Marriner Views CTS 9252 v Jamieson
[2003] QDC 316
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- Unreported Judgment
- Marriner Views CTS 9252 v Jamieson[2003] QDC 316
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Marriner Views CTS 9252 v Jamieson[2003] QDC 316
Marriner Views CTS 9252 v Jamieson[2003] QDC 316
DISTRICT COURT OF QUEENSLAND
CITATION: | Marriner Views CTS 9252 v Jamieson & Ors [2003] QDC 316 |
PARTIES: | MARRINER VIEWS CTS 9252 Appellant and june jamieson First Respondent and the commissioner for body corporate and community management Second Respondent and r a meek Third Respondent |
FILE NO/S: | D1048/02 |
DIVISION: | Civil Appeal |
PROCEEDING: | Application |
ORIGINATING COURT: | Southport |
DELIVERED ON: | 30 July 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 26 May 2003 |
JUDGE: | Alan Wilson SC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – PRACTICE ON APPEAL – PARTIES TO APPEAL – appeal from decision of Adjudicator appointed under Body Corporate and Community Management Act 1997 – whether Commissioner and Adjudicator appointed under that Act should be parties to appeal PRACTICE – APPEAL – PARTIES TO APPEAL Body Corporate and Community Management Act 1997, Chapter 6, ss 226-302 et seq Uniform Civil Procedure Rules, r 749 Uniform Civil Procedure Rules, r 566 Judicial Review Act (1991) Cases considered: Dey v Victorian Railways Commissioners (1948) 78 CLR 62Ealing Corporation v Jones (1959) 1 QB 384 General Steel Industries Inc v Commissioner of Railways (NSW) 112 CLR 125 Oceania on Broadbeach v Searle (2003) QDC 11 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 R v Dorset Quarter Sessions; ex parte Weymouth Corporation (1962) QB 230 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 R v London Quarter Sessions; ex parte Westminster Corporation (1951) 2 KB 508 R v Massingham; ex parte Majeau Carrying Co (1985) 1 QD R 349 R v Nottingham Quarter Sessions; ex parte Harlow (1952) QB 601 R v Registrar and Referees of Small Claims (1986) 2 Qd R 282 R v Registrar and Referees of the Small Claims Tribunal and Roberts; ex parte Consolidated Rutile Limited (1986) 2 Qd R 282 R v Small Claims Tribunal; ex parte Escor (1979) VR 635 R v Small Claims Tribunal; ex parte Escor (No 2) (1979) VR 635 Westlake Villas Body Corporate v Meek & Ors, D 2138/98 |
COUNSEL: | Mr J Horton – for the applicants (second and third respondents to appeal) Mr C J Carrigan – for the respondent (appellant) |
SOLICITORS: | Ms M Vidhs (Department of Natural Resources and Mines) for applicants Short Punch & Greatorix for respondent |
- [1]This is an application by the second and third respondents, in an appeal by a Body Corporate from the decision of an Adjudicator appointed under the Body Corporate and Community Management Act 1997[1], to have themselves removed from the proceedings. The issue is whether or not those respondents are proper and necessary parties to the appeal. The first respondent, Ms June Jamieson, did not appear but by letter 23 May 2003 from her solicitors signified that she consented to the orders sought by the second and third respondents.
- [2]The dispute between the Body Corporate and Ms Jamieson concerned an air-conditioner she had installed in her unit, allegedly without the Body Corporate’s authorisation. On 10 October 2002 it applied to the Commissioner for removal of the air-conditioner. On 8 November 2002 the Commissioner gave the appellant notice of an order by an Adjudicator dismissing the application, and ordering that the installation of the air-conditioner was deemed to have been approved, subject to the performance of certain conditions by the owner requiring a report from consulting engineers, compliance with any direction from the Body Corporate about the discharge of condensation from the air-conditioner, and some limits upon the hours when it might be operated.
- [3]In its Notice of Appeal filed 20 December 2002 the Body Corporate asserted the Adjudicator failed to properly investigate the matter, or to observe principles of natural justice; and, sought orders directing the first respondent to remove the air-conditioner, or take further steps concerning it to the Body Corporate’s satisfaction, and pay the appellant’s costs. The Body Corporate also sought these orders:
- In the alternative, pursuant to Section 242(1)(c) of the Act, through the second respondent, refer the order back to the third respondent with appropriate directions having regard to the questions of law, the subject of this appeal.
- Such further or other orders as the honourable Court shall deem fit.
- [4]Chapter 6 of the Act sets up a scheme for the resolution of disputes arising out of the ownership or occupation of multiple dwelling units with shared facilities on a parcel of land, and the Bodies Corporate which manage those properties. The office of Commissioner, established under s 231, carries responsibilities which include the provision of a dispute resolution service: s 232(2). An element of that process is adjudication, by Adjudicators appointed pursuant to Part 3, whose responsibilities include administration of dispute resolution under the Act.
- [5]Applications for orders by Adjudicators must first be made to the Commissioner:s 239(1), who may reject them (s 241(1)(a)) but who, otherwise, has various administrative duties once an application is filed including notifying each affected person and the Body Corporate: s 243. Adjudicators are appointed under the Act and the Public Service Act 1996. They may consider applications and make orders to resolve disputes of particular kinds (s 276). It is agreed, in this matter, that the Adjudicator had jurisdiction in the dispute between the Body Corporate and Ms Jamieson.
- [6]Adjudicators have investigative powers but, otherwise, retain the character and quality of administrative decision-makers in that they are bound by the rules of natural justice (s 269(2)(a)), are vested with powers of deliberation and, ultimately, have the power to make orders affecting parties’ rights (s 276). In arriving at their decisions Adjudicators act independently, and the Commissioner cannot direct them about the manner of adjudication, or in any respect concerning the substance of the dispute: s 232(5).
- [7]An appeal from an Adjudicator’s decision is permitted on a question of law: s 289(2). This Court has power to confirm, amend, set aside, or substitute orders or decisions, or refer the decision back to the Adjudicator, via the Commissioner: s 294.
- [8]These provisions make it clear that Adjudicators act independently of the Commissioner, whose only involvement arises from a responsibility to administer the dispute resolution system generally and, if a decision is referred back to an Adjudicator after an appeal, to transmit the process under s 294. It is also clear that it is the Adjudicators’ decisions, alone, which are the subject of any appeal.
- [9]As a matter of general practice, challenges to the decisions of administrative decision-makers usually involve the naming of the decision-maker as a respondent to the review process, or appeal when those proceedings are brought by way of prerogative writ, and the control of superior Courts is invoked[2]. It is also the usual practice, however, that the decision-maker does not present a substantive argument upon the hearing of a review or appeal, nor take any active part in proceedings questioning their own decisions[3]. The practice still applies in applications for statutory orders of review under the Judicial Review Act[4].
- [10]The question arising here has been touched upon, but not resolved, in other proceedings in this Court[5].
- [11]The applicants submit and I accept that there is a distinction between proceedings brought by prerogative writ, or under legislation providing for statutory review, and appeals under a statutory scheme such as that prescribed by this Act. An appeal of the latter kind, from an Adjudicator to this Court, bears a greater similarity to an appeal from an inferior Court than to a judicial review application.
- [12]The reason for joinder of the decision-maker in cases involving prerogative relief or statutory review is, generally speaking, for reasons of conformity[6], or to bind the decision-maker to any order made, or to prevent the tribunal proceeding in error[7], or where some financial or legal burden is cast upon the decision-maker[8]. None of these factors apply here. There is no reason to anticipate any of the issues arising in the appeal must attract submissions from the second or third respondents. It is inconceivable, in light of the legislation, that either would not adhere to an order made by this Court in the appeal.
- [13]It was conceded by the respondent Body Corporate[9] that it had no right to insist upon the appearance of the second and third respondents at the appeal hearing, but it was contended that because costs might ultimately be sought from them, they ought not be removed from the action. Nothing in the legislation suggests either the Adjudicator or the Commissioner is exposed to any consequence save those mentioned in Chapter 6, Part 11 and, certainly, there is no indication they are exposed, if an error of law is found, to a costs order. It would be surprising if the Commissioner, in particular, could be the subject of any order for costs because that officer has no relevant role in the primary decision other than to administer the process generally and, after it, to refer the matter back to Adjudicators. The latter have the privileges and immunities from liability enjoyed by a Magistrate[10].
- [14]The appellant also relied upon UCPR r 749 which requires that the parties to an appeal must include any which is “...directly affected by the relief sought in the Notice of Appeal or who is interested in maintaining the decision under appeal”. The relief sought here does not concern either the second or third respondent in the relevant sense, i.e. they are not directly affected by it[11]. The only possible effect involving consequences for the Adjudicator is an order that the matter be referred back to that officer, with an appropriate direction having regard to the question of law the subject of the appeal; s 294(1)(c).
- [15]Neither the Commissioner nor the Adjudicator was a party to the primary proceeding, save in their roles under the legislation. The Act provides that the Adjudicator be informed of the appeal by being served[12], a requirement suggesting that officer is not ordinarily expected to be a party to it. There is an appropriate, legally represented contradictor to present argument to the Court, and the involvement of the second and third respondents is not required in any practical sense. Nor, though the appeal apparently involves questions of natural justice, is it essential for the second and third respondents to present any argument at the hearing[13].
- [16]The appellant, while relying upon r 749, also submitted I would take into account the principles which generally apply in cases where what is sought is the striking out of a party’s pleading under UCPR r 171 and I was referred to Dey v Victorian Railways Commissioners (1948) 78 CLR 62 and General Steel Industries Inc v Commissioner of Railways (NSW) 112 CLR 125. While some overlapping of the principles to be applied in applications under rr 171, and 749 is conceivable, the issue here is simpler than those which ordinarily arise in an application to strike out pleadings. The question here is whether or not the second and third respondents are proper parties to the appeal, not whether the Notice of Appeal involves claims for relief against them which have no reasonable basis, or are otherwise objectionable. That conclusion is strengthened by the Notice itself which seeks primary relief, and costs against the owner/first respondent (paras 1-4)[14] and, so far as the second and third respondents are concerned, pleads for nothing more than the alternative, ancillary relief set out in the passage recited in para [3] above. The second and third respondents have not sought to have any part of the grounds of appeal or the relief sought by the appellant struck out or amended.
- [17]Otherwise, that relief can certainly be granted in their absence. I am satisfied the application by the second and third respondents ought to be upheld, and will otherwise adjourn the matter so the parties may make submissions about costs.
Footnotes
[1] Since the Adjudicator’s decision was handed down on 11 October 2002 the Act has been amended (4 March 2003) but the only relevant change, for the purposes of this appeal, is to the numbering of various sections. The post-amendment numbering has been used throughout.
[2] R v Small Claims Tribunal; ex parte Escor (1979) VR 635 at 636
[3] R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36; R v Small Claims Tribunal; ex parte Escor (supra); R v Registrar and Referees of the Small Claims Tribunal and Roberts; ex parte Consolidated Rutile Limited (1986) 2 Qd R 282 at 285; R v Massingham; ex parte Majeau Carrying Co (1985) 1 QD R 349 at 353
[4] Uniform Civil Procedure Rules, r 566; Form 54, and Judicial Review Act (1991), s 53 (where the Minister is specifically referred to as a proper respondent in cases where a decision of the Governor-in-Council is questioned); and, s 25(a)
[5] Westlake Villas Body Corporate v Meek & Ors, D 2138/98, McGill SC DCJ; Oceania on Broadbeach v Searle (2003) QDC 11, per Robin QC DCJ
[6] R v Small Claims Tribunal; ex parte Escor (No 2) (1979) VR 635 at 636
[7] R v Registrar and Referees of Small Claims (1986) 2 Qd R 282 at 285-286
[8] R v Nottingham Quarter Sessions; ex parte Harlow (1952) 2 QB 601; Ealing Corporation v Jones (1959) 1 QB 384
[9] T p 9, ll 45-55
[10] S 237
[11] Campbell “Appearances of Courts and Tribunals as Respondents to Applications for Judicial Review” (1982) ALJ 293 at 294 note 11; R v Nottingham Quarter Sessions; ex parte Harlow (1952) QB 601;R v London Quarter Sessions; ex parte Westminster Corporation (1951) 2 KB 508; R v Dorset Quarter Sessions; ex parte Weymouth Corporation (1962) QB 230; Ealing Corporation v Jones (1959) 1 QB 384
[12] S 305(2)
[13] R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
[14] Notice of Appeal filed 20 December 2002