Queensland Building Services Authority v McGrath
[1998] QDC 48
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- Unreported Judgment
- Queensland Building Services Authority v McGrath[1998] QDC 48
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Queensland Building Services Authority v McGrath[1998] QDC 48
Queensland Building Services Authority v McGrath[1998] QDC 48
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No. 4345 of 1997 |
BETWEEN:
QUEENSLAND BUILDING SERVICES AUTHORITY | Appellant |
AND:
NOEL McGRATH and DIANE McGRATH | Respondents |
REASONS FOR JUDGMENT - BOULTON D.C.J.
Delivered the 1st day of April 1998
This is an application for leave to appeal and (if granted) to appeal against two decisions of the Queensland Building Tribunal constituted by Member White given the 15 September 1997 and the 29 September 1997. The appellant here is the Queensland Building Services Authority.
On the hearing of the appeal Ms Kelly appeared for the respondents and indicated that she was instructed not to consent nor oppose. I did, however, ask Ms Kelly for any assistance she could render as amicus curiae as the matter would seem to be of general importance and I was anxious to avail of all the assistance I could get.
The background to the two decisions is fairly straight forward. The respondents, Mr and Mrs McGrath, had made a claim on the statutory insurance scheme. They had provided a deposit of $18,000 to a registered builder on or about the 14 April 1996. The builder did nothing and ultimately went bankrupt. The Queensland Building Services Authority refused their insurance claim. They applied to the Queensland Building Tribunal for a review of that decision. It was in respect of that application that Member White handed down the decision of 15 September in respect of that application that Member White handed down the decision of 15 September 1997 allowing their claim and ordering the payment of interest on the claim at 10% per annum from the 14 April 1996 to the date of termination of the contract the 27 June 1996.
The appellant sought a reconsideration of the decision in so far as it included the order for interest. That brought about the order of the 29 September 1997 which affirmed the earlier order.
Part 8 of the Queensland Building Services Authority Act 1991 (the Act) relates to the jurisdiction of the Tribunal. Section 95 of that Act confers power to adjudicate domestic building disputes including the power to award damages, including exemplary damages and damages in the nature of interest.
The proceedings that came before Member White initially were not brought under s.95. They related to a decision of the appellant to refuse an insurance claim. Section 98 of the Act provides as follows:
“Reviewable decisions
98. Any of the following decisions of the Authority is subject to review by the Tribunal - ..............(e) a decision to disallow a claim under the insurance scheme wholly or in part;
..........”
In so far as it is relevant to the present appeal Section 99 of the Act then provides:
“Application for review
99. ......(5) On an application for review, the Tribunal may confirm, annul, vary or reverse the decision subject to the review and make consequential orders and directions.”
A reconsideration of a decision of the Tribunal is provided for in Section 92 of the Act. That section provides in part as follows:
“Power of Tribunal to reconsidered determinations
92. (1) The Tribunal may, on the application of a party to a proceeding, reconsider a determination given in the proceeding. ..........
- (3)A reconsideration under subsection (1) -
- (a)may be made by the member of the Tribunal who made the determination, the chairperson or another member of the Tribunal; and
- (b)must be made only on the evidence placed before the Tribunal at the hearing of the proceeding.
- (4)An application under this section -
- (a)must be made within 14 days after the making of the determination; and
- (b)must be based on a clerical mistake or factual error in the findings of the Tribunal that is of sufficient significance to have influenced the outcome of the proceeding.
- (5)On an application under this section, the Tribunal may confirm, vary or reverse its determination, and give consequential orders and directions.....”
It is clear from the very different wording of the sections to which I have referred above that the functions of the Tribunal on a review are very different from those of the Tribunal in adjudicating on a domestic building dispute. In particular, when reviewing a decision of the Authority, the Tribunal is confined to those remedies referred to in Section 99(5) referred to above.
The case advanced in front of me by the appellant is that the decision of Member White on the initial review and his subsequent decision on the reconsideration are both beyond power in that the Member could not order interest as a head of damages, a course which was not open to the Authority in the first place. The appellant concedes that it was open to the Authority in the first place, if it had allowed the insurance claim, to award interest pursuant to the provisions of the policy and that to a similar extent it was open to the Member to order such interest at the same time as it allowed the insurance claim.
Something needs to be said, however, concerning a misunderstanding that is said to have found its way into the initial decision of Member White. At page 11 of the decision in addressing the question of interest the member said:
“Finally, on the question of interest, the Authority concedes that interest should be paid from the 14 April 1996 (when the monies were paid) to the date of effective termination, which I find to be 27 June 1996, but not beyond. Both legal representatives agreed a proper rate should be 10%. The applicants sought interest to date.
The statutory insurance policy provides for compensation for non-completion. There is no reason I can see, that it should not include interest to the present time. Compensation should be given to them, because they have been kept out of their money. That is also consistent with practice in respect of insurance claims, in general.”
A careful reading of the transcript of the hearing before Member White reveals that counsel for the Authority had made no such concession. The member had made a reference to the rate applying in the Supreme Court and counsel had agreed that was so but there was no concession that the 10% referred to was appropriate to the decision of the member. The concession that was made as to the time period that was applicable was a correct one, that being the period for which interest was available under the statutory insurance scheme.
The above mentioned error provided the basis for the reconsideration that was requested. It is somewhat peripheral to the principal issue which concerns the power of the Tribunal on review to make an order for interest as a head of damages. That power has been asserted in both decisions.
I have been referred to an unreported decision of Judge Brabazon Q.C. in Queensland Building Services Authority v. Carey Appeal No.1209 of 1997, unreported. After carefully reviewing the Authorities Judge Brabazon concludes at page 16 of the unreported judgment:
“Therefore, the correct view is that the power in Section 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 FCR 506 illuminates the similar position of the former Taxation Board of Review.”
I respectfully agree with Judge Brabazon's finding as to the nature of the review. On the review, however, the Tribunal is exercising the decision making role of the Authority. Section 70 of the Act deals with insurance claims. It provides in Section 70(3) - in terms which are identical to those in Section 99(5):
“Insurance claims
70. .....
- (3)On an application under this section the Tribunal may confirm, vary or reverse the Authority's decision and make consequential orders and directions.”
It cannot, in my view, be inferred from the words in “consequential orders and directions” that the Tribunal is invested with power to order damages in the form of interest which is a remedy certainly not open to the Authority.
It is not possible to include a power to award damages by recourse to the notion of compensation under the statutory insurance scheme. As has been pointed out the insurance scheme contains its own provisions concerning interest.
In Prominent Homes Pty Ltd v. Builders Licensing Board of South Australia and Crisp (1986) BCL 169 The Full Court of the Supreme Court of South Australia considered the power of the builders appellate and disciplinary tribunal in hearing an appeal from the decision of the Builders Licensing Board. Section 19i(3) of the Builders Licensing Act 1967 (S.A.) provides:
“The Tribunal may, on the hearing of the Appeal, exercise one or more of the following powers, as the case requires:—
- (a)affirm, vary or quash the decision or order appealed against, and substitute any decision or order that should have been made in the first instance;
- (b)remit the subject matter of the appeal to the Board for further consideration;
- (c)make any further order that the case may require.”
Section 19k(1) provides for an appeal from the Tribunal's decision or order to the Supreme Court and sets out the powers of the Supreme Court in very similar form.
O'Loughlin J. in the leading judgment of the Court (with whom King C.J. and Jacobs J. agreed) considered at page 172 the powers of the Tribunal and of the Full Court and in particular the general power to “make any further or other order as to costs or any other matter that the case requires”. He went on to observe:
“It seems to me that the powers of the Tribunal and, likewise, the powers of the Full Court, can only relate back to the primary power of the Board - which is a power to order remedial work to be carried out or to cause remedial work to be carried out. The reference to the Tribunal's power to make “any further order” and the reference to the Full Court's power to make “any further or other order as to costs or any other matter” can only be read, in my opinion, in relation to matters peripheral to the primary order with respect to the remedial work.
This decision is of value in construing the words “consequential orders and directions” which arise in the present matter. Such words should be construed similarly to relate to matters which are peripheral to the primary order and cannot be relied upon to confer upon the Tribunal on a review under Section 99 of the Act a general power to order interest.
This is sufficient to dispose of the present appeal. It is worth noting that Mr Holyoak who appeared for the appellant, advanced a further argument to the effect that there was no evidence before the Tribunal to support an interest award of 10%. He made reference to decisions of the Queensland Court of Appeal in Lanestar Pty Ltd and Anor v. Arapower Pty Limited and Anors Appeal No.1659 of 1996 and Syntex Australia Limited and Anor v. Teese Pty Ltd Appeal No. 100 of 1995 where the principle enunciated in Ted Brown Quarries Pty Ltd v. General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23 was applied. It is not appropriate for a Judge to simply pick a figure “out of the air” as representing a loss.
In the present case there was mention made before the Tribunal Member of the interest rate applicable under the Supreme Court Act and while this provision had no direct application to the Tribunal it was capable of affording to the Member some indication as to what was considered a reasonable rate of interest in a different jurisdiction.
It is not possible to apply the Ted Brown Quarries principle to statutory Tribunals with the same force that might apply in courts of law. I note that pursuant to Section 87(3)(c) of the Act it is provided that:
“(c) The Tribunal is not bound by the rules of evidence but may inform itself in any way that it considers appropriate”.
Such a provision is replicated in legislation governing the conduct of numerous Tribunals. It would seem to me to have been open to the Tribunal Member in the present case to have arrived at a rate of interest of 10% from a variety of sources and to have acted quite correctly in so doing.
However, the appeal against both decisions succeeds on the principal issue. I give leave to appeal. I set aside both decisions in so far as they relate to the ordering of interest. Mr Holyoak expressly concedes that if the Authority had upheld the respondent's claim initially it would have been appropriate to have ordered an amount of interest pursuant to the statutory scheme in the amount of $127.73. On the successful review it was appropriate that such an amount of interest be ordered by the Tribunal. It is appropriate that an order for interest in this amount be made in lieu.
Both the appellant and the respondents seeks certificates for costs under the Appeal Costs Fund Act 1973.
Section 15(3) of the Appeal Costs Fund Act provides:
“Where an appeal against the decision of a court to a District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”
The term in “court” is defined in Section 4 of the Act as follows:
““Court” includes any board, other body or person from whose decision there is an appeal to a superior court on a question of law or which may state a case for the opinion or the determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of the superior court”
It may be noted that Section 93 of the Queensland Building Services Authority Act 1991 provides for stating a case to the District Court. Section 94 confers a right of appeal by leave to the District Court against a determination of the Tribunal.
The very broad definition of “court” in the Appeal Costs Fund Act includes the Tribunal. The term “a superior court” may be construed to include a court at a level in the hierarchy superior to that of the Tribunal. This comprehends the District Court which is the appellate court identified in numerous statutes relating to various boards and Tribunals. Such a construction is necessary to give efficacy to Section 15(3) of the Act referred to above. That would not be so if the term “a superior court” were construed in the strict sense to mean a court of unlimited jurisdiction such as the Supreme Court of a State.
I have been referred to a decision of Judge Robin Q.C. in Queensland Building Services Authority v. Morris Appeal No.3319 of 1997 where His Honour arrived at a similar construction of the term “a superior court” where it appears in the Appeal Costs Fund Act. I have also been referred to a decision of Judge McGill SC in Anderton v. Parkes Horticultural Services Pty Ltd Appeal No.2790 of 1996 where His Honour Judge McGill reached a different conclusion. With respect I prefer the view of Judge Robin for the reasons I have already mentioned.
I note that Section 17 of the Appeal Costs Fund Act 1973 does not appear to be applicable to the present appeal.
It cannot be said that either of the parties to the appeal encouraged the erroneous determination appealed against. In Lauchlan v. Hartley (1980) Qd. R. 149 the Full Court refused to confine the judicial discretion to grant a certificate within narrow limits.
I will hear further submissions on the issue of the costs order as it seems to me that the only effective order is a Bullock order. I propose to order that the respondents pay the appellant's costs of and incidental to the appeal to be taxed. I will then grant to the respondents a certificate in respect of those costs and also in respect of their own costs of and incidental to the appeal to be taxed.