Jamieson v Body Corporate for Paradise Island Apartments
[2011] QCA 80
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- Unreported Judgment
- Appeal Determined (QCA)
- Jamieson v Body Corporate for Paradise Island Apartments[2011] QCA 80
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Jamieson v Body Corporate for Paradise Island Apartments[2011] QCA 80
Jamieson v Body Corporate for Paradise Island Apartments[2011] QCA 80
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Application for Leave s 149(1) and s 149(2) QCAT Act |
ORIGINATING COURT: | |
DELIVERED ON: | 21 April 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Fraser JA, Margaret Wilson AJA and Martin J |
ORDER: | Application for leave to appeal refused with costs to be assessed on the standard basis |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – where the applicant brought proceedings in the Queensland Civil and Administrative Tribunal (“QCAT”) as a representative of a company at the request of a director of that company – where the company had a receiver appointed who had not consented to the proceedings – where the proceedings were dismissed and QCAT made an order that costs be paid by the applicant – where the applicant contended that QCAT erred in both the award of costs and the fixed amount of costs – where the respondent contended the applicant did not have standing to bring an appeal – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 39, s 43(2), s 48, s 102(1), s 102(3), s 103, s 107(1), s 149(1), s 149(2), s 149(3), sch 3 Attorney-General v Wylde (1946) 47 SR (NSW) 99, cited |
COUNSEL: | No appearance for the applicant, the applicant’s submissions were heard on the papers |
SOLICITORS: | No appearance for the applicant, the applicant’s submissions were heard on the papers |
[1] FRASER JA: On 2 July 2010 the Queensland Civil and Administrative Tribunal, constituted by Alan Wilson J as President, refused an application filed in the Tribunal on 4 June 2010 in the name of Ralacom Pty Ltd. The application sought the appointment of a specialist adjudicator under the Body Corporate and Community Management Act 1997 (Qld) (“the BCCMA”) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) and an injunction prohibiting the respondent body corporate from acting on its resolution to terminate a caretaking agreement and associated letting agreement between it and Ralacom. The Tribunal held that it had no jurisdiction to appoint a specialist adjudicator, because the BCCMA invested the commissioner under that Act with exclusive jurisdiction in that respect. The Tribunal also held that the application lacked any foundation because it was brought without the consent or authority of the receiver who had been vested with possession and control of all of Ralacom’s assets and undertakings.
[2] The respondent subsequently applied for orders that its costs of the proceedings be paid by Ralacom, Ms Raschilla, and the applicant in this Court, Mr Jamieson. Ms Raschilla was Ralacom’s sole director. Mr Jamieson had purported to represent Ralacom by filing the application in its name. The application described Mr Jamieson as Ralacom’s representative. He also appeared purportedly on Ralacom’s behalf, with the Tribunal’s leave, at hearings in the Tribunal on 25 and 30 June 2010. The Tribunal refused the application for costs against Ralacom because it “was not, in truth, a party”,[1] the application having been brought without the consent or authority of the receiver. Ms Raschilla and Mr Jamieson were ordered to pay the respondent’s costs and outlays fixed at $13,107.55.
[3] Mr Jamieson has applied for leave to appeal against the order against him. At both parties’ request, that application is to be determined on the papers, comprising the record in the Tribunal, the record in this Court, and written outlines of submission.
Standing to appeal
[4] The right of appeal to this Court is conferred by s 149 of the QCAT Act, which provides:
“(1)A party to a proceeding (other than an appeal under division 1) may appeal to the Court of Appeal against a cost-amount decision of the tribunal in the proceeding, whether or not a judicial member constituted the tribunal in the proceeding.
(2)A party to a proceeding (other than an appeal under division 1) may appeal to the Court of Appeal against another decision of the tribunal in the proceeding if a judicial member constituted the tribunal in the proceeding.
(3)However—
(a)an appeal under subsection (1) may be made only on a question of law and only if the party has obtained the court’s leave to appeal; and
(b)an appeal under subsection (2) on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the court’s leave to appeal.
(4)Also, a party to a proceeding can not appeal to the Court of Appeal against a decision of the tribunal under section 35.”
[5] Mr Jamieson sought to challenge both the decision to make a costs order against him and the amount of the costs which the Tribunal ordered him to pay.
[6] In relation to the amount of the costs, Mr Jamieson’s proposed appeal invokes the right of appeal which s 149(1) creates in relation to a “cost-amount decision”. The expression “cost-amount decision” is defined in a schedule to the QCAT Act to mean “a decision of the tribunal about the amount of costs fixed or assessed by it under section 107”. Section 107(1) provides that if the Tribunal makes a costs order under the QCAT Act or an enabling Act the Tribunal must fix the costs if possible. Under s 149(3)(a) an appeal against a “cost-amount decision” may be made only on a question of law and only with this Court’s leave.
[7] In relation to the decision to make an order for costs, Mr Jamieson’s proposed appeal invokes the right of appeal which s 149(2) creates in relation to “another decision of the tribunal in the proceeding if a judicial member constituted the tribunal in the proceeding.” The relevant proceeding was constituted by a “judicial member”, the definition of which includes the President,[2] and the relevant proceeding was not “an appeal under division 1” (which governs appeals to the “appeal tribunal” constituted under s 165 of the QCAT Act). Mr Jamieson requires leave to appeal under s 149(3)(b) if the proposed appeal turns only upon questions of fact or questions of mixed law and fact.
[8] The respondent relied upon the fact that ss 149(1) and 149(2) create rights of appeal only by a “party to a proceeding” in the Tribunal. As the respondent submitted, the QCAT Act draws a distinction between a “party” and a “representative of a party”. Section 39 identifies persons who are parties to a proceeding in the Tribunal’s original jurisdiction. Section 39 provides:
“A person is a party to a proceeding in the tribunal’s original jurisdiction if the person is—
(a)the applicant; or
(b)a person in relation to whom a decision of the tribunal is sought by the applicant; or
(c)intervening in the proceeding under section 41; or
(d)joined as a party to the proceeding under section 42; or
(e)someone else an enabling Act states is a party to the proceeding.”
[9] Provision is made for representatives of parties in s 43(2), which provides:
“In a proceeding, a party—
(a)may appear without representation; or
(b)may be represented by someone else if—
(i) the party is a child or a person with impaired capacity; or
(ii) the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or
(iii)an enabling Act that is an Act, or the rules, states the person may be represented; or
(iv) the party has been given leave by the tribunal to be represented.”
[10] As was authorised by s 43(2)(b)(iv), the Tribunal permitted Mr Jamieson to appear as the representative of Ralacom at the first hearing on 25 June 2010. He had earlier purported to act in that same capacity when he filed the application.
[11] The same distinction between a “party” and a “party’s representative” is drawn in the provisions conferring power upon the Tribunal to make orders about the costs of proceedings. The power to award costs against a party is conferred by s 102(1). It provides that “[t]he tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.” As to representatives of parties, s 103 provides:
“(1)If the tribunal considers a representative of a party to a proceeding, rather than the party, is responsible for unnecessarily disadvantaging another party to the proceeding as mentioned in section 102(3)(a), the tribunal may make a costs order requiring the representative to pay a stated amount to the other party as compensation for the unnecessary costs.
(2)Before making a costs order under subsection (2), the tribunal must give the representative a reasonable opportunity to be heard in relation to making the order.”
The QCAT Act also confers power upon the Tribunal to make a costs order against intervening parties.[3]
[12] The respondent argued that Mr Jamieson, as a “representative of a party”, has no right to appeal under s 149(1) or s 149(2) because he was not “a party to a proceeding” in the Tribunal. In response, Mr Jamieson pointed to the definition of “party” in r 679 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) as including “a person not a party to a proceeding by or to whom assessed costs of the proceeding are payable”, but it is not easy to see how that, or other provisions of the UCPR to which Mr Jamieson also referred, could influence the proper construction of s 149 of the QCAT Act.
[13] The relevant provisions are not particularly clear, and perhaps this issue merits further attention by the legislature. The better view may be that although Mr “party”Jamieson was not a party to the principal proceeding in the Tribunal, he was a “party” for the purposes of his proposed appeal under s 149 against the costs order against him. That may be so because, in terms of s 39(b), he was “a person in relation to whom a decision of the tribunal is sought by the applicant”. The applicant sought the costs order against Mr Jamieson and such an order is a “decision”, a word which is broadly defined to include “an order made … by the tribunal”.[4] That construction of s 149 would avoid the unreasonable consequences of the respondent’s construction, under which a party’s representative against whom a costs order is made would not have the same right of appeal against a costs order as is enjoyed by a party to the principal proceedings.
[14] However, I think it preferable not to decide the question of standing because Mr Jamieson did not have the benefit of legal representation and neither party’s arguments referred to s 39(b). It is not necessary to decide the question here, because leave to appeal should in any event be refused.
Leave to appeal against the decision to make a costs order against Mr Jamieson
[15] The grounds of the applicant’s draft notice of appeal contend that the Tribunal erred and specify the alleged errors as “finding there was evidence showing bad faith, misconduct or an improper purpose and a personal interest in the successful conclusion of the litigation” and “finding that William Jamieson continued to present a clearly hopeless case or a case without proper foundation.”
[16] Mr Jamieson’s contention that there was no evidence that he was actuated by bad faith, an ulterior motive, or any other improper purpose raised a false issue. The Tribunal did not base the costs order against Mr Jamieson on any finding to that effect. The Tribunal found that Ms Raschilla’s conduct in persisting with the application in the name of Ralacom, when the major part of the relief she sought was unavailable and the balance was achievable only if the receiver adopted or authorised the continuation of the proceedings, “can fairly be categorised as misconduct, or as acting in bad faith, in the sense discussed earlier”,[5] but the order against Mr Jamieson was based upon different considerations.
[17] The Tribunal’s reasons included the following chronology of events:
“9.On 31 May the financier, acting under its loan agreement, appointed a receiver and manager over all of Ralacom's assets including its interest in the management and letting rights agreement with the body corporate.
10. On 4 June Mr Jamieson filed the present proceedings in QCAT showing the company Ralacom as the named applicant, and himself as its representative. Just a few days later, however, the company's financier applied to the Supreme Court for an order formally appointing a receiver and manager to it.
11. On 8 June 2010 it was ordered, inter alia, that although the receiver would have full access to all financial and other records of Ralacom, the day to day operation, control, management and administration would remain with the company's officers. At the first hearing in QCAT on 25 June Mr Jamieson relied on this part of the order to submit that Ms Raschilla, as the sole director of Ralacom, still had standing to initiate and continue with proceedings on its behalf, and that he could appear on her instructions as the company's representative.
12. What Mr Jamieson failed to disclose was that a subsequent order of the Supreme Court of 9 June, made with the consent of all parties, effectively gave the receiver and manager absolute control over Ralacom's assets and undertakings.”[6]
[18] The Tribunal then referred to the powers of the receiver under the Corporations Act 2001 (Cth), including the powers given to the receiver by s 420 of that Act to execute any document, to bring or defend any proceedings, and to do any other act or thing in the name of and on behalf of the corporation. In relation to Mr Jamieson, the Tribunal found:
“15.Notwithstanding the order of 9 June, and the notice, Mr Jamieson persisted with the applications in Ralacom's name - on, it is clear, Ms Raschilla's instructions. It also appears, from an affidavit filed in her name, that she had purported to appoint Mr Jamieson an officer of the company. At the hearings he made it clear he accepted that purported appointment and claimed to appear both as an officer of Ralacom, and as its representative.”[7]
[19] After explaining why it was appropriate to make a costs order against Ms Raschilla, the Tribunal returned to Mr Jamieson’s position. The Tribunal noted that he was exposed to a costs order under s 103 because he appeared as a party’s representative. The Tribunal took into account that Mr Jamieson was an accountant and did not claim any legal qualifications, but noted that he was familiar with the matter and took an active role, being responsible for filing the applications and appearing at both hearings, with leave, as the representative of the applicant. The Tribunal acknowledged that costs should be awarded against representatives only sparingly and having regard to all the circumstances of the particular case, but noted that costs had been awarded against advocates who “acted without proper authority in commencing proceedings, and where they should have known the proceedings were hopeless and their continuation was akin to an abuse of process.”[8] The Tribunal referred to decisions in which costs had been awarded against a solicitor who instituted an action without authority,[9] to a case in which solicitors were ordered to pay costs when they commenced proceedings for a party who had no authority to commence proceedings without the consent of the Public Trustee because he was in prison at the time,[10] and to the statement by Davies JA (with whom Williams JA and Philippides J agreed) in Steindl Nominees Pty Ltd vLaghaifar that, “it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable.”[11]
[20] The Tribunal explained in the following passage why it was appropriate to make a costs order against Mr Jamieson:
“54.I bear in mind that Mr Jamieson is not, apparently, a lawyer. Nevertheless, like Ms Raschilla he should have known after 9 June (or could readily have discovered) that neither he nor she had authority to continue with the proceeding. He certainly knew it after 24 June, when evidence about the true position was presented by the respondent's lawyer. He also knew by the time of the second hearing, and conceded, that this Tribunal did not have jurisdiction to appoint a specialist adjudicator under the BCCMA.
55. Although not a lawyer himself, Mr Jamieson nonetheless accepted, and acted on, Ms Raschilla's instructions in the present proceedings, purportedly on Ralacom's behalf. As I mentioned earlier, s 103 of the QCAT Act does not discriminate between legally qualified and unqualified representatives. On that basis, in my view, it is appropriate to apply the same principles governing costs orders against lawyers to the present circumstances. Even if that is incorrect, the facts certainly suggest that Mr Jamieson would still be liable to a costs order as a non-party actively involved in the conduct of the proceedings.
56. On any view, it is evident that by continuing with a manifestly untenable action, his conduct unnecessarily disadvantaged the respondent by forcing it to incur costs pointlessly. It is also fairly characterised as an abuse of process. Once Mr Jamieson volunteered to act as Ms Raschilla's representative in those circumstances, and persisted with that representation, he exposed himself to an order which would compensate the respondent for costs unnecessarily incurred.”[12]
[21] Mr Jamieson argued that when the application was filed in the Tribunal on 4 June 2010 a receiver had not been appointed. The premise of that argument was that no receiver was appointed before the order made with Ralacom’s consent by the Supreme Court on 9 June 2010. The Court then ordered that Ralacom immediately deliver up possession and control of all of its assets and undertakings to the receiver and that Ralacom be restrained from interfering with the receiver’s use, entitlement to and possession of those assets and undertakings and from dealing in any way with them or from interfering with the proper exercise of any of the receiver’s powers as receiver and manager of Ralacom, save as may be permitted or directed by the receiver. Mr Jamieson’s argument overlooked the Tribunal’s finding that on 31 May 2010, before Mr Jamieson filed Ralacom’s application in the Tribunal, Ralacom’s financier appointed the receiver as receiver and manager over all of Ralacom’s assets, including its interests in the management and letting rights agreement with the Body Corporate.[13] Furthermore, Mr Jamieson continued to press the application after the Supreme Court order made on 9 June 2010.
[22] Mr Jamieson argued that Ms Raschilla, the sole director of Ralacom, had given Mr Jamieson authority to represent the company. However, he did not articulate any ground for challenging the Tribunal’s conclusion (in, for example, paragraph [54] of the reasons) that neither Ms Raschilla nor Mr Jamieson had power to continue with the proceedings in the Tribunal. Mr Jamieson also argued that the receiver, the financier which appointed the receiver, and its solicitors, were aware that the proceedings in Ralacom’s name had been brought in the Tribunal. However, Mr Jamieson did not argue that any of those persons authorised Ms Raschilla to bring those proceedings.
[23] Mr Jamieson pointed out that the Tribunal gave leave to Mr Jamieson to represent Ralacom and that the respondent did not object to that. However, Mr Jamieson did not challenge the findings in paragraphs [11] and [12] of the Tribunal’s reasons. At the first hearing in the Tribunal on 25 June 2010 Mr Jamieson relied on part of the 8 June 2010 order to submit that he could appear on Ms Raschilla’s instructions as the company’s representative, but the Tribunal was not informed of the subsequent order made on 9 June 2010 giving the receiver absolute control over the company’s assets and undertakings. As Mr Jamieson pointed out, the 9 June 2010 order was disclosed by Ms Raschilla in written submissions and an affidavit filed with the Tribunal on 28 June 2010. However, that was after Mr Jamieson had sought to support the application on 25 June 2010 without disclosing the 9 June 2010 order. Mr Jamieson’s further argument that after he became aware of the 9 June 2010 order he behaved appropriately by merely complying with the Tribunal’s directions was rightly rejected by the Tribunal. As the Tribunal indicated, that argument did not explain why Mr Jamieson persisted with the proceeding at all when it was plain that Ms Raschilla had no power to cause Ralacom to do so.[14]
[24] Mr Jamieson argued that the only avenue available to Ralacom to vindicate its rights in relation to the Body Corporate was to bring proceedings in the Tribunal because the Body Corporate had declined Ralacom’s requests to agree to a conciliation or adjudication process. That argument again failed to take account of the absence of any authority in Ms Raschilla to cause Ralacom to pursue any such proceeding and the Supreme Court’s order of 9 June 2010. For the same reasons there is no merit in Mr Jamieson’s argument that he acted only as a representative of Ralacom and under the instructions of Ms Raschilla.
[25] Contrary to another of Mr Jamieson’s arguments, his conduct in purporting to represent Ralacom certainly contributed to the continuation of the improperly brought proceedings. Mr Jamieson referred to the powers given to the Tribunal by s 48 of the QCAT Act to strike out or dismiss proceedings and to make other orders, including a costs order under s 102, where the Tribunal considers that a party to a proceeding is acting in a way “that unnecessarily disadvantages another party to the proceeding”. Mr Jamieson argued that conduct listed in paragraphs (a) to (g) of s 48(1) did not comprehend the conduct found against him in this matter. Those paragraphs merely set out examples of conduct which may be found to justify orders under s 48. That section does not limit the circumstances which justify a finding under s 103 that a representative of a party to a proceeding, rather than the party, is responsible for unnecessarily disadvantaging another party to the proceeding. So much is made clear by s 102(3)(a) (which is mentioned in s 103(1)). Section 102(3) provides:
“In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
(a)whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g) …”. (emphasis added)
[26] In any case, one of the examples in s 48(1) is “(f) vexatiously conducting the proceeding”. That is an accurate description of Mr Jamieson’s conduct in purporting to represent Ralacom in circumstances in which he could have had no reasonable basis for believing that Ms Raschilla could validly authorise him to do so.
[27] Mr Jamieson argued that the costs order made against him was not authorised by s 103(1) because that provision empowers the Tribunal to make an order for costs against a representative only where it is the representative of a party “rather than the party” which is responsible for unnecessarily disadvantaging another party. The quoted words are applicable here. Mr Jamieson did not purport to act as the representative of Ms Raschilla, but rather as the representative of Ralacom. Ralacom could bear no responsibility for Mr Jamieson’s conduct in filing the application in its name but without its authority.
[28] I would refuse leave to appeal against the Tribunal’s decision to make a costs order because the proposed appeal would fail.
Leave to appeal against the cost-amount decision
[29] The Tribunal fixed the costs at $13,107.55. The respondent acknowledged in the written submissions filed on its behalf that the Tribunal miscalculated the costs and that the affidavit evidence accepted by the Tribunal justified an award of costs only in the amount of $13,054.31, that is, $53.24 less than the amount awarded. Mr Jamieson argued that the costs should instead have been fixed at no more than $12,107.55. That is the sum of two figures mentioned in the affidavit by the respondent’s solicitor and in the Tribunal’s judgment, namely, $9,168.75 for costs and $2,938.80 for outlays (including counsel’s fees).
[30] The difference between the parties lies in the GST. In the affidavit to which the Tribunal referred the respondent’s solicitor sought a costs order “plus GST”.[15] The applicant’s figure excludes GST but the respondent’s figure includes GST. It is clear enough that the Tribunal intended to include GST. Mr Jamieson did not contend that the Tribunal erred in considering any question of law in relation to the inclusion of GST and I am not persuaded that there was any such error. Leave to appeal should be refused for that reason.
[31] In relation to the arithmetical error of $53.24 conceded by the respondent, Mr Jamieson could have applied in the Tribunal for that error to be corrected. The Tribunal was empowered by s 135(1) of the QCAT Act to correct material miscalculations of figures and errors arising from an accidental slip or omission. It is not appropriate to grant leave to appeal merely to correct that minor error.
Proposed order
[32] I would refuse leave to appeal, with costs to be assessed on the standard basis.
[33] MARGARET WILSON AJA: I agree with the orders proposed by Fraser JA, for the reasons given by his Honour.
[34] MARTIN J: I agree, for the reasons given by Fraser JA, that leave to appeal should be refused with costs to be assessed on the standard basis.
Footnotes
[1] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [17]-[18].
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), sch 3.
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 104.
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), sch 3.
[5] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [43].
[6] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [9]-[12].
[7] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [15].
[8] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [48], citing Deputy Commissioner of Taxation v Levick [1999] FCA 1580 at [11] per Hill J.
[9] Yonge v Toynbee [1910] 1 KB 215, 226; Attorney-General v Wylde (1946) 47 SR (NSW) 99, 109; Nominal Defendant v Kisse & Anor [2001] QDC 290.
[10] Tyler v Krause [2002] QCA 544.
[11] [2003] QCA 157 at [24].
[12] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [54]-[56].
[13] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [9].
[14] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [41].
[15] Affidavit of Andrew James Grant Suttie sworn 7 July 2010, paragraph 10 (Appeal Book p 272).