Background
Nikolai Nikolaevich Repine applied in the Trial Division for judicial review under the Judicial Review Act 1991 (Qld), naming the Queensland Building and Construction Commission, the Queensland Civil and Administrative Tribunal, and Antech Constructions Pty Ltd as respondents. Although Repine made no allegations and sought no relief against Antech, he joined and served the company because it had participated in the underlying QBCC proceedings and, in his view, might be affected by the review.
At a directions hearing, Cooper J summarily dismissed the proceeding against Antech, finding that the company could not have made a decision of an administrative character reviewable under the Act. Repine later asked Ryan J to set aside or vary that order under r 667(2)(d) of the Uniform Civil Procedure Rules 1999 (Qld), arguing that nothing could have been dismissed because no claim had been made against Antech. Ryan J dismissed that application with costs, regarding it as essentially an attempted appeal from Cooper J’s decision. Repine then sought an extension of time to pursue an appeal from Cooper J’s order and separately appealed Ryan J’s orders.
The Court’s Holding
The Court of Appeal refused the extension of time to seek leave to appeal from Cooper J’s order. It held that Repine had made Antech a party by naming and serving it, notwithstanding the absence of any direct claim for relief. Cooper J had power under s 48 of the Judicial Review Act to dismiss the application against Antech, either on Antech’s informal request or on the Court’s own motion. Although removing Antech as an unnecessarily joined party was another possible course, summary dismissal was not inappropriate.
The Court also dismissed the appeal from Ryan J’s orders. Cooper J’s order accurately reflected his stated intention, so the slip-rule application under r 667(2)(d) could not succeed and was properly characterised as being in the nature of an appeal. Ryan J’s prompt identification of that problem did not deny Repine natural justice, and her decision caused no substantial injustice. The Court also refused leave to rely on two later affidavits because subsequent QBCC and QCAT events, and Repine’s speculation based on Antech’s costs statement, did not alter the claims that had been before Cooper J. Both matters were resolved with costs against Repine.
Key Takeaways
- Naming and serving a person as a respondent can make that person a party even when the application seeks no direct relief against that person.
- A court may summarily dismiss a judicial-review application against a party that could not have made a reviewable administrative decision, even if removing that party might also have been available.
- The slip rule cannot be used to revisit an order that clearly expresses the judge’s intention, and an appeal concerning practice and procedure generally requires substantial injustice.
Why It Matters
The decision underscores the procedural consequences of joining a party to judicial-review proceedings. A litigant cannot avoid summary dismissal merely by arguing that no substantive claim was pleaded against the joined party; that absence of a viable claim may instead support bringing the party’s involvement to an early end.
It also confirms the narrow function of the slip rule and the difficulty of appealing discretionary decisions about practice and procedure without showing both error and substantial injustice.