DISTRICT COURT OF QUEENSLAND

1. [1]
   This application raises a short but not simple point as to the proper construction of the Queensland Building Tribunal Act 2000 (“the Act”).  It concerns the competence of an appeal to this court from a decision of the Tribunal.  By s. 92(1) of the Act “a party to a proceeding before the Tribunal may appeal to the District Court against a decision of the Tribunal that finally decides matters the subject of the proceeding.”  The decision from which the appeal was brought was one made by the Tribunal on 6 November 2001, which dealt with the question of liability as between the appellant and the respondents, but did not deal with the question of quantum.  The parties were invited to negotiate about the question of quantum, and were told that if they were unable to resolve it there would be a further hearing.

2. [2]
   So on that occasion there was a decision of the Tribunal, and the appeal is being brought by a party to the proceeding in respect of which the decision was made. The question is whether it was a decision “that finally decides matters the subject of the proceeding.” If not, there is no jurisdiction to entertain the present appeal. The respondents do not dispute that the decision of the Tribunal finally decided the issue of liability, a position which is consistent with authorities to the effect that, where liability and quantum are dealt with separately, a decision as to liability can be a final judgment notwithstanding that quantum of damages remains to be determined: TM Burke Estates Pty Ltd v Noosa Shire Council [2001] QCA 42 at para [8]; Gamble v Killingsworth and Mclean Publishing Co Pty Ltd [1970] VR 161 at 172; Light v William West & Sons Ltd [1926] 2 KB 238 at 241.  The issue on which the application turns is whether the reference in the section to “matters” should be interpreted as a reference to “all matters” or as a reference to ”any matters”.

3. [3]
   The difficulty arises because the word in the statute is in the plural rather than the singular. My impression is that it has been in the past more usual for statutes to be drafted with singular words wherever possible, relying on provisions for interpretation, such as that now appearing in the Acts Interpretation Act 1954 s. 32C, that words in the singular include the plural.  That section now also provides that words in the plural include the singular.  That in itself does not assist; what I need to know is whether the word “matters”, if transposed into the singular by that section, comes out as “the matter” or “a matter”.

4. [4]
   Either interpretation is plausible. The legislature could well have intended to allow an appeal from an intermediate decision by which something was finally decided as between the parties, on the basis that that was an appropriate point at which an appeal could be given. For example, there is right of appeal from any judgment of the District Court to the Court of Appeal if it is a “final judgment”, leave being required to appeal from any other judgment: the District Court Act 1967 s.118.  On the other hand, it has been recognised that there can be dangers in deciding different issues of a trial separately, and that often it is difficult to disentangle the issues of quantum and liability:  Evans Deakin Industries Ltd v The Commonwealth [1983] 1 Qd R 40.  The High Court warned about the precautions necessary when deciding separately preliminary questions in Bass v Permanent Trustee Co Ltd (1999) 73 ALJR 522, where the need to avoid the determination of hypothetical questions was emphasised.

5. [5]
   In the light of this, it is plausible that the legislature may well have thought that, however the Tribunal chose to arrange its affairs, it was appropriate to wait until the whole matter had been concluded in the Tribunal before there was any appeal to the District Court. By s. 41, the procedure in the Tribunal is in the discretion of the Tribunal, subject to the Act and the rules of natural justice, and a proceeding is to be conducted with as little formality and technicality and with as much speed as the requirements of the Act and the proper consideration of the matters before the Tribunal permit. Accordingly the legislature may well have expected some particular degree of flexibility in the proceedings in the Tribunal, but eventually a point would be reached where all of the matters in issue before the Tribunal would have been decided, and then an appeal to the District Court would be available.

6. [6]
   The explanatory memorandum for the Bill referred to the clause which became s.92 in the following terms:

“Clause 92 sets up a merit based appeal mechanism from decisions of the Tribunal.  Appellable decisions under this provision do not include interlocutory or procedural orders or directions, but only final decisions in proceedings.  An appeal must be filed in the District Court within 28 days of the Tribunal’s decision and must be based on, and be accompanied by, the decision. …”

That suggests that the legislative intention in relation to the limitation was to exclude appeals in relation to interlocutary or procedural decisions only.

7. [7]
   There are some other provisions in the Act which contain the same or similar expression. By s.76(1):

“The Tribunal may refer a matter of a technical nature arising in the course of a proceeding for investigation by an appropriate expert.”

The use of the singular form with the indefinite article indicates that it is open to the Tribunal to refer for investigation either a single matter arising in the course of a proceeding or a number of matters, but not necessarily all matters, or all matters of a technical nature, arising in the course of the proceeding.  Section 83(1) sets out certain requirements for “a decision of the Tribunal that finally decides matters the subject of the proceeding …”.  The requirements include that it must be in writing, and must state reasons.  In the context of s. 83, it would be preferable to interpret the expression as a reference to “any matters”, because the purpose of the provision would be assisted by the imposition of a requirement that these things be done whenever the Tribunal finally decided any matter the subject of a proceeding.  The section would I think be less satisfactory if it only applied where there was a decision which finally decided all matters in dispute.  If the expression was used consistently throughout the Act, that provides some indication of the proper construction of the expression for the purpose of s. 92, although the presumption of consistency in that way has been recognised as a weak one:  McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 643 per Gibbs J.

Conclusion as to interpretation

8. [8]
   Ultimately there is I think no clear indication in the legislation as a whole as to what the correct interpretation is. Nevertheless, it is clear that a right of appeal to the District Court has been granted and that it has been confined to decisions which involve final determinations of matters. What is not clear is whether the right of appeal is further restricted, so that it applies only in respect of a decision which finally resolves all matters in dispute. Such an interpretation would operate as a restriction on the right of appeal which is otherwise given by the section, and in my opinion it would be consistent with the general purpose of the legislation, and its objects as set out in s. 4, for the right of the appeal to be no more restricted than is clearly indicated by the statute.

9. [9]
   Interpreting the section as referring to “any” matters in dispute would provide less of a restriction than if an appeal were available only in respect of the decision which finally determined all matters in dispute. In these circumstances, I prefer the former construction, which is consistent with the interpretation I prefer of the same words in s. 83. It is also the more natural reading of the words in the sub-section, although I do not regard that as a strong indication because in my opinion the sub-section could be read either way without doing any great violence to the language. Nevertheless, the words overall do provide some support for a conclusion that the correct interpretation is that “matters” means “any matters”.

10. [10]
    For these reasons in my opinion the appropriate construction of s. 92(1) is that the right of appeal is given in respect of any decision of the Tribunal by which it finally decides any matters the subject of the proceeding. That would include a final decision of a single matter which is the subject of the proceeding: Acts Interpretation Act s. 32C(b).  In the present case there have been a number of matters which have been finally determined as a result of the decision on liability.  In my opinion there is therefore a right of appeal from that decision.  It follows that the appeal lodged in this matter on 7 December 2001 was not incompetent and should not be struck out.

Stay of appeal

11. [11]
    It was submitted on behalf of the respondents that, in the alternative, the appeal to this Court should be stayed pending the determination by the Tribunal of the issue of quantum, so that it could be dealt with at the same time as any appeal in relation to quantum. It was submitted that even if the present appeal was not incompetent, it was nevertheless preferable in practice for there not to be a separate hearing of an appeal in relation to the issue of liability. It was submitted that it was inappropriate to be dealing with quantum and liability separately, and that it would be better for the whole issue to be resolved on one occasion by this Court.

12. [12]
    On 6 November 2001 the Tribunal gave reasons extending to 48 pages for the order the subject of the appeal. There was a hearing of the issues going to liability which extended over four hearing days, together with a separate day on which submissions oral and written were delivered. The dispute arose out of a contract for the construction of a two-storey house which was signed on 13 March 1999 between the appellant and the third and fourth respondents on behalf of the first respondent as proprietor. The first respondent is a family company of the third and fourth respondents, as is the second respondent, and it was common ground that at the relevant time the second respondent was the registered proprietor of the land. The applicant sought to have the registered proprietor substituted as the other party to the contract, pursuant to the powers given in s. 93(2) of the Act, but the Tribunal refused to make that order, although concluding that there was power to do so in an appropriate case. That conclusion does not appear to be challenged in the present appeal.

13. [13]
    The respondents also alleged breach of contract by the appellant, and that accordingly the respondents were entitled to give notice to terminate the contract. There were a number of findings made by the Tribunal in respect of the alleged breaches by the appellant which were favourable to the appellant, but it was found that the appellant was not entitled to demand payment of a particular sum at a particular time, and that by ceasing work on the basis of the failure to pay that sum the appellant was in breach of contract and had repudiated the contract, so that a notice of determination by the respondents was validly given. This is challenged in the notice of appeal. The Tribunal also decided that notices of default given on the behalf of the appellant were not validly given, and that the appellant was not entitled to terminate as he had purported to do. The Tribunal also rejected the claim in restitution by the appellant against the second respondent. Claims by the appellant against the third and fourth respondents of fraud (arising out of a representation that the first respondent was the owner of the subject land) were upheld, although with the comment that it was difficult to see how the appellant had suffered any damage as a consequence. The claim for damages for negligent misrepresentation made in the alternative was rejected. Various other challenges were made to the decision of the Tribunal in the notice of the appeal.

14. [14]
    Whether or not it was originally appropriate to separate liability from quantum (and I have not considered that question, and I am not suggesting that it was not) once that was done, and the question of liability was tried separately and a separate judgment was given, in my opinion it became more practical to maintain the separation at this stage, rather than have the Tribunal deal with the issue of quantum before there was any appeal on liability. The appeal on liability will either be dismissed or allowed. If it is dismissed, then the Tribunal when assessing quantum will be able to proceed on the basis that it is unnecessary to make any precautionary findings of fact as to quantum in case the appeal is in some way allowed. That would, I would expect, substantially simplify the task for the Tribunal. On the other hand, if the appeal is allowed, then either the Court will substitute appropriate conclusions as to liability, or the matter will be sent back to the Tribunal for a further hearing. In either case, the issue as to liability will be finalised, and again the task of the Tribunal in assessing quantum will be simplified. I can see no advantage at this stage in having an assessment as to quantum prior to the appeal.

15. [15]
    That may mean that in due course there is a separate appeal as to quantum; if that is what happens, so be it. If the District Court has to deal on appeals on issues of liability and quantum, it does not seem to me frankly that there is much disadvantage in dealing with the two issues separately rather than dealing with the two issues together. Indeed, the appeal in relation to the issue of quantum may well be much simpler if the conclusions reached as to quantum are uncluttered by analysis and findings in respect of precautionary issues. Given that matters have reached this stage, in my opinion it is clearly preferable for the appeal as to liability to be resolved first.

16. [16]
    I am therefore not prepared to order that the appeal be stayed until there have been further proceedings in the Tribunal. The appeal will proceed here in the District Court. I will however hear further submissions in relation to how the appeal should proceed, bearing in mind the terms of s. 92(4) of the Act.