McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors
[2014] QCATA 172
•9 July 2014
| CITATION: | McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors [2014] QCATA 172 |
| PARTIES: | McNab Constructions Australia Pty Ltd (Appellant) |
| v | |
| Queensland Building and Construction Commission Donovan Hill Pty Ltd Building Solutions Pty Ltd (Respondents) |
| APPLICATION NUMBER: | APL408-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 20 May 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM Member Howard |
| DELIVERED ON: | 9 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is allowed; 2. Orders 2 – 10 of the orders of the Tribunal dated 20 August 2013 are set aside; 3. The applications for costs of Building Solutions Pty Ltd, Thomson Kane Hydraulic Engineering Consultants Pty Ltd, and Donovan Hill & Associates Pty Ltd the proposed joinder parties are dismissed. |
| CATCHWORDS: | COSTS – PROPOSED JOINDER PARTY – where Tribunal refused to join parties to review proceeding – whether any basis for award of costs to non-party Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 9, s 26, s 33, s 34, s 36, s 39, s 40, s 42, s 100, s 102, s 105, s 114 Crowe v Bennett [1993] 1 Qd R 57 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Brett Codd of Counsel instructed by DibbsBarker represented McNab Constructions Pty Ltd |
| RESPONDENT: | Mr David de Jersey of Counsel instructed by Thynne & McCarthy represented Donovan Hill Pty Ltd Ms Sarah Trainor of Ferguson Cannon Lawyers represented Building Solutions Pty Ltd There was no appearance for Queensland Building and Construction Commission |
REASONS FOR DECISION
McNab Constructions Australia Pty Ltd (‘McNab Constructions’) sought to join multiple parties to review proceedings brought by it in the Tribunal. The Tribunal dismissed those applications for joinder. It subsequently made orders that McNab Constructions pay the costs of several of the proposed joinder parties, namely the costs of Buildings Solutions Pty Ltd; Thomson Kane Hydraulic Engineering Consultants Pty Ltd; and Donovan Hill & Associates Pty Ltd.
McNab Constructions has appealed the Tribunal’s orders for payment of costs on the basis of a question of law. McNab Constructions submits that as a matter of statutory construction the learned Tribunal Member erred in concluding that the joinder parties were parties to a proceeding within the meaning of the QCAT Act, and that it further erred in determining that it had jurisdiction to award costs to those entities who were non-parties.
Two of the proposed joinder parties namely Donovan Hill Pty Ltd and Building Solutions Pty Ltd have been joined as respondents in the appeal. They submit that the Tribunal had jurisdiction to make the costs orders.
The Tribunal’s decision
The Tribunal observed that other than provided in the QCAT Act or an enabling Act, parties to proceedings must bear their own costs: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 100. The Tribunal held that in this case the enabling Act (the then Queensland Building Services Authority Act 1991) did not provide for costs to be awarded in review proceedings.
The learned Member recognised that s 100 may be displaced under s 102 of the QCAT Act. It provides that the Tribunal may make an order requiring a party to the proceeding to pay all or some of the costs of another party, if the interests of justice require it.[1]
[1]QCAT Act s 102(1).
The Tribunal considered whether the proposed joinder parties were parties to the proceedings in respect of which a costs order could be made. The learned Member concluded that each of the proposed joinder parties was a party to a joinder application proceeding before the Tribunal. She held that the filing of a miscellaneous application seeking orders to join proposed persons was effectively the start of proceedings (under s 36 of the QCAT Act) against them. She considered that the Tribunal exercised, what she described as, its original procedural jurisdiction conferred by s 42 of the QCAT Act, rather than its review jurisdiction, in determining the joinder application.[2]
[2][2013] QCAT 749 at [26].
In essence, she was satisfied that the joinder application was ‘a proceeding within a proceeding and that the Tribunal has power to award costs in their favour’.[3] She made costs orders against McNab Constructions in favour of the proposed joinder parties.
What jurisdiction was the Tribunal exercising in determining the joinder application? Were the proposed joinder parties, parties to the proceeding?
[3]Ibid [17].
It is common ground that the proceeding before the Tribunal was a pending proceeding.[4] It is further common ground that this is not material to the determination of the issues on appeal.
[4]See QCAT Act, ss 244 – 245.
The legislative scheme
It is not controversial that as a matter of statutory construction, a provision must be construed in its context, within the Act as a whole.[5]
[5]See for example Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381.
Chapter 1 of the QCAT Act sets out the objects[6] and functions[7] of the Act and Tribunal respectively. In s 6, it provides for the relationship between the Act and enabling Acts.[8] An enabling Act is any other Act which confers original, review or appeal jurisdiction on the Tribunal[9] and may add to, vary or exclude functions in the QCAT Act.[10]
[6]QCAT Act s 3.
[7]Ibid s 4.
[8]Ibid s 6.
[9]QCAT Act, s 6(2). Subordinate legislation may also confer review jurisdiction: s 6(2)(b) but may not add to vary or exclude functions under the QCAT Act: s 6(9).
[10]Ibid s 6(3)–(9).
Chapter 2 of the QCAT Act is entitled ‘Jurisdiction and procedure’.
Chapter 2 Part 1 is entitled ‘Jurisdiction of the tribunal’. Section 9 provides that the Tribunal has jurisdiction to deal with matters which it is empowered to deal with under either an enabling Act or the QCAT Act.[11] The jurisdiction conferred on the Tribunal is original jurisdiction, review jurisdiction or appeal jurisdiction.[12] An enabling Act confers jurisdiction on the Tribunal to deal with a matter if it provides for an application, referral or appeal to the Tribunal about the matter.[13] The Tribunal may do all necessary and convenient things for exercise of its jurisdiction.[14]
[11]Ibid s 9(1).
[12]Ibid s 9(2).
[13]Ibid s 9(3).
[14]Ibid s 9(4).
Original jurisdiction is jurisdiction conferred by s 11 (minor civil disputes) or jurisdiction to decide a matter at first instance under an enabling Act.[15] Review jurisdiction is jurisdiction conferred by an enabling Act to review a decision of another entity.[16] Appeal jurisdiction is the jurisdiction conferred by an enabling Act or s 26 (to determine an appeal against a decision of the Tribunal as provided for in s 142) or under an enabling Act.[17] In each case, the Tribunal may exercise its jurisdiction if a person has applied to, or (as the case may be) referred the matter to, the Tribunal to exercise its original, review or appeal jurisdiction. [18]
[15]Ibid s 10.
[16]Ibid s 17.
[17]Ibid s 25.
[18]Ibid s 12, s 15, s 18, s 27.
Chapter 2 Part 2 of the QCAT Act is entitled ‘Practices and procedures’ and sets out general matters of practice and procedure. Chapter 2 Part 3 is entitled ‘Starting proceeding’. A person may apply to the Tribunal if the Act or an enabling Act provides for the Tribunal to deal with a matter.[19] A referral may be made to the Tribunal, if an enabling Act provides for it.[20] In particular, a proceeding starts when the Principal Registrar accepts an application or referral: s 36.
[19]Ibid s 33.
[20]Ibid s 34.
Chapter 2 Part 4 is ‘Parties to a proceeding’. Section 39 sets out persons who are parties to a proceeding in the Tribunal’s original jurisdiction: including, the applicant; a person in relation to whom a decision is sought by the applicant; and a person who is joined as a party to the proceeding under s 42. A person is a party to a review proceeding, inter alia, if the person is the applicant; the decision-maker of the reviewable decision; or is joined as a party to the proceeding under s 42.[21]
[21]Ibid s 40.
The Tribunal may, in its discretion, make an order joining a person as a party ‘to a proceeding’[22] in the circumstances set out in s 42. Section 42(1) provides that the tribunal may make an order joining a person as a party to a proceeding, if the Tribunal is satisfied of any one of three matters. The three possibilities provided for are if it concludes that, ‘the person should be bound by or have the benefit of a decision of the tribunal in the proceeding’; or ‘the person’s interests may be affected by the proceeding’; or it is otherwise desirable that the person be joined as a party to the proceeding.[23]
[22]Ibid s 42(1), emphasis added.
[23]Ibid s 42(1), emphasis added.
Chapter 2 Part 5, ‘Preliminary dealing with proceeding’, includes provisions about bringing an early end to proceedings; decisions by default; transfer of proceedings; and consolidation of proceedings.
Chapter 2 Part 6 ‘Other provisions about a proceeding’ sets out other general procedural powers of the tribunal including power to make interim orders injunctions, declarations and directions; provisions for holding compulsory conferences; mediations; hearings and costs. This Part contains the provisions set out in s 100 and s 102, which were discussed by the learned Member.
Some other powers regarding costs are provided in Part 6. The Tribunal may order a party’s representative to pay costs of the other party as compensation for unnecessary costs;[24] may order an intervener to pay costs of another party;[25] and in its Rules, may authorise the awarding of costs in other circumstances.[26] Section 114 provides that power to make a decision in a proceeding includes a power to impose conditions and make ancillary orders for achieving the purpose for which the tribunal may exercise its primary power.
[24]Ibid s 103.
[25]Ibid s 104.
[26]Ibid s 105.
The remaining chapters of the QCAT Act contain provisions about matters including requirements for reviewable decisions, establishment of the Tribunal and the Rules Committee, offences and contempt, confidentiality, and transitional provisions. These do not need to be discussed further for present purposes.
Construing the QCAT Act
Section 9 must be read as a whole and in the context in which it appears.
Having regard to the plain words of s 6 and s 9, it is apparent that proceedings may only be commenced in the Tribunal’s original, review or appeal jurisdiction. Section 9(4), providing for power to do all necessary things for the exercise of its jurisdiction, does not create a separate procedural jurisdiction within which things may be done. It provides for doing all things necessary and convenient for exercising jurisdiction. In context, that is in respect of the exercise of original, review and appeal jurisdiction as provided for.
Specific provision is then made in subsequent provisions for procedural powers necessary and convenient for exercising the Tribunal’s original, review and appeal jurisdictions, including making orders joining parties, interim orders, transferring proceedings, making directions, and holding conferences and hearings as discussed above.
This construction is reinforced by the plain words of s 42, which provides for a person to be joined as a party to a proceeding because the person should be bound by a decision in the proceeding; their interests may be affected by the proceeding; or for some other reason, it is desirable. Plainly, an application for joinder can only be made where there is a proceeding already on foot. Determination of a joinder application occurs in the (existing) proceeding in which it is brought. If a person is joined, it is as a party to a proceeding, that is, the (existing) proceeding in which the joinder application is brought.
Section 36, to which the learned Member referred in developing her reasoning, provides that a proceeding starts when the principal registrar accepts an application or referral. However, in context, s 33 and s 34 provide for when an application or a referral may be made and these sections refer to applications and referrals which initiate proceedings in the Tribunal. Therefore, it cannot have been intended by the legislature, that a new proceeding is started each time a party files any interlocutory application. Read in context, s 36 has no application to applications made within a proceeding, only to initiating applications and referrals in the Tribunal’s original, review and appeal jurisdictions.
Some reliance was placed on s 39(b) by Donovan Hill. It says that a person is a party to a proceeding in the tribunal’s original jurisdiction if the person is ‘a person in relation to whom a decision of the tribunal is sought by the applicant’. However, in context, s 39(b) only applies to a proceeding brought in the Tribunal’s original jurisdiction.
We do not accept that the Tribunal has ‘original procedural jurisdiction’. It may exercise its procedural powers only within its original, review and appeal jurisdictions following the start of proceedings in one of those jurisdictions. We are fortified in this finding by considering the logical consequences if an original procedural jurisdiction existed. If it did, persons otherwise not entitled to apply to the Tribunal in its original, review or appeal jurisdictions, could potentially make applications in its ‘original procedural jurisdiction’. Plainly, on any reading of the Act, this was not Parliament’s intention. The Tribunal has no jurisdiction under the QCAT Act to deal with applications or referrals which are not made in its original, review or appeal jurisdiction.
That being the case, the joinder applications here were brought within the proceeding commenced by McNab Constructions in the Tribunal’s review jurisdiction. Under s 40 of the QCAT Act, a person is a party if joined to the proceeding under s 42. In this instance, the Tribunal refused to join the proposed joinder parties whom McNab Constructions sought to join. Therefore, on the plain reading of s 40, the proposed joinder parties were not parties to the proceeding.
Was the Tribunal in error in awarding costs under s 102 of the QCAT Act?
Courts have consistently held that power to award costs (other than in the court of chancery) is a creature of statute and must be conferred expressly or by necessary implication.[27] Power to make all such other orders as the case requires, have not been considered to create a necessary implication.[28] A necessarily implication may not be readily implied.[29]
[27]Queensland Fish Board v Bunney [1979] Qd R 301 at 303; Crowe v Bennett [1993] 1 Qd R 57 at 61; McLean v Queensland Nursing Council [2001] 2 Qd R 403, 405; Chancellor Park Retirement Village Pty Ltd v Squire [2004] QDC 172 at pages 5-7.
[28]Queensland Fish Board v Bunney [1979] Qd R 301 at 303, 304.
[29]Chancellor Park Retirement Village Pty Ltd v Squire [2004] QDC 172 at pages 5 – 7.
Section 102 of the QCAT Act provides only for the making of costs orders requiring a party to pay costs of another party. There is no provision for payment of costs under s 102 to non-parties. It contains no power for the Tribunal to make an order requiring a party, in this case, McNab Constructions to pay costs of non-parties, that is, the proposed joinder parties. Having regard to the plain words of s 102, there is no basis upon which it could be said that a necessary implication arises that costs may be awarded to non-parties.
Therefore, we are satisfied that the Tribunal erred in law in making costs orders in favour of the non-parties, that is, the proposed joinder parties, pursuant to s 102.
We make the observation that there are other costs provisions as discussed above. However, none of those includes power to make orders for costs in favour of non-parties. Section 105 provides that the Rules may authorise the Tribunal to award costs in other circumstances. The Rules have so provided, although none of the rules are relevant here. None of these sections provides a source of power which would assists here.
Further, for completeness, we observe that at the hearing, the parties made submissions concerning the relevance, if any, of s 114 of the QCAT Act. McNab Constructions argues that the express provisions of ss 100 and 102 set out when costs may be awarded. It relies upon the general principle of statutory construction, generalia specialibus non derogant, that is, that later general provisions do not derogate from specific provisions and must be read subject to them. It maintains that ss 100 and 102 confine when costs may be awarded to the exclusion of s 114.
While making the observation that there are other costs provisions in addition to s 100 and s 102, we do accept that ancillary orders must be ancillary to an existing power to make orders. We accept that there is no existing head of power which assists.
We make orders allowing the appeal, setting aside the Tribunal’s orders for costs, and dismissing the applications of the proposed joinder parties for costs.
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