Queensland Building Services Authority v O'Brien
[2002] QDC 329
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- Unreported Judgment
- Queensland Building Services Authority v O'Brien[2002] QDC 329
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Queensland Building Services Authority v O'Brien[2002] QDC 329
Queensland Building Services Authority v O'Brien[2002] QDC 329
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Building Services Authority v O'Brien & Ors [2002] QDC 329 |
PARTIES: | QUEENSLAND BUILDING SERVICES AUTHORITY Appellant v PATRICK MICHAEL O'BRIEN First Respondent and VINBRIDGE PTY LTD Second Respondent and REGINALD D’ROZARIO Third Respondent |
FILE NO/S: | Appeal D1373/02 Appeal D3034/02 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Queensland Building Tribunal |
DELIVERED ON: | 15 November 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 November 2002 |
JUDGE: | McGill DCJ |
ORDER: | Appeal dismissed; cross-appeal allowed; decision of 12 April 2002 set aside; order in lieu that the appellant pay all reasonable costs incurred by the respondent in conducting the proceeding after 27 November 2001, to be assessed by the Tribunal if not agreed. The appellant pay the respondent’s costs of the appeal to be assessed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – Appellate Jurisdiction – Queensland Building Tribunal – nature of appeal – Queensland Building Tribunal Act 2000 s 92. INFERIOR TRIBUNALS – Building Tribunal – Appeal to District Court – nature of appeal – Queensland Building Tribunal Act 2000 s 92. BUILDING CONTROL AND TOWN PLANNING – Regulation of Construction – directions to rectify defective building work – discretion to exercise – nature of appeal from decision not to exercise – whether discretion should be exercised – Queensland Building Services Authority Act 1991 s 72. Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131 – followed. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – applied. Aldrich v Ross [2001] 2 Qd R 235 – distinguished. R v Miller; ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446 – followed. |
COUNSEL: | P J Davis for the appellant P H N Major for the respondent |
SOLICITORS: | Dominic Robinson for the appellant Macrossan & Amiet for the respondent |
- [1]On 2 August 2000 the Queensland Building Services Authority (“the appellant”) issued 13 directions to Mr O'Brien (“the respondent”) pursuant to s 72(1) of the Queensland Building Services Authority Act 1991 (“the QBSA Act”). On 16 August 2000 the appellant issued a further three directions to the respondent. The respondent applied to the Queensland Building Tribunal to have the decision to issue these directions set aside. There was apparently a separate application in respect of each direction. On 13 March 2002 the tribunal ordered that each of the directions be reversed. On 12 April 2002 the tribunal refused the respondent’s application for costs in respect of each of the applications. By a notice of appeal filed 10 April 2002 the appellant appealed against the substantive orders in respect of each application. By a notice of appeal filed in the Mackay registry on 13 May 2002 the respondent appealed against the refusal of his application for costs. On 17 June 2002 another judge ordered that the respondent’s appeal be transferred to Brisbane and heard together with the appellant’s appeal. It is convenient to treat it as a cross-appeal.
- [2]On 5 July 2001 Vinbridge Pty Ltd and a Mr D’Rozario were joined as parties to the applications before the tribunal. Although the tribunal did not set out in much detail the background to the dispute before it, it appears that Mr D’Rozario was a director of Vinbridge Pty Ltd and the person who had control of the relevant activities of that company. That company owned a parcel of land on which it was developing a number of home units. Vinbridge Pty Ltd was not licensed under the QBSA Act, but the respondent was. The respondent made an arrangement with Mr D’Rozario under which he would permit his licence to be used as if he were the builder when complying with the requirements of the statutory insurance scheme under the QBSA Act, but in fact he would only be the blockwork subcontractor, working as a subcontractor to Vinbridge Pty Ltd, which was also the employer of the other subcontractors, and would be responsible for payment of all subcontractors, and would be responsible overall for the condition of the project.
- [3]The project proceeded, with the respondent building the blockwork. It was not suggested that the blockwork was defective in any way. There were however a number of defects in the premises, principally relating to the tiling, which evidently came to light after the home units had been sold by Vinbridge Pty Ltd. Apparently the various purchasers complained to the appellant, who investigated and as a result issued the directions to the respondent. The appellant also took other proceedings against the respondent to punish him for being a party to such an arrangement, and against Vinbridge Pty Ltd and Mr D’Rozario for undertaking building work without a licence, and penalties have been imposed on them. It appears that Vinbridge Pty Ltd is insolvent; the financial position of Mr D’Rozario is unknown.
Basis of the appeal
- [4]The power to issue a direction to rectify building work which is defective or incomplete can be found in s 72 of the QBSA Act. By ss (1) of that section: “If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.” By ss (5) an extended definition is given to the concept of “the person who carried out the building work” for the purposes of ss (1), and it was accepted before the tribunal and before me that the respondent was a person who fell within the terms of that extended definition so that the power in s 72(1) was available against him, although he had not in fact been the person who had carried out the building work, in the sense of acting as the builder in respect of the whole job, nor had any of the actual work that he had done, the blockwork, proved to be defective or incomplete. It was conceded that it was open to the appellant to issue directions under ss (1), but submitted that as a matter of discretion those directions ought not to have issued. Reliance was also placed on the provisions of ss (14): “The authority is not required to give a direction under this section to a person who carried out building work for the rectification of the building work if the authority is satisfied that, in the circumstances, it would be unfair to the person to give the direction.” The respondent argued before the tribunal that it was unfair to him to give the directions, and therefore sought to reverse the decision of the appellant to give such directions.
- [5]It is established by authority and was accepted before me that s 72(1) confers a discretion on the appellant. The existence of that discretion is reinforced by the terms of ss (14), the function of which may be little more than to emphasise that considerations of hardship to the person to whom such a direction might be issued are relevant in such circumstances. In the present case the appellant decided as a matter of discretion to issue the directions, and the tribunal on review decided that as a matter of discretion such directions ought not to issue, and therefore reversed the decision to issue the directions. The appellant’s appeal before me was therefore an appeal which sought to challenge and overturn an exercise of discretion by the tribunal, namely its decision not to issue the directions.
Basis of the cross-appeal
- [6]The respondent’s appeal, against the decision not to make a costs order in his favour although he had been successful on the review before the tribunal, also challenged the exercise of a discretion, but did so on a narrow and specific basis. The respondent submitted that s 161 of the Queensland Building Tribunal Act 2000 (“the QBT Act”) applied, and that accordingly the tribunal had been obliged to award the respondent all reasonable costs incurred by him in conducting the proceedings after a date when an offer to settle the proceedings had been made. Subject to s 161, the tribunal has a discretion to award costs under s 61 of the QBT Act. Section 157 of the QBT Act permits offers to settle proceedings to be made under that section, and by s 161 provides that the tribunal must make an order for costs in favour of a party if the requirements specified in that section apply. The tribunal member decided that those requirements did not apply, and it was submitted on appeal by the respondent that that decision was in error and involved an erroneous construction of s 161, and that on its correct construction the tribunal member had been obliged to make an order for costs, and that such an order should therefore be made on appeal.
Nature of the appeal
- [7]It follows that each party is seeking to appeal against an exercise of discretion. But the approach of each party to the nature of the appeal was different. The appellant submitted that the effect of s 94 of the QBT Act, the section pursuant to which there is a right of appeal to this court from decisions of the tribunal, is that it is appropriate for this court on appeal to decide how the discretion under s 72(1) ought to have been exercised. It submitted that the court ought to decide that the discretion ought to be exercised in the same way as the appellant had originally, that is, the discretionary power to issue directions ought to be exercised, and therefore the decision of the tribunal should be set aside and the original decision of the appellant ought to be reinstated.
- [8]The respondent on the other hand submitted that it was necessary for the appellant to show that the decision taken by the tribunal was wrong, and that that could only be done in accordance with the established principles upon which an exercise of a discretion will be reviewed on appeal, On that basis it was submitted that good reasons had not been shown to interfere with the exercise of the discretion by the tribunal in relation to the substantive matter, but that there was an error on the part of the tribunal in interpreting s 161 of the QBSA Act, that was an error in relation to the exercise of the discretion which would be corrected on appeal, and the court ought to substitute the decision which on the respondent’s case was required to be made by a mandatory provision of the QBT Act.
- [9]The appellant did however have a “fall-back” position, that the exercise of discretion by the tribunal had been vitiated by taking into account irrelevant considerations, and by failing to have regard or sufficient regard to the purpose of s 72 in the context of the general scheme of the QBSA Act. As a last resort, the appellant submitted that the decision of the tribunal involved an unreasonable exercise of discretion, in the sense that the discretion had been exercised in a way in which no reasonable tribunal would in the circumstances have exercised it.
- [10]It is therefore important to decide the correct approach of the District Court when determining an appeal under s 92 of the QBT Act, in circumstances where the appeal is from the exercise of a discretion by the tribunal. Section 92 relevantly provides as follows:
“92(1)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.
- (2)An appeal must be filed within 28 days after the decision takes effect.
- (3)An appeal must –
- (a)be accompanied by the tribunal’s decision and reasons for decision, if any; and
- (b)refer to the tribunal’s decision and reasons for decision, if any, and any other relevant material and state the grounds for the application.
- (4)The Appeal is by way rehearing, unaffected by the tribunal’s decision, on the material before the tribunal and any further evidence allowed by the District Court.
- (5)The tribunal is not a party to the appeal but the party appealing must serve a copy of the appeal and supporting documents on the tribunal within 7 days of filing the appeal in the District Court.
- (6)On an appeal, the District Court may do any of the following –
- (a)confirm, annul, vary or reverse the tribunal’s decision; or
- (b)remit the case to the tribunal for further hearing or rehearing; or
- (c)make consequential or ancillary orders or directions.
- (7)The registrar of the District Court must give the tribunal a copy of the court’s judgment and reasons.”
- [11]Earlier this year in Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131, I considered the nature of this appeal and the difficulties posed by the terms of this section, which contains a number of provisions which do not sit well together, and ultimately concluded that s 92 provides an appeal by way of rehearing in the usual sense, that is, it provides a form of appeal which is analogous to an appeal from a single judge of the Supreme Court to the Queensland Court of Appeal.[1] My reasons for arriving at that conclusion are there set out, and I will not repeat them at length, but it is worth noting that that case did not involve an appeal from an exercise of discretion by the tribunal. In that matter the tribunal, having heard the parties giving conflicting factual accounts, made a finding based on an assessment of the respective credibility of the witnesses and taking into account the contemporaneous documents as to what had in fact occurred. Once that point had been reached, the outcome of the particular dispute which was then before the tribunal was fairly obvious. The particular point which I had to decide was whether the factual issue was to be resolved in effect by a hearing de novo, or whether it was to be determined, subject to any further evidence allowed on the hearing of the appeal under s 92(4), in accordance with the principles laid down in Warren v Coombes (1979) 142 CLR 531. It was accordingly not necessary for me to decide in that case what the approach was to the exercise of a discretion, but I referred to a number of authorities dealing with how the question of statutory interpretation thrown up by a provision like s 92 was to be resolved and one of the issues discussed in such authorities was appeals from the exercise of discretion.
- [12]Judicial decision making ordinarily is treated as a process of finding facts and then applying the law to the facts as found in order to produce what will be the specific, correct decision in relation to the issues in dispute between the parties. If the facts have been properly found and the law properly applied, there will be only one permissible correct decision, and any other decision will be wrong. But where a court has to exercise a discretion, it is recognised that ordinarily there will not be a specific right decision, such that any other decision is wrong. If as a matter of law a court has a discretion in a matter, then the “right” outcome is whatever outcome the court decides as a matter of discretion is the appropriate one, so long as that outcome is within the permissible limits of the discretion conferred on the court. The whole concept of a discretion implies that those limits will not be so narrow that there is only one possible outcome. In such circumstances, the decision is not shown to be wrong merely by showing that some other decision is the correct or preferable decision; before a decision which involves an exercise of discretion can be shown to be wrong, it must be shown that there was not a proper exercise of the discretion, that is there was some error in the process by which the discretion was exercised, or the way in which the discretion was exercised was beyond the permissible limits for the proper exercise of the discretion.
- [13]There is therefore an important difference in approach on appeal depending on whether the appellant has to show that the exercise of discretion in the decision the subject of appeal was wrong, or whether the appellant is entitled to have the appeal court exercise the discretion itself, and is seeking that it be exercised in a way favourable to the appellant. In the former case, what the appellant has to show is that the exercise of discretion was wrong or improper, in one or more of the ways identified by the High Court in House v The King (1936) 55 CLR 499 at 505.
- [14]Ordinarily when an appeal court is conducting an appeal by way of rehearing it is necessary for the appellant to show that the decision below was wrong,[2] and, where the decision below which is under challenge involved the exercise of a discretion, show that there was something wrong in the way the discretion was exercised.[3] However, if the appeal court is simply exercising the discretion for itself, on what may be conveniently described as a rehearing de novo, the appeal court simply makes up its own mind as to how the discretion should be exercised.
- [15]In the present case the appellant submitted that in general the method of appeal provided for by s 92 was an appeal by way of rehearing in the usual sense, so that it was not submitted that my analysis in Pointon was wrong in general. But it was submitted that the approach to an appeal from the exercise of a discretion had to be on a different basis, otherwise the words in ss (4) that the appeal is “by way of rehearing, unaffected by the tribunal’s decision” would be given no meaning. These were the words which caused me the greatest difficulty in Pointon. It was accordingly submitted that, where the tribunal’s decision involved an exercise of discretion, the appeal provided for by s 92 involved a modification of the ordinary approach to an appeal by way of rehearing, and that when a discretion arose it was to be exercised de novo by the court.
- [16]I acknowledge the difficulty posed for the overall interpretation of s 92 by the words quoted, an expression which causes particular difficulties which I went into at some length in Pointon. As I indicated there, in my opinion the resolution of the difficulty caused by s 92 is best achieved by a recognition that the explanation for apparently inconsistent language is more likely to be bad drafting than legislative subtlety. The difficulty in this case is a further example of the difficulties which arise when statutory rights of appeal are formulated without regard to the relevant issues in relation to an appeal, and apparently without even any clear appreciation of them. The difficulty is that the indication which flows from the words quoted is contrary to the indications which flow from the rest of the provisions of the section, and in Pointon I decided that, when giving effect to the section as a whole, it was necessary to give priority to the contrary indications elsewhere in the section.
- [17]Although it would certainly be possible for the legislature to formulate some hybrid form of appeal, which did not precisely follow any of the recognised categories, one would expect that if that was the legislative intent it would be expressed in language which was carefully formulated to achieve that result and displayed an understanding of the relevant issues, and clearly indicated just how the modified version of one of the established categories of the appeal was to operate. It would no doubt be possible by careful drafting to provide for an appeal which was an appeal by way of rehearing in respect of matters other than an exercise of discretion, but where any discretion was to be exercised afresh by the appeal court. Such a situation would however require very careful and precise drafting, not the sort of drafting which is found in the present statute. It is not an interpretation which a court would readily favour, particularly because of the difficulties that such an appeal would face in relation to questions such as onus.
- [18]Where there is an appeal by way of rehearing, the onus is on the appellant to establish that the decision under appeal was wrong. But where there is an appeal by way of hearing de novo, the onus is on the party seeking a favourable outcome to justify that outcome. In the present case as it happens the appellant is both the party seeking to challenge the decision under appeal and the party seeking the exercise of the discretionary power to issue a direction, but if in another case the appellant had issued a direction and on appeal the person to whom the direction had been issued had been unsuccessful, and brought a further appeal to the court, on the construction contended for by the appellant that person would have the onus of showing some error of fact or law in the decision of the tribunal, but the appellant would have the onus of persuading the court that the statutory power ought to be exercised. It would not be impossible to have such a situation, but it would certainly be unusual for a right of appeal to operate in such a way.
- [19]In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2002) 203 CLR 194 the High Court reversed a decision of the Full Federal Court as to the nature of an appeal under s 45 of the Workplace Relations Act 1996 (Cth). The Full Federal Court had concluded that, because s 45 was concerned with appeals from a variety of different decisions,[4] some of which involved discretionary powers and others of which did not, it created several types of appeal with different characteristics having regard to the power, act or function in respect of which the appeal was brought: p. 202. That approach was rejected by the High Court: p. 204. At p. 203 the majority noted that there was no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another. Their Honours went on in a passage which continues on the following page: “Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of rehearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. [Their Honours considered the decision in Re Coldham; ex parte Brideson [No 2] (1990) 170 CLR 267 and continued:] The terms of s 45 of the Act are different from the terms of the provision considered in Brideson [No 2]. Unlike that provision, s 45 does not require a Full Bench of the Commission to “make such order as it thinks fit.” Nor is there anything else in the terms of s 45 to suggest that the powers of a Full Bench are exercisable or, as in Brideson [No 2], are required to be exercised in the absence of error on the part of the primary decision-maker.”
- [20]In my opinion, the approach of the High Court in that case is instructive in determining the correct interpretation of s 92. The rejection of the approach adopted by the Full Federal Court suggested that it is not appropriate to treat the appeal under s 92 as an appeal by way of rehearing except in the case of an appeal against the exercise of a discretion, where it is to involve a hearing de novo. In the absence of some indication within s 92 that there is to be a different approach to the appeal depending on the nature of the function exercised by the tribunal in the decision from which the appeal is brought, the appeal is either one by way of rehearing in all cases, or an appeal by way of hearing de novo in all cases.
- [21]Because of the way this section has been drafted it cannot be said that there is nothing to indicate that the power is to be exercised other than for the correction of error, but for the reasons I gave in Pointon on the construction of the section as a whole I am persuaded that the correct interpretation of s 92 is that the District Court’s appellate power under that section is to be exercised for the correction of error on the part of the tribunal. The section does not confer on the court a general power to “make such order as is thought fit”. The power is one to make an order by reference to the decision of the tribunal, and the power to remit the case to the tribunal for further hearing or rehearing is inconsistent with the theory that the District Court conducts a hearing de novo. For these reasons in particular, and the other reasons outlined in Pointon, in my opinion the power in s 92 is to be exercised for the correction of error, and it is therefore necessary for the appellant to show that there has been some error in order to justify the exercise of that power.
- [22]The appellant relied on the decision of the Queensland Court of Appeal in Aldrich v Ross [2001] 2 QdR 235, a decision concerning the correct interpretation of a provision for an appeal to a misconduct tribunal from a decision under a section of the Police Service Administration Act dealing with disciplinary proceedings against a police officer. Thomas JA, with whom the other members of the court agreed, eschewed what was described by the majority in Coal and Allied as the common and often convenient descriptive phrases by which different types of appeals may be conveniently distinguished, but as I read his Honour’s judgment he ultimately concluded that what was provided for was a hearing de novo, although his Honour used that expression only in circumstances where further evidence was received on appeal by the misconduct tribunal: see p. 258. In that case there was no real dispute as to the primary facts, and the matter at issue was as to the appropriate penalty to be imposed. His Honour said that it was necessary for the tribunal to make up its own mind on the facts and inferences to be drawn for them, and that the exercise was quite different from what took place on appeal from the exercise of a judicial discretion, such as an appeal against a sentence, where the principles in House v The King (1936) 55 CLR 499 and Cranssen v The King (1936) 55 CLR 509 applied. In other words, the discretion as to sentence was to be exercised afresh by the tribunal, although the tribunal could attach such weight as it thought fit to the view adopted by the original decision maker.
- [23]His Honour identified a number of factors applicable to the nature of the appeal and the original decision in that case at pp. 256-7, which led him to the conclusion that the appeal was by way of rehearing de novo, relevantly to exercise afresh the discretion as to penalty. But many of those factors do not apply in the present to proceedings under the QBT Act, or the equivalent factor contains a contrary indication. In my opinion s 92 of the QBT Act should be interpreted differently from the interpretation of the relevant provisions of the legislation considered in Aldrich. In my opinion on the true construction of s 92 an appellant has to show that the decision of the tribunal was wrong, and, where the relevant decision of the tribunal was or involved an exercise of discretion, to show that that exercise of discretion was wrong, by one of the established grounds upon which an exercise of discretion can be shown on appeal to have been wrong.
Further factual matters
- [24]It appears that a substantial issue which occupied a good deal of time at the hearing before the tribunal was whether Mr D’Rozario was acting as the builder on the site, that is the person who was giving instructions to subcontractors and generally coordinating work on the site. A number of subcontractors gave evidence to the effect that he was, and some referred to the respondent simply as the blocklayer. In particular, people involved in tiling work said that they had dealt with Mr D’Rozario. He tendered a statement and was cross-examined but was described by the tribunal as not an impressive witness, and his evidence was rejected where other evidence was in conflict. The tribunal found that the defective work had been undertaken by other subcontractors engaged and paid for by Vinbridge Pty Ltd, and working under the control of Mr D’Rozario. The appellant did not seek to interfere with that finding. Indeed the submission on behalf of the appellant was that that finding was certainly supported by the evidence.
- [25]The tribunal found that the agreement for the project to be constructed at the expense of Vinbridge Pty Ltd was made on 9 September 1994, and ratified at a mediation on 11 November 1997 at which time Vinbridge Pty Ltd agreed to pay the appellant moneys claimed by it from the respondent under the statutory insurance scheme.[5] There was no dispute that the building work the subject of the directions was defective, and it was found that physically and financially the respondent had had nothing to do with that defective work.[6] That finding was challenged by the appellant before me, on the basis that the respondent had had something to do with all of the work, in that the use of his builder’s licence on the insurance form permitted the whole of the work to go ahead. That is correct, but I do not think that there was any misapprehension about the position on the part of the tribunal. The expression “physically and financially” was intended to convey that the defective work was not done by the respondent, or under his supervision and control, or by subcontractors he was paying, so that he was not responsible for it in any of those senses. The tribunal found that Mr D’Rozario was the “governing mind of the project” and that he had directly caused the building work to be carried out.[7]
- [26]In this case therefore the “principal contractor” was really Vinbridge Pty Ltd or Mr D’Rozario. That was recognised by the appellant, but it was submitted that the respondent had accepted responsibility for the works by lending his licence, and indeed by allowing his sign to be erected outside the site of the work. It was also submitted that the requirement for licences for undertaking building work would be subverted if, in a licence lending arrangement such as this, the licensed builder was not going to be subject to any direction of the appellant under s 72 if the work ended up defective or incomplete. I accept that licence lending is inconsistent with the scheme of the Act, and is undesirable and should be discouraged, but there are other provisions in the Act directed to dealing with that situation. Section 51 deals with the use of a licence by an unlicensed person to enable the unlicensed person to pretend to be licensed, and s 52A creates a similar offence. The tribunal found that the respondent had been penalised for lending his licence, perhaps under one of these sections, and that Vinbridge Pty Ltd and Mr D’Rozario had each been penalised for carrying out building work without holding the appropriate licence. That in my opinion was the appropriate way to punish and discourage licence lending under the QBSA Act. Whether the respondent should lose his licence, in order to protect the public, does not arise. It is not the function of Part 6 to protect the public in this sense. It is not the function of Part 6 of the QBSA Act to punish licensed builders for lending their licences. In my opinion its function is to secure the rectification of defective or incomplete building work.[8] It follows that I reject that part of the argument for the appellant based on the proposition that punishing or discouraging licence lending was an important consideration in the exercise of this discretion. In my opinion it is not a relevant consideration to the exercise of the discretion in s.72(1).
Other submissions for the appellant
- [27]The appellant argued that the use of the respondent’s licence permitted the work to be done because otherwise building plans would not have issued from the local authority without the appropriate insurance cover and that could not have been arranged without the use of the builder’s licence. It is true that in this sense it could be said that the respondent’s actions were something which permitted the building work to be done, and therefore were in a rather indirect way a cause of the defective building work, but that I think is too remote for it to be said that, in a practical, common sense way, the respondent had caused the defective work.
- [28]It was submitted that the respondent had abrogated his statutory obligations and allowed an unlicensed person to accept responsibility for the building work. But the respondent was never in a position to take responsibility for the building work, nor did he have any right to take control out of the hands of Vinbridge Pty Ltd and Mr D’Rozario. This is not a case where the work came to be defective because the builder had failed to exercise control which he was entitled to exercise in a way in which he ought to have exercised it.
- [29]One of the matters referred to by the tribunal as a circumstance justifying the exercise of the discretion against issuing a direction was “the absence of any evidence that any consumer had relied upon the appearance that [the respondent] was the licensed builder for the project.” This was criticised as ignoring the scheme of the QBSA Act, on the basis that consumers were entitled to expect that any building work would be done by a person who had the appropriate licence. But that I think is not the point that was being made by the tribunal; it was that there was no evidence, and no reason to think, that any consumer had been relying on the respondent’s involvement in the project as a basis for any assumption as to the quality of the workmanship. If the respondent had allowed himself to be held out as the builder and a consumer had relied on that, there would be more justification in holding him personally responsible for the whole state of the project. But that was not the case, or at least was not shown to be the case. In circumstances where the requirements of the QBSA Act could be complied with in a wide variety of ways, I do not think a general assumption on the part of the consumer that any relevant statutory requirement would have been complied with would justify or particularly support a direction to the respondent.
- [30]The tribunal also took into account the fact that when an earlier directive had been issued the respondent had taken steps to have the matter rectified, although at the expense of Vinbridge Pty Ltd rather than himself. I do not think that that is a particularly significant feature one way or the other; it is however consistent with the arrangement that the respondent had entered into, under which Vinbridge Pty Ltd had overall financial responsibility for the project.
Scheme of the QBSA Act
- [31]Section 72 is in Part 6 of the QBSA Act dealing with “rectification of building work”. This follows and is largely independent of Part 5 of the QBSA Act, dealing with the statutory insurance scheme, which was considered by the Court of Appeal in Parker v Queensland Building Services Authority [2001] 2 Qd R 644. Insurance under the statutory insurance scheme applies in the case of residential construction work, and a policy of insurance comes into force if a consumer enters into a contract for the performance of such work: s 69. On the other hand, s 72 is not apparently confined to residential construction work undertaken for a consumer, and it would be sufficient if building work was defective or incomplete. The term “residential construction work” is defined as being a subset of “building work”: Schedule 2. The term “consumer” is also defined; in the present case it would appear that the “consumer” was Vinbridge Pty Ltd. That company evidently sold the various units, and presumably it was as a result of complaints from purchasers of the units that the various directions by the appellant were issued. It is not clear whether such people are entitled to claim under the insurance scheme established by the QBSA Act, but the appellant is entitled to issue a direction notwithstanding that there is no relevant person entitled to an indemnity under the insurance scheme.
- [32]Section 71 (within Part 5) gives the authority power to recover the amount of any payment made on a claim on the insurance scheme 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. The expression “building contractor by whom the relevant residential construction work was, or was to be, carried out” is given an extended operation similar to that given to the expression “the person who carried out the building work” in s 72. The linking provision between the two parts appears in s 74. On its face this requires the appellant to seek tenders for carrying out rectification work if a person required to carry out the work does not carry it out, or if no direction is given to rectify defective or incomplete building work. However by ss (7) the authority may only have work carried out under that section to the extent that the cost of the work is covered by a payment to be made under the statutory insurance scheme. Accordingly if there is defective or incomplete work and a direction is given and not complied with, or if no direction is given, the appellant must have the work remedied if the cost of doing so would be covered by the statutory insurance scheme, but is not otherwise required to do so.
- [33]It is clear from s 72 that the object of the section is not limited to ensuring contractual obligations by builders are performed. Subsection (2), which permits the appellant to take into account all the circumstances it considers are reasonably relevant, expressly excludes any limitation of the terms of any warranties included in the contract for carrying out the building work. Subsection (3) also contemplates that a direction may be given in a context where the defective or incomplete work poses a significant hazard to health or safety, or to public safety or the environment generally. In the light of these provisions, and bearing in mind that ss (14) introduced (or confirmed the relevance of) the consideration of whether it would be unfair to the person to give the direction, the section seems to be concerned with a wide range of situations where it might well be appropriate, in a broad sense, to require work which was objectively defective or incomplete to be rectified. That should only be done when it is not unfair to the person to whom the direction is given that that person should rectify the deficiency in the work. Hence the importance of the issue of whether the work is defective because of some fault on the part of that person.
- [34]That however is not necessarily conclusive; for example, a person may build without fault something which is defective in a way which causes a hazard to public safety, and could well be required to remove it. Suspending a heavy sign above a public place with inadequate support so that there was a serious risk of its coming loose and falling could well be an example. A direction to rectify might be issued, although the sign was erected precisely in accordance with the requirements of the owner, if it nevertheless endangered public safety. Where there are multiple potential recipients of a direction, it would commonly be appropriate to issue a direction only to the recipient who is most appropriately seen as the person responsible for the defective or incomplete state of the work, and hence the most obvious candidate to rectify any deficiency. Commonly (not inevitably) that will be the principal contractor, because that person undertakes ultimate responsibility for the overall work.
- [35]The potential scope of s 72 is quite wide, because of the provisions of ss (5) and (11). Accordingly it will often be the case that there will be more than one person to whom a direction could be given under s 72. But it does not necessarily follow that it would be right to exercise the discretion in respect of all of them, or indeed any of them. The obvious explanation for the wide scope of s 72 is that the legislature intended that the appellant have a wide choice, to maximise the prospect of the appellant’s identifying a person who can be best seen as an appropriate person to rectify the defective or incomplete work. Commonly that will be the person most responsible for the defective or incomplete state of the work. Because the head contractor has overall responsibility for the project, commonly that will be the head contractor. But there are all sorts of reasons why it could be appropriate for the authority to have available other persons to whom a direction might in an appropriate case be issued.
Principles applied by the tribunal
- [36]At page 7 of her reasons the tribunal member stated the principles to be applied as follows:
“38When conducting a review under s 105 of the [QBT] Act the tribunal conducts an administrative proceeding standing in the shoes of the authority, but in the light of the evidence available to it, including evidence not available to the authority.
39The authority has the onus of establishing that the direction should stand. The onus must be discharged to the highest civil standard, commonly known as the Briginshaw standard. The exercise of the discretion pursuant to s 72 of the QBSA Act involves the examination of the whole of the circumstances. A factor to be taken into account is whether or not the builder has been at fault, although a finding of fault on the part of the builder is not in itself determinative.”
- [37]There was no dispute about what was said by the tribunal in paragraph 38, and it is consistent with an earlier decision of this court: Queensland Building Services Authority v Carey (Appeal 1209/97, Brabazon DCJ, 20.06.97, unreported). In that case his Honour undertook a careful and thorough examination of the nature of an appeal to the tribunal, with which, with respect, I entirely agree. It is not necessarily appropriate to talk in terms of onus in relation to an administrative review,[9] but in such circumstances it is reasonable to say that the statutory discretionary power will not be exercised unless the appellant can persuade the tribunal that it is appropriate to exercise it, which for practical purposes comes to the same thing. Apart from the next sentence, the balance of what was said in paragraph 39 is unexceptionable. The last sentence of the paragraph has the direct support of a decision of the Full Court.[10]
Briginshaw v Briginshaw
- [38]The reference to Briginshaw[11] is however puzzling. That was not a case about the exercise of a statutory discretion; it was concerned with the standard of proof of a fact (adultery) which was a ground for divorce. If the petitioner’s case was established, the court did not have a discretion; it was required to pronounce a decree nisi for dissolution of marriage. The petitioner having alleged adultery, the issue was whether or not that ground had been proved; that was a question of fact. The petitioner failed in the Supreme Court of Victoria, and in the High Court it was submitted that that had occurred because the trial judge had wrongly held that adultery was not proved unless he was satisfied of it beyond reasonable doubt. In the course of giving judgment the majority discussed in general terms the approach to proof of facts in a civil case.
- [39]Latham CJ said at p. 343: “In a civil case, fair inference may justify a finding on the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue.” After considering a number of authorities as to the standard to be applied to an allegation of adultery in a divorce proceeding, his Honour said at p. 347: “The result is that the ordinary standard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established.” Rich J said at p. 350: “In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.” Dixon J reviewed the evidence, and, after referring to the criminal standard of proof, said that in relation to civil matters (p. 362): “It is enough of the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is required.”
- [40]That case therefore was concerned with the approach of a tribunal to a finding of fact where the allegation in question is one which if established would have serious consequences for a person. But the court did not say that that required a different and higher standard of proof; on the contrary, Dixon J said that the standard of proof was the same in all civil proceedings, although there may well be a different approach to the assessment of whether that standard had been satisfied depending on the matters he referred to. If the reference to Briginshaw was intended to mean only that, insofar as the tribunal was required to find facts in connection with the exercise of the discretion, in deciding whether allegations of fact had been made out it was appropriate to take into account the seriousness of the allegation, the inherent unlikelihood of such an occurrence, or the gravity of the consequences flowing from a particular finding, the remark is entirely unobjectionable, although given the factual issues in dispute in the present case it is difficult to see that those considerations would have had much application. What concerns me however is whether it indicates some particular predisposition against the exercise of the discretionary statutory power. The reference to “the onus” which must be discharged to the highest civil standard suggests a reference to the onus on the appellant of establishing that the direction should stand, that is, that the statutory power ought to be exercised. That suggests that there should be some inbuilt or presumed reluctance to exercise the statutory power on the part of the tribunal. But there is nothing in s 72 to justify that, and it is difficult to find any authority to support some particular predisposition against the exercise of the statutory power.
- [41]Presumably reference was made to Briginshaw because of a statement in the judgment of Forno DCJ in Gary Norwood Homes Pty Ltd v Queensland Building Services Authority (Appeal 615/96, 20.06.96, unreported) where his Honour noted that a failure to comply with a direction under s 72 of the QBSA Act is an offence: s 72(10). His Honour said that this meant that the discretion could not be said to be unfettered, and added: “It is because of this serious consequence that the standard that the tribunal must apply in deciding whether or not a direction is appropriate should be that discussed in Briginshaw v Briginshaw ….” The fact that a failure to comply with a direction is made an offence is certainly a relevant consideration, so that for example a direction should always be very clear and precise as to what it is the person directed is required to do, and care should be taken to ensure that the direction does not require to be done something which really cannot be done, but this is not something which directly involves the principle in Briginshaw. That case was concerned with findings of fact, not whether or not to exercise a discretion. It may be that this reference has been subsequently misinterpreted by members of the tribunal, including in the present case.
Authorities and precedents
- [42]The principal authority in this area is the decision of the Full Court in R v Miller; ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446. That case concerned the exercise of power then contained in s 59 of the Builders Registration and Home Owners Protection Act 1979, which was analogous to the power now in s 72(1) of the QBSA Act. The prosecutor had been ordered by the Builders Registration Board to remedy faulty or unsatisfactory building work, and appealed to the District Court, where the order of the Board was confirmed: p. 448. There were problems with water penetration through the podium slab, and with a retaining wall. The former problem was caused by the use of an unsuitable material as waterproofing, which material had been specified in the building contract; the latter was caused by defective design, but the design was not the responsibility of the builder. In terms of contract law the builder had done nothing wrong, but the outcome was unsatisfactory in a practical sense. The issue was whether the builder who had faithfully complied with the requirements of his contract would nevertheless be liable to an order to remedy under that section. Derrington J (with whom McPherson J as his Honour then was agreed) said at p. 458: “That a builder’s work comes within the definition of building work that is faulty or unsatisfactory within the meaning of subsection (3) does not of itself impose any liability upon him but merely enlivens the discretion of the Board to order him to remedy the work, for the use of the permissive “may” in the investment of the Board’s powers also vests such a discretion in the Board. Where his adherence to the contract must mean defective work, the answer to the builder’s dilemma is that the legislature has reposed confidence in the Board to determine in the specific case whether an order should be made; and the Board, in exercising that discretion properly, must in a proper case recognise the builder’s innocent position and afford him protection by the exercise of its discretion in his favour. In some circumstances, there is obvious need for protection of the owner even though the builder may be able to point to a term of the contract justifying the defective result, while in others the builder may be perfectly justified in conforming with the specifications and should not be required to remedy the defect. Such a discretion is both reasonable and logical in this field where it is so difficult to set precise criteria, and where a number of different factors will operate in varying degrees. It is therefore in conformity with the plain and ordinary meaning of the terms in ss (3)(b) to find that they apply to the objective state of the finished work itself, but that if that position derives from the builder’s adherence to the contract then it is in the discretion of the Board, depending upon the circumstances, whether he should be ordered to remedy the work.”
- [43]His Honour then noted that there appeared not to have been an appreciation by the judge that he was exercising a discretion at all, and held that it was a clear case for the discretion to be exercised in favour of the builder, saying at p. 459: “All the considerations which are relevant in circumstances such as this are favourable to the prosecutor. Not only was it acting properly in conformity with the contract without any fault in its performance of the work, but the owner, after expert independent advice, deliberately took the risk in his choice of material for the sake of a cheaper price. If a discretion had been exercised in the judgement below, it must have miscarried in the result.”
- [44]It appears therefore that in that case the discretion was approached on the basis that it depended upon whether it was, in a fairly broad sense, right to require the builder to rectify the work, bearing in mind the circumstances under which the problem arose. There is no suggestion that there should be any particular predisposition towards not exercising the statutory power. There does not appear to be any other relevant decision of the Full Court or the Court of Appeal.
- [45]The operation of s 72 of the QBSA Act was considered by Forno DCJ in Gary Norwood Homes Pty Ltd v Queensland Building Services Authority (Appeal 615/96, 20.06.97, unreported), an appeal under former s 94 of the QBSA Act which provided for a more limited right of appeal, an appeal in the strict sense: Whywait Pty Ltd v Davison [1997] 1 Qd R 225. His Honour when considering the exercise of discretion referred to the judgment in Miller (supra) and noted that whether the builder was at fault or not will not necessarily be the determining factor as to whether or not a direction to rectify will be made. His Honour then examined the evidence and concluded that the tribunal had made a finding of fact which was not open to it on the evidence, and had therefore exercised the discretion on the wrong factual basis. His Honour therefore set aside the decision of the tribunal and remitted the matter to the tribunal to exercise the discretion afresh, on the correct factual basis.
- [46]I have also been referred to a number of decisions of the tribunal where it has reviewed an exercise of power under s 72 by the appellant. In Matejic v Queensland Building Services Authority [1997] QBT 88 the Chairman of the tribunal said: “I believe it to be common knowledge that the Authority has a policy to prefer to direct the person who may be referred to as ‘the principal contractor’, presumably on the basis that that person can then ensure that the relevant subcontractor returns to site to carry out the work. However, under s 72 of the Act the Authority has a discretion to direct any person who carried out the building work and is not required by the Act to direct more than one or any particular type of contractor, be they a building contractor or subcontractor …. [Where more than one person is involved in doing the work, the Authority] is empowered to direct the person it considers most appropriate to rectify the defective or incomplete work.” That was also a case where the direction was made against a licensed builder who had admitted lending his licence. He had left most of the physical work to be done by others, although he had done some work on the dwelling. The direction to the builder was confirmed by the tribunal in that case.
- [47]I was also referred to the decision in Wilson v Queensland Building Services Authority [2000] QBT 53, where reference was made to a series of decisions where it had been concluded that it was not appropriate to give a direction to a builder where the builder had neither contractual nor tortious liability to the owners in respect of the defective work in question. That approach was followed in that case also. Although it would be inappropriate to fetter the discretion by any such rule, it is clear from the decision in Miller that the fault of the builder is a relevant consideration, and I think it follows logically that whether the defective work amounts to a breach of any contractual obligation of the builder to the owner, or involves breach of a duty to take care owed to the owner, would be aspects of whether the builder was at fault. Nevertheless, it is not a matter which ought to be regarded as necessarily determinative of the discretionary decision to issue a notice.
An error of principle involved in the exercise of discretion
- [48]In my opinion the statement by the member of the tribunal, that “the onus must be discharged to the highest civil standard, commonly known as the Briginshaw standard” involved an error of law and revealed an error as to the approach to the exercise of the discretionary statutory power. There is no such thing as “the highest civil standard”. It suggests some reluctance to exercise the power which is not justified either by the terms of the section, the scheme of the legislation, or any of the authorities available as to the operation of s 72. It follows that error has been shown in the exercise of the discretion by the tribunal, and it is necessary for me to exercise the discretion afresh.
Exercise of discretion
- [49]Ultimately it seems to me that, when an occasion arises to consider the exercise of the discretionary statutory power in s 72(1), it is necessary to decide whether it is appropriate that the particular defective or incomplete work be rectified, and if so, by whom it should be rectified. To some extent these considerations are inter-related. If for example it was particularly important that a defect be rectified, for reasons which went beyond the interest of the building owner and involved considerations of public safety, and the person responsible for the dangerous state of the works was for some reason not available as a recipient of a direction, it might be a case of finding somebody who would be able to rectify the work and who had some personal responsibility for it. Perhaps in an extreme case a direction could be issued to someone who had no personal responsibility for the defect, but was within the reach of the section.
- [50]One issue that arises in the present case is the effect of the insolvency of the company that was paying for the work, and was the owner of the premises at the time when the work was being done, and was presumably the vendor of the units to the current owners. If that company had still been solvent, it would seem to me to have been the obvious recipient of a direction from the appellant under s 72. In those circumstances it would not have been appropriate to issue a direction to the respondent. In the present case therefore the issue becomes whether, given the insolvency of Vinbridge Pty Ltd, it is appropriate to issue a direction to the respondent.
- [51]The other plausible recipient for a direction in respect of this work is Mr D’Rozario. The fact that he is not a licensed builder is not an obstacle to a direction; for the purposes of ss (1), “the person who carried out the building work” can include a person other than a licensed contractor or a building contractor: ss (5)(d).[12] Subsection (7) expressly contemplates that a direction may be given to a person not licensed to carry out the required work. There is no finding that Mr D’Rozario is insolvent, and the appellant does not appear to have pursued before the tribunal an argument that a direction to him would be futile for that reason. If it comes to that, there was evidence before the tribunal to suggest that the respondent’s financial position was quite modest.[13] This was not a case where the respondent was an appropriate recipient of a direction because of his deep pocket.
- [52]In the present case it is not entirely clear to me whether the defects in question can be most appropriately seen as the fault of whoever did the tiling work, or of Mr D’Rozario, but they are more appropriately seen as the fault of one or other of those than of the respondent. It would certainly be better if the defective work were rectified, although I would not regard this as a case where the importance of rectification was such that it was necessary to find someone, even someone fairly remotely involved with the defective work, to whom a direction could be given which would be likely to be carried out. This is not a case where the damage is the fault of the respondent, in any relevant sense. There is no contractual or, so far as I can see, tortious liability by the respondent to the current owners. There is apparently a more appropriate recipient of such a direction available. For these particular reasons, in the light of all the circumstances of this case and on the basis of the findings of fact made by the tribunal, in my opinion it is not appropriate to direct the respondent to rectify the defects of the building work identified in the various notices the subject of the applications to review. As this is the result achieved by the tribunal, the appeal will be dismissed.
The cross-appeal
- [53]With regard to the cross-appeal, the tribunal decided as a matter of discretion under s 61 not to make an order for costs in favour of the respondent. The respondent however submitted that the effect of s 161 of the QBT Act was that the tribunal was obliged to award him all reasonable costs in conducting the proceedings after the date on which he made a settlement offer. On 27 November 2001 the solicitors for the respondent wrote to the solicitors for the appellant offering to settle the matter on the basis that the appellant withdraw the disputed directions, or vary them so that they were directed to Vinbridge Pty Ltd and/or Mr D’Rozario, or undertake not to proceed with any action against the respondent for failure to comply with the directions, and that each party would pay its own legal costs of the review proceedings. Vinbridge Pty Ltd and Mr D’Rozario had been joined as respondent to the proceeding before the tribunal on 5 July 2001. It is not clear whether the offer was also communicated to them, but on its face they would also have been necessary parties to any compromise of the proceeding in terms of the offer, because it would have been necessary for them to agree to the costs order, or the proposed variation.
- [54]Section 161 provides as follows:
“(1)This section applies if –
- (a)a party to a proceeding serves another party to the proceeding with an offer in writing to settle the matters in dispute between the parties; and
- (b)the other party does not accept the offer within the time the offer is open; and
- (c)the offer complies with this division; and
- (d)in the opinion of the tribunal, the decision of the tribunal on the matters in dispute is not more favourable to the other party than the offer.
- (2)The tribunal must award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
- (3)If a proceeding involves more than two parties, this section applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.
- (4)In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must –
- (a)take into account any costs it would have awarded on the date the offer was served; and
- (b)disregard any interest or costs it awarded relating to any period after the date the offer was served.”
- [55]The respondent was a party to the proceeding and served the appellant, another party to the proceeding, with an offer in writing which was expressed to be an offer made under the QBT Act, and which appears to me to have complied with Division 8 of Part 6 of the QBT Act. The outcome of the proceeding in the tribunal was that the directions were reversed. That it seems to me is not more favourable to the appellant than what was offered; I do not think there is any real distinction between reversing the directions and withdrawing them. The appellant did not argue to the contrary.[14]
- [56]The appellant’s argument as to the non-availability of s 161 was based on the proposition that the offer was not made on behalf of all other parties, namely the respondent, Vinbridge Pty Ltd and Mr D’Rozario. That is true, but I do not think it matters; it does not seem to me that s 161(3) will be satisfied only if an offer is made on behalf of all parties other than “the other party”. Subsection (3) does not operate only if the settlement of all matters in dispute would have been achieved by acceptance of the offer by “the other party”. So to read it involves implying a limitation which is not expressed there. In my opinion the wording of that subsection is consistent with what one would expect to be the ordinary situation, namely that an offer is made by one party which, if accepted by all other parties, will resolve all matters in dispute between all parties. The subsection was intended to exclude a situation where one party would offer another party settlement of matters as between them, something which ordinarily would not mean that all matters in dispute in the proceeding would be resolved.
- [57]So understood it seems to me that the offer in the present case was an offer within the terms of ss (3). If all other parties had accepted it, it would have put an end to all matters the tribunal had to decide.[15] Therefore the issue becomes whether all of the requirements of ss (1) were satisfied. In my opinion in the present case they were. It follows that ss (2) applied, and the tribunal did not have an unfettered discretion in relation to costs; it was obliged by that subsection to award the respondent “all reasonable costs incurred by the [respondent] in conducting the proceeding after the offer was made.” The subsection is silent as to which party is to be ordered to pay those costs. That will not be a problem if there is only one other party. For a proceeding involving more than two parties, it becomes a matter for the discretion of the tribunal which other party should pay the costs. Usually in practice it will be obvious enough. In the present case costs are sought against the appellant, and the appellant did not argue that if the subsection applied the costs order ought to have been made against one or other of the other parties.
- [58]It occurs to me that this provision is one which can work unjustly in particular cases, and is one which is not well adapted to those cases where there are essentially only two possible outcomes before the tribunal: either the applicant will win or the applicant will lose. A system of offers such as this is more appropriate when dealing with a dispute where there is room for argument as to quantum, where the section can be seen as encouraging commercial compromise. In the present situation, the respondent was either going to win or was going to lose before the tribunal, and the effect of making this offer was simply to withdraw from the tribunal its discretion as to costs if the respondent was successful. In the equivalent provision in the Uniform Civil Procedure Rules, rules 360 and 361, there is a residual discretion in the court to order otherwise in an appropriate case. There have been occasions when I have thought it proper to make some other order than that prima facie required by one or other of those rules,[16] although that is admittedly unusual, and I think it is most unfortunate that there is not a similar flexibility in s 161. This is another example of the poor drafting of this legislation.
- [59]Nevertheless, whatever faults s 161 may have, they do not include lack of clarity. In my opinion the requirements of the section were satisfied in the present case and therefore the tribunal was obliged to order that someone (and it is not disputed that means the appellant) should pay to the respondent “all reasonable costs incurred by the respondent in conducting the proceeding” after 27 November 2001.
- [60]The cross-appeal will therefore be allowed, the decision of the tribunal in relation to costs will be set aside, and there will be an order that the appellant pay all the reasonable costs of the respondent of conducting the proceeding before the tribunal incurred after 27 November 2001, to be assessed by the tribunal if not agreed. The case is remitted to the tribunal for further hearing if necessary for the purposes of assessing those costs. I order the appellant to pay the respondent’s costs of the appeal and cross-appeal to be assessed.
Footnotes
[1] My decision has been followed in Budlex v Hogue [2002] QDC 260.
[2]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203.
[3] ibid, p. 205.
[4] As is s 92 of the QBT Act.
[5] Reasons paragraphs 31, 32; see also Statement of Respondent dated 28 June 2001, filed 2 July 2001, paragraphs 47-49.
[6] Reasons paragraph 35.
[7] Reasons paragraph 37.
[8] This is in furtherance of one of the objects of the QBSA Act, “to provide remedies for defective building work”: s 3(b).
[9] See Re Ladybird Children’s Wear Pty Ltd (1976) 1 ALD 1; McDonald v Director-General of Social Security (1984) 6 ALD 6.
[10] R v Miller (infra).
[11]Briginshaw v Briginshaw (1938) 60 CLR 336.
[12]Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Ltd (Appeal 5499/98, Queensland Court of Appeal, 6.11.98, Library CA 351/98, unreported).
[13] Respondent’s statement of 28 June 2001, filed 2 July 2001, paragraph 16 (he had been out of work and needed the work); transcript p. 26 (had four mouths to feed); p. 16 (now working in Brisbane as he can’t get work locally).
[14] The appellant did not try to support the ground on which the tribunal held that s 161 did not apply, that the decision of the tribunal was not more favourable to the appellant: paragraph 35. That involves a misreading of s 161(1)(d); that is the reason it did apply.
[15] There was no evidence that the offer was also communicated to the other respondents before the tribunal, but I do not think that matters. If it had been accepted by the appellant, it could then have been communicated to them. If rejected (as it was), there was no point in doing so.
[16] In Carrier v Bonham [2002] 1 Qd R 474, the Court of Appeal decided that another order was appropriate, in a case where I had ordered as prima facie required by r. 360.