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Body Corporate for Bay Villas on Stephenson CTS 41090 v Stansure Strata Pty Ltd[2018] QCATA 44

Body Corporate for Bay Villas on Stephenson CTS 41090 v Stansure Strata Pty Ltd[2018] QCATA 44

CITATION:

Body Corporate for Bay Villas on Stephenson CTS 41090 v Stansure Strata Pty Ltd  [2018] QCATA 44

PARTIES:

BODY CORPORATE FOR BAY VILLAS ON STEPHENSON CTS 41090

(Applicant/Appellant)

 

v

 

STANSURE STRATA PTY LTD

(Respondent)

APPLICATION NUMBER:

APL255-17

MATTER TYPE:

Application and Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

29 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

  1. The application for leave to appeal or appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  – where the tribunal refused an application to join a non-party to the dispute – where the application was refused before the applicants  had the opportunity to respond to the non-party’s submissions opposing joinder – where the applicant claims to have been denied natural justice – where the applicant requires leave to appeal a procedural decision – where the tribunal was correct in finding that it has no jurisdiction to hear the dispute as between the applicant and the non-party – where the applicants rights against the non-party are preserved – where leave to appeal is refused as no substantial injustice has been demonstrated

Body Corporate and Community Management Act 1997 (Qld) ss 149B, 229

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 9(4), 15, 16, 28, 42, 59, 62, 142

Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581

Baldwin v Von Knorring [2015] QCATA 107

McDonald’s Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293

ML Spicer Ltd t/as Purebuild Homes v Doeuk [2016] QCAT 214

Parker v Comptroller-General of Customs [2009] HCA 7

Re King & Co’s Trade-Mark [1892] 2 Ch 462

Ridge v Baldwin [1964] AC 40

Rodgers Pools v SQ Pty Ltd

(2007) QCCT B 179

Spaulding v Law Institute of Victoria

[2013] VSC 632

Stead v State Government Insurance Commission (1986) 161 CLR 141

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    The parties are the body corporate (applicant) and strata manager (respondent) for the Bay Villas community titles scheme.  They have a “complex dispute” within the Body Corporate and Community Management Act 1997 (Qld) (BCCM) dating back to 2014 about the respondent’s performance of its contractual duties.
  2. [2]
    The only relevant remedy is resolution by an order of an adjudicator or QCAT exercising original jurisdiction.[1]
  3. [3]
    The applicant filed dispute resolution proceedings in the tribunal on 16 May 2016 to recover more than $150,000 for water damage and related losses based on the respondent’s alleged failure to adequately insure affected lots.
  4. [4]
    In turn, the respondent, blames its insurance broker, Direct Insurance Brokers Pty Ltd (DIB).
  5. [5]
    The matter was set down for hearing on 21-22 August 2017.
  6. [6]
    On 20 June 2017 the applicant applied to join DIB as a respondent with the respondent’s consent.  DIB objected.
  7. [7]
    Directions issued to the parties on 29 June 2017 required the applicant to give the respondent and DIB copies of its submissions in reply to theirs by 10 August 2017.
  8. [8]
    Paragraph 5 of the directions stated that the tribunal would determine the jurisdiction of QCAT to make the decision relating to joining DIB[2] not before 4:00pm on 10 August 2017.

The joinder discretion

  1. [9]
    Joinder was refused on 3 August 2017 for reasons published on 15 August 2017.
  2. [10]
    The applicant seeks to have the decision set aside.
  3. [11]
    The tribunal may make joinder orders in a proceeding[3] only if it considers that:
    1. (a)
      the non-party should be bound by or have the benefit of a decision of the tribunal in the proceeding;
    2. (b)
      substantial unrepresented non-party legal interests are at risk of being affected by the proceeding, as distinct from its outcome;
    3. (c)
      for another reason, it is desirable to join the non-party as a party, for example, because without its participation not all the information the tribunal needs to correctly decide the proceeding with all the relevant facts[4] will be disclosed.
  4. [12]
    The Act does not list the considerations favouring joinder but the decided cases have taken account of factors such as:
  • whether the tribunal has jurisdiction to resolve the dispute involving the proposed party;
  • joining a non-party with a related claim beyond the limits of QCAT’s jurisdiction means that the whole matter has to be transferred to a competent court for resolution;[5]
  • avoiding multiplicity of proceedings and duplicate litigation in less convenient forums;
  • common questions of fact or law;
  • related transactions; and
  • efficiency and economy.
  1. [13]
    Joinder is more likely where the proposed and an existing party arguably share liability to the applicant (or each other).
  2. [14]
    Other circumstances of significance maybe the timeliness of the application, potential prejudice or detriment to the proposed or current parties, whether joinder provides the only way of protecting vulnerable interests and the overall utility of joinder.
  3. [15]
    The dismissal order was stayed pending further order in issue and for the parties to file hearing submissions.
  4. [16]
    The central issue in this application for leave to appeal is whether the applicant was denied procedural fairness or due process because the tribunal’s decision was made before the time had expired for the applicant to file submissions in reply.
  5. [17]
    The question is not whether the dismissal is legally correct or not but whether the discretion should be re-exercised.

Appeal rights

  1. [18]
    A party to a proceeding cannot appeal against interlocutory orders or directions to cure alleged procedural defects at first instance without the appeal tribunal’s leave.[6]
  2. [19]
    It is undesirable to in effect transfer discretionary interlocutory decisions to the appeal tribunal except in the clearest of cases.[7]
  3. [20]
    The determinant of an application for leave to appeal a decision in a proceeding that does not finally resolve substantive issues is whether the fragmentation of the proceeding by intervention by the appeal tribunal is justified.
  4. [21]
    Thus, the applicant faces a demanding challenge to meet the requirements of the leave discretion.  It has the onus of demonstrating a reasonably arguable case of legal, factual or reasoning error.  As a general rule leave will not be granted unless the alleged error needs correction or reversal as a matter of principle or in the interests of advancing the applicant’s claimed relief.

The leave point

  1. [22]
    Denial of natural justice is an error of law. It deprives a tribunal of jurisdiction and voids its decision and related orders.[8]  When interests are at stake or in jeopardy a decision maker’s respect for the right to be heard in support or opposition of an application must be genuine and more than an empty gesture.[9]
  2. [23]
    The applicant contends that making a premature decision without waiting for its submissions in reply[10] is a clear denial of natural justice by the tribunal and claims the right to a “fresh opportunity” to present its case for joinder before a different tribunal member.[11]
  3. [24]
    The tribunal’s lack of original jurisdiction when QCAT accepted the complex dispute resolution application to hear and determine the negligence claim is conceded because it was not a matter it was empowered to deal with it under either the QCAT or BCCM Acts but the applicant contends, in reliance on McDonald’s Australia Ltd v Emaaas Pty Ltd,[12] that once the tribunal was properly invested with BCCM jurisdiction the power to do all things necessary or convenient[13] for exercising its jurisdiction accrued including making an order joining any person as a party to the proceeding under s 42(1) QCAT Act.
  4. [25]
    DIB submitted that there were insurmountable jurisdictional obstacles to the application and, from a discretionary viewpoint, complained the applicant had inexplicably delayed applying to join it to remedy its perceived mistake in taking the wrong proceedings against the wrong party in the wrong forum for, at least, two years.
  5. [26]
    The tribunal rejected the applicant’s arguments in support of joinder.
  6. [27]
    It ruled the respondent’s cause of action against DIB is not a dispute within its original jurisdiction and, even if it was, and DIB had a protectable economic or other interests at stake, the balance of discretionary considerations were strongly against it.[14] The tribunal rightly distinguished McDonald’s on the facts because it was concerned with ancillary relief available in a retail tenancy dispute within jurisdiction and not with the joinder discretion in relation to subject matter beyond scope.
  7. [28]
    At [39] the tribunal explained the undesirability of joining “a party in respect of whom no orders can be made by the tribunal … (resulting) in considerable expense and inconvenience to that party … would be inconsistent with the objects of the QCAT Act (and) the functions (and duties) of the tribunal”.  With this observation I entirely agree.
  8. [29]
    Also the tribunal correctly pointed out joining DIB to the proceedings would not achieve the desirable objects of finality, consistency, efficiency and economy would not have been achieved because the DIB claim would have to be transferred to the District Court for determination but it lacked jurisdiction to resolve the BCCM dispute.

Consideration of the merits

  1. [30]
    The procedure for a proceeding is at the discretion of the tribunal.[15]
  2. [31]
    However, an important statutory qualification on the tribunal procedural freedom is imposed by subsection 28(2) and 28(3)(a) requiring fairness and observance of the rules of natural justice.
  3. [32]
    Under these principles a party must be allowed a reasonable opportunity to makes submissions to the tribunal[16] about decisions in a proceeding.[17]  The reasonableness of the opportunity to present information or argument on a controversial topic is a question of fact and degree. So is the effect of being denied it.
  4. [33]
    While the applicant did not have a right of reply as such the directions nonetheless gave it a legitimate expectation of answering DIB’s submissions before 10 August 2017.  The tribunal decision on 3 August 2017 dashed that expectation but on a broad analysis the procedural hearing was conducted reasonably fairly and the applicant had a reasonable chance to state its case despite not having the benefit of a reply.
  5. [34]
    Even if it could be said that the interlocutory procedures were unfair the applicant is not necessarily entitled to appellate relief.[18]  Although the propriety of the decision making process is not strictly affected by the merits of a decision it is reasonable to ask when considering an application for leave to appeal against a purely procedural ruling (that can always be revisited before final orders) whether closer adherence to the directions schedule would have produced any different or better result for the applicant.[19]  I don’t see how.  All things considered the case for joinder was weak and unattractive.
  6. [35]
    Leave to appeal is refused because:
  • there is no legal error justice requiring correction on appeal;
  • there is no general point of principle involved;
  • the discretionary factors weighed against joinder even if a s 42 condition was met;
  • the doctrine of accrued jurisdiction does not apply in the tribunal context.  It concerns federal court power to decide overlapping state claims in a single proceeding;
  • the tribunal may perform the joinder function in exercising its original jurisdiction only where it is empowered by the QCAT or an enabling Act[20] to deal with the issues between the applicant and proposed party;
  • s 42 does not mimic the UCPR procedures in the regular courts allowing for resolving at the same time all connected issues between a defendant liable for a plaintiff because of the default of a third party who the plaintiff can (or did) not join directly;
  • the joinder power is intended to facilitate the tribunal functions not to create the opportunity for deciding issues between parties it has no statutory jurisdiction over;
  • the failed joinder application was made by the applicant not a contribution or indemnity seeking respondent;
  • the resolution of the BCCM dispute by the tribunal has no precedent value and its findings have no binding effect on non-parties or subsequent decision makers;
  • any rights against DIB are unaffected and nothing will be achieved by further delaying and fragmenting the proceeding by granting leave to appeal before final orders on a point of procedure.

Footnotes

[1]  BCCM Act ss 149B, 229(2).

[2]  See also ML Spicer Ltd t/as Purebuild Homes v Doeuk [2016] QCAT 214 [41].

[3]  QCAT Act s 42.

[4]  QCAT Act s 28(3)(c), (e).

[5]Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581 [53].

[6]  QCAT Act s 142(3)(a)(ii).

[7]  cf. Spaulding v Law Institute of Victoria [2013] VSC 632 [45].

[8]Ridge v Baldwin [1964] AC 40.

[9]Re King & Co’s Trade-Mark [1892] 2 Ch 462, 482.

[10]  Applicant’s submissions, 30 August 2017, [9].

[11]  Applicant’s submissions, 30 August 2017, [10]; Baldwin v Von Knorring [2015] QCATA 107 [102]-[103].

[12]  [2011] QCAT 293.

[13]  cf. QCAT Act s 9(4).

[14]  Reasons for decision, 3 August 2017, [39].

[15]  QCAT Act s 28(1).

[16]  QCAT Act s 95(1)(c).

[17]  In this context “proceeding” impliedly includes an application to the tribunal under the QCAT Act s 8, sch 3 definitions.

[18]Parker v Comptroller-General of Customs [2009] HCA 7.

[19]  cf. Stead v State Government Insurance Commission (1986) 161 CLR 141.

[20]  QCAT Act ss 9, 16; cf. Rodgers Pools v SQ Pty Ltd (2007) QCCT B 179.

Close

Editorial Notes

  • Published Case Name:

    Body Corporate for Bay Villas on Stephenson CTS 41090 v Stansure Strata Pty Ltd

  • Shortened Case Name:

    Body Corporate for Bay Villas on Stephenson CTS 41090 v Stansure Strata Pty Ltd

  • MNC:

    [2018] QCATA 44

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    29 Mar 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581
2 citations
Jump To
Cite 1 - [2010] QCAT 581
Cite 2 - [2010] QCAT 581
Baldwin v Von Knorring [2015] QCATA 107
2 citations
Jump To
Cite 1 - [2015] QCATA 107
Cite 2 - [2015] QCATA 107
McDonald's Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293
2 citations
Jump To
Cite 1 - [2011] QCAT 293
Cite 2 - [2011] QCAT 293
ML Spicer Pty Ltd t/as Purebuild Homes v Doeuk [2016] QCAT 214
2 citations
Jump To
Cite 1 - [2016] QCAT 214
Cite 2 - [2016] QCAT 214
Parker v Comptroller-General of Customs [2009] HCA 7
2 citations
Jump To
Cite 1 - [2009] HCA 7
Cite 2 - [2009] HCA 7
Re King and Co's Trade Mark (1892) 2 Ch 462
2 citations
Jump To
Cite 1 - (1892) 2 Ch 462
Cite 2 - (1892) 2 Ch 462
Ridge v Baldwin (1964) AC 40
2 citations
Jump To
Cite 1 - (1964) AC 40
Cite 2 - (1964) AC 40
Rodgers Pools v SQ Pty Ltd (2007) QCCT B 179
2 citations
Jump To
Cite 1 - (2007) QCCT B 179
Cite 2 - (2007) QCCT B 179
Spaulding v Law Institute of Victoria [2013] VSC 632
2 citations
Jump To
Cite 1 - [2013] VSC 632
Cite 2 - [2013] VSC 632
Stead v State Government Insurance Commission (1986) 161 CLR 141
2 citations
Jump To
Cite 1 - (1986) 161 CLR 141
Cite 2 - (1986) 161 CLR 141

Cases Citing

Case NameFull CitationFrequency
Gulp! Catering Solutions Pty Ltd t/as Grill'd Chermside v Scentre Management Limited [2020] QCAT 112 citations
1

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