Mobile Building System International Pty Ltd v Hua
[2014] QCATA 336
•19 December 2014
| CITATION: | Mobile Building System International Pty Ltd v Hua [2014] QCATA 336 |
| PARTIES: | Mobile Building System International Pty Ltd (Applicant/Appellant) |
| v | |
| Koji Hua (Respondent) |
| APPLICATION NUMBER: | APL193-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 19 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is struck out for want of jurisdiction. |
| CATCHWORDS: | APPEALS – LEAVE TO APPEAL – WHERE APPEAL LIES – where applicant brought appeal proceedings APL572-13 against decision of the tribunal – where respondent brought application for security for costs in those proceedings – where security for costs granted and appeal proceedings stayed pending confirmation of monies being transferred – where no confirmation and monies not transferred – where applicant appealed interlocutory decision of QCAT appeal tribunal to QCAT appeal tribunal – whether appeal tribunal has jurisdiction to hear appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 9, ss 25 – 27, s 32, s 109, s 142, s 150, s 161, ss 165 – 167 Underwood v Department of Communities & Ors [2013] QCA 234 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Introduction
This matter has been in the tribunal for over two years. The applicant, Mobile Building Homes Pty Ltd (Mobile Building), was engaged by the respondent, Mr Koji Hua (Mr Hua) to build a duplex home. Due to the steep nature of the site, and an unexpected soil condition, Mobile Building varied the design of the development without the approval of Mr Hua, who subsequently, on 27 August 2012, terminated the building contract.
Mobile Building filed an application for payment of progress payments owed, variations, and interest, in the tribunal. Mr Hua filed a counterclaim. On 28 November 2013, the tribunal ordered that Mobile Building pay to Mr Hua $168,149.
Pursuant to section 142 of the QCAT Act, Mobile Building appealed against that decision to the appeal tribunal, asserting that the learned Member erred in law and fact in calculating the quantum of damages and the interest payable. Concerned for Mobile Building’s capacity to pay any costs order which might have resulted from that appeal, Mr Hua filed an application for security for costs in the appeal proceedings (APL572-13) under s 109 of the QCAT Act. That application was for security for costs of the appeal proceedings (not the earlier proceedings).
Sitting as the appeal tribunal in appeal proceedings APL572-13, on 3 April 2014, Senior Member Stilgoe OAM allowed the application for security for costs, and ordered that Mobile Building pay $24,526 into Mr Hua’s representative’s trust account by 1 May 2014. The learned Senior Member also ordered that the application for leave to appeal be stayed, pending confirmation that the security had been given. On 30 April 2014, Mobile Building filed an application for leave to appeal those orders made on 3 April 2014.
Part 8, Division 2 of the QCAT Act provides an avenue of appeal from decisions of the appeal tribunal to the Court of Appeal. Whilst the applicant builder has articulated grounds for appeal which relate to Senior Member Stilgoe OAM’s decision, the preliminary issue, not previously considered by this appeal tribunal, is whether such an application can be brought - whether the appeal tribunal has jurisdiction to hear the APL193-14, being an appeal from a decision of the appeal tribunal.
Both parties were invited to make submissions on the preliminary matter. Their respective arguments are summarised below.
Applicant’s submissions
Mobile Building asserts that the decision of Senior Member Stilgoe OAM, dated 3 April 2014 in APL572-13, is not a decision of the appeal tribunal, but of the tribunal itself. It says that the application for security for costs is an application at first instance and can not be converted into an appeal, and that it does not follow that Senior Member Stilgoe OAM constituted the appeal tribunal, simply because the matter type on the cover sheet of the reasons for decision was specified as “appeals”.
Mobile Building has also made submissions on the appeal tribunal’s jurisdiction, it appears, in the event that their first submission fails. It is useful to set out those sections which relate to the appeal tribunal’s jurisdiction, and to which Mobile Building has referred in its submissions:
25 Generally
The tribunal’s appeal jurisdiction is—
(a) the jurisdiction conferred on the tribunal by section 26; and
(b) the jurisdiction conferred on the tribunal by an enabling Act to hear and decide an appeal against a decision of another entity under that Act.
26 Jurisdiction for decisions of the tribunal
The tribunal has jurisdiction to hear and decide an appeal against a decision of the tribunal in the circumstances mentioned in section 142.
27 When appeal jurisdiction exercised
The tribunal may exercise its appeal jurisdiction if a person has, under this Act or an enabling Act, appealed to the tribunal against a decision for which it has appeal jurisdiction.
Note—
Part 8, division 1 provides for how an appeal is made under this Act andhow the tribunal’s appeal jurisdiction is exercised.
With reference to the above provisions, Mobile Building says that:
a)as Mr Hua’s application was not an appeal against the decision … in BDL271-12; nor was it an appeal against any decision whatsoever… this Miscellaneous Application was not a matter in which the appeal tribunal had jurisdiction.
b)The decision made on 3 April 2014, relating to security for costs, and staying the proceedings until such security was given, could not have been made by Senior Member Stilgoe OAM as the appeal tribunal.
c)Therefore, APL193-14 is an appeal brought under s 142 of the QCAT Act, against a decision of the tribunal regarding an application under s 109.
Further in support of the contention that any appeal against the decision of 3 April would correctly be made to the appeal tribunal, Mobile Building submits that only a final decision can be appealed to the Court of Appeal.
Mobile Building submits s 166 requires that the appeal tribunal is constituted for an appeal by 1, 2 or 3 judicial members, or, that the president choose suitably qualified members to constitute the tribunal for an appeal. Pointing to s 167 of the QCAT Act, it submits that no choice was made, as required by s 166, and, if a choice was made, the parties ought to have been informed of that choice.
In any event, Mobile Building says that if Senior Member Stilgoe OAM was chosen to constitute the appeal tribunal with respect to the application for security of costs, such a choice would have been:
a)a jurisdictional error, and therefore an error of law; and
b)a denial of natural justice
After reading ss 165 – 167 together, it submits that Senior Member Stilgoe OAM could not have appointed herself as the appeal tribunal, and, that on the face of the decision, Mobile Building reiterates that the decision of 3 April 2014 was a decision of the tribunal, not the appeal tribunal. Therefore, the appeal tribunal, it says, has jurisdiction pursuant to ss 26 and 142
Respondent’s submissions
Mr Hua has also made submissions on the point of the appeal tribunal’s jurisdiction to hear APL193-14. He says that Mobile Building is correct in submitting that the application for security for costs was not an appeal against the decision in BDL271-12. He identifies it as an interlocutory application brought in relation to Mobile Building’s own application for leave to appeal (APL572-13), and not an originating application.
In the main, the submissions on behalf of Mr Hua address Mobile Building’s substantive submissions (on the application for leave to appeal), and will not be expanded on here.
The security for costs decision
Mobile Building submits that the preliminary issue regarding the appeal tribunal’s jurisdiction to entertain APL193-14 is not a matter for consideration, as the decision made by Senior Member Stilgoe OAM on 3 April 2014, that Mobile Building pay security for costs in the appeal, was a decision of the tribunal, rather than the appeal tribunal.
The genesis of the dispute between the parties was the application for payment by Mobile Building in the tribunal in August 2012: BDL271-12. That matter was heard in the tribunal, exercising its original jurisdiction under s 11 and s 15 of the QCAT Act. Unsuccessful at first instance, Mobile Building appealed that decision to the appeal tribunal under s 142. Concerned as to Mobile’s capacity to pay costs on the appeal in the event that it was unsuccessful in the appeal proceedings, Mr Hua filed an application in those proceedings for security for costs in the appeal.
Security for costs applications are dealt with by the QCAT Act in s 109:
109 Security
(1)This section applies if, under this Act or an enabling Act, the tribunal may award a party’s costs for a proceeding.
(2) On the application of a party (applicant party) to the proceeding against whom a claim is made or an outcome or decision sought in a proceeding, the tribunal may make an order—
(a) requiring another party to the proceeding to give security for the applicant party’s costs within the period stated in the order; and
(b) staying the proceeding, or the part of the proceeding against the applicant party, until the security is given.
(3) If the security is not given within the period stated in the order, the tribunal may make an order dismissing the proceeding, or the part of the proceeding against the applicant party.
(4) In deciding whether to make an order under subsection (1), the tribunal may have regard to any of the following matters—
(a) the financial circumstances of the parties to the proceeding;
(b) the prospects of success or merits of the proceeding or the part of the proceeding against the applicant party;
(c) the genuineness of the proceeding or the part of the proceeding against the applicant party;
(d) anything else the tribunal considers relevant.
Applications for security for costs are not restricted to matters before the tribunal, as opposed to the appeal tribunal. Subsection (2)(a) of s 109 allows a party in a proceeding, against whom a decision is being sought, to bring an application for security for costs. Such an application is brought in the proceeding in which the security is sought.
‘Proceeding’ means a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal.[1]
[1]QCAT Act Schedule 3 Dictionary.
For an appeal, or a proceeding relating to an application for leave to appeal to the appeal tribunal, a reference in the QCAT Act to the tribunal includes a reference to the appeal tribunal constituted, or to be constituted, for the appeal or proceeding.[2]
[2]QCAT Act s 165(3).
This allows the appeal tribunal to deal with the appeal proceedings, relying on all the powers contained in the QCAT Act, and ensures that the appeal tribunal’s powers are not limited to those in Part 8 of the QCAT Act. It is not uncommon for the appeal tribunal, throughout appeal proceedings, to make decisions which are relevant to the conduct of the proceedings (leading up to the decision that will determine the substantive matter on appeal). These circumstances were observed by her Honour, Holmes JA in Underwood v Department of Communities & Ors.[3]
[3][2013] QCA 234.
In her Honour’s judgment, she noted that the applicant had appealed from decisions of the former President of QCAT, Alan Wilson J, sitting as the appeal tribunal. Those decisions were, like the decision the subject of this appeal, not ones which finally decided the subject matter of the appeal proceeding. They were decisions to grant a party leave to be represented; to refuse applications for leave to deliver interrogatories, to seek admissions of fact and for extensions of time within which to take steps in the tribunal.[4]
[4]At [3].
It follows that the power of the tribunal to award security for costs is not limited to the tribunal exercising its original or review jurisdiction, but includes the appeal tribunal in the context of the appeal.
The order, from which the appeal has been made, is an order of the appeal tribunal.
Appeals from the appeal tribunal
As the order was made by the appeal tribunal, a question arises whether an appeal from an order of the appeal tribunal lies to the appeal tribunal.
“The tribunal” means the Queensland Civil and Administrative Tribunal established under s 161 of the QCAT Act.[5]
[5]Schedule 3, Dictionary, QCAT Act. Section 161 QCAT Act provides “the Queensland Civil and Administrative Tribunal is established”.
“Appeal tribunal” is defined as the tribunal constituted, or to be constituted, under s 165 for the purpose of –
a) hearing and deciding an appeal against –
i) A decision of the tribunal; or
ii) …
b)deciding an application for leave to appeal against a decision mentioned in paragraph (a)(i) or (ii).[6]
[6]QCAT Act Schedule 3, Dictionary.
Jurisdiction conferred on the tribunal is:
a)Original jurisdiction; or
b)Review jurisdiction; or
c)Appeal jurisdiction.[7]
[7]QCAT Act s 9(2).
The tribunal’s appeal jurisdiction includes to hear and decide an appeal against a decision of the tribunal in the circumstances mentioned in s 142.[8]
[8]Ibid s 26.
Under s 142(1) a party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding.[9]
[9]If a Judicial Member constitutes the Tribunal in the proceeding no appeal lies to the Appeal Tribunal but, instead, to the Court of Appeal.
A party may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.[10]
[10]QCAT Act s 150(1).
A party to an appeal (contemplated by s 142) may appeal to the Court of Appeal against certain decisions (including the final decision) of the appeal tribunal in the appeal.[11]
[11]Ibid s 150(2).
The question arises whether a party to an appeal is allowed, under s 142, to appeal again to the appeal tribunal rather than to the Court of Appeal. For the reasons which follow, it is clear that s 142 can not be construed that way. An appeal to the appeal tribunal of QCAT can only be made under s 142.
142Party may appeal
(1)A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding.
Subsection 1 marks a clear distinction between the usage of the words “tribunal” and “appeal tribunal”. As was discussed above, although in a different context, s 165(3) assists with what is intended by the reference to the word ‘tribunal’ in s 142 QCAT Act. When providing that the word ‘tribunal’ includes ‘appeal tribunal’, the section refers to the “appeal tribunal constituted, or to be constituted, for the appeal”. The reference to “the tribunal” in s 142 above, does not include a previously constituted appeal tribunal.
Were that not the case, and such an appeal from a decision of the appeal tribunal were allowed, a party could continue to appeal (for an unlimited number of times) within the QCAT appeal structure, until the appeal were heard by a Judicial Member, in which case s 142 would not apply, and s 149(2) would allow an appeal to the Court of Appeal. Such a circumstance would be inconsistent with the important public interest in finality of litigation, and with the overarching principles of the QCAT Act: to have the tribunal deal with matters in a way that is economical, informal and quick; and to promote and enhance the quality and consistency of tribunal decisions.[12]
[12]QCAT Act ss 3(b) – (d).
It is only in a current, or prospective context that the expression “tribunal” includes “appeal tribunal”; s 142 does not allow an appeal to the appeal tribunal from a decision of the appeal tribunal.
This interpretation follows from the words used in s 142 and is consistent with the appellant structure as provided for in the QCAT Act, which allows that a party may appeal from a decision of the appeal tribunal to the Court of Appeal.[13]
[13]Ibid s 150.
The appeal tribunal does not have jurisdiction to hear an appeal from an appeal tribunal. Such an appeal, where the Act permits,[14] must be made to the Court of Appeal.
[14]In Underwood, Holmes JA elaborated on what constitutes a “final decision” for the purpose of s 150. See [4].
The result is that this appeals tribunal does not have jurisdiction to hear the appeal from the appeals tribunal constituted by Senior Member Stilgoe OAM, and so the application for leave to appeal is dismissed.
11