55 As I have stated in previous decisions, the discretion contained in s.60 of the Act is a broad one. As I stated in Maryvell Investments Pty Ltd v Sigma Constructions Pty Ltd [2006] VCAT 74, (and there referring to the earlier decision of Deputy President Macnamara in Sensyn Australia Pty Ltd v United Colours on Collins Pty Ltd [2000] VCAT 2010; (2000) V Conv R 58-544), the discretion should not be exercised in favour of joinder if the same would enable a person to bring a claim that was clearly misconceived or doomed to failure. In Maryvell, I refused the proposed joinder on the basis that the proposed joined party would have available, and had foreshadowed reliance upon, a complete defence pursuant to s.126 of the Instruments Act 1958.
56 In the present case, Mr Oliver, in seeking the joinder of Coghlan, has argued that no justiciable cause of action need be demonstrated as against a proposed joined party. I am not totally persuaded by this argument. I raised with Mr Oliver the hypothetical example of whether, if it was alleged in the present case that damage such as cracks and other faults had in fact been caused by low flying aircraft, Qantas could be joined as a party, given that arguments would arise as to whether such an action would be possible under state legislation. Whilst Mr Oliver's response was that such a joinder could take place, even if such a hypothetical action against Qantas could only be brought under federal legislation, I am not totally persuaded that such a submission is correct. Whilst it is obviously desirable to avoid the risk of conflicting decisions and to avoid multiplicity of litigation, it seems to me that joinder, in circumstances where there is no justiciable cause of action against the proposed joined party or where such joinder would enable the bringing of a claim which is clearly misconceived or doomed to failure, is a joinder which should not be countenanced. The desirability of avoiding conflicting decisions does not seem to me to outweigh the undesirability of joining parties in circumstances where there is no, or no realistic, justiciable issue to be tried.
57 In summary, I am against Mr Oliver's submission that there need not be a justiciable claim existing between the party seeking the joinder and the party sought to be joined.
58 Before considering the requirements of s.60 of the Act, what must next be determined is whether Swintons has an arguable case against Coghlan, and whether it is justiciable before this Tribunal. If there is no arguable case, the joinder application does not seem to me to be able to proceed any further.
59 In my opinion, and in part subject to what could be described as a "pleading" qualification to which I shall return, Swintons does have an arguable case against Coghlan. There is no dispute but that Swintons, along with Age Old, entered into the engagement contract with Coghlan. There is no suggestion but that it was for valuable consideration. Of course, as stated at the outset, these findings are for the purposes of the present application and are not determinative of matters of fact or law which may be argued in relation to the merits of the matter.
60 It is certainly arguable that, by not including in the Rules as forwarded by Coghlan, any reference to immunity or release, no defence of immunity is open to him. It is also arguable that, in arriving at the determination which he did, he failed to have regard to special condition 9.2 and the requirement concerning satisfaction regarding actual delay. It is then arguable that, by failing to have regard to the special condition, he breached the terms of the engagement contract, or that he was negligent in arriving at the determination in the manner in which he did. It is arguable that he owed a duty of care to Swintons in this regard. In this regard, I agree with the submissions of Mr Oliver. On a joinder application, it does not seem to me to be necessary that the party seeking the joinder prove its case against the party which it seeks to join. Submissions made upon the basis of documents which are already in evidence may be sufficient. In addition to general principles, the broad discretion contained in s.60 of the Act is to be remembered. The documents placed before me, including those previously placed on the Tribunal's file and being what could be described as the essential documents such as the determination and the building contract, seem to me to be sufficient to establish an arguable case before one turns to the affidavit of Mr Hoey and any other supporting material.
61 Furthermore, it seems to me that one of the arguments advanced on behalf of Coghlan and Age Old, namely that the determination cannot be vitiated, is not entirely to the point. Whilst Swintons is contesting this proposition, in essence it seeks to join Coghlan on the basis that it has an arguable case against him should it fail against Age Old. It is, as described by Mr Oliver, a typical third party action. If the determination cannot be attacked in the context of the claim by Age Old against Swintons, Swintons then wishes to proceed against Coghlan on the basis that the result with which it is saddled is one at which Coghlan has arrived, via the determination, either negligently or in breach of contract. Thus, the submission that the determination cannot be vitiated is, at least as far as an arguable case by Swintons against Coghlan is concerned, not to the point.
62 In summary, I do not accept the submission advanced by Mr Schwarz that the case against Coghlan is so weak as to be untenable. Nor do I accept submissions that there is an absence of material sufficient to form the basis of an arguable case. In my opinion, the material before the Tribunal is sufficient to found an arguable case.
63 The next question to be determined is whether, given the existence of an arguable case, it is justiciable before this Tribunal. In my opinion, a claim of the nature proposed by Swintons against Coghlan is justiciable before this Tribunal. Firstly, it seems to me to be justiciable pursuant to the provisions of the FTA. I earlier mentioned a qualification. That qualification is that the Proposed Points of Claim do not specifically refer to the FTA. Mr Oliver informed me that, lest there be any doubt, Swintons would amend the Proposed Points of Claim by adding specific reliance upon various provisions of the FTA. I appreciate that he was not conceding that the absence of such a specific reference in some way prevented Swintons from so relying, but he nevertheless foreshadowed such an amendment, so as to make it quite clear as to the way in which Swintons put its case against Coghlan. As I understand it, the proposed amendment will include, inter alia, reference to the conduct of Coghlan which forms the basis of a claim pursuant to the FTA and the provisions of the FTA upon which reliance is placed.
64 A dispute between an expert such as Coghlan and a party such as Swintons, which is seeking the determination of the expert, seems to me to be a consumer and trader dispute for the purposes of s.107 of the FTA. Given the amount involved, it is not a small claim within the meaning of that Act. Section 107(1) defines a "consumer and trader dispute" as a dispute or claim arising between the purchaser of goods or services and a supplier of goods or services in relation to the supply of goods or services. These terms are defined in s.3 of the FTA. A "purchaser" means the person to whom the goods or services have been supplied. The "supplier" means the person who has supplied the goods or services. To "supply" in relation to services means to provide, grant or confer. "Services" are defined as including, inter alia, rights, benefits, privilege or facilities that are provided, granted or conferred under a contract for or in relation to the performance of work, including work of a professional nature.
65 It seems to me at least arguable that, pursuant to the engagement contract, which was a contract in relation to the performance of work, Coghlan was to provide services to Swintons within the meaning of the FTA. If it be such a dispute, pursuant to s.108 of the FTA, this Tribunal may hear and determine the dispute and may, for example, order the payment of a sum of money found to be owing or by way of damages.
66 Accordingly, it seems to me that the proposed claim by Swintons against Coghlan would be justiciable before this Tribunal. Whilst the Proposed Points of Claim may well be sufficient to infer reliance upon the provisions of the FTA, it would have been preferable if such reliance had been clearly spelt out. I accept Mr Oliver's statement that some amendment in this regard will be forthcoming if leave is granted for the proposed joinder of Coghlan.
67 It was also argued by Mr Oliver that the proposed claim is justiciable because it is a domestic building dispute within the meaning of the DBCA on the basis that Coghlan is a building practitioner as defined in s.3 of the Building Act 1993. Alternatively, even if he is not, it is argued that a claim against him would be justiciable on the basis of the approach adopted in Greenhill Homes.
68 This submission, and particularly insofar as it is based upon the decision in Greenhill Homes, seems to me to have some merit. I appreciate that Greenhill Homes is set in a slightly different statutory context, and that, when contemplating whether a proposed action against directors would be justiciable before the Domestic Building Tribunal, Byrne J was considering s.56 of the Domestic Building Contracts and Tribunal Act 1995, a provision which has since been repealed. However, the approach taken by His Honour is quite clear. At paragraph 34, he stated:-