Chancellor Park Retirement Village Pty Ltd v Squire
[2004] QDC 172
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- Chancellor Park Retirement Village Pty Ltd v Squire[2004] QDC 172
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Chancellor Park Retirement Village Pty Ltd v Squire[2004] QDC 172
Chancellor Park Retirement Village Pty Ltd v Squire[2004] QDC 172
DISTRICT COURT | No BD1579 of 2004 |
CIVIL JURISDICTION
JUDGE McGILL SC
CHANCELLOR PARK RETIREMENT VILLAGE PTY LTD | Applicant |
and
RICHARD J SQUIRE | Respondent |
BRISBANE
DATE 12/05/2004
JUDGMENT
HIS HONOUR: This is an application for leave to appeal from a decision of the Commercial and Consumer Tribunal. The provision for appeal to this Court is contained in section 100 of the Commercial and Consumer Tribunal Act 2003. The proceedings between the parties started actually in the Retirement Villages Tribunal - under the Retirement Villages Act 1999. But before it was concluded, that Tribunal was abolished by the 2003 Act, and proceedings pending in the Retirement Villages Tribunal became proceedings pending in the Commercial and Consumer Tribunal.
However, that Tribunal ultimately decided that the particular proceeding was one which, within the terms of the Retirement Villages Act, was not properly brought. That is, that it was a proceeding in which the applicant was seeking relief which the Tribunal did not have jurisdiction to grant. Or perhaps, more precisely, the applicant had not validly invoked the jurisdiction of the Tribunal. How that came about is explained in the reasons for the Tribunal, the reasons for the decision of the Tribunal, delivered on 16 January 2004. But for my purposes, it is unnecessary to look at how that conclusion was arrived at, because the appellant does not seek to dispute the proposition that the Tribunal correctly found that it lacked jurisdiction to make the order sought in the application, so that the application in the substantive proceeding had to be dismissed.
The Tribunal then invited written submissions in relation to costs. After receiving those written submissions, it decided that the question of cost should be resolved on the basis that the parties bear their own costs of the proceedings. But for practical purposes, that meant that the respondent before the Tribunal - the appellant before me - had to pay its own legal costs, since it had incurred legal costs. The applicant before the Tribunal - the respondent before me - was self-represented.
The appellant seeks to challenge that decision on the basis that it involved an error of law in the exercise of the discretion given by the Tribunal under section 71 of the 2003 Act, and that, in addition, there was a failure to comply with section 142 of the 2003 Act. The latter section is concerned with the situation where there has been an offer to settle the matters in dispute between the parties to a proceeding, and 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. Where the requirements of the section are satisfied, the Tribunal must award the party who made the offer reasonable costs incurred by that party in conducting the proceeding after the offer was made. Unlike the provision in the Uniform Civil Procedure Rules, dealing with offers to settle, there appears to be no residual discretion in the Tribunal. In circumstances where the section applies, it is mandatory.
It occurs to me that section 142 may not have applied in the present case anyway because it contemplates a decision of the Tribunal on the matters in dispute, which one would think would be the substantive matters in dispute in the proceedings, which is different from a situation where the Tribunal decides it has no jurisdiction to give relief in respect of the application or to entertain the application which has been filed. But it is unnecessary to consider that question - upon which I have probably not heard full argument - because it is clear that section 142(1) (a) requires that there be a party to a proceeding before the section can operate. Section 71, giving a general discretion in relation to costs, also provides that the Tribunal may award the costs it considers appropriate “in a proceeding”.
Section 71 goes on to deal with the power to award costs but always by reference to “a proceeding”. There is nothing in the section to suggest that it extends to a situation where there is not a proceeding before the Tribunal. The term “proceeding” is defined in schedule 2 as meaning “a proceeding (a) started by application to the Tribunal; or (b) removed to the Tribunal by order of a Court under Section 40.” The latter, obviously, does not apply in this case.
Relevantly, then, I am concerned with the provision in paragraph (a). In fact, this proceeding was not started by an application to the Tribunal because it was started by an application to the Retirement Villages Tribunal, but that is not the point. It is to proceed as an application, as a proceeding under this Act. In any case, the question of the scope of the power in Section 71 and Section 142 depends on the construction of the Act. So that, one is really concerned with a hypothetical proceeding, or proceedings in general, rather than this particular proceeding.
The definition refers to a proceeding started by application to the Tribunal. That takes me to Section 31 which deals with how to start proceedings. Subsection (1) says:
“An entity (“the applicant”) may start a proceeding for a matter for which the Tribunal has jurisdiction by -
- (a)filing an application in the approved form in the Tribunal; and
- (b)paying the fee prescribed under regulation, in the way prescribed under the regulation.”
The subsection, therefore, indicates two tilings: it indicates what is required to start a proceeding, but it also indicates, it seems to me, in substance, that a proceeding may only be started “for a matter for which the Tribunal has jurisdiction.” The position, therefore, is that if “the Tribunal does not have jurisdiction to entertain the relief sought in an application, then the applicant has not started a proceeding merely by filing the application, because an applicant can start a proceeding only by filing an application for a matter for which the Tribunal has jurisdiction.
That, indeed, is consistent with the general attitude in the case of statutory Courts and Tribunals, that their jurisdiction is only validly invoked by the appropriate steps being taken in respect of matters within their jurisdiction. So that, if those steps are not taken in respect of matters within their jurisdiction, the jurisdiction of the statutory Court or Tribunal has not been validly invoked. The Court or Tribunal must have power to determine whether or not that is the case, even in a case where it turns out that its jurisdiction has not been validly invoked, but once it is determined that that is the situation, it really has no power to do anything else.
The position, therefore, is that, consistently with that traditional approach, in the situation where the Tribunal does not have jurisdiction, there is no proceeding because one has not been effectively started by filing an application, because the requirements of Section 31(1) have not been satisfied. It follows that Section 71 and Section 142, which only apply in a proceeding, do not give power to order costs in circumstances where the Tribunal does not have jurisdiction. That is consistent with a large number of cases which have held that a power to deal with costs in the case of inferior Courts or Tribunals in matters where the jurisdiction of the Court or Tribunal is not properly invoked is not one to be implied, and so it will not exist unless it is conferred expressly.
I dealt with this matter in some little detail in the matter of Horne v. Frank [2001] QDC and I will not repeat what I said there. Although there are some authorities which suggest that there is or may be an implied power, or perhaps a power which may be readily implied from general words in statutes, the general weight of the authorities is that statutory Courts or Tribunals do not have any such implied power, and it seems to me that, in terms of the approach to statutory construction, the general weight of authority is that such powers are not readily implied. There are certainly numerous statues where such powers have been conferred expressly and, indeed, not all that long ago the Queensland legislature expressly amended the legislation for both the District Court and the Magistrates Court expressly to confer powers to award costs in circumstances where a matter was dismissed for want of jurisdiction on both this Court and the Magistrates Court.
I accept that ultimately when dealing with a statutory Court it does come down to a question of interpretation. But bearing in mind the general approach to such issues, and bearing in mind also the particular terms of this particular Act, analysed in the way I have analysed it, it seems to me that the Act on its true construction does not give a power to the Tribunal to deal with costs in circumstances where the jurisdiction of the Tribunal is not properly invoked. It might be said that there are good reasons why a Tribunal or indeed a Court should have such power, the reasons, no doubt, justifying the legislature in conferring such power on this Court and the Magistrates Court, but that is a justification for a legislative response; it is not, in my view, justification for the Court stretching the words of the statute.
I have been referred to two New South Wales cases which, it seems to me, are really examples of cases where a different approach has been adopted. In Parramatta City Council v. Gestetner Pty Ltd (1979) 1 NSWLR 160 Rath J, dealing with the Land and Valuation Court in New South Wales, accepted that there was no jurisdiction in that Court to award costs unless the statute had conferred jurisdiction, but took the view that, bearing in mind the status of the Court and its functions, a provision giving the Court power to make orders as to costs of or incidental to any proceeding before the Court should be construed so as to include as a proceeding a matter in which the Court ultimately concluded it did not have jurisdiction.
It was obviously, expressly, influenced by considerations of the status of the Court and his Honour appears to have distinguished cases dealing with the County and District Courts on that basis, bearing in mind that there have been a number of cases justifying a conclusion that the power will be fairly readily assumed in the case of Superior Courts, as I mentioned in Horne v. Frank. I think that that was regarded as a significant factor in his Honour's reasons, and is a feature distinguishing the circumstances in that case from the circumstances here.
I was also referred to the decision of Vice President Cahill in Coffey v. Scanlan (1992) 26 NSWLR 485, a decision of the New South Wales Industrial Commission where, it seems to me, that the sort of reasoning applied to a Court seen as the equivalent of the Supreme Court in Parramatta City Council v. Gestetner was applied, without very much consideration of the authorities to the contrary, to the Industrial Commission, in a process of reasoning from which I would respectfully differ. I do not find that a persuasive authority to the contrary.
The other case particularly relied on was the decision of Crowe v. Bennett ex parte Crowe [1993] 1 QdR 57 in a passage in the judgment of McPherson JA at page 62. That was a case where there was a particular subsection of the Justices Act which conferred a power to order costs upon an adjournment. The other two members of the Court of Appeal said that that subsection was to be read down, in effect, so that it applied only in circumstances covered by the first subsection of that section, so that, in effect, it was subsidiary to the grant of power in the first subsection and did not give power to award costs in relation to any adjournment of any proceeding.
McPherson JA was not inclined to read the subsection down in that way. I think I should be wary about following an approach to construction of the statute which was rejected by the majority of the Court of Appeal in that case.
The only other matter that I should mention is that some support for the broader approach relied on on behalf of the appellant was sought in Section 9 dealing with the powers of the Tribunal which provides that the Tribunal “may do all things necessary or convenient to be done for exercising its jurisdiction.” I think it follows from the approach in Queensland Fish Board v. Bunning [1979] QdR 301 that that would not carry an implication that there was power to award costs in cases which were not within its jurisdiction. Apart from anything else, ordering costs in relation to a matter not within its jurisdiction is hardly something which needs to be done for exercising its jurisdiction.
In my opinion, therefore, once the Tribunal decided that its jurisdiction had not been properly invoked, it had no power to order costs under the terms of the 2003 Act as it presently stands and, therefore, it had no power to make any order other than the one that it made.
For those reasons, therefore, which differ perhaps somewhat from the reasons adopted by the Tribunal, any appeal from the decision of the Tribunal would be futile and the application for leave to appeal is refused.
...
HIS HONOUR: In those circumstances, I will not be making any order for costs.