Huenerberg v Serenity Constructions Qld Pty Ltd

[2018] QCAT 394

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Huenerberg & Anor v Serenity Constructions QLD Pty Ltd [2018] QCAT 394

PARTIES:

DIRK HUENERBERG
and
ERIKA HUENERBERG
(applicant)

v

SERENITY CONSTRUCTIONS QLD PTY LTD

(respondent)

APPLICATION NO/S:

BDL223-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

16 October 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Application BDL223-17 is struck out.  

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where Consent Orders ‘in full and final satisfaction of the issues in dispute’ – where further proceedings commenced – whether issue estoppel applied to prevent further proceedings – where issues not included in original application – whether issues should have been included in original application – where applicants aware of issues during earlier proceedings – where applicants incorrectly believed they had to undergo internal review – where applicants misread application form – where misreading form not sufficient explanation for not including issue in original application – where nothing prevented issues being raised in original application – where Tribunal has statutory mandate to resolve matters in a way that is accessible, fair, just, economical, informal and quick – where allowing further application about issues that could reasonably have been included in original application would unnecessarily incur upon limited resources of parties and Tribunal and amount to abuse of process

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 47

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 069
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Henderson v Henderson (1843) 3 Hare
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212

Rogers v The Queen (1994) 181 CLR 251

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

What is this Application about?

1. On 29 November 2016 and following a Compulsory Conference, Dirk Huenerberg, Erika Huenerberg and Serenity Constructions QLD Pty Ltd agreed to Consent Orders for Application BDL186-16, including an order that the orders ‘are in full and final satisfaction of the issues in dispute’. 

2. On 21 September 2017, Dirk Huenerberg and Erika Huenerberg filed Application BDL223-17 against Serenity. However, on 22 January 2018 Serenity filed an application for miscellaneous matters to dismiss Application BDL223-17 on the basis that all items in dispute were finalised by the Consent Orders in the original proceedings.

   What is the effect of the Consent Orders?

3. The Tribunal’s jurisdiction extends to making orders relating to the issues in dispute in the application before it. The Tribunal cannot make orders extending to issues that do not form part of the application before it at that time.

4. The issues in dispute in Application BDL186-16 related to external floor tiles, down lights, ceiling floors, fly screens, back sliding glass door, vanity tops in bathroom, roof tiles, downpipe and cooktop. The Consent Orders resolved all those issues.

5. The issues in dispute in the current Application BDL223-17 relate to stormwater and hedges. These were not issues in dispute in the previous application and therefore could not have formed part of the Consent Orders in Application BDL186-16.

6. However, this does not end the matter. Issue estoppel can apply to prevent further proceedings relating not only to the issues that were required to be decided in the previous proceedings, but those that should reasonably have been included:

   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.[1]  

   [1]Henderson v Henderson (1843) 3 Hare, 115 (Sir James Wigram).

   Does issue estoppel apply to the current proceedings?

7. Serenity submitted that Mr and Mrs Huenerberg are effectively estopped from bringing these proceedings because they were aware of the additional items by the time of the Compulsory Conference on 29 November 2016 when they agreed to the Consent Orders.

8. Mr and Mrs Huenerberg concede that they were aware of stormwater issues as early as December 2013.[2]  Mr Huenerberg also refers to concerns with concrete and drainage in an email to the Queensland Building Construction Commission (QBCC) dated 1 November 2016.

   [2]Statement of Evidence signed 15 February 2018, paragraph 3.

9. The question is whether Mr and Mrs Huenerberg should have claimed these issues 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.[3]

   [3]Rogers v The Queen (1994) 181 CLR 251, 274-5 (Deane and Gaudron JJ).

10. Mr and Mrs Huenerberg submitted that they did not raise the stormwater issue in the earlier proceedings because the ‘QBCC report and the Internal Review report in our application to QCAT dated 21/09/17 has to part of the evidence before you are able to lodge a complaint to QCAT’.[4]

    [4]Statement of Evidence signed 15 February 2018, paragraph 3.

11. Unfortunately for Mr and Mrs Huenerberg, their submission is not correct. Internal review decisions are a precursor to the Tribunal’s jurisdiction in review proceedings only. They do not preclude commencing separate civil proceedings against the builder.

12. To support their submission, Mr and Mrs Huenerberg also attached their QCAT Application form and highlighted the part which states in bold:

    NOTICE TO APPLICANT

    You must file with this application the formal notification letter from the Queensland Building and Construction Commission advising that the dispute resolution process has been complied with

13. However, this extract is referring to the letter confirming that parties have participated in the QBCC’s early dispute resolution process, which operates as a precursor to the Tribunal’s jurisdiction in civil proceedings. It is not referring to the QBCC’s internal review process. Misreading the form is not a sufficient explanation for not including the stormwater issues in the original application:

    [12] In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure that it acts in its own best interests, or accept the consequences; and that mistakes like those made here, while attracting sympathy, can no longer prevail over statutory and practical constraints on available resources for dispute resolution.

    [13] When these matters are appreciated, it will be seen that a party’s own fundamental error in misreading a document cannot be categorised as a ‘reasonable excuse’ for the purpose of revisiting proceedings which were otherwise correctly and legitimately brought to an end.[5]

    [5]Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 069, [12]-[13].

14. Nothing prevented Mr and Mrs Huenerberg from raising the stormwater issue in the QBCC early dispute resolution process before their original Application BDL186-16. The evidence is that although Mr and Mrs Huenerberg were aware of the stormwater issues as early as December 2013, they did not include them as part of the QBCC early dispute resolution process or Application BDL186-16.

15. Because Mr and Mrs Huenerberg were aware of the stormwater issues for three years before the current application and did not raise these issues in the previous application, I am satisfied that they are estopped from proceeding with the current application to the extent that it relates to stormwater issues.

16. Similarly, Mr and Mrs Huenerberg concede they were aware of the hedge issues by

    
    

    9 August 2016. Despite this, they did not include them in their original application. Although they filed their original application almost three weeks earlier on 20 July 2016, they could simply have filed an amended application to add this issue:

    Parties must assume a responsibility to take care in preparing material upon which they seek to rely, and to lodge the correct application. The forms are not difficult to understand and may even fairly be described as intuitive.[6]

    [6]Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [46] (Wilson J).

17. Because Mr and Mrs Huenerberg were aware of the hedge issues for at least three months by the time of the Compulsory Conference, I am satisfied that it was not reasonable for them to not include it as part of the original application, particularly where the Tribunal has a statutory mandate to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[7]  

    [7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b).

    Should the application be struck out as an abuse of process?

18. To allow an application about issues of which Mr and Mrs Huenerberg were aware and could reasonably have been included in their original application is an unnecessary incursion upon the limited resources of the parties and the Tribunal and would amount to an abuse of process:

    The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings.’ Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[8]

    [8]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13].

19. Because of this, the appropriate order is that Application BDL223-17 is struck out. [9]

    [9]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1)(c).