Brickell v Shawn Patrick Dineen trading as Patrick Dineen Plumbing & Drainage [2014] QCAT 13

CITATION: Brickell v Shawn Patrick Dineen trading as Patrick Dineen Plumbing & Drainage [2014] QCAT 13 PARTIES: Mark Donald Brickell (Applicant) v Shawn Patrick Dineen trading as Patrick Dineen Plumbing & Drainage (Respondent) APPLICATION NUMBER: BDL230-13 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 6 January 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Far North Plumbing Pty Ltd is joined as a Respondent to the Application; 2. The Application against Shawn Patrick Dineen trading as Patrick Dineen Plumbing & Drainage is struck out; 3. It is declared that the issues for the Tribunal’s determination do not extend to whether the tanks were installed at the correct height or whether the pipes were correctly sealed; and 4. The compulsory conference listed in Bundaberg at 1.30pm on 10 February 2014 is confirmed. CATCHWORDS: Application to strike out – prior proceedings in Magistrates Court – parties not identical - joinder – party to contract - abuse of process – no cause of action – issue estoppel – prior findings of defective workmanship – further allegations of defective workmanship – failure to plead as defence in prior proceedings when party not aware – no conscious decision in prior proceedings not to raise further issues -- 1 of 9 -- 2 Queensland Civil and Administrative Tribunal Act 2009 ss 3, 4, 42, 47, 60 Coral Homes (Qld) Pty Ltd v. Queensland Building Services Authority [2012] QCATA 241 General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125 Henderson v. Henderson (1843) 3 Hare JM Kelly (Project Builders) Pty Ltd and Anor v. Queensland Building Services Authority [2011] QCAT 463 Mackay v. Queensland Building Services Authority [2010] QCAT 381 Miller v. University of New South Wales [2002] FCA 882 Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589 Rogers v. The Queen (1994) 181 CLR 251 Voiceworks Australia Pty Ltd v. Astor Hotel Motel Pty Ltd [2012] QCAT 75 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION What is this Application about? [1] Shawn Dineen wants the Tribunal to strike out the application by Mark Brickell: The application is vexatious, lacking in substance and an abuse of process because there has been previous litigation about the contract relied on by the Applicant that has been the subject of a final judgement and in those proceedings the Applicant maintained that the parties to the relevant contract for the plumbing work did not include the Respondent.1 Issues Should Far North Plumbing Pty Ltd be joined as a Respondent? 1 Application for miscellaneous matters filed 23 October 2013. -- 2 of 9 -- 3 [2] There can be no issue estoppel unless in two proceedings there is an identity of parties and an identity of issues.2 [3] Mr Dineen relies upon a decision of the Magistrates Court dated 25 June 2009.3 The transcript reveals that these proceedings were between Mark Bricknell (sic) and Tina Sammons as Applicants / Respondents and Far North Plumbing4 trading as Patrick Dineen Draining and Plumbing as Respondents / Applicants. Only those parties can claim an issue estoppel. Mr Dineen was not a party to the earlier proceedings and Far North Plumbing Pty Ltd is not a party to the current application and therefore issue estoppel cannot arise.5 [4] However, the Tribunal may make an order joining a person as a party to a proceeding.6 In determining whether to join a party: There must be some utility or purpose in the joinder… it might be that the joinder would avoid duplication of the litigation… the joinder may enable all issues in dispute between affected parties to be finally determined… or it might be that the parties joined would be amenable to an order of the tribunal in the proceeding in the Tribunal.7 [5] The learned Magistrate found that there was a contract between Far North Plumbing and Mr Brickell.8 Far North Plumbing Pty Ltd performed the work. It rendered the accounts.9 Far North Plumbing Pty Ltd was a party to the contract. It should therefore be bound by or have the benefit of a decision of the Tribunal in the proceeding.10 [6] The Tribunal should also consider joinder in the context of objects of the Act.11 These include … to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.12 2 Coral Homes (Qld) Pty Ltd v. Queensland Building Services Authority [2012] QCATA 241 at paragraph [103]. 3 Transcript of Proceedings for Small Claim 2 of 2009 and Minor Debt Claim 27 of 2009. 4 ASIC Company Extract dated 10 October 2013 notes the company „Far North Plumbing Pty Ltd‟ has been registered since 27 June 2002. 5 JM Kelly (Project Builders) Pty Ltd and Anor v. Queensland Building Services Authority [2011] QCAT 463 at paragraph [29]. 6 Queensland Civil and Administrative Tribunal Act 2009 s 42. 7 Coral Homes (Qld) Pty Ltd v. Queensland Building Services Authority [2012] QCATA 241 at paragraph [11]. 8 Transcript of Proceedings for Small Claim 2 of 2009 and Minor Debt Claim 27 of 2009 at page 8. 9 Invoice 05975 of Far North Plumbing trading as Patrick Dineen Plumbing & Drainage dated 31/10/2007 and Invoice 06395 of Far North Plumbing trading as Patrick Dineen Plumbing & Drainage dated 01/11/2007. 10 Queensland Civil and Administrative Tribunal Act 2009 s 42(1)(a). 11 Mackay v. Queensland Building Services Authority [2010] QCAT 381, cited with approval in Coral Homes (Qld) Pty Ltd v. Queensland Building Services Authority [2012] QCATA 241 at paragraph [13]. 12 Queensland Civil and Administrative Tribunal Act 2009 s 3(b). -- 3 of 9 -- 4 [7] Both Mr Brickell and Mr Dineen have already filed considerable evidence and submissions. Mr Dineen is a director of Far North Plumbing Pty Ltd.13The administration of justice is not served by requiring Mr Brickell to file and serve a fresh application with substantially the same issues against Far North Plumbing Pty Ltd. [8] The Tribunal also has an obligation … to ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.14 [9] The application is scheduled for a compulsory conference on 3 February 2014. Directions can be made at the compulsory conference to ensure Far North Plumbing Pty Ltd has an opportunity to provide any further evidence or submissions that may differ from those filed by Mr Dineen. This minimises duplication of resources and costs to the parties, prevents delay and counters any prejudice to Far North Plumbing Pty Ltd. [10] It is therefore appropriate to join Far North Plumbing Pty Ltd as a Respondent. This will enable the issues in dispute between the parties to be finally determined. Should the application against Shawn Dineen be struck out as an abuse of process? [11] The application filed by Mr Brickell is for defective building work by SHAWN PATRICK DINEEN t/a PATRICK DINEEN PLUMBING & DRAINAGE15 [12] Mr Brickell‟s application against Mr Dineen must therefore disclose a cause of action based on contract: between him and Shawn Patrick Dineen t/a Patrick Dineen Plumbing & Drainage. [13] The work was performed on or around 5 October 2007.16 Invoices were rendered on 31 October 200717 and 1 November 200718. Both invoices: - are rendered to “Mark and Tina Brickell”; - are rendered in the name of “Far North Plumbing trading as Patrick Dineen Plumbing & Drainage”; and - contain “ACN 101 135 513”. 13 ASIC Company Extract dated 10 October 2013. 14 Queensland Civil and Administrative Tribunal Act 2009 s 4(c). 15 Application filed 19 September 2013 at page 3. 16 Ibid at page 5. 17 Invoice 05975 of Far North Plumbing trading as Patrick Dineen Plumbing & Drainage dated 31/10/2007. 18 Invoice 06395 of Far North Plumbing trading as Patrick Dineen Plumbing & Drainage dated 01/11/2007. -- 4 of 9 -- 5 [14] Far North Plumbing Pty Ltd has been registered as an entity since 27 June 2002 with an Australian Company Number (ACN) of 101 135 513.19 Far North Plumbing Pty Ltd was therefore a legal entity existing at the time the work was performed and the invoices rendered. [15] Therefore, the material discloses only a contract between Mark Brickell and Tina Brickell and Far North Plumbing Pty Ltd trading as Patrick Dineen Plumbing & Drainage. There is no pleading or disclosure of or reference to any contract between Mr Brickell and “Shawn Patrick Dineen t/a Patrick Dineen Plumbing & Drainage”. [16] The courts have traditionally exercised the summary jurisdiction to dismiss claims with caution. However, the jurisdiction will be exercised in cases where the claim is clearly untenable: ... great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff‟s claim.20 [17] The application does not disclose a cause of action against Shawn Patrick Dineen t/a Patrick Dineen Plumbing & Drainage. Allowing the application to proceed against Mr Dineen would be an abuse of process. [18] The Tribunal therefore orders the application against Shawn Patrick Dineen t/a Patrick Dineen Plumbing & Drainage to be struck out.21 Should the application be struck out because of issue estoppel? [19] Mr Dineen claims Mr Brickell is estopped from proceeding with his application: While there is not a complete coincidence between the parties to this proceeding and the previous proceeding an issue estoppel arises because the issues raised in this proceeding were precisely those raised in the previous proceeding (indeed that is the ground given by the applicant for the making of the orders by this tribunal).22 [20] In the previous proceedings in the Magistrates Court, Far North Plumbing claimed payment from Mr Brickell for plumbing work while Mr Brickell sought a remission from payment of the invoice for plumbing work. [21] The learned Magistrate made these relevant findings: - There was a contract between the parties; 19 ASIC Company Extract dated 10 October 2013. 20 General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at paragraph 10. 21 Queensland Civil and Administrative Tribunal Act 2009 s 47. 22 Grounds of application undated at paragraph 3. -- 5 of 9 -- 6 - The amount owing of $6,099.78 was to be offset by $2000 comprised of abatements of $1,500 for the cost of riser and installation and $500 to seal the pipes; - The tanks were not installed too low; and - The only finding of fault was a failure to conduct a final inspection of the tanks. [22] Mr Brickell‟s current application claims $12,081.38 for … complete refund of installation and related costs due to non-compliance notice issued by Local Council including council fees and geo-tech report.23 [23] Cassowary Coast Council issued the Notice of Non Compliance on 23 July 2010.24 [24] In determining issue estoppel, the likelihood of conflicting judgements is an important factor: The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By “conflicting” judgments we include judgements which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.25 [25] In considering a potential conflict, the types of breaches alleged in the different proceedings is relevant: … the doctrine of res judicata ought not apply where the remedy now sought is in respect of breaches other than those previously claimed.26 [26] The issues of defective workmanship determined by the learned Magistrate were whether the tanks were installed too low and unsealed pipes. To the extent that Mr Brickell‟s current application encompasses these issues, he is estopped from litigating them anew.27 The Tribunal is empowered to make a declaration to give effect to this finding28 and I do so. [27] However, the Notice of Non Compliance that forms the basis for Mr Brickell‟s current action extends beyond these issues to the return line from the aeration tank to the septic tank, the vents, shower waste, hose taps and valves. 23 Application filed 19 September 2013, page 7. 24 Cassowary Coast Notice of Non Compliance to Mark Brickell dated 23 July 2010. 25 Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589, per Gibbs CJ, Mason and Aickin JJ at paragraph 40. 26 Voiceworks Australia Pty Ltd v. Astor Hotel Motel Pty Ltd [2012] QCAT 75 at paragraph [17]. 27 Miller v. University of New South Wales [2002] FCA 882 at paragraph 81. 28 Queensland Civil and Administrative Tribunal Act 2009 s 60. -- 6 of 9 -- 7 [28] The learned Magistrate made no findings on or determination of these further issues because they were not part of the proceedings before Her Honour. The Tribunal‟s findings on or determination of these further issues therefore cannot contradict the earlier judgment. The issues that were determined by the learned Magistrate are therefore not the same issues to be determined by the Tribunal. [29] However, issue estoppel does not end there. Issue estoppel applies not only to the issues that were required to be decided in the previous proceedings: The plea… applies not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.29 [30] The question is whether Mr Brickell should have claimed the refund and related costs from the newly alleged defects during the earlier proceedings: … if a party fails to raise an issue although he or she might reasonably have done so, there may well be a true estoppel which precludes that party from raising it in later proceedings.30 [31] The learned Magistrate noted that Mr Brickell‟s claim of defective work was a defence and not a counter-claim and cited authority to the effect that: … to the extent that he obtains or is capable of obtaining an abatement, a price on that account, he must be considered as having received satisfaction for the breach of contract and is precluded from recovering in another action to that extent but no more.31 [32] The High Court of Australia has noted the historical limitation on the operation of issue estoppel to a failure to plead allegations available as a defence in an earlier action.32 In particular: To require that the defendant always raise his cross-claim or set-off at the first available time could cause great inconvenience. Hannen J in Davis v. Hedges (1871) LR 6 QB, at p.640 noted that an action for the price of goods delivered or work performed may be maintainable before it is possible for a defendant to ascertain the extent to which breach of warranty or breach of contract may afford a defence.33 [33] Mr Brickell‟s current application relates to the installation of the plumbing and drainage work. The basis of his claim is the Council‟s Notice of Non 29 Henderson v. Henderson (1843) 3 Hare, per Sir James Wigram V.C. at p.115. 30 Rogers v. The Queen (1994) 181 CLR 251, per Deane and Gaudron JJ at pp 274- 275. 31 Transcript of Proceedings for Small Claim 2 of 2009 and Minor Debt Claim 27 of 2009 at page 4. 32 Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589, per Gibbs CJ, Mason and Aickin JJ at paragraphs 25 to 36. 33 Ibid at paragraph 30. -- 7 of 9 -- 8 Compliance. The Notice is issued due to “plumbing and drainage work on the property”.34 The Notice refers to ten items requiring attention. Most of these items are not referred to in the previous proceedings. The Notice was issued on 23 July 2010, almost three years after the previous proceedings. [34] It would therefore appear that Mr Brickell did not raise these items in the previous proceedings because he was not aware of them: … 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 in the one proceeding… there are a variety of circumstances… why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.35 [35] These examples cited by the High Court to justify not pleading an allegation are predicated on a party‟s knowledge and a conscious decision not to proceed. Mr Brickell did not litigate the issues in the Notice because he did not know about them. The High Court‟s reasoning would apply a fortiori to a party who does not know about the issue and therefore could not make a conscious decision to raise it in the earlier proceedings. [36] It would therefore not only be unreasonable to expect Mr Brickell to have raised these further issues when he himself was not made aware of them, it would be incongruous. [37] Therefore, the application is not to be struck out for issue estoppel. The issues Mr Brickell is estopped from raising in these proceedings are confined to the installation height of the tanks and the sealing of the pipes. What are the appropriate Orders? [38] The appropriate Orders are: 1. Far North Plumbing Pty Ltd is joined as a Respondent to the Application; 2. The Application against Shawn Patrick Dineen trading as Patrick Dineen Plumbing & Drainage is struck out; 3. It is declared that the issues for the Tribunal‟s determination do not extend to whether the tanks were installed at the correct height and whether the pipes were correctly sealed; and 4. The compulsory conference listed in Bundaberg at 1.30pm on 10 February 2014 is confirmed. 34 Cassowary Coast Notice of Non Compliance to Mark Brickell dated 23 July 2010. 35 Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589, per Gibbs CJ, Mason and Aickin JJ at paragraph 37. -- 8 of 9 -- 9 -- 9 of 9 --