Body Corporate for the Astor Centre CTS 6371 v Victorious Dyna Pty Ltd ACN 125 095 534 as Trustee [2014] QCATA 47

CITATION: Body Corporate for the Astor Centre CTS 6371 v Victorious Dyna Pty Ltd ACN 125 095 534 as Trustee [2014] QCATA 047 PARTIES: Body Corporate for the Astor Centre CTS 6371 (Appellant) v Victorious Dyna Pty Ltd ACN 125 095 534 as Trustee (Respondent) APPLICATION NUMBER: APL317-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, Presiding Member Member Howard DELIVERED ON: 21 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Time is extended for the filing of the application to 30 July 2013. 2. The appeal is allowed. 3. The decision of the Adjudicator dated 14 June 2013 is set aside and the proceeding is returned to the Adjudicator. CATCHWORDS: APPEAL – BODY CORPORATE AND COMMUNITY MANAGEMENT – where application for recording of Body Corporate meeting on basis that the recording is an asset – where adjudicator made decision that copy of recording be provided on an entirely different basis without providing parties with the opportunity to address about it Acts Interpretation Act 1954 (Qld) s 38 Body Corporate and Community Management Act 1997 (Qld) s 152, s 205, s 269 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 36, s 38, s 61 -- 1 of 6 -- 2 Kioa v West (1985) 159 CLR 550 Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 John Holland Pty Ltd v TAC Pacific Pty Ltd & Ors.[2009]QSC 205 Habib v Director-General of Security (2009) 255 ALR 209 Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION Senior Member Stilgoe: [1] I have read the draft reasons of Member Howard and agree with her conclusions and the orders she proposes to make. Member Howard: [2] This case concerns an application by the owner of Lot 45 (the Lot Owner) for the release of a recording of a body corporate committee meeting. The minutes of the meeting refer to a dispute between the Body Corporate and the Lot Owner which the Body Corporate intended would result in legal proceedings, provided a motion proposed to be put to the lot owners attracted the requisite number of votes. [3] An Adjudicator made orders on 14 June 2013 requiring the Body Corporate to provide a copy of the recording to the Lot Owner. She relied on s 205 of the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act) which provides for information to be given to interested persons. [4] The Body Corporate appeals that decision. The grounds of appeal are that the learned Adjudicator erred in law by failing to properly investigate the application and by failing to afford natural justice to the Body Corporate. Preliminary Issue: was the appeal filed in time? [5] The right of appeal is provided for under s 289 of the BCCM Act which provides that a person aggrieved by an Adjudicator’s decision may appeal to the Appeal Tribunal on a question of law only. Section 290 provides that an appeal must be commenced within six weeks after the aggrieved -- 2 of 6 -- 3 person received the order. Time for filing begins to run on the day after the order was received.1 [6] The Body Corporate acknowledges that it received the order on 17 June 2013.2 Therefore, the six week appeal period expired on 29 July 2013. The copy of the appeal filed in the Tribunal is date-stamped 30 July 2013. [7] The Body Corporate submits, through its lawyers, that it lodged the application on 29 July 2013, together with a cheque in payment of the Tribunal’s filing fee for $569.20. The filing fee payable was $284.60. The Body Corporate says that the registry refused to accept the cheque and issue a refund for the excess amount. Its lawyers then, on 29 July 2013, attempted to file the appeal by email together a credit card authorisation for the correct amount. This was apparently also later rejected by the registry. Copies of a remittance advice for the cheque, the email to the registry and the correspondence and credit card authorisation attached have been provided. It is not apparent why the credit card authorisation was not processed. [8] The lawyers then returned to the registry with the application and yet another cheque on 30 July 2013, when the registry did process the application and cheque. The Body Corporate submits that the application should have been date-stamped received by the registry on the day it was physically received (that is, 29 July 2013) in circumstances where an overpayment of the filing fee was made, not an under-payment. It argues that the Tribunal should accept that the application was filed in time. [9] The Lot Owner submits that leave to appeal is required and as no application has been brought for leave, that the Tribunal should accept that it was filed out of time. [10] The QCAT Act provides that a proceeding starts when the principal registrar accepts it, whether or not on conditions.3 Further, it provides that the Tribunal must not take action on an application until the fee is paid.4 [11] The application was initially rejected, it seems because the correct amount was not tendered for the filing fee. The Body Corporate acknowledges that the emailed application was later rejected by the Registrar. [12] The file does not disclose the basis for the failure by the registry to process the email copy of the appeal and the credit card authorisation. It may relate to the costs occasioned to the registry of printing and copying the application. The costs to the registry of providing such a service would be considerable if large numbers of litigants endeavoured to file by email and have the Tribunal registry print, collate and copy the requisite numbers of their documents. It must be acknowledged that the Tribunal has limited financial resources. 1 Acts Interpretation Act 1954 (Qld) s 38. 2 Application for leave to appeal or appeal filed 30 July 2013, Part B. 3 QCAT Act, s 36. 4 QCAT Act, s 38, esp 38(2). -- 3 of 6 -- 4 [13] The Tribunal may by order extend a time limit as provided for in s 61 of the QCAT Act on a party’s application or on its own initiative.5 However, an application to extend the time for the filing of the appeal by one day in light of the events that transpired, has not been made. The Body Corporate submits instead that the Appeal Tribunal should accept that it was filed in time. However, the QCAT Act provides specifically for a proceeding to start when the principal registrar accepts it. This did not occur until 30 July. There is no apparent power to deem it as commencing on any earlier date. [14] It is however clear that an extension of time may be granted in this type of appeal from the decision of an Adjudicator.6 The Lot Owner refers to an application for leave to appeal not having been filed. However, leave to appeal is not required by s 289 of the BCCM Act. It appears that the Lot Owner intended to refer to there being no application for an extension of time. [15] The appeal was filed one day late. Two attempts were made to file it in time without success. The delay in filing was of one day’s duration. The Lot Owner simply argues that the application was filed a day late. In these circumstances, there is no identifiable prejudice to the respondent if an extension to file the application of one day is granted. Further, the appeal has merit for the reasons later discussed. For these reasons, on the Tribunal’s own initiative, I extend time for the filing of the appeal to 30 July 2013. Denial of natural justice [16] An Adjudicator must observe natural justice in investigating an application to decide whether it would be appropriate to make an order.7 [17] The Lot Owner’s application for release of the recording was made on the basis that the recording was an asset of the Body Corporate. It argued that s 152 of the BCCM Act obliged the Body Corporate to administer assets for the benefit of lot owners. It argued that as a lot owner, it wanted to exercise its benefit in the asset, which entitled it to a copy of the recording. [18] The Body Corporate was invited to make submissions about the application. None were made. [19] In her reasons for decision the learned Adjudicator discussed the Lot Owner’s argument about the characterisation of the recording as an asset and the lot owner’s claimed entitlement to the asset on that basis. She considered the latter was not clearly explained. She then proceeded to say that she thought there was another mechanism under the legislation for the lot owner to rely upon in seeking a copy of the recording. She 5 QCAT Act, s 61(4). 6 Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292. 7 BCCM Act, s 269. -- 4 of 6 -- 5 referred to s 205 of the BCCM Act which provides for certain information from body corporate records to be given to interested persons. She concluded that the Lot Owner is entitled to access information under the section and that it is ‘not apparent that there are any relevant exceptions in this case.’8 In context, the reference is to any exceptions which might mean the recording should not be provided. [20] The Body Corporate submits that it was not made aware of the Adjudicator’s intended reliance on s 205 of the BCCM Act to grant an order (which order, it submits, breaches its entitlement to legal professional privilege). It argues that the failure to make it aware of this critical issue of the intended reliance on s 205 is a breach of its entitlement to natural justice. [21] I agree with the Body Corporate. Procedural fairness is a flexible notion which requires the adoption of fair procedures having regard to the circumstances and the relevant statutory requirements.9 It requires that parties have notice of critical issues and the opportunity to respond to credible, relevant and significant10 material or issues. Although a decision- maker is generally not obliged to expose his or her reasoning process for comment, fairness may require prior disclosure, for instance, where the reasoning does not follow from an obvious evaluation of the evidence.11 Also, if the decision turns on a point of law not raised by the parties, about which the parties have had no opportunity to make submissions, natural justice will not have been afforded.12 [22] In this case, an application was made on one basis, which it appears the Adjudicator had difficulty accepting. Without notice or any opportunity being afforded to the Body Corporate to provide any relevant material or submissions upon which it may have sought to rely, an order was made on an entirely different basis requiring it to provide the document sought. [23] That the Body Corporate chose not to respond to the application as framed by the Lot Owner is irrelevant. It was entitled to conclude that it did not need to respond to the application as made if it considered it groundless. Before the Adjudicator decided the application against the Body Corporate on a basis other than the basis on which the application was made, the Body Corporate was entitled to notice of the issue and the opportunity to respond. [24] I would allow the appeal. [25] As I have concluded that the Body Corporate was denied natural justice, we do not need to determine whether the Adjudicator also failed to adequately investigate. 8 Reasons for decision dated 14 June 2013, [22]. 9 Kioa v West (1985) 159 CLR 550; John Holland Pty Ltd v TAC Pacific Pty Ltd & Ors. [2009] QSC 205, [29]. 10 Habib v Director-General of Security (2009) 255 ALR 209, 225. 11 Habib v Director-General of Security (2009)255 ALR 209, 225. 12 John Holland Pty Ltd v TAC Pacific Pty Ltd & Ors. [2009] QSC 205, [50]. -- 5 of 6 -- 6 [26] However, I make the observation that the Lot Owner had attached a copy of the Minutes of the Meeting on 9 April 2013 to his application. Those minutes refer quite extensively to proposed legal action against the Lot Owner and for motions to be voted on by the lot owners about this intention. Section 270(1) imposes an obligation on an Adjudicator to investigate the application in order to decide whether it would be appropriate to make an order on it. Given the spectre of legal proceedings and the references to advice that had been taken in the minutes, I make the observation that it appears to me that the appropriate course would have been to investigate whether discussion at the meeting was more wide-ranging and contained reference to material which might have attracted legal professional privilege. [27] Legal professional privilege is a right which is only abolished by legislation, by express language or unmistakeable implication.13 Confidential communications between a client and their advisor are privileged if made for the dominant purpose of submission to the advisor or for use in existing or anticipated litigation. It need not be provided if it would result in disclosure of confidential communications between client and lawyer. The BCCM Act does not abrogate the right to privilege. [28] In this instance, the Body Corporate had taken legal advice which was discussed at its meeting on 9 April 2013. It was required to keep minutes of the meeting under the BCCM. However, it was not obliged in those minutes to disclose privileged material. It is reasonable to infer that in light of the proposed, if not anticipated litigation, that the meeting may have discussed the advice in some details in order to conclude that motions to commence legal proceedings should be put to the lot owners. If it was necessary, I would conclude that the Adjudicator should reasonably have investigated this possibility, before reaching the conclusion that there was no apparent exception to an obligation to provide information under s 205 and that it was appropriate to make an order. [29] As there has been no investigation of this possibility, it seems to me that it is not known whether the recording does in fact contain any privileged material and whether it is appropriate to make an order. Conclusions [30] In view of my conclusions, I would allow the appeal and set aside the Adjudicator’s decision and return the matter to the Adjudicator for a fresh determination to be made of the application according to law. 13 Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543. -- 6 of 6 --