1. (That) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or 2. The person's interests may be affected by the proceeding; or

1. For another reason, it is desirable that the person be joined as a party to the proceeding.
2. Neither the Authority nor Mr Dunlea submits that he is a person who should be bound by or have the benefit of a decision of the tribunal in the proceeding.

The person's interests may be affected by the proceeding

1. The Authority submits that Mr Dunlea is a person whose interest are affected by the review proceedings in that the outcome of this proceeding may create an obligation in Mr Dunlea to undertake rectification works.
2. Section 42 of the QCAT Act largely picks up the language of section 45 of the now repealed Queensland Building Tribunal Act ("QBT Act"). Section 42(1)(b) of the QCAT Act refers to a person whose interests may be affected whereas section 45(1)(b) of the QBT Act refers to a person whose interests are affected. In this context, I consider the difference in language immaterial.
3. Mr Wensley QC provides a useful analysis of section 45 of the QBT Act in Comfortable Homes Pty Ltd -v- QBSA[1]. He says this:

"As to section 45(1)(b, it does not seem to me that the proceeding, ie the application to review an administrative decision of the Authority, is something which affects the interests of WBA (the party to be joined). Note that this sub-paragraph does not, as does sub-paragraph (a), speak of an order which the Tribunal might make; rather, it speaks of the proceeding itself."

1. Mr Dunlea makes a similar point in his submissions. He points a potential conflict between the decision in this proceeding and the compromise of the proceeding that he initiated in the tribunal. This is not an issue unless the tribunal determines this proceeding in favour of the Mackays. That point is echoed by the Authority at paragraph 4.5 of its submissions. It is the outcome of the proceeding which may affect Mr Dunlea's position, not the proceeding itself.

It is desirable that the person be joined as a party to the proceeding

1. It is more desirable to have matters dealt with at the same time and in one proceeding to ensure that the tribunal's time is used as efficiently as possible. 2. There is a high probability that the parties may resolve the proceedings by way of compulsory conference but that Mr Dunlea is hesitant to become any further involved in the matter as a non-party.

1. The inclusion of Mr Dunlea will ensure that discussions around resolving the issues between the parties is undertaken as expeditiously as possible and with the consent and co-operation of all parties.
2. Not surprisingly, Mr Dunlea takes an entirely different view. He says:

1. The joinder has the potential for a finding inconsistent with the factors that enabled the disposition of his application for review. 2. If there is an inconsistent finding, Mr Dunlea will need to consider his rights under an earlier accord and satisfaction with the Authority. This is completely different litigation from that contemplated by the present proceeding.

1. The joinder has the potential to increase complexity, not decrease it. Mr Dunlea relied upon the comments of Mr Wensley QC in Comfortable Homes Pty Ltd in that regard.

1. The prospects of resolution of the dispute cannot be determined in advance of definition of the issues which are in dispute.
2. I do not agree with Mr Dunlea's last proposition. It seems to me that the issues are clearly defined and of limited compass.
3. Because the issues are limited, I do not think that the addition of a party will add to the complexity of the proceeding. However, I note that the sum in issue is fairly modest and the parties have already spent a lot of time, effort and money on this dispute. The addition of another party can only add to the delay and expense of the proceeding.
4. I accept Mr Dunlea's submission that, if there is an inconsistent finding in this tribunal, his rights are somewhat different from those contemplated by the other parties. This was a compelling factor in Comfortable Homes Pty Ltd. Mr Wensley said:

"While there may potentially be some commonality of issues between the review proceedings and any such further action it is certainly not the case, as I see it, that necessarily there would be identity of issues".

1. I am troubled by the Authority's assertion that joining Mr Dunlea will increase the chances of a negotiated result at a compulsory conference. It appears to be a coded way of saying that, if there is a joinder, the parties will have access to Mr Dunlea's pocket because it will be cheaper for him to pay up than fight potentially two proceedings in this tribunal.
2. The tribunal has a mandate to use alternative dispute resolution to ensure that matters are dealt with in a way that is accessible, fair, just, economical, informal and quick. I do not interpret that mandate to mean that non-parties should be exposed to a proceeding simply to make it easier for the parties to achieve a settlement. "desirable", in section 42 of the QCAT Act, must be linked to the objects of the Act, not some strategic whim of the parties.
3. I am not satisfied that Mr Dunlea's interests are affected by the proceeding. I am not satisfied that it is desirable that he be joined as a party to the proceeding.

[1] [2001] QBT 61