Vodopevic v Knigge (No 2)

[2003] QDC 304

DISTRICT COURT OF QUEENSLAND

CITATION:	Vodopevic & Ors v Knigge (No 2) [2003] QDC 304
PARTIES:	LOUIS AND DORA VODOPEVIC and WARREN AND SONIA LIDDLE

Applicants

v

BRYAN KNIGGE

Respondent

FILE NO/S:	BD 2455/03
DIVISION:
PROCEEDING:	Application for leave to appeal
ORIGINATING  COURT:	Queensland Building Tribunal
DELIVERED ON:	8 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2003
JUDGE:	McGill DCJ
ORDER:	Application dismissed with costs.
CATCHWORDS:	APPEAL – Right of Appeal – From Queensland Building Tribunal – whether preserved when statute giving right repealed
INFERIOR TRIBUNALS – Building Tribunal – Appeal to District Court – repeal of statute – effect on right to appeal
STATUTES – Repeal – effect on rights – right of appeal – whether prescribed.
Acts Interpretation Act 1954 s 20(2)(c).
Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 – applied.
Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 Qd R 210 – applied.
Whywait Pty Ltd v Davison [1997] 1 Qd R 225 – applied.
COUNSEL:	A Heyworth-Smith for the applicants G I Thomson for the respondent
SOLICITORS:	Cranston McEachern for the applicants Lambert & Ho Lawyers for the respondent

1. This is an application for leave to appeal from a decision of the Queensland Building Tribunal on 30 June 2003. There is a preliminary issue to be determined; the applicants submit that the application proceeds under, and should be considered under, the Queensland Building Services Authority Act 1991 (“the 1991 Act”). The respondent submits that the Act imposing the requirement for leave to appeal, and determining the basis upon which an application for leave is to be considered, is the Commercial and Consumer Tribunal Act 2003 (“the 2003 Act”). A complication in relation to this issue arises because the 2003 Act did not directly replace the 1991 Act. The Queensland Building Tribunal Act 2000 (“the 2000 Act”) intervened. Each Act has provided for an appeal to the District Court from the applicable tribunal, but there has been a notable lack of consistency in the appeal mechanisms provided by the three Acts.

2. The 1991 Act required leave to appeal, and provided for an appeal in the strict sense once leave had been obtained.[1] The 2000 Act gave a right of appeal and described the nature of the appeal in terms that were so unclear, and indeed to some extent inconsistent, that it was only with some difficulty that it was possible to determine that which was provided was actually an appeal by way of rehearing in the ordinary sense.[2] The 2003 Act on the other hand, reimposes the requirement for leave to appeal, and permits an appeal only on the grounds of error of law, or excess, or want, of jurisdiction.[3] After a significant liberalising of the appeal provision in 2000, the pendulum in 2003 has swung back with a vengeance. There is in the 2003 Act a much more limited right of appeal, involving no general appeal on the merits, with the imposition of an additional requirement for leave to appeal.

   [1]            1991 Act s 94; Whywait Pty Ltd v Davison [1997] 1 Qd R 225.

   [2]            2000 Act s 92; Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131. The explanatory note for the Bill indicated that the intention was to set up a merits based appeal mechanism.

   [3]            2003 Act s 100.

3. It is difficult to imagine what, if anything, the legislature had in mind when imposing the requirement for leave in the 2003 Act:[4] it is difficult to conceive of any circumstances where any appeal on the ground of excess or want of jurisdiction would not justify leave, since if leave were refused relief could be granted (indeed if the appellant’s arguments were correct would necessarily be granted) by the Supreme Court under the Judicial Review Act. One would also think that it would be unusual to find a situation where the District Court would refuse leave to appeal against a decision of the tribunal which was infected with some error of law. Is the legislature seriously suggesting that this court, which is a court of law, would countenance a decision of a tribunal which was not according to law, and refuse leave to appeal to an applicant who had been denied a decision of the tribunal according to law? If it did, I would be surprised if relief would not also be available in the Supreme Court under the Judicial Review Act in the circumstances.

   [4]            The explanatory note for the Bill is typically unhelpful, saying only that the intention is to narrow the right of appeal.

4. I suppose leave could be refused in circumstances where it was apparent that the applicant for leave was unable to show any real prospect of establishing either an error of law or an excess or want of jurisdiction on the hearing of an appeal if leave were granted. Otherwise refusing leave would simply lead to the proceeding being shunted off to the Supreme Court under the Judicial Review Act. The imposition of a requirement for leave in such circumstances does nothing except increase the cost of an appeal to the parties, and give the court an additional matter to consider in relation to any appeal.[5]

   [5]            It is not the only unsatisfactory aspect of s 100. Subsection (8) contains such an iniquitous provision as to costs that relief under the Judicial Review Act may be preferable anyway.

5. One would expect that, when such a dramatic change is made in relation to the mechanism for appeal, there would be some suitable transitional provisions in the 2003 Act which would indicate how the change was to be made from the old regime to the new regime. Instead of that, about the only thing the 2003 Act says is that a decision of the Queensland Building Tribunal is taken to be a decision of the new Commercial and Consumer Tribunal: s 160.[6] That means that it is possible for a party to a decision of the Queensland Building Tribunal on 30 June 2003 to apply for leave to appeal under s 100 of the 2003 Act, but does not indicate whether that is the only possible appeal.

   [6]            This appears to be confined to a decision under the 2000 Act: see s 157(a). An uncompleted proceeding is dealt with by s 158(1), but that would not apply here as the proceeding in the Tribunal was completed by the decision of 30 June 2003.

6. The Acts Interpretation Act 1954 provides that prima facie the repeal of legislation does not deprive a person of a right held under that legislation:[7] when the Queensland Building Tribunal made a decision under the 2000 Act, an aggrieved party to the decision had a right to appeal to the District Court. On ordinary principles the Acts Interpretation Act preserved that right notwithstanding the repeal of the 2000 Act.[8] Accordingly if the decision of the tribunal in the present case on 30 June 2003 was a decision under the 2000 Act, the appellants do not need leave to appeal; they have a right of appeal to this court under the 2000 Act, the right preserved by the Acts Interpretation Act, there being no specific provision in the 2003 Act which deprives them of that right of appeal.[9]

   [7] Acts Interpretation Act 1954 s 20(2)(c); nor does it affect any proceeding or remedy in relation to the right: s 20(2)(c), (3), and note subsection (5).

   [8]            Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 Qd R 210 at 218 per McPherson J.

   [9]            There is a strong presumption against constricting a statute so as to take away an existing right: Matheson v Burton (1971) 124 CLR 1 at 22.

7. However, the order of the tribunal on 30 June 2003 was not made under the 2000 Act; it was made under the 1991 Act. The reason for that is that the 2000 Act did contain transitional provisions,[10] which made it clear that when a proceeding had been commenced in the tribunal under the 1991 Act it continued under the 1991 Act, and any appeal to this court was to be brought under the 1991 Act provisions.

   [10]          2000 Act s 178. This essentially confirmed the effect anyway of the Acts Interpretation Act provisions.

History of the matter, and first appeal

1. The operation of those transitional provisions may be illustrated by what has already happened in relation to this proceeding. It was commenced in the tribunal on or about 13 September 1999 when the respondent before me, a builder, made an application to the tribunal seeking payment of money alleged to be payable under a building contract with the applicants before me, as owners.[11] The owners and the builder had entered into a contract for work on a dwelling, and by this time there was a substantial dispute between them as to defects in the work. There were a series of interlocutory hearings and orders made by the tribunal, some of which provided for rectification work to be undertaken by the builder, or money to be paid by the owners, or both, and ultimately the full hearing of the matter was to proceed on 29 January 2002. However on that day the matter settled, on the basis that the owners would pay the builder $30,000 in full settlement of all claims and both sides were released from all further obligations. However, the settlement did not cover the question of costs, which was to be decided by the tribunal.

   [11]          For the sake of clarity I refer to the applicants before me as the owners, and the respondent before me as the builder.

2. That issue came before a member of the tribunal who on 23 August 2003 ordered that the builder be allowed 80 percent of his costs assessed on scale G of the Magistrates Court scale of costs. It is unnecessary to say much about the decision of the tribunal member on that occasion, because on 18 March 2003 his Honour Judge Robin QC gave leave to appeal from that decision, allowed the appeal and remitted the question of costs for rehearing by the tribunal.[12] His Honour took the view that there was no power in the court under the repealed s 94 of the 1991 Act to make any final costs determination; the matter had to be remitted to the tribunal under s 94(4)(b).

   [12] [2003] QDC 37.

3. His Honour noted that the appeal was to be brought under the 1991 Act. His Honour recognised that leave to appeal was necessary, but granted leave on the basis that there was a public interest in having the court indicate that Calderbank offers ought to be given weight in costs determinations of the tribunal, and also that they were not to be construed in too technical a sense. In that case a Calderbank offer had been made in August 2001 for a sum greater than the amount ultimately paid to the builder under the settlement. The member of the tribunal had said that that should not affect the exercise of its discretion, but his Honour held that that was the wrong approach, that the offer was clear enough on its face, and that in any event, had there been any ambiguity in the offer, the builder ought to have clarified the matter rather than simply rejecting the offer. Accordingly it was not open to the builder to complain at this stage about any such ambiguity. His Honour also noted that no reason had been given by the tribunal member for the reduction in costs to 80 percent of the costs otherwise recoverable on the Magistrates Court scale. His Honour said that it appeared that the tribunal member had not considered anything other than that a particular monetary payment had been secured by the builder.

4. It is apparent therefore that the original consideration by the tribunal of the costs question was thoroughly unsatisfactory, and notwithstanding the ordinary reluctance of an appeal court to intervene in relation to a question of costs, intervention in this case was obviously appropriate. His Honour ruled that the Calderbank letter ought to have been considered further, and also that there should be consideration given to the fair and just incidence of costs in relation to the various hearings that occurred or steps that were taken in the tribunal. The builder was ordered to pay the costs of the appeal, but there was a certificate granted under the Appeal Costs Fund Act.

The reconsideration by the Tribunal

1. Both parties subsequently made extensive submissions to the tribunal, and on 30 June 2003 a different member of the tribunal ordered that 80 percent of the builder’s costs up until 9 August 2001, on the District Court scale, be paid by the owners, and that the owners’ costs from 10 August 2001 on the District Court scale be paid by the builder, the costs to be determined by a costs assessor if not agreed, and set off, with the balance to be paid by a specified date. The reasons extend to six and a half pages, and included a summary of the history of the matter, and a summary of the orders sought by each party. There was then some discussion of the Calderbank offer, and it is clear that consideration was given to that offer, and indeed that it had an appropriate effect on the order for costs that was made. The owners did not submit to the contrary before me. The tribunal summarised the submissions made on behalf of each of the parties, and continued: “I have had the opportunity to read the transcripts of each of the hearings and to make some assessment of the conduct of the parties and the purpose for which each of the hearings was activated. I have further had the opportunity to assess whether there is any futility [sic. ? utility] in making an individual assessment in relation to each hearing.”

2. The tribunal member then held that five of the hearings “can loosely be categorised as substantially case management hearings in respect of which costs should be costs in the cause.” As to the remaining eight hearings the tribunal member said that these “concerned primarily the issue of defects and in some circumstances an element at least of a ‘win’ for the [owners], or, at the very least, would be regarded as being costs of the cause.” It was submitted on behalf of the owners that this last reference to costs of the cause should be seen as a slip on the part of the tribunal, and the tribunal must have intended to refer to the owners’ costs in the cause. Although I would agree that the paragraph would have made sense if it had been in those terms, it also seems to me to make sense in its current terms, and I am not persuaded that that was an error in the reasons. The tribunal member may simply be saying that, within this group where there was some function of the interlocutory hearing other than simply case management, the hearings could be identified as one where the owners had a win, or as one where neither party in particular won.

3. The tribunal member continued: “The real question remains as to who has been successful in the litigation bearing in mind that there was merely a payment made on the final settlement and that other arrangements were previously made by the parties. It may be that in fact the payment of $30,000 is in part not representative of the success or otherwise of the [builder]. Without specific details of the earlier payments pursuant to orders of the tribunal [on specific dates] … and the value of rectification work carried out and the basis for undertaking such rectification work, the only conclusion I am able to reasonably reach is that the [builder] was successful in the litigation at least in a substantial part, leaving to one side the Calderbank letter.”

4. The tribunal member then considered that it was appropriate to award costs on the District Court scale because the owners had paid overall about $70,000 to the builder to resolve the matter. Accordingly the order summarised earlier was made, the tribunal noting that the reduction of 20 percent was “to take into account the conduct of the matter in the context of the individual hearings prior to 10 August 2001.”

What is the basis of the right of appeal?

1. If the owners had in respect of the order of 30 June 2003 a right to appeal to the District Court, either under the 1991 Act or otherwise, that right in my opinion would be preserved to them by the Acts Interpretation Act notwithstanding the repeal of the 2000 Act and the apparent creation by the 2003 Act of a mechanism by which they could apply for leave to appeal under the 2003 Act. The 1991 Act did not provide an unqualified right of appeal. It provided a right of appeal subject to leave, but the authorities to not distinguish between a situation where there is a right of appeal and a situation where it is necessary for a party to obtain leave.

2. One of the leading cases in this area is the decision of the Privy Council in Colonial Sugar Refining Co Ltd v Irving [1905] AC 369. In that case a party unsuccessful in proceedings in the Full Court of Queensland[13] sought to appeal to the Privy Council. Under the order-in-council governing such appeals it was necessary for the party first to obtain the leave of the Full Court of Queensland. That leave was obtained[14], but not until after a Commonwealth Act, the Judiciary Act 1903, came into force by which appeals of this nature to the Privy Council were abolished. The respondent to the appeal then applied to the Privy Council to have the appeal struck out on the ground that the right to appeal had been taken away by this Commonwealth Act, but the Privy Council held that, assuming the Commonwealth Act to be valid, it was not of retrospective operation, and therefore did not take away a right of appeal which had existed in a party prior to the time when the Commonwealth Act commenced.

   [13] [1903] St R Qd 261: judgment was given for the defendant by the Full Court on a special case stated under O 38 r 1, after the commencement of the Judiciary Act.

   [14] [1904] St R Qd 18, per Cooper CJ, Real J dissenting.

3. It follows that the Privy Council treated the right to appeal as being an existing right notwithstanding that it was a right subject to leave which at that stage had not yet been obtained. There is however no suggestion in the judgment of the Privy Council that the imposition of the requirement for leave was of any significance in this regard. Indeed, the right to appeal was described as an appeal “as of right” in the judgment of the Privy Council. That decision has been cited as authoritative in Sunskill (supra), and by the High Court.[15] I have not been able to find any authority where a distinction has been drawn between a right of appeal and a right of appeal subject to leave.

   [15]          See Worrell v Commercial Banking Company of Sydney (1917) 24 CLR 28 at 31; Australian Coal & Shale Employees Federation v Aberfield Coal Mining Co (1942) 66 CLR 161 at 175; Esber v The Commonwealth (1992) 174 CLR 430 at 440. In Esber it was held that a right was protected by the equivalent of s 20 of the Acts Interpretation Act Queensland, although it might fairly be called inchoate or contingent.

4. The assumption no doubt is that, subject to the establishment of grounds justifying the grant of leave, leave will be granted.[16] It is not the case that a court has an unfettered discretion in these circumstances as to whether or not to grant leave.[17] I should add that it is clear, from the fact that this is an appeal in the strict sense, that the appeal is to be heard and determined according to law in force at the time of the original decision.[18] This is not therefore a case where, because the appeal is by way of rehearing, there is some issue as to what law is to be applied at the time of the rehearing.[19]

   [16]          Compare NSW Aboriginal Land Council v Minister for Crown Lands (1988) 14 NSWLR 685 at 693.

   [17]          It therefore follows that decisions such as Director of Public Works v Ho Po Sang [1961] AC 901, especially at 920, are distinguishable.

   [18]          Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297.

   [19]          See the discussion, and contrast the outcome, in Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162.

1. The 1991 Act was repealed by the 2000 Act, although by s 178 continued in force by the 2000 Act for the purposes of finalising the matters which were already pending in the tribunal prior to the commencement of the 2000 Act (such as the current proceeding). That meant that that proceeding continued under the 1991 Act, and the appeal (subject to leave) was properly brought to the District Court under the 1991 Act. The matter was remitted to the tribunal under the 1991 Act, and in my opinion the second decision of the tribunal pursuant to that remittal was also undertaken under the 1991 Act. The parties had a right to have to proceeding in the tribunal concluded under the 1991 Act, notwithstanding its later repeal. That right was preserved by s 178 of the 2000 Act, and, when that Act was repealed by the 2003 Act, by s 20 of the Acts Interpretation Act 1954.

2. When the 2000 Act was repealed by the 2003 Act, the continuation of the 1991 Act in relation to pending matters by the 2000 Act appears to have been overlooked; in any event no specific provision was made to deal with that situation. Where parties had a right to do something under the 1991 Act, that does not matter because that right is preserved by the Acts Interpretation Act in the absence of some clear indication to the contrary in the 2003 Act. It follows that in my opinion the owners remain entitled to seek leave to appeal under the 1991 Act. That is what they are purporting to do.

3. The result would have been similar if the order of 30 June 2003 had been given under the 2000 Act. There would then have been a right of appeal given by the 2000 Act, and in my opinion that right would have survived the repeal of the 2000 Act, being a right preserved by the provisions of the Acts Interpretation Act, in the absence of some clear provision in the 2003 Act terminating that right.

Grounds for leave to appeal

1. Counsel for the owners conceded before me that he had difficulty in justifying a grant of leave to appeal under s 100 of the 2003 Act. However, he submitted that there were grounds for leave to appeal in the context of the 1991 Act. There was certainly no error suggested or apparent in relation to the treatment of the Calderbank offer, and the only basis on which the owners seek to challenge the decision is that there was a failure to give proper consideration to the significance of the outcome of some of the interlocutory proceedings in the tribunal. It was submitted there had been a failure to comply with direction of his Honour Judge Robin in this regard, and that that amounted to an error on the part of the tribunal. If the tribunal was reconsidering a matter subject to some direction from the court, a failure to comply with that direction would in my opinion amount to an error of law on the part of the tribunal. In my opinion no such error of law could be shown in relation to the decision taken by the tribunal in the present matter.

Should leave be granted?

1. Under the 1991 Act the Court of Appeal is restricted to interfering with any findings of fact by a member of the tribunal, and can do so only on grounds which would justify an appellate court in interfering with findings of fact by a jury.[20]

   [20]          Whywait Pty Ltd v Davison [1997] 1 Qd R 225 at 233, applying Callinan v Boyne Smelters Ltd [1984] 2 Qd R 501 at 505.

2. It is clear that the tribunal member reconsidering the matter considered in some detail what had happened at the various interlocutory proceedings, although ultimately was not persuaded that a substantial departure from the order for costs otherwise indicated by the operation of the Calderbank offer was justified, for reasons given in the paragraph that I have quoted, namely that it was not possible in the absence of a full consideration of the merits and the history of the matter to appreciate the true significance of the rectification work which was undertaken pursuant to the various orders, and the amounts which were paid by the owners from time to time in accordance with the various orders. That is a reasonable enough position to take, and there is nothing in the material that I have seen which would suggest that such an approach on the part of the tribunal amounted to a decision which was so unreasonable that this court would be justified in setting aside the decision within the limited scope of the appeal available under the 1991 Act. Some allowance has been made for the fact that there was some success on the part of the owners during the interlocutory hearings, but the tribunal member was not persuaded that there was, within the context of the overall dispute between the parties, any substantial significance in any such success.

3. In my opinion there is no reasonable prospect of the owners being able to show that any correctable error of fact was involved in arriving at that conclusion or that the discretion otherwise miscarried. There are in my opinion insufficient prospects of success to justify the grant of leave to appeal. In those circumstances leave to appeal should be refused. I order the owners to pay the builder’s costs of the application for leave, to be assessed.