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Scott v James Dickson Constructions & Anor QCATA 74
Scott v James Dickson Constructions & Anor  QCATA 74
James Dickson Constructions
On the papers
A/Deputy President Brown
30 June 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where order for the removal of respondent – where errors in reasons for removal – whether substantial injustice – whether leave to appeal should be allowed
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42(1), s 42(1)(b), s 47(1), s 47(2)(a), s 48(2)(b)(ii), s 126(2), s 142, s 142(3)(a)(i), s 142(3)(a)(ii), s 143(3), s 143(5)(c), s 146, Schedule 3
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 48(1), r 48(2), r 48(3)
Boral Resources Pty Ltd v Robak Engineering & Construction Pty Ltd  2 VR 507;  VSCA 66
Cachia v Grech  NSWCA 232
Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2)  QCATA 242
Drew v Bundaberg Regional Council  QCA 359
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
Interchase Corporation Ltd (in liquidation) v FAI General Insurance Co Ltd & Ors  2 Qd R 301
Jones v Cusack (1992) 109 ALR 313;  HCA 40
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
Mudie v Gainriver Pty Ltd (No 2)  2 Qd R 271;  QCA 546
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41;  QCA 257
Slater v Wilkes  QCATA 12
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- Mr Scott owns a residential rental property on the Gold Coast. At various times, Platinum Property Real Estate (“Platinum”) managed the property. James Dickson is a builder who, together with Lenore Dickson, operates a partnership called James Dickson Constructions. At various times, Mr Dickson performed building work at the property. Mr Dickson says that Platinum instructed James Dickson Constructions to perform the building work.
- Mr Dickson commenced proceedings against Mr Scott for the recovery of a minor debt in the Tribunal’s minor civil disputes jurisdiction seeking recovery of the cost of the building work performed at the property. Mr Dickson and James Dickson Constructions are the applicants in those proceedings. Mr Scott denied authorising Platinum to engage Mr Dickson to perform the building works. Mr Scott successfully applied to join Platinum as a respondent in the proceedings. Platinum then successfully applied to be removed as a respondent. Mr Dickson played no part in these applications. It is the decision to remove Platinum as a respondent that is the subject of this appeal by Mr Scott.
- In this appeal, the sole respondent is James Dickson Constructions. Mr Dickson is not named as a party to the appeal. He should be. Accordingly I order that James Dickson be joined as a respondent.
- The issues for determination are:
- Was the application for leave to appeal and appeal filed within time?
- Did the Tribunal err in ordering the removal of Platinum as a respondent?
- If the Tribunal erred, what are the appropriate orders in disposing of this appeal?
- A party may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding. Leave is required to appeal against a decision in a proceeding for a minor civil dispute and a decision that is not the Tribunal’s final decision in a proceeding. An application for leave to appeal must be filed within 28 days after the date the party is given written reasons for the decision being appealed against.
- In deciding an appeal on a question of law, the Appeal Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; set aside the decision and return the matter to the Tribunal for reconsideration with or without hearing further evidence; or make any other order the Appeal Tribunal considers appropriate.
- In deciding an appeal on a question of fact or mixed law and fact, the appeal must be decided by way of rehearing. The Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.
- The relevant principles to be applied in determining whether to grant leave to appeal include: is there a reasonably arguable case of error in the primary decision; is there a reasonable prospect that the applicant will obtain substantive relief; is leave necessary to correct a substantial injustice to the applicant caused by some error; is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.
Was the application for leave to appeal and appeal filed within time?
- The submissions by Platinum appear to raise the suggestion that Mr Scott’s application for leave to appeal or appeal was filed out of time.
- The order for the removal of Platinum as a respondent was made on 27 May 2016. On 2 June 2016 Mr Scott’s solicitor requested reasons for the decision. On 9 August 2016 Mr Scott’s solicitor received from the Tribunal the reasons for the decision. The application for leave to appeal or appeal was filed by Mr Scott on 17 August 2016. The application was required to be filed within 28 days of Mr Scott receiving the reasons for the decision of 27 May 2016. Mr Scott did this. The application for leave to appeal or appeal has been filed within the time required by s 143(3) of the QCAT Act.
The order joining Platinum as a respondent
- It is relevant in determining this appeal to consider the circumstances in which Platinum was joined as a party in the proceedings below. Mr Dickson’s claim was against Mr Scott. He made no claim against Platinum and asserted that Platinum at all times acted as Mr Scott’s agent. It was Mr Scott who applied to have Platinum joined as a party. The joinder application did not comply with QCAT Practice Direction No 8 of 2013 which relevantly provides:
A party or person making an application for joinder must specify the capacity in which the person is sought to be joined as a party to a proceeding. That is, whether the person be joined as an applicant, or as a respondent.
- The joinder application merely seeks:
The joinder of Platinum Properties Real Estate as a party to this Application.
- There is therefore nothing before me to indicate that Mr Scott gave consideration to the basis upon which Platinum be joined and what the consequences of a joinder order would be. The Tribunal ordered that Platinum be joined as a respondent. The decision was made on the papers and no reasons for the decision were given nor requested by the parties.
- The Tribunal may make an order joining a person as a party to a proceeding if the Tribunal considers that (a) the person should be bound by or have the benefit of a decision of the Tribunal in the proceeding; or (b) the person's interests may be affected by the proceeding; or (c) for another reason, it is desirable that the person be joined as a party to the proceeding.
- A respondent to an application may make a counter application against another person who may or may not be a party to the proceeding. A counter application may be made instead of making a separate application to the Tribunal. A counter application cannot, however, be made in response to an application for a minor debt claim. A minor debt claim is a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount.
- In proceedings for the recovery of a minor debt, the Tribunal may, if circumstances suggest that a respondent could have brought a counter application, order that the circumstances be dealt with as a separate minor debt claim and give appropriate directions. The powers conferred by r 49 of the QCAT Rules are limited however to a possible counter application by a respondent against an applicant, not against a third party. The rule is of no application in the present circumstances.
- Because the claim by Mr Dickson is one for a minor debt, Mr Scott cannot make a counter application against Platinum. There are no third party proceedings available in the Tribunal. Accordingly, the only basis upon which Platinum could be joined as a party was as a respondent to Mr Dickson’s claim.
- The phrase concerning the joinder of a person ‘whose presence before the Court may be necessary in order to enable the Court effectually and completely to the adjudicate upon and settle all questions involved in the cause’ has been interpreted thus:
… where a person is sought to be joined as a defendant in an action over the opposition of the plaintiff, what is necessary for the purposes of this phrase should be viewed strictly so as to prevent a plaintiff from being compelled to sue someone whom he or she does not wish to sue.
- The fact that an applicant does not wish to proceed against a respondent may be a relevant consideration in exercising the discretion to join, but it is not conclusive.
- The considerations relevant to the joinder of a person as a party will vary from case to case and will also depend upon whether the proceeding is one in the Tribunal’s original jurisdiction, review jurisdiction or appeal jurisdiction. In the exercise of its review jurisdiction for example, the Tribunal may consider it appropriate to make an order joining a party to a proceeding. In review proceedings relating to a decision concerning the rectification of defective building work, it may be appropriate to join a party who might be found liable for defective building work. It does not follow that all contractors involved in undertaking the relevant building work should be joined in such a proceeding. There must be some utility or purpose in the joinder.
- Proceedings in the Tribunal’s original jurisdiction are generally of an adversarial nature. In such proceedings, an application to join a party as a respondent upon the application of another respondent is to be approached with some considerable degree of caution, particularly in proceedings for the recovery of a minor debt where there is no entitlement by a respondent to pursue a counter application.
- In its submissions in this appeal, Mr Dickson says that he has rightfully brought his claim against Mr Scott. Whilst Mr Dickson submits that he ‘has no issue if (Platinum) are (sic) joined as a party to the proceedings’ it is readily apparent from the submissions that Mr Dickson is quite content to pursue his claim against Mr Scott and not Platinum. Nothing in Mr Dickson’s submissions reflect any intention on his part to pursue a claim against Platinum. Relevantly, there is nothing in Mr Dickson’s submissions that indicate an appreciation or understanding on his part that the joinder of Platinum effectively required Mr Dickson to pursue a separate claim against the agent.
The order removing Platinum as a respondent
- Platinum applied to the Tribunal on 25 May 2016 to be removed as a respondent. Platinum identified a number of reasons for seeking the order including that Mr Dickson had not sought Platinum’s joinder in the first place and that Platinum was acting at all times under the direction of Mr Scott and was Mr Scott’s ‘employee’.
- Platinum relied upon an affidavit by Mr Nightingale, a clerk in its employ. Mr Nightingale’s affidavit largely mirrored the matters set out in the application by Platinum to be removed as a party.
- Platinum’s application to be removed as a respondent was heard on the papers. No material was filed by the other parties. On 27 May 2016 the Tribunal ordered that Platinum be removed as a respondent.
What the parties say in this appeal
- Mr Scott says that the Tribunal erred in finding that Mr Scott had commenced the proceedings below.
- Mr Scott says that the Tribunal erred in finding that Platinum was not his agent at the relevant time and therefore not a proper respondent. Mr Scott says that the finding was contrary to the weight of the evidence filed by Mr Dickson in the proceedings below.
- The submissions filed by Mr Scott refer to the appropriateness for Platinum to be included as a party. In essence, Mr Scott says that Platinum acted beyond the scope of its authority and is therefore liable for any amount claimed and recoverable by Mr Dickson. Mr Scott says that it is appropriate that Platinum is included as a party on the bases that: it is in the interests of justice; that it is necessary to ensure that any order by the Tribunal has the practical effect of disposing of all issues between the parties; the evidence of Platinum will form ‘a central and essential component of the evidence’ to be considered by the Tribunal.
- Mr Dickson says that Platinum was Mr Scott’s agent and that he is bound by Platinum’s actions in authorising the performance of the building works. Mr Dickson says that his claim is against Mr Scott who alone has benefited from the building work Mr Dickson performed.
- The reasons for decision state:
Mr Scott later filed an application for a minor civil debt and, some time after filing, sought to have Platinum Properties joined as a respondent.
- There can be no doubt that the Tribunal was in error in making this statement however it does not, in my view, constitute a finding.
- The Tribunal found:
From my reading of the documents, it seems that Platinum Properties was not an agent at the relevant time the debt was allegedly incurred and, therefore, not an appropriate respondent at the relevant times.
- The evidence before the Tribunal was:
- Mr Dickson provided Platinum with a scope of works on 22 July 2015;
- Platinum authorised Mr Dickson to proceed with the building works on 28 July 2015;
- Mr Dickson invoiced Platinum for the building works on 28 August 2015;
- Mr Dickson issued an amended invoice addressed to Mr Scott on 15 September 2015; and
- Platinum was appointed as the managing agent of Mr Scott’s property until 18 September 2015.
- The Tribunal erred in finding that Platinum was not an agent at the time Mr Dickson was instructed to perform the building work. It was not in issue that Platinum was Mr Scott’s agent, at least until 18 September 2015. This much was admitted in the response. What was in issue in the proceedings below was whether Platinum had exceeded its authority as Mr Scott’s agent.
- Despite the errors by the Tribunal, and for the reasons that follow, I find that there has been no substantial injustice to Mr Scott as a result of the order for the removal of Platinum as a respondent and that leave to be appeal should be refused.
- Neither the QCAT Act nor the QCAT Rules contain an equivalent provision of UCPR rule 69(1)(a) which gives to a court, among other things, a broad discretion to remove a party who is improperly or unnecessarily included as a party or who has ceased to be an appropriate or necessary party.
- The mechanisms for the removal of a party to a proceeding are found in sections 47 and 48 of the QCAT Act. Section 47 is a summary judgement power. Section 48 permits the removal of a party to a proceeding who unnecessarily causes disadvantage to an applicant.
- The Tribunal may, if satisfied that a proceeding or part of a proceeding is frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process, order the proceeding or part of the proceeding to be dismissed or struck out. Despite the absence of any specific reference to s 47 in the reasons, the Tribunal could only have exercised the power under this section in ordering the removal of Platinum as a respondent.
- As I have observed, Mr Scott cannot bring a counter application against Platinum. Any proceeding by Mr Scott against Platinum must be commenced and pursued separately. The only basis therefore upon which a claim against Platinum can proceed is if Mr Dickson pursues such a claim. The joinder of Platinum effectively forced Mr Dickson to prosecute a claim he has evinced no interest in pursuing.
- One of the considerations for joining a person as a party is whether the person’s interests may be affected by the proceeding. A relevant consideration in this respect is the potential for the operation of the doctrine res judicata. In the circumstances of the present dispute, this consideration might arise in the context of any separate proceedings that might be pursued by, for example, Mr Scott against Platinum. The making of findings in the proceedings below will not however give rise to a res judicata in another proceeding commenced in relation to a different matter. The making of a final decision in a proceeding for a minor civil dispute does not prevent a court or another tribunal making a decision about an issue considered (whether or not decided) by the tribunal in the proceeding if the issue is relevant to a proceeding for another matter before the court or other tribunal. The reference to ‘another tribunal’ includes, in my view, a differently constituted QCAT Tribunal to that making the final decision. Adopting such an interpretation would not result in parties being permitted to re-litigate the same matter: the application of s 126(2) is specifically limited to ‘a proceeding for another matter’. The effect of s 126(2) of the QCAT Act is that res judicata will not, as a result of any final decision in the proceedings below, apply to the determination of an issue in a further proceeding between, say, Mr Scott and Platinum which would be ‘a proceeding for another matter’.
- Mr Scott says it is desirable that Platinum is a respondent to ensure that any final decision has the practical effect of ensuring finality and disposes of all issues between the parties. The involvement of Platinum as a respondent is not necessary for a determination of the issues in dispute between Mr Dickson and Mr Scott. Mr Scott says that the evidence of Platinum will be a central and essential component of the evidence to be considered by the Tribunal. Evidence by Platinum may well be relevant in the Tribunal determining whether Platinum exceeded its authority and the determination of any question of agency by estoppel. Either party may call Platinum to give evidence at the hearing. If Platinum does not voluntarily appear, the parties may take steps to seek to compel Platinum’s attendance. The fact that Platinum may be called to give evidence at the hearing is no basis for it to be included as a respondent.
- There being, in my view, no proper basis for the joinder of Platinum as a respondent, should Platinum remain as a respondent?
- A proceeding is vexatious if it is productive of serious and unjustified trouble and harassment. The question is whether the legal proceedings are vexatious, not whether they have been instituted vexatiously. It would cause serious and unjustified trouble to Mr Dickson to require him to proceed against Platinum in circumstances where he does not wish to do so. Mr Dickson’s position should not be complicated by being forced to proceed against a party who he has no desire to pursue and whose presence is not necessary for the determination of the issues in dispute between Mr Dickson and Mr Scott.
- While the reasons for the removal of Platinum as a respondent reveal error by the Tribunal, the outcome, and the order made by the Tribunal, was and is the just and correct one. There is no substantial injustice to Mr Scott as a consequence of the Tribunal’s error. Leave to appeal is therefore refused. There is nothing preventing Mr Scott from pursuing a claim against Platinum, however he will have to do so in separate proceedings.
 QCAT Act, s 142(1).
 Ibid, s 142(3)(a)(i) and (ii).
 Ibid, s 143(3), s 143(5)(c).
 Ibid, s 146.
 Ibid, s 147(2) and (3).
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
 Cachia v Grech  NSWCA 232, .
Slater v Wilkes  QCATA 12, , citing QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41; Drew v Bundaberg Regional Council  QCA 359, .
 Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577, 578 and 580.
 Affidavit of Mathew John Gibson sworn 17 August 2016, exhibit ‘MG3’.
 Ibid, exhibit ‘MG6’.
 Decision, 19.05.2016.
 QCAT Act, s 42(1).
 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules), r 48(1).
 Ibid, r 48(2).
 Ibid, r 48(3).
 QCAT Act, Schedule 3.
 QCAT Rules, r 49(1)(a).
 Ibid, r 49(1)(b).
 Interchase Corporation Ltd (in liquidation) v FAI General Insurance Co Ltd & Ors  2 Qd R 301.
Boral Resources Pty Ltd v Robak Engineering & Construction Pty Ltd  2 VR 507.
 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2)  QCATA 242.
 Submissions filed 02.11.2016, [2.2].
 Application for miscellaneous matters filed 25.05.2016.
 Affidavit of Ronald John Nightingale sworn 26.05.2016.
 Decision, 27.05.2016.
 Submissions filed 19.10.2016, .
 Letter James Dickson to QCAT dated 22.09.2016.
 Reasons, .
 Ibid, .
 Application for minor civil dispute – minor debt, annexure C.
 Ibid, annexure D.
 Application for minor civil dispute – minor debt, annexure D.
 Response filed 11.05.2016, Part C, .
 QCAT Act, s 48(2)(b)(ii).
 Ibid, s 47(1), s 47(2)(a).
 Ibid, s 42(1)(b).
 Ibid, s 126(2).
 Mudie v Gainriver Pty Ltd (No. 2)  2 Qd R 271.
 Jones v Cusack (1992) 109 ALR 313.
- Published Case Name:
Scott v James Dickson Constructions & Anor
- Shortened Case Name:
Scott v James Dickson Constructions & Anor
 QCATA 74
A/Deputy President Brown
30 Jun 2017