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  • Unreported Judgment

Queensland Building Services Authority v Queensland Civil and Administrative Tribunal

 

[2013] QSC 167

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

13 June 2013 (ex tempore)

DELIVERED AT:

Brisbane 

HEARING DATE:

13 June 2013

JUDGE:

Applegarth J

ORDER:

  1.   Application dismissed.
  2.   No order as to costs.

CATCHWORDS:

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 48, 136, 137, 138

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, cited

Kirk v Industrial Court New South Wales [2010] HCA 1; (2010) 239 CLR 53, cited

Mango Boulevard v Spencer [2010] QCA 207, cited

Northbuild Constructions Pty Ltd v Central Interior Linings Pty Ltd [2011] QCA 22; [2012] 1 Qd R 525, cited

Owen v Menzies [2012] QCA 170; (2012) 265 FLR 392,  cited

Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417, cited

Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall [2013] QSC 130, cited

Administrative law – Administrative tribunals – Queensland Civil and Administrative Tribunal –  where tribunal made direction dismissing a matter where there had not been a hearing on the merits– where tribunal granted an application to reopen the matter – where respondent to the proceeding before the tribunal seeks order in the nature of  certiorari or prohibition against the tribunal – whether the tribunal had power to reopen

COUNSEL:

E T Bird (solicitor) for the applicant

R Marsh (solicitor) for the respondent

SOLICITORS:

Queensland Building Services Authority Legal Services Branch for the applicant

Crown law for the respondent

 

HIS HONOUR:  This is an application for orders in the form of orders for certiorari or prohibition in respect of a decision of the Queensland Civil and Administrative Tribunal (“QCAT”), in the matter of Wiperi v Queensland Building Services Authority [2013] QCAT 156.

 

The decision dated 4 April 2013 allowed certain proceedings that had been commenced by Mr Wiperi to be reopened.  The tribunal appears before the Court today but does not make substantive submissions and abides the order of the Court.

 

Mr Wiperi has not chosen to be involved in the matter.  I understand he is a builder and has to conserve his resources and indicated he did not wish to be involved in the matter and, in fact, expressed some regret at all of the problems that had been caused.

 

The application raises issues concerning the powers and procedures of the tribunal.  Because Mr Wiperi is not here to act as a contradictor and the tribunal itself has not made substantial submissions concerning the extent of its procedures and powers, I find myself in some difficulty.  However, I have been particularly assisted by the very able written and oral submissions of Mr Bird on behalf of the applicant, the Queensland Building Services Authority (“QBSA”).  Mr Marsh, who appears, for the tribunal, also took instructions and made certain acknowledgements concerning the absence of a relevant implied power to reopen in particular circumstances.

 

The essential background facts are as follows.   The QBSA on 13 July 2012 decided not to classify Mr Wiperi as a “permitted individual”.  On 10 August 2012 Mr Wiperi applied to QCAT to review that decision.  On 11 September 2012 QCAT ordered Mr Wiperi to file statements of evidence in the proceeding by 13 November 2012.  He did not comply and on 21 November 2012 the QBSA wrote to the tribunal’s case manager, and copied Mr Wiperi in this letter.  It noted that Mr Wiperi had failed to comply with the order and respectfully requested the tribunal to direct him to file and serve any statements of evidence upon which he sought to rely upon the hearing of the proceeding, or failing that, the review application be dismissed.

 

On 27 November 2012 a senior member of the tribunal made directions that Mr Wiperi file in the tribunal and give to the QBSA his statements of evidence by 4 pm on 12 December 2012.  The second direction made was, “If Mr Nicholas John Wiperi does not comply with paragraph one (1) of these Directions then the Application to review a decision will be dismissed without further notice to the parties.” 

 

The directions made on 27 November 2012 were not expressly made pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).  However, section 48 provides that the tribunal, if it considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by not complying with a tribunal order or direction without reasonable excuse, may do certain things, and one of them is that it may order the proceeding be dismissed or struck out.

 

It then appears that Mrs Wiperi had communications with the QBSA in early December.  There was some delay in there being discussions and resolution of Mrs Wiperi's request on behalf of Mr Wiperi for an extension of time.  Ultimately there was agreement between Mrs Wiperi on behalf of her husband and the QBSA that there would be an extension of time. 

 

The solicitor for the QBSA has given evidence, and a file note supports her recollection, that she told Mrs Wiperi to send the consent order to QCAT.  It seems that Mrs Wiperi may have misunderstood that.  In any event, Mrs Wiperi did not send the consent order to QCAT and QCAT, not being aware of the discussions that had taken place between Mrs Wiperi and the QBSA, and having not received the statements of evidence that had been directed to be filed by 12 December 2012, proceeded on 20 December at 2012 to dismiss the application before it. 

 

There is a nice point of law as to whether the directions made on 27 November 2012 was a final judgment and there is a nice point of law as to whether after that direction was made the tribunal had any power to vary it.  I do not think I need to reach any conclusion about that matter.  The circumstances in which an order will be truly a self-executing order have been discussed in a number of authorities.  The matter arose for consideration in the Court of Appeal in Mango Boulevard v Spencer [2010] QCA 207 and I have regard to what was said by Muir JA particularly at [4] – [7] and by Fraser JA at [94] – [107] concerning the order made in that case.  I hasten to add that the order in that case was in different terms. 

 

In any event, the tribunal gave a decision on 20 December 2012 when the same senior member made the following decision, “The Application to review a decision dated 10 August 2012 is dismissed”. 

 

The fact that that had occurred came to the attention of Mr Wiperi who filed what was styled as an application to reopen.  The QBSA made substantial submissions to the tribunal in response to that reopening application.  It submitted that the matter was not of the kind that an application to reopen provided for in section 138 of the QCAT Act.  The principal basis was that the proceeding had not been “heard and decided” by the tribunal within the meaning of sections 136 and 137 of the QCAT Act.  The QBSA relied upon the reasoning of the tribunal in Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417 as authority for the proposition that in a circumstance of the present kind the reopening provisions of Chapter 2, Part 7, Division 7 (which include sections 136 and 137) were not engaged. Ramke was concerned with a similar situation where orders were made dismissing a matter where there had not been a hearing on the merits.

 

The member of the tribunal who heard the application to reopen in this matter and who granted the application to reopen apprehended that the application to reopen was made on the grounds set out in section 137(1)(b) of the QCAT Act.  It provides that reopening ground means “the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided”.  On the material before the member, the member was conscious of the substantial injustice that would be visited upon Mr Wiperi.  In short, the QBSA’s refusal to allow him to be a “permitted individual” had a substantial impact on his ability to earn his living, and the tribunal thought it was unreasonable to hold Mr Wiperi out of his application because of the inaction or mistake of a third person in such a matter.  That was a reference to the problem that had arisen in the consent order not being sent to QCAT. 

 

The member continued, “Had the evidence been available to the senior member potentially another determination may have been made.  Also the QBSA was agreeable to an extension of time.  Therefore, there could be no prejudice to it if the application is reopened.”  In those circumstances, the tribunal was satisfied that Mr Wiperi would suffer substantial injustice if the significant new evidence was not considered. 

 

The application to this Court is brought under the Court’s supervisory jurisdiction.  The existence of that jurisdiction is established in authorities such as Kirk v Industrial Court New South Wales (2010) 239 CLR 531 and  Northbuild Constructions Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525. 

 

The essence of the argument is that the order or orders made by QCAT were truly self-executing such that, absent specific provision in the QCAT Act permitting them to be set aside, the tribunal lacked power to reopen the matter.  Particular reliance is placed upon the general principle stated in Bailey v Marinoff (1971) 125 CLR 529.  As I alluded to earlier, the authority submits that the directions of QCAT on 27 November 2012 were true self-executing orders because the directions stated the application to review a decision “will be dismissed without further notice to the parties”, such that the further order dated 20 December 2012 simply served the purpose of confirming that the matter was dismissed in accordance with the first order. 

 

If that is not right, then one would conclude that there was a final order on 20/12/2012. 

 

The next proposition that the QBSA advances is that the tribunal, which has been recognised for certain purposes to be a court, see Owen v Menzies [2012] QCA 170, does not have an inherent jurisdiction to reopen a proceeding once the final judgment has been entered.  That rests upon Bailey v Marinoff.  Of course, that is referable to the inherent jurisdiction of a court and it might be said that an inferior court or a tribunal such as this tribunal does not have an inherent jurisdiction.  Instead, it has certain implied powers.  In that regard see Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall [2013] QSC 130 concerning the implied powers of an inferior court, particularly the discussion at paragraphs [23] to [33] concerning the implied power to strike out. 

 

In any event, the QCAT Act does not confer an express power to extend time to comply with a self-executing order after it has taken effect, and does not confer a power of the kind that can be found, for example, in the Uniform Civil Procedure Rules 1999 (Qld) to set aside or vary an order in certain circumstances.  The argument is that the tribunal therefore does not have power to reopen unless one has a case that gives rise to the power to reopen pursuant to Division 7 (sections 136 to 141 of the QCAT Act).  It is argued that the tribunal exceeded its jurisdiction by reopening in the circumstances because this was not a proceeding that had been “heard and decided by the tribunal” within the meaning of section 136 of the QCAT Act.  The reopening ground to which I have referred only arose when the proceeding had been heard and decided.  The existence of a reopening ground is a condition precedent to the exercise of QCAT’s jurisdiction to reopen a proceeding. 

 

The matter therefore, throws up a conflict in the decisions of the tribunal between the present decision which is challenged and the decision in Ramke.  I must say that the matter is not entirely straightforward, particularly in circumstances in which the tribunal for good reason, conducts “hearings” as it were on the papers.  It might be said to have “heard and decided” the application that was made to it to make it a self- executing order, but not heard and decided “the proceeding”.  Although the matter is open to different contentions and I have not had a contradictor to argue to the contrary, my preference is to follow Ramke and the reasoning in it. 

 

In those circumstances there was not a reopening ground because the proceeding had not been heard and decided as that term is used in section 138(b).  That might seem a curious and unjust result where the earlier decision was one having the substantial consequences that follow.  However, I think that Ramke is correct. 

 

It is also unfortunate that the Act does not seemingly provide a suitable avenue for a senior member to reopen a proceeding of the present kind or to set aside or vary an order of the kind that was made here, where the substantial justice of the situation warrants that course.  The situation then is that someone in Mr Wiperi’s situation faced with a self-executing order that has taken effect is required to apply under section 49 for leave of the President or Deputy-President to extend the time limit to start a new proceeding.  That seems to me to be a particularly unfortunate and unnecessarily complicated process to deal with the practical problem that arose in this case.  It is a particularly unfortunate situation in circumstances where the tribunal is required to deal with matters in a way that is accessible, fair, just, economical, informal and quick.

 

However, the powers of the tribunal to reopen are those set out expressly in Division 7 and it is not said on the tribunal’s behalf that whatever implied powers that it has extends to an implied power to reopen.  I would have thought there was a potential argument that where the reopening powers under sections 136 and following apply only to a proceeding that is heard and decided, that there might be an implied power to reopen in other circumstances where the proceeding has not in fact been heard and decided.  However, the tribunal does not seek to rely upon any implied power in the circumstances and in the absence of argument I decline to find that the tribunal had that implied power. 

 

It may be necessary for the legislature to address a more efficacious way of dealing with applications to reopen in circumstances in which proceedings are dismissed in the kind of circumstances that arose here.  If the tribunal had in fact been informed prior to making the order which it did on 20 December 2012, that the parties had agreed to an extension of time, the tribunal might have granted such an extension and the parties then would not have needed to consider whether the order of 27 November 2012 was truly a self-executing order.  The proceedings would simply have continued in an efficient way.  Although with some hesitation, I have come to the conclusion that the better view is that the tribunal did not have power to entertain an application to reopen under section 138.

 

I consider that the situation does not require me to make orders in the nature of certiorari or prohibition.  I have the discretion as to whether to make those orders and it was acknowledged during the course of argument that if I favoured the view of the QCAT Act expressed in Ramke and submitted by QBSA, thereby giving, in effect, a declaration as to the proper construction of the Act in the circumstances, that would be a sufficient exercise of the Court’s supervisory jurisdiction.  It might seem somewhat surprising to not grant orders in the nature of certiorari and prohibition where jurisdictional error has been found and it has been said on many occasions that if jurisdictional error is established, then the orders follow almost as of right. 

 

That said, it is acknowledged that the Court has a residual discretion as to whether to grant those orders.  It seems to me that I should exercise that discretion in circumstances where, if matters had been conducted differently, and instead of applying to reopen, Mr Wiperi had applied for leave under section 49, then leave almost certainly would have been granted.  If I was to quash the decision to reopen and to prohibit the tribunal from further proceeding with the matter, then there would be a delay, the relevant licence would be cancelled and Mr Wiperi would be put to the trouble and expense of an application for leave under section 49 in circumstances in which it is almost certain that that leave would be granted.

 

It seems to me that such a complicated and costly procedural course should be avoided in the context of an Act that seeks to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.  But for Mrs Wiperi’s oversight in not conveying the consent order to the tribunal prior to 20 December, the proceeding would have continued.  The QBSA would not have needed to have later concerned itself with whether the order made on 27 November 2012 was truly a self-executing order and whether there was power to reopen under section 138 and the Court would not have had to have concerned itself with that matter either. 

 

Instead an extension of time would have been granted and the matter would have proceeded.  It seems to me that it is appropriate that further costs to the parties are avoided by not granting relief in the nature of prohibition or certiorari but permitting the proceeding to continue.  Although in a sense that might seem irregular where I found that there was a jurisdictional error in the making of the decision of 4 April 2013, the mere existence of jurisdictional error is not enough to automatically render such a decision a nullity.  The interests of justice are served by the proceeding continuing. 

 

Of course, the QBSA might have overlooked any flaw or irregularity or error in the decision delivered on 4 April 2013 and if it had not taken the point about jurisdictional error, then the proceeding would have continued.  That exemplifies the fact that in certain circumstances, a jurisdictional error does not vitiate proceedings and that a party can choose to overlook such a matter.  However, the QBSA understandably wished to have the matter the subject of a determination given the apparent conflict between the decision of the tribunal on 4 April 2013 and the decision in Ramke.  For the reasons that I have given, I consider that the approach taken in Ramke is the preferable one.  In circumstances in which I have made my view of the Act clear and favoured Ramke, I consider that that will be sufficient to dispose of the application.

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Editorial Notes

  • Published Case Name:

    Queensland Building Services Authority v Queensland Civil and Administrative Tribunal & Anor

  • Shortened Case Name:

    Queensland Building Services Authority v Queensland Civil and Administrative Tribunal

  • MNC:

    [2013] QSC 167

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    13 Jun 2013

Litigation History

No Litigation History

Appeal Status

No Status