Queensland Building Services Authority v Morris
[1997] QDC 285
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- Queensland Building Services Authority v Morris[1997] QDC 285
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Queensland Building Services Authority v Morris[1997] QDC 285
Queensland Building Services Authority v Morris[1997] QDC 285
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No 3319 of 1997 |
[Before Robin Q.C., D.C.J.]
[Queensland Building Services Authority v. William Graham Morris]
BETWEEN:
IN THE MATTER OF THE QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991
AND
IN THE MATTER OF AN APPLICATION BY THE QUEENSLAND BUILDING SERVICES AUTHORITY FOR LEAVE TO APPEAL AGAINST A DETERMINATION OF THE QUEENSLAND BUILDING TRIBUNAL
QUEENSLAND BUILDING SERVICES AUTHORITY | Appellant |
AND
WILLIAM GRAHAM MORRIS | Respondent |
JUDGMENT
Judgment delivered: 30 September 1997
Catchwords:
Queensland Building Services Authority Act ss.71, 88, 94, 98, 103 - abuse of process - appeal - application by Authority for leave to appeal against determinations of Queensland Building Tribunal - building contractor seeks review in Tribunal of Authority's decisions to recover from him insurance payments made in respect of building work by him - Tribunal stays review until conclusion of Authority's proceedings in Magistrates Court to obtain judgment for debt - in Magistrates Court proceedings defence alleges wrongful termination of building contract by home-owner on second day of trial (before evidence is given) building contractor fails to appear - Magistrate enters default judgment under r.192 of Magistrates Court Rules - building contractor reopens review application in Tribunal - Authority claims further pursuit of each application is an abuse of process and seeks leave to appeal (following Tribunal's reversing its own earlier ruling as to scope of the reviews) to establish building contractor's inability to ventilate issues raised in Magistrates Court pleadings - Authority partly successful as Tribunal should not have reversed its own (unappealed) rulings - abuse of process not established - Court declines to interfere in conduct of Tribunal's reviews by giving directions as to how they should be conducted - Tribunal review is an administrative, not judicial proceeding.
Counsel: | Mr. Holyoak for the appellant |
| Mr. Byrne for the respondent |
Hearing Date(s): | 8, 11 September 1997 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No 3319 of 1997 |
IN THE MATTER OF THE QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991
AND
IN THE MATTER OF AN APPLICATION BY THE QUEENSLAND BUILDING SERVICES AUTHORITY FOR LEAVE TO APPEAL AGAINST A DETERMINATION OF THE QUEENSLAND BUILDING TRIBUNAL
QUEENSLAND BUILDING SERVICES AUTHORITY | Appellant |
AND
WILLIAM GRAHAM MORRIS | Respondent |
REASONS FOR JUDGMENT - JUDGE ROBIN Q.C.
Delivered the 30th day of September 1997
This is an application by the Queensland Building Services Authority for leave to appeal against a determination of the Queensland Building Tribunal brought under s.94 of the Queensland Building Services Authority Act 1991. It is the latest step in a saga which has gone on for a number of years and could be described as a procedural nightmare of the kind which the legislation was doubtless designed to avoid. The applicant seeks that the appeal be determined instanter if the application for leave is successful - a sensible and feasible course in the circumstances. The proceedings in the Tribunal were instituted by the present respondent, William Graham Morris, who is a builder, by separate applications to the Tribunal pursuant to s.98 of the Act for review of the Authority's decisions to approve insurance claims in sums of $5,356 and $30,000 respectively “pursuant to the insurance provisions of the Builders Registration and Home-Owners' Protection Act 1979-1989 in favour of M.H. & M. Wilson”, his applications being made in July 1993 and October 1993 respectively.
In about 1989 Mr. Morris agreed to construct a residence at Raby Bay for Mr. & Mrs. Wilson. He did not complete the work, in circumstances which are contentious, Mr. Morris' position being that the Wilsons wrongfully terminated the contract and refused him the opportunity he ought to have had to complete it satisfactorily. The helpful chronology handed up by Mr. Holyoak, who appears for the applicant Authority, indicates that on 1 June 1990 the Wilsons terminated the contract and that the Authority on 4 August 1992 determined to approve an insurance payment to them. The Authority is the successor of the Builders' Registration Board of Queensland, which by reason of s.69 of the 1979 Act was “deemed to have entered into an agreement (called a House-Purchaser's Agreement) with every purchaser, and to have thereby assumed an insurance risk…” -“purchaser” being defined so as to include the Wilsons. Clause 2 of the schedule to the Queensland Building Services Authority Act 1991 contains transitional provisions which continue insurance arrangements arising under the old Act and effectively place the Authority in the position of the Board. The chronology asserts that the Authority, by letter of 27 November 1992, notified Mr. Morris of its determination to recover the sum of $30,000 paid to the Wilsons from him. Mr. Morris said he never received that letter, but does not dispute receipt of notification by the Authority “of the approval of a further insurance claim of $5,357” (as it is described in the chronology) on or about 29 June 1993. This doubtless prompted the first of Mr. Morris' applications to the Tribunal. The second followed soon after the Authority's letter of 29 September 1993 advising of the Authority's “decision…to recover…the…$30,000”.
Mr. Cotterill, Chairperson of the Tribunal, considered Mr. Morris' applications on 14 January 1994. The Authority's representative persuaded him that under the regime which applied before s. 103 of the Queensland Building Services Authority Act 1991 permitted the Authority to recover in the Tribunal debts recoverable by it pursuant to s.71 (this change came into effect on or about 10 May 1994), the Tribunal's lack of power to make orders for payment it was entitled to under s.71(1) namely:
“If the Authority makes any payment on a claim under the insurance scheme, the Authority may recover the amount of the payment, as a debt, from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose.”
Obliged the Authority to resort to the ordinary courts to establish and collect debts to it, with the consequence that proceedings in the Tribunal might be useless (that is, in the sense that ventilation of similar issues in court proceedings might lead to a different result).
By this stage, Mr. Morris had repented of the description of the relief he desired from the Tribunal. Mr. Cotterill ordered (referring to Mr. Morris as the applicant):
“1. That leave is granted to amend the applicant's claim - R088-93 to read that “A review is sought under section 98(F) of the Queensland Building Services Authority Act 1991 (“The Act”) of the decision of the Queensland Building Services Authority (“The Authority”) of 29 September 1993 which was notified to the applicant by letter of that date, that they intended to recover the amount of the insurance payment of $30,000.00 as a debt”.
- That leave is granted to amend the applicant's claim - R060-93 to read that “A review is sought under section 98(F) of the Act of the decision of the Authority of 29 June 1993 to recover the amount of the insurance payment of $5,356.00 as a debt”.
- That a stay of the amended applications is granted on condition that any court proceedings by the respondent to recover the sum referred to in the above orders be commenced within fourteen (14) days. If court proceedings are commenced within fourteen (14) days, these proceedings will be stayed until further order or until judgment in the court proceedings.”
It will be seen that what Mr. Morris was now seeking review of became decisions of the Authority relating directly to him, rather than decisions relating to the Wilsons. For the time being he was precluded from pursuing his applications for review on the basis set out in Order 3.
The Authority commenced proceedings in the Magistrates Court in Brisbane Plaint 2338 of 1994 issued on 25 January 1994 and amended on 11 April 1994 to increase the claim against Mr. Morris to $36,000 (which I understand may have been the then applicable maximum for insurance claims) consequent upon a further payment to the Wilsons. Mr. Morris filed and amended at least once an Entry of Appearance and Defence. His pleading expanded the issues by asserting that the Wilsons were in the wrong under the building contract, with the consequence that they were disentitled to make any insurance claim, so that the Authority never came under any obligation to them to complete or to rectify. Amendments were made to Mr. Morris' pleading on this issue on 26 May 1996, two days before the trial commenced. When it commenced, he applied to the Magistrate for removal of the proceedings to the Tribunal. The Magistrate rejected the application on the basis that the proceedings did not constitute a “domestic building dispute” as defined in the legislation. The first day appears to have been taken up with legal argument. Mr. Morris did not appear the next day, but his wife presented to the Court a letter signed by him in the following terms:
“I have been a builder for in excess of 25 years and apart from this matter have never been sued by a customer or the Board.
I believe that if I had the resources I could successfully defend the case but as I don't, I believe I will simply be out-matched by the legally trained representatives on the other side.
Because I have had little to do with courts over the years, I am totally unfamiliar as to how I should conduct my case and feel literally like a fish out of water.
I am so tense, nervous and uncertain that I don't think I can continue on.
Although I believe I am not liable I do not intend to continue defending the matter.
WILLIAM MORRIS - 29/5/96”
Without taking any evidence, the Magistrate entered judgment for the Authority for the full amount of the claim, plus interest of $8,676 and costs of $7,426.75, acting under r.192 of the Magistrates Courts Rules:
“192.(1) If on the day and at the time and place fixed for the hearing of the action the plaintiff appears but the defendant does not appear, the court, upon proof that the defendant was duly notified of the day and time and place fixed for the hearing, and if the plaint discloses a sufficient cause of action, may give such judgment or make such order as may be just.
(2) Where the claim is for a debt or liquidated amount of money the court may give judgment for the plaintiff without requiring the plaintiff to give any evidence of the plaintiff's claim.”
The Authority has not sought to enforce that judgment, although no inhibition on enforcement exists. No doubt the Authority has acknowledged that things might happen in the Tribunal rendering it inappropriate to enforce the judgment, or that in some other forum a stay might be ordered or an injunction granted.
The application before this Court raises the question what, if anything, Mr. Morris might be permitted to raise in the Tribunal which might lead to some relief from his liability under the judgment.
Mr. Cotterill gave no formal expression of reasons for his orders. It is not possible to confidently extract from the transcript of proceedings before him, which the Authority has put in evidence, precisely what he envisaged might happen when, as I think he did envisage, the applications were enlivened again in the Tribunal. Mrs. Roney was the Tribunal Member given responsibility for the review applications, which Mr. Morris revived within months. Before me are the comprehensive written submissions of the Authority (29 August 1996) and of Mr. Morris (12 September 1996) and a reply (10 September 1996) which were placed before her. The Authority's stance was that Mr. Morris could no longer pursue his review applications and that the Tribunal should not entertain them
“by reason of their offending the principles relating to:
- (a)issue estoppel;
- (b)abuse of process;
- (c)vexatious and oppressive proceedings; and/or
- (d)common sense.”
Each of these points was based on the Magistrates Court judgment. On (a) the Authority cited Mungatah v. Public Trustee (1925) 25 SR (NSW) 546, R. v. Balfour ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26, Henderson v. Henderson (1843) 3 Hare 100, Effem Foods Pty Ltd v. Trawl Industries of Australia Pty Ltd (In Liquidation) (1993) 43 FCR 510, 513, Kok Hwong v. Leong Cheong Kweng Mines Ltd (1964) AC 993 and also Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 581, applied in cases such as Bryant v. Commonwealth Bank of Australia (1995) 130 ALR 129, which was relied on as creating a special ground described as an “Anshun estoppel”.
In this Court, Mr. Holyoak did not argue the point, doubtless because the Magistrate, in proceeding under r.192, determined no issues other than that the Statement of Claim revealed a cause of action.
As to ground (c), the Authority relied on the Tribunal's power under s.88 of the 1991 Act to summarily dismiss a proceeding “brought vexatiously or oppressively”. For the purposes of this application, one may accept that “brought” refers not only to the institution of proceedings, but to prosecuting or pursuing them. Before the Tribunal, the Authority cited Hutchinson v. Nominal Defendant (1972) 1 NSWLR 443 as an example of vexatious or oppressive proceedings in which
“an action was brought for the same or substantially the same cause of action as a previous action which had been discontinued, dismissed for want of prosecution, or in which judgment of non-suit had been entered.”
Reference to the judgment is instructive, revealing that, ultimately, the plaintiff was permitted to proceed with his second action against the Nominal Defendant so long as he continued to have a Legal Aid certificate, notwithstanding that he had not complied with a requirement imposed at an earlier stage that he not proceed until he paid the costs of the original inconclusive action. My view is that whether the proceedings are vexatious and oppressive in the present context raises the same considerations as whether or not there is an abuse of process. Mr. Holyoak relied on the composite ground (b) and (c) this Court, which was urged to determine that the Tribunal ought to have accepted and acted upon that ground. As will be seen, the test formulated by the High Court which offers most promise from the Authority's point of view, effectively brings in ground (d), “common sense”, if that be taken to accord with the views of “right-thinking people”, as a highly relevant factor.
On 14 November 1996, Tribunal Member Mrs. Roney declared herself unpersuaded that any issue estoppel existed in relation to any issue forming part of Mr. Morris' claim in the Tribunal (while making no final decision) and unpersuaded that s.88 applied.
Mrs. Roney distilled from the principal submissions before her “the following topics about which there is actual dispute:
“(a) The termination of the contract.
- (b)Payments made under the contract and the effect of non-payments.
- (c)The notification by the Authority of the approval of the first insurance claim.
- (d)The approval itself of the second claim
- (e)The alleged denial of access by the consumers to the applicant for the purpose of rectification.
- (f)The extent of the approval given and the distinction to be drawn between “defective” and “incomplete” work”
and went on:
“In the applicant's reply submission the applicant identifies the decision to be reviewed as the decision to accept the insurance claims. In my view a review of that decision would permit the consideration of those matters raised by the applicant in his primary submission. However I am not persuaded that that decision is the decision under review in these applications having regard to the amendment made to the application in 1994. This submission by the applicant seems misconceived and underlies the real difficulty which the applicant is confronted with in proceeding with the applications amended.”
before dealing with the effect of the Magistrates Court judgment, which she thought Mr. Morris might well have difficulties getting set aside. Nothing about the Magistrates Court proceedings daunted her from deciding to embark further on Mr. Morris' applications, although questions of issue estoppel may have been left for later decision. Her orders were:
“1. That the applicant's reviews are limited to a consideration of the following issues:—
- (i)was the applicant the licensee in respect of the residential work the subject of both insurance claims;
- (ii)was the applicant the contractor for the purpose of the relevant policy of insurance
- (iii)were claims paid to a consumer by the authority in respect of work for which the applicant was the licensee; and
- (iv)whether the authority properly exercised its discretion to seek to recover the amount of the insurance payments from the applicant.
- That there is consensus in the submissions on the following points and accordingly the Tribunal finds:
- (i)that there was a payment to the consumers, Wilson, in the sum of Thirty five thousand three hundred and fifty six dollars (35,356.00);
- (ii)that the applicant was the licensee in respect of the residential construction work in issue;
- (iii)that the applicant was the contractor for the purpose of the relevant policy of insurance.”
She was next called on to adjudicate upon the Authority's submission that the Tribunal lacked jurisdiction to deal with Mr. Morris' applications which were said not to concern anything within the description “another decision of the Authority that adversely affects any person” in s.98(f) of the Act. Her reasons for rejection of the objection to jurisdiction, which explore the range of consequences which might afflict Mr. Morris flowing from a decision of the Authority to exercise its discretion to seek to recover from him monies paid out under the insurance scheme, appear to me compelling.
The hearing of the applications set for 20 June 1997 became a directions hearing at the joint request of the parties, who sought a ruling from the Tribunal as to the width or scope of the review remaining to be heard by it. Mrs. Roney published reasons on 10 July 1997 which explain that, having been made aware after the hearing of Judge Brabazon Q.C.'s decision in Queensland Building Services Authority v. Carey (Appeal No. 1209/97, 20 June 1997), she reversed her “findings of 14 November 1996”, which neither party had challenged. Mrs. Roney said:
“Applying His Honour's conclusions here, my decision of 14 November 1996, wrongly limited the scope of the review of the s.71 decision here and it ought to consider matters beyond the four factors previously identified, and should consider the ‘full merits' of the case, including those matters which I have set out earlier, which were sought to be reviewed by the Applicant, namely termination of contract and access issues.”
Issues included:
“(i) whether the building contract was properly terminated by the home-owners;
- (ii)whether access had been denied to the Applicant by the home-owners during the currency of the original Direction to Rectify;
- (iii)the manner and effect of payments made under the contract;
- (iv)the decision to approve both insurance claims.”
Mrs. Roney stated it would be useful for Mr. Morris to deliver points of claim or an outline of argument stating which of those issues he wished to cover, which she said would affect the width of discovery required of the Authority which it was “likely” would “be very wide indeed”.
This has been too much for the Authority which seeks on appeal to this Court, if leave be granted, to set aside the whole of the Tribunal determinations of 14 November 1996, 28 February 1997 and 10 July 1997, extensions of time being sought as necessary for the November and February determinations.
The discovery issue is, in a sense, a false one. The Authority claims to have made full discovery in the Magistrates Court proceedings, and Mr. Byrne (for Mr. Morris) appeared to accept that the circumstances, there was no jurisdiction or power to change the determinations of 14 November 1996. Mr. Byrne sought to defend the assumption of such a jurisdiction on the respectable argument that the District Court being the Tribunal's “supervisory body”, Mrs. Roney was bound to make determinations conformable with views clearly expressed by his Honour Judge Brabazon Q.C.
His Honour's reasons are expressed with great clarity and offer useful advice and assistance to any party which may become concerned in disputes like the present one. However, his Honour was deciding a case before him with its own particular circumstances which, in my respectful view, are distinguishable from the present case. His Honour held that the builder, Mr. Carey, was entitled to raise, in proceedings before the Tribunal like those which Mr. Morris's became after amendment, issues such as those which Mrs Roney expressly permitted to be pursued in her determination of 10 July 1997. The first broad basis for distinction is that, unlike Mr. Morris, Mr. Carey had never been given the opportunity to present his case as to the rights and wrongs of matters as between himself and the “consumer”, “owner”, or “purchaser”, which might bear on whether or not the Authority had any obligation to pay out $23,486 to that person, a Mr. Terry. The Authority was hardly anxious to pay Mr. Terry's insurance claim, having declined it and then been required to pay by determination of a Tribunal member in proceedings in which, inexplicably, Mr. Carey was never joined. His Honour held, in upholding a determination of another Tribunal Member, that Mr. Carey must be given an opportunity to show that the Authority's original stance of declining to pay the insurance claim was correct, albeit, perhaps, for different reasons, so that the Authority's decision to pursue him in turn for the money which it ultimately paid under compulsion was incorrect. The “silver lining” for the Authority was that his Honour made clear that, under the principles regarding subrogation in insurance law, confirmed in King v. Victoria Insurance Co Ltd (1896) AC 250, even if the Authority was not obliged as a matter of law to pay Mr. Terry's claim, and even if Mr. Terry had not lawfully terminated the building contract, Mr. Terry might have had a damages or like claim against Mr. Carey which could be pursued by the Authority pursuant to its subrogation to Mr. Terry's entitlements. Although he did not avail himself of it in the end, Mr. Morris did have an opportunity in the Magistrates Court to ventilate issues concerning the Wilsons' situation.
The second broad basis of distinction is that in the present case Mr. Cotterill laid out ground rules for the conduct of Mr. Morris' applications for review. It is not necessary here to decide whether those were wise or unwise. There has been no challenge to them. At this stage, at least, it is not for the Court to pronounce upon them. His Honour's reasons at page 15 express reasons why the Tribunal ought to be free to determine how it will proceed, without undue judicial interference. His Honour said:
“Counsel for Mr Carey says that the Act provides for a full review of the merits. He informed me that the position accepted by the majority of members of the Tribunal was in favour of a review of the merits. On reflection, I have reached the same conclusion. There are a number of factors which point in that direction:
- (a)The Tribunal is an administrative tribunal. It is not a court. There is no reason to restrict it to the relatively narrow notions of judicial review, which are well established for constitutional reasons.
- (b)It is notable that the Queensland Parliament enacted the Judicial Review Act and this Act in the same year. The Judicial Review Act deals with the powers of the Supreme Court. It is apparent that it deals, in the traditional way, with the propriety of the decision making process, while the Act here deals with the decision itself.
- (c)While this Act is sparse in its detail, there is enough to make it clear that it is not dealing with judicial review. Section 99A(1) give the Tribunal to facilitate and negotiate a settlement between the parties to the review - that is not a power appropriate to judicial review. Section 99(5) gives the Tribunal power to confirm, annul, vary or reverse the decision subject to the review and make consequential orders and directions. That is a wider power than the Supreme Court has, and shows the Tribunal's concern with the merits of the decision. Section 99(4) allows the joinder of persons who may be affected by the review. Orders may be made against such persons. Again, that indicates a wider power than judicial review.
- (d)Indeed, in s. 100, the Judicial Review Act is actually mentioned by way of contrast - in some cases, the decision of the Tribunal itself may be subject to judicial review.
- (e)From an administrative point of view, there is nothing surprising in having a generalist Tribunal, staffed by lawyers, being given the power to review decisions made by specialist administrators.
Therefore, the correct view is that the power in s.98 is a full administrative review of an administrative decision, by an administrative tribunal. The Tribunal does stand in the shoes of the Authority, and can exercise its powers, but it does so in the light of all the evidence available to it - including fresh evidence - the decision in re Brindle 1992 35 F.C.R. 506 illuminates the similar position of the former Taxation Board of Review.
It follows that the principal submission made for the Authority cannot be accepted. Mr Burnett did not go beyond the powers given to him by the Act. He had power to review the decision of the Authority, to proceed against Mr. Carey, and he also had power to review the merits of the “termination of contract” issue, as between Mr. Terry and Mr. Carey. Such a review necessarily meant another examination of the facts”
My opinion is that the Court ought to be respectful of the ground rules set by Mr. Cotterill and of those set by Mrs. Roney on 14 November 1996 which no one has suggested were inconsistent. I do not think this conflicts with my view that, in the circumstances which happened, the Tribunal did not have or acquire jurisdiction or power to change the set course in July 1997.
The more significant consequence of the approach just expressed is that Mr. Morris ought not to lose the advantage of taking up his applications again after determination of the Magistrates Court action which Mr. Cotterill's order clearly contemplated. In the end, this consideration provides the explanation of my rejecting the Authority's submission that in the Tribunal Mr Morris may not canvas any issues included in the pleadings in the Magistrates Court. The Authority was not quite able to say there were no other issues which Mr. Morris might raise. Speculation during the Torts Reports, 80-423, in which Giles CJ provided a helpful table in the following passage at 64, 089:
“It is apparent from the brief review of the decision that whether proceedings are, or in aspect of the proceedings is, an abuse of process because a party seeks to re-litigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are -
- (a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
- (b)the opportunity available and taken to fully litigate the issue;
- (c)the terms and finality of the findings as to the issue;
- (d)the identity between the relevant issues and the two proceedings;
- (e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was part of the earlier proceedings; all part of -
- (f)the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
- (g)an overall balancing of justice to the alleged abuser against the matters support of abuse of process.” (italics added)
Mr. Holyoak relied upon (b), the problem for him being that although Mr. Morris had the opportunity in the Magistrates Court to fully litigate the issues he wishes to raise, he did not take that opportunity - in circumstances where Mr. Cotterill's orders held out to him some kind of opportunity in the Tribunal.
Other authorities bearing upon the potency or conclusiveness of the judgment in the Magistrates Court cited were Taylor v. Taylor (1979) 143 CLR 1; Drabsch v. AMP Fire and General Insurance Co Ltd (1991) 2 Qd.R. 614; Saffron v. Commissioner of Taxation (1991) 30 FCR 578; Wrigley v. Secretary, Department of Social Security (1993) 42 FCR 276; Trawl Industries of Australia Pty Ltd (In Liquidation) v. Effem Foods Pty Ltd (1992) 36 FCR 406, 410; Ashmore v. British Coal Corporation (1990) 2 QB 338; House of Spring Gardens Ltd v. Waite (1991) 1 QB 241; Barrow v. Bankside Members Agency Ltd and Bankside Underwriting Management Ltd (1995) 2 Lloyds Reports, 472; Smith v. Linskill (A Firm) (1996) 1 WLR 673; Wiest v. D.P.P. (1988) 3 FCR 472; Minister for Immigration v. Danielle (1981) 61 FLR 354; Stergio v. McGrail and Watson, Federal Court of Australia, 24 April 1994; ACTG (99/93).
Notwithstanding this wealth of authority, the passage set out from Walton v. Gardner offers by far the most pertinent guidance. Mr. Holyoak conceded that he had been unable to find any case providing convincing authority that where there had been no earlier determination on the merits it was an abuse of process to seek to litigate matters which Mr. Morris may have had an opportunity to litigate before. The case of a person who litigates some issues but forebears from litigating others which he might have litigated seems to me patently different.
When I pose the question whether “continuance (of Mr. Morris' proceedings in the Tribunal) would be unjustifiably vexatious and oppressive, for the reason that it is sought to litigate a new case which has already been disposed of by earlier proceedings”, I am unable to disregard the circumstances that the Magistrate has decided only that the Authority had pleaded an understandable cause of action and, more importantly, that Mr. Morris quit the field of the Magistrates Court knowing that the procedures in the Tribunal were still open to him. When one asks what might “bring the administration of justice into disrepute among right-thinking people”, I think there are good grounds for thinking that the denial to Mr. Morris of an opportunity to show, if he can, that he ought not have to pay the Authority the judgment sum of $52,102.75 would do just that. I can appreciate that right-thinking people might think poorly of Mr. Morris, who, even though he was taken unwillingly before the Magistrates Court, has caused inconvenience to many people, not least among them the witnesses ready to give evidence there, a group which included the Wilsons. Mr. Morris' proceedings in the Tribunal were instituted many years ago and stayed, pending determination of proceedings (if any happened) in the Magistrates Court. I do not feel justified in characterising his performance as “abuse of process”. I think it would be unfair if in public proceedings in a court he were identified as a perpetrator of abuse of process”.
The outcome is that the present application of the Authority in this court pursuant to s.94 succeeds to the extent that the Authority should be granted leave to appeal against the Queensland Building Tribunal's determination of 10 July 1997 in the proceedings before it commenced by applications numbers R088/93 and R060/93. It is convenient to deal with the appeal instanter by allowing it to the extent of the leave to appeal granted, and setting aside the whole of the Tribunal's determination of 10 July 1997. I am not persuaded that any other relief ought to be granted on the application. In particular, I see no reason to grant extensions of time to permit an attack on earlier determinations of the Tribunal, which both parties were apparently content to have stand, until the determination of 10 July 1997 apparently significantly changed the ramifications of earlier determinations. In the circumstances it is not necessary to grant relief in respect of a Tribunal decision notified by letter dated 24 July 1997 whereby the Tribunal declined to reopen matters pronounced upon on 10 July 1997, for example, by receiving submissions as to the implications of his Honour Judge Brabazon's judgment.
The parties seemed more or less anxious that I formulate directions myself for the further conduct of Mr. Morris' applications. I am disinclined to do that, it not having been demonstrated that matters cannot proceed in accordance with determinations of Mr. Cotterill and Mrs. Roney which are left standing. I appreciate there is uncertainty remaining as to the scope of the administrative review which the Tribunal may continue to conduct, however I would consider it completely wrong in principle for this Court to take control of the way in which that review is conducted, in all the circumstances. Interference by the Court at an interlocutory stage in reviews is not to be encouraged, although I have considered it necessary to interfere to reinstate “interlocutory” rulings of the Tribunal which ceased to be appealable long ago. It ought to be left to the Tribunal to determine in what way it will conduct a review. Once a substantive result is pronounced, as in Queensland Building Services Authority v. Carev, in which Mr. Carey succeeded in his review before the Tribunal, leaving the Authority caught “between two stools”, this Court may properly be approached to exercise its appellate function, if that be requisite. The fate of the Tribunal determination of 10 July 1997 indicates my view that the Tribunal ought to follow its own orders as to the manner in which a review is to be conducted. I will allow the parties an opportunity to make submissions as to what the final orders ought to be. My present inclination is against making any costs order