Subramaniam v Natural Lighting Products Pty Ltd
[2022] QCAT 411
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Subramaniam & Anor v Natural Lighting Products Pty Ltd [2022] QCAT 411
PARTIES:
NEERMALA SUBRAMANIAM
LEELA SUBRAMANIAM(applicants)
v
nATURAL LIGHTING PRODUCTS PTY LTD (respondent)
APPLICATION NO/S:
BDL220-20
MATTER TYPE:
Building matters
DELIVERED ON:
12 December 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Acting Deputy President Brown
ORDERS:
1. Application for miscellaneous matters filed 15 July 2022 is dismissed.
2. Neermala Subramaniam and Leela Subramaniam have leave to file an amended claim in the form of an amended statement of claim.
3. Neermala Subramaniam and Leela Subramaniam must file in the Tribunal two (2) copies and give to Natural Lighting Products Pty Ltd one (1) copy of an amended statement of claim, by:
4:00pm on 22 December 2022
4. Natural Lighting Products Pty Ltd must file in the Tribunal two (2) copies and give to Neermala Subramaniam and Leela Subramaniam one (1) copy of a response to the amended statement of claim, by:
4:00pm on 27 January 2023.
5. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of further draft directions to progress the matter to a final hearing, including whether a conclave of the experts should be undertaken, within fourteen (14) days of the date of this decision.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL –
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITOY COURTS – ENDING PROCEEDING EARLY – SUMMARY DISPOSAL – SUMMARY JUDGEMENT FOR DEFENDANT OR RESPONDENT – STAY OR DISMISSAL OF PROCEEDINGS
Whether the tribunal has jurisdiction in respect of the dispute – whether the tribunal considers the claim to be frivolous, vexatious, misconceived, lacking in substance, or an abuse of power – whether the applicants conduct has unnecessarily disadvantaged the respondent
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 11A, s 32, s 47, s 48, s 61, s 62, s 64, s 77, Schedule 3.
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 48.
Attorney-General v Wentworth (1988) 14 NSWLR 481.
Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255.
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69.
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Applicants:
Robinson Locke Litigation Lawyers
Respondent:
Elliot & Harvey Lawyers
REASONS FOR DECISION
This proceeding has had a long and winding path through the Tribunal starting as a minor civil dispute before being transferred to the building list.
The respondent, Natural Lighting Products Pty Ltd (NLP) applies to have the claim by the applicants, Neermala Subramaniam and Leela Subramaniam (the Subramaniams) dismissed although it might be observed that the grounds relied upon are somewhat opaque.
Ground 1 – Jurisdiction
NLP says that the Tribunal does not have jurisdiction to decide the Subramaniams claim. NLP says that the claim exceeds $25,000.00. NLP says that claim ‘is outside the Tribunal’s jurisdiction pursuant to section 11A and Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
NLP’s submission is misconceived. It is not contentious that the dispute before the Tribunal, the subject of both the application and the counter-application, is a domestic building dispute. While the proceeding may have commenced as a minor civil dispute it has, as I have noted, been transferred to the building list.
The monetary jurisdiction of the Tribunal in deciding a domestic building dispute is unlimited.
The Tribunal has jurisdiction to decide the Subramaniam’s claim.
Ground 2 – s 47, Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Section 47 of the QCAT Act provides that the Tribunal may dismiss a proceeding if the Tribunal considers a proceeding or part thereof is:
(a)Frivolous, vexatious or misconceived; or
(b)Lacking in substance; or
(c)Otherwise an abuse of process.
NLP says that the Subramaniams claim is misconceived and lacks substance. This submission is based on the jurisdiction ground which I have rejected as misconceived.
NLP says that Subramaniams have frivolously or vexatiously conducted the proceeding. NLP also says that the Subramaniams have failed to file evidence to support their claim and that their claim is misconceived and cannot be substantiated.
Section 47(1)(a) of the QCAT Act refers to a proceeding that is frivolous, vexatious or misconceived. Section 48(1)(f) refers to a proceeding being conducted vexatiously.
A proceeding is vexatious if it is brought:
(a)with the intention of annoying or embarrassing the other party;
(b)for collateral purposes and not the purpose of having the court adjudicate on the issues to which they give rise;
(c)in circumstances where the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless.[1]
[1]Attorney-General v Wentworth (1988) 14 NSWLR 481.
A proceeding is frivolous if it serves no useful purpose and is otherwise lacking in seriousness or sense. A proceeding lacks substance if the Tribunal lacks jurisdiction or the matter is without a comprehensible legal foundation.
The terms ‘vexatious’ and ‘frivolous’ are usually used in conjunction and in the context of s 47(1)(a) should be construed thus.
In order to address the parties’ submissions it is necessary to say something about the Subramaniam’s claim and the history of the proceeding.
The parties entered into a contract for the installation of a glass skylight in the roof of the Subramaniam’s residential dwelling. The skylight is located above an internal atrium. The work was undertaken by NLP. The parties fell into dispute. NLP commenced proceedings for a minor civil dispute seeking to recover what it said was money due and owing for undertaking the work. The dispute having been identified as a building dispute; the proceeding was transferred to the building list. The Subramaniams (who were at that time the respondents) then filed a counter application. It was at this point that the roles of the parties changed. NLP failed to comply with the requirements of s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) before commencing the minor civil dispute proceeding. The Subramaniams had however complied with such requirements before filing their counter-application. Consistent with the objects of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal and quick, the Tribunal ordered that the counter application by the Subramaniam’s would continue as the application and the claim by NLP would continue as the counter-application. In this way, NLP was permitted to continue its claim rather than having to file a counter-application and incur a further filing fee. In the end result, the roles of the parties effectively reversed.
A chronology of the relevant events in the proceeding follows:
Date
Event
10 March 2021
Compulsory conference
13 May 2021
Directions hearing. Directions made for the parties to file statements of evidence:
Applicants’ evidence by 24 June 2021
Respondent’s evidence by 5 August 2021
20 July 2021
Directions made extending the time for the filing of the parties statements of evidence:
Applicants’ evidence by 4 August 2021
Respondent’s evidence by 18 August 2021
10 August 2021
Applicants file report by structural engineer
2 September 2021
Directions hearing. Directions made for applicants to file further statements of evidence by 23 September and respondent to file statements of evidence by 21 October 2021.
18 October 2021
Leave given for the parties to be legally represented.
Between 15 October 2021 and 7 December 2021
Series of six interlocutory applications filed by the parties.
13 January 2022
Various directions made including: applicants to provide access to the property for the purposes of an inspection by the respondent and its experts; production of various documents; exchange of lists of documents; applicants to file further statements of evidence by 4 March 2022; respondents to file further statements of evidence by 1 April 2022.
25 April 2022
Directions extending the time for applicants to file statements of evidence to 11 April 2022.
2 June 2022
Directions hearing. Applicants directed to file statements of evidence by 1 July 2022. Respondent to file statements of evidence by 15 July 2022.
1 July 2022
Applicants file further statement of evidence
15 July 2022
Application to dismiss filed by respondent.
1 September 2021
Applicants file further statement of evidence.
The applicants’ case
The Subramaniams assert a number of contractual breaches relating to what they say is defective building work undertaken by NLP:
(a)Removal of roofing tiles and structural timber resulting in instability in the atrium roof with the consequence that the skylight installed by NLP has insufficient fall causing water to pool on the skylight;
(b)Failure to adequately seal the frame around the skylight;
(c)Roof tiles left unstable;
(d)Gaps between flashing and existing roof tiles;
(e)In undertaking the installation of the skylight, roofing tiles were broken, and chipped and metal roofing tile clips removed or broken;
The Subramaniams assert that the roof structure is unstable, and that water is entering the atrium with resulting damage being sustained to the structure of the dwelling.
Before the Tribunal is a report by Luke Martinot. The report is brief. It is assumed Mr Martinot is a licensed roofing contractor.[2] Mr Martinot states: ‘… I believe flashing are (sic) functional and adequate, however I believe the seal between the glass and flashing is failing and is the cause of the water ingress. Contact installer.’
[2]The report is on letterhead ‘D & L Roofing’ and quotes a QBCC builders licence number.
Before the Tribunal is a report by Angelo Iancu, an engineer.[3] Mr Iancu opines that, at the time he undertook an inspection:
(a)the installation of the skylight was incomplete with visual signs of unfinished insulation and moisture proofing;
(b)there were signs of efflorescence pointing to water condensation/evaporation both inside the skylight void and on the walls inside the roof cavity;
(c)masking tape had been attached temporarily to the skylight installation however it did not prevent moisture penetration and was not a proper waterproof barrier;
(d)there were minor signs of water penetration on the ceiling cladding in the living room of the dwelling;
[3]Report dated 15 June 2020.
Mr Iancu further opined that the installation of the skylight was required to be completed and that it was ‘entirely possible’ that damage to roofing tiles was ‘inflicted or exacerbated’ at the time of the installation of the skylight. Mr Iancu made a number of recommendations in respect of further remedial works.
There is a second report by Mr Iancu before the Tribunal.[4] Mr Iancu identifies a number of what he refers to as ‘major defects’:
(a)Colorbond parapet flashings not bent and overlapped and sealed correctly;
(b)Flashings over existing hip tiles is overlapping the parapet flashing below minimal overlaps requirements;
(c)No anti-capillary breaks in the flashing.
[4]Report dated 22 September 2021.
Mr Iancu identifies a number of other defects:
(a)Inadequate pitch in the skylight;
(b)Rubber glazing seals incomplete allowing water ingress;
(c)Rusting of swarf/debris in colorbond evident requiring cleaning and treatment;
Mr Iancu makes a number of recommendations regarding remedial works the most significant of which is the removal of the skylight to be replaced with adequate pitch/fall.
There is also before the Tribunal a building inspection report by Colin Prestridge filed by NLP. Mr Prestridge opined:
(a)There was evidence of damage to the timbers forming the atrium which was historic;
(b)There was evidence of minor stains on the ceiling and cornice around the atrium likely to be historic;
(c)There was no visible evidence of water ingress on the internal walls of the atrium;
(d)There was no evidence of water ingress in the roof space;
(e)The installation of the skylight appeared to be a reasonably neat job;
(f)The ridge capping connections to the skylight unit should be folded underneath and not riveted to the side and sealed with silicon although the seal achieved was sound and water tight.
Before the Tribunal is a statement of evidence by the Subramaniams in which the various claims for the cost of rectification work are articulated. The statement attaches various quotes for works which accord largely with the recommendations contained in the report of Mr Iancu.
It is sufficient to observe, in light of the evidence to which I have referred, that the Subramaniams claim is not one so obviously untenable that it cannot possibly succeed or is manifestly groundless.[5]
[5]General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69.
I am satisfied that, on the evidence before the Tribunal, the Subramaniams have a clearly arguable case. The evidence of Mr Iancu regarding the building work undertaken by NLP and the evidence of the Subramaniams as to the cost of rectifications works is sufficient for me to conclude that the Subramaniams case could not be characterised as untenable or groundless. It is also apparent that there is a divergence of opinion between the parties’ experts as to whether the work undertaken by NLP is defective. The evidence must be tested at a full hearing and relevant factual findings made.
There is no basis for the dismissal of the applicants’ claim pursuant to s 47 of the QCAT Act.
Ground 3 – s 48, Queensland Civil and Administrative Tribunal Act 2009 (Qld)
NLP says that the Subramaniams have conducted the proceeding in such a way as to cause them unnecessary disadvantage and that the Subramaniams’ proceeding should be dismissed. NLP says that the Subramaniams have consistently failed to comply with Tribunal directions to file their statements of evidence.
The Subramaniams say that they have now filed all of the evidence upon which they intend to rely in the proceeding. I have earlier in these reasons referred to the applicants’ evidence. The Subramaniams seek to file an amended counter-application. NLP says a number of things about the proposed amended counter-application.
NLP says that the Subramaniams have not sought leave to file the amended document. That may be so, however the Tribunal must consider whether it is appropriate for an order to be made for the amended counter-application to be filed absent a formal application. A number of provisions of the QCAT Act are of relevance. By s 62(1) the tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. By s 64(1) the tribunal may, at any time in a proceeding, make an order requiring that a relevant document be amended. A relevant document includes an application and a response.[6] Such an order may be made on application by the party who filed the document or on the tribunal’s own initiative.[7] Finally, by s 61(1)(c) the tribunal may by order waive compliance with another procedural requirement under the QCAT Act, an enabling Act or the QCAT rules. When these provisions are read with s 3 and s 4 of the QCAT Act it is quite apparent that, where it is appropriate in the interests of justice and observing procedural fairness, formality should be eschewed and in circumstances such as these the requirement for a formal application to amend avoided.
[6]QCAT Act, s 64(4).
[7]QCAT Act, s 64(2).
The amended counter-application does not result in any significant change to the Subramaniams’ case. I accept the Subramaniams’ submission that the amendments to the document reflect the evidence of Mr Iancu and the evidence relied upon by the Subramaniams’ in respect of the cost of rectification works. Nothing in the amendments should take NLP by surprise. The Subramaniams have said that they do not intend to file upon any further evidence. If the Subramaniams’ are permitted to file the amended counter-application, NLP will be given the opportunity to file a response. In the circumstances, giving leave for the filing of the amended counter-application will not prejudice NLP nor delay the progress of the matter to a final hearing. Noting that the Subramaniams are the applicants, the amended document should be filed in the form of an amended statement of claim.
I turn now to a consideration of s 48(1)(a), s 48(1)(b) and s 48(1)(f) of the QCAT Act upon which NLP relies.
Relevant for present purposes, s 48(1) provides that a proceeding may be dismissed if an applicant acts in a way that unnecessarily disadvantages the respondent by:
(a)not complying with a tribunal order or direction without reasonable excuse (s 48(1)(a));
(b)not complying with the QCAT Act, an enabling Act or the rules (s 48(1)(b));
(c)vexatiously conducting the proceeding (s 48(1)(f)).
Although s 48 is not, unlike s 47, in the nature of a summary judgement power, the summary dismissal of a proceeding should be approached with great care. It is no small matter to deprive a party of the right to have their case determined by the tribunal.
In Bell Corp Victoria Pty Ltd v Stephenson [8] Ashley J said of the analogue of s 48 found in the VCAT Act:
[8][2003] VSC 255.
51. In my opinion, bearing in mind the submissions of counsel directed to the provision here under scrutiny, the subject matter, scope and purpose of the Act show that if the tribunal forms a belief concerning the matters required by s 78(1)(a) of the Act the following matters must be considered in the exercise of the discretion under subs (2):
·The subject matter of the belief formed by the tribunal for the purposes of subs (1).
·The nature of the power conferred by subs (2) in the context of the armoury of power conferred upon the tribunal by ss 75-77. By this I mean, particularly, that s 78(2) operates in circumstances which at least do not require that the proceeding be frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process; and which at least do not require that the circumstances demonstrate want of prosecution. Put another way, the subsection contemplates the making of an order with very serious consequences in circumstances that very probably would not fit the templates set up by ss 75 and 76. Whilst it can rightly be said that the creation of such a remedy in the situation contemplated by s 78(1) shows that an intention that orders be made in some cases where the situation exists, it should also be firmly concluded, in statutory context, that the remedy should be of last resort and not first resort.
·The requirement imposed upon the tribunal by s 97. That section should be considered to import the concept that, ordinarily, the interests of case management should not be employed so as to shut a party out of litigating its case. The ultimate aim of the tribunal, as much as of a court, must be the attainment of justice in respect of issues joined.
·The requirement imposed by s 98(1)(a), to the extent that a party should ordinarily be given an opportunity to be heard upon the merits. That opportunity is not absolute. It may be lost without breach of the rules of natural justice. But the consequence that the making of an order under s 78(2) will deprive a party of an opportunity to be heard upon the merits is surely relevant to exercise of the discretion whether to so order.
·The power to make costs orders conferred by ss 109(2)(3) and 78(2)(c). The last-mentioned, it appears, might be exercised even though no order is made under s 78(2)(a) or (b).
52. It may be that in a particular case the tribunal will consider some other matter to be relevant. It does not follow from the fact that only some matters must be considered that other matters are necessarily irrelevant. Other matters will only be irrelevant if they infringe an implied limitation on the factors to which regard may legitimately be held. Any such limitation must be found in the subject matter, scope and purpose of the statute.
The comments by Ashley J are of assistance in construing s 48 of the QCAT Act. It is first necessary to identify the actions of the party giving rise to the disadvantage to the other party. It is then necessary to consider whether those actions and any resulting disadvantage warrant the summary dismissal of the proceeding or whether some other order should be made. Dismissal of a proceeding pursuant to s 48(2)(a) should be viewed as a remedy of last resort.
In dealing with the NLP’s application I confine my consideration to the specific assertions by NLP regarding the application of s 48.
NLP says that the Subramaniams have failed to comply with the directions of the Tribunal made 2 June 2022 to file their statements of evidence by 1 July 2022. As I have observed, the Subramaniams say that they have now filed all the evidence upon which they intend to rely in the proceeding. Accordingly, there can be no ongoing disadvantage to NLP as contemplated by s 48(1)(a).
The submissions by NLP regarding s 48(1)(b) are much the same as the submissions relating to s 48(1)(a)(a) save that the complaint is that of a history of non-compliance by the Subramaniams with Tribunal directions. NLP also relies upon s 48(1)(b) in submitting that the Subramaniams claim is beyond the jurisdiction of the Tribunal. For the reasons I have given, the Subramaniams’ claim is within the jurisdiction of the Tribunal. As to the Subramaniams history of non-compliance with Tribunal directions, it cannot be gainsaid that there have been numerous instances of failure by the Subramaniams to file their statements of evidence. I accept that this is in part explained by what the Subramaniams say have been difficulties encountered by them in having third parties assist by providing reports, quotes for repairs and the like. Notwithstanding that the Subramaniams have demonstrated at times a somewhat pedestrian approach to the conduct of the proceeding, there is no ongoing failure to comply with Tribunal directions. Any past non-compliance with tribunal directions is certainly not of sufficient gravity in the context of disadvantage to NLP as would warrant the summary dismissal of the Subramaniams claim. NLP neither asserts nor demonstrates the sort of grave and irreparable prejudice that would justify an order pursuant to s 48(2)(b).
NLP says that the Subramaniams have conducted the proceeding vexatiously. The submissions do not elaborate on this assertion. The terms ‘vexatious’ and ‘oppressive’ should be assessed by reference to the quality of conduct of the applicant or the effect of that conduct on the respondent.[9]
There is no evidence to suggest that the Subramaniams have conducted the proceeding intending to annoy or embarrass NLP nor, and as I have found, in circumstances where the proceeding is hopeless.[10] In short, the Subramaniams conduct has not been vexatious.
[9]Attorney-General v Wentworth (1988) 14 NSWLR 481.
[10]Attorney-General v Wentworth (1988) 14 NSWLR 481.
Conclusion
The respondent’s application is refused. In addition to directions for the filing by the Subramaniams of an amended claim and the filing by NLP of a response, I will make directions for the parties to file and exchange further draft directions to progress the matter to a final hearing. The directions must address whether there should be a conclave of the experts.
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