’s work. Dreamstarter’s representative attended the directions hearing and, it seems with the parties’ agreement, a directions hearing then proceeded in both matters.
[22] The question of leave of the parties to be legally represented was raised. The Appeal Tribunal accepts that Mr Lyons understood that leave was granted to all parties to be represented in both proceedings. Unfortunately, an order granting leave was made only in the directions which issued in the review proceedings and not in these proceedings. At the September directions hearing, a Senior Member accepted this was an omission and made the order in those proceedings.
[23] This is a point of some substance in the application for security for costs. Correctly, in my view, the learned Member considered the question whether Mr Lyons had leave to be represented was a relevant consideration in determining his application for security for costs. The omission in the directions misled the learned Member. Without error on her part, she exercised her discretion acting on a misapprehension of a relevant factor. In those circumstances, the learned Member’s discretion miscarried.
An incorrect test was applied for determining whether costs might be awarded in these proceedings
[24] Mr Lyons submitted the learned Member erred in her interpretation of the provisions of the Act dealing with the award of costs and orders for security for costs. I see no error in the learned Member’s interpretation of the provision dealing with security for costs (s 109).
[25] However, Mr Lyons’ argument regarding the approach the Tribunal should take to awarding costs in a building dispute has merit.
[26] The power to award costs is a creature of statute. There must be close consideration of the terms of the relevant provisions to determine the occasions for and conditions of its exercise.[8]
[8] Tamawood Ltd & Anor v Paans [2005] QCA 111 at [23].
[27] In Tamawood v Paans the Court of Appeal interpreted the costs provisions of the now repealed Commercial and Consumer Tribunal Act 2003 (CCT Act) which governed the procedure of one of the Tribunals whose jurisdiction was assumed by this Tribunal. Both parties have referred to that case in their submissions. While there are some similarities between the relevant provisions of the CCT Act[9] and the QCAT Act,[10] there are also some important differences.[11]
[9] Commercial and Consumer Tribunal Act 2003, ss 70, 71.
[10] Queensland Civil and Administrative Act 2009, ss 6, 7, 100, 102.
[11]Section 70 of the Commercial and Consumer Tribunal Act 2003 dose not include the words ‘… other than as provided under … and enabling Act’. Nor did the Commercial and Consumer Tribunal Act 2003 contain provisions equivalent to ss 6 and 7 of the Queensland Civil and Administrative Tribunal Act 2009.
[28] Importantly, the Court of Appeal was not asked to consider the interaction of inconsistent provisions dealing with costs, as this Appeal Tribunal must.
[29] The decision in Tamawood affords general assistance but does not bind the Appeal Tribunal in its interpretation of the provisions found in the QCAT Act. It cannot distract the Tribunal from attention to the particular provisions engaged by this proceeding.
[30] The learned Member correctly identified that the primary costs provision in the QCAT Act (s 100) exhibits a strong intention that the usual position in the Tribunal is that parties will bear their own costs. The Tribunal may make an order requiring a party to pay the costs of another if it considers the interests of justice require it to make the order.[12]
[12]Queensland Civil and Administrative Tribunal Act 2009, s 102(1); Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29].
[31] However, there are other provisions that fall to be considered. Section 100 contemplates that, by providing an exception if another provision of the QCAT Act or an enabling Act[13] otherwise provides. Mr Lyons relies on a provision of the Queensland Building Services Authority Act 1991 (QBSA Act) in his argument that the Tribunal should not have assessed his application for security for costs on the assumption that each party would bear their own costs in these proceedings.
[13]An Act that confers jurisdiction on the Tribunal; Queensland Civil and Administrative Tribunal Act 2009, s 6.
[32] Section 77 of the QBSA Act confers jurisdiction on the Tribunal to determine building disputes such as the one brought by Dreamstarter. Section 77(1)(h) provides that, in such proceedings, the Tribunal may award costs. The section does not provide further guidance or prescription about the occasions for or conditions of exercise of that power.
[33] A jurisdiction given in general terms allows the Tribunal to make an order as to costs that is justified in the circumstances.[14] It is a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.[15]
[14] Oshlak v Richmond River Council (1998) 193 CLR 72 at 88.
[15] Latoudis v Casey (1990) 170 CLR 534 at 557.
[34] Accordingly an enabling Act, the QBSA Act, does, provide otherwise. As a result, the usual position as to costs in the Tribunal is displaced. That result is reinforced by other provisions dealing with the relationship between the QCAT Act and enabling Acts.
[35] Section 6(7) contemplates that an enabling Act may include provisions about matters that may add to, otherwise vary or exclude provisions of the QCAT Act dealing with such matters. They include provisions dealing with the conduct of proceedings for jurisdictions conferred by the enabling Act, including the practices and procedures and the Tribunal’s powers for the proceedings (s 6(7)(b)). Such provisions are referred to as modifying provisions (s 7(1)(b)).
[36] To the extent of any inconsistency between them, a modifying provision prevails over the provisions of the QCAT Act and the QCAT Act must be read, with any necessary changes, as if the modifying provision were part of it (s 7(2)(3)).
[37] There is a clear inconsistency between a provision that confers on the Tribunal a broad and general discretion to award costs (QBSA Act, s 77(1)(h)) and one which states that, unless otherwise provided each party must bear their own costs (QCAT Act, s 100).
[38] The learned Member concluded that there is no certainty that Mr Lyons, if successful, will be awarded his costs of these proceedings. That is true, even considering the broad general discretion conferred by the QBSA Act. However, it is clear the learned Member considered Mr Lyons would need to overcome a strong contra-indication against costs orders in section 100. That is not an onus Mr Lyons would bear in an application for costs at the conclusion of these proceedings. The discretion was exercised on a misapprehension of the relevant test.
Conclusion
[39] In the circumstances leave should be granted and the appeal should be allowed. Mr Lyons was not afforded natural justice in the way his application was determined. The learned Member’s discretion miscarried because she was misled about a relevant factor and applied an incorrect test regarding costs of these proceedings.
[40] Mr Lyons has indicated a desire to lead further material on his application. The proposed evidence is relevant to the factors the Tribunal must consider in determining his application. Given the ground upon which leave was granted to appeal the decision, that is a reasonable request.
[41] Rather than the Appeal Tribunal fashioning directions about Mr Lyons application without hearing from the parties, the matter is referred for directions at the earliest available date to be advised by the Registrar after consultation with the parties and with the Senior Member with responsibility for this jurisdiction.
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