Bilborough v Feeney & Anor [2003] QDC 43

DISTRICT COURT OF QUEENSLAND CITATION: Bilborough v Feeney & Anor [2003] QDC 043 PARTIES: CHRISTOPHER RUSSELL BILBOROUGH Appellant v TERENCE JOHN FEENEY and SALLY ANNE FEENEY First Respondents NATIONAL ASSET PLANNING CORPORATION PTY LTD (In Liquidation) Second Respondent FILE NO/S: Appeal 3189/2002 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Property Agents and Motor Dealers Tribunal DELIVERED ON: 24 April 2003 DELIVERED AT: Brisbane HEARING DATE: Without oral hearing JUDGE: McGill DCJ ORDER: 1. Notice of appeal amended in terms of the draft annexed to further submissions filed on 25 March 2003 in appeal D3175/2002. 2. Appeal allowed. 3. Order of Property Agents and Motor Dealers Tribunal of 27 June 2002 varied by deleting that part of the order by which the appellant was ordered to reimburse the claim fund in the amount of $107,820 plus the amount of costs to be determined by the certification of a qualified costs assessor. 4. Order that the appellant pay the first respondents’ costs of the appeal to be assessed. CATCHWORDS: APPEAL AND NEW TRIAL – Appellate Jurisdiction – appeal from Property Agents and Motor Dealers Tribunal – whether chief executive necessary respondent – whether claimants necessary or appropriate respondents. APPEAL AND NEW TRIAL – Costs – party made respondent unnecessarily – appellant to pay that party’s costs of appeal. -- 1 of 6 -- 2 COUNSEL: SOLICITORS: Blake Dawson Waldron for the appellant Carter Capner for the first respondents The second respondent took no part in the appeal. [1] The Property Agents and Motor Dealers Tribunal on 27 June 2002 ordered that the chief executive of the Department of Tourism, Racing & Fair Trading (“the chief executive”) pay from the claim fund pursuant to the Property Agents and Motor Dealers Act 2000 (“the 2000 Act”) the sum of $107,820 plus costs to Terrence John Feeney and Sally Anne Feeney, and ordered that Christopher Russell Bilborough and National Asset Planning Corporation Pty Ltd reimburse the claim fund in that amount in accordance with s 490 and s 491 of that Act. [2] By s 540 of that Act there is an appeal to the District Court from a decision of the tribunal but only on a question of law. The appellant Mr Bilborough appealed against that order by notice of appeal filed 25 July 2002. On that day the chief executive also appealed against that order. [3] The persons who were the beneficiaries of the order of the tribunal, and who had made a claim on the chief executive which was heard and determined by the tribunal in this way, applied to have the appeal by the chief executive struck out, and also applied in the appeal by Mr Bilborough for an order that the appeal against them be struck out. On 15 August 2002 I delivered judgment dismissing the application to strike out the chief executive’s appeal. 1 That application was heard on 7 August 2002. The application to strike out the appeal by Mr Bilborough came before me on that day as well, when by consent I made an order that the application be dismissed. [4] The appeal by Mr Bilborough has now come on before me for hearing. The appellant seeks to substitute a notice of appeal 2 by which only one issue is raised in the appeal, namely that the tribunal erred in law in finding that Mr Bilborough was liable to compensate the claim fund by reason of the provisions of s 125 of the Auctioneers and Agents Act 1971 (“the 1971 Act”) and/or s 604(1) of the 2000 Act. Previously the appellant had sought an order that the whole of the order made by the tribunal be set aside. There is now no challenge to that part of the order of the tribunal by which Mr and Mrs Feeney were to receive a payment from the claim fund. There is no opposition to the appeal being confined in this way, and I make the amendment accordingly. [5] It is important to understand that the order made by the tribunal was, as I have indicated, in two parts: that the first respondents to the appeal before me, the claimants before the tribunal, be paid a particular amount out of the claim fund under the Act, and that the appellant (and the second respondent, a company in liquidation which took no part in the appeal) reimburse the claim fund in that amount. So long as the appellant was seeking to interfere with the first part of the order, the first respondents were clearly appropriate respondents, having an interest in preserving that part of the order. Now, however, the appellant seeks only to 1 [2002] QDC 215. 2 The proposed amended notice of appeal is annexed to further submissions filed on behalf of the appellant in Appeal D3175 of 2002 on 25 March 2003. -- 2 of 6 -- 3 challenge the second part of the order, on the limited (but the appellant submits sufficient) ground that the order was made on the basis of a provision of the 1971 Act which no longer applied to the hearing before the tribunal, following the commencement of the 2000 Act. [6] The appellant’s confidence in so confining the grounds of the appeal is no doubt a consequence of earlier decisions where appeals by him against other similar orders of the tribunal have been successful on this ground. Two such appeals were heard by Britton DCJ in September 2002, Bilborough v Gordon [2002] QDC 271 on 16 September, and on 17 September Bilborough v Hunter [2002] QDC 272.3 The former case involved an appeal by Mr Bilborough which was similar to the present appeal, to which the chief executive was not a party. However, an officer of Crown Law appeared as amicus curiae but in practice to protect the interest of the chief executive, and made various submissions relevant to the appeal. In that case the appeal was also argued in relation to the payment out to the claimants, but in that respect was unsuccessful. However, his Honour held that s 125 of the 1971 Act did not apply to the appeal, and that the tribunal had erred in law in making the order for reimbursement against the appellant, which was set aside. [7] In Bilborough v Hunter (supra) there was a similar appeal, but also an appeal by the chief executive (which I had on 15 August 2002 refused to strike out) which was argued at the same time. The appeal by the chief executive was dismissed. The appeal of Mr Bilborough was also successful in relation to the s 125 point, for the same reasons as stated in Gordon (supra). When that matter was argued the chief executive was represented by senior counsel in relation to his appeal, and a Crown Law officer appeared, against as amicus curiae, in relation to the appeal by Mr Bilborough. [8] When the application to strike out the appeal by the chief executive was considered by me, I concluded that the chief executive had a right to appeal to protect the public interest. I declined finally to decide a question of whether or not the chief executive was entitled to appeal on grounds not argued before the tribunal, on the basis that the matter was not so clear that it would be appropriate to strike out the appeal on that ground. I made a similar decision for the same reasons in the matter of Hunter. When that matter came before Britton DCJ he agreed with my reasoning, and dealt with at least some of the issues sought to be raised by the chief executive on their merits, although his Honour was not persuaded that the submissions advanced on behalf of the chief executive in support of those matters ought to succeed. The chief executive’s appeal was dismissed. [9] The Act in s 540 which provides for the appeal makes no reference to any procedural matters (so far as is relevant for present purposes) and these are therefore covered by Part 3 of Ch 18 of the Uniform Civil Procedure Rules 1999. The relevant rule is r 784 which provides for an appeal to a court from an entity other than a court. By r 785, Part 1 with certain exceptions applies to appeals under this part, and one of the rules made applicable is r 749 which provides: 3 I am told that there have been two other appeals by Mr Bilborough determined earlier this year, Bilborough v Bailey (appeal 3149/02) and Bilborough v Gleeson (appeal 3188/02), where Forno DCJ followed the approach of Britton DCJ. -- 3 of 6 -- 4 “(1) Each party to a proceeding who is directly affected by the relief sought in the notice of appeal or who is interested in maintaining the decision under appeal must be made a respondent to the appeal. (2) The notice of appeal need not be served on a party who is not made a respondent to the appeal.” [10] That rule applies to appeals from proceedings in courts, and is therefore worded with that in mind. Rule 785 applies the rule with necessary changes. In the context of the present appeal, the rule therefore requires that each party to the proceeding before the tribunal be made a respondent if that party satisfies the requirements of the rule. [11] At the time when the notice of appeal was filed in the present matter, there is no doubt that the first respondents satisfied the requirements of that rule, since they were directly affected by the order sought on appeal setting aside the order that they receive a payment from the claim fund. What is now proposed however is that the notice of appeal be amended in a way that produces the result that they will no longer be directly affected by the relief sought in the notice of appeal, and they will have not interest in maintaining the decision under appeal in the sense that they will not be in any way adversely affected by the success of the appeal. Had the appeal been originally confined in the way it is proposed now to confine it by the amended notice of appeal, the first respondents would not have been persons required to be made respondents pursuant to r 749. Indeed they would not have been proper respondents at all. Had the notice of appeal then be so confined and had they then applied to have the appeal against them dismissed, that application ought to have succeeded, although it would result in their being struck out of the appeal rather than the appeal being struck out. [12] The difficulty for the appellant is that r 749 only requires persons who were parties to the proceeding which is subject to the appeal, and who satisfy the other requirements of the rule, to be made respondents to the appeal. As the relief sought by the appellant is now confined, there is no person who was a party to the proceeding who satisfies the requirements of rule 749. As I said in my earlier reasons, the chief executive has a right of appeal under s 540, and has standing to appear before the tribunal under r 518; both of those sections are drafted on the assumption that the chief executive is not, or at least not necessarily, a party to the proceeding before the tribunal. It seems to have been accepted on the last occasion that the chief executive was not a party to this proceeding before the tribunal. It follows that there was no breach of r 749 in failing to join the chief executive as a respondent. [13] Nevertheless the effect of the proposed amendments to the notice of appeal will be that there will be no party to the appeal who will be directly affected by the relief sought in the notice of appeal as amended, or who is interested in maintaining the decision under appeal. There would therefore be no controverter to the appeal. Nevertheless the person who would, if a party to the proceeding before the tribunal, had satisfied the requirements of r 749 in the context of the current proceedings is plainly the chief executive. It may be that the chief executive ought always to be made a respondent to an appeal by a person against whom an order has been made requiring that person to reimburse the claim fund, but whether or not that is the case in my opinion in the present case now that there is no existing respondent who is a -- 4 of 6 -- 5 controverter it is necessary for the chief executive to be joined as a respondent to the appeal in order to provide a controverter. If the chief executive does not have a good answer to the submissions on behalf of the appellant, or does not oppose the appeal, then the appeal can be allowed, but in my opinion the chief executive ought to be heard before deciding whether to allow the appeal on the limited grounds now pursued. [14] The appeal was not argued orally before me, the appellant and the first respondents merely put in written submissions before me. However, once I formed the view that the chief executive ought to be heard, the appellant contacted the chief executive, and I have now received from Crown Law on behalf of the chief executive advice that the chief executive does not wish to contest the sole remaining point raised by the appeals, namely the issue concerning s 125 of the 1971 Act. 4 The chief executive would only wish to be heard if the appeal might have the consequence of interfering with that part of the order made by the tribunal by which National Asset Planning Corporation Pty Ltd was ordered to reimburse the claim fund in the amount paid out. The appellant does not seek to interfere with that part of the order, and it follows that the chief executive does not oppose what is now sought by the appellant. In these circumstances, there is no reason to join the chief executive as a party, or to hear further from the chief executive. [15] As noted I have read the reasons of Britton DCJ in Bilborough v Gordon (supra) and Bilborough v Hunter (supra), and respectfully agree with them. Accordingly I allow the appeal and vary the order of the tribunal made on 27 June 2002 by deleting that part of the order of the tribunal by which it was ordered that Christopher Russell Bilborough reimburse the claim fund in the amount of $107,820 plus the amount of costs to be determined by the certification of a qualified costs assessor. Costs [16] The remaining issue is as to the costs of the appeal. The appellant sought an order that the first respondents pay his costs of the appeal provided that the court allowed an indemnity certificate to the first respondents under s 15(2) of the Appeal Costs Fund Act 1973. Otherwise, the appellant sought no order as to costs. [17] On the other hand, the first respondents have submitted that they ought to have their costs against the appellant, on the ground that they ought never to have been joined as parties to the appeal. Clearly if the appeal had originally been confined in the way in which it is now confined, that is correct. The appellant did not seek to justify the wider appeal originally commenced, and merely sought a mechanism by which, in effect, he could obtain his costs from the Appeal Costs Fund Act. [18] In my opinion the appropriate order for costs ought not to be distorted by any consideration of the availability of any relief under the Appeal Costs Fund Act. The position is that now the appeal has been confined in this way it has become inappropriate to have the first respondents as parties to the appeal at all. When an appellant joins inappropriate parties to an appeal, the ordinary consequence is that 4 The reason for this attitude is that the chief executive relies on the amendment to the 2000 Act by the Property Agents and Motor Dealers Amendment Act 2002: See the outline of submissions filed on behalf of the chief executive on 12 February 2003. It is unnecessary to decide whether this reliance is justified. -- 5 of 6 -- 6 the appellant should pay those parties their costs of the appeal, and no reason has in my opinion emerged in the circumstances of this case to depart from that position. I accept the submissions on behalf of the first respondents, and accordingly the appeal will be allowed in the way I have indicated, but the appellant will pay the first respondents’ costs of the appeal to be assessed. -- 6 of 6 --