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  4. Walker Corporation Limited v Winton - [1997] QDC 125

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Walker Corporation Limited v Winton[1997] QDC 125

Walker Corporation Limited v Winton[1997] QDC 125

IN THE DISTRICT COURT

HELD AT BRISBANE

QUEENSLAND

[Before Wolfe DCJ]

[Walker Corporation Ltd v. Winton & Ors]

No. 3 of 1996

BETWEEN:

WALKER CORPORATION LIMITED, WALKER GROUP PTY LTD and LAZERMAZE (AUSTRALIA) PTY LTD

Appellants

AND

ROGER WINTON and GILLIAN WINTON t/as R & GB WINTON

First Respondents

AND

RONALD BIGGS and CAVANAGH BIGGS AND PARTNERS PTY LTD

Second Respondents

AND

ARLEN INDUSTRIES PTY LTD, GEORGE SOURRIS PTY LTD and GEORGE JAMES SOURRIS

Third Respondents

AND

RODNEY ELLERINGTON & ASSOCIATES and RODNEY JOHN ELLERINGTON

Fourth Respondents

AND

BRISBANE CITY COUNCIL

Fifth Respondent

JUDGMENT

Judgment delivered:

30 May 1997

Catchwords:

Costs – Award – Jurisdiction against non-party to a proceeding – statutory tribunal – meaning of “costs” and “proceeding” in legislation and generally – Queensland Building Services Authority Act 1991 – multiple proceedings before Queensland Building Tribunal – whether non-party to a proceeding was a party to a “domestic building dispute” – Knight v S.P. Special Assets Ltd (1992) 174 CLR 178

Practice – leave to appeal

Counsel:

Mr Radcliff for the applicants

Mr Moreton for the first respondents

Mr Derrington for the second respondents

Mr Burns for the third respondents

Mr Jarrett for the fourth respondents

Solicitors:

Saunders Donning for the applicants

Eardley Motteram for the first respondents

Gadens Ridgeway for the second respondents

Blake Dawson Waldron for fourth resp.

Tvevor Watt & Associates for third resp.

IN THE DISTRICT COURT

HELD AT BRISBANE

QUEENSLAND

No. 3 of 1996

BETWEEN:

WALKER CORPORATION LIMITED, WALKER GROUP PTY LTD and LAZERMAZE (AUSTRALIA) PTY LTD

Appellants

AND

ROGER WINTON and GILLIAN WINTON t/as R & GB WINTON

First Respondents

AND

RONALD BIGGS and CAVANAGH BIGGS AND PARTNERS PTY LTD

Second Respondents

AND

ARLEN INDUSTRIES PTY LTD, GEORGE SOURRIS PTY LTD and GEORGE JAMES SOURRIS

Third Respondents

AND

RODNEY ELLERINGTON & ASSOCIATES and RODNEY JOHN ELLERINGTON

Fourth Respondents

AND

BRISBANE CITY COUNCIL

Fifth Respondent

REASONS FOR JUDGMENT

Delivered the 30th day of May 1997

This is an application for leave to appeal to the District Court pursuant to s. 94 of the Queensland Building Services Authority Act 1991 from costs orders made by the Queensland Building Tribunal on 22 January 1996. The orders are contained in Exhibit E to the affidavit of Gregory Allan Dowling filed 15 February 1996. The Tribunal member, Mr Burnett, made these orders at a directions hearing of proceedings which arose out of three applications numbered C258-95, C739-95 and C810-95. The applicants sought leave to appeal on the grounds of appeal set out in Exhibit F to Mr Dowling's affidavit. These grounds were confined to the Tribunal's Orders 3, 4 and 5, but at the hearing of this application the applicants raised an issue in respect of Order 6, the order reserving one party's costs of that day in application C258-95.

The applicants were not parties to one of those applications, C810-95, but they were ordered to pay the costs of the parties to that application. They were also ordered to pay the costs of the respondents in application C739-95.

Apart from the discretionary point, the real issue in this matter is whether the Tribunal has power to award costs against a non-party. There appears to be no authority of the Court of Appeal which specifically determines the point, although the High Court has settled this as regards the Supreme Court's costs power in Knight v S.P. Special Assets Ltd (1992) 174 CLR 178.

Leave to appeal

The appellants require leave to appeal. The discretion vested in this Court to grant or refuse leave to appeal is a broad one, and quite unfettered by the provisions of s. 94. I adopt the approach of Wylie DCJ in Trewin v. Clemistone (Application 7 of 1994, 28 January 1994, unreported) which has been followed in other decisions of this Court. As Wylie DCJ observed s. 94(1) reflects Parliament's intention that ordinarily the dispute should not be protracted and the Tribunal's determination should bring the dispute to an end. In discussing the criteria which might justify leave, he considered s. 94 in the context of other statutes or rules where leave to appeal is required, with particular reference to Glenwood Properties Ltd v. Delmoss Pty Ltd [1986] 2 Qd.R 388 at 389, Mclver Bulk Liquid Haulage Pty Ltd v. Fruehauf Australia Pty Ltd [1989] 2 Qd.R 577 at 578, Ellis v Leeder (1951) 82 CLR 645 at 653 and In re the Will of Gilbert (1946) 46 SR (NSW) 318 at 323. Generally, then, an applicant will demonstrate justification for leave to appeal from a determination of the Tribunal by demonstrating a prima facie, or clearly arguable, case of an error in or affecting the determination or that the question is one of general importance and one which the public interest requires should be the subject of further argument in this Court. Obviously leave will not be granted where the court forms a clear opinion adverse to the success of the proposed appeal.

The costs orders made in favour of the parties in the third proceeding (C810-59, Biggs and Cavanagh Biggs v Arlen, Sourris, Ellerington and the Brisbane City Council) raised the novel question as to whether the Tribunal may order a person who is not a party to a proceeding to pay the costs of the parties to that proceeding. The success of the proposed appeal from those orders partly depends on whether the term “proceeding” where it appears in the Act should be construed narrowly. However the construction for which the applicants contend may deny them standing to appeal to this Court against the costs order in that proceeding, for s. 94(1) of the Act provides:

“94.(1) A party to a proceeding before the Tribunal may, by leave of the District Court, appeal against a determination of the Tribunal in the proceeding.”

As one of the grounds of appeal concerns the extent of the Tribunal's costs power, I thought it appropriate to listen to full argument on the merits of the appeal, and if leave were granted that this hearing be regarded as the hearing of the appeal. The parties acquiesced in that course.

As the matter was argued by the parties, there were a number of issues involved in the costs order made in respect of parties to the third proceeding no. C810-59. These are --

  1. (a)
    whether the Tribunal may award costs against a person is who is not a party to a proceeding;
  1. (b)
    whether the third proceeding, C810-95, involved the same “domestic building dispute” or some other “matter at issue between the parties” as those in C258-95 or C739-95; and
  1. (c)
    if the Tribunal had power to award costs against a non-party to a proceeding, whether the Tribunal's discretion miscarried in so ordering a non party to pay these costs.

Before considering the merits of the appeal, it is convenient to make reference to these proceedings.

This application

When this application for leave came on for hearing in Chambers, it emerged that the applicants were not proceeding against the third-named third respondent, George James Sourris. Further, the application as against the fifth respondent, the Brisbane City Council, was dismissed by consent with no order as to costs. Those then represented for the substantial argument on the application were the applicants - Walker Corporation Limited (the first-named appellant), Walker Group Pty Ltd (the second-named appellant) and Lazermaze (Australia) Pty Ltd (the third-named appellant) all of whom are here referred to, collectively, as “Walkers” and for whom Mr Radcliff appeared; the first respondents, Roger Winton and Gillian Winton (“Winton”), for whom Mr Moreton appeared; the second respondents, Ronald Biggs and Cavanagh Biggs and Partners Pty Ltd (“Biggs”), for whom Mr Derrington appeared; the first and second-named third respondents, Arlen Industries Pty Ltd and George Sourris Pty Ltd (“Sourris”) for whom Mr Burns appeared; and the fourth respondents, Rodney Ellerington & Associates and Rodney John Ellerington, (“Ellerington”) for whom Mr Jarrett appeared.

Some of the documents which were before the Tribunal were filed in the Court or tendered during the hearing of this application for leave to appeal. These documents included the three applications filed in the Tribunal and later numbered C258-95, C739-95 and C810-95, statements in support of the first application C258-95 (without the annexures to which those statements referred), one of the statements in response to that application, the pleadings in the first application, the statement in support of the second application C739-95, the orders made at various directions hearings of the Tribunal and a transcript of the directions hearing on 22 January 1996 which led to the application to this Court. The statement of Stephen James MacRae, dated 11 September 1995, to which reference was made in the material was not before me. Consequently the background facts as stated below are merely an attempt to put this appeal in context and do not purport to be findings of fact in the substantive applications before the Tribunal.

The background

The first respondent, Winton, is a builder. In about 1992 Winton entered into a contract (“the building contract”) with the second-named appellant for the construction of town houses or units (“the project”) on land (“the site”) owned by the third-named appellant. Pursuant to this contract (which was not before me), Winton lodged a bank guarantee in favour of the first-named appellant on its own behalf and on behalf of the second-named appellant in the amount of $70,000 by way of security for retention moneys. Winton took possession of the site in January 1993. It seems that Stephen MacRae was Walkers' representative on the site. The second respondents to this appeal, Biggs, are engineers, who apparently designed the project. Walkers were to allege that Winton retained Biggs for some of the works, and that Winton was responsible for the design in respect of the relocation of some of the units, but Winton alleged that Walkers retained Biggs for the design of the project and that Biggs was Walkers agent. The third respondents, Sourris, were the developers of land adjoining Walkers' site. In February or March 1993 a sewer line and trench was installed on Walkers' site near where some of the townhouses (“the south-western units”) were to be constructed. It was also alleged that Sourris constructed the sewer line and its trench, that it was designed by the fourth respondents, Ellerington, who were Sourris' engineers. After construction of the sewer and trench, site plans for Walkers' project were revised and revised building approvals obtained from the Council, and the south-western units were then built some metres away from location originally planned for them. In about November 1993 the sewer trench subsided near the rear of the south-western units, causing damage to the units. Ultimately the issues raised in the Tribunal involved not only the compaction of the trench, but the decision as to the positioning of south-western units vis a vis the sewer and trench, who had responsibility for or had made that decision and whose advice as to the positioning of the units or the compaction of the trench, if any, the decision maker had relied upon. Walkers were to allege that the damage constituted a breach of the building contract or a breach of the duty of care owed by Winton, and that Winton had failed to design or construct the works in an appropriate manner.

In about April 1995 one of the Walkers' companies, the second-named appellant, on its own behalf and as agent for the first and third-named appellants, called on the guarantee and received the sum of $70,000 under it. This led to the first application being brought in the Tribunal.

The proceedings

The first proceeding (No C258-95): Winton v Walkers

Winton lodged their application, C258-95, with the Tribunal in April 1995 alleging that Walkers was not entitled to call on the bank guarantee and claiming repayment of the sum of $70,000. Directions were made for the conducting of the application. In support of their application, Winton's statement, dated 7 August 1995, asserted Winton was not in breach of the building contract. Referring to Walkers' demand on the guarantee, it was suggested that the dispute related to involved “ground subsidence” in the area of some of the units, that the “problem” was one of inadequate compaction of the sewer trench back fill, that the construction of the sewer trench on the site was undertaken by Sourris, the developers of the adjacent property, that Ellerington had designed the sewer for Sourris and that Winton had not been consulted about it or the “re-compaction” of the sewer line. The parties exchanged further statements, including the statement of Walkers' MacRae dated 11 September 1995, which was not before me, but apparently alleged that under the building contract Winton was responsible for all aspects of design of the works, that Walkers had relied on advice from Winton in “acting on the decision” to build the south-western units and that Walkers' damages amounted to $80,639.95. Winton responded, by a statement dated 26 October 1995, alleging that Walkers' MacRae had instructed the engineer, Biggs, “to look at the design and location of the foundations of the housing”, that Winton “had no contractual relationship” with Biggs, that “all engineering works were dealt with between Mr Biggs and Walkers”, that Biggs were the consulting engineers engaged by Walkers for the purpose of designing certain drawings, that the only direct engagement Winton had with Biggs was for payment of an inspection and certification of the slab foundations and footings, that Winton “was entitled and did rely upon Walkers' for its action in the construction of the sewer line” and that Biggs “acting on behalf of Walkers, carried out his independent enquiries and satisfied himself as to the structural integrity of the trench, its compaction and as to the suitability of the relocation of the townhouses based upon the certification by the contractors and engineers who dealt with the trench”, that the sewer line had been built in an incorrect position, described meetings or discussions Mr Biggs was said to have had with Walkers' MacRae, with Winton and with Sourris, and alleged that Mr Biggs was not acting for Winton but was retained by and acting for Walkers. By a further statement dated 17 November 1995 Winton inferred that MacRae had “handled” the location of the sewer main.

On 20 November 1995 application no. C258-95 came on for hearing. That morning, prior to the hearing commencing, Winton served Walkers with a copy of a statement by Ronald Biggs which was dated 20 November 1995. The Biggs' statement (Exhibit 1) supported Winton saying Biggs was retained by Walkers. It asserted Biggs were the engineers “responsible for the preparation of the engineering works” for the project, that there was a contract of engagement between Biggs and Walkers, that Ronald Biggs had no contractual arrangement with Winton in relation to the design of the works, the sewer line or the reposition of the units to take account of the position of the sewer line, that all aspects of the design of the engineering works were prepared by Ronald Biggs for his client, Walkers. As to the proper compaction of the trench, Biggs stated he relied on assurances and certificates issued by Ellerington and the Council's acceptance of their being proper compaction. He referred to a meeting to discuss the sewerage works with Sourris “an experienced sewerage contractor”, Sourris' architect and MacRae, which Biggs said he attended as Walkers' representative. He blamed Sourris and Sourris' agents for the subsidence of the trench.

Although Winton's statement contending that Biggs acted for Walkers was delivered more than a week before the proposed hearing date, Walkers complained to the Tribunal member, Mr Burnett, that Walkers were surprised by the Biggs' statement supporting Winton's stance and that the Biggs' statement had not been delivered in accordance with earlier directions. Apparently Walkers submitted that they wished to claim against Biggs or at least consider whether they would make such a claim, and sought an adjournment of the hearing.

It seems that the Tribunal member “was at pains” to point out to the parties the decision in Brisbane City Council v. Warren Spicer (No 161/94, 6 November 1995, unreported) in which Wylie DCJ considered the extent of the Tribunal's power to order “a supplier, subcontractor or another person” be joined as a party to a proceeding under s 95(3) of the Queensland Building Services Authority Act. He held that in s. 95(3) the phrase “another person” means “a person against whom or which a “domestic building dispute” is shown to exist on the face of the application whether in its original form or as amended by the claimant to mean one who should properly be a party to the claim or dispute in order to avoid nonjoinder of a necessary party”, and further, relying the Full Court's construction of a provision of the Small Claims Tribunal Act 1973 in R. v. Massingham ex parte Majeau Carrying Co Pty Ltd [1985] 1 Qd.R 349, that the Tribunal's power under s. 95(3) did not extend to permitting third party proceedings in the original proceedings.

Apparently the Tribunal member indicated that he did not have jurisdiction to permit a third party indemnity claim other than one made by a separate application, but that he would adjourn the hearing of C258-95 so that Walkers could consider whether or not they wished to institute proceedings against Biggs and that he would make directions for the future conduct of the first application C258-95 and of Walkers' proposed application against Biggs. He gave Walkers leave to commence an application against Biggs by 22 November 1995, directed the first application and the proposed application be listed for hearing together, that the exchange of statements and lists of documents in the first application and in Walkers' proposed application against Biggs be completed by 21 December 1995, reserved that day's costs and adjourned the matter for further directions on 22 December 1995 (this was later adjourned to 8 January 1996).

The second proceeding (No. C739-95): Walkers v. Biggs

On 22 November 1995 Walkers lodged their application against Biggs (no. C739-95) with the Tribunal, claiming damages of approximately $80,000 for negligence, breach of the Trade Practices Act or alternatively damages for breach of contract, and interest and costs. Walkers' application referred to the Biggs statement of 20 November filed in C258-95 and stated that “if the Tribunal accepts the evidence of Mr Biggs, then the Applicants claim to be entitled to recover its damages as particularised in Application no. C258-95 from the Respondents to this Application.” This application was later supported by MacRae's statement dated 30 November 1995. MacRae denied that Walker Corporation (the first-named appellant) or any servant or agent of Walker Corporation “in any way consulted with Mr Biggs” as alleged in the Biggs' statement, and on behalf of Walker Corporation or its subsidiaries, MacRae claimed damages against Biggs “in identical terms” to those claimed in application C258-95, in the event the Tribunal found Biggs was a consultant for Walker Corporation or its subsidiaries and that MacRae advised Walker Corporation or directed Winton “in relation to the shifting of the units”. It was said that Walkers' claim was made on the basis that if Biggs acted for Walkers as a consulting engineer, then he did so negligently by relying on Ellerington or the Council.

The third proceeding (No. C810-95): Biggs v. Sourris, Ellerington and the Brisbane City Council

On 22 December Biggs lodged their application (no. C810-95) against Sourris, Ellerington and the Brisbane City Council. Biggs' application sought contribution and indemnity from those respondents “with respect to [Walkers]' claim against Biggs in application no. C739-95” and stated that the facts upon which Biggs would rely in making this claim would be fully particularised upon Biggs' receipt of the details of Walkers' claim in application no C739-95 which were due on 22 December pursuant to the Tribunal's directions. The application also referred to application C258-95. Directions hearing 8 January 1996

On 8 January there was a directions hearing for the parties in the three proceedings. The Tribunal Member directed the three applications be heard together and that any party wishing to make an application concerning jurisdiction give notice of that intention and an outline of submissions to the solicitors for the other parties in all applications by 19 January 1996. He made directions for the delivery of pleadings, with each of the parties to deliver their pleadings to all other parties in the three proceedings by 17 January 1996. Costs were reserved and the matters were adjourned to 22 January 1996 for further directions and for the determination of any jurisdictional issues.

Only Winton and Walkers delivered pleadings. These were in the first proceeding, C258-95. Winton's particulars of claim delivered on 8 January 1996 contained no allegation against Biggs. It seems Walkers' legal advisers decided that Walkers could not plead against Biggs in the second proceeding as Winton had not asserted that Biggs was Walkers' servant or agent or that Winton had relied upon Biggs in that capacity. One might have thought this was a matter for Walkers' defence for, as the majority said in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602:

“Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.”

Walkers delivered their defence in C258-95 on 11 January 1996 pleading a set off and counterclaim in respect of damages of $80,639.45 for breach of the building contract or alternatively for breach of duty of care in respect of the design, construction and location of the works vis a vis the sewer trench subsidence. They also pleaded that Winton had no cause of action against the first or third named respondents (the first and third-named appellants in this appeal) or alternatively, no cause of action “giving rise to this Tribunal to have jurisdiction to determine such cause of action”.

If this allegation is meant to suggest that the dispute in the first proceeding between Winton and those parties was not a “domestic building dispute” as defined in s. 4 of the Act, the material before me was insufficient to draw that conclusion. In any event counsel for Walkers did not submit at the hearing before me that the Tribunal lacked jurisdiction to determine that dispute between Winton and any of the Walkers companies as pleaded by Winton in the first proceeding. There was nothing in the material before me indicating that Walkers gave notice that they wished to raise any jurisdictional issue at the directions hearing on 22 January as had been directed on 8 January.

On 10 January Walkers' solicitors advised Biggs' solicitors, and later the solicitors for the respondents in the third proceeding C810-95, that as Winton had failed to deliver a pleading referring to Biggs' role or to Winton's previous statement that Biggs were “retained and ... acting for Walkers”, Walkers were unable to deliver a pleading in support of Walkers' claims against Biggs in C739-95 until Winton particularised their claim. To this Biggs' solicitors responded that on 22 January they would be seeking orders that Walkers' application in C739-95 be struck out, for leave to discontinue Biggs' application no C810-95 and that Biggs' costs in applications nos C739-95 and C810-95, as well as the respondents' costs in C810-95, be borne by Walkers.

On 16 January Winton responded to Walkers that Winton had pleaded their case in C258-95 and delivered amended particulars of claim and a reply to Walkers' defence. The reply claimed rectification of the building contract to delete any reference to Winton's having obligations in relation to the design of the works and further pleaded Walkers' contributory negligence in allowing Sourris to construct the sewer line on the site and in MacRae's advising of adequate compaction for the units to be constructed in accordance with the revised plans. Winton's reply did not assert that Biggs was Walkers' agent or that Winton had relied on Biggs. Walkers did not seek particulars of Winton's claim or reply.

Directions hearing 22 January 1996

When the matters came on again on 22 January 1996, only Winton and Walkers had pleaded, that is in C258-95. The transcript of this hearing appears in Exhibit A to the affidavit of Jennifer Jane Crowther, and Mr Dowling's second affidavit which was filed by leave refers to some of the material before the Tribunal member on that day. Winton's counsel advised the Tribunal member that Winton's case was simply that there was no lawful basis for Walkers to activate the bank guarantee although Winton proposed to call evidence at the trial in accordance with the Biggs' statement. Counsel for Walkers informed the Tribunal member that Walkers had not pleaded a case against Biggs in C739-95, that in the absence of Winton pleading that Biggs was Walkers' agent or that Winton relied on Biggs, Walkers were unable to plead against Biggs. He suggested Walkers might or would be seeking particulars of Winton's pleadings, and as a consequence of Winton's failure to plead those allegations, only three courses were open, firstly, that the second and third proceedings be stayed or adjourned pending the determination of the first proceeding, that Winton be required to plead or particularise the Biggs allegations contained in Winton's and Biggs' statements so that Walkers could plead to those allegations, or that all of the proceedings be transferred to a court pursuant to s. 97(2) of the Act. The member indicated that he was not persuaded that Walkers, having been given time after 20 November to consider whether or not to commence an application against Biggs, had to rely on Winton's pleading to consider whether there was any basis for the application. Walkers then submitted that the second and third proceedings should be adjourned as Walkers would be seeking particulars of Winton's pleadings and if there were to be a positive assertion that Biggs was Walkers' engineer then they would “enliven” those matters. The respondents to the second and third proceedings opposed this course.

Biggs' counsel sought an order that the second proceeding C739-95 be stayed, and opposed its being adjourned to the registry, and counsel for the Brisbane City Council, a respondent to the third proceeding C810-95, submitted that there was no cause of action against that party and asked that the application against it be dismissed. Biggs's counsel also submitted that the Walkers' claim against Biggs was not amenable to jurisdiction, apparently in reliance on Regulation 3A(1)(e) of the Queensland Building Services Authority Regulation 1992. This was not pressed when the Tribunal member pointed out when the regulation was promulgated. The effect of Regulation 3A has been, since 5 August 1994, to exclude certain work provided by a professional engineer from the ambit of the definition of “building work” and consequently from the Tribunal's jurisdiction over domestic building disputes. Although Winton's, not Biggs', counsel raised Reg 3A before me, neither then nor before the Tribunal member, did Walkers, nor Biggs for that matter, make any submissions as to the competency of Biggs' claim in the third proceeding (C810-95) against Ellerington (also an engineer) or against the Council (see Reg 3A(g)). The parties seemed to accept that the amendments made to the Regulations did not evince any intention to alter existing rights and was prima facie prospective in its operation. Having regard to the Tribunal's member's view of the facts, Regulation 3A was then no bar to the Tribunal determining the second application: see s. 20 of the Act Interpretation Act 1954; cf Maxwell v Murphy (1957) 96 CLR 261 at 267; Rodway v The Queen (1990) 169 CLR 515; Re Malsons Pty Ltd [1991] 2 Qd R 61.

However Walkers' counsel submitted that Walkers should not be responsible for Biggs' costs and that those costs should be borne by Winton. The Tribunal member rejected this submission on the basis that in his view --

“... Walkers [should have conducted a] more thorough enquiry before they commenced subsequent applications. The application C810-95 is in my view a reasonable application to have commenced and in the ordinary course would have been commenced by way of a fourth party proceedings or second and third party proceedings. It was in my view entirely foreseeable.”

Although Walkers had been warned by Biggs' solicitors of the possibility of an order that Walkers pay the costs of the parties to the third proceeding C810-95, Walker did not oppose the making of the order on the basis that the Tribunal member had no power to order costs against a non-party. The Tribunal member ordered Walkers deliver their request for further and better particulars of Winton's particulars of claim and reply, if any, by 29 January and set down the hearing of the first proceeding, C258-95, to begin on 1 April 1996, reserving Winton's costs of 22 January 1996 in that proceeding. He adjourned the second and third applications, C739-95 and C810-95, and ordered Walkers to pay the costs in C739-95 and C810-95.

This appeal

It is from these costs orders that Walkers applies for leave to appeal. According to the notice of appeal the applicants seek leave to appeal from the following orders:

  1. “3.That the first, second and third respondents to application C258-95 pay the costs, including reserved costs, of each of the parties to application C739-95 and C810-95 to be taxed on a party and party basis for the scale of costs appropriate to actions in the District Court where the sum recovered is greater than $50,000.
  1. 4.That each of the parties to application C739-95 and C810-95 forward to the solicitors for the respondents to application C258-95 a short form bill of taxed costs by 4 p.m. on 1 March 1996
  1. 5.That in the event that the respondents to application C258-95 do not accept the short form assessment delivered in accordance with the direction 4 of these directions, they may have liberty to apply for assessment by the Tribunal by 4 p.m. on 15 March 1996.”

The grounds of appeal in respect of the costs order in the first proceeding, C258-95 were given in the oral, though not the written, submissions at the hearing before me. The grounds relied upon, as set out in the proposed notice of appeal, are:

  1. “1.That the Tribunal had no power to order that the Appellants pay costs of the Respondents in Applications number C739-95 and C810-95.
  1. 2.Alternatively, if this Honourable Court finds the Tribunal had such power, then the exercise of the discretion to make orders in terms of orders 3, 4 and 5 was wrong in and contrary to law relating to orders of costs against entities themselves not being parties to proceedings.
  1. 3.Further in the alternative if this Honourable Court finds that the Tribunal had power to make orders in terms of orders 3, 4 and 5 aforesaid the making of the orders in terms of orders numbered 3, 4 and 5 constituted an improper exercise of the Tribunal's discretion in that:-
  1. a)the Tribunal ought to have ordered that the costs thrown away be paid by the Applicant to Application number C258-95;
  1. b)the Tribunal ought to have, before making any orders, determined the “jurisdictional arguments” foreshadowed at the directions hearing of the Tribunal of 8th January 1996.”

Ground 3(a) is obviously limited to the costs incurred in C739-95 and C810-95, and does not encompass the costs in C258-95. Ground 3(b) appears to be a reference to the direction made on 8 January 1995 to the effect that any party wishing to make an application concerning jurisdiction was to give notice to the solicitors for the other parties in the three proceedings, of their intention to do so, with an outline of their submissions, by 19 January 1996. Apart from the reference to lack of jurisdiction in Walkers' defence in application no C258-95, none of the material relied upon in the application for leave to appeal, by Walkers, or by any of the other parties for that matter, suggested that Walkers made any such application, or that this point was raised by counsel for Walkers at the directions hearing on 22 January 1995, or that Walkers wished to appeal from the order reserving costs of the first proceeding C258-95.

Procedure on appeal

The appeal was not a rehearing de novo (as to the distinction between a rehearing and a rehearing de novo, see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-21). It was said by the Court of Appeal, (Macrossan CJ and Pincus and McPherson JJA) in Whywait Pty Ltd & Mays v. Davison (CA184/95, 4 June 1996, unreported) that:

“Under s. 94(1) of the Queensland Building Services Authority Act 1991 an appeal is not stated to be an appeal de novo in which the appellate court is completely free to draw inferences differing from those arrived at below or to make findings inconsistent with those reached by the Tribunal. On the contrary, the court's appellate function is limited in the manner explained in decisions such as Clark v. Trevelyan [1963] QWN 11; Callinan v. Boyne Smelters [1984] 2 Qd.R 501; Aitken Transport Pty Ltd v. Voysey [1990] 1 Qd.R 510, and other authorities in that tradition. Such an approach has been adopted in decisions of District Courts when determining appeals from the Tribunal under s. 94, notably by Kimmins DCJ in Ashmore Constructions Pty Ltd v. Queensland Building Services Authority (February 1993: Dist.Ct.App.no.11/1995). With respect, his Honour's judgment to that effect appears correct. It also has the merit of restricting the scope of appeals on matters of fact which may be brought from a tribunal which, having regard to the provisions of the Act of 1991, was evidently designed to provide a more informal and less expensive procedure and forum for determining domestic building disputes than are generally believed to be available in ordinary litigation.”

The authorities to which the Court of Appeal referred show that the findings of the Tribunal are to be equated to the verdict of a jury and will be disregarded only if they can be shown to be manifestly wrong.

The appeal against the C810-95 costs orders

Walkers was obviously a party to the second proceeding C739-95. At the hearing before me, counsel for Walkers conceded that the Tribunal had power to make the costs orders in the that proceeding, as well as those in the first proceeding. Consequently the argument as to the extent of the costs power was confined to the costs of the third proceeding C810-95. Walkers' contention that the Tribunal had no power to order Walkers pay the costs of the parties in C810-95 was made solely on the basis that Walkers was not a party to that “action”.

The Tribunal's jurisdiction

As the Tribunal is a creature of statute its jurisdiction must be found either expressly or by necessary implication in the statute which creates it or from other relevant statutory provisions. Part 8 of the Act sets out the jurisdiction of the Tribunal, and that which is relevant to this application is found in Division 1. The jurisdiction to hear and determine “domestic building disputes” is conferred by s. 95(1) of the Act, and this jurisdiction is circumscribed by the definition of “domestic building dispute” of which more is said later. Section 95(1) provides:

“95(1) The Tribunal may, on application by a party to a domestic building dispute, make such orders and directions as may be just to resolve the dispute and any other matters at issue between the parties.”

The Tribunal's power to make orders awarding costs is conferred by s. 95(4) which provides:

  1. “(4)In the exercise of its jurisdiction under this section, the Tribunal may exercise any one or more of the following powers -
  1. (a)
    order the payment of a monetary sum found to be owing by one party to another;
  1. (b)
    award damages, including exemplary damages and damages in the nature of interest;
  1. (c)
    order restitution;
  1. (d)
    avoid any unjust contract, or otherwise vary a contract to avoid injustice;
  1. (e)
    avoid a policy of insurance under the statutory scheme;
  1. (f)
    order rectification of defective or incomplete building work;
  1. (g)
    award costs.”

The powers in s. 95(4) have been interpreted widely by Demack J in Woorabinda Aboriginal Council v Ealesrose Pty Ltd (S.C. no. 109/93, 22 November 1993, unreported) who said there:

“The principal argument advanced by Mr Britton is that here the plaintiff has sought a number of declarations and that the declaratory orders are ones that are not specifically said to be within the powers of the Tribunal. S. 95 of the Act says:

‘The Tribunal may, on application by a party to a domestic building dispute, make such orders and directions as may be just to resolve the dispute and any other matters at issue between the parties.’

That section gives the widest powers to the Tribunal. Subsection 4 of s. 95 enumerates some of the powers that the Tribunal has. Mr Britton submitted that that list is exhaustive. I am not satisfied that that is so. It seems to me it could be read as illustrative of the powers given by s. 95(1) just as easily as it can be said to be exhaustive. There does not seem to me to be any reason to assume that the legislature in subsection 4 has cut down the wide powers given in subsection 1.”

But the word “costs” is unqualified. There appears to be no authority of the Supreme Court which specifically determines the extent or limitations of the Tribunal's costs power. In more recent times the High Court has examined the history and nature of the costs powers of superior courts in its consideration of the power to award costs against a non-party (Knight v SP Special Assets Ltd (1992) 174 CLR 178 and to which counsel referred) and of the power to award costs on an indemnity basis (Cachia v Hanes (1994) 179 CLR 403). It has also examined the ambit of the statutory discretion of courts of summary jurisdiction to award costs in criminal proceedings (Latoudis v Casey (1990) 170 CLR 534). There are many comparatively recent reported decisions of other appellate courts which deal with the extent of the particular costs powers of various inferior courts and statutory tribunals. Apart from J & C Cabot v City of Keilor [1994] 1 VR 220, I could find none which examines the question whether a tribunal with general power to award costs has power to award costs against a non-party.

construing the costs powers of a statutoiy tribunal

The extent of the costs power is to be determined by examining the statutory function of the Tribunal and the powers which are conferred under its constituent enactment. As Kirby P said in Walton v McBride (1995) 36 NSWLR 440 at 447:

“In the case of courts which are created by statute, at least where they are not superior courts of general jurisdiction in law and equity, the source of the court's power to order costs of any kind, must be found in the enabling statute. This is because costs are not, as such, a right or a privilege created by the common law. The power to award costs in common law countries is ancient. But, as the High Court pointed out in Cachia v. Hanes (1994) 179 CLR 403 at 410 it is usually traced back to the Statute of Gloucester 1278 (UK) 6 Edw I c 1. ...

Many statutes which create courts and tribunals of limited and particular jurisdiction provide, in differing ways, for the making of costs orders. When this is done, it is necessary, in each case, to consider whether the court or tribunal in question has power to make the order which is challenged. The decision maker will then look to the terms by which the power is conferred, consider the implications of the grant of the facility for ordering costs and reflect upon the nature and purpose of the body afforded that power.”

Accordingly it is necessary to look at the Act, its purpose and, particularly, the scheme within in which the power is conferred. But as can be seen, for example, in Walton v McBride (1995) 36 NSWLR 440, there are a number of approaches, all of which are consistent with the general principle that “any relevant statute or subordinate legislation must be the starting point for a consideration of [a person's] entitlement to costs”, see Cachia v Hanes, per Toohey and Gaudron JJ at 419.

The Tribunal is established under the Queensland Building Services Authority Act, an enactment which, relevantly, has the object or purpose of providing for remedies for defective building work (s. 3(b)) and for the efficient resolution of building disputes (s. 3(c)). The Act then provides that the Tribunal is constituted, for the hearing of a proceeding, by a single member of the Tribunal (s. 79). The word “proceeding” is not defined although s. 86 provides that a proceeding before the Tribunal is “started” by an application and that the application must set out the facts on which the application is based and the nature of the determination sought by the applicant. A “determination” is defined to include an order or direction (s. 4(1)).

The Tribunal is required to conduct a proceeding with as “little formality and technicality and with as much speed” as the requirements of the Act and a “proper consideration” of the matters before the Tribunal permit, and the procedure adopted by the Tribunal in a proceeding is, subject to the Act, within the Tribunal's discretion (s. 87(3)). The Act allows the Tribunal chairman to make rules for practice and procedure and expressly provides that such rules are to be subordinate legislation (s. 115). None appears to have been made. The Tribunal is not bound by rules of evidence but it may inform itself in any way it thinks appropriate (s. 87(3)) and may refer technical matters to an expert and adopt the expert's findings (s. 82). However other provisions of the Act indicate that in some respects the conduct of its hearings approaches that of a court, or at least that the power is to be exercised judicially. An applicant must give notice of the application to the person against whom the determination is sought, and if so directed by the Tribunal, to other persons (s. 86(3)); the Tribunal must allow the parties to a proceeding before it a reasonable opportunity to call or give evidence, examine or cross-examine witnesses and make submissions to the Tribunal (s. 87(1)) and a party to a proceeding may be represented by a legal practitioner if all parties agree or the Tribunal so directs (s. 89); the Tribunal may take evidence on oath or affirmation (s. 81(1)), summon persons to give evidence or produce documents (s. 80(1)) and enter and inspect property (s. 83(1)). For the purposes of enforcement, a determination made by the Tribunal, if registered in the District Court, has the same force and effect as a judgment of the District Court (s. 91). The Act also provides for the transfer of proceedings between the Tribunal and the courts (s. 97), allows the Tribunal to state a case on a question of law arising in a proceeding for the opinion of the District Court (s. 93), to refer a domestic building dispute to mediation (s. 96) or to summarily dismiss a vexatious or oppressive proceeding pursuant to s. 88 which also provides that the Tribunal may then:

“... order the person by whom the proceeding was brought to compensate the person against whom it was brought for loss, inconvenience and embarrassment resulting from the proceeding.”

But the scheme of the particular jurisdiction conferred by s. 95 together with the limit on the jurisdiction of State courts in actions involving a domestic building dispute gives the Tribunal an all but exclusive jurisdiction to hear and determine domestic building disputes - under s. 97(1) a court must, on the application to a party in an action arising wholly or predominantly from a domestic building dispute, order the action be removed to the Tribunal if the action could be heard by the Tribunal under Division 1. This jurisdiction is limited by the meaning of “domestic building dispute” which defines the categories of disputes formerly dealt with by the courts prior to Division 1 of Part 8 coming into force.

All parties agreed that Walkers was not a party to the proceeding commenced by application C810-95. But is there any indication in the context of the Act that the grant of power to award costs is to be restricted to an order against a party to a proceeding or to the costs of a party to a proceeding? It is necessary to consider the meaning to be attributed to the words “proceeding” and “costs” as used in the Act. Before doing so it is convenient to turn to the cases where the wider costs power has been examined.

The power to award costs against a non-party

The Supreme Court's costs power under O 91 r 1 is sufficiently extensive to permit an order for costs against a non-party. This rule, which is subject to the provisions of the Judicature Act and the Rules of the Supreme Court, relevantly provides that “the costs of and incident to all proceedings in the Court shall be in the discretion of the Court or Judge”. In Knight v SP Special Assets Ltd (1992) 174 CLR 178 Mason CJ and Deane J said of O 91 r 1, at 185:

“According to their natural and ordinary meaning, the words of the rule are sufficiently expansive to enable the Court to make an order for costs against a person, whether that person is formally a party to the proceedings or not. The jurisdiction and the discretion thereby conferred are not limited. Because they are not limited, it is easy to postulate a variety of circumstances where an exercise of the jurisdiction against a non-party would be extravagant and unjust. However, the existence of that possibility provides no justification for the imposition by the courts, by way of implication, of an arbitrary limitation upon the general jurisdiction conferred by the rule.”

And as Dawson J said of the rule, at 202-03:

“[it] places the costs of and incident to all proceedings in the court in the discretion of the court or a judge. True it is that the rule does not expressly say that the discretion extends to determining who shall pay the costs, as does the English Act of 1890. But no limit is imposed upon the discretion conferred and in the absence of any implied limit there is no justification for confining the jurisdiction with regard to the persons against whom costs may be awarded. ... True it is that in general costs are not awarded against non-parties, but that is because it is generally inappropriate to do so. But I see nothing in the rule to prevent it being done in the exceptional case where it is appropriate to do so.”

Knight v SP Special Assets Ltd has been discussed in later cases which have considered the extent of the costs powers of superior courts, for example, Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; 117 ALR 253. There the Full Court of the Federal Court held that s. 43 of the Federal Court of Australia Act 1976 (Cth) conferred upon that court jurisdiction to award costs against persons who were not parties. This result did not depend on that Court being a superior court of record, but on the terms of s. 43, which relevantly provides that “the Court or a Judge has jurisdiction to award costs in all proceedings before the court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded” and further that “except as provided by an other Act, the award of costs is in the discretion of the court or Judge”. Of this provision the Court said at 258:

“Section 43 recognises that courts of common law have no jurisdiction to award costs unless such a jurisdiction is conferred by statute. Section 43 complements the jurisdiction obtained by the court as a court of equity: see Knight v FP Special Assets Ltd (1992) 174 CLR 178 per Mason CJ, Deane J at 182-3.

The jurisdiction of the court to award costs has not been narrowly defined by parliament and the court is able to make such orders for the payment of costs as may be required for the just disposal of all proceedings brought before it. ... Clearly the section is no narrower than O 91, r 1 of the Rules of the Supreme Court of Queensland considered by the High Court in Knight v FP Special Assets Ltd.”

This conclusion was reached on the basis of s. 43 alone. At 261, it was said:

“Having regard to the provisions of s. 43 there is in our view no need to consider whether the ‘inherent jurisdiction’ of the court can be called in aid or indeed whether in the case of a statutory court, it is inappropriate to refer to an ‘inherent jurisdiction’: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 618. It suffices to say that s. 43 confers in wide terms an express jurisdiction to award costs and that the court's powers, in the exercise of the jurisdiction, enables a costs order to be made against a third party to the litigation in a suitable case.”

In both cases the expression “in the discretion of the Court or Judge” (O 91 r 1 of the RSC; s. 43 of the Federal Court of Australia Act) has some importance. Perhaps, if in conferring the costs power, the words of s. 95(4)(g) had also included a phrase such as “in the Tribunal's discretion” or “as it thinks just” (see, J & C Cabot v City of Keilor [1994] 1 VR 220 at 225), the Tribunal's power might extend to awarding costs against a non-party.

Does the absence of an equivalent expression mean the power is limited? The Tribunal's costs power (“may award costs”) is not expressed in expansive terms as is the costs power of the Supreme Court and the Federal Court. Both expressions may be contrasted with costs power of a District Court, which is not conferred in express terms by the constituent enactment, although that power has been inferred from other provisions of the District Courts Act 1967 which refer to costs and from s. 101 which confers the power to make rules “necessary or convenient for regulating the procedure and practice of District Courts and for the purpose of giving full effect to this Act”, see: Colburt v Beard [1992] Qd R 67; Paterson-Walls v FAI General Insurance Co Ltd [1995] 1 Qd R 282.

implied powers

Is the Tribunal's power to award costs against a person who is not a party to a proceeding then a necessary power to be implied from the conferral of jurisdiction to make “such orders and directions as may be just” (s. 95(1))? In Re Whiting [1994] 1 Qd R 561 the Chief Justice discussed generally the implication of powers such as may be thought necessary for the effective exercise of a tribunal's function. At 567 he said:

“In the case of an inferior court or a statutory tribunal, if the topic is not expressly dealt with in the constituent enactment conferring jurisdiction (and it would be a matter of detail not to be expected), some comparable power might be implied. In the case of an inferior court, an implication of ‘powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred’: see Grassby v The Queen (1989) 168 CLR 1 at 17 per Dawson J. The fact that there is proceeding ‘an administrative function is ... no bar to the existence of implied powers if such are necessary for the effective exercise of the powers which are expressly concerned’ (ibid.).”

Further in Knight v. S.P. Special Assets Ltd (1992) 174 CLR 178 at 205, Gaudron J said of the manner of construing powers conferred on a court:

“It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of the grant (Hyman v. Rose [1912] AC 623 at 631; FAI General Insurance Co Ltd v. Southern Cross Exploration NL (1988) 165 CLR 268 at 290). Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.”

And in Walton v. McBride (1995) 36 NSWLR 440 at 447, Kirby P said:

“Where a subordinate court of limited jurisdiction is created, it must find its powers in the express language of the statute which gives it existence, in the implications which derive from that language and are necessarily involved in it or such powers as may be inferred from the very fact that the legislature has created a court, with jurisdiction to perform and therefore with the necessary means of carrying out that jurisdiction and giving it effect: cf John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476.”

the meaning of costs

Walton v. McBride (1995) 36 NSWLR 440 provides particular assistance in the discussion of the costs powers of inferior courts and statutory tribunals where the word “costs” is undefined. That case was not concerned with the power to order costs against a non-party, but with whether a medical tribunal had power to award costs on an indemnity basis or to order a party to pay the costs incurred by another party in attending, observing and instructing his legal representatives at a hearing. This tribunal's enactment had conferred a power to award” “such costs ... as the Tribunal may determine”. However Kirby P could not accept that such a facility for costs should be given a wide construction, leaving it to the particular tribunal to show “discernment” in ordering costs. At p. 447-8 Kirby P went on to consider a general power to award costs:

“Just because a power to award ‘costs’ is conferred in general terms, does not mean that the power is entirely open-ended. It cannot authorise the making of an order which is entirely at large. Nor will it sustain idiosyncratic orders or orders beyond the provision of what can truly be described as ‘costs’. If Cachia v. Hanes, in the High Court of Australia, establishes nothing else, it makes the foregoing plain, for in that case both the Supreme Court Act 1970 and the rules of court spoke of ‘costs’ in perfectly general terms. A fortiori, a judge, magistrate or tribunal member of a limited and inferior statutory body given the power to award ‘costs’ may have, thereby, a large discretion. But it is one to be exercised judicially, for the purpose of achieving the objects of the legislature which has conferred the power, not for the attainment of some personal view about justice in the particular case ...

... Normally, all that parliament does is what it has done in the Medical Practice Act 1992, s 161, and Schedule 2 cl 13. It empowers the body in question to order the payment of ‘costs’. These are left undefined. In default of some statutory assistance, content must then be given to the word, by utilising the meaning ordinarily ascribed to costs in a contest of the kind with which the tribunal in question deals.”

Nonetheless Powell and Cole JJA held, Kirby P contra, that the medical tribunal's power to award “such costs ... as the Tribunal may determine” extended to awarding costs on an indemnity basis but by Kirby P and Powell JA, Cole JA contra, that the word “costs” as used in the relevant enactment included a party's costs of attending as a witness but not the party's costs for attending the proceedings to observe or instruct legal representatives.

In finding the Medical Tribunal's costs power was limited and that it did not have power to award indemnity costs, Kirby P was much influenced by policy considerations. At 449-450 he said:

  1. “1.The fact that ‘costs’ are left undefined in this, as in the statutes empowering other tribunals of this State to award costs, far from suggesting the large power to provide indemnity costs suggests to my mind the contrary, that is, that no such power is intended. The word ‘costs’ must be read in the context of the legislation here in question (as of legislation empowering other tribunals). It must be read against the backdrop of the provisions authorising orders for the payment of costs by the courts. As Cachia v. Hanes in the High Court and in this Court demonstrates that power is severely limited. From its earliest days in the Statute of Gloucester it was ‘never intended to be a comprehensive compensation for any loss suffered by a litigant’: see Cachia (at 410). Where parliament intends a larger provision, it will say so expressly, at least in the case of inferior courts and tribunals. ...
  1. 2.... that ordinary sense [of the word ‘costs’] is the sense long accepted by the courts of common law, that is, party and party costs: cf Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400. ...
  1. 3.... it is important that this Court keep in mind the consequences of possible injustice, or at least extremely heavy financial burdens, for other[s] ordinarily ordered to pay the costs of the complainant before the Tribunal.
  1. 4.Whilst it is true that the word ‘costs’ is unconfined in the language of the statute, it is equally true that no express source of power is given to enlarge the ordinary meaning of the word, which would be party and party costs. Assuming such express power to be unnecessary to a superior court of record, such as the Supreme Court or the Federal Court of Australia, it is far from clear that it is unnecessary for a subordinate tribunal of limited jurisdiction. Yet if it is true of this Tribunal that it has such powers, it is presumably true of all the other tribunals of the State which have a general power to award undefined ‘costs’. That presents a very large question of policy indeed. If the relatively minor matter of policy affecting the Supreme Court in Cachia v Hanes requires detailed consideration (as the High Court majority assumed) the large question thus presented in relation to all statutory tribunals of the State with power to order costs is one upon which Parliament should be allowed to speak. Such an enlargement of the powers of so many tribunals should not be provided in a stroke by this Court by embellishment of the meaning of the word ‘costs’ where used, unembroidered, in the legislation;
  1. 5.... The Tribunal, is after all, a subordinate body of strictly limited jurisdiction. True, it deals with high-earning medical practitioners. But that would not provide a basis of acceptable principle for authorising a power to order indemnity costs which did not equally extend to ..... all other tribunals of the State that have a power to award costs expressed in simple and unelaborated terms.....”.

However, Cole J A and Powell JA thought that the Medical Tribunal did have power to order costs on an indemnity basis, Powell JA (at 463-4) because the tribunal's powers -- which seem to have been not unlike those conferred on the Queensland Building Tribunal -- placed the tribunal in a position analogous to that of a court and consequently the costs power was to be construed as widely as that of a court (although the manner of their quantification was not so constrained).

Cole JA arrived at the indemnity costs power by a different route to Powell JA. While comparing the nature and functions of proceedings before the Medical Tribunal with those of a court, he suggested that the fact the tribunal was not a court was decisive of the issue. At 470-1 he said:

“The question of whether the Medical Tribunal is a court may be of some importance. If it is not, there is no apparent reason for restricting any costs power to legal costs as courts customarily do, and as the legislative and rule powers of courts customarily require. Further, if the Tribunal is not a court, the learning relating to the history of the manner in which courts have customarily interpreted powers in relation to costs becomes, if not entirely irrelevant, peripheral.

... One comes to the question whether the Tribunal is a court in this instance only as a preliminary to considering whether, if it be so, that “In my view the similarities between some of the functions and procedures performed by the Tribunal to those performed by courts are not sufficient to permit the distilling of a legislative intention that in using the word ‘costs’ in the Medical Practitioners Act 1938, and regulations thereunder, only such costs as would be recoverable were the Tribunal a court of law with attendant cost-making powers restricted both by statute and rules, was conferred upon the Tribunal. Had that been the intention it would be expected that the legislature would have used an expression more restrictive than either ‘costs’ or ‘such costs’ and would have either referred to or created an appropriate rule structure so restricting the power. It did neither.”

The meaning of “proceeding”- was the directions hearing a proceeding?

There is an issue of some difficulty in whether the Tribunal's costs power is confined to the parties to “a proceeding”. Costs powers of superior courts have been prescribed in relation to proceedings, for example, the Supreme Court (O 91 r 1: “the costs of and incident to all proceedings”) and the Federal Court (s. 43: “costs in all proceedings before the Court”). There is no express reference to a “proceeding” in sub-s. 95(1) or (4) although the Tribunal's jurisdiction under that section is enlivened on “application” by a party to a “domestic building dispute”. The Acts Interpretation Act 1954, s. 36 definition of “proceeding” adds little - “a legal or other action or proceeding”. Nonetheless the Tribunal's jurisdiction under Division 1 is predicated upon there being an “application” (which by s. 86 is starts a proceeding) and this is taken up in the reference to a “proceeding under this section” in s. 95(3). But there were three applications, and consequently there were three proceedings, “started” in the Tribunal. Biggs' application in C810-95 was brought as a result of Walkers' decision to institute their application against Biggs in C739-95. It may accepted that all parties would have been joined in the one proceeding had not the Tribunal member felt constrained by the decision in Brisbane City Council v. Warren Spicer. But the fact is that none of the parties challenged this intimation nor later sought to have all matters joined in the one proceeding. Apparently no one objected to the direction that each party deliver their pleadings to all other parties in the three proceedings. None of the parties objected to the Tribunal dealing with the three proceedings at the same directions hearings or to the directions that the proceedings be heard together (Order 10 of 20 November 1995, Order 9 of 8 January 1996). Walkers was not a party to C810-95 but the orders appealed from were made at the directions hearing of the three proceedings. Additionally, there is the well known principle as to the overriding desirability of having all relevant parties joined in one piece of litigation as a matter both of convenience and justice, so that the rights and liabilities of all may be determined by the one tribunal at the one time: see Standen v G H Varley Pty Ltd (1956) 56 SR(NSW) 346 at 346-7. This points strongly in the direction of the more extensive costs power. To like effect are the words of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 that a “plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action ... is clearly demonstrated”.

The use of the word “started” in s. 86 suggests the proceeding related to an application is not confined to the dispute or the matters described in the application starting the proceeding when the application is filed. The notion of a “proceeding” is capable of having either a broad or narrow meaning, for example a step in an action or an action, depending on the context, see: Halsbury's Laws of England 4th ed., vol. 37 para. 27. Authorities suggest that the expression “proceeding” generally has a wide meaning, although the context may qualify that breadth, see, for example Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137, 145. If a broad view is taken then the directions hearing was a proceeding involving three applications and the parties to those application were parties in that proceeding. This leads to the conclusion that Walkers was a party in the proceeding in which orders involving the costs of C810-95 were made, and consequently that the Tribunal did have power to make those orders against Walkers.

costs relating to a proceeding

Where the word “proceeding” is defined the position is clear. The effect of the expansive definition of “proceeding” in the Federal Court of Australia Act (to mean, relevantly, “a proceeding in a court, whether between the parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding”) has the result that the Federal Court's costs power under s. 43 is not confined to the original action or by entry of judgment in that action, see: Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; 117 ALR 253. In holding that the only limitation imposed on the Federal Court's relevant jurisdiction was a jurisdiction to award costs “in all proceedings before the Court”, Lee, Hill and Cooper JJ said (117 ALR at 260):

“... the jurisdiction conferred by s. 43 is a separate jurisdiction dealing with the liability for the costs of proceedings conducted in the court in the exercise of other jurisdiction of the court. (See s. 26 of the Judiciary Act 1903 for the conferral of a similar jurisdiction on the High Court in respect of “matters” brought before that court.) The clear intent of the parliament is to provide sufficient jurisdiction and adequate powers to enable the court to quiet the controversies exposed in the proceedings brought before it and to better exercise its jurisdiction. The grant of jurisdiction in s. 43 of the Act in all proceedings before the court is a jurisdiction that is invoked by the commencement of proceedings and the manner of exercise of the jurisdiction is governed by ss. 22 and 23 and the common law.

No doubt, an implied grant of all the necessary powers is attached to the conferral or vesting of jurisdiction but ss. 22 and 23 of the Act state expressly that the Federal Court shall have the following powers:

  1. 22.The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.
  1. 23.The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

There is nothing in ss. 22 or 23 of the Act to indicate an intention of the parliament to circumscribe the power of the Federal Court. Indeed, the terms of s. 22 of the Act contemplate the court exercising its jurisdiction with the benefit of the widest of powers: see Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510; 80 ALR 203.

What s. 43 requires is that the jurisdiction to order costs be one limited to costs relating to a proceeding. In other words there is no jurisdiction to order costs at large. There has to be or have been, within the court's jurisdiction, instituted a proceeding.”

Secondly, the particular meaning of proceeding may limit or expand the costs power. The typically broad interpretation of “proceeding” is exemplified in the definition of “proceeding” in the Federal Court of Australia Act, in s. 60 of the Corporations (Qld) Act 1990 which contains a wide, though exclusive, definition of “proceeding” which is not qualified by reference to a contrary intention, and in the definition of “proceeding” in s. 1322 of the Corporations Law where in some contexts the word refers to a legal proceeding and in other contexts to the proceedings of the company, for example in Scullion v Family Planning Association of Queensland (1985) 4 ACLC 78 at 83. These were considered in Australian Forest Managers Ltd (in liq) v Bramley (1996) 136 ALR 431 with the result that in the particular circumstances of that case the Federal Court had no jurisdiction to award costs against a non-party as s. 1335(2) of the Law operated to restrict costs orders to the parties to the proceeding, cf Re Wridgemont Display Homes (1992) 39 FCR 193.

Is there any reason then to read the term “proceeding” as being confined to the process, initiated by an application, for obtaining a remedy or determination from the Tribunal so that the costs power is to be exercised only against a party in the proceeding started by the relevant application? The similarity between the Federal Court's power to grant all such remedies “as the Court thinks just” (s. 22 of the Federal Court of Australia Act) and the Tribunal's power to “make such orders and directions as may be just” would suggest not.

As the judgments of Kirby P and Cole JA in Walton v McBride encapsulate diametrically opposed views of the effect of the word “costs” being undefined, one must return to the question whether it may be implied that there is a power to award costs against a non-party to a proceeding or to an application which commenced the proceeding (s. 86(1)). Obviously a construction that would promote the purpose or objects of the Act is required. If there is no express provision excluding it, this would lead to the conclusion that the Tribunal, being empowered to resolve disputes in an effective fashion and with the discretion to adopt such procedure appropriate to this end at the hearing of a proceeding, thus has the “implied power to remove obstacles encountered which impede the effective discharge of its function” cf Re Whiting [1994] 1 Qd R 561 at 568. Further, when regard is had to the Act, the policy considerations referred to by Kirby P lead to a conclusion that the Tribunal's relevant costs power is a wide one. Its jurisdiction is one shared, in some cases, with the courts. The objects of the Act and the Tribunal's extremely wide procedural powers indicate that the costs power is not limited to a party to a proceeding. However it might also be said that if there can be no third party proceedings under this Act (Brisbane City Council v. Warren Spicer No 161/94, 6 November 1995, Wylie DCJ, unreported) and if there are no rules of the Tribunal providing for such a procedure, then that is not “an obstacle [which] is encountered in some procedural aspect which can be expected to be under the Tribunal's control” (Re Whiting at 568). But this argument ignores the Tribunal's power to make its own rules which have the force of subordinate legislation.

Is there any implied limitation on the costs power? The Act provides for relief where proceedings are brought vexatiously or oppressively (s. 88) and, pursuant to s. 97(2), the Tribunal may order the transfer of “a proceeding in its entirety” or of “matters not directly related to a building dispute” to a court if the proceeding brought in the Tribunal “would be more appropriately brought, wholly or partly, in a court”. Do these provisions impliedly exclude the power to award costs against a non-party to a proceeding?

whether s. 88 or s. 97 covers the field

The Tribunal member made no finding that he was of the opinion that any of the proceedings had “been brought vexatiously or oppressively” (s. 88). None of the parties to this appeal sought to invoke the power of the Tribunal to have the second or third proceedings dismissed on that ground with an order for compensation. This is a wider power than the power simply to award costs. Costs are awarded by way of partial indemnity, for when the notion of costs was introduced to the common law by statute, they were never intended to be “comprehensive compensation for any loss suffered by a litigant”, see: Cachia v Hanes at 410. In my opinion, the orders which might be made under s. 88(b) could encompass orders for compensation analogous to a Bullock or Sanderson costs orders. Had such an application been brought in respect of the second proceeding C739-95 (Walkers v Biggs), and had it been appropriate for the Tribunal to form the requisite opinion, then costs orders, such as those the subject of this appeal in respect of the parties to the third proceeding C810-95, might have been made under that section.

Secondly, the power to order the transfer of a proceeding or part of a proceeding to a court under s. 97, like other powers which the Tribunal may exercise in relation to a “proceeding”, such as those under ss. 80, 81 and 82, are not limited by the ambit of “domestic building dispute” as is the jurisdiction under s. 95. Unlike s. 95(1) (Tribunal's power to adjudicate domestic building disputes) and s. 97(1) (removal of actions from a court to the Tribunal), there is no reference to a “domestic building dispute” in s. 88 nor is there such reference in s. 86 (start of proceedings) or in s. 97(2) (removal of a “building dispute” or a proceeding from the Tribunal to a court). The Tribunal's jurisdiction to make orders in matters other than domestic building disputes is contained in Division 2 to Division 5 of Part 8. Jurisdiction under these Divisions is also enlivened on “application”, but there is no power conferred to award costs in matters coming before the Tribunal under Divisions 2 to 5. The only costs power for which express provision is made in the Act is that in s. 95(4). An application for a determination of the Tribunal may be shown, in the result, to be concerned with a dispute or a “building dispute” (s. 97(2)(a)) which is not a “domestic building dispute” and consequently not within the jurisdiction conferred by s. 95(1). But this will not mean necessarily that the proceeding was “obviously so untenable or manifestly groundless as to be utterly hopeless”, see: Attorney-General (Vic) v Wentworth [1988] 14 NSWLR 481 at 91, or otherwise vexatious or oppressive (s. 88). The Tribunal may order the transfer of a proceeding to a court (s. 97(2)(b)) where the Tribunal does not have power to resolve the dispute the subject of the application commencing the proceeding (ss. 86(1), 95(1)). If the proceeding does not involve a domestic building dispute, the Tribunal does not have power to award costs incurred in that proceeding prior to its transfer. The costs power is expressly limited to the jurisdiction under s. 95. Cf the express power of the Federal Court to “award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction)...” under s. 43(1) of the Federal Court of Australia Act.

All this suggests that the Tribunal has no power to award the costs of a proceeding against a person who is not a party to that proceeding where the proceeding falls short of being oppressive or vexatious or where the dispute the subject of a proceeding is found not to be a domestic building dispute and is transferred pursuant to s. 97(2) to a court having the relevant jurisdiction. But that does not mean that the Act impliedly limits the costs power to the parties to a proceeding where the Tribunal's jurisdiction has been attracted under s. 95.

the costs power must relate to a domestic building dispute

The simple solution that the costs power under s. 95(4)(g) is sufficiently wide to permit an award of costs against a non-party to a proceeding may be found in s. 95(1) in the expression “domestic building dispute” together with the words “such orders and directions as may be just”. As counsel for Sourris, Mr Burns, submitted, correctly in my opinion, the power to award costs extends to ordering costs against any of the parties to a “domestic building dispute” whether or not they were parties to a particular proceeding. If the parties to proceeding C810-95 and Walkers were all parties to a relevant domestic building dispute or if there were any other matters at issue between them the costs order is within power.

The expression “domestic building dispute” describes those causes of action within the Tribunal's jurisdiction under Division 1 of Part 8, that is, to adopt Lord Diplock's description of a cause of action in Letang v Cooper [1965] 1 QB 232, 242-3, that such a dispute is “simply a factual situation the existence of which entitles one party to obtain from the Tribunal remedy against another person”. Cf Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 per Brennan J at 611. In exercising its jurisdiction under s. 95(1), not only a domestic building dispute but “any other matters at issue between the parties” may be the subject of the Tribunal's orders or directions. The phrase “matters at issue” is similar to “matters in controversy” in s. 22 of the Federal Court of Australia Act in which context it has been said that the word “matter” may embrace the controversy between the parties, excepting only claims that are distinct and unrelated, see: Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 159 CLR 457 at 481, or may refer to another cause of action which is attached to and not severable from the primary claim, see: Fencott v Muller (1983) 152 CLR 570 at 606; it focuses attention upon the substance of the dispute and so has a wide connotation, see: Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22 at 37. A matter in issue may be one discrete part of the litigation or a head of controversy which is not necessarily a separate cause of action, cf Colburt v Beard [1992] 2 Qd R 67.

Not all material filed in the Tribunal was before me and apart from a reference by Winton's counsel to Regulation 3A(e) in respect of the second proceeding, the hearing in this Court did not attract argument as to whether or not the disputes involved in each of the proceedings started by the applications was the one “domestic building dispute”. Except in respect of the operation of Regulation 3A on the second proceeding, that point was not argued before the Tribunal and the Tribunal made no express findings on that point. Only Biggs suggested at the directions hearing (in respect of the second application C739-95) that the Tribunal might not have jurisdiction in that proceeding and Walkers only raised a jurisdictional issue in their pleading in the first proceeding. Without giving reasons, Walkers submitted before the Tribunal that the second proceeding C739-95 (Walkers v Biggs) and the third proceeding C810-95 (Biggs v Sourris, Ellerington etc) could be transferred pursuant to s. 97, or stayed or adjourned. They did not submit that either of these applications was incompetent because the Tribunal lacked jurisdiction. It was faintly argued by Biggs that the second proceeding C810-95 (Walkers v Biggs) was not a domestic building dispute, because, since August 1994, Regulation 3A has excluded a registered professional engineer's design work and supervisory services from the ambit of the definition of “building work”. However the Tribunal member appeared to be of the view that the building work in question was undertaken prior to that time and so implied the Tribunal had jurisdiction so far as the argument concerned that proceeding. Other respondents to the third proceeding C810-95, for example the Council, simply asserted the matter should be dismissed.

If I am wrong in assuming that the Tribunal accepted that all parties were parties to the same domestic building dispute, or that the parties accepted this before me, then by dredging through the material before this Court, it appears that all parties involved in this hearing were in fact parties to the one domestic building dispute and there were matters at issue between them. Each party was involved in a dispute which first arose or was started in the Tribunal between Walkers and Winton in relation the performance of “domestic building work” as was each of them a party in a proceedings involving a dispute or claims in negligence related to the performance of that work.

the domestic building dispute

Consequently the order for the costs of the parties in C810 was within the Tribunal's power. Relevantly the Tribunal's costs power under s. 95 is circumscribed by the meaning of a “domestic building dispute” which is defined in s. 4 as follows:

“domestic building dispute means -

  1. (a)
    A claim or dispute arising between a consumer and a building contractor in relation to the performance of domestic building work or a contract for the performance of domestic building work; or
  1. (b)
    A claim or dispute arising between two or more building contractors in relation to the performance of domestic building work or a contract for the performance of domestic building work; or
  1. (c)
    a claim or dispute in negligence, nuisance, or trespass related to the performance of domestic building work.”

The definitions of “consumer”, “building contractor” and “domestic building work” then determine whether the disputes or claims made in these three applications were justiciable before the Tribunal. For the purposes of this appeal it seemed to be accepted by all parties that the Walkers and Winton's building contract was a “domestic building contract” as defined, and that the dispute the subject of the first proceeding C258-95 was in relation to a “domestic building dispute”. Section 4 contains the following relevant definitions:

  1. •“building” includes any fixed structure
  1. •“building contractor” means a person who carries on business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor
  1. •“consumer” means a person for whom building work is carried out but does not include a building contractor for whom building work is carried out by a subcontractor
  1. •“design work” means the preparation of plans or specifications for building work or professional advice in relation to building work.
  1. •“domestic building contract” means a contract for carrying out domestic building work
  1. •“domestic building work” means building work related to a home or associated building
  1. •“home” means any residential premises except premises constituting, or forming part of, commercial or industrial premises

“Building work” is relevantly defined by s. 4 to mean:

  1. (a)
    the erection or construction of a building; or
  1. (b)
    the renovation, alteration, extension, improvement or repair of a building; or
  1. (c)
    the provision of ... water supply, sewerage or drainage in connection with a building; or
  1. (d)
    the demolition of a building; or
  1. (e)
    any site work (including the construction of retaining structures) related to work of a kind referred to above; or
  1. (f)
    the preparation of plans or specifications for the performance of building work; or
  1. (g)
    any work of a prescribed kind;

but does not include work of a kind excluded from the ambit of this definition.

Of course the words “related to” in paragraph (c) of the definition of “domestic building dispute”, in the definition of “domestic building work” and in paragraph (e) of the definition of “building work” are broad words of connection.

the dispute involved in the first proceeding C258-95 (Winton v Walkers)

Winton's claim as appears from the face of the application filed in this proceeding was one “in relation to a contract for performance of domestic building work”, involving the guarantee under the building contract. As it was to emerge, this proceeding involved claims or a dispute “in relation to the performance of domestic building work”. The decision to reposition the units near the sewer trench, and the design work relating to that, the lack of compaction and subsidence and the resultant damage to the units was central to the dispute. This involved a number of issues, Walkers' allowing Sourris to construct the trench, Walkers' obtaining revised plans and approvals from the Council pursuant to which the units were built near the trench, responsibility for the design of the project, who failed to take proper account of the compaction of the trench, whether the relocation decision was made on Winton's or Walkers' or Biggs' advice as to compaction of the trench, whether in this respect either of them relied on Biggs and if so whether Biggs was retained by Walkers or Winton, and whether Biggs relied on Ellerington or Sourris or the Council. These issues were raised in Biggs' statement in that proceeding or in Walkers pleading Winton's negligence and claiming damages in the set off and counterclaim in their defence and in Winton's plea of contributory negligence in Winton's reply.

The building work which was the essence of the dispute was the design work relating to the relocation of the units and the site work related to the construction or erection of the units. The “performance of building work” at issue in the first proceeding commenced by application C258-95 encompassed not only the erection or construction of the units but also the preparation of revised plans or specifications for the erection or construction of the units, as well as any site work “related to” their erection or construction (paras (a), (f) and (e) respectively of the definition of building work). The compaction of the trench was a matter at issue related to the design work.

the dispute in the second proceeding C739-95 (Walkers v Biggs)

In the second application, again Biggs was a “building contractor” as defined, and Walkers a “consumer”. It also involved a contract, though not the building contract. The existence or terms of the contract between Walkers and Biggs was central to the claim in the second proceeding, but its terms were to be established in the first proceeding C258-95 (in which Biggs was not a party), according to the C739-95 application and MacRae's statement in support of this application. MacRae's statement limits the claim to one in negligence: cf Murgia v Sablewell Pty Ltd (1995) 16 Qd Lawyer Reps 46. The issue was then whether Biggs' alleged negligence in the performance of obligations under the Walker-Biggs contract (if those obligations were found in the first proceeding), that is, whether Biggs in acting as Walkers' consulting engineer, was negligent in relying on Sourris, Ellerington or the Council as to the compaction of the trench. The alleged negligence relates to the performance of building work, that is design work in relation to the location of the units or the compaction of the trench. It was clearly a claim or dispute in relation to, and a claim or dispute in negligence “related to” the performance of the same domestic building work which was the subject of the first proceedings. It was a domestic building dispute within paragraph (a) and (c) of the definition of domestic building dispute.

the dispute in the third proceeding C810-95 (Biggs v Sourris, Ellerington etc)

As the claim against the Brisbane City Council is not relevant to this appeal, I am only concerned with the claims against the other respondents in the third application, Sourris and Ellerington. It may be assumed that both Biggs and Ellerington were “building contractors” as was Sourris according to Biggs' statement in C258-95. There is sufficient in the material to which Walkers had access to indicate that the building work in which Sourris and Ellerington were directly involved was the design and construction of the sewer and trench on the site. Biggs' application claims only contribution or indemnity. It is not expressed to be a claim in negligence, nuisance or trespass (see paragraph (c) of the definition of “domestic building dispute”). It does not seem to be a claim related to contractual rights to indemnity or contribution, that is, for damages for breach of contract. I assume it is a claim against alleged joint or concurrent tortfeasors, which if brought in a court might be made under s. 6 of the Law Reform Act 1995, cf the definition of “court” in s 5 of that Act. A claim for contribution or indemnity under the Law Reform Act is a cause of action but one apart from and independent of the cause of action which an injured party has or would have had against a tortfeasor from whom contribution is sought, see Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 218; Nickels v Parks (1948) 49 SR (NSW) 124 at 129. However it is similar to Walkers' claim in C739-95. Biggs' statement in C258-95 clarified the basis of his claim against Sourris and Ellerington. Its basis is a claim of negligence related to the performance of the same domestic building work as that which is the basis of the dispute in the proceedings started by the first and second applications.

There are a number of matters at issue between all the parties to the first and second proceedings which from Biggs' statement would also have been in issue in the third proceedings. These include whether Biggs was acting with Walkers' authority or as its agent in giving advice in the design work undertaken for the relocation of the units with the trench in mind. If he was not, then there was no sustainable claim for indemnity or contribution against the respondents to the third proceedings, as the claim in the second proceedings is made on the basis of that relationship, which is also in issue and central to the claims made in the first proceeding. Further the claim in C739-95 for damages “in identical terms” from Biggs is integral to the claim in C810-95, as appears from the face of the C810-95 application, and the damages claimed in both are the same as the damages Walkers claimed in its setoff and counterclaim in the first proceeding. And, as was submitted by Mr Derrington, the costs of C810-95 was very much a matter at issue between all the parties. The proceedings in C810-95 involved a dispute within paragraph (a) and paragraph (c) of the definition of “domestic building dispute”. Again, the proceedings started by this application involved a claim or dispute in negligence related to the performance of the same building work the subject of the other proceedings.

Consequently the disputes in each of the three proceedings were “in relation to” or “related to” the performance of the same domestic building work. However none of the parties was a party to all three applications. But all were parties to a dispute or claims in negligence related to the performance of the same “domestic building work”, see para (c) of the definition of domestic building dispute. Thus they were parties to the one “domestic building dispute”, and the Tribunal had power to make the orders against Walkers in respect of the costs of C810-95.

whether the discretion was wrongly exercised

Turning then to consider whether the costs order in C810-95 was contrary to the principles governing the exercise of the discretion. In Knight v. S.P. Special Assets Ltd the High Court considered some of the limited circumstances where such a discretion might be appropriately exercised. As Mason CJ and Deane J said at 188:

“The cases awarding costs against non-parties are more readily explicable on the footing that there was no absence of jurisdiction to order costs against non-parties in the strict sense and that the jurisdiction could be exercised against parties who were considered to be the “real parties” to the litigation.”

That Court was concerned with the one general category which encompasses a receiver who was not a party to the litigation, Mason CJ and Deane J, at 192-3, described that category as arising when the party is insolvent or a creature of straw, the non-party has played an active part in the conduct of the litigation and the non-party has, or is a representative of those who have, an interest in the subject of the litigation. Walkers clearly does not fit those criteria. But the power is not confined to that category. In J & C Cabot v. City of Keilor [1994] 1 VR 220, Gobbo J upheld, on appeal, the order of a tribunal awarding costs against the person who sponsored proceedings brought by objectors in a planning matter. There have been cases where costs have been ordered not only against persons connected with the plaintiff or moving party (as in Knight v FP Special Assets), but against persons connected with the defendant or responding party (as in Re Talk Finance Services Pty Ltd [1994] 1 Qd R 1). It has also been said that the discretion to make an order against a non-party is not confined to well recognised categories: see Bischof v Adams [1992] 2 VR 198 at 204; Symphony Group plc v Hodgson [1994] QB 179 at 192-3. These orders are not confined to directors or liquidators or receivers. In Knight v FP Special Assets, Mason CJ and Deane J, at 192, referred to the “variety of circumstances in which considerations of justice, in accordance with the general principles relating to an award of costs”, which support an order for costs against a non-party. They also mentioned the long-established cases where equity recognises such an order might be made.

This discretionary power is exceptional, see: Knight v FP Special Assets at 192 and 203, and its exercise should be limited “in accordance with the principles of reason and justice”, see: Symphony Group plc v Hodgson at 190-1. One might distil from Bischof v Adams and from Symphony Group plc v Hodgson some useful guidelines or appropriate considerations which might be taken into account in the exercise of the discretion in proceedings such as those before the Tribunal.

Firstly, there should be, at least, a connection between the non-party and the proceedings and secondly, a causal connection between the non-party and the costs (Bischof v Adams at 204; Symphony Group plc v Hodgson) at 191-2, where Balcombe LJ identified the connecting factors being firstly, where a person has some management of the action, e.g., the classic case of a director of an insolvent company causing the company to improperly prosecute or defend proceedings; secondly, where a person has maintained or financed the action, thirdly, the “solicitor” cases, and fourthly, and importantly, “where the person has caused the action”. Here I am satisfied that both connections have been made out. Walkers set in train the multiple proceedings when they accepted the intimation of the Tribunal member that third party proceedings could not be brought in the Tribunal, and instituted the second proceeding against Biggs. They persisted with the second application. They delivered MacRae's statement asserting a claim against Biggs and the basis for that claim. They were aware of the third proceeding instituted by Biggs, participated in the directions hearings involving all proceedings, acquiesced in the directions involving them and all other parties, and, in the Tribunal's opinion, they should have made a “more thorough enquiry” before commencing the second application. Clearly the causal connection between the C810-95 costs and Walkers is found in Walkers' failure to prosecute the second proceeding, thereby rendering the third proceeding all but nugatory.

Secondly, the rules of natural justice must be observed, and usually the non-party should be brought before the court (Knight v Special Assets at 203), or at least warned at the earliest opportunity by the party seeking the order that such an application will be made (Symphony Group plc v Hodgson at 193). This was done by Biggs' solicitors as soon as they learned that Walkers did not intend to deliver its pleading in the second proceeding in accordance with the direction made. Despite that warning Walkers did not oppose the order on the basis of the Tribunal not having power. Thirdly, it is exceptional for such an order to be made where the applicant has a cause of action against the non-party and could have joined that person as a party to the original proceedings (Symphony Group plc v Hodgson at 193). Finally, in cases where costs have been awarded there has been, at least, some element of at least recklessness or personal carelessness involved in the conduct of the non-party in connection with the proceedings and the incurring of costs (see Symphony Group plc v Hodgson at 193, Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; 117 ALR 253). Again, it seemed to be the view of the Tribunal member that the costs of Biggs v in C739-95 and of the parties in C810-95 would not have been incurred if Walkers had given proper consideration to whether or not it would claim against Biggs. In contravention of the order made at a directions hearing, Walkers failed to deliver a support of their application in C739-95 and intimated they did not intend to do so. It was no answer to blame Winton for not pleading a cause of action against Biggs.

leave to appeal from the orders in C810-95

According to the notice of appeal the applicants seek leave to appeal from the following orders:

  1. “3.That the first, second and third respondents to application C258-95 pay the costs, including reserved costs, of each of the parties to application C739-95 and C810-95 to be taxed on a party and party basis for the scale of costs appropriate to actions in the District Court where the sum recovered is greater than $50,000.

There is the question of whether Walkers may appeal or at least invoke the provisions of s. 94(1) in respect of the costs orders made in C810-79. The Tribunal had no power to order the costs of the third proceeding be paid by Walkers in the proceeding in which it was not a party. Although it might be said that in effect Walkers was ordered to pay the costs of those persons (the respondents in the third proceeding, C810-95) who were not parties in the other proceedings (C258-95 and C739-95) the right of a “party to a proceeding” to appeal to this Court is limited to an appeal “against a determination of the Tribunal in the proceeding”. As the orders were framed parties in one proceeding were ordered to pay the costs of parties in another proceeding. In which proceeding was the determination made? If the orders were made in the first proceeding, then the Tribunal has awarded costs in favour of a non-party, but if made in C810-95, then Walkers has no standing to apply for leave. The point was not argued. In my view the relevant “proceeding” was that constituted by the directions hearing, but in the result it probably does not matter.

Leave to appeal in C258-95 and C739-95

Leave to appeal from the costs orders made in C258-95 and C739-95 is not granted. Those orders were not shown to be manifestly wrong.

In respect of the order reserving that day's costs of the first proceeding (C258-95, Winton v Walkers), it was said that the exercise of the discretion miscarried as the Tribunal should have ordered that Walkers' costs in that proceeding be paid by Winton because Winton allegedly caused the trial of that proceeding “to go off” by raising what was described as the Biggs' issue. These allegations of fact appear to be contrary to the finding of the Tribunal (as to the consequences which then follow, see Whywait Pty Ltd & Mays v Davison (CA184/95, 4 June 1996, unreported)) and in any event are not borne out on a close examination of the material filed in the application for leave to appeal. As to the second proceeding C739-95, it was conceded by counsel for Walkers, at the Tribunal hearing, that Biggs, the respondents to that application, should have their costs or would be entitled to their costs in the event that the matter concluded, and further submitted in this application for leave, that no order for costs should have been made on that day and that those costs should not be Walkers' responsibility.

Secondly, Walkers' notice of appeal which is confined to the Tribunal's Orders 3, 4 and 5, sought an order that Winton pay the costs Walkers' had been ordered to pay under those orders. Walkers did not give Winton notice of the grounds of appeal from Order 6, that is from the order reserving Winton's costs of the directions hearing in the first proceeding (Winton v Walkers). Winton had no notice that Walkers was seeking an order that Winton should pay their costs in the first proceeding. Nor did Walkers give appropriate notice to the respondents in the second proceeding (Walkers v Biggs and Cavanagh Biggs) of the order which Walker claimed at the hearing before me, ought to have been made, that is an order reserving the costs in the second proceedings. The observations of Kelly SPJ (with whom Ryan and Mackenzie JJ concurred) in Paron v Fry (No. 2) [1990] 1 Qd.R. 550 in respect of the omission to state the costs orders sought in a notice of appeal, are apposite. Thirdly, the applicants failed to show that there was a question of general importance in respect of the Tribunal's costs orders made in either C258-95 or C739-95. The principles involved in an appeal from the exercise of a discretion, such as a costs order, are well established and an appellate court will interfere with the exercise of such a discretion only if it is shown that there were such a misapprehension of the primary facts to ground the exercise of the discretion to award those costs amounting to legal error in accordance with the concepts discussed in House v The King (1936) 55 CLR 499 at 502-3, 505; Norbis v Norbis (1985-85) 161 CLR 513 at 518-19. The applicants failed to show in respect of either of those costs orders, that the Tribunal member acted upon a wrong principle, allowed extraneous or irrelevant matters to affect him, had mistaken the facts or did not take into account some material consideration or for some other reasons that he had failed properly to exercise the discretion: see Lewis v Utting ex parte Utting [1983] 1 Qd R 423, 425.

Thus, in respect to the costs order made in the second proceeding (C739-95, Walkers v Biggs) as well as in the first proceeding (C258-59, Winton v Walkers), nothing in the material filed in the Registry of this Court and by leave, or tendered at the hearing, suggested there was a prima facie error in the Tribunal member's decision, nor did it raise an issue of general importance, involving no more than the application to particular facts of the usual principles in awarding costs that have been settled by superior courts. Although Walkers also argued that Tribunal should have ordered that the costs thrown away in that proceeding be paid by Winton, there appeared to me to be no basis in fact for so doing. Walkers decided not to proceed then with the second proceeding (C739-95 Walkers v Biggs and Cavanagh Biggs) and they finally sought, and acquiesced in, the order adjourning the second and third proceedings to the Tribunal's registry. Whether or not Walkers decided it could not proceed with the second proceeding, C739-95, because of the manner in which Winton pleaded its claim and reply, Walkers did not file its application against Biggs until some weeks after it received Winton's statement referring to and relying upon discussions with Biggs and MacRae.

Form of Orders 4 and 5

I have not concerned myself with the form of Orders 4 and 5 made by the Tribunal. Apart from the non-party issue, Walkers did not argue that the Tribunal had no power to order a short form bill of costs or that costs be assessed: cf Walton v McBride (1995) 36 NSWLR 440 at 453-4, 464 and 475.

Summary

The Tribunal's costs power may be exercised in the course of the Tribunal's resolving a domestic building dispute or any other matters at issue between the parties to that dispute (s. 95(1),(4)(g)). Its jurisdiction is not confined to the parties to the application which first raises that dispute. Its costs power is wide, and provided the Tribunal is seized of a domestic building dispute it may, in appropriate cases, order costs against a person who is not a party to the proceeding started by a particular application. The Tribunal did not exercise its discretion improperly in making any of its costs orders. In the result the appeal against so much of Order 3, 4 and 5 which relate to the costs of parties in C810-95, is dismissed and costs will follow the event.

Order

  1. 1.Leave to appeal granted in respect of so much of Orders 3, 4 and 5 that require the respondents to application C258-95 pay the costs including the reserved costs of each of the parties to application C810-95;
  1. 2.Appeal dismissed.
  1. 3.Application for leave to appeal against the balance of Orders 3, 4 and 5, and against Order 6, dismissed.
  1. 4.The applicants Walker Corporation Limited, Walker Group Pty Ltd and Lazermaze (Australia) Pty Ltd to pay the costs, of and incidental to the application for leave to appeal and the appeal, of the first and second respondents, Rodney Winton and Gillian Winton, the second respondents Ronald Biggs and Cavanagh Biggs and Partners Pty Ltd, the third respondents, Sourris Industries Pty Ltd and George Sourris Pty Ltd, and the fourth respondents Rodney Ellerington & Associates and Rodney Ellerington, to be taxed on the scale appropriate where the amount recovered is more than $50,000.
Close

Editorial Notes

  • Published Case Name:

    Walker Corporation Ltd v Winton & Ors

  • Shortened Case Name:

    Walker Corporation Limited v Winton

  • MNC:

    [1997] QDC 125

  • Court:

    QDC

  • Judge(s):

    Wolfe DCJ

  • Date:

    30 May 1997

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
Aitkin Transport Pty Ltd v Voysey[1990] 1 Qd R 510; [1989] QSCFC 122
1 citation
Jump To
Cite 1 - [1990] 1 Qd R 510
Attorney-General v Wentworth (1988) 14 N.S.W.L.R 481
1 citation
Jump To
Cite 1 - (1988) 14 N.S.W.L.R 481
Australian Forest Managers Ltd (in liq) v Bramley (1996) 136 ALR 431
1 citation
Jump To
Cite 1 - (1996) 136 ALR 431
Australian Forest Managers Ltd (in liq) v Bramley (1992) 39 FCR 193
1 citation
Jump To
Cite 1 - (1992) 39 FCR 193
Bischof v Adams [1992] 2 VR 198
1 citation
Jump To
Cite 1 - [1992] 2 VR 198
Brambles Constructions Pty Ltd v Helmers (1966) 114 C.L.R 213
1 citation
Jump To
Cite 1 - (1966) 114 C.L.R 213
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
1 citation
Jump To
Cite 1 - (1976) 135 CLR 616
Butler Rains Menzies & Co (a firm) v Devine [1994] 1 Qd R 1
1 citation
Jump To
Cite 1 - [1994] 1 Qd R 1
Caboolture Park Shopping Centre (in liq) v White Industries (Qld) Pty Ltd (1993) (1993) 45 FCR 224
3 citations
Jump To
Cite 1 - (1993) 45 FCR 224
Cite 2 - (1993) 45 FCR 224
Cite 3 - (1993) 45 FCR 224
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253
3 citations
Jump To
Cite 1 - (1993) 117 ALR 253
Cite 2 - (1993) 117 ALR 253
Cite 3 - (1993) 117 ALR 253
Cabot (J. & C.) v City of Keilor [1994] 1 VR 220
3 citations
Jump To
Cite 1 - [1994] 1 VR 220
Cite 2 - [1994] 1 VR 220
Cite 3 - [1994] 1 VR 220
Cachia v Hanes (1994) 179 CLR 403
3 citations
Jump To
Cite 1 - (1994) 179 CLR 403
Cite 2 - (1994) 179 CLR 403
Cite 3 - (1994) 179 CLR 403
Callinan v Boyne Smelters Ltd[1984] 2 Qd R 501; [1984] QSCFC 57
1 citation
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Cite 1 - [1984] 2 Qd R 501
Clark v Trevilyan [1963] QWN 11
1 citation
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Cite 1 - [1963] QWN 11
Colburt v Beard [1992] 2 Qd R 67
1 citation
Jump To
Cite 1 - [1992] 2 Qd R 67
Colburt v Beard [1992] Qd R 67
1 citation
Jump To
Cite 1 - [1992] Qd R 67
Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22
1 citation
Jump To
Cite 1 - (1985) 159 CLR 22
Darling Downs Investments Pty Ltd v Ellwood (1988) 80 ALR 203
1 citation
Jump To
Cite 1 - (1988) 80 ALR 203
Darling Downs Investments Pty Ltd v Elwood (1988) 18 FCR 510
1 citation
Jump To
Cite 1 - (1988) 18 FCR 510
Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137
1 citation
Jump To
Cite 1 - (1995) 38 NSWLR 137
Ellis v Leeder (1951) 82 CLR 645
1 citation
Jump To
Cite 1 - (1951) 82 CLR 645
FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268
1 citation
Jump To
Cite 1 - (1988) 165 CLR 268
Fencott v Muller (1983) 152 CLR 570
1 citation
Jump To
Cite 1 - (1983) 152 CLR 570
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
1 citation
Jump To
Cite 1 - (1988) 81 ALR 397
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
1 citation
Jump To
Cite 1 - (1964) 112 CLR 125
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
1 citation
Jump To
Cite 1 - [1986] 2 Qd R 388
Grassby v The Queen (1989) 168 CLR 1
1 citation
Jump To
Cite 1 - (1989) 168 CLR 1
House v The King (1936) 55 CLR 499
1 citation
Jump To
Cite 1 - (1936) 55 CLR 499
Hyman v Rose (1912) AC 623
1 citation
Jump To
Cite 1 - (1912) AC 623
Jackson v Sterling Industries Ltd (1987) 162 C.L.R 612
1 citation
Jump To
Cite 1 - (1987) 162 C.L.R 612
John Fairfax & Sons -v- Police Tribunal of New South Wales (1986) 5 NSW LR 465
1 citation
Jump To
Cite 1 - (1986) 5 NSW LR 465
Knight v F. P. Special Assets Ltd (1992) 174 CLR 178
7 citations
Jump To
Cite 1 - (1992) 174 CLR 178
Cite 2 - (1992) 174 CLR 178
Cite 3 - (1992) 174 CLR 178
Cite 4 - (1992) 174 CLR 178
Cite 5 - (1992) 174 CLR 178
Cite 6 - (1992) 174 CLR 178
Cite 7 - (1992) 174 CLR 178
Latoudis v Casey (1990) 170 CLR 534
1 citation
Jump To
Cite 1 - (1990) 170 CLR 534
Letang v Cooper (1965) 1 QB 232
1 citation
Jump To
Cite 1 - (1965) 1 QB 232
Maxwell v Murphy (1957) 96 CLR 261
1 citation
Jump To
Cite 1 - (1957) 96 CLR 261
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
1 citation
Jump To
Cite 1 - [1989] 2 Qd R 577
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 159 CLR 457
1 citation
Jump To
Cite 1 - (1980) 159 CLR 457
Murgia v Sablewell Pty Ltd (1995) 16 Qd Lawyer Reps 46
1 citation
Jump To
Cite 1 - (1995) 16 Qd Lawyer Reps 46
Nickels v Parks (1948) 49 S.R. (N.S.W.) 124
1 citation
Jump To
Cite 1 - (1948) 49 S.R. (N.S.W.) 124
Norbis v Norbis (1985) 161 CLR 513
1 citation
Jump To
Cite 1 - (1985) 161 CLR 513
Paron v Fry (No 2) [1990] 1 Qd R 550
1 citation
Jump To
Cite 1 - [1990] 1 Qd R 550
Paterson-Walls v FAI General Insurance Company Limited[1995] 1 Qd R 282; [1992] QCA 416
1 citation
Jump To
Cite 1 - [1995] 1 Qd R 282
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
2 citations
Jump To
Cite 1 - (1981) 147 CLR 589
Cite 2 - (1981) 147 CLR 589
R v Massingham; ex parte Majeau Carrying Co. Pty Ltd[1985] 1 Qd R 349; [1984] QSCFC 54
1 citation
Jump To
Cite 1 - [1985] 1 Qd R 349
Re Malsons Pty Ltd[1991] 2 Qd R 61; [1990] QSC 249
1 citation
Jump To
Cite 1 - [1991] 2 Qd R 61
Re Whiting [1994] 1 Qd R 561
2 citations
Jump To
Cite 1 - [1994] 1 Qd R 561
Cite 2 - [1994] 1 Qd R 561
Renwall Fabrics Ltd v Commissioner of Stamp Duties[1983] 1 Qd R 423; [1982] QSCFC 97
1 citation
Jump To
Cite 1 - [1983] 1 Qd R 423
Rodway v R (1990) 169 CLR 515
1 citation
Jump To
Cite 1 - (1990) 169 CLR 515
Scullion v Family Planning Association of Queensland (1985) 4 ACLC 78
1 citation
Jump To
Cite 1 - (1985) 4 ACLC 78
Standen -v- G.H. Varley Pty. Ltd. (1956) 56 S.R. N.S.W. 346
1 citation
Jump To
Cite 1 - (1956) 56 S.R. N.S.W. 346
Symphony Group PLC v Hodgson (1994) Q B 179
1 citation
Jump To
Cite 1 - (1994) Q B 179
Walter v McBride (1995) 36 NSWLR 440
8 citations
Jump To
Cite 1 - (1995) 36 NSWLR 440
Cite 2 - (1995) 36 NSWLR 440
Cite 3 - (1995) 36 NSWLR 440
Cite 4 - (1995) 36 NSWLR 440
Cite 5 - (1995) 36 NSWLR 440
Cite 6 - (1995) 36 NSWLR 440
Cite 7 - (1995) 36 NSWLR 440
Cite 8 - (1995) 36 NSWLR 440
Will of Gilbert (1946) 46 SR NSW 318
1 citation
Jump To
Cite 1 - (1946) 46 SR NSW 318

Cases Citing

Case NameFull CitationFrequency
Kimtran Pty Ltd v Downie[2004] 1 Qd R 651; [2003] QCA 4245 citations
1

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