Outlook Realty Pty Ltd v President Hall of the Industrial Court of Queensland
[2007] QSC 67
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- Outlook Realty Pty Ltd v President Hall of the Industrial Court of Queensland[2007] QSC 67
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Outlook Realty Pty Ltd v President Hall of the Industrial Court of Queensland[2007] QSC 67
Outlook Realty Pty Ltd v President Hall of the Industrial Court of Queensland[2007] QSC 67
SUPREME COURT OF QUEENSLAND
CITATION: | Outlook Realty Pty Ltd & Anor v President Hall of the Industrial Court of Queensland & Ors [2007] QSC 067 |
PARTIES: | OUTLOOK REALTY PTY LTD [ABN 53 100 260 955] (first applicant) LAWRENCE STEVENS (second applicant) v PRESIDENT HALL OF THE INDUSTRIAL COURT OF QUEENSLAND (first respondent) THE REGISTRAR OF THE INDUSTRIAL COURT OF QUEENSLAND (second respondent) GORDON HILL (third respondent) |
FILE NO: | BS 9606 of 2006 |
DIVISION: | Trial Division |
PROCEEDING: | Hearing |
DELIVERED ON: | 30 March 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 March 2007 |
JUDGE: | Mackenzie J |
ORDER: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – where applicant sought judicial review of a decision by the President of the Industrial Court of Queensland to dismiss an appeal from the Industrial Relations Commission – where applicant now wishes to abandon application – where third respondent applies for the application to be dismissed under s 48 of the Judicial Review Act 1991 (Qld) – whether the decision of the President of the Industrial Court of Queensland is a decision to which the Judicial Review Act applies – whether a reasonable basis for the action is disclosed – whether indemnity costs should be awarded Industrial Relations Act 1999 (Qld) s 278, s 320, s 329, s 341, s 349 Industrial Relations (Tribunals) Rules 2000 (Qld) r 13 Judicial Review Act 1991 (Qld) s 18, s 20, s 43, s 48 Uniform Civil Procedure Rules 1999 (Qld) s 471, s 476 Carey v President of the Industrial Court of Queensland [2004] 2 Qd R 359, cited Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, cited Re SCA Properties Pty Ltd [1999] QSC 180, cited |
COUNSEL: | No appearance for the applicant No appearance for the first and second respondent Mr K Watson for the third respondent |
SOLICITORS: | No appearance for the applicant No appearance for the first and second respondent Carter Newell, Lawyers for the third respondent |
- MACKENZIE J: An application under s 48 of the Judicial Review Act 1991 (Qld) was filed on 30 November 2005 by the third respondent, Mr Hill, to dismiss an application for review/statutory order of the review filed by the first applicant, Outlook Realty Pty Ltd and the second applicant Lawrence Stevens. The last-mentioned application joins the President of the Industrial Court and the Industrial Registrar as the first and second respondents and Gordon Hill as the third respondent. Section 349 of the Industrial Relations Act 1999 (Qld), which remains operative by virtue of s 18 of the Judicial Review Act, is a privative clause which limits the capacity of this court to review decisions of the Industrial Court to cases of jurisdictional error in determining an appeal to it (Carey v President of the Industrial Court of Queensland [2004] 2 Qd R 359, 366).
- One curiosity is that the original application to appeal to the Industrial Court is in the following form:
“Lawrence Stevens
AND
Outlook Realty Pty Ltd
(No. B/2005/1245).
AND Gordon Hill represented by
the Property Sales of Queensland,
(sic) Union of Employees
AND
Outlook Realty Pty Ltd
(No. B/2005/1188)
….
TAKE NOTICE that I,
IAN BRUCE BELL
….
Being authorised to represent LAWRENCE STEVENS
APPEAL to the Court from ALL of the decision of the Commission given on 5th of May 2006 in application number 1128 of 2005 (sic) AND in application number 1245 of 2005”
The decision sought was that Mr Stevens and Mr Hill share in the commission due to agents of Outlook Realty Pty Ltd from the property sale in equal proportions.
- If the original notice of appeal is read literally, Mr Bell was purporting to institute an appeal by Mr Stevens in the claim made on Mr Hill’s behalf against Outlook Realty. It emerged in argument before President Hall that Mr Bell was told something in the Industrial Court Registry, the precise content of which Mr Bell could not recall, which resulted in Mr Bell striking out the reference to Mr Hill’s proceedings against Outlook Realty and filing an amended notice of appeal on 3 July 2006 in respect of Mr Stevens’ claim against Outlook Realty.
- According to Mr Bell’s response to President Hall’s inquiry whether the two matters had been formally joined, which had led to the discussion commencing, he had included the Hill matter on the basis that it seemed appropriate “that both applications that were heard simultaneously should be appealed simultaneously” and “what one loses, the other gains.” That last proposition overlooks the fact that, while Commissioner Bechley’s order stood, since there was no appeal by Outlook Realty, Mr Hill’s entitlement would remain.
- To understand what the matter is about, it is desirable to summarise the history of the underlying proceedings. Mr Stevens was employed under contract by Outlook Realty. So was Mr Hill. On 27 October 2005 the Property Sales Association of Queensland, Union of Employees filed, on behalf of Mr Hill, in the Queensland Industrial Relations Commission, an application pursuant to s 278 of the Industrial Relations Act, for an order for payment of unpaid wages/sales commission in the sum of $37,125 allegedly owing by Outlook Realty to Mr Hill.
- The claim had its foundation in an internal arrangement between Outlook Realty and its salespersons that if a salesperson employed by Outlook Realty gained knowledge of a property that might be for sale, such information was to be shared with other employees. For the purposes of the arrangement the property was then described as being “listed”. If one of the salespersons sold the property, commission on the sale was to be shared between Outlook Realty, which took 50% of the commission, the person who had “listed” the property, who took 25% and the person who effected the sale, who took the remaining 25%. If the person who “listed” the property also effected the sale, that person was entitled to 50%, being the accumulated amounts for the listing and the sale.
- There was no specific arrangement that dealt with the situation where two sales persons had played a part in “listing” the property. It seems to have been taken that each would have a proportional entitlement to that part of the commission for “listing”. In the end, the 25% for the “listing” in this matter was ordered to be shared equally between Mr Stevens and Mr Hill.
- So far as the transaction which gave rise to the proceedings is concerned, a real estate agency at Hervey Bay, Newman Realty, of which Mr Newman was principal, had an exclusive agency over a property which was ultimately sold by Mr Hill. Outlook Realty entered into a conjunction agreement with Newman Realty on the basis of commission being equally shared if the property was sold through Outlook Realty. Mr Stevens became involved in the proceedings when on 21 December 2005 he made a claim for 25% of the commission, alleging he was a person who “listed” the property.
- After directions hearings, in which the commonsense approach of hearing the claims together was adopted, Commissioner Bechly found that both Mr Stevens and Mr Hill had an equal entitlement in respect of listing the property. He was acting in a jurisdiction where he was not bound by technicalities, legal forms or rules of evidence (s 320(2)), and was entitled to hear and determine industrial causes in the way that appeared to be best suited for the purpose (s 329(c)). He gave considered reasons for coming to his conclusion which included findings of fact and credit after hearing evidence from witnesses, including Mr Stevens and Mr Hill. He found that Mr Hill was entitled to the 25% entitlement for selling the property: that was not contentious.
- It should be mentioned that there was a dispute between Newman Realty and Outlook Realty concerning Outlook Realty’s entitlement to half the commission pursuant to the alleged conjunction arrangement. Litigation has been commenced to resolve that issue in another court. Despite this dispute, Newman Realty has paid $74,250 “gratuitously” to Outlook Realty. The proceedings below were conducted on the basis that it was entitlement to this sum that was in issue. As mentioned above, an appeal to the Industrial Court of Queensland was instituted on 26 May 2006 against Commissioner Bechly’s decision. The amended notice of appeal was filed on 3 July 2006. The parties are, according to the document, Mr Stevens and Outlook Realty.
- On 9 August 2006, President Hall dismissed the appeal. On 23 March 2007 both Outlook Realty and Mr Stevens communicated with the Registrar and the solicitors for the third respondent seeking to “withdraw the … application”. UCPR 476 does not apply because of the limitation in r 471 to proceedings started by claim. Since the applicants did not appear, the proceedings could have been dismissed under the inherent jurisdiction. Apart from that, s 48 of the Judicial Review Act permits dismissal of an application made under s 20 or s 43 on an application by the respondent on a variety of grounds including that no reasonable basis for the application is disclosed. It is necessary to analyse the nature of the arguments persisted in until the Friday before the Monday hearing date in connection with the third respondent’s application for indemnity costs.
- The fourth to sixth paragraphs of President Hall’s reasons refer to Commissioner Bechly’s findings of fact against Mr Stevens and to the absence of any error of law or excess or want of jurisdiction in relation to them enlivening the Industrial Court’s jurisdiction (s 341(1)).
- In his sixth paragraph, President Hall dismissed a complaint that Commissioner Bechly erred in finding that Mr Stevens lacked authority to enter into the arrangement on behalf of Outlook Realty. He said that there was no suggestion that the transaction in which Mr Stevens and Mr Newman had engaged had been left out of account. He said that the proposition developed by Commissioner Bechly was the simple proposition that in fact Mr Stevens did not negotiate a conjunction agreement with Mr Newman. He went on to say that in any event, the critical finding was the finding that Mr Stevens had failed to list the parcel of land.
- That conclusion is plainly correct. It involves a misreading of Commissioner Bechly’s reasons to suggest that lack of authority was a critical finding. What Commissioner Bechly was addressing in that passage of his reasons was evidence of an arrangement entered into by Mr Stevens and a property developer to pay him a spotter’s fee. This had been used by Mr Stevens in an attempt to support his claim that he had listed the property. Commissioner Bechly was plainly not impressed by the evidence of the developer about his entitlement under that agreement, which was only reduced to writing after Mr Hill had entered into a conjunction agreement, and without the knowledge of the principal of Outlook Realty. The conclusion that the matter was not critical to the decision is highlighted by the fact that in his reasons, Commissioner Bechly said that he raised those matters only to ensure that there was no uncertainty about payments to be made by Outlook Realty to the respective applicants Mr Stevens and Mr Hill.
- President Hall also dismissed an argument based on admixture and commingling of personal property advanced at the hearing of the appeal for the first time, to suggest that if Commissioner Bechly was unable to find positively that only one or other of Mr Stevens or Mr Hill was the effective cause of the listing the whole of the commission for listing and sale should have been aggregated and divided equally. Essentially, the argument was that, although Mr Stevens made no claim to have sold the land, the two 25% portions of the commission should be aggregated and equally divided if the Commissioner could not identify one of the two men as the person who listed it. That argument is without foundation.
- President Hall also refused an application to lead evidence concerning the possibility of inadvertent shredding of documents that may have been (but no higher than that) relevant to Mr Stevens claim that he listed the property. Commissioner Hall took the view that that evidence might have been available, by exercise of due diligence, at the hearing before Commissioner Bechly and that, in any event, the content of the evidence showed no basis for the assertion that a different outcome would have been reasonably certain. There is no error, jurisdictional or otherwise, involved in President Hall adopting that conclusion.
- The remaining issue was that there was an error on the part of President Hall in relation to the issue of joinder, in that he was not at liberty to find that Mr Hill was improperly joined as a party to the appeal. I am satisfied that there is no jurisdictional error. The essence of the argument is that there was an issue estoppel against so finding by reason of the way the proceedings were heard together before Commissioner Bechly. No formal order was made for joinder: no such application was made. Neither was made a party to the other’s application. The analogy is more with a case where two matters are heard together and the evidence on each is ordered to be admitted in the other. It was not a case where each was proceeding against the other. Each had his own contractual claim against Outlook Realty for an entitlement to moneys in the nature of a share of commission paid to Outlook Realty. Since each of them claimed that the other was not entitled to make out his claim, it was inevitable, as Commissioner Bechly’s approach to the hearing recognised, that, to adjudicate on the nature of Outlook Realty’s liability to each of them, it was necessary to weigh the competing evidence including that of Mr Stevens and Mr Hill to decide each of the individual cases.
- As previously observed, there was no appeal by Outlook Realty against Commissioner Bechly’s orders. The order in each matter remains in force against it unless set aside in some other proceeding. It was not a case where Mr Stevens could challenge an order made in favour of Mr Hill by appealing in Mr Hill’s case. Only Outlook Realty could have undertaken such an appeal, and as it did not, the order stands. To argue that Mr Stevens could not succeed on his own appeal without having Mr Hill’s order set aside is, at least in terms of legal reasoning, illogical. Any practical consequence by way of detriment to Outlook Realty if Mr Stevens were to succeed and two orders made on inconsistent bases were to be operative, would have been due to Outlook Realty’s decision not to appeal against the Commission’s decision in Mr Hill’s case.
- The third respondent’s application under s 48 of the Judicial Review Act must succeed. In the event that that occurred, the third respondent applied for costs on the indemnity basis against the applicants. Such an order is discretionary. The categories in which the discretion may be exercised are not closed. Two of the kinds of cases where indemnity costs might be awarded are where the proceedings are commenced in wilful disregard of known facts or the case is unduly prolonged by groundless contentions (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, 257; Re SCA Properties Pty Ltd (in liq) [1999] QSC 180.)
- Neither applicant appeared at the time appointed for hearing. There is evidence in an affidavit of the third respondent’s solicitor that there was consensus between the parties that the matter would be set down for hearing on 26 March 2007 and that when it was set down for that day, both Outlook Realty and Mr Stevens were advised in a timely way of the hearing date.
- On 23 November 2006, the solicitors for Mr Hill asserted to each of the applicants that the application was misconceived and without any foundation. They put the applicants on notice that they would be seeking costs against them. The matter was then set down for hearing. It was not until 23 March 2007, the Friday before the Monday upon which the matter was to proceed, that advice that the applicants wished to withdraw proceedings was received. The issue of asking for indemnity costs was not explicitly raised until the morning of the trial when a fax foreshadowing such an application was sent to the applicants. No explanation has been advanced for the late decision to seek to withdraw. It is apparent that, for at least part of the time, they had a person who had been appointed as agent acting on their behalf in the proceedings. It is unclear whether they ever had a solicitor acting for them, although from the affidavit of the third respondent’s solicitor it is apparent that it must have been foreshadowed that one would be appearing on their behalf.
- The way the matter was conducted is unsatisfactory. It is a matter of concern if a matter is pursued on grounds that are intrinsically unlikely to succeed and then not proceeded with especially when the decision not to proceed occurs at a very late stage. Having said that, it is also a serious thing to impose indemnity costs on parties where there is not a great deal of evidence that the course that the matter followed was due to a high degree of personal dereliction on their own part. It was not submitted that any other person should bear costs. In the circumstances, each applicant is ordered to pay the third respondent’s costs of and incidental to the application to dismiss the application for judicial review and of the application for judicial review itself.
- The first and second respondents properly took no part in the proceedings other than to indicate that they would abide the order of the court. For the reasons given, the application for a prerogative order must fail against the first respondent. It should be added that, in so far as the application was described as an application for a statutory order of review, there was no decision of an administrative character. The decision made by President Hall was a judicial decision. The application against him fails and will therefore be dismissed.
- With regard to the Industrial Registrar, the written submissions of the applicants (which are focused upon the application for summary dismissal) do not disclose the basis upon which the Industrial Registrar was joined as a party. It may be presumed that it relates to the refusal to accept the appeal to the Industrial Court in its original form. It is unnecessary to determine whether the decision involved a decision of an administrative character or whether the decision may be characterised as judicial since there is a short answer to the case against the Industrial Registrar on the basis that is presumed to be the reason for his inclusion in the judicial review proceedings.
- Rule 13(2) of the Industrial Relations (Tribunals) Rules 2000 (Qld) permits the Registrar to refuse to file a document which does not comply with the Act. In the proceedings between Mr Hill and Outlook Realty, Mr Stevens had no standing to appeal to the Industrial Court. Section 341 of the Industrial Relations Act 1999 requires that a party to an appeal be a “person dissatisfied” which is defined in Schedule 5. He was not a “person dissatisfied” since he was neither a party to the proceedings or, for reasons explained previously, a party bound by the decision made in Mr Hill’s case. The Registrar was therefore correct in refusing to accept the application in the form in which it was originally presented. The application for judicial review against him must therefore be dismissed.
Orders
- The orders are as follows:
- The application for review and application for statutory order of review in so far as it relates to the first respondent is dismissed.
- The application for review and application for statutory order of review in so far as it relates to the second respondent is dismissed.
- The first and second respondents have liberty to apply in writing delivered to my Associate and served upon the applicants within 14 days with respect to costs.
- The application for review and application for statutory order of review in so far as it relates to the third respondent is dismissed.
- The first and second applicants are ordered to pay the third respondent’s costs of the application under s 48 of the Judicial Review Act and of the application for review and the application for statutory order of review on the standard basis.