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- Unreported Judgment
The Proprietors - Washingtonia GTP 1703 v Deane and Lim QMC 14
MAGISTRATES COURTS OF QUEENSLAND
Washingtonia GTP v Deane and Lim  QMC 14
The Proprietors – Washingtonia GTP 1703
(Appellant in both matters)
Luke Adam Deane
(Respondent in SM4498/19)
(Respondent in SM4478/19)
SM4478/19 and SM4498/19
Magistrate sitting as a tribunal under the Building Units and Group Titles Act 1980
Body Corporate Referee
18 October 2019
13 September 2019
Application filed 2 August 2019 is dismissed.
Further directions to be made.
Jurisdiction of Tribunal under BUGTA – Contempt – Failure to comply with Directions
Building Units and Group Titles Act 1980 (BUGTA) s.96, 97, 100, 101, 103, 106
Body Corporate and Community Management Act 1997 (BCCM)
Uniform Civil Procedure Rules 1999 rr.3, 5
Aon Risk Services Australia v Australian National University (2009) 258 ALR 14; (2009) 83 ALJR 951;  HCA 27
B. Elliot (sol) Grace Lawyers for the Applicant
M. Esera (sol) HWL Ebsworth Lawyers for the Respondents
- These two matters centres on the proper nature of an appeal bought from the decision of a Referee under BUGTA to a Magistrate sitting as a Tribunal under that Act.
- I am asked to dismiss the appeal for non-compliance with a Directions Orders in an Application filed by the Respondents. During submissions this expanded to an application for the Appellant to be dealt with for contempt and costs.
- As I will set out, I have no power as a tribunal to punish for contempt in the kind complained of (whether or not it amounted to a contempt) nor to make costs orders. The UCPR does not apply to proceedings in this Tribunal.
- Given there are a number of significant pieces of litigation before the Tribunal in Southport at the moment, I will briefly explore the precise nature of the appeal and the powers of the Tribunal. This appears widely misunderstood.
- The BUGTA was replaced by the BCCM. However a number of Body Corporates (BC) were continued under BUGTA. In the case of a BC governed by either act the first point of call for a ‘dispute’ is a public servant engaged by the Commissioner. These officers are often legally trained and deal with an astounding amount of complex applications. As these disputes involves people’s home and their rights and responsibilities, they are often bitterly fought. In my experience the Commissioners staff ably fulfil their statutory function as primary decisions makers in ‘disputes’.
- An appeal under the BCCMA lies to QCATA. An appeal under the BUGTA lies to a Tribunal under that act. And appeal from either of those tribunals is to the Court of Appeal on errors of law only.
- I was appointed as a Magistrate to sit at Southport. Section 96 provides that by virtue of that appointment, I constitute a Tribunal under BUGTA. It does not confer jurisdiction on the Magistrates Court but on myself personally. This is made abundantly clear by the fact that subsection 2 provides that a retiring magistrate who is ‘part heard’ in such an appeal, continues to be ‘a tribunal’ and must continue to hear it unless incapacitated.
- Section 106 sets out the mechanics of the appeal process. The referee takes the notice of appeal and all their records relating to the order and forwards it to the nearest tribunal to the parcel of land in question. Many BUGTA parcels still exist on the Gold Coast and many such appeals end up in the Southport Registry.
- Ten Magistrates are presently appointed by the Governor in Council or the Chief Magistrate to constitute a Magistrates Court at Southport. As a matter of administrative necessity there is a co-ordinating magistrate who allocates who hears which matters. This is done on a rotating roster. She has continued the practice of BUGTA appeals being placed in the Civil Applications list. Conventionally, they are mentioned and directions given. Then when ready, they are set for a hearing.
- Magistrates when sitting in the Magistrates Court, hear matters with the assistance of registry staff who manage the day to day physical matters in relation to hearings. BUGTA appeals are quite large, in physical size and in complexity.
- As a matter of familiarity and convenience, BUGTA matters are allocated a file number by the Registry for that purpose. The notices under the Act are sent out by the Registry staff. Mentions and hearings take place in Magistrates Courts courtrooms before a Magistrate. The parties appearing are often represented by lawyers. The proceedings have the look and feel of being conducted as a Magistrates Court matter. They are not.
- On 16 May 2019, Magistrate Dowse was assigned civil chamber matters. In the course of that, the Registry took to her the files in these appeals. She heard the parties and made directions orders. Her handwriting and signature are clearly on the files. The Directions Order names the maker as Magistrate O'Callaghan however nothing turns on this. Magistrate White had made the first directions order.
- As is commonly the case, the draft directions order is based on Magistrates Courts forms and formats.
- It is also clear that Magistrate Dowse was presented with a draft order which contained directions that required the BC to have a meeting and pass certain motions. There is a complaint by the Respondents about the way this was done. The tribunal has powers under s.98 which reads ‘An order made by a tribunal may include such ancillary or consequential provisions as the tribunal thinks fit.’ The Appellant appears to have complied with the express wording of Order 4. In any event, any complaint about the holding of a meeting is really a separate dispute. Nothing turns on this however.
- There is no ability to make an ‘application’ or indeed to file affidavits in support. It is up to the tribunal how it will proceed under s.97(2). The only rights a party has is to attend at a ‘hearing’ and to request a summons.
- On 2 August 2019, the Respondents filed applications, again in the conventional UCPR format for civil matters in the Magistrates Court, seeking those Directions be vacated and that the appeal be dismissed pursuant to s.98(3) BUGTA. Affidavits in support were filed.
- There is no provision under BUGTA for parties to proactively ‘file’ applications or materials and the filing of them is a nullity unless the Tribunal decides to accept the material as relevant to the appeal.
- This appeal, being a creature of statute, is bound to be conducted in the way contemplated by the Act. It specifically did not provide for an appeal to the Magistrates Court but to a Magistrate sitting as a tribunal. As it is not the Court hearing the appeal, r.3 UCPR does not apply and the UCPR does not apply.
- The ‘hearing’ is required by s.106(7) BUGTA. It requires that the tribunal is to complete the notices prepared by the referee and send them to the interested parties with the place at which the tribunal will sit and ‘a time and day for the determination of the appeal to which the documents relate’. This was done in this case by the Registrar (or their staff) who listed it for ‘mention’.
- Nothing might turn on this except for section 101.
- Section 101(2) provides that ‘The hearing of an appeal shall at all times during its continuance be conducted by the same tribunal.’. Subsection (2) goes on ‘if a hearing is interrupted before an order is made therein by the death, incapacity or removal of the stipendiary magistrate or acting stipendiary magistrate constituting the tribunal and the appellant desires to have the appeal determined the appeal shall be heard de novo by a tribunal constituted at the same place by another stipendiary magistrate or acting stipendiary magistrate.’
- It is clear however that these matter never having been set for a ‘hearing’ the appeal is still in an ‘interlocutory’ stage. At each ‘mention’ the actual ‘hearing’ is adjourned under s.100 for another day as ‘A tribunal may from time to time adjourn the hearing of an appeal to such times and places and for such purposes as the tribunal considers necessary.’
- An interlocutory stage is not contemplated by s.106 which simply sets out that the Tribunal will give notice of ‘the time and day for the determination of the appeal to which the documents relate’. The documents are the notice of appeal and the referee’s file. There is no presumption that there will be mentions or that any additional material will be placed before the Tribunal. Section 107(1)(a) makes this a matter for the Tribunal’.
- Common practice with appearances before the Tribunal is for the parties to wish to file amended grounds of appeal, appeal books, outlines and further evidence. BUGTA does not contemplate this. It is a rehearing on the evidence with the need to show error. Appellants and respondents should concentrate on the decision of the referee and not on having a second trial.
- In Allesch v Maunz (2000) 203 CLR 172, Gaudron, McHugh, Gummow and Hayden JJ said, at 180 –181 :
“For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.”
- It follows that I am of the view that the nature of the appeal is by way of rehearing on the evidence and that error must be shown before the Tribunal can be asked to remake the decision. As Fraser JA summarised in Appellate advocacy revisited, a CPD program dated 26 April 2012:
Therefore, it is has been said that it is not good enough to “… invite the court to survey for itself, afresh, all the evidence on particular points and arrive for itself at particular conclusions about them, without essaying the necessary task of positively demonstrating that the trial judge was wrong”;9 the appeal court does not “sit, as it were, as a second trial court and consider, as if presented for the first time, the arguments advanced by counsel for the [appellant]”.
9 Williams v Minister Aboriginal Land Rights Act 1983  NSWCA 255 per Heydon JA (with whom Spigelman CJ and Sheller JA agreed) at ; (2000) Aust Torts Reports 81-578, at 64,148.
10 Cadwallader v Bajco Pty Ltd  NSWCA 328 per Heydon JA (Santow JA and Gzell J concurring) at .
- There is no power not to hold a hearing. One is required if the parties appear at it and therefore there is no power to dismiss an appeal without having one, however the parties behave.
97 TRIBUNAL MAY INVESTIGATE AS APPROPRIATE
- (1)Before making an order under this part a tribunal shall make a thorough investigation without regard to legal forms or solemnities.
- (2)A tribunal is not bound to apply the rules of evidence and, after informing itself in such manner as the tribunal thinks fit, may make an order under this part with or without any hearing and, where a hearing is held, whether or not it is conducted formally.
- (3)Notwithstanding subsection (2), a tribunal shall conduct a hearing where any person entitled or required to appear before the tribunal on the hearing of the application or appeal so appears.
- I must dismiss this application because:
- Applications cannot be made as the UCPR does not apply.
- The Tribunal has no power to award costs which were sought in the application.
- The Tribunal has no power to dismiss an action for contempt. Its powers are limited to contempt ‘in the face of the tribunal’ under s.105 which picks up contempt in the face of the court under s.40 Justices Act 1886 but not s.50 Magistrates Court Act.
- The Tribunal is bound by the s. 97(3) to ‘conduct a hearing where any person entitled or required to appear before the tribunal on the hearing of the application or appeal so appears’ which can be adjourned under s.100.
- While the Appellant has not complied with the directions order, I indicate that in the circumstances, even if the UCPR governed these proceedings, their conduct would fall well short of that depriving them of the right to have their appeal heard. Rule 5 would require the real issues in dispute to be determined.
- The appropriate order now is only to adjourn the matter for hearing to another day and to invite the parties to file any submissions or cases beforehand.
- This is done for the Tribunals benefit rather than the parties - So it can read the outline ahead of the hearing, commence to appreciate the real issues in dispute and maximise the benefits of the hearing. Of course, since the Act contemplates there will be no hearing unless the parties appear at the date set for one, matters can be heard and determined on the papers. Parties should not expect extensive directions will be given or that additional material asked for as a matter of course. A tribunal will ordinarily require some convincing that the rehearing should not be on the material before the referee.
Magistrate sitting as a Tribunal under BUGTA.
- Published Case Name:
The Proprietors - Washingtonia GTP 1703 v Luke Adam Deane and Swee-gim Lim
- Shortened Case Name:
The Proprietors - Washingtonia GTP 1703 v Deane and Lim
 QMC 14
18 Oct 2019