Bakir v Tran & Body Corporate for Chevron Renaissance [2015] QCATA 164

CITATION: Bakir v Tran & Body Corporate for Chevron Renaissance [2015] QCATA 164 PARTIES: Ron Bakir (Applicant/Appellant) v Teo Tran Body Corporate for Chevron Renaissance CTS 30946 ACN 068 118 347 Pty Ltd (Respondents) APPLICATION NUMBER: APL076-15 MATTER TYPE: Appeals HEARING DATE: 16 & 17 November 2015 HEARD AT: Brisbane DECISION OF: Senior Member Brown Member Howard DELIVERED ON: 17 November 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is adjourned to a date to be fixed. 2. Ron Bakir must serve all lot owners who made submissions to the Commissioner for Body Corporate and Community Management with: a. A copy of the application for appeal; b. Copies of all submissions filed by the parties in these appeal proceedings; c. These orders of the Appeal Tribunal; and d. A copy of the Appeal Tribunal’s reasons for decision by posting copies of the documents to the address for the lot owner identified in their submissions to the Commissioner for Body Corporate and Community Management, by: 4:00pm on 15 December 2015. 3. Any person served in accordance with direction 3 who wishes to be heard on the appeal must file in the Tribunal and serve upon the named parties to the appeal an application to be joined as a party to the appeal, by: -- 1 of 9 -- 2 4:00pm on 12 January 2016. 4. Any party wishing to respond to any application to be joined as a party must file a submission in response in the Tribunal and serve upon the party seeking to be joined and the named parties to the appeal, by: 4:00pm on 25 January 2016. 5. Any application to be joined as a party to the appeal in accordance with direction 3 will, unless any party or person making an application requests by 25 January 2015 an oral hearing, be determined on the papers and without an oral hearing, not before: 4:00pm on 25 January 2016. 6. Ron Bakir will serve upon any party joined in the appeal with all additional material filed in the appeal proceeding and not specifically referred to in these directions including copies of all affidavits within seven (7) days of any decision of the Tribunal joining a party. 7. Ron Bakir must file in the Tribunal and provide a copy to each named party to the appeal including any joined party submissions in relation to the determination by the Appeals Tribunal of the preliminary issues raised by him, namely whether the appeal is: a. An appeal in the strict sense; b. An appeal by way of re-hearing; c. Whether, to what extent and when fresh evidence may be admitted in the appeal and whether the leave of the Tribunal is required, by: 4:00pm on 12 February 2016. 8. The submissions of all other parties in response to the Applicant’s submissions on the determination of the preliminary issues must be filed in the Tribunal and served upon each named party to the appeal, by: 4:00pm on 26 February 2016. 9. Ron Bakir must file in the Tribunal and serve upon each named party to the appeal any submissions in reply, by: 4:00pm on 4 March 2016. 10. The preliminary issues will be determined by the Tribunal, unless a party requests an oral hearing by 4 March 2016, on the papers and without an oral hearing, not before: 4:00pm on 4 March 2016 -- 2 of 9 -- 3 11. All parties have liberty to inspect the BCCM Adjudication file and may request, at the party’s expense, copies of documents from the file. 12. The application for a view is adjourned to a date to be fixed. 13. The application is listed for a directions hearing on a date to be fixed. 14. Costs are reserved. CATCHWORDS: APPEAL- BODY CORPORATE & COMMUNITY MANAGEMENT- SERVICE OR NOTICE OF APPLICATION FOR APPEAL- who must have notice of appeal application- who is a respondent Body Corporate and Community Management Act 1997 (Qld), s 243, s 289 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 42 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) Kioa v West (1985) 159 CLR 550 REPRESENTATIVES: APPLICANT: Mr KW Peden, of Counsel, instructed by Russells Lawyers represented Mr Bakir RESPONDENTS: Mr RC Redburn, Solicitor, Active Lawyers represented 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] It is with considerable reluctance, but out of necessity (as we are not satisfied that natural justice is otherwise afforded to all of those persons entitled to it from the Appeal Tribunal), that we adjourn the hearing of this appeal. We regret the inconvenience and cost that this course will impose on the named parties, none of whom bear responsibility for the situation which has arisen. -- 3 of 9 -- 4 [2] Chevron Renaissance Community Titles Scheme consists of some 719 lots and common property. The Body Corporate for Chevron Renaissance (‘the Body Corporate’) proposed two motions, Motions 17 and 18, at an AGM. In essence, Motions 17 and 18 were to rescind the grant of exclusive use of some common property allocated to the lot/s owned by Mr Ron Bakir and to grant him exclusive use of some other areas. Both motions required a unanimous vote to pass. Both were defeated by votes against by lot owners, Ms Tran and ACN 068 118 347 Pty Ltd (“ACN”). [3] The Body Corporate applied to the Commissioner for Body Corporate and Community Management (“the Commissioner”) for orders that the motions be given effect to on the basis that the opposition to them was unreasonable. Submissions on the application were invited pursuant to s243 of the Body Corporate and Community Management Act 1997 (BCCM Act). In response, some 24 lot owners (the other submitters) (in addition to Mr Bakir, Ms Tran and ACN) made submissions opposing the application. The Application was referred for adjudication under the BCCM Act. [4] An Adjudicator subsequently made a decision which gave effect to Motion 17, but did not give effect to Motion 18. Pursuant to s274 of the BCCM Act, the Body Corporate, Mr Bakir, Ms Tran, ACN, and the others submitters were entitled to receive, and were given, a copy of the Adjudicator’s order, reasons for decision and a notice about their appeal rights. [5] Mr Bakir appealed the Adjudicator’s decision to this Tribunal. The named Respondents in the appeal application are the Body Corporate, Teo Tran, and ACN. A Senior Member made a variety of directions for the conduct of the appeal, including listing it for hearing. We are constituted as the Appeal Tribunal for the hearing for 2 days on 16 and 17 November 2015. [6] The Body Corporate, as outlined earlier, made the application to the Commissioner for orders giving effect to the motions. Although all lot owners comprise the Body Corporate under the BCCM Act,1 the committee for the Body Corporate effectively acts on behalf of the Body Corporate.2 It has played a limited role in the appeal proceedings. It describes its role variously as ‘neutral’ and as ‘a watching brief’, although on the second day of the hearing, it submitted that if it was to take the position, that it would support the appeal. [7] On the first day of the hearing, Mr Bakir sought to proceed with several preliminary applications (for a view and to inspect the Adjudicator’s file) and raise preliminary issues (in relation to the nature of the appeal in the Appeal Tribunal and the admission of material or evidence which was not before the Adjudicator). [8] When given the opportunity to respond in relation to the preliminary matters, Mr Royston (who is not a legal representative) expressed concern on behalf of Ms Tran and ACN that there was no person before the Tribunal who 1 BCCM Act s 31. 2 BCCM Act s 100. -- 4 of 9 -- 5 represented the interests of the lot owners, given the Body Corporate’s position in the matter. [9] Mr Royston’s submission prompted the Appeal Tribunal to consider several issues. Firstly, who were proper respondents to the appeal? Secondly, are there persons who are not named as respondents with a legitimate interest in the proceeding? If so, had they been, or were they entitled to be, served with the application for appeal and/or given some other proper notice of the appeal? [10] Mr Bakir submits that the BCCM Act is silent as to who must be served with an appeal from an Adjudicator’s decision. Mr Bakir’s Counsel told the Tribunal that Teo Tran and ACN were nominated as respondents on the basis that they voted against Motions 17 and 18 at the AGM. [11] The Body Corporate submits that the other submitters ‘would have’ had notice through the distribution of minutes of the Body Corporate from time to time, which included reference to the proceedings. Minutes were subsequently produced to the Tribunal by the Body Corporate.3 Those minutes contain little information. We are not satisfied that they constitute proper notice of the appeal and the issues raised by it to the other submitters. [12] Mr Bakir and the Body Corporate both submit that the issue of the ‘parties’ had been previously raised by Mr Royston and dealt with at a directions hearing on 19 August 2015. At their request, in the open hearing, the Appeal Tribunal, listened to the audio-recording of that directions hearing. Mr Royston did, in the directions hearing, express concern that the Body Corporate represented Mr Bakir’s interests rather than the other lot owners. He told the presiding Senior Member that he considered that the Body Corporate should be replaced by the lot owners. The Senior Member made directions including that: Any application to amend the parties to the proceeding, together with supporting material, must be filed in the Tribunal and served on the other parties, by: 4:00pm on 26 August 2015. [13] No application to ‘amend the parties’ was filed. [14] Mr Bakir submits that the learned Senior Member at the directions hearing considered the procedure for the proceeding pursuant to s28 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The directions made were not appealed. He submits that, in the exercise of its discretion, the Appeal Tribunal decided that the parties Mr Royston represents should apply to ‘amend the parties’, if they wished to do so. Mr Bakir submits that the hearing of the appeal can proceed based on the Senior Member having dealt with the issue and no action being taken to apply to ‘amend the parties’. The submission seems to be that the directions 3 Exhibits 1 and 2. -- 5 of 9 -- 6 had adequately dealt with the question of who were the proper parties to the appeal and/or to whom notice of the appeal was required to be given. Further, the submission seems to be that we as the Appeal Tribunal constituted for the hearing are bound to adopt or be satisfied that the procedure decided by the Senior Member at the directions hearing on 19 August 2015 is determinative of the procedure for the proceeding as far as this issue is concerned. Who was required to be named as a party or otherwise served with/given notice of the application? [15] Section 28 of the QCAT Act provides generally for procedure to be at the discretion of the Tribunal, subject to the QCAT Act, an enabling Act, and the Rules.4 However, it also provides that in all proceedings the Tribunal must act fairly.5 In particular, in conducting a proceeding the Tribunal must observe the rules of natural justice.6 Natural justice is a flexible concept and what is required is dependent upon the particular statutory framework.7 [16] Appeal from an Adjudicator’s decision to the Appeal Tribunal is provided for in s 289 of the BCCM Act. An aggrieved person may appeal to the Appeal Tribunal on a question of law only.8 Pursuant to s 289, an ‘aggrieved person’ is a person who is ‘aggrieved’ by an Adjudicator’s order who is, amongst others, an applicant, a respondent, the body corporate, and any person who, on invitation under s 243 of the BCCM Act, made a submission about the application.9 Accordingly, in this instance, the Body Corporate, Mr Bakir, Ms Tran, ACN, and all of the other submitters are potential appellants.10 [17] We accept as Mr Bakir submits that the BCCM Act is silent about who is a party to any appeal brought in QCAT, and who must be served with or given notice of the appeal. The QCAT Act and Rules do not assist. The BCCM Act ensures that all lot owners potentially affected by an application to the Commissioner have the opportunity to make submissions in relation to it, and if they do so, that they receive an adjudicator’s orders, reasons for decision and notice of appeal rights. [18] It is somewhat incongruous that there is no statutory requirement to ensure that a potential aggrieved person is either, required to be named as a respondent, or at the very least, served with any application for appeal filed in QCAT, so that he, she or it may make an informed decision about whether to participate in the appeal proceedings. In this instance, such a requirement would ensure that the other submitters, in addition to the named respondents, having proper notice of the appeal and would be consistent with the other safeguards in the BCCM Act which ensure 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 28(1). 5 Ibid, s 28(2). 6 Ibid, s 28(3)(a). 7 Kioa v West (1985) 159 CLR 500. 8 BCCM Act s 289(2). 9 BCCM Act s 289(1)(d). 10 Subject to the ‘aggrieved person’ establishing that they are ‘aggrieved by the order’: BCCM Act s 289(1)(c). -- 6 of 9 -- 7 applications are brought to the attention of lot owners, who then elect, or not, to make submissions in respect of them. [19] By analogy, in respect of applications heard in the Tribunal’s original jurisdiction, each of the persons playing an active role in making or responding to the application is a party to it. On an appeal, each of the other parties would then be a named respondent in the appeal proceedings. The QCAT Act does not specifically state that all parties to the original proceeding must be named as parties to the appeal. However, it would be a clear breach of natural justice for some of those parties to the original proceeding whose interests may be affected by the outcome of the appeal, for them to be excluded from the appeal proceedings. In this instance here, the original proceeding was before an adjudicator, but the appeal was brought, as provided for in the statutory scheme comprising of the BCCM Act and the QCAT Act, in the Appeal Tribunal of QCAT. That cannot change the fundamental characterisation, as parties, of persons actively involved in the original proceeding. Those persons or parties are entitled to natural justice and to be heard on the appeal. [20] Of course, in the same way that not all persons named as parties in other appeals play an active role in the proceedings, not all persons who made submissions in the adjudication will choose to participate in appeal proceedings. However, they should be aware of the appeal and the grounds for it in order to make an informed decision about whether to be involved or not. In many instances, the Body Corporate will effectively represent the interests of other lot owners and their views. However, in circumstances (such as those here) where the Body Corporate, through the committee, plays a neutral part or actively supports an application which may result in delivering substantial exclusive use rights to one lot owner (which may not be considered by other lot owners to be in their interests), then it is perhaps more likely than in some other circumstances, that individual potential aggrieved persons may wish to be heard on appeal. [21] The particular circumstances of this matter, in which it is clear that the Body Corporate, acting through the committee of the Body Corporate, does not represent the broader interests of the lot owners (or the other submitters), have brought into sharp focus the apparent lacuna in the statutory scheme provided by the BCCM Act as read with the QCAT Act in relation to appeals. [22] Having regard to the statutory scheme, we are satisfied that, all potential aggrieved persons who had the right to bring an appeal must be afforded procedural fairness. As Mason J (as his Honour then was) observed in Kioa v West,11 the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question: What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss 11 (1985) 159 CLR 550. -- 7 of 9 -- 8 Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321. In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations … 12 [23] In essence, the requirement is to act fairly in all the circumstances. [24] Consistently with the statutory scheme, this could be achieved in at least two different ways. Firstly, all persons who played an active role in the adjudication are named as respondents in the appeal proceedings and served accordingly. Alternatively, the persons must be served with the application for appeal and any related documents and directed by the Tribunal to apply to be joined as a party if the person wishes to apply, so that they may be heard on the appeal. [25] In the circumstances before us (and having regard to the stage which the proceedings have reached), we consider the most appropriate course is to make directions requiring the other submitters to be served with some limited material, and requiring any of those persons who wish to be a party in the proceeding to apply to be joined as a party. [26] It is regrettable, although entirely understandable in, what was most likely, a busy and pressured list of directions hearings on 19 August 2015, that this issue was not fully identified and ventilated. However, we make the observation that Mr Royston makes submissions in a somewhat tangential manner which frequently lacks clarity and apparent relevance to the issues being discussed. Undoubtedly, his somewhat unfocussed submissions played a part in the outcome of the directions hearing. [27] Further, we make the observation that it could not reasonably be considered the responsibility of Ms Tran, ACN or Mr Royston to bring any application ‘to amend the parties to the proceeding’. The application for appeal was Mr Bakir’s application. He alone could seek to amend the application. While it is the case that other parties (or persons seeking to be joined) could have filed applications for joinder of other persons as parties pursuant to s42 of the QCAT Act, directions were not made to that effect. [28] Section 42 specifically contemplates that the Tribunal may make orders joining a person as a party, amongst other reasons, if the person’s interests may be affected by the proceeding. There was nothing to prompt Ms Tran, ACN or Mr Royston to consider making such an application/s. Nor is it 12 (1985) 159 CLR 550, at 584-585. -- 8 of 9 -- 9 apparent that the other submitters are aware of the appeal, which may have prompted them personally to seek joinder. [29] In any event, it is the Appeals Tribunal which has the responsibility to afford natural justice to the persons entitled to it. We, as the tribunal constituted to hear the matter, are not bound by a non-specific direction made at a directions hearing about the bringing of applications to amend the parties, in deciding what natural justice requires in conducting the hearing. [30] We conclude that the hearing must be adjourned and directions made to ensure that all of the other submitters/potential aggrieved persons have proper notice of the appeal proceedings, so that they can decide whether they wish to participate in the appeal proceedings. [31] We stress that we make no criticism of the manner in which Mr Bakir has sought to proceed or framed his application. As earlier discussed, there is a clear deficiency in the statutory scheme and that has led to the unfortunate situation which has arisen. [32] For future proceedings, we will refer a copy of these reasons to the President of the Tribunal so that he may consider making a Practice Direction to overcome the deficiency identified in the statutory scheme and current procedure in the Tribunal. Orders [33] Accordingly, we make orders adjourning the hearing to a date to be fixed; for service by Mr Bakir on the other submitters of the application for appeal and some other limited documents (including these reasons for decision and orders); and the filing and determination of any applications for joinder of persons as parties to the proceeding. [34] In order to progress the appeal as expeditiously as possible, we also make directions to effect the prompt determination of the preliminary issues agitated by Mr Bakir (about the nature of the appeal and the filing of evidence in the proceeding), pending further oral hearing about the substantive issues on appeal. The miscellaneous application for a view is also adjourned to a date to be fixed. A further directions hearing date will also be allocated on a date to be fixed. -- 9 of 9 --