QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Seirlis & Ors v Queensland Building and Construction Commission [2023] QCAT 299	
PARTIES:	Terry Seirlis	

(first applicant)	

Ties Group Pty Ltd ACN 130 450 341	

(second applicant)	

UKL Pty Ltd ACN 123 360 823	

(third applicant)	

	v	
	Queensland Building and Construction Commission	

(respondent)	

APPLICATION NO/S:	QR160-07	
MATTER TYPE:	General administrative review matters	
DELIVERED ON:	26 June 2023	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	A/Deputy President Brown	
ORDERS:	The application for miscellaneous matters filed 26 April 2023 is refused.	
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – ALTERNATIVE DISPUTE RESOLUTION – MEDIATION – where the applicants sought an order from the tribunal referring the matter for private mediation – where the proposed mediator is not one of the persons referred to in s 79 of the QCAT Act – where the tribunal does not have the power to refer the matter to private mediation  
Dispute Resolution Centres Act 1990 (Qld), s 27AB
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(b) s 75(1), s 79
Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2015] QCATA 101	
APPEARANCES & REPRESENTATION:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
What is this application about?
[1]	The applicants have applied for an order that the proceeding be referred for private mediation with the costs of the mediation to be borne equally by the parties. 
[2]	The order sought by the applicants is in the following terms:
That pursuant to s. 75 of the QCAT Act or alternatively paragraphs 31 – 33 of QCAT PD no. 9 of 2022 by no later than 7 June 2023 the parties attend and genuinely participate in a mediation of the dispute on the following terms:
a.	The parties appoint Mr Martin Daubney AM KC as the mediator;
b.	The mediation must be attended by those persons who have the ultimate responsibility for deciding to settle the dispute, and the terms of any settlement, and the lawyers who have ultimate responsibility to advise the parties in relation to the dispute and its settlement;
c.	The costs of the mediation, including venue and the mediators fees, are to be borne equally between the parties;
d.	The brief to the mediator shall be prepared by the applicants, with a draft to be provided to the respondent for review, no later than 7 days before the mediation is to occur. 
The background
[3]	This matter is one of a number of related proceedings which have had an extraordinarily lengthy history in the Court of Appeal, this Tribunal and, prior to the creation of QCAT, the Commercial and Consumer Tribunal (‘CCT’). 
[4]	The facts of the case are of some complexity which I do not propose to recite at length. In summary, the construction of 10 townhouses was undertaken by a building contractor. The applicants’ (the building owners’) affairs involved a complex arrangement of individuals, corporations and trusts.  Suffice it to say the applicants assert that the building work was defective. This led to claims being made for assistance under the statutory insurance scheme operated by the (then) QBSA. The claim relating to the lot the subject of this proceeding was, as were the other claims, declined by the QBSA on the basis that the named claimant was not the owner of the lot.
[5]	The applicants sought a review of the QBSA decision. The present proceeding was commenced in the CCT as were proceedings in respect of another five lots. This and three other proceedings were adjourned pending the outcome of another two proceedings relating to different lots. Those proceedings ended with an unsuccessful appeal to the Court of Appeal. Of the four proceedings remaining in the Tribunal, this proceeding has continued, with the other three proceedings adjourned pending the outcome in this matter. 
[6]	It should be added that there are also other related claims for assistance under the statutory insurance scheme.
[7]	Following a compulsory conference in November 2022 the applicants were directed to file points of claim identifying the legal and factual issues in the proceedings, the material facts relied upon and specifying the relief sought. Directions were made for the respondent to respond and permitting the applicants to reply. These directions were complied with prior to a further compulsory conference being held in May 2023. 
What do the parties say?
[8]	The applicants say that mediation will present an opportunity for the parties to discuss all current review applications and the further claims made by the applicants but not yet decided by the QBCC. A mediation, say the applicants, will afford the parties an opportunity to dispose of all the outstanding claims in a cost effective and timely manner. 
[9]	The QBCC opposes referring the proceeding to mediation. The QBCC says that:
(a)	The issues in dispute in the proceeding have been the subject of litigation over many years. Mediation would do little to assist in clarifying the issues;
(b)	The notion of ‘settlement’ of the proceeding is not consistent with the nature of review proceedings. There are only three outcomes from a compulsory conference: withdrawal by the applicant of the review application; the Commission is invited to reconsider its decision pursuant to s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’); or the Tribunal makes further directions. A mediation would only provide an opportunity for the first possible outcome to be explored;
(c)	There is no utility in a mediation. There have been two compulsory conferences, neither of which have been successful. It is unclear what a mediation might achieve that could not be achieved at a compulsory conference;
(d)	A mediation will result in unnecessary time and expense. The proposed mediator’s fees are $9,000 in addition to which the parties will incur expense in preparing for, and attending, the mediation which, says the Commission, will ultimately be a futile exercise;
(e)	A settlement of the proceeding at mediation is not possible given the nature of review proceedings. The Commission is bound by the terms of the insurance policy and cannot approve any payment outside the scope of the policy. The Commission remains of the view that the Decision is the correct and preferable one.  
[10]	The applicants in reply say, by reference to the sub-paragraphs above:
(a)	There are a number of issues of fact and law which were not relevant to or raised in the proceedings determined by the Court of Appeal. There is therefore utility in a mediation to assist in adding clarity to the matters in dispute and affording the parties an opportunity to reconsider their positions;
(b)	The QBCC is required to assist the Tribunal to make the correct and preferable decision. As a Model Litigant the QBCC is also required to facilitate the appropriate and timely resolution of the dispute. As to the absence of any power in the mediator to order that the QBCC reconsider its decision, the applicants say that an agreement could be reached that the Decision be set aside;
(c)	Until such time as the points of claim directions had been complied with, there could not be any worthwhile discussions between the parties. The QBCC concedes that a further compulsory conference could be held, however a mediation is a more efficient way of progressing the proceeding;
(d)	The applicants concede that there will be a cost associated with a mediation, however the QBCC is better placed than the applicants to bear this cost. Additionally, the mediation could be conducted expeditiously;
(e)	The matters raised by the Commission in relation to the constraints imposed upon it by the policy of insurance are not valid reasons why a mediation should not be held.
Consideration
[11]	The Tribunal is required to deal with matters in a way that is accessible, fair, just, economical, informal and quick. The Tribunal must encourage the early and economical resolution of disputes including, if appropriate, through alternative dispute resolution processes. The procedure for a proceeding is at the discretion of the Tribunal subject to the QCAT Act and rules and any relevant enabling Act.
[12]	Chapter 2, Part 6, Divisions 1A, 2 and 3 of the QCAT Act deal with alternative dispute resolution processes. The tribunal or the principal registrar may refer parties to a proceeding to attend conciliation (Division 1A). The tribunal or the principal registrar may direct the parties to a proceeding to attend a compulsory conference (Division 2). The tribunal or the principal registrar may refer the subject matter of a proceeding for mediation by a mediator appointed by the tribunal or principal registrar (Division 3). 
[13]	Section 75(1) of the QCAT Act provides that the tribunal may refer the subject matter of a proceeding for mediation by a mediator appointed by the tribunal or principal registrar. Section 79 sets out who may be a mediator. A person may be a mediator for a proceeding only if the person is:
(a)	A member; 
(b)	An adjudicator;
(c)	The principal registrar;
(d)	A mediator under the Dispute Resolution Centres Act 1990 (Qld); or
(e)	A person, including, for example, a registrar or registry staff member, approved by the principal registrar as a mediator for the tribunal. 
[14]	The Dispute Resolution Centres Act 1990 (Qld) (‘DRCA’) s 2 defines a mediator, in relation to a dispute resolution centre, as: the director of the centre; or a person appointed under s 27AB as a mediator for the centre. 
[15]	The use of the word ‘only’ in s 79 of the QCAT Act is clearly intended to strictly confine who may be a mediator for the purposes of a mediation the subject of a referral by the tribunal or the principal registrar in accordance with s 75(1) of the QCAT Act. 
[16]	The Tribunal is a creature of statute and its powers are strictly circumscribed by the provisions of the QCAT Act and rules and any relevant enabling Act. Regrettably, neither party’s submissions address the power of the Tribunal to make the order sought by the applicants. 
[17]	ADR has been described ‘as part of the fabric of the… tribunal’. ADR processes resulting in the timely resolution of matters in the Tribunal promote the objects of the QCAT Act and the use of ADR to encourage the early and economical resolution of disputes is one of the Tribunal’s functions. Division 2 of Part 6 of Chapter 2 of the QCAT Act sets out the powers of the Tribunal to refer a matter to mediation. As I have observed, these provisions include who may conduct a mediation. The relevant provisions in the QCAT Act are markedly different to those regarding the referral of matters for mediation found in the Civil Proceedings Act 2011 (Qld) (‘CPA’), particularly as to who may be a mediator. The present application raises the limitations imposed upon the Tribunal in referring a matter to mediation. I have reached the conclusion that the Tribunal does not have the power to grant the order sought by the applicants. 
[18]	Section 79 of the QCAT Act confines who may be a mediator for the purposes of a referral for mediation pursuant to s 75. The mediator proposed by the applicants, while no doubt highly skilled and experienced, is not one of those persons referred to in s 79 of the QCAT Act. Accordingly, the proposed mediator cannot be appointed by the Tribunal pursuant to s 75(1).
[19]	It follows from the foregoing that the application must be refused. However, for the sake of completeness I will address the matters raised by the parties in their submissions. 
[20]	The issues, the subject of the present proceeding, have been part of the matrix of issues the subject of exhaustive litigation involving the parties and which have been the subject of a number of different proceedings. 
[21]	In this proceeding the applicants filed their reply to the Points of Claim on 3 May 2023. On the same date a compulsory conference was held. There is nothing before the Tribunal to suggest, and the applicants do not assert, that conference did not proceed with all parties fully appraised as to their respective positions. Indeed the clear purpose of the directions for the filing of the Points of Claim was to ensure that the issues were clearly identified. Neither party asserts that there was any deficiency in the conduct of the compulsory conference that resulted in the issues identified in the Points of Claim not being thoroughly ventilated. 
[22]	Whilst there can be no doubt that the respondent is required to abide by the model litigant principles, I do not accept that the application of such principles forces the conclusion that the QBCC must participate in the proposed mediation. The model litigant principles recognise that the community expects the State to properly use taxpayers’ money and, in particular, not to spend it without due cause and due process. I accept the submission of the QBCC that the proposed mediation will cause the parties to incur considerable additional expense in circumstances where it is unlikely that mediation will yield any positive outcome. 
[23]	A merits review proceeding is quite unlike adversarial litigation. Whereas in the latter the parties may negotiate a commercially acceptable compromise, in merits review the proceeding may come to an end in only one of two ways: withdrawal of the application for review by the applicant, or a final decision by the Tribunal. Withdrawal may follow a reconsideration and fresh decision by the decision maker. Here, the QBCC’s position is that the decision the subject of the review is the correct and preferable decision. Although there may be circumstances in which an unwilling party is required to participate in alternative dispute resolution, in my view this is not such a case. I accept the submission by the QBCC that it remains open to it to seek a direction pursuant to s 23(1) of the QCAT Act that it reconsider the decision. It has not sought such a direction on the basis that its decision remains unchanged. There is no power in a private mediator to invite a decision maker to reconsider a decision. I accept that agreement may be reached between the parties that the QBCC voluntarily reconsider the decision. Given the position taken by the QBCC to this point, such an outcome seems highly unlikely. So unlikely, in my view, that it is not appropriate to refer the matter to mediation particularly in view of the lengthy history of the issues between the parties and the exhaustive way in which those issues have been ventilated. 
[24]	For the foregoing reasons even if I was satisfied that the Tribunal had jurisdiction to make the orders sought by the applicants, I would decline to do so. 
Conclusion
[25]	The application for miscellaneous matters is refused.