Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114

Significance

This case deals with the power of the Queensland Civil and Administrative Tribunal (QCAT) to award costs to an entity that successfully resists a joinder application.

Facts

The Queensland Building Services Authority issued a number of directions to rectify to McNab Constructions Australia Pty Ltd (respondent). The respondent applied for review of the directions to rectify in the Commercial and Consumer Tribunal, which became proceedings in QCAT.

The respondent applied under section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCATAct) for orders joining a number of entities, including Donovan Hill Pty Ltd (applicant).

The presiding QCAT Member dismissed the respondent's joinder application and ordered the respondent to pay the costs of the applicant.  The orders were made on the basis that the applicant and respondent were parties to a joinder application proceeding, 'being a proceeding within a proceeding' thus engaging the power to award costs under section 102 of the QCAT Act. The respondent appealed the costs order.

An Appeal Tribunal of QCAT set aside the costs order and dismissed the applicant's cost application.

The applicant sought leave to appeal the order of the QCAT Appeal Tribunal, contending that QCAT was exercising its original jurisdiction in determining a joinder application under section 42 of the QCAT Act, and it was therefore a 'party to the proceeding' for whose benefit a costs order might be made within section 39(b) of the QCAT Act.

Decision

In the majority decision, Gotterson and Philippides JJA held that the joinder application was not itself a 'proceeding' in QCAT's original jurisdiction. Their Honours also held that the applicant was not a 'party to a proceeding' and as a result, QCAT was not empowered to make a costs order.

Gotterson and Philippides JJA gave separate judgments although concurred in dismissing the appeal. Unlike the view adopted by Philippides JA, Gotterson JA considered that if a joinder application was a proceeding exercised in QCAT's original jurisdiction, a party which successfully resisted the application would be a party to the proceeding pursuant to section 39(b) of the QCAT Act.