Moreton Island Development Group v Smith Development Pty Ltd

Case [2012] QCATA 15
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
Queensland Building Services Authority Act 1991, s 42
Queensland Civil and Administrative Tribunal Act2009, ss 7, 28, 28(3)(c), 29, 29(1)(a)(iii), 32(1), 43(1), 47(1), 50, 69, 70, 72(1)(b), 72(2), 133(6), 142, 146(d)
Queensland Civil and Administrative Tribunal Rules 2009, r 15
Uniform Civil Procedure Rules 1999, r 292

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
McAllister v NSW Branch, Australian Railways Union (1938) 37 AR (NSW) 424
Oberhardt v Department of Education, Employment and Workplace Relations (2008) FCR 157

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

  1. 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.

  1. 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…

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Details
AGLC
Moreton Island Development Group v Smith Development Pty Ltd [2012] QCATA 15
Case
[2012] QCATA 15
Decision Date

CaseChat Overview and Summary

The appeal in Moreton Island Development Group v Smith Development Pty Ltd concerns the jurisdiction of the Queensland Civil and Administrative Tribunal (QCAT) and procedural fairness. The original dispute arose from a claim by Smith Development Pty Ltd against Moreton Island Development Group (MIDG) in 2009. Following the Tribunal’s final decision in August 2010, Smith Development sought to renew the decision in December 2010 to include additional respondents, which QCAT granted in June 2011. MIDG subsequently appealed the renewal decision.

The primary legal issues addressed by the court were whether QCAT had jurisdiction to make the renewal decision when it was subject to appeal, and whether procedural fairness was maintained given that one party did not attend a compulsory conference. The court also had to determine if the Tribunal should have granted summary judgment due to the absence of the respondent at the conference.

The court found that QCAT did have jurisdiction to consider the renewal application under section 133(6) of the Queensland Civil and Administrative Tribunal Act 2009, as the section does not preclude the Tribunal from determining a prior renewal application. The court emphasised that the prohibition is directed at a party, not the Tribunal, and that the timing of the appeal relative to the renewal application is crucial. Given that Smith Development filed its renewal application before MIDG filed its appeal, the court concluded that QCAT was within its jurisdiction to hear the renewal application. Furthermore, the court held that procedural fairness was not compromised by the absence of MIDG at the conference, and that the Tribunal was not obligated to grant summary judgment in such circumstances. Consequently, the appeal against the renewal decision was dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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: 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.

Ratio Decidendi

Legal Principle Established

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