Surace v Rita Commisso Enterprises Pty Ltd
[2011] QCATA 271
•21 September 2011
| CITATION: | Surace v Rita Commisso Enterprises Pty Ltd and Anor [2011] QCATA 271 |
| PARTIES: | Dominic Surace (Appellant) |
| v | |
| Rita Commisso Enterprises Pty Ltd (First Respondent) | |
| Body Corporate for Acacia Lodge Hostel Community Titles Scheme 25755 (Second Respondent) |
APPLICATION NUMBER: APL051-11
| MATTER TYPE: | Appeals |
HEARING DATE: 19 September 2011
HEARD AT: Brisbane
| DECISION OF: | Kerrie O’Callaghan, Senior Member Peta Stilgoe, Acting Senior Member |
DELIVERED ON: 21 September 2011
DELIVERED AT: Brisbane
ORDERS MADE: Appeal dismissed. The orders of the Specialist Adjudicator dated 24 December 2010 are confirmed.
| CATCHWORDS: | BODY CORPORATE – where application for declarations about exclusive use – where specialist adjudicator made orders that there was no right of exclusive use – whether finding in reaching decision was in error – whether appellant could appeal – whether appellant a person aggrieved by order – whether finding of fact a decision or order PROCEDURE – where application for leave to appeal filed late – whether grounds for extension of time Queensland Civil and Administrative Tribunal Act 2009, s 61 Fox v Percy (2003) 214 CLR 118 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr A C Gordon, Affinity Lawyers |
| FIRST RESPONDENT: | S Blaxland of Counsel |
| SECOND RESPONDENT: | No appearance |
REASONS FOR DECISION
This appeal is the latest episode in a long running dispute. Mr Surace is the owner of a lot in the Acacia Lodge Hostel. Rita Commisso Enterprises Pty Ltd (“Commisso”) is the resident manager and letting agent. On 24 December 2010, the Specialist Adjudicator determined that exclusive occupation authorities granted to Commisso by the residential management agreement and/or the letting agreement were void and of no legal effect. Not content with this victory, Mr Surace has appealed to the tribunal, seeking an order that paragraph 37 of the Specialist Adjudicator’s decision “was in error and is dismissed”.
There are two preliminary issues to be determined:
a) Whether the tribunal should exercise its discretion to allow this appeal to be filed out of time?
b) Whether Mr Surace is an “aggrieved person” within the meaning of s 289 of the Body Corporate and Community Management Act 1997?
Extension of time
Section 290(1) of the BCCM Act states that an appeal must be started within 6 weeks after the aggrieved person receives a copy of the order appealed against. Mr Surace received the decision on 4 January 2011, so any appeal should have been filed by 15 February 2011.
On 14 February 2011, Mr Surace’s lawyers attempted to file the application by facsimile[1] pursuant to rule 24 of the Queensland Civil and Administrative Tribunal Rules 2009. The tribunal refused to act on the facsimile and called for the original documents. The original documents were forwarded by letter dated 18 February 2011 and the registry processed the documents on 22 February 2011.
[1] Exhibit ACG1 to the affidavit of Mr Gordon sworn 18 September 2011.
A document is not filed until the registrar records the document and stamps the tribunal’s seal on it[2]. The registrar may refuse to file a document if it does not comply with the QCAT Rules.[3] It appears that the registrar refused to accept the application because of the requirements of rule 29(3) which requires a party to file the original plus 3 copies. There is clearly an anomaly between rules 24 and 29. Fortunately, we do not have to resolve that anomaly here. It is enough for our purposes that Mr Surace attempted to file the application within time but was not successful in that attempt.
[2] Rule 31(1).
[3] Rule 32(1).
Section 61 of the Queensland Civil and Administrative Tribunal Act 2009 provides that the tribunal may extend a time limit fixed for the start of a proceeding by an enabling Act unless it would cause prejudice or detriment that cannot be remedied by an appropriate order for costs of damages. Commisso has not been able to point to any prejudice or detriment. Counsel for Commisso did submit, however, that: six weeks was a long time in which to decide whether or not to appeal; this dispute had been on foot for a long time; further extending the time for the filing of the application did not fit with the tribunal’s philosophy of dealing with matters in a way that is “accessible, fair just, economical, informal and quick”[4]; and that there should be finality to litigation.
[4] Section 3(b) QCAT Act.
It is true that there should be finality to litigation because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[5] It is also true that the tribunal has a mandate to ensure that disputes are dealt with in a timely way and with the effective use of resources.[6] That mandate must be balanced against procedural fairness. Given the short delay, the attempt to file within time and that Commisso cannot point to any prejudice or detriment, we consider it appropriate to extend the time for filing of the application for leave to appeal to 22 January 2011.
Is Mr Surace an aggrieved person?
[5] See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
[6]AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151.
Section 289(2) of the BCCM Act gives a right of appeal to an aggrieved person. There is no dispute that Mr Surace is aggrieved. The real question is whether, pursuant to s 289(1)(c), he is aggrieved by the Specialist Adjudicator’s order.
In his reasons for decision, the Specialist Adjudicator has a heading ORDERS. Following that heading, paragraph 56 is a conclusion of law that:
…each of the occupation authorities in the RMA and the LA are void for non-compliance with s.89 of the Accommodation Module.
The Specialist Adjudicator’s orders commence at paragraph 57. He: ordered that clauses of the Resident Manager’s Agreement and Letting Agreement that purport to provide a right to exclusive occupation were void and of no legal effect; dismissed claims for final relief made by Commisso in its application dated 6 February 2007; and made directions about submissions on costs.
Mr Surace submits that the Specialist Adjudicator’s finding at paragraph 37 of his reasons for decision is also an order within the meaning of the BCCM Act. That paragraph reads:
Accordingly, I construe clause 2(a) of the Letting Agreement as requiring the Letting Agent to conduct its business as a real estate agent for the letting of lots and to provide all associated services which in this Agreement would include the provision of meals for lot owners who require that service.
In support of the argument that this finding was a decision or order, the tribunal was referred to the decision of Chief Justice Mason in Australian Broadcasting Tribunal v Bond[7]:
My view is more in accord with the tentative opinion expressed earlier by Ellicott J. in Ross v. Costigan when he said that "it may well be that the word 'decision' means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person". However, I would not wish for myself to place emphasis on the words "of itself" in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.
[7] (1990) 170 CLR 321 at [35].
There are other paragraphs of his Honour’s decision that favour a contrary view. The Chief Justice distinguished between intermediate determinations of a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision (which are reviewable decisions)[8] and findings which are no more than a step in the reasoning on the way to a determination[9] (which are not reviewable decisions). His Honour determined[10]:
… in ordinary circumstances, a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than a step along the way to an ultimate determination.
[8] At [38].
[9] At [39].
[10] At [43].
As Judge Rackemann identified[11], the questions for the Specialist Adjudicator of whether an occupation authority had been validly granted under s 89 of the Accommodation Module required a number of questions to be answered. The answers to those questions were steps along the way to the Specialist Adjudicator’s final determination. The BCCM Act does not require a determination of these questions as a precondition to the Specialist Adjudicator making the orders that he did. Further, Judge Rackemann’s list of questions did not include an examination of what the Letting Agreement required of the Letting Agent.
[11] Surace v Rita Commisso Enterprises Pty Ltd and Anor [2009] QDC 198 at [11].
On balance, we consider that paragraph 37 of the Specialist Adjudicator’s decision is not an order. Mr Surace is not aggrieved by the orders that the Specialist Adjudicator made, only by one of the findings made in the course of reaching his determination and making those orders. Therefore, Mr Surace is not a person aggrieved by the order within the meaning of s 289(1)(c) of the BCCM Act.
Error of law
For completeness, we should comment on the balance of Mr Surace’s submissions to the tribunal.
Mr Surace says that the Specialist Adjudicator’s finding in paragraph 37 was an error of law because there was no evidence before him:
a) That lots in the scheme were offered for people of old age or invalid pensioners who need additional living assistance.
b) To support a conclusion that the intention of clause 2(a) was that the letting agent would provide to lot owners meals from the kitchen in the Scheme.
c) To support a finding that clause 2(a) “associated services” included the provision of meals from the kitchen in the Scheme.
d) To allow the Specialist Adjudicator to depart from Judge Rackemann’s direction that the content of the services would depend upon what was commonly rendered by a real estate agency in 1998.
We agree that the Specialist Adjudicator may have been in error in his finding. We have already determined that it is simply a finding on a matter which is a step in the reasoning process. It does not affect the validity of the Specialist Adjudicator’s final determination.
Stare Decisis
Mr Surace also submits that the Specialist Adjudicator departed from a decision of the District Court, being a Superior Court of Record, without grounds or proper reasons.
The District Court is a Superior Court of limited jurisdiction[12] but it is not a Superior Court of Record. Nevertheless, the comments of Justice French[13] (as he then was) should not be ignored and tribunals and adjudicators should not depart from the decision of a District Court Judge without very good reason.
[12] Day v R (1984) CLR 475 at [6].
[13] Federal Commissioner of Taxation v Salenger (1988) 81 ALR 25 at 34
Mr Surace’s submissions refer to paragraph [34] of Judge Rackemann’s reasons for decision to support a contention that the Specialist Adjudicator’s finding was contrary to the Judge’s determination. In fact, it should be a reference to paragraph [37], which does not go as far as Mr Surace suggests. The telling comment from his Honour appears at [37](c)(iii):
My attention was not directed to any evidence, submission or finding as to what, at the time, was commonly rendered in connection with such an agency.
His Honour was not stating, as a fact or a principle of law that the Letting Agreement could not include the provision of catering and laundry services; he was stating that it was unlikely unless there was evidence to the contrary, none of which he had seen. His Honour referred the dispute back to the adjudicator so that there could be a determination of whether[14]:
… the occupation authority, to the extent it included the laundry and kitchen, was for particular purposes necessary to enable performance of the obligations of the occupier as a service contractor or to enable the occupier to operate as a letting agent …
[14] Supra at [41].
The doctrine of stare decisis does not apply to the decision of Judge Rackemann.
The appeal should be dismissed and the orders of the Specialist Adjudicator affirmed.
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