Stuart v Queensland Building and Construction Commission
[2017] QCA 115
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- Unreported Judgment
- Appeal Determined (QCA)
- Stuart v Queensland Building and Construction Commission[2017] QCA 115
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Stuart v Queensland Building and Construction Commission[2017] QCA 115
Reported at [2018] 1 Qd R 399
Stuart v Queensland Building and Construction Commission[2017] QCA 115
Reported at [2018] 1 Qd R 399
SUPREME COURT OF QUEENSLAND
CITATION: | Stuart v Queensland Building and Construction Commission [2017] QCA 115 |
PARTIES: | ANDREW JOHN STUART |
FILE NO/S: | Appeal No 10844 of 2016 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave Queensland Civil and Administrative Tribunal Act |
ORIGINATING COURT: | Queensland Civil and Administrative Tribunal at Brisbane – [2015] QCATA 81 |
DELIVERED ON: | 2 June 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 April 2017 |
JUDGES: | Sofronoff P and Morrison JA and Applegarth J |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – GENERALLY – where the applicant seeks leave to appeal against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal dismissing an application for costs – where ss 149 and 150 of the Queensland Civil and Administrative Tribunal Act 2009 allow appeals against the “final decision” of the Tribunal – whether an order as to costs is a “final decision” Civil Proceedings Act 2010 (Qld), s 10 District Court of Queensland Act 1967 (Qld), s 118B Judicial Review Act 1991 (Qld), s 43 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 100, s 102, s 121, s 122, s 125, s 129, s 142, s 149, s 150 Supreme Court of Queensland Act 1991 (Qld), s 64 Chandra v Queensland Building and Construction Commission [2014] QCA 335, distinguished Goldberg v Morrow [2005] FCA 1038, distinguished Miller v Lida Build Pty Ltd [2013] QCA 332, explained Re Skinner’s and Smith’s Application (1982) 45 ALR 553; [1982] FCA 254, distinguished |
COUNSEL: | B E Codd, with L W V Judd, for the applicant G I Thomson, with K McAuliffe-Lake, for the respondent |
SOLICITORS: | Murdoch Lawyers for the applicant Holding Redlich for the respondent |
- SOFRONOFF P: This is an application for leave to appeal against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal dismissing an application for costs.
- The applicant had been a builder engaged pursuant to a written contract with the owners of a house to complete its construction. A dispute arose between the applicant and the owners who then made a complaint to the Queensland Building Services Authority. The owners purported to terminate the contract pursuant to s 90 of the Domestic Buildings Contracts Act 2000; for his part, the applicant purported to suspend the contract. The Authority determined that the owners had validly terminated the contract for the applicant’s default and directed the applicant to perform rectification works. This triggered a potential liability in the applicant to reimburse the Authority for moneys paid by it in respect of the rectification works pursuant to a statutory insurance scheme created by the Queensland Building Services Authority Act 1991.
- The applicant sought a review of the decision of the Authority that the owners had validly terminated the contract.
- On 27 June 2014 the Tribunal set aside the decision of the Authority. The Tribunal member made the order because he concluded that the contract had been mutually abandoned by the parties before the purported termination of it by the owners.[1] The Tribunal made two ancillary orders: to return the matter to the Authority to determine whether the applicant had been in breach of the contract at the date of termination by mutual abandonment, namely 4 April 2012; and, in the event that this issue was determined in the affirmative, whether an insurance claim under the Act was “appropriate”.
- The applicant appealed to the Appeal Tribunal contending that there was no basis for the two ancillary orders. He was successful in that appeal.[2] The applicant then applied for costs. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (“the Act”) provides:
“Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.”
- Section 102 of the Act provides that the Tribunal can make an order requiring a party to pay another party’s costs “if the tribunal considers the interests of justice require it to make the order”. Section 102(3) sets out the factors to which the Tribunal may have regard in deciding whether or not to make such an order.
- The Appeal Tribunal dismissed the application for costs and it is that decision which is now the subject of the applicant’s application for leave to appeal to this Court.
- Appeals to the Court of Appeal from decisions of the Tribunal are governed by ss 149 and 150. These sections provide as follows:
“149 Party may appeal – decisions of tribunal
- 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.
- 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.
- However –
- 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
- 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.
- Also, a party to a proceeding can not appeal to the Court of Appeal against a decision of the tribunal under section 35.”
“150 Party may appeal – decisions of appeal tribunal
- A person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.
- A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal -
- a cost-amount decision;
- the final decision.
- However, an appeal under subsection (1) or (2) may be made-
- only on a question of law; and
- only if the party has obtained the court’s leave to appeal.”
- The present application before the Court is for leave to appeal the decision of the Appeal Tribunal dismissing the applicant’s application for costs of the proceedings in the Queensland Civil and Administrative Tribunal. Section 149 is inapplicable. Section 150 limits appeals to the Court of Appeal to three matters:
- decisions to refuse an application for leave to appeal to the appeal tribunal;
- a cost-amount decision;
- the final decision.
- Even in such cases an appeal can only be made on a question of law and with the leave of the Court.
- This is not an application for leave to appeal against a refusal of leave to appeal to the Appeal Tribunal; nor does it concern a cost-amount decision which is defined as a decision of the Tribunal about the amount of costs fixed or assessed under s 107 of the Act. Rather, the applicant submits that the decision of the Appeal Tribunal dismissing the application for costs is “the final decision” of the Appeal Tribunal.
- The expression “the final decision” is defined in the Act’s Dictionary to mean the Tribunal’s decision that “finally decides the matters the subject of the proceeding”. The natural meaning of this expression when applied to the Appeal Tribunal would not include a costs order made when allowing or dismissing an appeal. A costs decision is an ancillary decision made pursuant to the statutory power to award costs and which is a power conferred by s 102.
- This conclusion is reinforced by the way in which the expression “final decision” is used in other places in the Act.
- Section 47 of the Act concerns proceedings or parts of proceedings which are frivolous, vexatious or otherwise an abuse of process. The section empowers the Tribunal to strike out or to dismiss proceedings or parts of proceedings in such circumstances. Section 47(2)(b) provides, relevantly, that the Tribunal may:
“(b) for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding –
- make its final decision in the proceeding in the applicant’s favour; …”
- The use of the singular “its final decision” is indicative that there can be only one “final decision” in a proceeding. This is also inherent in the use of the definite article in s 150(2)(b) and in the definition of the expression.
- Section 121 obliges the Tribunal to give its final decision in a proceeding in writing to the parties and also to “any other person the Tribunal reasonably considers notice of the decision should be given”. Section 125(2) requires the Tribunal to ensure that the publication of its final decision or its reasons for its final decision do not include something the subject of a non-publication order. These provisions do not aptly comprehend a mere order for costs.
- Sections 50(4) and 50A(5)(a) expressly include costs orders within the expression when they are made by the principal registrar when judgment is obtained by default - but expressly only for the purpose of those sections. Section 129 also expressly includes within the meaning of the term certain other orders or decisions which would not normally fit within the meaning of “the final decision”. The section includes within the meaning of the expression orders for interim relief and also “a monetary decision made other than as part of the tribunal’s final decision in the proceeding”. The term “monetary decision” is defined to mean a decision of the Tribunal in a proceeding requiring a person to pay an amount to someone else whether or not as part of the Tribunal’s final decision in the proceeding. This is not a costs order. However, even if it was, ss 50(4), 50A(5)(a) and 129 demonstrate, by their express inclusion, for limited purposes, of costs orders within the meaning of “final decision” that but for such express treatment, costs orders are not to be regarded as within the definition.
- Section 122 confers a right upon a party to request the Tribunal to give written reasons for its decision. The section is expressed to apply “if the Tribunal makes a decision in a proceeding, including its final decision” and “does not give written reasons for the decision”. The use of the syntax “including its final decision” is indicative that there can be only one final decision; other decisions of an interlocutory kind and, on this construction, decisions about costs, would not constitute a “final decision”.
- Section 142 of the Act has been referred to earlier. It makes provision for a right of appeal from the Tribunal to the Appeal Tribunal. Subsection (3)(a) provides that leave is required to appeal, relevantly:
“(ii) a decision that is not the tribunal’s final decision in a proceeding;
- a costs order.”
- This language also demonstrates that the expression “final decision” is distinct from a “costs order” and it also reinforces the significance of the use of the definite article.
- The applicant has nevertheless contended that the decision to dismiss an application for costs is a final decision. He relies upon two cases in support of that proposition. The first is Goldberg v Morrow.[3] That was a decision that was concerned with the question whether a costs order could be treated as a final order for the purposes of a bankruptcy notice. That required a consideration of the meaning of ss 40 and 41 of the Bankruptcy Act 1966 (Cth). It also required consideration of s 3(5) of the Supreme Court Act 1986 (Vic).
- The considerations that are relevant to the question whether a costs order is a final order for the purposes of bankruptcy proceedings have no bearing upon the present question which merely involves the interpretation of this particular Act.
- The other case relied upon by the applicant is the decision of Fitzgerald J in Re Skinner’s and Smith’s Application.[4] That too was a case concerning the question whether an order for costs was a final order for the purposes of the Bankruptcy Act 1966. The question was not argued but Fitzgerald J concluded that it did not “seem open to doubt that the orders for costs are final orders for the purposes of the Bankruptcy Act”.[5] That case is of no assistance here.
- It follows that an order of the Appeal Tribunal dismissing an application for costs is not an order that can be made the subject of an appeal to this Court under s 150. This is not surprising. One of the objects of the Act set out in s 3(b) is to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. It would not tend to promote this object if decisions other than final decisions could be made the subject of an appeal to the Court of Appeal. Indeed, it would be inconsistent with s 100 of the Act, that the Tribunal should be a low cost jurisdiction.
- Even within the jurisdiction of the District Court and the Supreme Court decisions about costs are treated in a special way and require leave to appeal in order to avoid perpetuating litigation.[6]
- The applicant also points to cases such as Miller v Lida Build Pty Ltd[7] to show that the expression “final decision” is elastic. That is true; but its scope, which might be wide enough to include orders that are not final because some decisions remain to be made,[8] does not include cost orders.
- The applicant seeks alternative relief in the event that his appeal is incompetent. He submits that the Court ought to embark upon a review of the merits of the Appeal Tribunal’s costs decision and, if satisfied that it is wrong, make a declaration in exercise of its power to make declarations under s 10 of the Civil Proceedings Act 2011 or s 43 of the Judicial Review Act 1991.
- Undoubtedly the Supreme Court has power, in appropriate cases and in the exercise of its supervisory jurisdiction over inferior tribunals, to grant declaratory relief. But that jurisdiction cannot be invoked merely to review costs decisions made by the Queensland Civil and Administrative Tribunal when Parliament has legislated in the terms, and for the purposes, discussed earlier in these reasons. Exceptional cases of excess of jurisdiction may arise that call for such review, even conceivably in the realm of costs orders, but this case does not present such an occasion. Chandra v Queensland Building and Construction Commission[9] was such a case. In that case the Court found jurisdictional error by way of breaches of the right to be heard as well as bias. In the present case the applicant seeks merely to raise legal arguments about discretionary factors and whether the Tribunal erred in the exercise of discretion. These cannot warrant the Court’s intervention.
- For these reasons the decision of the Appeal Tribunal dismissing the applicant’s application for costs was not a “final order” within the meaning of the Act and, accordingly, cannot be the subject of an application for leave to appeal to this Court.
- This is a hard case. The applicant was the subject of a complaint that proved to be unfounded. The original complainants were not prepared to put their own money at risk in pursuing their grievance. Having won against the Authority, the applicant is now out of pocket for a very substantial sum. The application must be refused for the reasons given. Because this Court does not have jurisdiction to entertain the proposed appeal against the Appeal Tribunal’s costs order, it is neither necessary nor appropriate to embark upon a discussion of the principles governing costs in the Tribunal or the parties’ arguments about the merits of the Appeal Tribunal’s decision on costs.
- The respondent did not take any point about the jurisdiction of this Court to hear the application for leave to appeal against the costs order. The point was raised by the Court at the hearing of the matter. Substantial costs were incurred in arguing issues about costs in the Tribunal when this Court lacked jurisdiction to decide those issues. In the circumstances the parties should bear their costs. Accordingly, the application should be refused but there should be no order as to costs.
- MORRISON JA: I have read the reasons of the President and agree with those reasons and the orders his Honour proposes.
- APPLEGARTH J: I agree with the President’s reasons and with the proposed orders.
Footnotes
[1]Stuart v Queensland Building and Construction Commission [2014] QCAT 312 at [37].
[2]Stuart v Queensland Building and Construction Commission [2015] QCATA 81.
[3][2005] FCA 1038 at [19].
[4](1982) 45 ALR 553.
[5]Ibid at 555.
[6]District Court of Queensland Act 1967 (Qld), s 118B; Supreme Court of Queensland Act 1991 (Qld), s 64.
[7][2013] QCA 332; and also Pingel v R & R Leach Pty Ltd [2003] 1 Qd R 533.
[8]Miller v Lida Build Pty Ltd [2013] QCA 332 at [8].
[9][2014] QCA 335.