Durham v Adjudication Registrar (No. 2) [2017] QCAT 322

CITATION: Durham v Adjudication Registrar (No. 2) [2017] QCAT 322 PARTIES: Helen Durham (Applicant) V Adjudication Registrar (Respondent) APPLICATION NUMBER: OCR137-15 MATTER TYPE: Renewal Application HEARING DATE: 31 May 2017 HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 14 September 2017 DELIVERED AT: Brisbane ORDERS MADE: THE TRIBUNAL ORDERS THAT: 1. The application for renewal is dismissed. CATCHWORDS: RENEWAL OF ORDERS – SCOPE OF TRIBUNAL’S POWER TO RENEW ORDERS – where applicant sought renewal of orders – whether order could be interpreted, implemented or enforced – where no material difficulty arose interpreting the order – where the meaning of the order clear to a reasonable person Building and Construction Industry Payments Act (2004) s 120 (repealed) Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 133(2), 133, 134, sch 3 Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284 Edwards-Louis v Jamison [2014] QCAT 183 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 -- 1 of 5 -- 2 Keys v Medical Board of Australia [2012] QCAT 448 Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326 APPEARANCES and REPRESENTATION (if any): APPLICANT/APPELLANT A Crossland of Counsel and H Durham RESPONDENT S Moody of Counsel instructed by J Stroud for the Adjudication Registrar REASONS FOR DECISION [1] The application is for a renewal of a final decision of the tribunal pursuant to s 133(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). [2] The decision in issue, handed down on 28 November 2016, in QCAT No. OCR137-15 is that: MTT2 is confirmed to the extent that it conforms to the terms of s 120 Building and Construction Industry Payments Act 2004 (Qld).1 The legislation [3] Applications for renewal are dealt with in sections 133 and 134 of the QCAT Act, which operate concurrently as a remedy to difficulties in a final decision: 133 Application for renewal (1) This section applies if— (a) it is not possible for the tribunal’s final decision in a proceeding to be complied with; or (b) there are problems with interpreting, implementing or enforcing the tribunal’s final decision in a proceeding. 134 Renewed final decision (1) This section applies if, under section 133, a person applies for a renewal of the tribunal’s final decision in a proceeding. (2) The tribunal may make— (a) the same final decision it made when the proceeding was originally decided; or (b) any other appropriate final decision that it could have made, under this Act or an enabling Act, when the proceeding was originally decided. [4] The applicant does not submit that the decision does not have or cannot be given practical expression or be carried out, but says merely that there are problems interpreting, implementing or enforcing this order. The problems allegedly arise 1 Durham v Adjudication Registrar [2016] QCAT, OCR137-15. -- 2 of 5 -- 3 from the use of the acronym “MTT2”, the use of the word “it”, and the use and nature of the qualifier “to the extent that it conforms to the terms of s 120 Building and Construction Industry Payments Act (Qld)”.2 A further submission is that “the tribunal failed to express its decision in the event that whatever it is that ought to conform with the now repealed s 120 of the BCIP does not”.3 The respondent’s submissions [5] The respondent submits a technical argument, that there are no orders in relation to OCR137-15, therefore there are no orders to review.4 However, the tribunal did issue an order that MTT2 was confirmed to the extent that it conforms to the terms of s 120 Building and Construction Industry Payments Act (2004). This order is in relation to OCR137-15. [6] The oral submissions of the respondent relied on authorities where in some cases an order may by its very nature need to be supplemented to give full effect to it, but what cannot be done under the guise of “working out” an order is vary it.5 The scope of the tribunal’s power to renew orders [7] An attempt to appeal a decision, or to review the reasons for a decision, falls outside the scope of the tribunal’s powers pursuant to s 133 and 134 of the QCAT Act. [8] For example, in Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries (Tasmanian Seafoods),6 the tribunal noted that if an applicant is seeking interpretation of a tribunal’s reasons for a decision, under the guise of seeking a renewal of that decision, the application goes beyond anything contemplated by the expression “renewal” in s 133(2), and should be dismissed.7 [9] It should also be kept firmly in mind that a final decision is distinct from the reasons given for making that decision. A decision of the tribunal is defined in the dictionary of the QCAT Act as “an order made or direction given by the tribunal” or “the tribunal’s final decision in a proceeding”.8 [10] Again in Tasmanian Seafoods, Presiding Member Wulf considered (rightly in my view) that “…these definitions do not suggest that the reasons for decision, rather than the operative orders or directions of the Tribunal, will ordinarily be part of the “final decision.””9 2 Applicant’s submissions 20 February 2017, 3 [10]. 3 Applicant’s submissions 20 February 2017, 3 [10]. 4 Respondent’s submissions 13 March 2017, 6 [20]. 5 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593, 598. 6 [2010] QCAT 326. 7 Ibid [34]. 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) sch 3. 9 Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326, 7 [27]. -- 3 of 5 -- 4 [11] The applicant's submissions attempt to raise questions from the reasons for the decision. In this regard, it is important the applicant understand in an application for renewal the tribunal is limited to the same final decision it originally decided or any other appropriate final decision that it could have made.10 Are there really any material difficulties interpreting, implementing or enforcing the orders? [12] There are limited cases where the tribunal has considered the renewal of orders. The tribunal has renewed orders where circumstances occurring after an order has resulted in there being no prospect or possibility of the order being complied with in its original form.11 In Edwards-Louis v Jamison, Adjudicator Trueman noted that the tribunal should only renew orders if doing so would “give effect to the … apparent intention of the orders that were made”.12 [13] The tribunal does not accept that the objections of the applicant about the wording of the order raise any interpretation, implementation or enforcement problems in need of resolution by renewal. The wording of the final decision is perfectly apt to give effect to the intention of the tribunal. [14] In short, the order in this proceeding means what it says and says what it means. The points of interpretation offered by the applicant are illusory and immaterial. The meaning is clear enough to the reasonable reader. The alleged confusion has no practical effect on the implementation or enforcement of the order. The acronym MTT2 was adequately explained in the reasons for judgment, the use of the word ‘it’ refers to ‘MTT2’, and there is no practical need to be more precise as to the degree of compliance with the Building and Construction Industry Payments Act 2004 (Qld). [15] Some mention must be made about further questions raised by applicant. In particular, whether the $650 fee for ‘mandatory transitionary training’ was lawfully extracted by the registrar, and whether the applicant is entitled to the $4000 the registrar agreed to pay her in the event the registrar’s decision was set aside.13 The first question does not need to be resolved in this proceeding, and the second was not the subject of the original proceeding nor the application for renewal. There are other remedies available to the applicant to enforce any claim to either. [16] Care is needed to ensure against any significant alteration of the order having the practical effect of a reconsideration (and impermissible amendment) of the reasons for the decision. [17] In the absence of the factors listed in s 133(1) of the QCAT Act – that it is not possible to carry out the order, or that there are problems interpreting, implementing or enforcing, the tribunal is entitled to make the same decision it made when the proceeding was first decided. 10 Keys v Medical Board of Australia [2012] QCAT 448, [29]-[31]. 11 Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284, 5 [19]-[20]. 12 [2014] QCAT 183, 3 [12]. 13 Applicant’s submissions 20 February 2017, 4 [11]. -- 4 of 5 -- 5 Orders [18] The application for renewal is dismissed. -- 5 of 5 --