Campbell v Fields & Anor [2013] QDC 206

DISTRICT COURT OF QUEENSLAND CITATION: Campbell v Fields & Anor [2013] QDC 206 PARTIES: ALEXANDER WEST CAMPBELL (first plaintiff) and MARY CLEAVER CAMPBELL (second plaintiff) v ADRIAN KIM FIELDS (first defendant) and CLASSIC QUEENSLANDERS PTY LTD (ACN 114417588) (second defendant) FILE NO/S: D115/2010 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Maroochydore District Court DELIVERED ON: 6 September 2013 DELIVERED AT: Maroochydore District Court HEARING DATE: 23 August 2013 JUDGE: Long SC, DCJ ORDER: The application for transfer of this proceeding to QCAT is dismissed. CATCHWORDS: PROCEDURE – JURISDICTION - ORDER TRANSFER OF PROCEEDING TO QCAT - Where proceedings regularly commenced in the District Court – where defendants seek transfer of proceeding to the Queensland Civil and Administrative Tribunal under s 53 of the Queensland Civil and Administrative Tribunal Act 2009 - Whether the court should exercise discretion and order that the proceedings or part of the proceedings be transferred to QCAT – unfettered discretion – relevant considerations, including delay in making application – whether agreement to refer dispute to the Queensland Building Tribunal is a relevant consideration -- 1 of 19 -- 2 BUILDING AND ENGINEERING CONTRACTS – recovery of monies – variations under Part 7 of the Domestic Building Contracts Act 2000 – whether s 84(2) of the Domestic Building Contracts Act 2000 affects pursuit of claims otherwise based upon specific contractual entitlement Commercial and Consumer Tribunal Act (Qld) 2003 s 40(1) Domestic Building Contracts Act (Qld) 2000 s 79, s 84 Queensland Building Services Authority Act (Qld)1991 s 77 Queensland Building Tribunal Act (Qld) 2000 s 117(1) Queensland Civil and Administrative Tribunal Act (Qld) 2009 sch 1, s 53, s 244, s 247, s 248 Brookes v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 Lieberman v Morris (1944) 69 CLR 69 March and Spencer v Metrotek Constructions Pty Ltd No 3832 of 2010, 24, February 2011 COUNSEL: Mr A Harding for the applicant Mr T Nielsen for the respondent SOLICITORS: Garland Waddington Solicitors for the applicant Butler McDermott Solicitors for the respondent Introduction [1] By application filed on 26 March 2013, the applicants, who are the defendants in an extant proceeding in this court, seek an order pursuant to s 53 of the Queensland Civil and Administrative Tribunal Act 2009 (―QCAT Act‖) for the transfer of that proceeding to QCAT and for additional consequential orders. [2] The proceeding so sought to be transferred was commenced by the respondents/plaintiffs, by the filing of a claim and statement of claim on 21 May 2010. The disputes which are the subject of the proceeding so commenced, arise from the performance of what is described as ―a standard Queensland Master Builders Association Residential Building Contract… dated 9 March 2008‖. -- 2 of 19 -- 3 [3] The claim (which has not been since amended) is for: 1. Damages for breach of contract in the sum of $107,109.45/$117,608.58 (being for the cost of rectification of defective building work); 2. ―The sum of $17,993.55 damages by way of set-off for defective workmanship‖; 3. Interest pursuant to the Supreme Court Act 1995; and 4. Costs. [4] Although there have been various amendments made over time, the pleadings in this matter, closed on 22 March 2013 with the filing of the respondents‘ Further Amended Reply and Answer to the First Defendant‘s Defence and Counterclaim.1 [5] In the plaintiffs‘ Further Amended Statement of Claim, the causes of action are expressed to be for: (a) Damages for breach of contract in the amount of $182,558.87 (made up of $112,558.87, for the cost rectification of outstanding defects in the building works and $70,000 in respect of the loss of property value, ―even if the defective works are rectified‖); and (b) Damages ―by way of set-off for defective workmanship, equal to any sum payable under the contract‖.2 [6] In his defence, the first defendant denies that there remain any outstanding defects in the works or that there has been any loss of property value. It is further asserted that: ―10A. The plaintiffs‘ claim is incompetent because general condition 28.1 of the Contract provides that in the circumstances of the First and Second Defendants being members of the Queensland Master Builders Association (as they were) and dispute between them and the Plaintiffs‘ having arisen (as it has) and a reconciliation conducted by 1 On the same day, a similar document was also filed in response to the second defendant‘s further amended defence and set-off and counterclaim. For convenience the focus in these reasons will be upon the pleadings relating to the first defendant because and although for relevant purposes, the pleadings of the first and second defendant are mostly identical, a curiosity is that in the case of the second defendant, that occurs by way of an alternative to a contention that the second defendant was not in fact a party to the building contract. 2 This set-off is claimed upon the basis of an assertion that the defendants claim an amount is outstanding in relation to the works and notwithstanding a denial that the defendants are entitled to any monies owing under the contract, because of refusal to rectify or complete the works, it would appear that the intention is to acknowledge that any recovery of damages would, in the first instance, need to be allocated against any amount owing to the defendants under the contract. -- 3 of 19 -- 4 the QMBA having been conducted (as took place on 31 March 2009), the dispute hear in was by agreement between the parties to be referred not to this Honourable Court but rather to the Commercial and Consumer Tribunal now known as the Queensland Commercial and Administrative Tribunal (QCAT).‖ [7] The first defendant then pleads a set-off and counterclaim for a total sum of $38,316.55 (due and owing by the plaintiffs‘ to the first defendant pursuant to the contract), together with interest and costs. Of that total, only $5,490 is claimed as the ―balance contract price in respect of the works‖ and the remainder is claimed in respect of four ―variations, within the meaning of that term in Section 84 of the Domestic Building Contracts Act 2000‖. [8] However and in respect of those variations, the first defendant pleads both that recovery is not prevented by s 84(2) of the Domestic Building Contracts Act 2000 (―DBC Act‖) and alternatively that: ―17A. In the alternative to paragraph 17 above: (a) The First Defendant did not comply with one or more of ss 79,80,82 and 83 of the DBC Act in respect of variations no. 3-6 (both inclusive); (b) In the premises of sub-paragraph (a) hereto and s 84 of the DBC Act, the First Defendant may recover an amount for the said variations only with the approval of Queensland Civil Administrative Tribunal (‗The Tribunal‘) on application made under the Queensland Civil and Administrative Tribunal Act 2009. 17B. In the premises of paragraphs 10A and 17A hereto, the proceedings ought to be transferred to the tribunal.‖ [9] Whilst it will be necessary to return to the these pleadings later in these reasons, for present purposes it is only necessary to further note that a specific response of the respondents in relation to paragraphs 10A and 17A and 17B of the defence, was to point to the orders of this court made on 22 February 2013. Although this matter came before the court on that date because of an interlocutory application by the plaintiffs, for orders that copies of some disclosed documents be supplied and for dispensation of the need for the defendant‘s signatures on the request for trial and for the matter to listed for trial, by the time that application came before the court, the copies of documents had been supplied but it was then identified that the plaintiffs had a further amended statement of claim ready to file. Although the -- 4 of 19 -- 5 further amendment only related to a single matter of detail in a particular of that pleading, it was accepted that upon leave being granted to do so, such action necessarily opened the opportunity for a response from the defendants and then any consequential further responses. Leave was granted and the effect of this was to overcome the problem that there had been no prior response by the defendants to the plaintiffs‘ Amended Statement of Claim (filed on 16 July 2012). [10] On that application it was also noted that in the pre-existing Amended Defence and Set-off and Counterclaim of the First Defendant (filed on 29 March 2011), paragraph 10A was pleaded and on that application, the necessity of promptly addressing any contention of the defendants for the transfer of these proceedings was otherwise identified. Accordingly, directions were made in order to set a time table for the filing of the further amended pleadings and for any such application and if not made, for the matter to be listed for trial. These orders have therefore precipitated the present application, which is also made in the light of the addition of paragraphs 17A and 17B to the first defendant‘s most recent pleading.3 Agreed Matters [11] In respect of the present application before the court and particularly the exercise of discretion pursuant to s 53 of the QCAT Act, there are a number of matters upon which the parties are in agreement or which are not in contention. In particular that: (a) Pursuant to s 53(1) of the QCAT Act, there is an unfettered discretion to be exercised by this court, which discretion arises to be exercised if the proceeding before this court could be heard by QCAT and this stands in contrast to the position which prevailed (for a period) under the legislation relating to a relevant predecessor of QCAT, in s 40(1) of the Commercial and Consumer Tribunal Act 2003 and which required a court to order that any such proceeding be started again before that tribunal and therefore had an effect of ousting the jurisdiction that a court would otherwise have had to hear that matter;4 3 Each of those paragraphs 10A, 17A and 17B are respectively repeated in Further Amended Defence and Set Off and Counterclaim of the Second Defendant, filed on 8 March 2013, as paragraphs [11], [22] and [23]. 4 The history of these provisions is discussed further below. -- 5 of 19 -- 6 (b) Pursuant to s 77 of the Queensland Building Services Authority Act 1991, QCAT has jurisdiction to deal with all issues that are raised in the proceeding before the court. However, the particular issues relating to the claimed variations may only be dealt with in what is effectively an exclusive jurisdiction of QCAT pursuant to sections 79-84 of the DBC Act; and (c) Apart from that, the remaining matters are all within the jurisdiction of this court pursuant to s 68(1)(a) of the District Court of Queensland Act 1967. However, it is pointed out by the applicant that without the addition of the claim for damages for $70,000 for loss of value of the subject property5, all claims made in this matter would otherwise fall within the monetary limit of the jurisdiction of a Magistrates Court.6 [12] As will become apparent, it will be necessary to return to some more particular considerations pertaining to these general concessions. The Contentions [13] The applicants pressed three key factors in favour of transfer to QCAT. First, it was contended that to do otherwise would result in duplication, at least in the sense of there having to be two hearings instead of one. However, the extent to which there may be duplication of issues or evidence, if at all, depends upon the extent to which the issues which that are within the exclusive jurisdiction of QCAT are, as the respondents contend, discrete and severable from the other disputes. [14] It is not necessary to dwell upon what may have otherwise been a source of some potential duplication, because notwithstanding that the first defendant pleads in the alternative that he is not prevented by s 84(2) of the DBC Act from recovering an amount for each variation, it was conceded by him on this application that there had, at least, been a failure to comply with s 79(1) of the DBC Act, in respect of the 5 Which was also suggested as being of doubtful prospect because it is claimed in addition to the claimed cost of rectification of defects and assuming those defects are rectified and it was also noted as having been raised in circumstances where no leave (as would be required) has been granted for amendment of the claim in this respect. 6 It is otherwise noted that there is no monetary limit to the jurisdiction of QCAT in respect of matters of this kind. -- 6 of 19 -- 7 timing of any of what he contends were agreed variations being put into written form and this would necessarily mean that those claims were within the exclusive jurisdiction of QCAT, in the sense that because of s 84(2) of the DBC Act, recovery by the building contractor of the costs of such variations is only possible with the approval of QCAT in accordance with s 84(4).7 [15] Also and as the applicants appropriately conceded on the hearing of this application, the scope for duplication of issues and evidence would necessarily be affected by application of the principles relating to res judicata and issue estoppel. Further and to the extent, as would be expected if the proceeding is not transferred, the issues arising on the plaintiffs‘ claim or any aspect of the respondents‘ set off or counterclaim are first decided in this court and having regard to the adaptable procedures of QCAT as set out in s 28 of the QCAT Act, including exception from a necessary requirement of applying the rules of evidence and the ability to inform itself in any manner considered appropriate, there is every reason for thinking that evidence given in this court need not be repeated in QCAT, if there is a further proceeding in that Tribunal. [16] However, the applicants did point to the fact that the claim in respect of the variations is governed by the requirements of s 84(4)8 of the DBC Act, in that: ―(4) The tribunal may approve the recovery of an amount by a building contractor for a variation only if the tribunal is satisfied that— (a) either of the following applies— (i) there are exceptional circumstances to warrant the conferring of an entitlement on the building contractor for recovery of an amount for the variation; (ii) the building contractor would suffer unreasonable hardship by the operation of subsection (2)(a) or (3)(a); and (b) it would not be unfair to the building owner for the building contractor to recover an amount. 7 It can be noted that in any event, it is the respondents‘ position that there are other aspects of lack of compliance with the requirements of the DBC Act and it further suffices to note that respondents justifiably suggest that the applicants may face a significant hurdle in satisfying the requirements of s 84(4), particularly having regard to the approaches disclosed in Allaro Homes Cairns Pty Ltd v O’Reilly & Anor [2012] QCA 286, & Poiner v Quirk & Anor [2007] QDC 299, to circumstances where building contractors had not taken the steps otherwise set out in Part 7 of the DBC Act, so as to protect an entitlement to recover the cost of variations. 8 That is upon the basis that any such variations were sought by the building owner, which is the position of the applicants. -- 7 of 19 -- 8 And it was contended that the need to address the issue as to unfairness, in particular, presented the prospect of having to re-traverse the performance of the building contract, in any separate proceeding. However it is not clear that this should be so and particularly why the issue of unfairness could not and would not be determined by reference to and in the light of any determination, by this court, of other issues arising from the performance of the building contract. In any event and as noted above,9 the substantial hurdles to be cleared by the applicants, in the first instance, will be those arising under ss (4)(a). [17] The second consideration particularly pressed by the applicant was the existence of clause 28.1 of the contract. That clause appears in the following terms: ―28.1 Disputes may be referred to relevant bodies By agreement between the parties, a dispute in connection with this contract may be referred to the Queensland Master Builders Association (QMBA) for conciliation at any time provided that one of the parties is a member of the QMBA. If conciliation in accordance with Clause 28.1 is unsuccessful, then the dispute must be referred to the Queensland Building Tribunal for resolution.‖ [18] It is common ground that the prerequisites in respect of an unsuccessful conciliation are satisfied by events that occurred in March 2009.10 However, the respondent contends that: (a) To the extent that this provision requires referral to an abolished tribunal, it may be regarded as void for uncertainty. In this regard it is pointed out that whilst QCAT was expressly legislated as the legal successor of the Commercial and Consumer Tribunal, in 200911, the same cannot be said of the replacement of the Queensland Building Tribunal by the Commercial and Consumer Tribunal, in 200312; and (b) That in any event and as a general principle and save where permitted by statute, a contractual term that purports to oust the 9 See paragraph [14], footnote 6. 10 See affidavit of A K Fields, filed 26 March 2013, at [3], [18] and [19] 11 See ss 244, 247, 248 and Schedule 1 of the QCAT Act. 12 Although and if it were necessary to do so, it may require consideration to be given to the combined effect of Part 9 of the Commercial and Consumer Tribunal Act 2003. -- 8 of 19 -- 9 jurisdiction of the courts is void or unenforceable, as being contrary to public policy13. [19] It unnecessary to have to decide the first proposition, as the applicants accepted the general application of the second proposition and only sought to press reliance on clause 28.1 of the contract, as a consideration relevant to the exercise of the discretion in s 53 of the QCAT Act and the respondent did not seek to contend that it may not be of some such relevance. Specific reference was made to observations in March and Spencer v Metrotek Constructions Pty Ltd14, made in the context of the refusal of a similar application for the exercise of the discretion in s 53 of the QCAT Act, and where McGill SC DCJ said: ―They say that the contract, which was the subject of the dispute, contemplates the hearing of the dispute by the Tribunal, or more precisely by the Commercial and Consumer Tribunal, which was the predecessor of the current Tribunal. That is a matter of some significance, but it is not the situation that the parties specifically contracted for any disputes to be determined in that Tribunal, which might give rise to additional considerations.‖ However, those ex tempore reasons did not need to and do not disclose the content of the contractual term there under consideration or for that matter, what particular additional considerations would arise in relation to a term having a different effect. [20] Although for present purposes it is necessary to recognise that the relevant jurisdiction which is exercised by QCAT, pursuant to s 77 of the DBC Act, is practically to be regarded as the continuation of the same or similar jurisdiction, previously exercised by the Commercial and Consumer Tribunal and before that, the Queensland Building Tribunal. An important difference, however, is that this jurisdiction that was exercised by the Queensland Building Tribunal, pursuant to the Queensland Building Tribunal Act 2000, was effectively exclusive, at the election of a party. That is because s 117(1) of the Queensland Building Tribunal Act 2000 required that: ―(1) If a proceeding is brought in a court, and the proceeding could be heard by the Tribunal under this Act the court must, on the application of a party, order that the proceeding be removed to the Tribunal.‖ 13 E.g. see Lieberman v Morris (1944) 69 CLR 69 at 84 and Brookes v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 at 438, 441, 458-9, 466-7, 482 14 No 3832 of 2010, 24, February 2011 at Brisbane, at p 1-4, ll 10-23 -- 9 of 19 -- 10 Upon the replacement of the Queensland Building Tribunal by the Commercial and Consumer Tribunal and the assumption by the latter Tribunal of the jurisdiction previously exercised by the Queensland Building Tribunal, an identical provision appeared, as s 40(1) of the Commercial and Consumer Tribunal Act 2003. However, that provision was amended by s 73 of the Body Corporate and Community Management and other Legislation Amendment Act, no. 11 of 2007, by replacement of the word ―must‖ with ―may‖. That provision, in that discretionary form, was then replicated in identical terms, in s 53(1) of the QCAT Act. [21] Therefore the inappropriate reference to the Queensland Building Tribunal in clause 28.1 of the Building Contract, is readily to be understood by recognising that the standard form utilised, is marked with the copyright claim of the Queensland Master Builders Association, as at September 2001. Accordingly, any weight that might be otherwise attached to contractual choice of the parties to elect between alternatives as to jurisdiction to be exercised in respected disputes, may not be affected by understanding that, as opposed to the position prevailing now and at the time of execution of this contract, when the clause was drafted, the then existent statutory regime supported such a clause by providing for the mandatory transfer of any such proceedings by a court to the exercise of the jurisdiction of the Queensland Building Tribunal, upon any such application being made. [22] In any event, I also accept the respondents‘ submission that the weight that may be attached to clause 28.1 in the exercise of discretion, is necessarily diminished by the delay in respect of the making of the application for transfer. [23] Thirdly the applicants press their need for the approval of QCAT for at least part of their counterclaim and point to requirements that QCAT act with as little formality and technicality and with as much speed as the relevant legislative requirements and a proper consideration of the matter permits15 and that in QCAT it can be expected that there will be the advantage of at least a compulsory conference or mediation, before any hearing.16 Further it is contended ―the dispute between the parties is more suitably determined by QCAT then this court, as it is contended that QCAT has a building dispute list providing a specialist jurisdiction. 15 s 29(3)(d) QCAT Act 16 See Division 2 &3 of Part 6 of the QCAT Act -- 10 of 19 -- 11 [24] The respondents, on the other hand, point to their right to bring their action in this court and the delay that has occurred in the making of this application, such that their action is now effectively ready for trial, subject to the prevarications of the applicants in agreeing to that. Other than some residual issues that may be left after this decision, there is no suggestion made by the applicants that, to the extent that matters are within the jurisdiction of this court, they could not be now brought to trial as soon as is practicable. Further, the only explanation proffered for the delay that has occurred is that despite the first defendant‘s intention from the outset for resolution of all disputes in QCAT, he says he has been prevented by his financial circumstances from pursuing that, by application for transfer of the proceeding commenced in this court by the respondents and he points to a number of communications with the respondents‘ solicitors between 23 June 2010 and 25 October 2012, in respect of that prospect.17 However, the fact remains that the respondents have never agreed to such transfer and the effect is that the proceeding in this court has been allowed to progress to an advanced stage and it has only been the inaction by the applicants that has prevented it from progressing to trial. [25] Whilst the first defendant deposes to concern about the additional costs and expense that may be occasioned by involvement in proceedings in both this court and QCAT, the first plaintiff, on the other hand, deposes to his concern about the expense he has already incurred in relation to a dispute which is already five years old and also the anxiety of he and his wife to have their claims resolved. The first plaintiff particularly emphasises his concern about he and his wife being left without legal representation should their claims be transferred to QCAT.18 He deposes to: (a) Being 85 years old and suffering heart conditions that have required hospitalisation in the last 12 months or so and that is his wife is 81 years old and diagnosed with bowel cancer and high blood pressure; (b) That neither of them are good public speakers and they would have to confront the prospect of calling witnesses such as various 17 See affidavit of A K Fields filed 26 March 2013, at [20]–[34] 18 See s 43 of the QCAT Act which states a ―main purpose…to have parties represent themselves unless the interests of justice require otherwise‖ and the need for leave of the tribunal for a party to be represented, which determination may be influenced by whether or not there is agreement of the parties to representation. -- 11 of 19 -- 12 tradesmen and experts, such as an engineer, a building inspector and a property valuer19; and (c) That they would otherwise confront the complexities of the legal and factual issues that arise on their claims20. [26] Otherwise the first plaintiff refers to: (a) The difficulty presented in travelling to and from Brisbane to attend QCAT. However and although there is no particular evidence before me as to the availability of hearings in that Tribunal at Maroochydore, I am aware that the Tribunal does operate and conduct hearings here; and (b) A concern that they may be unable to recover the costs they have incurred to date, if the matter is transferred. Whilst that concern is understandably raised in an expectation of ultimate success, it is not based upon any consideration that costs may not be recovered in QCAT but rather on the premise that such costs will not be subject to the usual rule of following the event, as applied in this court.21 However, the logical corollary of that proposition is that the respondents could equally be advantaged, in the event of not being successful in their claims. Accordingly it is appropriate to treat these particular factors as being neutral considerations. [27] A further point arises because, by way of response to this application, the respondents, although alternatively contending that the applicants‘ pleadings relating to claims or matters not within the jurisdiction of this court should be struck-out, also positively contended for the effective severance of those claims or 19 To that could be added the potential of facing the prospect of having to cross-examine the first defendant and his witnesses 20 Affidavit of A W Campbell filed 24 July 2013 at [2], [3], [5] and [7] 21 That is because s 100 of the QCAT Act provides that ―other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party‘s own costs for the proceeding‖ and s 102(1) states a rule allowing costs orders ―if the tribunal considers the interests of justice require it to make the order‖, having regard to the circumstances including some criteria set out in s 102(3). In these circumstances it is unclear as to what is the effect of the express statement in s 77(2)(4) of the Queensland Building Services Authority Act 1991 of the tribunals power to ―award costs.‖ However it can also be noted that s 105 of the QCAT Act and s 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (―QCAT Rules‖) allow for a mechanism for making and consideration of settlement offers (albeit not in identical terms to the mechanisms provided under the UCPR) and s -- 12 of 19 -- 13 ―causes of action‖, by way of transfer of them to QCAT. Initially and despite the emphasis the applicants‘ sought to place on the need for some proceeding in QCAT, no submission was made about this proposal. However and after the court sought clarification and assistance, by way of further written submissions, as to the meaning of the term ―proceeding‖ in s 53 of the QCAT Act, the applicant contended, particularly by contrasting the distinction apparent in s 52 of the QCAT Act22, in the expressed reference to a ―proceeding or part of a proceeding‖, that s 53 only contemplates transfer of the whole and not part of a proceeding before a court. Although the respondents‘ conceded the contextual consideration arising from s 52 of the QCAT Act and that little or no assistance was to be gained by reference to any definitions of ―proceeding‖ in the QCAT Act23 or the definition in s 37 of the Acts Interpretation Act 1954, that ―in an Act… proceeding means a legal or other action or proceeding‖24, the position was maintained that s 53 should be read as if it referred to ―proceeding or part of a proceeding.‖ [28] In support of that contention, the respondents do, however, raise the prospect of transfer of that part of a proceeding which constitutes a counterclaim, notwithstanding that it was acknowledged that UCPR 8 states that a proceeding starts when the originating process is issued by the court and UCPR 117 provides that a counterclaim may be made in a proceeding …instead of bringing a separate proceeding.25 Resort to UCPR 68 was contemplated in order to separate a counterclaim as a proceeding and therefore allow for transfer of that separate proceeding under s 53 of the QCAT Act.26 However that is not what the respondents actually sought. Rather they sought to support the more difficult proposition of the 107 of the QCAT Act and s 87 of the QCAT Rules allow for the fixing or assessing of costs by reference to the scale of costs applying to a court. 22 Which provides the power for QCAT to make orders for the transfer of matters. 23 See s 52(8) and schedule 3. 24 The application of which may be displaced by contrary intention appearing in any Act: section 4 Acts Interpretation Act 1954. 25 Whilst the UCPR does not define ―proceeding‖, reference might also usefully be made to the definition of ―proceeding‖ in Schedule 2 of the Supreme Court Act 1991, having regard to the UCPR being a statutory instrument made under that Act and s 37 of the Statutory Instruments Act 1992: ―proceeding means a proceeding in a court (whether or not between parties), and includes – (a) an incidental proceeding in the course of, or in connection with, a proceeding; and (b) an appeal or stated case.‖ Reference might also be necessary to s 68(1) of the District Court of Queensland Act (Qld) 1967, with particular jurisdiction in respect of ―actions‖ and ―matters‖ and the definitions of those terms in s 3 of that act. 26 UCPR 182 might also be considered and in respect of a set-off, also UCPR 173(3). -- 13 of 19 -- 14 alternative of transfer of some part only or particular claims or ―causes of action‖, contained in the applicants‘ counterclaim. [29] Whilst, it was the respondent‘s position that the applicant had chosen to pursue all of these matters as variations and therefore requiring the approval of QCAT and that as claimed in a total amount of $32,826.55,27 they are easily capable of being deal with as essentially separate issues and whilst that may be accepted, to the extent that the applicants do require the approval of QCAT to recover the costs of any such variations and that this is the position reflected by materials relied upon by the applicants,28 the position revealed in the pleadings is not so simple. [30] Quite apart form the pleading that was not maintained on the hearing of this application, to the effect that the variations claimed by the first defendant were not caught by s 84(2) DBC Act, set-off is also made for the balance of the contract price, in the sum of $5,490 and a counterclaim is also made, in reliance on cl 9.5 of the Building Contract, in respect of the actual cost of any item provided for as a provisional sum, if the amount so allowed is exceeded. In fact, reference to cl 9.5, reveals that it may provide such a right in respect of both ―prime cost items‖ and ―provisional sums‖ included in the contract. It can accordingly be noted that: (a) Variation 3 is said to include an amount of $544.50 claimed on the basis: ―wide world of lights extra over allowed costs‖, in circumstances where the contract allowed a prime cost item for ―light fittings‖ in the amount of $2,200; and (b) Variation 6, which is claimed in the total sum of $19,163 is expressly claimed on the basis of the excess cost of provisional sums.29 Although, it may also be noted that there may be issues and disputes as to whether the contractual conditions allowing for any such recovery, particularly as to the processes involved in making or notifying such claims, can be satisfied. [31] On the pleadings before the court, it is not entirely clear as to what underlying facts remain in dispute, as bearing directly on the issues that must be decided by QCAT,30 27 That is not including the amount of $5490.00, claimed as the unpaid balance of the contract price and by way of set-off against the respondents claim. 28 See Ex AC 1 to the Affidavit of AW Campbell, filed on 24 July 2013 29 Although reference to the contract does not reveal any reference to any such sum for ―external works‖, whereas there is a provisional sum allowed for scaffolding in the amount of $12,000. -- 14 of 19 -- 15 or indeed as to whether all of the costs which have been claimed as variations are in fact variations within the meaning of the DBC Act and therefore not amenable to the jurisdiction of this court. [32] Part 7 of the DBC Act is headed ―Variations of Contracts‖ and the clear purpose of that part is to regulate, particularly by the provisions of s 84, any recovery of an amount by a building contractor for any such variation. A particularly relevant provision is s 84(2) which provides: ―(2) If the variation was originally sought by the building owner, the building contractor may recover an amount for the variation— (a) only if the building contractor has complied with sections 79, 80, 82 and 83; or (b) only with the tribunal's approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor.‖ However, it is also necessary to note that s 84(1) provides: ―(1) This section applies if— (a) the building contractor under a regulated contract gives effect to a variation of the contract; and (b) the variation consists of— (i) an addition to the subject work; or (ii) an omission from the subject work that results in the building contractor incurring additional costs.‖ Further, s 16 of the DBC Act provides a definition of variation as follows: ―(1) A variation, of a domestic building contract, is— (a) an addition of domestic building work to the subject work; or (b) an omission from the subject work.‖ [33] Accordingly it can be seen that the critical criteria is not the incurrence by a building contractor, of additional cost in respect of the subject domestic building work, but rather a variation in the sense of an addition of domestic building work to or omission from the subject work. Particularly having regard to the apparent purpose of Part 7 of the DBC Act, in requiring prompt and agreed written amendment to the Building Contract, in order to support recovery for variations and otherwise the requirement that the building contractor must obtain the approval of 30 E.g.: as to whether particular work claimed as a variation was done, or if so, done as a requested addition to the works. -- 15 of 19 -- 16 the tribunal pursuant to s 84(4) for any such recovery, it is not immediately apparent that these provisions would act to exclude recovery otherwise pursuant to an express entitlement under the written contractual terms. [34] Accordingly and if the proceeding remains in this court, it will be for the applicants to decide what parts of the counterclaim might be able to be successfully pursued within the jurisdiction of this court and that may require some tidying up of the pleadings. It would be expected, that the applicants would make all such viable claims, particularly as such claims would not then confront the hurdle of s 84(4) of the DBC Act. [35] Therefore and even if it could be done, it is not appropriate to transfer all of the applicants‘ counterclaim to QCAT and the only issue that remains to be determined is how to deal with that part of the counterclaim that raises issues that may only be determined by QCAT and therefore are excluded from the jurisdiction of this court. Discussion [36] The discretion to be exercised pursuant to s 53 of the QCAT Act is completely unfettered, in the sense that it is expressed in terms which provide no guidance as to its exercise. This is in contrast to the discretion provided to QCAT in s 52, which is expressed in terms of a test of deciding the more appropriate forum. That is reminiscent of the discussion by the High Court of competing approaches in respect of the forum non conveniens principle, in Voth v Manildra Flour Mills Pty Ltd31. In that case, a preference was expressed for a test or approach based on demonstration that this court is an inappropriate forum for the proceeding and, in the absence of the express indication of a different test (such is, by contrast, the position in s 52), that approach might also be preferred in respect of s 53 of the QCAT Act. [37] However, it is not necessary to come to a concluded view about this because it is apparent that, on any view here, there should not be any transfer of this proceeding, particularly in the sense of the claim brought by the respondents in this court and 31 (1990) 171 CLR 538, particularly at pp 550-565 -- 16 of 19 -- 17 the position of the applicants, in respect of the set-off and counterclaim, can otherwise be appropriately accommodated.32 [38] In the first instance, it can be noted that the applicants bear the onus of satisfying the court that there should be a transfer of the proceedings and this particularly involves consideration of the appropriateness of transferring the claim regularly instituted in this court, by the respondents. [39] Quite apart from the complications that arise and have been averted to above, in respect of the applicants‘ counterclaim, it is apparent that a purpose for which that has been raised in the proceeding before this court, is to facilitate the applicants‘ desire for all matters to be heard in QCAT. However, and as has been noted, the applicants necessarily confront significant hurdles in respect of any desire to recover for any variations within the meaning of s 84(2) of the DBC Act. Further, it can be confidently concluded that any such claims are truly discrete and may be conveniently separated from the issues otherwise arising in the proceeding before this court. Any result that there is a second proceeding in this respect, if the applicants ultimately elect to pursue such claims, is necessarily an incident of the failure of one or both of the applicants to take the steps set out in part 7 of the DBC Act, such as would be necessary to have protected an entitlement to recover such costs without any need for any application to QCAT. [40] Accordingly, the weight that may be given to the reservation of this exclusive jurisdiction of QCAT to give such approval, is to be seen in that context. Further the extent to which it may be said QCAT, which in reality is a generalist tribunal with a dedicated building dispute list, should be preferred to this court in dealing with building disputes, also needs to be considered in the context of the legislative history of the position of its predecessors. [41] For the reasons already given, I would not favour the respondent‘s submission as to the transfer of part only of this proceeding to QCAT. That approach was not supported in the applicant‘s submissions and whilst different considerations may 32 And it is not desirable to do so in light of necessarily different considerations and issues that arose in respect of the matters under consideration by the High Court and because, despite a general enquiry by the court in the hearing of this application as to any availability of assistance from any analogous lines of authority, the parties did not refer to any such decisions and therefore have not specifically addressed this decision. -- 17 of 19 -- 18 have arisen in respect of the ability to severe the applicants set-off and/or counterclaim, as separate proceedings for the purpose of any such transfer, that is not what is proposed. Rather, it is proposed that some part or particular claim or ―causes of action‖ in the applicant‘s counterclaim, be transferred. [42] Leaving aside those considerations which have been identified as effectively neutral, it is instructive to note some observations made in Voth v Manildra Flour Mills Pty Ltd. On the one hand there may be a need to avoid placing too much weight on any ―notions that a proceeding regularly invoked provides a prima facie right to have the proceeding continue in that forum‖33, but and on the other hand, consideration of ―‗a legitimate personal or juridical advantage‘ may provide valuable assistance‖.34 [43] Here there are substantial reasons why the respondents have made their claim in this court and the advantage of an absolute right to have legal representation in making that claim is justifiably important to them in those circumstances. Similarly they would be likely to be at a disadvantage in any alternative dispute resolution process, conducted without that benefit. Alternative dispute resolution is also available in conjunction with the proceeding in this court, but in the existing circumstance, it would be unlikely to be imposed upon the parties. However, there is no reason why such a process could not occur by agreement. Accordingly, any suggestion of advantage in terms of the more expected or usual processes of QCAT, is more in the subjective view of the applicants and has as much potential to delay the resolution of the respondents‘ claim, such as has already occurred due to inaction on the part of the applicants, as it has to expedite such resolution. [44] Otherwise and overarching those considerations which more favour the applicants‘ position and particularly whatever may be made of the effect of cl 28.1 of the contract, there is the detracting consideration of the applicants‘ delay in making this application. The proceeding, particularly in respect of the respondents‘ claim, is now well advanced and may be reasonably soon entered for trial in this court. 33 (1990) 171 CLR 538 at 565-6. 34 Ibid at 564-5. -- 18 of 19 -- 19 [45] Whilst there remains some issues attending the decision of the applicants‘ counterclaim, they are, essentially, matters for the applicants, particularly as to what claims are to be pursued and where. [46] What I propose to do is to strike out those parts of the counterclaim which necessarily relate to the claims based upon variations within the meaning of s 84(2) of the DBC Act and the applicants will need to promptly elect as to whether any alleged contractual entitlements, not dependent on any approval by QCAT, are to be pursued in this court and, if so, to promptly attend to elaboration of the counterclaim in that regard. If the election is not to pursue any such claim, then it would be expected that the remaining counterclaim would be discontinued by amendment. It is of course, acknowledged that there is no prejudice to the applicants in adopting this course, as there is no impediment, by way of time limit or otherwise, to institution of a proceeding in QCAT in respect of the necessary approval. [47] The applicants‘ set-off may be treated differently, as it does bear a connection to the respondents‘ claim, as has been acknowledged by them and because that claim does not, on any view, require any approval by QCAT. Conclusion [48] Accordingly, the application for transfer of this proceeding to QCAT is dismissed. Although I will hear the parties further, as to the form of consequential orders, it is envisaged that there will be directions in relation to a strict timetable as to the further amendment of the applicants‘ counterclaim and any consequential amendment of the consequent responses and also directions to effect the listing of this matter for trial, as soon as may be practicable. [49] As far as the question of costs of an incidental to this application are concerned, there does not presently appear to be any reason as to why there should not be an order in favour of the respondents. However, I will also accord the parties an opportunity to be further heard on this issue. -- 19 of 19 --