Joinder of a party in QCAT

In the Queensland Civil and Administrative Tribunal (the tribunal), an application to join a party to the proceeding may be made by a person or by the tribunal on its own initiative (s42(2)).

The tribunal may join a party to a proceeding if the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or the person’s interests may be affected by the proceeding; or for another reason, it is desirable that the person be joined to the proceeding (s42(1)).

A joinder application concerns a proceeding already on foot brought within the existing substantive proceeding being a proceeding in QCAT’s original or review jurisdiction (Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114, [68] per Philippides JA).

A proceeding includes an appeal and an application for leave to appeal to the Appeal Tribunal (see Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and meaning of ‘proceeding’).

Before determining whether a person should be joined to the proceeding or an application initiated to join a party, it is important to consider:

1. the nature of the QCAT proceeding such as whether it is a proceeding in the tribunal’s original or review jurisdiction
2. who are the parties to the existing QCAT proceeding
3. the nature of the proposed order in respect of the application for joiner. For example, is the person to be joined as a named applicant or named respondent (or in some other capacity).
4. whether the existing parties to the proceeding and in some cases the proposed person to be joined to the proceeding consent to the application to join a party, and
5. any enabling Act that confers jurisdiction on the tribunal, the QCAT Act, the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), the Human Rights Act 2019 (Qld), where applicable and any relevant QCAT Practice Direction (No.8 of 2013).

What is the nature of the QCAT proceeding?

In its original jurisdiction the parties to the proceeding, as provided under s39, include (a) the applicant; or (b) a person in relation to whom a decision of the tribunal is sought by the applicant; or (c) intervening in the proceeding under section 41; or (d) joined as a party to the proceeding under section 42; or (e) someone else an enabling Act states is a party to the proceeding.

An example of a matter in the tribunal’s original jurisdiction involving a joinder application is a building dispute involving the determination of contractual issues for the performance of domestic building work.

In Mair Renovations v Miller (No.2) [2014] QCAT 506, the home owners applied to join the architect to the proceeding that was commenced in the tribunal by the building contractor. The architect was appointed to administer the contract between the home owner and building contractor for the completion of building work.

The tribunal identified issues relevant to the exercise of its discretion under s42 of the QCAT Act to refuse the joinder application, including the home owner’s delay in bringing the joinder application, the prejudice to the building contractor referring to time and costs, the adjournment of the hearing of the building dispute, and the increase in the number of hearing days as a result of the complexity of the issues to be determined if the architect was joined.

In a body corporate dispute about the scope of work and remuneration to be paid to the caretaker by the body corporate, the tribunal determined that joining the lot owners would further complicate the proceedings and would lengthen the pre-hearing steps (Mirvac Queensland Pty Ltd & Anor v Principal Body Corporate for the Ephraim Island CTS33951 [2015] QCAT 160, [23]).

The tribunal said, amongst other things, that the lot owners seeking to be joined as a party bore the onus of establishing that the tribunal had power to, and ought to exercise, its power to make such an order. The tribunal found that the lot owners had not discharged that onus ([29]).

In its review jurisdiction the parties are, as provided under s40, to include (a) the applicant; or (b) the decision-maker for the reviewable decision the subject matter of the proceeding; or (c) intervening in the proceeding under section 41; or (d) joined as a party to the proceeding under section 42; or (e) someone else an enabling Act states is a party to the proceeding.

A decision-maker in a review proceeding before the tribunal has a duty to assist the tribunal to arrive at the correct and preferable decision (QCAT Act, s21).

Enabling Acts confer review jurisdiction on the tribunal and in some matters the decision-maker is required to give notice to a person who may be affected by the decision that a review application has been filed in the tribunal.

The enabling Act may also provide in some instances that more than one person or entity may be entitled to review a reviewable decision. In either case, an application to be joined as a party to the proceeding may be required, the relevant person having received notice of a review application being started in the tribunal, or a reviewable decision made under an enactment.

For example

Liquor Act 1992 (Qld) – The names of the objectors to an application for a permit are to be given notice of the application for review pursuant to s32(1).

National Injury Insurance Scheme (Queensland) Act 2016 (Qld) – The agency must give notice of a decision to “another affected person for the internal review”. A person who may apply for review includes a person who has been given, or may be given, an information notice.

Local Government Act 2009 (Qld) – The Councillor Conduct Tribunal must give to all persons who received a notice pursuant to s150AS written notice that a review has been started.

Agents Financial Administration Act 2014 (Qld) – Certain persons become a party to the proceeding for a review under s103.

Crime and Corruption Act 2001 (Qld) – The Crime and Corruption Commission or the prescribed person against whom the reviewable decision has been made may apply for a review of the reviewable decision.

Child Protection Act 1999 (Qld) – Certain persons entitled to be given notice of a reviewable decision may apply to the tribunal for a review.

Queensland Building and Construction Commission Act 1991 (Qld) – The commission is required to give notice of certain reviewable decisions to the building contractor responsible for the work and the home owner.

Under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) the home owner or building contractor, as the case may be, may apply to review a reviewable decision made by the Queensland Building Construction Commission about building work performed by the building contractor responsible for the work (Dixonbuild Pty Ltd trading as Dixon Homes v Queensland Building and Construction Commission & Anor [2017] QCAT 377). The Queensland Building and Construction Commission, as the decision-maker, is a named respondent for a review of a reviewable decision made under the QBCC Act.

In Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No.2) [2012] QCATA 242 the Appeal Tribunal was not persuaded that joining the home owners to a review proceeding commenced by the builder was necessary. The Appeal Tribunal determined that the limited resources of QCAT should not be expended so parties could use the review process to gather evidence for the purposes of litigating elsewhere, even if time and effort was saved in that litigation because of the evidence given in the review application. (Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No.2) [2012] QCATA 242, [20]-[21]).

More recently, in Dixonbuild Pty Ltd trading as Dixon Homes v Queensland Building and Construction Commission & Anor [2017] QCAT 377 the tribunal was satisfied that the building contractor’s application to join the home owner to the review proceeding should be allowed. The tribunal determined that any additional party would add to the length of the proceeding and hearing, and that this should be balanced against the builder’s submission that, if the home owner was not joined, the decision of the tribunal might result in separate proceedings being commenced by the home owner. The tribunal considered the objects of the QCAT Act to deal with matters in a way that is fair, just and economical and ultimately determined that it was appropriate to exercise its discretion for the home owner to be joined as a party to the proceeding.

When should a party be joined to the proceeding?

The starting position is s42 of the QCAT Act:

(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 interests 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.

(2) The tribunal may make an order under subsection (1) on the application of a person or on its own initiative.

The matters prescribed under s42(1) are not exhaustive. Each case will depend on its own particular circumstances (Coral Homes (Qld) v Pty Ltd v Queensland Building Services Authority [2012] QCATA 241).

In some matters the tribunal is required to consider the Human Rights Act 2019 (Qld) (the Act) as required by s48, for example, amongst others, a proceeding in the tribunal’s review and guardianship jurisdictions. Relevantly, in such cases the tribunal must be satisfied that limits imposed by any order made are reasonable and justified in accordance with s13 of the Act. This may include an order joining or refusing to join a party to a proceeding.

In conducting a proceeding, the tribunal is required to, amongst others, observe the rules of natural justice and “act with as little formality and technicality and with as much speed” as the QCAT Act, an enabling Act or the rules and a “proper consideration of the matters before the tribunal permit” (s28). The tribunal is also required to have regard to its objectives such as to ‘deal with matters in a way that is accessible, fair, just, economical, informal and quick’ (s 3).

Whether to join a party to a proceeding involves the exercise of a broad discretion that requires the tribunal to undertake “a balancing exercise” as to the advantages and disadvantages in joining or not joining the third parties (Just GI P/L v Pig Improvement Co Aust P/L [2001] QCA 48). As stated by Williams J in that matter at [17]:

“The question is one on which judicial minds might well differ. There are clearly advantages and disadvantages in joining or not joining the third parties. A balancing exercise is called for. It is difficult at a precise moment in time to give an immutable answer to such a question. Something that initially appears to be extremely complex, may well, when the pleadings are closed and interlocutory steps completed, become a very simple issue. It is partly because of such considerations that appellate courts are loathe to interfere with the exercise of a discretion on a procedural issue.”

An unexplained and lengthy delay in bringing an application to join a party to the proceeding may be a ground for refusing to join a party to the proceeding (Bartlett v Body Corporate for Beaches Surfers Paradise [2011] QCAT 91).

There must be good reason why a third party should be joined in an action such as to ensure finality of litigation and to avoid multiple proceedings (MGM Containers P/L v Wockner [2006] QCA 502, [27] per Chesterman J):

“…there are good reasons why a third party should be joined in an action where a defendant has an arguable case for contribution or indemnity from the third party against a plaintiff’s claim. Such a joinder ensures finality in litigation, avoids multiple proceedings with associated extra cost, and obviates the possibility that there might be different decisions given on the same issues if tried by different courts. The second principle is that a plaintiff should be allowed to prosecute its action and obtain judgment without being delayed or inconvenienced by the defendant’s endeavours to offset its liability. See Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471.”

The question of whether a party has a sufficient interest in the matter may also be a relevant consideration. Prior to the Crime and Corruption Act 2001 (Qld) being amended to permit the Crime and Corruption Commission to apply for a review of a reviewable decision, the tribunal found that the commission had a sufficient interest in police disciplinary proceedings due to its monitoring role for police misconduct under the relevant Act (Crime and Misconduct Commission v Wlison & Anor [2012] QCA 314).

Further to that, the tribunal determined that the question of whether a party should be joined to a proceeding that involves the exercise of a broad discretion should not be determined by the role the party may take in the proceeding if joined (Commissioner of Police New South Wales Police Force v Fine [2014] NSWCA 327, [81]).

In Assistant Commissioner Brian JA Wilkins & Anor v Gunter [2020] QCATA 101 (Gunter) the Appeal Tribunal determined that the role of a party joined to an appeal from a decision made in the tribunal’s disciplinary review jurisdiction may be limited in some cases where it is found to be appropriate in all of the circumstances such as to direct the joined party to only make submissions in respect of live issues to be determined by the Appeal Tribunal.

Whether a direction limiting a joined party’s role in the proceeding should be made will depend on the circumstances of the matter, subject to any modifying provisions in the enabling Act and having regard to the requirements of the QCAT Act, such as to afford procedural fairness to all parties.

In Gunter the Appeal Tribunal considered that the commission having been joined as a party to the appeal should be required to apply for leave to raise a new contention on the basis that the new contention was analogous to an application for leave to amend the application for leave to appeal or appeal.

The Appeal Tribunal said that whether leave should be given to a party to amend the application for leave to appeal or appeal will be determined according to established principles. This requires a consideration of the delay, wasted costs and the legitimate concerns of proper case management, and the use of resources must be weighed in considering whether to allow the amendment (see Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175).

In the guardianship jurisdiction, an active party for a proceeding in relation to an adult includes the adult; if the adult is not the applicant, the applicant; the person proposed for appointment or reappointment of a guardian, administrator or attorney for the adult; any current guardian, administrator or attorney for the adult; the public guardian; the public trustee; and a person joined as a party to the proceeding by the tribunal (see Practice Direction 8 of 2021).

The tribunal is required to give an active party a reasonable opportunity to present that party’s case, to access documents before the tribunal and to make submissions about a document or information accessed by an active party (See Practice Direction 8 of 2021 and DJP [2010] QCAT 577, [17]). A non-party cannot access documents before or during a hearing. A non-party’s entitlement to access documents after a hearing is governed by s103(2) of the Guardianship and Administration Act 2000 (Qld) (see Practice Direction 8 of 2021).

In a guardianship proceeding the question of whether a person should be joined as a party will involve a consideration of s42 of the QCAT Act and the relevant provisions of the Guardianship and Administration Act 2000 (Qld) (GAA Act) that confers power on the tribunal.

In RACQ Insurance Limited v Kitt [2015] QCATA 158 the Appeal Tribunal considered the tribunal’s obligation to involve RACQ as the personal injuries insurer for the adult of an application before the tribunal for a declaration of capacity.

The Appeal Tribunal considered the requirement under s118(1) of the GAA Act to give notice to “anyone else the tribunal considers should be notified” (see s118(1)(l)). The Appeal Tribunal said that it should be read in the context of the preceding provisions such that the power should be limited to a person who is involved in the adult’s life and current decision-making structure or process, or a person who is concerned to ensure that the principles of s11A(1) of the GAA Act are met (RACQ Insurance Limited v Kitt [2015] QCATA 158, [14]).

Section 11A(1) provides that adults with impaired capacity are the primary focus of the Act. The Appeal Tribunal said that the adult’s rights, value to society, independence or self-reliance may also be relevant considerations (RACQ Insurance Limited v Kitt [2015] QCATA 158, [17]).

How is the joinder application finalised?

The tribunal will make directions for submissions from the parties and the applicant for joinder (if not already a party). The tribunal may also invite submissions from the person who is the subject of the application. The submissions must set out whether they agree or not agree with the orders sought.

It may be appropriate for the tribunal to direct that the joinder application be determined by a member of the tribunal on the papers and without an oral hearing. An oral hearing may be required in some matters.

The tribunal may decide to dismiss the application to be joined as a party to the proceeding. Although the party seeking to be joined may wish to apply for its costs, it has been determined that only a party to a proceeding may be the beneficiary of a costs order (Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114).

On the other hand, the tribunal may order that the person should be joined as a party to the proceeding and shall specify the capacity in which the person is joined and how they will be referred to in the proceeding. The joined person will have the benefit, or detriment, as the case may be, of any final decision made by the tribunal in the proceeding.

Joanne Browne LLB LLM is a full-time member of the Queensland Civil and Administrative Tribunal, a Solicitor and accredited Mediator. Any views expressed are her own, and not those of the tribunal.