March v Metrotek Constructions Pty Ltd
[2011] QDC 376
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- Unreported Judgment
- March v Metrotek Constructions Pty Ltd[2011] QDC 376
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March v Metrotek Constructions Pty Ltd[2011] QDC 376
March v Metrotek Constructions Pty Ltd[2011] QDC 376
DISTRICT COURT OF QUEENSLAND
CITATION: | March v Metrotek Constructions Pty Ltd [2011] QDC 376 |
PARTIES: | RANDALL WAYNE MARCH & KATRINA CLAIRE SPENCER V METROTEK CONSTRUCTIONS PTY LTD |
FILE NO/S: | BD 3832/10 |
DIVISION: |
|
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 24 February 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 February 2011 |
JUDGE: | McGill DCJ |
ORDER: | Application dismissed. |
CATCHWORDS: | INFERIOR TRIBUNALS – Queensland Civil and Administrative Tribunal – whether proceeding in District Court to be transferred to Tribunal – consideration. Queensland Civil and Administrative Tribunal Act 2009 s 53. |
COUNSEL: | N M Cook for the plaintiffs D C Kissane for the defendant |
SOLICITORS: |
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- [1]This is an application for an order under section 53 of the Queensland Civil and Administrative Tribunal Act 2009 to transfer a proceeding which has been commenced in this Court to that Tribunal.
- [2]The respondent/plaintiffs do not dispute that the Tribunal has jurisdiction to hear and determine the matter, and the issue is simply whether the Court should exercise its discretion to make an order for transfer.
- [3]I should say that the claim is one for liquidated damages and other damages payable under a building contract between the plaintiffs and the defendant. The total amount claimed is an amount of over $400,000. The claim was filed after the increase in the jurisdiction of the District Court. It is not disputed that it was a domestic building contract, and that the Tribunal has jurisdiction notwithstanding the amount of the claim.
- [4]At the present time there is no defence on the file, although it is, I suppose, understandable that the defendant would want to apply promptly for an order transferring the matter to the Tribunal because one could understand that otherwise it would be met with an argument that the matter had made some progress in this Court, and that was the reason why it should not be transferred.
- [5]It does seem to me that in principle there should be either a defence filed, or at least a draft defence put in evidence before the Court, so that the Court can properly identify the nature of the dispute between the parties. It may be of some relevance to determine what the nature of the dispute is in deciding whether or not the matter should be transferred to the Tribunal. As it happens, this seems to be an entirely conventional building dispute.
- [6]There is an argument about variations, there is an argument about whether something which was required under the contract had been provided, and there are allegations that there has been certain defective workmanship. There is also an allegation that the plaintiffs are entitled to liquidated damages because of delay in completion. There will be, no doubt, the usual disputes about those matters.
- [7]The defendant prefers the matter to proceed in the Tribunal, and a number of factors were put forward in favour of that course. It was submitted that the Tribunal is a specialised tribunal created for the determination of building disputes. I think in fact it is properly described as a generalist tribunal which has a very wide range of matters which come before it, although it does have, I understand, a Building Dispute List which does provide some specialist adjudication.
- [8]In that respect it is perhaps similar to the District Court, because the District Court now has a Commercial List in which building matters are expressly included, so that such matters can be dealt with under that list in this Court. It was submitted that the entirety of the claim falls within the jurisdiction of the Tribunal, and the same applies to this Court.
- [9]It was submitted that the contract which is the subject of the dispute contemplates the hearing of the dispute by the Tribunal, or more precisely by the Commercial and Consumer Tribunal, which was a predecessor of the current Tribunal. That is a matter of some significance, but it is not a situation other where the parties specifically contracted for any disputes to be determined in that Tribunal, which might give rise to additional considerations.
- [10]It was suggested that the Tribunal offers procedural advantages particularly because of the emphasis on alternative dispute resolution, and there is a mechanism for the Tribunal to have compulsory conferences presided over by a member of the Tribunal, not the member who will be conducting the trial, in the course of which mediation is encouraged.
- [11]It was submitted that on the other hand, although this Court can make an order for mediation, that would take place before some outside person who would charge for doing so, and that the Court would ordinarily only order mediation in circumstances where both parties were interested in participating in it, or at least willing to put up with it.
- [12]There are exceptions to that situation, but it is probably fair to say that if one party was determined not to settle, a Court would be reluctant to order mediation, whereas the conferences before the Tribunal are compulsory. I am not at all sure that in that particular situation, if one party is determined not to settle, a compulsory conference is really going to achieve anything useful anyway, so it does not particularly strike me that that is an advantage for the Tribunal.
- [13]My experience is that everybody is well aware of the virtues of alternative dispute resolution, and that that works most successfully when parties undertake it on their own initiative. The important consideration, in my view, in achieving expeditious determination of these matters is to be able to fix an early trial date, and if the parties know that the matter is coming on for trial quickly, that encourages them to engage in early alternative dispute resolution before they are put to the trouble and expense of preparing for trial.
- [14]It was submitted that QCAT is a less formal jurisdiction, and I cannot argue with that, but whether it would suit parties to be able to conduct the proceedings without having to have recourse to lawyers is a matter on which the parties differ. The plaintiffs are, I gather, a dentist and his wife, and they want to have lawyers, and feel that they will be prejudiced if they are not able to be legally represented in the proceedings, and one can understand that attitude by such people.
- [15]It appears that they do not have a right to have lawyers if the matter goes to the Tribunal, whereas in this Court parties are entitled, at their choice, either to appear through legal representatives, or to appear in person, or indeed by leave of the Court, through somebody else, and that is something which is not uncommonly done.
- [16]Associated with that is the consideration that the costs regime in the Tribunal is different whereas in the Court there is a presumption that costs follow the event, and there are particular mechanisms for offers to settle which have costs consequences.
- [17]In the Tribunal the starting point appears to be that each party pays its own costs. That was a choice that the legislature made, no doubt bearing in mind the whole range of matters which were before the Tribunal, and no doubt also bearing in mind the fact that some people are better able to afford lawyers than others, and that some people may well be prejudiced by being exposed to the risk of substantial legal costs if they were unsuccessful.
- [18]However, it seems to me that the costs regime in this Court is sufficiently flexible to prevent it from operating unjustly, but that a mechanism under which, on the face of it, if parties incur legal costs, they are entitled to recover them if they are successful, is one which is consistent with basic principles of justice. Insofar as there is a difference then, perhaps understandably, I think the costs regime in the District Court is superior.
- [19]It is, I think, fair to say that the application has been brought quickly, indeed in my view perhaps slightly too quickly, and there might have been a problem if it had been delayed, but on the whole I do not think that the fact that it has been brought quickly provides a particularly compelling reason for a transfer.
- [20]In my view the legislation permits the plaintiffs to make a choice, and they have, for a legitimate reason, chosen to bring the proceeding in the District Court. That was so that they have a right to have legal representation, and they are not dependent upon the exercise of a discretion as to whether they could have that legal representation. I think that is a legitimate interest, and the plaintiffs should not be deprived of that right.
- [21]I do not think that any reason has been shown which would outweigh that consideration, and it has not been shown overall that a balance of factors favours an exercise of discretion under section 53 so as to transfer the matter to the Tribunal. So I am not prepared to order that the matter be transferred to the Tribunal.
- [22]The defendant's application is dismissed. I direct that the defendant file and serve a notice of intention to defend and defence by 2nd March 2011. Now, what I would like to know is how the parties feel about my placing the matter on the Commercial List. For that purpose, I list it for mention before me 9.15 on the 3rd March 2011. The costs of today will be each party’s costs in the cause.