Bakir v Body Corporate for Chevron Renaissance & Tran [2016] QCATA 33

CITATION: Bakir v Body Corporate for Chevron Renaissance & Tran [2016] QCATA 33 PARTIES: Ron Bakir (Applicant/Appellant) v Body Corporate for Chevron Renaissance CTS 30946 (First Respondent) ACN 068 118 347 Pty Ltd Teo Tran (Second Respondent) APPLICATION NUMBER: APL076-15 MATTER TYPE: Appeals HEARING DATES: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown Member Howard DELIVERED ON: 5 May 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Ron Bakir’s application to file fresh evidence is refused; 2. The appeal is listed for further hearing on a date to be fixed. CATCHWORDS: APPEAL- BODY CORPORATE AND COMMUNITY MANAGEMENT ACT- where appeal from an adjudicator- whether appeal in the strict sense- whether fresh evidence may be admitted in the appeal Body Corporate and Community Management Act 1997 (Qld), s 271, s 276, s 289, s 294 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 142, s 146 Albrecht v Ainsworth & Ors [2015] QCA 220 Allesch v Maunz (2000) 203 CLR 172 Bakir v Tran & Body Corporate for Chevron Renaissance [2015] QCATA 164 -- 1 of 10 -- 2 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Commissioner for Railways v Murphy (1967) 41 ALJR 77 Ericson v Queensland Building and Construction Commission [2014] QCA 297 Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294 Re Coldham; Ex Parte Brideson (No 2) (1990) 170 CLR 267 REPRESENTATION: APPLICANT: Russells Lawyers represent Mr Bakir RESPONDENTS: Active Lawyers represent the Body Corporate for Chevron Renaissance CTS 30946 Mr Thomas Arthur Royston represented Teo Tran and ACN 068 118 347 Pty Ltd REASONS FOR DECISION [1] The hearing of the appeal in this matter was set down for 16 and 17 November 2015. Unfortunately, the Appeal Tribunal concluded that the hearing must be adjourned at that stage. The Appeal Tribunal’s reasons for decision set out the relevant background.1 [2] The further hearing of the matter was adjourned to a date to be fixed, pending compliance with our directions. In part, those directions related to the determination of preliminary issues raised in the hearing by Mr Bakir, before the relisting of the appeal for further oral hearing. Mr Bakir filed submissions in compliance with our directions, but neither the Body Corporate, nor Ms Tran have done so. [3] The preliminary issues for determination are as follows:  What is the nature of the appeal before the Appeal Tribunal?  Whether, and if so, when may new or additional evidence be admitted in the appeal and whether leave is required for its admission? [4] Mr Bakir submits that we should determine as a preliminary issue whether the learned adjudicator made an error of law. However, that question extends beyond the matters, as specified in our orders and reasons for 1 Bakir v Tran & Body Corporate for Chevron Renaissance [2015] QCATA 164. -- 2 of 10 -- 3 decision of 17 November 2015, that we intend to deal with by way of preliminary determination.2 Issue 1: What is the nature of the appeal under the BCCM Act? [5] The right to appeal an adjudicator’s decision under the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act) to the Appeal Tribunal is set out in s 289 of the BCCM Act. An appeal may only be made on a question of law. Further, s 294 of the BCCM Act is relevant as follows: 294 Jurisdiction and powers of appeal tribunal on appeal (1) In deciding an appeal, in addition to the jurisdiction and powers of the appeal tribunal under the QCAT Act, the tribunal may also exercise all the jurisdiction and powers of an adjudicator under this Act. (2) The appeal tribunal may amend or substitute an order only if the adjudicator, who made the order being appealed, would have had jurisdiction to make the amended or substituted order or decision. (3) Subsection (2) does not limit any power of the appeal tribunal to award costs for a proceeding under the QCAT Act. [6] Section 146 of Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which relates to deciding appeals on a question of law only provides: 146 Deciding appeal on question of law only In deciding an appeal against a decision on a question of law only, the appeal tribunal may— (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration— (i) with or without the hearing of additional evidence as directed by the appeal tribunal; and (ii) with the other directions the appeal tribunal considers appropriate; or (d) make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c). [7] Section 146 may be contrasted with s147 of the QCAT Act, which provides for determination of appeals on questions of fact or mixed fact and law.3 Section 147 provides specifically for the Appeal Tribunal to decide the appeal by way of rehearing and for the appeal tribunal to allow the filing of 2 Bakir v Tran & Body Corporate for Chevron Renaissance [2015] QCATA 164, see especially paras [7], [34]. 3 An appeal on a question of fact or mixed fact and law may generally be made only with leave of the appeal tribunal: QCAT Act, s142 -- 3 of 10 -- 4 additional evidence.4 In Ericson v QBCC,5 (Ericson) the Court of Appeal discussed these provisions. The Court of Appeal held in Ericson that there is no element of rehearing in s 146. Therefore, under s 146, unless the error of law decides the matter in its entirety, the proceeding must be sent back to the Tribunal for reconsideration. [8] Sections 6 and 7 of the QCAT Act regulate the relationship between that Act and enabling Acts. An enabling Act is an Act other than the QCAT Act which confers jurisdiction on the Tribunal,6 as the BCCM Act does. An enabling Act conferring appeal jurisdiction may include provisions which add to, vary, or exclude provisions of the QCAT Act.7 Under s 6(7) of the QCAT Act, an enabling Act may also include provisions about matters which may add to, otherwise vary or exclude provisions of the QCAT Act, about requirements for jurisdiction conferred by the enabling Act; and matters about conducting proceedings under the enabling Act and the tribunal’s powers for the proceeding.8 [9] Section 7 of the QCAT Act, provides for modifying provisions.9 Modifying provisions are defined to include provisions in an enabling Act which provide either for the tribunal’s functions (which includes powers10) in jurisdiction conferred by that Act; or matters referred to in s 6(7) of the QCAT Act. A modifying provision prevails over the QCAT Act to the extent of any inconsistency.11 Further, the QCAT Act must be read with any necessary changes as if the modifying provision were a part of the QCAT Act.12 [10] The Court of Appeal considered the nature of an appeal from an adjudicator to the Appeal Tribunal (which it referred to as QCATA) under the BCCM Act in Albrecht v Ainsworth & Ors (‘Albrecht’).13 In discussing the nature of the appeal, the Court of Appeal said as follows (not all footnotes included): [94] The appeal to QCATA was limited to a question of law. It was an appeal in the strict sense, not an appeal by way of re-hearing. It had to be determined on the material before the adjudicator. But had QCATA correctly identified an error of law, I do not accept the applicant’s contention that its only course was to remit the matter to the same adjudicator for determination according to law. Once an error of law affecting the adjudicator’s decision was correctly identified, QCATA could exercise the adjudicator’s powers and substitute its own decision based on the material before the adjudicator, consistent with the adjudicator’s undisturbed factual findings. So much is clear from the terms of s 294 BCCM Act and s 146 QCAT Act. 4 QCAT Act s147(2). 5 [2014] QCA 297, esp at para [3], [10], [13] and 1[6]. 6 QCAT Act, s 6(2). 7 QCAT Act, s6(6). 8 QCAT Act, s 6(7)(a) and (b). 9 QCAT Act s 7, esp 7(1). 10 QCAT Act, 3 Dictionary, definition of function, includes power. 11 QCAT Act s 7(2). 12 QCAT Act s 7(3). 13 [2015] QCA 220. -- 4 of 10 -- 5 … [96] QCATA allowed material to be placed before it which was not before the adjudicator. QCATA’s approach in not restricting references to facts by unrepresented respondents to those before the adjudicator, for reasons of expediency and practicality, was understandable. QCATA did not unequivocally state at the hearing that it would not consider any material which was not before the adjudicator in determining the appeal. On the contrary, it stated, somewhat confusingly, that the new material would assist it to understand the appeal, although it would not make findings on it.14 QCATA then referred to the additional material early in its reasons15 and noted its inspections of Viridian on the judgment coversheet. In the penultimate paragraph of its judgment, however, QCATA stated that, “on the material before the adjudicator”, she ought not have found the applicant established that the body corporate acted unreasonably. This suggests QCATA did limit itself to determining the matter on the material before the adjudicator. Unfortunately, it is not unequivocally clear from QCATA’s reasons that the material which was before it but not before the adjudicator did not influence QCATA’s decision. But in light of my conclusions as to QCATA’s other established errors of law it is not necessary to reach a concluded view on this aspect of the applicant’s contentions. I note, however, that while an inspection is not usually considered part of the evidence but merely an aid to understanding the evidence,16 it will often be imprudent in an appeal of this kind for QCATA to undertake inspections, especially when, as here, none were undertaken by the adjudicator. [11] In Albrecht, the Court of Appeal considered that the Appeal Tribunal had erred in identifying errors of law made by the adjudicator, when there were none. Accordingly, it considered that QCATA was not entitled to set aside the adjudicator’s decision and substitute its own decision by exercising the powers and jurisdiction of an adjudicator. 17 Mr Bakir’s submissions [12] It is argued for Mr Bakir that an appeal under the BCCM Act is an appeal by way of re-hearing, rather than an appeal in the strict sense, as referred to by the Court of Appeal in Albrecht. In particular, Mr Bakir submits that paragraph [94] of the decision in Albrecht is obiter dictum and therefore not binding on the Appeal Tribunal. [13] In essence, Mr Bakir submits that, in Albrecht, the Court of Appeal was not referred to all of the relevant statutory provisions governing the appeal (it seems, including s 271 of the BCCM Act and ss 6 and 7 of the QCAT Act) and the High Court authorities relied upon by him. He relies upon High Court authorities including Re Coldham and Others Ex Parte Brideson (No 2)(‘Re Brideson’),18 Coal and Allied Operations Pty Ltd v Australian Industrial 14 T1-71. 15 Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294, [7]. 16 Commissioner for Railways v Murphy (1967) 41 ALJR 77. 17 [2015] QCA 220, [98]. 18 (1990) 170 CLR 267. -- 5 of 10 -- 6 Relations Commission (‘Coal and Allied Operations’),19 and Allesch v Maunz.20 [14] He submits that s 146(d) is broad and allows the appeal tribunal to ‘make any other order it considers appropriate. He submits that in conferring on the Appeal Tribunal, ‘all the jurisdiction and powers of an adjudicator,’ a modifying provision, s 294, confers the powers, including those set out in s 271 of the BCCM Act, on the appeal tribunal. Section 271 of the BCCM Act provides that in investigating an application, an adjudicator may do things, which include, requiring a party, an affected person, or the Body Corporate to obtain and give the adjudicator a report or other information; or requiring them to be interviewed; or requiring them to give information in the form of statutory declaration;21 and entering and inspecting a Body Corporate asset or record or common property.22 [15] Mr Bakir says that as a result, it is contemplated that the appeal tribunal may receive further evidence, and make such orders as it thinks fit, in determining an appeal under the BCCM Act. He submits that having regard to the High Court authorities relied upon, the appeal is therefore an appeal by way of re-hearing, not an appeal in the strict sense. Discussion of the law and the construction of s146 of the QCAT Act and s294 of the BCCM Act [16] We accept that the construction of s 294 and s146 by the Court of Appeal in Albrecht is obiter, given its conclusion that the appeal tribunal had incorrectly identified errors of law, and that the adjudicator had not erred in law. Despite that, it is highly persuasive. In any event, we agree with it. For reasons to be explained, the decisions and other submissions relied upon by Mr Bakir do not assist his argument that the appeal is not an appeal in the strict sense. [17] In Re Brideson, the High Court held that the nature of an appeal turns on the words of the legislation conferring the power.23 Whether an appeal is by way of rehearing or an appeal in the strict sense determines the nature of the orders that may be made: if it is an appeal in the strict sense, then the appeal body concerned was restricted to making such order as the original decision-maker should have made on the evidence before it. It held that the power to make such order as it thinks fit together with the power to take further evidence for the appeal are strong indications of an appeal by way of rehearing.24 [18] In Coal and Allied Operations, the High Court noted that there is no definitive classification of appeals, rather that there are descriptive phrases which are sometimes used conveniently distinguish one type of appeal from another. 19 (2000) 203 CLR 194. 20 (2000) 203 CLR 172. 21 BCCM Act, s 271(1)(a) and (d). 22 BCCM Act, s 271(1)(d). 23 (1990) 170 CLR 267 at p 273-274. 24 (1990) 170 CLR 267 at p 271-272. -- 6 of 10 -- 7 The statute in question may confer limited or larger powers on the appellate body, or it may confer powers that are unique to the tribunal concerned. In that case, it contrasted appeals in the strict sense where the function is to determine only whether the decision in question was right or wrong on the evidence and the law as it stood when the decision was given. The High Court said that, in such circumstances, a court or tribunal cannot receive further evidence.25 In an appeal in the strict sense, the High Court observed, powers are limited to setting aside the decision and, if it is appropriate, substituting the decision which the original court or tribunal should have made at first instance.26 [19] Further, the High Court said that, on an appeal by way of a rehearing, further evidence may be admitted and the powers of the court (or tribunal) are not limited to making the decision that should have been made at first instance. On an appeal by way of rehearing, such an appeal is usually conducted by reference to the evidence given at first instance. In doing so, it contrasted an appeal by way of re-hearing with an appeal by way of hearing de novo. A de novo hearing occurs when a matter is to be heard afresh and a decision is to be given on the evidence presented at that hearing.27 The High Court further said a court or tribunal entertaining an appeal by way of re-hearing can exercise its appellate powers only if it is satisfied there was error on the part of the primary decision maker. It explained that this is so because statutory provisions which confer appellate powers, even when it is by way of re-hearing, are construed such that unless the provision indicates otherwise, the power is to be exercised for the correction of error. [20] In Allesch v Maunz, the High Court again explained and distinguished an appeal by way of rehearing from an appeal in the strict sense. Firstly, the High Court said that a critical difference between an appeal by way of re- hearing and a hearing de novo, is that in a re-hearing, the powers of the appellate tribunal may be exercised only where the appellant can demonstrate that the order under appeal is the result of some legal, factual or discretionary error. In contrast, powers may be exercised regardless of error in the case of a hearing de novo. Further, it said that critical distinction for the particular purposes of that case, between an appeal by way of re- hearing and an appeal in the strict sense, was that unless a matter was remitted for re-hearing, the appeal tribunal in an appeal in the strict sense could give only the decision which should have been given at first instance. However, on an appeal by way of re-hearing, it could substitute its own decision based on the facts and the law. 28 [21] Consistently with the statements of principle emerging from the High Court decisions discussed earlier, in Ericson, the Queensland Court of Appeal held that in disposing of an appeal on a question of law only, under s 146 25 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, p 202. 26 Ibid. 27 Ibid. 28 (2000) 203 CLR 172 at 180-181. -- 7 of 10 -- 8 there is no element of re-hearing.29 It is an appeal in the strict sense: it held that under s 146, (unlike s 147) the appeal tribunal had no power to conduct a rehearing. [22] In Albrecht, the Court of Appeal was not referred to, or did not discuss, ss 6 and 7 of the QCAT Act in its construction of s 146 of the QCAT Act and s 294 of the BCCM Act. Section 294 of the BCCM Act is a provision which confers jurisdiction and powers on the appeal tribunal for appeals under the BCCM Act (as contemplated by s 6(6) of the QCAT Act). Because it is a provision of an enabling Act which provides for the (appeal) tribunal’s functions in jurisdiction conferred by the enabling Act, it is a modifying provision pursuant to s 7(1)(a) of the QCAT Act. Because an appeal may relevantly be made on a question of law only (under s 289 of the BCCM Act), s 146 of the QCAT sets out powers for deciding the appeal. On a plain reading, Parliament intended by s 294, that in deciding an appeal, QCATA may exercise the jurisdiction and powers of an adjudicator under the BCCM Act, in addition to those it has under the QCAT Act. There is no apparent inconsistency between s294 and s146 of the QCAT Act. [23] The first limb of Mr Bakir’s argument that the appeal is to be decided by way of rehearing, relies upon s 294 of the BCCM Act. Mr Bakir submits that as a result of the conferral of powers in s 294, the appeal tribunal (therefore) has investigative powers under s 271 of the BCCM Act. He submits this makes it clear that new evidence is, at least, contemplated, and this is an indicator of an appeal to be decided by rehearing. We do not agree. [24] Section 271 is prefaced by the words ‘when investigating the application’. Section 294(1) is prefaced by ‘in deciding an appeal’. It is the jurisdiction and powers of an adjudicator in deciding (not investigating) an application which are conferred on the Appeal Tribunal in deciding an appeal on a question of law. That the power for the Tribunal to investigate, as an adjudicator may investigate, is not conferred, is clear. Section 294 provides only that in deciding an appeal, the appeal tribunal may exercise the jurisdiction and powers of an adjudicator (in addition to its jurisdiction and powers under the QCAT Act). On a plain reading of those words, it is the substantive jurisdiction and powers which the appeal tribunal may exercise in deciding an appeal, not the procedural powers of an investigator leading up to the determination of the dispute. [25] Consideration of the provisions in context supports this construction. The power to investigate appears in Chapter 9, Division 2. Division 2 is entitled ‘Procedural matters about adjudication’. It is Division 3, entitled ‘Adjudicators orders’, which contains s 276 and other matters relating to substantive powers of adjudicators in disposing of issues raised in an adjudication. Section 276 of the BCCM Act provides for the orders an adjudicator may make to resolve a dispute. 29 Ericson v Queensland Building and Construction Commission [2014] QCA 297, paras [3], [13] and [16]. Cf. appeals on a mixed question of fact and law or fact paras [3], [17] of the same decision. -- 8 of 10 -- 9 [26] Although we have reached this conclusion for other reasons, we make the observation here that it would be surprising if Parliament invested QCATA with investigative powers: the Appeal Tribunal is an adjudicative body, as the provisions of the QCAT Act reveal. [27] Mr Bakir also relies upon the words of s 146(d) of the QCAT Act, to the effect that the appeal tribunal may make any other order it considers appropriate as being an indicator referred to in the High Court authorities discussed earlier, that the appeal is to be decided by way of rehearing. However, this overlooks that s 146(d) must be constructed in its context. Section 146, unlike s 147, contains no specific provision for an appeal on a question of law to be decided by rehearing (or for the filing of additional evidence). The Parliament provided different procedures and powers to the appeal tribunal for the two different types of appeal. Accepting Mr Bakir’s argument that 146(d) contains a power to decide the appeal by way of rehearing, would require a construction that, by necessary implication s 146 provides for an appeal on a question of law to is to be decided by way of rehearing. (Given our conclusion about the limits of the jurisdiction and function which s294 confers), it would also require us to accept that there is a necessary implication that new evidence is allowed. There is no such necessary implication. The Parliament clearly intended that the appeal tribunal has different powers in determining an appeal on a question of law, as opposed to an appeal on a question of fact or mixed fact and law. [28] The differences between the two provisions (s 146 and s 147) are consistent with the distinction between appeals in the strict sense and appeals by way of rehearing, as discussed in the High Court authorities and the Court of Appeal in Albrecht and Ericson. [29] It is plain from the Full Court’s decision in Albrecht that it considers that in a BCCM appeal, the Appeal Tribunal matter must determine whether there has been an error of law. The Appeal Tribunal may make orders as provided for. It may confirm or amend the decision; set aside the decision and (if it disposes of the proceeding) substitute its own decision exercising the powers of an adjudicator as conferred by s 294 of the BCCM Act or alternatively, return it to the adjudicator for determination according to law. It may also make such other orders, as it has power to make, which are appropriate in the proceeding. [30] The QCAT Act itself devolves no jurisdiction or powers under the BCCM Act on the appeal tribunal. Without s 294 of the BCCM Act, the appeal tribunal could determine whether an adjudicator had made an error of law, and if so, confirm or set aside the decision return it to the adjudicator for reconsideration, but not otherwise make any substantive orders which would dispose of the proceeding. Consistent with an appeal in the strict sense, the conferral of jurisdiction and powers in s 294 does no more than enable the appeal tribunal to, in an appropriate case where the error of law disposes of the entire proceeding, make the orders that should have been made by the adjudicator. -- 9 of 10 -- 10 [31] The appeal to QCATA does not have the hallmarks of an appeal by way of rehearing consistent with the High Court decisions relied upon by Mr Bakir. There is no provision for new evidence. The power of the appeal tribunal to make orders disposing of the proceeding are limited. As the Full Court said in Albrecht, because of s 294 and s 146, once an error of law is identified, the appeal tribunal could exercise the adjudicator’s powers and substitute its own decision, it said, ‘based on the material before the adjudicator, consistent with the adjudicator’s undisturbed factual findings.’30 [32] The appeal tribunal does not have power to decide the appeal from the adjudicator by way of rehearing. It is an appeal in the strict sense. [33] Further, we make the observation that it would be incongruent for Parliament to allow an appeal only on a question of law under s 289 of the BCCM Act, but to empower the appeal tribunal, once an error of law is identified, to rehear the matter in its entirety by way of rehearing. Issue 2: May new or additional evidence be admitted in the appeal, and if so, is leave of the appeal tribunal required for it to be admitted? [34] Given our conclusion about the nature of the appeal and our earlier consideration of the authorities, it follows that new evidence may not be filed. Orders [35] In light of our conclusions, we refuse the application to file new evidence. We list the proceeding for further hearing on the appeal. 30 Albrecht v Ainsworth & Ors [2015] QCA 220, at para [94]. -- 10 of 10 --