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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
4D Electrical Qld v Greyburn Pty Ltd  QCAT 74
4D ELECTRICAL QLD
GREYBURN PTY LTD
11 March 2020
On the papers
Senior Member Brown
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – where parties have entered into a building contract for the supply and installation of electrical works and performance of electrical works – where applicant alleges $37,162.40 is owing by the respondent for work it has performed – where respondent applies for the proceedings to be dismissed – where respondent claims that clause 26 of the contract required parties to participate in an alternative dispute resolution in the event of a dispute – where parties have not participated in a formal contractual arbitration process – where clause 26 of the contract has not been complied with – where the tribunal has power to dismiss proceedings where a proceeding is frivolous, vexatious or misconceived, or lacking in substance or an abuse of process under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether proceedings should be stayed pending compliance by the parties with clause 26 of the contract
Commercial Arbitration Act 2013 (Qld), s 8(1)
Legal Profession Act 2004 (Qld), s 432(1)
Queensland Building Construction Commission Act 1991 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 3(b), s 4, s 4(c), s 6(5), s 6(9)(a), s 9(4), s 22(3), s 28(1), s 28(2), s 28(3)(d), s 47, s 51A(2), s 58, s 58(1), s 62(1) s 108(4), s 109(2)(b), s 138A(2), s 145(2),
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241  QCAT 277
Board of Professional Engineers of Queensland v Lennox  QCAT 702
Cable & Wireless plc v IBM UK Ltd  CLC QB 1319
Camillo Concrete Structures Pty Ltd v Baulderstone Pty Ltd (Domestic Building)  VCAT 285
De Simone v Bevnol Constructions & Developments Pty Ltd  VSCA 199
Dowie v Northey & Anor  VCAT 823
Downer EDI Mining Pty Ltd v Wambo Coal Pty Ltd  QSC 290
Henry v The Body Corporate for La Solana CTS 456 and CTS 224  QCAT 22
Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194
Legal Services Commission v Baker  2 Qd R 107
Pelechowski v Registrar, Court of Appeal (NSW) (1996) 162 ALR 336
Santos Limited v Fluor Australia Pty Ltd  QSC 129
Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building)  VCAT 2629
Straits Exploration (Australia) Pty Ltd v Murchison United NL & Anor (2005) 31 WAR 187
Weier, N. D. v Pugh, B.  QCCTB 120
Zeke Services Pty Ltd v Traffic Technologies Ltd  2 Qd R 563
REASONS FOR DECISION
- 4D Electrical Qld (‘4D’), as sub-contractor, entered into a contract (‘the contract’) with Greyburn Pty Ltd (‘Greyburn’), as principal contractor, for the supply and installation of electrical works and performance of electrical works at commercial premises (‘the works’).
- 4D says that it is owed $37,162.40 by Greyburn in respect of the work it has performed and has commenced recovery proceedings in the tribunal.
- Greyburn says that the contract required the parties, in the event of a dispute arising, to participate in an alternative dispute resolution prior to 4D commencing these proceedings. Greyburn has applied for the proceedings to be dismissed. The dismissal application falls for determination.
- The contract is dated 22 March 2017 and comprises:
- (a)The construction sub-contract;
- (b)The scope of works; and
- (c)Drawings and specifications.
- The total contract price was fixed at $228,750.00 exclusive of GST.
- The contract provided at clause 26:
a. In the event of any dispute arsing hereunder or in any way in connection with the Works, whether before or after the completion or determination hereof, then either party shall give to the other notice in writing by certified mail of such dispute. At the expiry of seven (7) days from the date of receipt of such notice by the Principal Contractor or the Sub-Contractor as the case may be such dispute (unless settled) shall be and is hereby referred to the Arbitration of the President of the Master Builders’ Association or the Institution of Engineers or, in the event that neither are able or willing to act, by an arbitrator appointed in accordance with the provisions of the appropriate Act of the State of Queensland.
b. The party serving notice of dispute and demand for Arbitration pursuant to the proceeding sub-clause shall provide evidence that they have deposited with the Secretary of the Master Builders’ Association or the Institution of Engineers of the State of Queensland the sum of $5,000.00 or, in the event of the dispute being in connection with the valuation of a claim, charge or debt between the parties hereto, ten (1) percent of the amount in dispute, whichever is the greater, by way of security for costs of Arbitration proceedings, and this shall be applied as directed by the Arbitrator.
c. Neither party shall be entitled to commence or maintain any legal action upon the dispute or difference until such matter has been referred or determined as hereinbefore provided and then only for the amount of relief to which the Arbitrator by this award finds either party is entitled. The cost of the submission, reference and award, and the apportionment thereof shall be in the discretion of the said Arbitrator.
d. Any submission to arbitration under this clause shall not relieve either party of any of its obligations under this Contract Agreement.
- In Downer EDI Mining Pty Ltd v Wambo Coal Pty Ltd (‘Downer’), Martin J considered an application for a stay of proceedings as a result of non-compliance with a pre‑proceedings mandatory dispute resolution clause in a contract. Martin J observed that the clause in question did not purport to oust the jurisdiction of the court, rather it made compliance with its terms a condition precedent to the commencement of proceedings.
- His Honour referred to Straits Exploration v Murchison, where it was held:
 Prior to the conclusion of the expert determination procedure - that is, prior to the making of a determination - any party to a contract containing such a clause remains free to sue upon the contract, unless the contract itself makes compliance with some form of dispute resolution procedure a condition precedent to the enforcement of rights under the contract. In relation to the latter type of contract, the effect of the clause is not to invalidate an action brought in breach of it, but to provide a defence and to "postpone" but "not annihilate the right of access to the court". … Where a contract contains a dispute resolution clause, and a party who has not first proceeded in accordance with that clause sues on the contract, the court has, however, a jurisdiction to stay the proceeding so as, in a practical sense, to force the party to fall back upon the contractual procedure.
- In Zeke Services Pty Ltd v Traffic Technologies Ltd, the burden on the parties in an application to stay proceedings was considered by Chesterman J:
 The discretion whether or not to grant the stay is obviously wide. The starting point for a consideration of its exercise is that the parties should be held to their bargain to resolve their dispute in the agreed manner. This factor was emphasised by the House of Lords in Channel Tunnel, by the High Court in Dobbs and Huddart Parker Ltd v The Ship Mill Hill and Her Cargo (1950) 81 CLR 502 (an arbitration case) and by Gillard J in Badgin. However, a stay will not be granted if it would be unjust to deprive the plaintiff of the right to have his claim determined judicially or, to put it slightly differently, if the justice of the case is against staying the proceeding. The party opposing the stay must persuade the court that there is good ground for the exercise of the discretion to allow the action to proceed and so preclude the contractual mode of dispute resolution. The onus is a heavy one. The court should not lightly conclude that the agreed mechanism is inappropriate.
- In Santos Limited v Fluor Australia Pty Ltd, a contractual dispute resolution procedure had not been complied with by the parties. The plaintiff argued that sufficient information had been exchanged between the parties outside the contractual process to make it clear that enforcement of the terms of the relevant clause would be impractical or useless. Douglas J referred to the ‘heavy burden’ faced by an applicant in seeking to persuade a court to depart from the starting point that the parties should be held to their bargain to resolve their dispute in the agreed manner. His Honour referred to Cable & Wireless plc v IBM UK Ltd, where it was held:
“On the face of it, there can be no doubt that C & W has declined to participate in any ADR exercise. As such it is in breach of cl. 41.2. IBM is thus at least prima facie, entitled to the enforcement of the ADR agreement. However, given the discretionary nature of the remedy it is important to consider what factors might also be relevant to the way in which the court’s discretion should be exercised. Analogously to enforcement of a reference to arbitration, strong cause would have to be shown before a court could be justified in declining to enforce such an agreement. For example, there may be cases where a reference to ADR would be obviously futile and where the likelihood of a productive mediation taking place would be so slight as not to justify enforcing the agreement. Even in such circumstances ADR would have to be a completely hopeless exercise. It is argued in the present case that because this dispute raises an issue of construction which, given that this is a long term contract, needs to be resolved by the courts as early as possible, the parties should be left to litigate it. Whereas, this would probably be a highly relevant consideration if it arose in the context of a case management conference in the absence of an agreement to refer, it must carry very much less weight in the face of an agreement to refer to ADR. This is because parties who enter into an ADR agreement such as this must be taken to appreciate that mediation as a tool for dispute resolution is not designed to achieve solutions which reflect the precise legal rights and obligations of the parties, but rather solutions which are mutually commercially acceptable at the time of the mediation. If therefore they agree to a reference to ADR which, as in the present case, is wide enough to cover pure issues of construction, they have at best a weak basis for inviting the court to withhold enforcement, even in a case where on the face of it resolution by the courts would be likely to be beneficial to the parties’ future operation of their contract.”
- In Hooper Bailie Associated Ltd v Natcon Group Pty Ltd, Giles J, in relation to the enforcement of a contractual mechanism to resolve a dispute between parties stated, ‘What is enforced is not co-operation and consent but participation in a process from which co-operation and consent might come’.
- It does not appear to be contentious as between the parties that the effect of clause 26 was to require the parties to comply with the provision before commencing these proceedings. The present dispute is a commercial building dispute. The Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) prohibits arbitration clauses in domestic building contracts and any such provision is void. There is no such prohibition in relation to commercial building contracts.
- 4D says that it was as a result of Greyburn’s inaction and refusal to meet with 4D that it commenced these proceedings. 4D refers to what it says was a significant change in the scope of works under the contract and that, to avoid delays in the completion of the works, it elected to undertake the works in accordance with a set of revised drawings. 4D says that the final progress claim was disputed by Greyburn leading to the commencement of the proceedings.
- Greyburn says, contrary to the assertion by 4D, it did not refuse to meet with 4D and attempted to resolve the dispute. Greyburn refers to an email communication to 4D prior to the commencement of the proceedings in which Greyburn requested, prior to ‘any meaningful meeting’, a written response in relation to a number of issues relating to the claim by 4D. Greyburn says that 4D did not address the issues satisfactorily and the proposed meeting did not eventuate despite the willingness of Greyburn to do so.
- The position adopted by 4D, implicit in its submissions, is that participation in the formal contractual arbitration process is futile and cannot lead to a resolution of the dispute.
- I am satisfied however that, as was the case in Downer, this is not a matter in which the parties have participated in the dispute resolution process and demonstrated that it is pointless to continue. As Martin J observed in Downer, ‘In any event, it is not uncommon to find that parties which are at loggerheads can, through a formal process of negotiation, reach an agreed position’.
- The parties entered into a commercial contract which clearly provided for an alternative dispute resolution process to be undertaken in the event of a dispute. That process has not been undertaken and clause 26 of the contract has not been complied with. In my view the parties should be held to the terms of the bargain they struck.
- As I have noted, Greyburn seeks to have the proceedings dismissed. The tribunal has the power to dismiss proceedings that are frivolous, vexatious or misconceived, or lacking in substance, or otherwise an abuse of process. In the cases to which I have referred however, the non-compliance by the parties with a contractual pre‑proceedings arbitration clause led not to the dismissal of the proceedings, but a stay pending compliance with the relevant contractual provisions. This gives rise to consideration of whether the tribunal has the power to stay the proceedings by 4D.
- The tribunal is a creature of statute and has only those powers conferred upon it by the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’) and the various enabling Acts. Unlike the courts, the tribunal has no inherent jurisdiction. The relevant enabling Act is the QBCC Act. The QBCC Act confers upon the tribunal no general power to stay proceedings. Nor does the QCAT Act confer any specific power expressed in such terms.
- The tribunal must find its power in the express language of the QCAT Act and in the implications which derive from that language; however, in the absence of an express power, the tribunal may have an implied power to grant certain kinds of relief.
- In Pelechowski v Registrar, Court of Appeal (NSW) the High Court held:
 It is against this background that there falls for consideration the submissions with respect to the implied power of the District Court in a case such as the present where a final judgment had been recovered in an action.
 Some guidance in the matter is provided by the decision of this court in Grassby v R. It was there held that specific provision upon the subject made in the Justices Act 1902 (NSW) left no room for the implication of a discretionary power to terminate proceedings in a manner other than that provided. The result was that a magistrate had no power to order a stay of committal proceedings as an abuse of process. The leading judgment was given by Dawson J. After referring to the proposition that it is the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power, his Honour continued:
It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise... Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.
Dawson J concluded that recognition of the existence of the powers which an inferior court must possess by way of necessary implication will be called for:
whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’.
 The term ‘necessary’ in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely, as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term ‘necessary’ does not have the meaning of ‘essential’; rather it is to be ‘subjected to the touchstone of reasonableness’.
- It follows from the above that the tribunal has those implied powers reasonably necessary to accomplish the jurisdiction conferred upon it. The starting point is a consideration of the relevant provisions of the QCAT Act.
- The tribunal has power to order a stay in specific circumstances:
- (a)Stay of a decision made under an enabling Act;
- (b)Stay of a decision by default;
- (c)Stay of a proceeding until costs paid or security for costs given;
- (d)Stay of a decision pending the determination of a reopening application;
- (e)Stay of a decision pending the determination of an appeal.
- However there are also other relevant provisions of the QCAT Act which include:
- (a)The tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick;
- (b)The tribunal must ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice;
- (c)The tribunal may do all things necessary or convenient for exercising its jurisdiction;
- (d)The procedure for a proceeding is at the discretion of the tribunal, subject to the QCAT Act, an enabling Act and the rules;
- (e)In conducting a proceeding the tribunal must act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, an enabling Act or the rules, and a proper consideration of the matters before the tribunal, permit;
- (f)The tribunal may make an interim order it considers appropriate in the interests of justice;
- (g)The tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding;
- In Weier, N. D. v Pugh, B., the former Queensland Consumer and Commercial Tribunal found that the tribunal had no power generally to order a stay of a claim in an application involving a building dispute over which the tribunal had jurisdiction.
- In Legal Services Commission v Baker, the Court of Appeal, in considering the power of the Legal Practice Tribunal to ‘do all things necessary or convenient to be done for exercising its jurisdiction’, held:
 Section 23 of the Supreme Court Act 1970 (NSW) provides that that court should “have all jurisdiction which may be necessary for the administration of justice in New South Wales”. The grant of power to the Tribunal is wider: it has such power as is “necessary or convenient” for the exercise of its jurisdiction. In Dwyer v National Companies and Securities Commission (1988) 15 NSWLR 285 the director of a company was served with a notice the effect of which was to prevent him acting as a director of any company without the leave of the Supreme Court. The director appealed from the decision of the regulator which had served the notice and sought a stay until his appeal could be heard. McLelland J thought that the power to stay the notice was incidental to the existence of a right of appeal to the court and derived both from its inherent power and from s 23.
 These cases are more than adequate authority for the opinion that s. 432(1) of the Act confers a power on the Tribunal to make an order deferring the operation of a recommendation that a practitioner's name be removed from the roll. If there were a proper case for a stay of an order made by the Tribunal injustice would be done if the stay could not be granted. In such a case an order granting a stay would be necessary or convenient for the exercise of the Tribunal's jurisdiction.
- The same powers conferred upon the Legal Practice Tribunal referenced by the Court of Appeal are conferred upon QCAT by s 9(4) and s 62(1) of the QCAT Act.
- In Board of Professional Engineers of Queensland v Lennox, it was held that QCAT had the implied power to permanently stay proceedings that constituted an abuse of process.
- Given the dearth of Queensland authority in relation to the power of QCAT to order a stay of civil proceedings, it is appropriate to look to a number of Victorian authorities dealing with the powers of the Victorian Civil and Administrative Tribunal (‘VCAT’).
- In Dowie v Northey & Anor (‘Dowie’), it was held that VCAT had jurisdiction to stay proceedings. Deputy President McKenzie stated:
In my view VCAT has power to stay proceedings. This power is given by a combination of various sections. There is s.80 which is the power, among other things, to do whatever is necessary to facilitate the fair hearing of proceedings. There is the Tribunal's obligation under s.97 to act fairly. There is the Tribunal's power to regulate its own procedure under s.98(3). The principles that ought to be applied in relation to stays are the principles, in my view, which courts apply in the same circumstances.
- In Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building), VCAT Vice President, Judge Ross, accepted the correctness of the decision in Dowie, finding that the tribunal had the power to order a stay of proceedings. On appeal, the Victorian Court of Appeal in De Simone v Bevnol Constructions & Developments Pty Ltd did not disturb VCAT’s findings.
- The decision in Dowie was followed in Camillo Concrete Structures Pty Ltd v Baulderstone Pty Ltd (Domestic Building), where VCAT considered an application for a stay order to enable compliance with contractual dispute resolution procedures. VCAT Vice President, Judge Harbison, agreed with the decision in Dowie and held:
 In De Simone v Bevnol Constructions and Developments Pty Ltd (2009) VSCA 199, the Court of Appeal accepted that the Tribunal possessed the power to grant a stay, and said that the decision as to whether or not to grant a stay should be governed by a consideration as to whether it was required in the interests of justice.
- I find the reasoning in the various Victorian authorities to which I have referred compelling.
- As I have noted, the QCAT Act contains provisions directly analogous to those referred to found in the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) and analogous provisions to those referred to in Baker. Further, there is the power found in s 58 of the QCAT Act to make an interim order the tribunal considers appropriate in the interests of justice.
- In my view the combined effect of s 28(1), s 28(2), s 58(1) and s 62(1) of the QCAT Act is to confer upon the tribunal the power to order a stay of proceedings if it is in the interests of justice to do so. What constitutes the interests of justice will depend upon the facts of each case. The construction I have adopted is, in my view, harmonious with the overall legislative scheme and intent of the QCAT Act and specifically, sections 3 and 4 of the Act.
- Section 8(1) of the Commercial Arbitration Act 2013 (Qld) (‘CAA’) provides:
A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.
- I do not propose to address further the possible application of s 8(1) of the CAA as neither party has made submissions regarding the application of the Act nor has either party requested that the dispute be referred to an arbitration.
- Greyburn seeks to have the proceedings dismissed. The proceedings can only be dismissed pursuant to s 47 of the QCAT Act. There is ample authority that the power conferred by s 47, which is in effect a summary judgement power, should only be exercised in the clearest of cases and in circumstances where the tribunal is satisfied that a proceeding is frivolous, vexatious or misconceived, or lacking in substance, or otherwise an abuse of process.
- I have referred earlier in these reasons to the decision in Straits Exploration v Murchison where it was held that the effect of a clause such as is presently under consideration is not to invalidate the proceedings for breach of the clause but to provide a defence and to postpone, but not annihilate, the right of access to the court.
- In the end result, I am not prepared to dismiss the proceedings. In my view, the appropriate order is that the proceedings are stayed pending compliance by the parties with clause 26 of the contract. I am not prepared however to permit the stay to be open ended. Such an outcome would not be consistent with the objects of the QCAT Act. The parties must be appropriately incentivised to ensure that they act promptly to enable these proceedings to be progressed expeditiously.
- Accordingly, I will order that the proceedings are stayed for a period of three months from the date of this order. 4D must, on or before the expiration of three months from the date of this order, file in the Tribunal evidence that the parties have complied with clause 26 of the contract. Upon compliance, the tribunal will make further directions to progress the proceedings. In the event 4D fails to comply, the proceedings will be dismissed.
  QSC 290, -.
 (2005) 31 WAR 187, .
  2 Qd R 563, .
  QSC 129.
 Ibid .
  CLC QB 1319, 1328.
 (1992) 28 NSWLR 194, 206.
 Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) sch 1B, s 32(1).
 Response and/or counter-application filed 12 April 2019.
 Downer EDI Mining Pty Ltd v Wambo Coal Pty Ltd  QSC 290.
 Ibid .
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 47.
 Henry v The Body Corporate for La Solana CTS 456 and CTS 224  QCAT 22, .
 Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241  QCAT 277, .
 (1996) 162 ALR 336, -.
 QCAT Act s 6(5), s 6(9)(a), s 22(3).
 Ibid s 51A(2).
 QCAT Act s 108(4), s 109(2)(b).
 Ibid s 138A(2).
 Ibid s 145(2).
 Ibid s 3(b).
 Ibid s 4(c).
 Ibid s 9(4).
 Ibid s 28(1).
 Ibid s 28(3)(d).
 Ibid s 58(1).
 Ibid s 62(1).
  QCCTB 120.
 Legal Profession Act 2004 (Qld) s 432(1).
  2 Qd R 107, , .
  QCAT 702, 42.
  VCAT 823.
  VCAT 2629, -.
  VCAT 823.
  VSCA 199.
  VCAT 823.
  VCAT 285.
  VCAT 823.
  VCAT 285, .
 Legal Services Commission v Baker  2 Qd R 107.
 QCAT Act s 47.
 Straits Exploration (Australia) Pty Ltd v Murchison United NL & Anor (2005) 31 WAR 187.
- Published Case Name:
4D Electrical Qld v Greyburn Pty Ltd
- Shortened Case Name:
4D Electrical Qld v Greyburn Pty Ltd
 QCAT 74
11 Mar 2020