Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242

CITATION: Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242 PARTIES: Coral Homes (Qld) Pty Ltd (Applicant) v Queensland Building Services Authority (Respondent) APPLICATION NUMBER: APL480-11 MATTER TYPE: Appeals HEARING DATE: 13 June 2012 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Ann Fitzpatrick, Member DELIVERED ON: 28 November 2012 DELIVERED AT: Brisbane ORDERS MADE: It is ordered that: 1. leave to appeal is granted; 2. the appeal is dismissed; 3. the decision made on 24 November, 2011, in matter GAR076-11 is set aside and substituted with an order by this Appeal Tribunal that the application for joinder in matter GAR076-11 be dismissed; 4. each party bear their own costs. CATCHWORDS: Building and Construction – joinder of parties – parties whose interests may be affected by the proceedings – cause of action estoppel – issue estoppel Queensland Civil and Administrative Tribunal Act 2009, s 42(1)(b) Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation [1998] QCA 351 Comfortable Homes Pty Ltd v Queensland Building Services Authority [2001] QBT 61 -- 1 of 21 -- 2 Crenview Pty Ltd v Queensland Building Services Authority [2008] CCT QR 088-08 Gregor v Victoria [2000] VCAT 414 Minister for Immigration and Multicultural Affairs v Ali (2006) 106 FCR 313 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Rogers v R (1994) 68 ALJR 688 Siamak v Queensland Building Services Authority [2005] Q057-04 Smith v QBSA [2010] QCAT 448 APPEARANCES and REPRESENTATION (if any): APPLICANT: Coral Homes Pty Ltd represented by Mr T Matthews of Counsel, instructed by Holding Redlich Lawyers RESPONDENT: Queensland Building Services Authority represented by Mr G Thomson of Counsel, instructed by Dilhari Mahiepala, Principal Lawyer, Building Services Authority REASONS FOR DECISION Senior Member Richard Oliver [1] On 4 March 2011 the Queensland Building Services Authority issued a direction to rectify to Coral Homes in respect of alleged defective building work in a house it constructed at Bell Street, Greenmount. The defective work relates to inadequate design of the footing system for the soil conditions. Evolution Professional Engineers did the site classification tests and designed the footing system. Mr Stanaway is the engineer who certified the footing system and Downs Earthmoving prepared the building site in accordance with the engineering design. [2] On 25 March 2011 Coral Homes filed in the Tribunal an application to review the Authority‟s decision to issue the direction to rectify. The function of the Tribunal in a review of an administrative decision is quite different to a civil proceeding for breach of contract or negligence. In a review application the Tribunal is to produce the correct and preferable decision by way of a fresh hearing on the merits.i The Tribunal stands in the shoes of the decision maker. The Tribunal may confirm or amend the original decision, set it aside and substitute its own decision or set it aside and return it to the decision maker with directions.ii The Tribunal is limited in what orders it can make on a review application. It can only make decisions that the decision-maker could have made under the enabling legislation when the original decision was made. It cannot make any order directed to any other party other than the decision-maker because this is all s 24 of the QCAT Act permits. -- 2 of 21 -- 3 [3] Coral Homes filed an application to join Evolution, Mr Stanaway and Downs Earthmoving to the review application under section 42 of the QCAT Act. The general basis for the application is that their interests may be affected by the review proceeding. More specifically Coral Homes, in the submissions before the learned Member at first instance, said that it was not obliged to prove that the proposed respondents will be affected by the decision but rather, the obligation is to raise a reasonable apprehension that those parties may be affected by the decision. No relief is sought against the proposed parties nor would any be available in a review proceeding, unlike in a civil proceeding. The application was opposed by Mr Stanaway and Downs Earthmoving. Evolution did not respond to the application. [4] On 24 November, 2011 the Tribunal refused the application to join the proposed parties and from that decision Coral Homes has appealed. For the reasons set out by Member Fitzpatrick leave to appeal should be granted because of procedural issues. I also agree with her reasons that the appeal should be dismissed but would add the following. [5] Section 42 of the QCAT Act permits the joinder of parties to a proceeding if the party should be bound by or have the benefit of the proceeding; if the party‟s interest may be affected by the proceeding or for any other reason it is desirable. [6] The first thing to note about s 42 is that the tribunal mayiii make an order about joining a party and therefore the decision to join is discretionary. The exercise of discretion is not enlivened unless the Tribunal is satisfied that one or more of the criteria set out in s 42(1) is satisfied.iv [7] The joinder of parties in tribunal matters, particularly in review applications, is not new. The predecessor to QCAT, the former Commercial and Consumer Tribunal provided for joinder if the “person‟s interests are affected by the proceeding”.v This is the same wording as s 45(1)(b) in the Queensland Building Tribunal Act 2000 considered by Member Wensley in Comfortable Homes Pty Ltd. [8] The same terminology is used in the provision for joinder in the Victorian Civil and Administrative Tribunal Act 2008 (Vic). A similar approach has been adopted in decisions in the VCAT as that adopted by Member Wensley in Comfortable Homes, that is, if satisfied that a party's interests are affected by the proceeding, then it is an exercise of discretion whether the joinder should be allowed in the particular circumstances of the case.vi [9] Section 42 of the QCAT Act broadened the scope of those parties that might be joined by introducing into subsection (1)(b), of the words “may be” affected. As Member Barlow said in Body Corporate for London Woolstores Apartments & Ors v QBSAvii the test for whether a party‟s interests are affected is now not as high as under the previous legislation -- 3 of 21 -- 4 but simply because a party‟s interests may be affected does not mean, as a matter of course, that an order joining a party should be made. [10] It is not difficult to envisage situations where person‟s interests might be affected by a proceeding, particularly in building cases and in reviews of decisions of the QBSA. A licensed builder is responsible for all building work in the construction of home. All trades people who work on the building as subcontractors may have interests that may be affected by a review of a direction to rectify issued to a builder and would fall within the ambit of s 42(1)(b). That of itself does not mean that simply because a subcontractor worked on a site the subcontractor, whose interests may be affected, should be joined to the proceeding on the application of a party. This could lead to an absurd result. [11] There must be some utility or purpose in the joinder. It might be that the joinder would avoid duplication of the litigation or multiplicity of proceedings in other proceedings in the tribunal; there might be common question of fact or law involved in the proceeding; the joinder may enable all issues in dispute between affected parties to be finally determined;viii or it may be that the parties joined would be amenable to an order of the tribunal in the proceeding in the Tribunal. There are also questions of prejudice to the proposed parties in terms of costs, whether the process would be unnecessarily lengthened and, importantly, whether the objects set out in s 3 of the QCAT would be achieved. These are some of the matters that might be taken into account in the exercise of discretion but are by no means exhaustive and each case would depend on its own particular circumstances. [12] An example of this is London Woolstores, where Member Barlow SC came to the conclusion that the proposed party Leyshon Properties Pty Ltd, despite their opposition to the joinder application, was a party whose interests may be affected by the proceeding and may have been the subject of a direction to rectify from the Authority depending on the findings of fact after a hearing. [13] In Mackay v QBSAix Member Stilgoe (as she then was) dismissed an application to join a licensee who installed timber flooring to the applicant's residence. She noted that both the owners and the licensee had already spent considerable time effort and money in respect of the dispute about the flooring. She was also concerned about delay and the addition of another party would not ensure that the matter would be dealt with in a way that was accessible, fair, just, economical, informal and quick. She said that the application of s 42 should be linked to achieving the objects of the QCAT Act. This is undoubtedly correct.x [14] To include parties in contentious litigation without their consent is a serious matter and will not be done lightly. That is why the section confers a discretionary power on the Tribunal. The applicant for an order to join another party must demonstrate not only that the party may be affected by the proceeding but also there is, within that proceeding, here a -- 4 of 21 -- 5 review of an administrative decision, some utility or purpose in the joinder. This is particularly so given the broad basis upon which a person might have standing to bring an application to either be joined as a party to a proceeding or, to apply to join another party. The threshold to establish that their interest “may be affected” is easily crossed. [15] Coral Homes has established here that each of the three parties nominated to be joined would have an interest in the litigation. There may ultimately be adverse findings made about the design of the footings. There may be adverse findings about the certification by Mr Stanaway and the earthworks undertaken by Downs Earthmoving but does that mean they should automatically be brought into the proceedings. [16] Obviously Coral Homes sees a forensic advantage in having the proposed parties in the proceeding because it provides an opportunity to shift responsibility for any defective building work to one or all of the three proposed parties. It would usually mean that those parties would put on evidence and that then gives Coral Homes an advantage in being able to cross examine any witness who provides a statement. This may ultimately lead to a decision in favour of Coral Homes and the evidence given in the proceeding may assist parties to be in a position to bring claims against each other in another jurisdiction. Even if an adverse finding is made against the proposed parties, at the end of the day this Tribunal cannot make any order or direction against any of those parties in this review application for the reasons set out above and by Ms Fitzpatrick. Also this was one of the reasons that persuaded Member Wensley not to make an order joining a party in Comfortable Homes. [17] The learned Member at first instance approached the consideration of the application in a manner consistent with the observations above. He considered the two stage process, found that the proposed parties‟ interests may be affected by the proceeding and then addressed the discretionary factors.xi However, the submissions in support of the discretionary factors were not helpful. The reasons for joinder put to him were firstly, that the proposed party‟s interests may be affected and secondly, it was desirable in the interests of justice that they be joined. That was all. [18] He specifically said in his reasons that the submissions left him without guidance as to why the discretion should be exercised without any consideration given by the applicant as to “the benefits or liabilities that would follow to all parties concerned” of the utility, in a practical sense, for the joinder. Nor was there any consideration given by the applicant as to whether the time and costs that might be incurred by the proposed parties would warrant their joinder in the proceeding. In short the applicant did not address any of the matters of the kind referred to above that might be persuasive in the exercise of discretion. [19] Two examples were relied upon by the applicant in the original submissions and referred to us in the appeal submissions. However -- 5 of 21 -- 6 these submissions related to why the proceeding may affect the interests of the proposed parties but did not go to the question of discretion. [20] The appeal submissions go well beyond those put before the learned Member at first instance. In paragraph 70 of the submissions in the appeal Coral Homes sets out three reasons why the joinder should be made, firstly because it will ensure the Tribunal complies with its obligations under ss 3 and 20 of the Act, secondly; it will avoid conflicting and inconsistent findings in subsequent proceedings based on the same facts and thirdly; it will save costs by not having to litigate the same matters twice. These submissions were not put to the learned Member and had they been no doubt he would have turned his mind to them when exercising the discretion. [21] Despite being raised for the first time here, I would still not be persuaded that these are factors that would necessarily warrant a joinder particularly when the proposed parties would not be subject to any order of the Tribunal. I repeat this is a review of an administrative decision, it is not civil litigation involving questions of negligence and/or breach of contract. The limited resources of QCAT should not be expended so parties can use the review process to gather evidence for the purposes of litigating elsewhere, even if time and effort is saved in that litigation because of the evidence given in the review application. [22] Coral Homes is concerned that there is a risk that what it termed an Anshun estoppel might arise from any findings in the review proceedings. In Anshunxii the majority of the court said: “In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff‟s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined." [23] I find it difficult to appreciate how such an estoppel could apply when the issue for determination is whether the Authority‟s decision should be upheld or set aside. There are no pleadings in this proceeding and the issues between Coral Homes and the proposed parties cannot be defined in such a way as to invoke an estoppel argument. [24] Finally, it is for the applicant to identify error on the part of the learned Member in coming to the decision that he did. The conclusion he came to was clearly open on the material before him. His discretion did not miscarry. In respect of the additional submissions made in the appeal I am of the opinion that, even though leave to appeal is granted, the proper exercise of discretion does not favour joinder in these circumstances. Member Ann Fitzpatrick -- 6 of 21 -- 7 [25] On 13 June, 2012 an oral hearing was conducted with respect to an application seeking orders that: (a) leave to appeal a decision made by Member Howe, dated 24 November, 2011, be granted; (b) the applicant‟s appeal is allowed; (c) the decision be set aside, and in lieu thereof orders be made for the joinder of the proposed respondents; (d) each party bear their own costs. [26] The 24 November, 2011 decision was that an application to join Evolution Professional Engineers Pty Ltd, Desmond Stanaway and Downs Earthmoving Pty Ltd as Second, Third and Fourth Respondents in matter number GAR076-11 be dismissed. [27] The decision was made on the papers pursuant to a direction made on 12 August, 2011. Background [28] Matter number GAR076-11 is an application for review of a decision of the Queensland Building Services Authority to direct Coral Homes to rectify alleged defects at a house it constructed at Bell Street, Greenmount. The direction to rectify required rectification of defective or incomplete building work. The statement of reasons included determinations that the footing system was not suitable for the soil conditions and that the required ripping work had been inadequate in that it had not prevented the heaving of the reactive clay soils. [29] The applicant sought to join the following persons on the basis that alleged defective work is attributable to them:  Evolution Professional Engineers (Evolution), which undertook site classification tests and design of the footing system;  Mr Stanaway, Engineer, who certified the footing system; and  Downs Earthmoving, which undertook soil disturbance beneath the house pad in accordance with the engineered footing design. Leave to Appeal [30] At the commencement of the oral hearing, Counsel for the applicant informed the Tribunal that the proposed respondents had not been served with the application for leave to appeal and appeal. The application was directed to proceed on the basis that the proposed respondents were not parties to the proceedings and therefore had no standing in the application for leave to appeal and appeal; and on the basis that s 96 (Notice of application or appeal) of the Queensland Civil and -- 7 of 21 -- 8 Administrative Tribunal Rules 2009 and s 42 (Joining parties) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) do not require service of proposed respondents. [31] The applicant seeks leave to appeal and submits that: (a) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; (b) there is a clear case of error in the primary decision and the applicant considers that it has good prospects in obtaining further substantive relief; and (c) it is necessary that the Appeal Tribunal correct the substantial injustice which has been caused to the applicant, arising from the errors contained in the primary decision. [32] Finally, it is said that the decision by the Member raises important questions of law in relation to the joinder of parties whose interests may be affected by proceedings in the Tribunal, and broadly should be seen as cause for concern in respect of the telling breaches of natural justice illustrated by the decision. [33] Leave to appeal would ordinarily be granted in circumstances where it can be demonstrated that there is a proper basis for these submissions. [34] To determine if leave should be granted to the applicant to appeal it is necessary to consider the matters raised in the appeal. Accordingly the application for leave and the appeal have been heard contemporaneously. Grounds of Appeal The Member erred in law:  by unduly restricting the scope and misconstruing the intent of section 42(1)(b) of the QCAT Act;  by misconstruing and incorrectly applying Body Corporate for London Woolstores Apartments & Ors v Queensland Building Services Authorityxiii (London Woolstores) [35] Section 42 of the QCAT Act provides: “(1) The Tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that: (a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or (b) the person‟s interest may be affected by the proceeding; or (c) for another reason, it is desirable that the person be joined as a party to the proceeding. -- 8 of 21 -- 9 (2) The tribunal may make an order under subsection (1) on the application of a person or on its own initiative.” [36] The applicant points to paragraph 18 of the decision by way of illustration that the Member erred in law, by unduly restricting the scope and misconstruing the intent of section 42(1)(b) of the QCAT Act and misconstruing and incorrectly applying London Woolstores and Comfortable Homes Pty Ltd v Queensland Building Services Authorityxiv. [37] The Member said at [18]: “In my view London Woolstores is distinguishable on the facts from the present matter. Rather, the present matter is much closer to the circumstances that existed in Comfortable Homes. Whilst I agree with Mr Barlow SC in London Woolstores that the current test in s 42(1)(b) has broadened the scope of joinder under this head, I do not consider that in consequence every possible interest or association qualifies under the provision. Just how much broader the scope of joinder under the present s42(1)(b) is has yet to be determined. The words in s 42(1)(b) „affected by the proceedings‟ must be accorded weight, not just the word „may‟.” [38] The applicant submitted in relation to how the proposed respondents were potentially affected by the proceeding that the Member: (d) failed to properly consider the applicant‟s submissions in the application under appeal; (e) alternatively, if he did consider the submissions, failed to properly explain his decision and his reasoning behind his apparent rejection of the applicant‟s submissions; and (f) failed to properly apply section 42(1)(b) of the QCAT Act in consideration of the applicant‟s submissions. Member‟s reasoning and reference to submissions [39] As to how the proposed respondents were potentially affected by the proceeding, so as to come within section 42(1)(b) of the QCAT Act, the applicant referred to two possible scenarios, which the Member noted at paragraph [15]. They are: (1) the possibility that the owner of the dwelling or Coral may take civil action against the proposed respondents if the Tribunal overturns the direction to rectify on the ground it is unfair to issue the direction because Coral did not do the defective work; (2) Coral may seek indemnification for rectification costs from the prospective respondents if the Tribunal affirms the decision to rectify on the basis the design work was inappropriate for the site or the ripping/scarifying was insufficient. [40] The Member dealt with these scenarios in the context of whether the proposed respondents “may be affected by the proceedings”. The -- 9 of 21 -- 10 Member concluded that a party “may be affected by the proceedings”, if they are amenable to an order in the proceedings and that further there is a good reason for the joinder such that the expense and work required of the parties consequent upon the joinder justifies the exercise of a discretion to join that party. [41] The Member said at [21] that neither Coral nor the Authority claim any relief from the proposed respondents in the review proceeding. In fact the Member noted that work performed by an engineer in the engineer‟s professional practice is not building work. He said “The review application cannot enlarge the jurisdiction of the Authority by order affecting Evolution and Mr Stanaway where the jurisdiction has never been available to the Authority.” Put another way, the proposed parties are not amenable to an order of the Tribunal in these proceedings. [42] This conclusion was reached whilst noting the “tentative submission” put by the applicant that that any certification or supervisory work undertaken by Evolution or Mr Stanaway was “building work” and the work done by Downs Earthmoving was site works which leaves it open to the Tribunal to “direct” all the proposed respondents. He made no findings on that submission, but did say that the Tribunal will have no jurisdiction over the engineers. [43] The Member made it clear that the only issue for review concerned the direction to rectify given to Coral. [44] The Member was not satisfied on the submissions made that there was sufficient reason to join Evolution and Mr Stanaway. [45] On that basis he concluded that as regards Evolution and Mr Stanaway their interests are not affected by the review proceedings so as to bring them with the terms of s 42(1) QCAT Act. [46] In relation to joinder of Downs Earthmoving the Member made the point that it is exceedingly doubtful that the Tribunal would make an order against it in the present review proceedings, particularly given Coral has itself stated that the Authority incorrectly identified ripping/scarifying as the cause of alleged defects, when in fact the cause is incorrect classification of the soil, and / or incorrect footing design. [47] The Member concluded that even if Downs Earthmoving was performing “building work”, and even if its interests could be affected by the review proceedings, such as to come within the terms of s 42(1)(b), the expense and work required of Downs Earthmoving and perhaps the other present parties, consequent on Downs Earthmoving‟s joinder, coupled with the lack of explanation showing the efficacy of such joinder outweighs an exercise of the discretion in favour of the applicant. Findings -- 10 of 21 -- 11 [48] I find that the Member did not fail to consider the applicant‟s submissions as to how the proposed respondents were potentially affected by the proceeding. He referred to the 2 scenarios postulated. However, he did not think that the possibility of subsequent civil action against the proposed respondents consequent upon findings made in the review proceeding, met his reasoning in relation to the operation of s 42(1)(b) in circumstances where the proposed parties were not amenable to an order of the Tribunal and there was no submission made which would justify the exercise of the Tribunal‟s discretion to order joinder. [49] I find that the Member did explain his reasoning for rejecting the applicant‟s submissions in terms of his view that it is not in every case where a party may be affected by a proceeding that they should be joined, it is relevant to consider whether a party may be amenable to an order and whether the benefits of joinder justify the cost to the parties of the joinder. [50] I find that in terms of the Member‟s reasoning he did correctly apply section 42(1)(b) of the QCAT Act to the facts before him. Findings in relation to alleged error of law [51] In relation to the Member‟s treatment of the decision of London Woolstores, the thrust of the applicant‟s submissions is that the Member failed to note the significance of the comment of Member Barlow in London Woolstores that: “A person‟s interests may be affected by the proceeding whether or not they are bound by a decision.”xv [52] The applicant submitted that the Member‟s decision failed to apply what it described as the test in London Woolstores (and in Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporationxvi) to the two scenarios submitted by it. [53] I find that the Member did note the significance of Member Barlow‟s interpretation of the subsection. He agreed with Member Barlow that the scope of joinder had been broadened by the use of the word “may” in the subsection. [54] On the appeal the applicant submitted that: (a) the Member did not apply London Woolstores in the sense that he did not join the proposed respondents because on the two given scenarios they “may be affected”. It is not at all clear that the Member was bound to do so. He reasoned that it was not every possible interest or association which qualified under the provision. He distinguished the decision in London Woolstores on the basis that in the facts of that case the proposed respondent was affected by the proceedings in that an order was sought against it, unlike the circumstances of this case. -- 11 of 21 -- 12 I note that likewise in the Baulderstone Hornibrook case the proposed respondent was amenable to an order against it. (b) the Member did not explore what it means to have interests “affected” by a proceeding beyond the ability for the Tribunal to actively direct the proposed respondents to rectify the works. I do not consider that he was bound to do so, given that he dealt with the facts and submissions before him and found that he was not persuaded by any submissions as to the benefits and liabilities of a joinder that he should exercise his discretion to do so. The Member said that other than submissions that the proposed respondents‟ interests “may be affected” by the proceedings” and that it is in the interests of justice to join the proposed respondents, he had no submissions to consider as to what the benefits and liabilities to all parties concerned may be, including for example that duplicity of proceedings would be avoided, or the costs associated with the joinder; (c) the Member failed to provide sufficient clarity to the applicant and the respondent as to how he arrived at his decision, including what submissions he considered. I am satisfied that the Member referenced and considered the submissions of the applicant. Upon reading the applicant‟s submissions made to the Member I note 3 submissions not expressly referred to, namely:  in relation to the structure of section 42(1)(a)-(c) of the Actxvii;  the review proceedings where home owners have been joined, despite the Tribunal not being able to make any formal directions to the home owners;xviii and  the desirability of early joinder of parties to avoid inconsistent findings.xix [55] Despite failing to address these matters, I find that the Member did canvas and cite submissions relevant to his decision. I find that he provided clear reasons as to how he arrived at the decision. [56] The respondent in its submissions agreed that London Woolstores was distinguishable on its facts, in that the proposed parties in that case both fell within the category of persons outlined in section 72(5) of the QBSA Act so that it was possible the tribunal would order a direction to rectify be directed to them. I accept those submissions. [57] The respondent strongly disagreed that any certification or supervisory work carried out by Evolution and Mr Stanaway was building work for the purposes of section 75 of the QBSA Act. It said the work carried out by -- 12 of 21 -- 13 both of them was work that is typical of any engineer in the engineer‟s professional practice, thereby falling into the exception to the definition of “building work”. I accept that submission on the basis that there has been no evidence given by the applicant before the Member or before this Appeal Tribunal, that the work is not work usually performed by an engineer in the engineer‟s professional practice, which would justify a finding at odds with the knowledge and expertise of the respondent and findings in other cases in this Tribunal.xx The applicant has merely made a bare assertion. [58] In relation to Downs Earthmoving, the respondent submitted that the work of ripping and scarifying may be seen to be earthmoving, which is not “building work” within the QBSA Act. In any event, the respondent submitted that it would not issue a direction to rectify to it, because there is now no capability for Downs Earthmoving to rectify the defective work as alleged. [59] The respondent said that in these proceedings, the Authority would not issue a direction to rectify to any of the entities applied to be joined. [60] I accept the submissions of the respondent and find that the work of ripping and scarifying is earthmoving and is not “building work” so as to make it amenable to an order of this Tribunal in these proceedings. I make this finding on the basis that other than a bare assertion, the applicant has not presented any evidence before the Member or this Appeal Tribunal, as to why the work performed by Downs Earthmoving should be construed as anything other than earthmoving. [61] In relation to the errors of law asserted by the applicant I find that the Member: (a) did properly consider and apply section 42(1)(b) of the QCAT Act; (b) did properly consider the application of section 42(1)(b) in the context of the factual circumstances as stated by the applicant; (c) did properly consider and distinguish London Woolstores from the factual circumstances as stated by the applicant; and (d) did deliver a clear precedent for future applicants under s 42(1)(b) of the QCAT Act. [62] The next error of law submitted by the applicant is: failing to request further submissions from the applicant or the respondent on matters upon which the Member made a decisive determination, and on which he expressly stated as requiring guidance [63] The applicant in its appeal submissions does not elaborate on this assertion. However, the submission must relate to the point discussed above that the Member did not think he had any real guidance from the -- 13 of 21 -- 14 applicant as to what benefits or liabilities would follow if joinder were permitted. [64] I do not think it amounts to an error of law for a Member not to call for further submissions where he has concluded that the submissions made are not to his satisfaction. The applicant was directed to lodge its submissions. It was legally represented. It was a matter for the applicant to fully set out all matters which go to the exercise of the Member‟s discretion. The matters relevant to the exercise of the Member‟s discretion were not novel. [65] I find that there was no error of law in failing to seek further submissions in relation to the benefits and liabilities which follow from joinder. [66] The further error of law asserted is: failing to properly detail and provide adequate reasoning for its decision to dismiss the applicant’s application [67] Other than the matters discussed earlier in this decision, the applicant does not give further illustrations of this alleged failure. For the reasons set out above I find that the Member did properly detail and provide adequate reasoning for its decision to dismiss the applicant‟s application. [68] Finally, the applicant submits that the Member: failed to properly take into account the legislative scheme and its intent [69] This submission was not elaborated upon during the appeal, however in its written submissions before the Member, the applicant submitted that the joinder provisions in section 42(1)(a), (b) and (c) of the QCAT Act do not require that the proposed respondents be amenable to a direction of the Tribunal, because the “or” between sub-sections (a), (b) and (c) of section 42(1) means not all the elements of section 42(1)(a)-(c) need be satisfied. The submission is made that whilst section 42(1)(a) requires that a person “should be bound” by a decision of the tribunal, the following subsection offers a lower threshold in that the proposed respondent‟s interests “may” be affected. [70] Although the Member did not address the significance of the use of the word “or” separating the subsections, he did nevertheless fully explore the meaning of the word “may” in subsection 42(1)(b). I find that his conclusions are not inconsistent with the legislative scheme and its intent. Error of fact [71] The applicant says that it submitted the Tribunal may have the ability to direct the proposed respondents to rectify the works, on the basis that the proposed respondents all performed “building work” as defined by the QBSA Act. The applicant submits the Member was in error when he said that neither the applicant nor the respondent claim any relief from the -- 14 of 21 -- 15 proposed respondents (that being a specific request for an order that the direction be redirected to the proposed respondents). [72] The Member did not ignore the applicant‟s submissions in relation to the proposed respondents performing “building work”. However, he made no findings on the point with respect to Evolution and Mr Stanaway. In relation to Downs it is implicit in the Member‟s reasoning that it is possible Downs Earthmoving was performing “building work”, however he makes no finding on the point. [73] The applicant‟s argument is that if the Member had made findings the proposed parties were performing building work, then they would have been amenable to an order in the proceedings and there would have been no basis to distinguish London Woolstores, leaving the way open to join them as parties. [74] Despite this submission, it does not appear either the applicant or the respondent gave any indication that they may claim relief from the proposed respondents in the review proceeding. The submissions made before the Member do not say that as a consequence of a finding the 3 proposed parties have performed “building work”, it will seek orders that the direction be redirected to one or more of those parties. It would have been a simple matter to do so. In fact insofar as the applicant discusses how the interests of the parties may be affected, it refers only to possible later claims by the owner or by the applicant for indemnification for rectification costs. [75] In these circumstances I do not think the Member made any error of fact in concluding that the applicant sought no order against the proposed respondents in these proceedings. [76] In any event, consistent with the views of Senior Member Oliver set out earlier in this decision, I agree that even if the proposed parties were amenable to an order of the Tribunal that would not necessarily mean they should be joined as parties without further demonstrated utility in the joinder. Breach of natural justice Failure to acknowledge submissions of proposed fourth respondent [77] The applicant says that it was not served with submissions and the Tribunal did not advise it that Mr Stanaway had filed submissions and evidence in response to the Applicant‟s Application. [78] I find that there has been a denial of natural justice in this regard to the extent that the member relied upon the submissions of Mr Stanaway and this constitutes a ground for leave to appeal to be granted. Failure to request further submissions -- 15 of 21 -- 16 [79] It is asserted the member failed to accord natural justice to the applicant, the respondent and the proposed respondents by failing to request further submissions as to whether the proposed respondents performed “building work”, suggesting that the Member demonstrated confusion and hesitation on the point. [80] I do not consider the Member appeared to be confused or to hesitate on this issue. He did not find it necessary to decide the point and in any event thought in the case of Downs Earthmoving that the cost associated with its joinder could not be justified. [81] The applicant contends that the Member was not required to make “findings” as to whether the proposed respondents performed “building work”, but rather to advert to whether, if such work is on the final hearing proved and found to have been performed by the respondents or one or either of them, would such a finding affect their interests. With respect this submission appears to be inconsistent with the applicant‟s desire to provide further submissions on this point. [82] I do not consider a failure to seek further submissions on the “building work” issue amounts to a breach of natural justice especially given the reasoning of the Member, that apart from the question of whether the proposed parties might be amenable to an order of the Tribunal, the applicant failed to demonstrate any sufficient reason why the proposed respondents should be joined Irrelevant considerations [83] The applicant further submits that the Member placed undue weight on the applicant‟s initiating application which contends that the works of Downs Earthmoving were performed adequately. The applicant points to the Member‟s comment that the Tribunal would be unlikely to make an order against Downs Earthmoving on that basis. [84] I do not find that the Member placed undue weight on the applicant‟s initiating contention. It is clear from the conclusion to the decision that the Member‟s principal reason for refusing to join Downs Earthmoving was that the expense and work required of Downs Earthmoving and the other parties, coupled with a lack of explanation showing the efficacy of such joinder, outweighs exercise of the discretion in favour of the applicant. Substantial Injustice [85] The applicant submits that it would be a substantial injustice if the applicant or others in other cases persuaded by this decision, are held accountable for alleged defective works, for which they are arguably not responsible, in circumstances where those who are responsible are strangers to the proceedings. [86] I do not accept this submission. One of the factors relevant in a review proceeding of this nature is whether it was unfair to the person to have -- 16 of 21 -- 17 been given a direction to rectify. The applicant does not lose the opportunity to ventilate the question of fairness or injustice during the review process. It may of course call evidence as to the cause of defective work, without parties involved in the work being parties. [87] In relation to the precedent value of this decision, it may be persuasive in other cases, however, section 42(1)(b) of the QCAT Act plainly sets up a discretion in the Tribunal to be exercised upon weighing all the relevant factors. Each case will turn on its own facts. I do not consider that there is any substantial injustice to other applicant‟s in similar circumstances being obliged to demonstrate why the Tribunal‟s discretion should be exercised in favour of joinder. Respondent’s policy on subsidence [88] The applicant submits there has been a breach of natural justice in that the Member did not demonstrate and appreciate considerations of public importance, in that it is not within the publicised policy of the respondent to issue a direction to a contractor under section 72 of the QBSA Act where the contractor has complied with the respondent‟s policy on subsidence. I cannot see where this issue was raised with the Member. In any event it seems to me that this is an argument to be properly raised in the review hearing on the issue of fairness in the respondent having issued the direction to rectify to the applicant. It is not relevant to the question of whether other parties should be joined to the review proceeding. Anshun estoppel and abuse of process / Hearing of all facts in one proceeding [89] The applicant submits that the parties to this proceeding and the proposed respondents are vulnerable to a decision being made which may bind the parties in any subsequent proceeding commenced by or against any combination of the parties, involving the same facts as the proceeding. The applicant refers to this as an Anshun estoppel, arising from the decision of Port of Melbourne Authority v Anshun Pty Ltd.xxi [90] The applicant set out 4 scenarios involving civil proceedings arising out of the allegedly defective work where, depending on the outcome of these proceedings, claims may be made by the applicant against the proposed respondents or by the BSA against the proposed respondents. The applicant submits that a decision in these proceedings may prevent further action on the basis that the Tribunal decision is binding and the facts cannot be re-agitated. From the proposed respondents point of view it submits that they may be estopped from contesting liability in subsequent proceedings. [91] It was submitted that it is of benefit to all parties, including the proposed respondents to join them, so that all evidence and factual background is presented to the Tribunal with the result that: -- 17 of 21 -- 18  the issues are dealt with in a way which is accessible, fair, just, economical and quick;  quality and consistency of tribunal decisions is promoted;  a correct and preferable decision is produced;  conflicting or inconsistent findings and verdicts between the Tribunal and any subsequent court proceedings based on the same facts as commenced by the applicant or the respondent against the proposed respondents is prevented; and  significant costs and time being sustained by the applicant, respondent and the proposed respondents will be prevented where they might otherwise be required to litigate the same issues twice in subsequent proceedings. [92] The respondent submits that the applicant‟s submissions with respect to an Anshun estoppel and abuse of process are not relevant to the exercise of a discretion as to whether a direction to rectify was properly issued and will have no impact on the parties or any combination of the parties‟ civil rights. The respondent relied on the decisions of Comfortable Homes Pty Ltd v Queensland Building Services Authorityxxii and Crenview Pty Ltd v Queensland Building Services Authorityxxiii where similar arguments had been considered, but it was concluded that although there may potentially be some commonality of issues between the review proceedings and any further action, it is not the case that there would necessarily be identity of issues. [93] Further, the respondent submits that the decision under review was an administrative decision and it is inappropriate to turn the review proceeding into a quasi-civil proceeding. [94] The respondent says that it is possible a Tribunal may not address liability and/or may set aside the direction to rectify on grounds other than liability. [95] Finally the respondent submitted that in deciding to issue the direction to rectify, the process is not one of deciding whose fault it is that the work is unsatisfactory and therefore defective. [96] During the oral hearing of the leave to appeal application and appeal, the question of an Anshun estoppel and abuse of process was discussed. Counsel for the applicant made the point that in this review proceeding there is the possibility of findings as to fault. Counsel submitted that it is not to the point that no Order may be made against a party, the relevant factor is the reasoning adopted in the decision and the findings made. He stressed that findings may be made in these proceedings which are inconsistent with findings made in subsequent proceedings. -- 18 of 21 -- 19 [97] Counsel for the respondent stated that the basis of the Anshun principle is that if a party involved in litigation does not raise a matter it should have raised, it cannot raise it in subsequent proceedings. [98] Counsel for the applicant and counsel for the respondent agreed that the protection of an issue estoppel is not available to all unless the proposed parties are joined and represented. They further agreed that unless all parties are joined the Tribunal‟s findings carry no weight in other proceedings. [99] Counsel for the respondent said that there is an assumption by the applicant that there is an identity of parties and identity of issues on a statutory review and on a breach of contract, negligence or breach of statutory duty claim. The respondent contends that it is not the case if parties are joined that there is an identity of issues. Counsel for the respondent submitted that if parties are joined against whom no relief is sought there is a contest which can arise in later proceedings. He posed the question as to how these issues against the proposed parties are to be framed against them. Counsel for the respondent said that the conclusions which give rise to orders in a review proceeding are not the same as in civil proceedings where questions such as whether a duty of care was owed or the terms of a contract are relevant. [100] Finally, Counsel for the respondent submitted where no relief is sought against a party and in reality the parties may not receive the benefit of issue estoppel because there is no identity of issue, then that should factor in the exercise of the discretion. [101] I find that in considering whether it is fair the applicant should be directed to rectify, it may be relevant to consider whether the applicant bears any responsibility for the allegedly defective work. That enquiry can proceed without other persons who were involved in the project being made parties. It may be that expert evidence is relevant. It may be that the other persons will need to be called as witnesses. [102] I do not think the principle in Anshun‟s case is relevant to civil proceedings which might follow review of an administrative decision. I make that finding on the basis that review proceedings are limited in scope and limited in the orders which may be made. I do not consider that it could be held against the applicant that it failed in review proceedings to conduct a damages case for negligence or breach of contract or breach of statutory duty against a party and that it is therefore barred from later bringing such an action. [103] The principle in Anshun‟s case, with respect to cause of action estoppel, is different to the principle of issue estoppel which might affect the parties and proposed parties. There will be no issue estoppel unless in two proceedings there is an identity of parties and an identity of issues. Indeed the previous issue must have been an ultimate issue which was part of a final judgment on the merits.xxiv That cannot be the case in a review of an administrative decision. Further, there is authority that there -- 19 of 21 -- 20 can be no plea of issue estoppel in a hearing of a statutory tribunal which does not regard itself as bound by the rules of evidence.xxv Following Comfortable Homes and Crenview I am not convinced that even if the proposed parties were joined that there would be an identity of issues. That being the case there is no „once and for all‟ decision on the question of liability which could advantage the parties in terms of a quicker, cheaper outcome. In fact the parties would be put to two or more sets of costs in different proceedings. [104] I accept the submissions of the respondent that this proceeding is a review of an administrative decision. Its function is not to determine liability for allegedly defective work in the way in which a civil hearing would proceed. I am particularly concerned that if the applicant is determined to demonstrate in these proceedings that it is not responsible for the defective work, it will make allegations against the proposed parties which cannot be set out in a form of pleading which ensures the party knows the case it has to answer. That is because this proceeding is not a claim against a party in which relief can be sought from the Tribunal. The best the applicant could seek is that the Tribunal substitute the direction to rectify with a direction to rectify directed to one or more of the proposed respondents. I accept the submissions of the respondent and find that the Tribunal has no jurisdiction to direct Evolution, Mr Stanaway or Downs Earthmoving to rectify given they were not persons performing “building work” as defined in the QBSA Act and were therefore not amenable to a direction by the BSA in any event. [105] I find that it would be unjust to submit Evolution, Mr Stanaway or Downs Earthmoving to the cost of participation in proceedings where they cannot be made the subject of orders, however they are required to defend serious allegations made against them. [106] I find that there is no good reason based on the Anshun case or the principle of issue estoppel for joining the proposed parties. Further considerations raised by the respondent [107] The respondent submits that the Tribunal should not exercise its discretion to join parties to reviews of administrative decisions in a way which will encourage the carte blanche joining of parties and increase the issues to be resolved. [108] The respondent‟s submissions are noted. The Tribunal must exercise its discretion in each case on the basis of the facts before it and with an eye to the objects of the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick. Conclusion [109] Although I find that leave to appeal should be granted, I find with respect to the appeal itself that there is no ground to join the proposed respondents and that the application for joinder should be dismissed. -- 20 of 21 -- 21 [110] I order that leave to appeal be granted. [111] I order that the appeal be dismissed. [112] I order that the decision made on 24 November, 2011 is set aside and substituted with an order of this Appeal Tribunal that the application for joinder in matter GAR076-11 be dismissed. [113] The applicant has submitted that each party bear their own costs. The respondent has made no submission in relation to costs. I order that each party bear their own costs. i QCAT Act, s 20. ii QCAT Act, s 24. iii My emphasis. iv Comfortable Homes Pty Ltd v QBSA [2001] QBT 61. v Commercial and Consumer Tribunal Act 2003, s 53(1)(b). vi Gregor v Victoria [2000] VCAT 414. vii [2011] QCAT 86. viii Gregor v Victoria [2000] VCAT 414. ix [2010] QCAT 381. x See also Smith v QBSA [2010] QCAT 448. xi Reasons paragraph [30]. xii Port of Melbourne Authority v Anshun (1981) 147 CLR 589. xiii [2011] QCAT 86. xiv [2001] QBT 61. xv London Woolstores Apartments & Ors v Queensland Building Services Authority [2011] QCAT 86 at [24]. xvi [1998] QCA 351 at [17] and [6]. xvii Applicant‟s submissions dated 21 September, 2011 at [57] and [58]. xviii Ibid at [61]. xix Ibid at [63]. xx Crenview Pty Ltd v Queensland Building Services Authority [2008] CCT QR088-08; Siamak v Queensland Building Services Authority [2005] Q057-04. xxi (1981) 147 CLR 589. xxii [2001] QBT 61. xxiii [2008] CCT QR088-88. xxiv Rogers v R (1994) 68 ALJR 688. xxv Minister for Immigration and Multicultural Affairs v Ali (2000)106 FCR 313. -- 21 of 21 --