Macdonald v Queensland Building Services Authority - [2012] QCAT 425

CITATION:

Macdonald v Queensland Building Services Authority [2012] QCAT 425

PARTIES:	Jonathan Stewart Macdonald (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR292-11 / GAR019-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

K Buxton, Member

DELIVERED ON:

10 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application to join Mr Perkins and Ms Poppenk (the homeowners) as parties to this application is dismissed.

CATCHWORDS:

Application for review – application to join homeowners – whether parties should be joined under section 42 QCAT Act

Queensland Building Services Authority Act 1991, s 86
Queensland Civil and Administrative Tribunal Act 2009, s 42(1)

Coral Homes Queensland Pty Ltd v Queensland Building Services Authority [2011] QCAT 715
Smith v Queensland Building Services Authority [2010] QCAT 448

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

The background to these now consolidated proceedings is set out in my reasons for decision delivered on 31 May 2012 in the context of earlier interlocutory applications. The Queensland Building Services Authority (QBSA), whose decisions are under review in these proceedings, now applies to have the homeowners joined as a party to these proceedings.[1] The details of each application are as follows:
(a)GAR292-11 in which the builder Mr Macdonald seeks review of the BSA’s decision of 8 April 2010 to issue direction to rectify number 34686; and
(b)GAR019-12 in which Mr Macdonald seeks review of the QBSA’s decision of 15 December 2011, which is described as a decision terminating the contract between himself and the homeowners for the works at 24 George Street, Helidon.
[1] Application for joinder filed 16 July 2012.
The QCAT Act[2] provides a wide discretion for the joining of parties to a proceeding. A person may be joined if he or she should be bound by, or have the benefit of, a Tribunal’s decision; if the person’s interests may be affected or if it is otherwise desirable that the person be joined. Both the applicant builder, Mr Macdonald, and the homeowners, Mr Perkins and Ms Poppenk, oppose the application for joinder.
[2] Section 42(1) QCAT Act.
One of the principal reasons for opposition to the application, by both Mr Macdonald and the homeowners, is the further trouble and expense to which the existing applicant and the proposed new respondent homeowners would be put and the lack of any practical benefit in the joinder.[3]
[3]Homeowners’ submissions filed 3 August 2012, paragraph 18, applicant’s submissions filed 3 August 2012, final page.
The QBSA advances three branches to its argument in support of the application[4]:
(a)As the proceedings between the applicant and the homeowners relating to the termination was completed, then the joinder will assist in the resolution of the proceeding because (of) the potential estoppels created in that proceeding;[5]
(b)That not joining the homeowners invites further proceedings, which the respondent submits is inconsistent with the objects of the QCAT Act; and
(c)There are procedural difficulties in requiring the QBSA to effectively represent the homeowners’ version of events in circumstances whether respondent officers have not (no) objective way of determining the truth of the allegations made on each side (my annotations);
[4] QBSA’s submissions filed 16 July 2012, paragraph 11.
[5](See part (e) of the respondent’s previous strike out submissions in relation to proceeding GAR019-12).
Estoppels are created only by and between parties to particular proceedings. The QBSA and the builder will be bound by the outcome of this review proceeding and they are the only parties essential to its determination.
The increase in the length of a proceeding and the complexity of it, and the prospect of minimising the need for any further related proceeding, are two opposing factors which need to be balanced. Each of these factors are relevant to the Tribunal’s decision as to whether it is desirable that the homeowners be joined. Similarly, the practical benefit to the joinder must also be assessed. That is the exercise invited upon the Tribunal’s consideration of whether a person should be bound by, or have the benefit of, a decision of the Tribunal, (or, indeed whether that person’s interests may be affected by the proceeding, although the QBSA submits that is not relevant here).
The sensible question which this Tribunal ought answer in exercising its discretion under section 42 is, “why join?” This question was asked by Member Michael Howe in Coral Homes Queensland Pty Ltd v Queensland Building Services Authority[6] in a useful review of the Authority’s relevance to the question of joinder of parties. Member Howe relied, as I intend to, upon the decision of Senior Member Oliver in Smith v Queensland Building Services Authority[7] in which he considered that the proposed joinder:
“would result in unnecessary delays in costs to both parties without utility. It may also add to the complexity of the issues given the position of the applicant that the defects go to design rather than actual constructions. If the applicant does not propose to contest the direction to rectify on the basis submitted, then the Authority is at liberty to lead evidence from the representatives of (the proposed party) to contest this position if it chooses to do so.”
[6] [2011] QCAT 715 from paragraph [30].
[7] [2010] QCAT 448 at [39].
The third branch of the argument goes to the practicality of the proceedings. The QBSA submits that it cannot properly instruct its legal representatives as to matters of fact which took place and also submits that, as a regulator, it cannot advocate for one party’s views over the other.[8] With respect to the QBSA’s role as regulator, it has made a decision about the termination of a contract. That decision is under review. It is unlikely that the QBSA would have made such a decision without having sufficient information at the time. It is that information which would be relevant to these proceedings.
[8] Submissions of the QBSA filed 16 July 2012.
No relief is sought against the homeowners nor can it be. This is an application to review the QBSA’s decisions in respect of directions to rectify and determination of a contract. The homeowners’ claim against the fund is now complete and, if that is sought to be unravelled, that can only be done in a different tribunal of fact, outside the jurisdiction of QCAT.
The homeowners can give evidence and, indeed, in their submissions prepared by their solicitors they make this very point. This overcomes the concerns as to practicality submitted by the QBSA.
For the reasons set out above the application to join the homeowners as parties to these proceedings should not be acceded to and the application will be dismissed.