Moreton Island Development Group v Smith Development Pty Ltd
[2012] QCATA 15
•31 January 2012
| CITATION: | Moreton Island Development Group v Smith Development Pty Ltd [2012] QCATA 15 |
| PARTIES: | Moreton Island Development Group |
| v | |
| Smith Development Pty Ltd |
APPLICATION NUMBER: APL006 -11
APL216 -11
| MATTER TYPE: | Appeals |
HEARING DATE: 2 November 2011
HEARD AT: Brisbane
| DECISION OF: | Judge Fleur Kingham, Deputy President Ms Peta Stilgoe, Senior Member |
DELIVERED ON: 31 January 2012
DELIVERED AT: Brisbane
| ORDERS MADE: | 1. The decisions of the Tribunal made in BDL031-09 on 13 August 2010 and 2 June 2011 are set aside. 2. The matter is remitted to the Tribunal for rehearing by a Member other than a Member who has determined any application in that proceeding. 3. The matter is listed before Ms Stilgoe, Senior Member, for directions on 21 February 2012 at 11:30am. |
| CATCHWORDS: | APPEAL – ERROR OF LAW – JURISDICTION – whether the Tribunal has jurisdiction where there is non-compliance with procedural rules APPEAL – ERROR OF LAW – PROCEDURAL FAIRNESS –whether the applicant was afforded procedural fairness – where a party did not attend a compulsory conference – whether the Tribunal should have given summary judgement APPEAL – ERROR OF LAW – RENEWAL DECISION –where the name of the respondent was changed – whether the change could have been treated as a correction of an error – where the decision could not be renewed as it was subject to an appeal Acts Interpretation Act 1954, s 27B Annamunthodo v Oilfield Workers Trade Union [1961] AC 945 Forest v La Caisse Populaire de Saint-Boniface Credit Union Society (1962) 37 DLR (2d) 440 Johnson v Miller (1937) 59 CLR 467 Kioa v Minister for Immigration and Ethnic Affairs (1985) 189 CLR 550 Martin v Rowling & Anor [2005] QCA 128 Res 1 v Medical Board of Queensland [2008] QCA 152 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | L S Reidy instructed by Russell Creevey |
| RESPONDENT: | Mr Brad Smith for Smith Development Pty Ltd |
REASONS FOR DECISION
Moreton Island Development Group is an informal joint venture created to construct and manage a holiday house at Tangalooma. These appeals relate to two decisions made by different Members of the Tribunal in proceedings brought by Smith Development Pty Ltd against the companies that form MIDG, about a contract to construct a house on Moreton Island. For ease of reference, the respondent is referred to as MIDG.
The Tribunal made the first decision when MIDG failed to attend a compulsory conference. In its absence, the Member presiding at the conference made a decision requiring MIDG to pay Smith Development $194,478.63 and dismissing MIDG’s counterclaim, except in one respect (the final decision).
A Senior Member of the Tribunal made the second decision on an application by Smith Development to add as named respondents the three companies acknowledged in MIDG’s response as the companies that, collectively, form MIDG (the renewal decision).
MIDG has appealed both decisions. The grounds of appeal, in relation to each decision, raise questions of law. As such, leave to appeal is not required.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009, s 142.
At the appeal hearing, counsel for MIDG said the primary ground of appeal was the Tribunal did not have the jurisdiction to make either decision because Smith Development had not complied with QCAT Rule 16. That rule requires a person who has brought proceedings against an unregistered business name to identify the persons carrying on the business and to amend any documents filed to continue the proceedings in the name of the person carrying on the business.
Counsel suggested that, if the Appeal Tribunal found for his client on that ground, it was not necessary to address the other grounds of appeal. For reasons stated at [10] to [19], the Appeal Tribunal has found against MIDG on that point and, therefore, has considered the other grounds raised by MIDG.
MIDG has asked the Appeal Tribunal to set aside both the final decision and the renewal decision. It seeks declarations about the extent to which Smith Development can claim remuneration for its building work. It requests Smith Development’s claim is assessed, in accordance with those declarations, by the Tribunal constituted by a different Member than either of those who made the decisions subject to appeal.
Smith Development resisted the appeal but agreed that, if it succeeded, the matter should be remitted for rehearing. It opposed the declarations sought by MIDG.
The questions the Tribunal must address are:
(a) Did the Tribunal have jurisdiction to make the decisions?
(b) Should the Tribunal set aside the final decision?
(c) Should the Tribunal set aside the renewal decision?
(d) Should the Tribunal make the orders and declarations sought by MIDG?
Did the Tribunal have jurisdiction to make the decisions?
A party may commence a proceeding in QCAT against an unregistered business name, without first identifying the persons carrying on the business.[2] However, Rule 16 of the QCAT Rules imposes certain obligations on the applicant before proceeding further.
[2] Queensland Civil and Administrative Tribunal Rules 2009, rr 14, 15.
The applicant must take all reasonable steps to identify the persons carrying on the business. As far as practicable, the applicant must amend the documents filed in the proceedings so they are continued against the persons carrying on the business, not the unregistered business name. The applicant must not take a further step in the proceedings without complying with those requirements or securing the Tribunal’s leave.
The evident purpose of the rule is twofold: firstly to enable a party to commence proceedings before identifying the persons carrying on the business; and secondly to prevent the proceedings from progressing further, without the leave of the Tribunal, until that has been done.
MIDG argued this is a necessary pre-condition to the Tribunal possessing jurisdiction to deal with the matter. It submitted Smith Development had not fulfilled the pre-condition, or obtained the Tribunal’s leave and, therefore, the Tribunal had no jurisdiction to make either decision.
That argument raises a numbering of interesting questions, including: Is compliance with r 16 a jurisdictional fact? Can non-compliance with r 16 be cured? Would the Tribunal exceed its power to deal with a matter in the face of non-compliance with r 16? If the Tribunal may grant a party leave to proceed without first identifying the persons carrying on the business, what limits, if any, are there on the Tribunal’s jurisdiction to deal with the matter? Is a judgment against an unregistered business a nullity, because the name is a non-existent entity, if the persons carrying on the business are known and named in documents filed in the proceedings?
Ultimately it is not necessary to decide those questions because Smith Development applied to commence proceedings not against the unregistered business name but the companies that carried on the business MIDG.
The application identified the name of the respondent as Moreton Island Development Group on one page of the form.[3] However, in its application, Smith Development specifically identified the respondents as four duly incorporated companies, which it named, collectively known as MIDG.[4]
[3] Application filed 14 December 2009 p3.
[4] Application filed 14 December 2009 Part C [1.2].
Compliance with r 16 would not have presented as an issue in these proceedings had the Tribunal named the file consistent with the complete description Smith Development gave of the companies it wished to proceed against.
Smith Development may have contributed to the Tribunal’s administrative error by describing the respondent differently in different parts of the form. However, it did not seek to avail itself of the liberty of commencing proceedings against the business name before identifying its controlling entities, because it identified them from the outset.
In those circumstances r 16 simply did not apply and any question of non-compliance with it did not arise. There was an error in the description of the respondents, consequent upon the way in which the Tribunal recorded the information in its records and named the file. At any time the Tribunal could have corrected the record, as it did, once the matter was specifically raised by a party.
Should the Tribunal set aside the final decision?
Counsel for MIDG crystallised the remaining grounds of appeal in relation to the final decision into questions of procedural fairness:
(a) Is the Tribunal required to afford procedural fairness to a party before making a summary disposition in the nature of a default judgment?
(b) If it is, should the Tribunal have:
(a) Considered options other than summary determination;
(b) Given the absent party an opportunity to be heard;
(c) Given notice of its intention to determine the matter;
(d) Complied with the QCAT Act; and
(e) Given reasons for its decision?
(a) Was the Tribunal required to afford procedural fairness to MIDG?
The Appeal Tribunal can quickly dispose of the first question. The procedure adopted by the Tribunal is at its discretion, subject to the QCAT Act, any provisions in the Act that confer jurisdiction on the Tribunal and the QCAT Rules.[5] The Tribunal must act fairly and according to the substantial merits of the case.[6] The Tribunal must observe the rules of natural justice.[7] The Tribunal is not bound by the rules of evidence, and may inform itself in any way it considers appropriate. It must act with little formality or technicality and proceed as quickly as a proper consideration of the matters permits.[8]
[5] Queensland Civil and Administrative Tribunal Act 2009, s 28(1).
[6] Queensland Civil and Administrative Tribunal Act 2009, s 28(2).
[7] Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(a).
[8] Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(b)-(e).
It is axiomatic that the Tribunal is required to afford a party procedural fairness at every stage of a proceeding. Although a compulsory conference is not expressly included in the definition of proceeding,[9] it is an event the Tribunal may direct the parties to attend.
[9] Queensland Civil and Administrative Tribunal Act 2009, Schedule 3.
The question is answered by s 70 of the QCAT Act, which provides, relevantly, –
(3) A compulsory conference may be conducted in the way decided by the person presiding over the conference, which must be a way complying with this Act, an enabling Act and the rules.
(4) Sections 28, 29 and 32(1) apply to a compulsory conference as if
(a) the compulsory conference was a proceeding before the Tribunal.
It is section 28 which mandates the procedure summarised in [21] of these reasons. It follows that those incidents of procedural fairness expected in proceedings before the Tribunal apply to compulsory conferences.
(b) Was MIDG afforded procedural fairness?
The next question is whether the Tribunal afforded MIDG procedural fairness in proceeding to summary determination of the claim.
Although the order was issued some days later, the final decision was made at a compulsory conference on 13 August 2010 that was not attended by any representative of MIDG.
An earlier conference on 13 July 2010 was abandoned, it seems because either MIDG or both parties failed to appear. The Member scheduled for that conference directed both parties and their lawyers, if any, attend another conference on 13 August.
MIDG did not appear at the second conference, either in person or through its lawyer. At 8.05 that morning, the Tribunal received a facsimile from MIDG’s lawyers stating:
“We advise that we have not received instructions from the respondent as regards today’s compulsory conference and are unable to act. The respondent has been informed and is aware that a compulsory conference between the parties is scheduled to proceed today, 13 August 2010.”
At approximately 9.45 that morning, the learned Member spoke to MIDG’s lawyer who told her MIDG’s usual representative, Mr Erlich, was overseas and that another person, Mr O’Neill, was aware the compulsory conference was scheduled for that day and, as far as she was aware, he would be attending for MIDG. In fact he did not.
In those circumstances, there can be no complaint about the learned Member proceeding, despite MIDG’s non-attendance.
(i) Should the Tribunal have considered options other than summary judgment?
A Member presiding at a compulsory conference who is satisfied, as the learned Member was, that an absent party has been given notice of the conference, may proceed in their absence. The applicable provision, s 72, relevantly, provides –
72 Party fails to attend
(1) If a party to a proceeding does not attend a compulsory conference –
(a) the conference may proceed in the party’s absence; and
(b) if the person presiding is a member or an adjudicator, and all the parties present agree, the person may –
(i) make a decision adverse to the absent party and make any appropriate orders, including orders about costs.
MIDG argued the learned Member interpreted that provision as if it required her to make an adverse decision. That does not appear from the brief reasons given by the learned Member. At [8] of her reasons, the learned Member correctly identified s 72 as empowering her to make an adverse decision. Clearly, s 72 confers the power, but not the obligation, to make a decision adverse to a non-attending party. There is nothing in her reasons to suggest she considered she was required to do so. Nor is that the necessary inference to draw from the fact that she did not advert to other options in her reasons.
Unfortunately, the learned Member did not explain why she considered proceeding to a summary final determination was appropriate in the circumstances. This is a deficiency in the reasons but does not mean that she considered she had no other option open to her.
Whenever a member exercises a discretionary power conferred by the Act, they should consider whether it is either necessary or appropriate to do so in the circumstances. In this case, the matter had been case managed for some time. MIDG had filed its response. Both parties had filed their statements of evidence and supporting documentation. The Tribunal had directed them to exchange a list of issues. The matter had twice been listed for a compulsory conference. The case was in an advanced state of preparation.
Other factors, however, should be considered before the Tribunal proceeds to summary determination. These include the nature and scope of the dispute, whether it is appropriate to determine the matter without an oral hearing and whether the parties have had the opportunity to make submissions about the issues in contest.
Importantly, in this case there was a real and substantial contest. A decision by default was open.[10] MIDG had filed a response and counter-application and substantial material in support of both.
[10] Queensland Civil and Administrative Tribunal Act 2009, s 50.
Further, it would not have met the test for striking out or dismissing the counter-application: that it is frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process.[11]
[11] Queensland Civil and Administrative Tribunal Act 2009, s 47(1).
The decision made in favour of Smith Development was analogous to summary judgement in civil courts, however, this case did not meet the relevant test: no real prospect of successfully defending all or part of the claim and no need for a trial.[12]
[12] Uniform Civil Procedure Rules 1999, r 292.
There were contests on the facts that required findings, at least in part, of issues of credit. MIDG also raised a defence based on the application of section 42 of the Queensland Building Services Authority Act 1991, which deals with what remuneration an unlicensed builder may claim. If successful, that argument presents an answer to a large part of the claim made by Smith Development.
This is not to say that the Tribunal could not have determined the matter without an oral hearing. However, while the parties had filed their material, they had not had the opportunity to make submissions to the Tribunal about the evidence or about the factual and legal disputes.
There were other courses open to the learned Member. One was to issue directions notifying that the matter would be determined without an oral hearing and providing a timetable for the parties to provide submissions. As well as signifying the Tribunal’s intention and providing an opportunity to participate, albeit in writing, in the final hearing, this course would have enabled either party to seek other orders if they objected to that procedure. Given there was no suggestion of particular urgency and there were a number of factual and legal issues that would have been the better course to adopt.
(ii) Should the Tribunal have given notice of its intention to determine the matter and given the absent party an opportunity to be heard?
Although framed as separate questions by counsel for MIDG, they address the same issue, MIDG’s opportunity to participate in a process that would result in a final determination of the application and counter claim.
MIDG had notice of the conference. Moreover, the Tribunal had ordered MIDG to attend it, either in person or through its lawyer. MIDG’s complaint is with the nature of the notice. It argued the Tribunal gave notice of a compulsory conference, not the potential consequence that a final decision might be entered if it did not attend the conference.
The Tribunal Notice did give some information about the potential consequence of non-attendance. It stated that, if a party failed to appear, the conference may proceed and the person presiding over the conference may make orders.
The Notice also recited the purposes of a compulsory conference:
(a) To identify and clarify the issues in dispute in the proceeding;
(b) To promote a settlement of the dispute the subject of the proceeding;
(c) To identify the questions of fact and law to be decided by the tribunal;
(d) If the proceeding is not settled, to make orders and give directions about the conduct of the proceeding; and
(e) To give orders and make directions the person presiding over the conference considers appropriate to resolve the dispute the subject of the proceeding.[13]
[13] Queensland Civil and Administrative Tribunal Act 2009, s 69.
MIDG submitted that, in the context of those purposes, a party could not be expected to appreciate that the order that might be made in their absence at a compulsory conference could be a final decision.
That submission has some force given the form of the notice given in this case. In the main, the purposes of the compulsory conference indicate resolution by agreement or preparation for determination. Although purpose (e) hints at it, the purposes do not clearly advert to the power conferred on the Tribunal to make an adverse decision if a party does not appear.
Notice to the parties is an incident of procedural fairness with roots in the right to be heard. The importance of notice is acknowledged by s 72(2) which constrains a member from exercising the power to make an adverse decision, unless satisfied the absent party has been given notice of the conference.
Unless accurate and adequate notice is given, the right to be heard may be illusory.[14] The purpose of giving notice is to inform a party about an important step in the proceedings. Although the Act does not prescribe the form of notice, it follows from the purpose of giving notice, that it should inform a party, also, of the potential consequences if they do not participate in the conference.
[14] Johnson v Miller (1937) 59 CLR 467 at 487; Kioa v Minister for Immigration and Ethnic Affairs (1985) 189 CLR 550 at 582.
Notice will not be adequate if the party has not been informed that a decision will (or might) be made at the time and place notified.[15] Although in this case MIDG was legally represented, adequate notice is fundamental in a jurisdiction in which parties are, generally, expected to be able to represent themselves.[16]
[15] Annamunthodo v Oilfield Workers Trade Union [1961] AC 945 at 955; Forest v La Caisse Populaire de Saint-Boniface Credit Union Society (1962) 37 DLR (2d) 440; McAllister v NSW Branch, Australian Railways Union (1938) 37 AR (NSW) 424.
[16] Queensland Civil and Administrative Tribunal Act 2009, s 43(1).
The Tribunal’s pro forma notice does not adequately inform parties of the potential consequences of failing to attend. Arguably the notice is not only inadequate but is also misleading, because it states a Member may make an order but does not signal their power to make a final decision[17].
[17]Queensland Civil and Administrative Tribunal Act 2009, Schedule 3, definitions of decision and final decision.
In this case, the learned Member satisfied herself that MIDG had notice of the conference. However, she did not alert MIDG’s solicitor to the prospect that, if a representative did not appear she might finally determine the matter.
Further, on the scant reasons given by the learned Member, it is not clear whether she considered whether the notice given to MIDG was sufficient to alert it to the course she embarked upon.
MIDG was denied procedural fairness in the way in which a final decision was entered in this case.
(c) Should the Tribunal have complied with the QCAT Act?
The power to make an adverse decision is constrained. All parties present must agree that the Member should make the decision.[18] There is no evidence on the file and no reference in the reasons to Smith Development’s representative agreeing to the learned Member deciding the matter. Smith Development did not make a submission to the Appeal Tribunal that it had given consent. In the absence of evidence, the Appeal Tribunal cannot be satisfied that it was obtained.
[18] Queensland Civil and Administrative Tribunal Act 2009, s 72(1)(b).
(d) Should the Tribunal have given reasons for its decision?
If the Tribunal makes a final decision and does not give written reasons for it, the parties are entitled to request reasons.[19] Here, the learned Member gave brief written reasons with her written decision.
[19] Queensland Civil and Administrative Tribunal Act 2009, s 7.
There is helpful statutory guidance about what is expected in a statement of reasons:
If an Act requires a tribunal…to give written reasons for the decision…the instrument giving the reasons must also:
(a) set out the findings on material questions of fact; and
(b) refer to the evidence or other material on which those findings were based.[20]
[20] Acts Interpretation Act 1954, s 27B.
The Tribunal must take all reasonable steps to ensure that each party to a proceeding understands its decision.[21] Giving concise reasons expressed in plain language advances that objective. However, brevity cannot come at the expense of communicating why a party’s claim has, or, perhaps more importantly, has not been accepted.
[21] Queensland Civil and Administrative Tribunal Act 2009, s 29(1)(a)(iii).
It is an error of law if the reasons given for a decision fail to disclose the manner in which the Member arrived at the decision.[22] It is also an error of law to fail to state the critical findings on which a decision is based and how those findings were reached.[23]
[22]Oberhardt v Department of Education, Employment and Workplace Relations (2008) FCR 157.
[23] Res 1 v Medical Board of Queensland [2008] QCA 152.
The learned Member dismissed MIDG’s counter-application, except in one minor respect, but did not explain why. Further, she did not state her conclusion on MIDG’s defence that, in large part, Smith Development could not recover its claim because it was an unlicensed builder. The failure to disclose the process of reasoning to the conclusion that the counter-application should be dismissed and that Smith Development had made out its claim, constitutes an error of law.[24]
[24] Martin v Rowling & Anor [2005] QCA 128 [3], [80].
Should the Tribunal set aside the renewal decision
On 2 June 2011, on the application of Smith Development, the Tribunal changed the name of the respondent from MIDG to Maybray Pty Ltd, Jan-Mar Pty Ltd and ESR Management Pty Ltd. They are the three companies acknowledged in the response as carrying on the business MIDG.
The learned Senior Member who made that decision accepted Smith Development’s application as one to renew the final decision. This is a process available to a party who is experiencing problems enforcing the Tribunal’s final decision.
Given the Appeal Tribunal’s finding that Smith Development sought to proceed against the companies standing behind MIDG from the outset, the Member could have treated the application as one to correct a material mistake in the description of a person mentioned in the decision.[25]
[25] Queensland Civil and Administrative Tribunal Act 2009, s 135(1)(c).
The effect of allowing the appeal against the final decision is that the decision to renew the final decision must also be set aside.
It is worth making some observations, though, about the primary submission in relation to the renewal decision: that the Tribunal could not renew the final decision because it was under appeal.
The relevant provision is s 133(6) of the QCAT Act. It states:
(6) A party can not make an application under this section in relation to a final decision the subject of an appeal, or an application for leave to appeal, under Part 8. (emphasis added)
The first point to note is that the subject of the prohibition is a party, not the Tribunal. This directs the enquiry to the state of affairs at the time a party makes an application to renew, not when the Tribunal comes to deal with it.
Section 133(6) is not directed to the Tribunal. It does not expressly preclude the Tribunal from determining an application to renew made before but heard after an appeal is filed.
The apparent purpose of the provision is to avoid duplicity of Tribunal processes in relation to a decision that is subject to appeal. That does not necessarily mean, though, that the respondent to a renewal application can defeat it by filing an appeal. That would be the effect of interpreting s 133(6) in the way contended for by MIDG.
The decision under appeal was made on 6 September 2010. Three and a half months later, on 21 December 2010, Smith Development filed its application to add the companies’ names to the decision. A fortnight later, on 4 January 2011, MIDG filed its application to appeal.[26]
[26]In the interim, MIDG had unsuccessfully applied to reopen the proceedings. The decision on that application was made on 6 December 2010.
Had it been intended that filing an appeal would always preclude the Tribunal from determining an application to renew, regardless of the order in which the applications were made, that could easily have been stated. All that would be required is for s 133(6) to provide that the Tribunal may not renew any decision that is subject to appeal.
In effect, that is how MIDG has asked the Tribunal to interpret s 133(6). That is not the language used. The ordinary meaning of the words used in s 133(6) does not prevent the Tribunal from determining a prior application to renew. The purpose and context of the provision does not require a different interpretation.
On the interpretation favoured by the Appeal Tribunal, the learned Senior Member was able to renew the decision. In deciding whether to exercise her discretion to do so, the learned Senior Member referred to the appeal. Evidently enough, she considered whether renewing the decision would subvert arguments raised on appeal. Specifically, she said the argument that the decision was a nullity because of non-compliance with Rule 16, was a matter for determination on appeal.
The renewal decision is set aside, because, on appeal, the final decision has been set aside. Had that not been the outcome of the appeal against the final decision, the renewal decision would have stood.
Should the Tribunal make the orders and declarations requested by MIDG?
The final decision should be set aside. The Tribunal erred in proceeding to finally decide the matter in the circumstances of this case, including the nature of the notice given to MIDG and the other factors that militated against summary determination. The Tribunal also erred in providing inadequate reasons for the decision to proceed in that manner and for the decision on the merits of the claim. The renewal decision, consequently, should be set aside.
The parties agreed the matter should be reheard. It is appropriate the Tribunal is constituted by a Member who has not formerly decided any application in the proceeding.
The final matter to be determined is whether the Appeal Tribunal should make the declarations MIDG has asked for or reserve the relevant question to the rehearing. It is open to the Appeal Tribunal to do both but this is a matter for the Tribunal’s discretion.[27]
[27] Queensland Civil and Administrative Tribunal Act 2009, s 146(d).
The declarations arise from MIDG’s argument that Smith Development was an unlicensed builder and, as such, may only recover amounts for the items specified in s 42 of the Queensland Building Services Authority Act 1991. In summary, that excludes any item relating to the supply of labour by the unlicensed builder or which represents a profit or direct or indirect benefit to it.
If MIDG succeeds on its argument that Smith Development’s claim is so constrained, the potential award to Smith Development would be substantially reduced. Although the matter was in an advanced state of preparation, it was determined before the Tribunal had confirmed the parties had filed all relevant evidence and before they had the opportunity to make submissions to the Tribunal.
Smith Development was represented at the appeal hearing by its Director, Mr Brad Smith, who is not legally qualified. MIDG gave him notice of its intention to seek declarations about the status of Smith Development as an unlicensed builder. Mr Smith made certain statements about the role of the architect who managed the project in drawing up the contract and about his intentions about the contract given he held the license personally. There may well be further evidence that Smith Development might lead in relation to this point or other steps that it would take, after obtaining legal advice about it.
The Appeal Tribunal will not make the declarations sought by MIDG at this stage of the proceedings. The decision on the issue has major implications for Smith Development’s claim. At the appeal hearing Smith Development was not legally represented and MIDG was.
This matter came on appeal after a summary determination. Although the matter was well advanced in its preparation for hearing, the Tribunal had not considered whether all relevant material had been disclosed to enable it to decide the proceeding with all the relevant facts.[28]
[28] Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(c).
MIDG’s conduct in the original proceedings was dilatory to the disadvantage of Smith Development in consequent delay and cost. The Appeal Tribunal is not minded to exercise discretion in its favour in all the circumstances.
At the appeal hearing the possibility of a further conference was raised with the parties. Both indicated their willingness to engage in a conference and raised no objection to Ms Stilgoe presiding, given her familiarity with the matter as a member of the Appeal Tribunal. Since the hearing, Ms Stilgoe has been appointed as a Senior Member of the Tribunal, with responsibility to manage the building list matters. Given the change of status and the lapse of time since the hearing, it is more appropriate to list the matter before Ms Stilgoe so she may hear from the parties before making directions about the rehearing.
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