Trojan Resorts Pty Ltd v Body Corporate for The Reserve (No. 2)
[2018] QCAT 366
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- Unreported Judgment
- Trojan Resorts Pty Ltd v Body Corporate for The Reserve (No. 2)[2018] QCAT 366
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Trojan Resorts Pty Ltd v Body Corporate for The Reserve (No. 2)[2018] QCAT 366
Trojan Resorts Pty Ltd v Body Corporate for The Reserve (No. 2)[2018] QCAT 366
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Trojan Resorts Pty Ltd v Body Corporate for The Reserve (No. 2) [2018] QCAT 366 |
PARTIES: | TROJAN RESORTS PTY LTD (applicant) v BODY CORPORATE FOR THE RESERVE CTS 31561 (respondent) |
APPLICATION NO: | OCL067-14 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 2 October 2018 |
HEARING DATE: | 1 August 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – GENERALLY – where application to reopen – where applicant not a party to the original decision – whether the reopening discretion should be exercised – whether the tribunal is functus officio PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – NON-PARTY INTERVENTION – where applicants not parties to original decision – where person seeks to be joined to proceeding – application of s 42 of the QCAT Act – whether persons interests may be affected by the proceeding – whether it is desirable that the person be joined as a party to the proceeding Body Corporate and Community Management Act 1991 (Qld) s 149B, s 149B(1), s 227(1)(d), s 227(1)(e), s 227(1)(f), s 229(2), Chapter 6, Schedule 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28(2), s 39, s 41, s 41(2), s 42, s 42(1), s 42(2), s 100, s 106, s 133(1), s 138(1), s 106, Schedule 3 A B Hill Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 46 Assistant Commissioner Wilson v Chapman and Anor; Chapman v Assistant Commissioner Wilson and Anor [2012] QCATA 110 Body Corporate for London Woolstores Apartments & Ors v Queensland Building Services Authority [2011] QCAT 86 Grassby v R (1989) 168 CLR 1 Italiano v Carbone & Ors [2005] NSWCA 177 Levy v Victoria (1997) 189 CLR 579 Minister for Immigration v Bhardwaj (2002) 209 CLR 597 ML Spicer Pty Ltd t/as Purebuild Homes v Doeuk [2016] QCAT 214 Powell & Anor v Queensland University of Technology & Anor [2017] QCA 200 Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283 Sheehy v The Body Corporate for Marlin Cove CTS 321288 & Trinity Beach Holidays Pty Ltd [2008] CCT KC003-08 State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423 Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130 |
APPEARANCES & REPRESENTATION: |
|
Applicants: | Self-represented |
Respondents: | G Handran of Counsel, instructed by Mahoneys for Trojan Resorts Pty Ltd |
REASONS FOR DECISION
Background
- [1]In December 2012 Trojan Resorts Pty Ltd (Trojan) was appointed as the caretaker and letting agent for The Reserve CTS 31561. At the annual general meeting in September 2014 the members of the Body Corporate for the Reserve CTS 31561 (the body corporate) resolved to terminate the caretaking and letting agreements. Trojan subsequently applied to the tribunal for, among other orders sought, injunctive relief preventing the body corporate from terminating the agreements and for a declaration that the body corporate did not have the right to terminate the agreements. The parties to the proceeding at first instance (OCL067-14) were Trojan and the body corporate.
- [2]
- [3]Emprove Holdings Pty Ltd is a lot owner in the scheme and is wholly owned by Mr James Lovel. Mr Lovel has, at various times, been the chairperson of the body corporate. In May 2017, Emprove filed in the Court of Appeal an application for leave to appeal the decision in OCL067-14 and the decision in APL403-15. On 20 July 2017 the Court of Appeal struck out Emprove’s application for leave to appeal with costs on the basis that it lacked standing to bring the appeal.[3]
- [4]Applications for costs in OCL067-14 and APL403-15 are yet to be determined.
- [5]
- [6]As I have observed, the decision in OCL067-14 was unsuccessfully appealed in APL403-15 and the decisions in OCL067-14 and APL403-15 unsuccessfully appealed to the Court of Appeal. One might have thought that this was the end of the matter noting that the substantive proceedings in OLC067-14 are at an end, save for the determination of the application for costs by Trojan, and also noting that the avenues of appeal against the decision in OCL067-14 and the decision in APL403-15 have been exhausted. However the applicants say that the final decision in OCL067-14 is void for jurisdictional error and that the tribunal can hear and decide the matter afresh and that, on this basis, they should be joined as parties.
- [7]The applicants filed the joinder application in REO001-18 and not in OCL067-14 however it is clear from the application and the applicants’ submissions that the intention of the applicants is to seek to be joined in OCL067-14. At the hearing of the present application on 1 August 2018, and by consent, the application to reopen was dismissed, leaving only the joinder application for determination. Accordingly, I will consider the application for joinder in OCL067-14.
- [8]The applicants also seek an order that the decision in OCL067-14 be set aside ‘pursuant to the Tribunal’s inherent jurisdiction.’ The application to set aside the decision in OCL067-14 will also be considered in that proceeding.
- [9]Trojan opposes the order sought by the applicants. The body corporate has elected to play no active role in the present application.
The statutory framework – joining parties
- [10]The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that: the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; the person’s interest may be affected by the proceeding; for another reason it is desirable that the person be joined as a party to the proceeding.[6] The tribunal may make an order joining a person as a party on its own initiative or on the application of a person.[7]
- [11]The joinder of parties is the subject of QCAT Practice Direction No 8 of 2013 which provides that a party or a person making an application for joinder must specify the capacity in which the person is sought to be joined as a party to the proceeding – that is, whether the person be joined as an applicant or as a respondent. I note that the present joinder application does not comply with the requirements of the Practice Direction however it seems tolerably clear that the only capacity in which the applicants can be joined is as respondents.[8]
What do the parties say?
- [12]The applicants say that the Tribunal has an inherent power to set aside the decision in OCL067-14. The applicants say that such relief should be granted on the basis that they were denied the opportunity to be heard and present their case in OCL067-14 despite their interests being affected by the orders made by the tribunal.
- [13]Emprove says that it should be joined as a party on the basis that its interests may be affected by the proceeding. Emprove says those interests are:
- (a)Its interest as a lot owner;
- (b)Its special interest in the motion to terminate the agreements, that interest being as the lot owner who submitted the motion to the meeting;
- (c)Its interest as ‘a tenant in common with others (of) land adversely affected by orders made in this proceeding’;
- (d)Its financial interest as a lot owner obliged to financially contribute to the salary payable by the body corporate to Trojan under the Management Agreement;
- (e)Its interest in the outcome of the application for costs.
- (a)
- [14]Mr Lovel also says that his interests may be affected by the proceeding. He says he has a right to natural justice as a result of what he says are Trojan’s ‘many spurious, scandalous and derogatory submissions’ about him in various proceedings. Natural justice, says Mr Lovel, affords him a right to be heard.
- [15]The applicants submit that the tribunal in OCL067-14:
- (a)should have identified that the applicants’ interests may have been affected by the proceeding;
- (b)as a result, failed to ensure that the applicants were afforded procedural fairness; and
- (c)should have either given the applicants the opportunity to be joined as parties or, of the tribunal’s own initiative, ordered the joinder.
- (a)
- [16]The applicants say that the failure of the tribunal to afford them procedural fairness means that the tribunal’s decision in OCL067-14 was infected by jurisdictional error. The consequence of this, say the applicants, is that the Tribunal should set aside the original decision and proceed to hear and decide the matter afresh, with the applicants as parties.
- [17]Trojan says that the applications are without merit, are an abuse of process and constitute a collateral attack on the judgment of the Court of Appeal. The purpose of the applications is, says Trojan, to vex and oppress it. Trojan says that the consequence of accepting the applicants’ submissions on the joinder question is that in proceedings before the tribunal in respect of body corporate disputes, it would be necessary for all lot owners to be either joined as parties or given the opportunity by the tribunal to be joined as parties where the lot owner’s interests may be affected by a proceeding.
Consideration
Is the present application a collateral attack on the judgment of the Court of Appeal or an abuse of process?
- [18]I will first consider the submission by Trojan that the application to be joined is a collateral attack on the judgment of the Court of Appeal or otherwise an abuse of process. In Trojan Resorts Pty Ltd v Emprove Holdings Pty Ltd[9] Gotterson JA held:
Since Emprove Holdings was not a party to the QCAT proceedings, and in particular, was not the applicant for leave to appeal to it which was refused, it is not a person who may appeal under s 150(1) of the Act to this Court against the Appeal Tribunal’s refusal of leave. That is so, notwithstanding its commercial interest in the outcome of the litigation. Its application for leave to appeal to this Court is therefore incompetent.
Further, Emprove Holdings was not competent to appeal the Primary Decision in the Appeal Tribunal. The provisions of s 142(1) of the Act makes that clear. Nor may it, itself, appeal the Primary Decision directly to this Court. Hence the declaration sought in its application could not possibly be made by this Court.
In the circumstances, the application filed by Emprove Holdings must be struck out.
- [19]Emprove’s appeal to the Court of Appeal was dismissed on the basis that as it was not a party in either OCL067-14 or APL403-15, Emprove had no standing to appeal the decisions in OCL067-14 or in APL403-15 and was therefore not competent to appeal either decision. That finding is not challenged in the present application. In the present application, the applicants seek to be joined as parties in OCL067-14. I do not accept the submission by Trojan that the present application constitutes a collateral attack on the decision of the Court of Appeal.
- [20]Whether a proceeding is an abuse of process depends upon the circumstances. In State Bank of New South Wales Ltd v Alexander Stenhouse Ltd[10] Giles CJ held:
The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are –
- (a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
- (b)the opportunity available and taken to fully litigate the issue;
- (c)the terms and finality of the finding as to the issue;
- (d)the identity between the relevant issues in the two proceedings;
- (e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –
- (f)the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
- (g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
- [21]For the reasons I have given in relation to my finding that the present application does not constitute a collateral attack on the decision of the Court of Appeal, and taking into consideration the matters identified in Stenhouse, I find that the application to be joined to the proceedings is not an abuse of process.
The joinder application and the application to intervene
- [22]OCL067-14 is a proceeding in the tribunal’s original jurisdiction. Parties to a proceeding in the tribunal’s original jurisdiction are: the applicant; a person in relation to whom a decision of the tribunal is sought by the applicant; an intervener under s 41 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act); a party joined under s 42 of the QCAT Act; someone else an enabling Act states is a party to the proceeding.[11] Trojan does not seek a decision in relation to the applicants. The applicants do not identify any provision of the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act) which states that they are parties to the proceeding. Accordingly, unless the applicants are successful in being joined as parties pursuant to s 42 or are permitted to intervene in the proceedings pursuant to s 41, they lack standing to seek any further relief in the proceedings.
- [23]An application to be joined as a party pursuant to s 42 of the QCAT Act requires the exercise of a discretion by the tribunal that may be enlivened if the tribunal finds one or more of the criteria set out in s 42(1) are satisfied. That a person’s interests may be affected by a proceeding does not mean, as a matter of course, that a joinder order should be made.[12] Even if one or more of the threshold criteria in s 42(1) are met, in exercising its discretion to allow a joinder the tribunal should be satisfied that there is some utility in the joinder.[13] A consideration of whether the tribunal has jurisdiction to hear and decide the matters in dispute involving the person proposed to be joined inter partes that person and the existing parties to the proceeding, is relevant to the question of the utility of joining the person as a party.[14]
- [24]The dispute, the subject of OCL067-14, was a ‘complex dispute’[15] between Trojan as a service contractor and the body corporate. The only remedy for a complex dispute is the resolution of the dispute by a specialist adjudicator or an order of QCAT.[16] A complex dispute includes a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme or the authorisation of a person as a letting agent for a community titles scheme.[17]
- [25]The tribunal recently considered the meaning of a ‘dispute’ under s 149B of the BCCM Act in Reynolds v Body Corporate for Mount View Apartments.[18] The tribunal referred to the decision of the former Commercial and Consumer Tribunal in Sheehy v The Body Corporate for Marlin Cove CTS 321288 & Trinity Beach Holidays Pty Ltd.[19] In Sheehy it was held that in determining what is meant by a ‘dispute’ in s 149B of the BCCM Act, it is appropriate, as a contextual exercise, to consider what a party to the ‘dispute’ must satisfy under Chapter 6 of the BCCM Act.[20] In Reynolds, the tribunal agreed that chapter 6 of the BCCM Act informs, to some extent, the types of disputes referred to in s 149B, however the tribunal held:
… I do not consider that the arguable limitation of the parties to a dispute to the existing contracting parties, under s 227, wholly informs the types of dispute that are the subject of s 149B. The latter section describes the subject matter of a dispute, not the allowable parties to the dispute and, as I have said, distinguishes between a dispute taken under chapter 6 and a dispute brought to the tribunal, by granting the right to adjudication under chapter 6 only to certain parties, but not so limiting the parties to an application to the tribunal. I do not consider it correct to say that this amounts to quite different legal requirements merely because of the path chosen to determine the dispute. Rather, the distinction is between two paths: one (an application to the tribunal) that is available to all parties and another, potentially shorter and less costly, that is only available to limited categories of parties. If, in reaching this conclusion, I might be seen to differ from his Honour, then I respectfully do so.[21]
- [26]The only ‘dispute’ for the purposes of Chapter 6 of the BCCM Act involving a service contractor or letting agent is one between the contractor or agent and the body corporate.[22] A dispute under Chapter 6 does not include a dispute between a lot owner and a body corporate manager, a service contract provider or a letting agent. Indeed a dispute of this nature is not a ‘dispute’ for any purposes under Chapter 6 of the BCCM Act.
- [27]Reynolds involved a dispute between a former caretaking service contractor and a body corporate. The caretaking service agreement had been terminated. The body corporate contended that as the relevant agreement had been terminated, the caretaker was not a ‘caretaking service contractor’ when the proceeding in the tribunal was commenced and that the jurisdiction of the tribunal under s 149B of the BCCM Act had not been engaged. The tribunal held:
The tribunal can hear and resolve any dispute about a contractual matter about the engagement of a caretaking service contractor, whenever that engagement occurred and whether or not it remains extant. The tribunal’s jurisdiction is to resolve a dispute ‘about’ a ‘contractual matter’. The latter term, about an engagement, relevantly means a contravention of the terms of the engagement or the termination of the engagement. A dispute about the termination of an engagement will often (indeed, nearly always) arise after the termination or purported termination. It will often involve issues about whether the engagement has been terminated, whether there was an entitlement to terminate and who terminated it. (The latter two issues arise directly here.) That indicates that post-termination disputes about an engagement can be heard and resolved by the tribunal. Indeed, I can see no logical reason why the legislature would exclude, from the tribunal’s jurisdiction, a dispute about the former parties’ rights under a terminated service contract, where it grants jurisdiction to the tribunal or an adjudicator to determine issues about an existing service contract.[23]
- [28]There is authority in this tribunal and in the former Commercial and Consumer Tribunal that, in respect of a dispute about a claimed or anticipated contractual matter about the engagement of a body corporate manager or caretaking service contractor or the authorisation of a person as a letting agent, there must be the necessary causal relationship between an applicant and a dispute under s 149B of the BCCM Act in order for the tribunal to have jurisdiction to hear and decide such a dispute.[24] I do not see any necessary inconsistency between the decision in Reynolds and the previously decided cases. Reynolds in my view further clarifies who may be a party to a dispute under s 149B which includes the parties to a terminated service contract.
- [29]The applicants were not parties to the agreements with Trojan and were never in a contractual relationship of any sort with Trojan. In my view the applicants are unable to establish the necessary causal relationship to bring any dispute they may have with Trojan within s 149B of the BCCM Act. This in turn raises the question as to whether the tribunal has jurisdiction to hear and decide any dispute between Trojan and the applicants. Absent such jurisdiction, even if the applicants could otherwise satisfy one or more of the criteria in s 42(1), it must be doubted that there would be any utility in the joinder.
- [30]Mr Lovel says that his interests may be affected by the determination of costs in OCL067-14. It is certainly not clear why Mr Lovel’s interests would be so affected rather than Emprove’s. After all, it is Emprove that owns lots in the scheme. Mr Lovel is not a lot owner. Any commercial interest Mr Lovel might have in the costs issue is through his interest in Emprove. As to the position of Emprove, it is not unlike any other lot owner in the scheme. Any adverse costs consequences that may be visited upon the body corporate will be met, eventually, by the individual lot owners. The body corporate was authorised to commence and prosecute OCL067-14 and APL403-15. It is a matter for the body corporate to respond to the costs applications by Trojan. There is nothing before me to suggest that the body corporate will not act in the best interests of the lot owners in responding to the costs applications by Trojan. I accept that the applicants’ interests may be affected by the determination of the issue of costs through the potential for lot owners to be required to contribute to an adverse costs order against the body corporate. It should be noted however that there is by no means the certainty that an adverse costs order will be visited upon the body corporate. The starting point in considering costs in the tribunal is that, subject to the operation of the QCAT Act or a relevant enabling Act, each party must bear their own costs.[25] The relevant enabling Act is the BCCM Act. The BCCM Act contains no specific costs provisions. The presumption against costs found in s 100 of the QCAT Act will therefore apply. For this reason, and for the reasons I have set out, the possibility that the applicants as lot owners may ultimately be required to contribute to the liability of the body corporate to satisfy an adverse costs order does not justify joining the applicants as parties to the proceeding.
- [31]The applicants refer to various interests it is said they have in the proceedings.[26] Suffice it to say none are a compelling or justifiable basis for the joinder of the applicants as parties in OCL067-14.
- [32]Even if I was satisfied that the Tribunal had jurisdiction in respect of the dispute between the applicants and Trojan and I was further satisfied that the affection of the applicants’ interests was sufficient to enliven s 42(1)(b) of the QCAT Act, I would not be satisfied that there is any utility in the applicants being joined as parties. The only remaining matter for determination in the proceedings is costs. There is no utility in permitting the applicants to be joined at this very late stage particularly in circumstances where the applicants do not submit that the body corporate will not act in the best interests of lot owners in responding to the costs applications.
- [33]The applicants also seek to intervene in OCL067-14. The tribunal may at any time give leave for a person to intervene in a proceeding subject to the conditions the tribunal considers appropriate.[27] In Assistant Commissioner Wilson v Chapman and Anor; Chapman v Assistant Commissioner Wilson and Anor[28] the QCAT Appeal Tribunal, in the context of a proceeding in the tribunal’s review jurisdiction, considered the power of the tribunal to permit a person to intervene and held:
- [46]In my view, s 41(2) of the QCAT Act preserves an important discretion that enables the Tribunal to permit another entity to join review proceedings wherever the circumstances warrant such an intervention, unrestrained by the usual time constraints for joinder arising under either the QCAT Act or an enabling Act; and without the strict need to establish interest criteria for a joining party under s 42(1) of the QCAT Act.
- [47]Although not joined as a party, an intervener is nonetheless still a “party” and thus has appeal rights pursuant to s 142 of the QCAT Act. The discretion to allow an intervener is “at large”, and will be restrained only by regard to the overall objects of the QCAT Act…
- [34]In Levy v Victoria[29] Brennan CJ held, in considering an application for a grant of leave to intervene in High Court proceedings:
None of the constitutional statutory provisions which confer jurisdiction on this court contains an express grant of jurisdiction to allow non-party intervention save s 78(a) of the Judiciary Act 1903 (Cth). If there be jurisdiction apart from s 78(a) to allow non-party intervention, that must be an incident of the jurisdiction to hear and determine the matters prescribed by the several constitutional statutory provisions which confer this Court’s jurisdiction. It is of the nature of that jurisdiction that it should be exercised in accordance with the rules of natural justice. Accordingly, its exercise should not affect the legal interest of persons who have not had an opportunity to be heard. Therefore, a non-party whose interest will be affected directly by a decision of the proceeding – that is, one who would be bound by the decision albeit not a party – must be entitled to intervene to protect the interest liable to be affected.
…
Nevertheless, an indirect affection of legal rights enlivens no absolute right to intervene. The assumption is that the Court will determine the law correctly, so that the indirect affection of an applicant’s legal interest is simply the inevitable consequence of the exercise by this Court of its jurisdiction as a final court in the Australian hierarchy. On that assumption, no undue prejudice is suffered by a person whose interest will be affected by the decision. The exercise of this Court’s jurisdiction to determine controversies between parties is not, and could not be, conditional on allowing intervention by all those whose interest is susceptible to affection by the Court’s judgement. Such a condition would virtually paralyse the exercise of that jurisdiction. The principles of natural justice which control the exercise of curial power must take account of the nature of the jurisdiction to be exercised.
However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the court should have to assist it to reach a correct determination, the court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice between all parties. In that situation, intervention may prevent an error that would affect the interests of the intervenor. Of course, if the intervenor’s submission is merely repetitive of the submissions of one or other of the parties, efficiency would require that intervention be denied.”
- [35]The source of the power to permit a party to intervene considered by Brennan CJ is of course different to the express statutory power found in s 41 of the QCAT Act. However the principles considered by Brennan CJ are, in my view, relevant when considering an application under s 41.
- [36]As the appeal tribunal observed in Chapman, s 41 must be construed in the context of the overall objects of the QCAT Act. These objects include having the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[30] In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.[31]
- [37]The applicants say that their interests may be affected by any costs decision in OCL067-14. I am not satisfied that this is an interest that could be said to be affected directly by a decision in relation to costs. The applicants would not be personally bound by the decision.[32] Their interests may be indirectly affected by a costs order adverse to the body corporate however without more this is an insufficient basis to permit the applicants to intervene in the proceeding. As I have observed, the applicants do not submit that the body corporate may not present fully submissions on the issue of costs or may fail to act in the best interests of lot owners. Allowing the applicants to intervene in the proceedings at this very late stage, and for the purposes only of the costs applications, would be to unnecessarily complicate the proceedings, add cost and likely result in further delays. These are all potential outcomes inconsistent with the objects of the QCAT Act. For these reasons and for the reasons I have set out in relation to the joinder application, I am not satisfied that the applicants should be permitted to intervene pursuant to s 41(2) of the QCAT Act.
The jurisdictional issue
- [38]I have found that the applicants should not be joined as parties or permitted to intervene in the proceedings. Accordingly, they have no standing to seek any other orders. In case I am found to have erred in not permitting the applicants to be joined as parties or intervene in the proceeding I make the following observations and findings.
- [39]The first and most obvious difficulty facing the applicants in seeking to have the decision in OCL067-14 set aside is that the decision was unsuccessfully appealed by the body corporate in APL403-15, and the decisions in OCL067-14 and APL403-15 were unsuccessfully appealed by the applicants to the Court of Appeal. It is not possible to reconcile the applicants’ submission that the decision in OCL067-14 is vitiated for jurisdictional error with the fact that the orders at first instance stand despite the appeals process having been exhausted.
- [40]If a final and conclusive judgment or decree by a judicial tribunal as to the merits of a case exhausts, in the absence of an order to the contrary by a superior tribunal, its powers and jurisdiction in respect of that case, it is functus officio. There are some limited exceptions found in the QCAT Act to the application of the doctrine of functus officio in tribunal proceedings. A party may apply to the tribunal to renew a final decision in limited defined circumstances including where it is not possible for the tribunal’s final decision to be complied with or where there are problems with interpreting, implementing or enforcing the tribunal’s final decision in a proceeding.[33] A party may apply to the tribunal to reopen a proceeding if the party considers a reopening ground exists for the party.[34] Only a party may apply to renew a final decision or reopen a proceeding. In the present case, these statutory exceptions have no application. The applicants are not, and never were, parties in OCL067-14. This much was conceded by the applicants at the hearing of the present application in abandoning the application for reopening.
- [41]The applicants correctly submit that there remains for determination in OCL067-14 the application by Trojan for costs. However the application for costs was made by Trojan after the delivery of the final decision at first instance. Generally speaking, a proceeding ends when the tribunal makes a final decision. A final decision means the tribunal’s decision that finally decides the matters the subject of the proceeding.[35] The substantive proceeding ended when the final decision was given in OCL067-14. The issue of costs arises as a result of Trojan’s subsequent costs application. The tribunal’s power to make an order for costs after a proceeding has ended is found in s 106 of the QCAT Act. The tribunal is functus officio in OCL067-14 save for the determination of costs.
- [42]The applicants’ submission that the Tribunal has an inherent jurisdiction to set aside the decision in OCL067-14 is plainly erroneous. The tribunal is a creature of statute having no inherent jurisdiction. The powers of the tribunal are those conferred by the QCAT Act and the relevant enabling Act, in this case the BCCM Act. Neither the QCAT Act nor the BCCM Act confer power upon the tribunal to make the orders sought by the applicants.
- [43]The tribunal has certain implied powers but only to the extent reasonably necessary to give effect to the jurisdiction conferred upon the tribunal.[36] The applicants have not sought to argue any implied power that might be invoked to grant the relief sought.
- [44]The applicants rely upon a number of authorities for the general proposition that a decision of a tribunal infected by jurisdictional error is a nullity. The applicants rely upon the decision of the Court of Appeal in Powell & Anor v Queensland University of Technology & Anor.[37] Powell involved an appeal to QCAT from a decision by the Information Commissioner affirming an earlier decision by QUT in relation to the release of documents. The Court of Appeal found that orders made by the Tribunal were beyond the jurisdiction conferred by the Information Privacy Act 2009 (Qld), were a nullity and had no effect even absent an order by the Court of Appeal setting them aside.
- [45]The applicants also rely upon the decision of the High Court in Minister for Immigration v Bhardwaj.[38] In Bhardwaj the Immigration Review Tribunal (IRT) made a decision unfavourable to an applicant seeking a review of a decision without permitting the applicant the opportunity to be heard. This was contrary to the provisions of the Migration Act 1958 (Cth) which provided that unless an application for review could be determined favourably to an applicant without oral evidence, the IRT was required to give the applicant an opportunity to appear and give evidence and present arguments and give notice to the applicant to this effect. The IRT, upon discovering the error, proceeded to conduct a hearing and make a second decision favourable to the applicant. The High Court held that the tribunal had the power to make the second decision on the basis that the original decision was made in jurisdictional error, the original decision had not effected a review as required by the Migration Act and was therefore of no legal effect.
- [46]The applicants rely upon the decision of the New South Wales Court of Appeal in Italiano v Carbone & Ors.[39] In Italiano, Mr Italiano was the director of a painting company which brought a claim in the NSW Consumer, Trader and Tenancy Tribunal against the defendant homeowner for money owing. The homeowner counterclaimed in respect of defective work. An amended counter application sought to claim against Mr Italiano personally. No application was made to join Mr Italiano as a defendant. The CTTT made a final decision in the matter adverse to Mr Italiano personally. The NSW Court of Appeal held that in light of various breaches of statutory provisions (including provisions for the joinder of parties), the CTTT did not discharge its statutory function, Mr Italiano was not a party to the proceedings and the CTTT had acted ultra vires in making its decision.
- [47]The decisions in Powell, Bhardwaj and Italiano can be readily distinguished from the present case. Each involved review by a superior court of a decision by an inferior tribunal. None of the cases relied on by the applicants is authority for the proposition that the tribunal may review its own final and perfected decision, determine that the decision was infected by jurisdictional error, set aside the decision, allow the joinder of additional parties and undertake to rehear the matter in circumstances where all appeal avenues in respect of the original final decision have been exhausted.
- [48]If the applicants seek to have the decision in OCL067-14 set aside for jurisdictional error on the basis that the applicants were not afforded procedural fairness, they must seek such relief elsewhere. The tribunal has no power to grant the relief sought by the applicants.
- [49]For the sake of completeness I would add the following observations. Mr Lovel, and through him, Emprove, had the opportunity prior to the final hearing in OCL067-14, and during the hearing, to seek to be joined as parties. Mr Lovel is a solicitor. He was, at the time of the hearing in OCL067-14, the chairperson of the body corporate. He attended the hearing at first instance and, as the chairperson of the body corporate, provided instructions to the body corporate’s legal representatives. If at any stage of the hearing in OCL067-14 Mr Lovel formed the view that the interests of the applicants may have been affected by the proceeding, he could have raised this with the body corporate committee, the body corporate’s legal representatives or the tribunal. He did not do so. The applicants had the opportunity, prior to and during the hearing in OCL067-14, to seek independent legal advice regarding the joinder of the applicants as parties. They did not do so. At the hearing of the present application Mr Lovel conceded this. Indeed, Mr Lovel concedes that, until the final decision was delivered in each matter, he believed the body corporate would be successful in OCL067-14 and in APL403-15. It seems that it was not until the body corporate decided against appealing the decision in APL403-15 that the applicants formed the view their interests were affected such that they sought to play a direct role as parties resulting in the unsuccessful appeal to the Court of Appeal. There was, in my view, no failure to afford the applicants procedural fairness.
Conclusion and orders
- [50]The appropriate order is that the application to be joined to a proceeding is refused.
- [51]Trojan has indicated that it seeks its costs. I will make directions for the parties to file submissions on costs.
Footnotes
[1]Trojan Resorts Pty Ltd v Body Corporate for the Reserve [2015] QCAT 337.
[2]Body Corporate for the Reserve v Trojan Resorts Pty Ltd [2017] QCATA 53.
[3]Trojan Resorts Pty Ltd v Emprove Holdings Pty Ltd [2017] QCA 153.
[4]Application for reopening, correction, renewal or amendment filed 8 January 2018.
[5]Application to be joined to a proceeding filed 8 January 2018.
[6]QCAT Act, s 42(1).
[7]Ibid, s 42(2).
[8]See QCAT Act, s 39 – parties to original jurisdiction.
[9][2017] QCA 153.
[10](1997) Aust Torts Reports 81-423.
[11]QCAT Act, s 39.
[12]Body Corporate for London Woolstores Apartments & Ors v Queensland Building Services Authority [2011] QCAT 86.
[13]A B Hill Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 46.
[14]ML Spicer Pty Ltd t/as Purebuild Homes v Doeuk [2016] QCAT 214.
[15]BCCM Act, Schedule 6.
[16]Ibid, s 229(2).
[17]Ibid, s 149B(1).
[18][2018] QCAT 283.
[19][2008] CCT KC003-08.
[20]Ibid.
[21] Ibid, [25].
[22]BCCM Act, s 227(1)(d), (e) and (f).
[23]Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283, [30].
[24]See for example Lamaletie v Catchafuture Pty Ltd [2012] QCAT 596; Whitfield and Anor v Vardon Point Apartments [2012] QCAT 543; Baltus & Anor v R Jackson Pty Ltd [2017] QCAT 287; Sheehy, R. & V. v The Body Corporate For Marlin Cove CTS 321288 & Trinity Beach Holidays Pty Ltd [2008] QCCTBCCM 14 (21 August 2008).
[25]QCAT Act, s 100.
[26]See above at paragraphs [11] and [12].
[27]QCAT Act, s 41(2).
[28][2012] QCATA 110.
[29](1997) 189 CLR 579
[30]QCAT Act, s 3(b).
[31]Ibid, s 28(2).
[32]See the discussion by Brennan CJ in relation to directly and indirectly affected interests in Levy v Victoria.
[33]QCAT Act, s 133(1).
[34]Ibid, s 138(1).
[35]Ibid, Schedule 3.
[36]Grassby v R (1989) 168 CLR 1 at 17; and see the discussion in Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130 in relation to the difference between inherent and implied powers.
[37][2017] QCA 200.
[38](2002) 209 CLR 597.
[39][2005] NSWCA 177.