Abbott v Queensland Building and Construction Commission

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Abbott v Queensland Building and Construction Commission  [2021] QCATA 145
PARTIES: ELICIA ABBOTT

(applicant/appellant)

v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL052-21

ORIGINATING APPLICATION NO/S:

GAR378-19

MATTER TYPE:

Appeals

DELIVERED ON:

30 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

EVIDENCE - ADDUCING EVIDENCE - DOCUMENTS - REQUESTS TO PRODUCE - where the applicant filed an application to review a decision of the QBCC - where the applicant was ordered by the Tribunal to produce documents – whether the Tribunal erred in its discretion to order the production of documents – consideration of the role of the decision-maker in merits review proceedings

Queensland Building and Construction Commission Act 1991 (Qld), s 72(3)
Queensland Civil and Administrative Tribunal 2009 (Qld), s 20, s20(1), s20(2), s 62(3), s 95(2)(a), s 142(1), s 142(3)(a)(ii)

Bergin v Department of Housing and Public Works [2014] QCATA 185

House v The King (1936) 55 CLR 499

Pickering v McArthur [2005] QCA 294

Queensland Building and Construction Commission v Whalley [2018] QCATA 38

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

  1. This is an appeal from an interlocutory decision of the tribunal in administrative review proceedings.

  2. A party may appeal to the appeal tribunal against a decision of the tribunal.[1] An appeal against an interlocutory decision of the tribunal may only be made with the leave of the appeal tribunal.[2]

    [1]Queensland Civil and Administrative Tribunal 2009 (Qld) s 142(1) (‘QCAT Act’).

    [2]Ibid. s 142(3)(a)(ii).

  3. Leave to appeal will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.[3]

  4. It should be noted at the outset that no reasons were given by the tribunal in respect of the decision under appeal.

    The relevant background events

  5. The background events relevant to the present appeal are set out in the chronology below:

Date

Event

07.08.17

Applicant and Mish Developments Pty Ltd enter into building contract.

26.01.18

Mish Developments Pty Ltd assigns building contract to Unitol Building Design Pty Ltd.

16.05.18

Mish Developments Pty Ltd put into external administration.

21.05.18

Applicant purports to terminate building contract.

25.05.18

Applicant lodges non-completion claim with Queensland Building and Construction Commission (‘QBCC’).

31.07.18

Applicant obtains Owner-Builder permit.

15.01.19

Applicant withdraws non-completion claim with QBCC.

18.03.19

Applicant lodges complaint with QBCC regarding defective building work by Mish Developments Pty Ltd.

11.06.19

QBCC building inspector undertakes inspection of building works.

26.06.19

QBCC issues direction to rectify to Mish Developments Pty Ltd (original decision).

27.06.19

Initial inspection report by QBCC.

29.07.19

Applicant applies for internal review of original decision.

28.08.19

QBCC makes internal review decision (the reviewable decision the subject of the proceedings).

02.09.19

QBCC issues direction to…

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Details
Case
[2021] QCATA 145
Decision Date

CaseChat Overview and Summary

The case of Abbott v Queensland Building and Construction Commission involved an appeal by Ms Abbott against a tribunal order requiring her to produce documents related to her expenditure and the details of the work she undertook to complete building works after obtaining an owner builder permit. The Queensland Building and Construction Commission (QBCC) sought the production of these documents as part of an application for miscellaneous matters, arguing that they were relevant to the state of the property and the work performed by Ms Abbott as an owner builder. Ms Abbott contested the relevance and necessity of producing these documents, arguing that the QBCC's request was absurd, irrelevant, and would serve little purpose in resolving the issues in dispute.

The legal issues before the court were whether the tribunal erred in exercising its discretion to order the production of documents and if the decision was unreasonable or plainly unjust. The court considered the broad discretion conferred upon the tribunal under Section 62(3) of the Queensland Civil and Administrative Tribunal Act to order the production of documents when they are likely to relate to matters in question and when such an order is in the interests of justice. The court examined whether the decision maker, the QBCC, acted upon the wrong principle, allowed irrelevant matters to influence the decision, mistook the facts, failed to consider a material consideration, or reached an unreasonable or plainly unjust decision.

In its reasoning, the court found that the QBCC acted within its obligations as the decision maker by seeking relevant documents to ensure all evidence was placed before the tribunal. The amended orders sought by the QBCC, which better particularised the categories of documents, did not disadvantage Ms Abbott. The court concluded that the tribunal did not err in exercising its discretion to order the production of documents and that the decision was neither unreasonable nor plainly unjust. Ms Abbott failed to demonstrate any reasonably arguable case of error in the decision under appeal.

The final orders of the court were that leave to appeal was refused. This outcome upheld the tribunal's decision and confirmed that the production of the requested documents was within the tribunal's discretion and in the interests of justice.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

It should be noted at the outset that no reasons were given by the tribunal in respect of the decision under appeal. The relevant background events The background events relevant to the present appeal are set out in the chronology below: Ms Abbott appeals the order of the tribunal of 4 February 2021 requiring her to file evidence of the expenditure she incurred, and the details of the works she undertook, to bring the building works to completion after she obtained an owner builder permit. The order under appeal As noted in the chronology above, the QBCC filed an application for miscellaneous matters on 28 October 2020 seeking the production of documents by the applicant including, inter alia, ‘evidence of expenditure and details of work carried out by the Applicant as owner builder to bring the build to completion.’ In support of the application the QBCC said:(a)The applicant completed the construction of the building as an owner builder;(b)Several items in the Owner Builder Permit obtained by the applicant correlated with items of work not directed to be rectified in the internal review decision;(c)The scope of the Owner Builder Permit suggested that the Applicant had undertaken to complete or rectify the complaint items herself;(d)The QBCC had limited information as to the extent of the work carried out by the Applicant as an Owner Builder;(e)The evidence of expenditure and details of work carried out by the Applicant as owner builder are relevant to the state of the property at the time the builder ceased work, at the property and the work the Applicant carried out as an owner builder to bring the property to completion. In response to the application Ms Abbott said:(a)The documents sought by the QBCC were absurd and irrelevant;(b)There was no doubt about, and no question raised as to, who performed the defective work items the subject of the review. All of the work was undertaken by the builder under the various stages pursuant to the contract;(c)There was no reasonable basis to question who undertook the defective building work;(d)The applicant had not rectified the defective items with the exception of items 13 and 30;(e)The hundreds of miscellaneous receipts were unlikely to provide clarity on what works were performed;(f)The applicant was unsure whether she was still in possession of the documents;(g)The QBCC had provided no reasonable basis upon which production of the documents was sought;(h)It would take an extensive amount of time to produce the documents for little or no purpose, and the production of the documents would not assist in narrowing the issues in dispute and would delay the matter;(i)The orders sought by the QBCC were not in the interests of justice. The QBCC responded to Ms Abbott’s submissions:(a)By seeking to amend the orders for the production of documents to include:(i) certification documents and payments to certifiers for works carried out under the owner builder permit (Owner Builder Permit);(ii) payments to licensed contractors for works carried out under the Owner Builder Permit; (iii) payments for materials purchased under the Owner Builder Permit; and(iv) any other expenditure incurred in bringing the Property to practical completion.(b)Stating that there was a factual dispute between Ms Abbott and the builder as to:(i) the stage the works had reached when the contract came to an end and any monies owed, noting that:A.Ms Abbott said the works had reached the enclosed stage;B.The builder said the works had reached the fixing stage and were near practical completion; and(ii) whether the Applicant interfered with the complaint items in her capacity as owner builder;(c)Stating that the Applicant undertook to complete a significant amount of building work to bring the property to practical completion.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As the decision maker, the QBCC is required to ensure that all of the relevant evidence is placed before the tribunal to enable the correct and preferable decision to be made. The documents ordered to be produced relating to the completion of the building works, would appear to be relevant to the matters to be decided by the tribunal. In applying for the production of the documents from Ms Abbott the QBCC acted consistently with its obligations as the decision maker. Conclusion Ms Abbott has failed to establish that the tribunal acted upon wrong principle, took into consideration irrelevant matters, was mistaken as to the facts or failed to take into account a material consideration. Nor was the decision of the tribunal unreasonable or plainly unjust. Ms Abbott has failed to demonstrate any reasonably arguable case of error in the decision under appeal. Leave to appeal is refused.

Ratio Decidendi

Legal Principle Established

The grounds of appeal relied upon by Ms Abbott may be summarised as follows:(a)Ms Abbott was denied procedural fairness as a result of the QBCC amending the orders sought without Ms Abbott being given an opportunity to respond to such amendments;(b)The tribunal was led into error by the QBCC’s submissions, specifically, that it is an issue in dispute that the building works had reached the fixing stage. Ms Abbott says that both she and the QBCC disagree with the builder’s assertion that the building works had reached the fixing stage. Ms Abbott in fact goes further to say that the tribunal cannot determine this issue in the review proceedings. Consideration Section 62(3) of the QCAT Act confers upon the tribunal a broad discretion to order the production of documents, by a party to a proceeding, to the tribunal or to another party to the proceeding. The production of documents will generally only be ordered if an applicant can establish that:(a)The documents probably relate to a matter in question in the proceedings;(b)The documents sought must be specified with sufficient particularity to enable the specific documents or categories of documents to be identified; (c)An order for the production of the documents is in the interests of justice and will facilitate the just and expeditious resolution of the real issues in the proceedings at a minimum of expense. I turn now to the grounds of appeal. There is no substance in the first ground of appeal. The amended orders sought by the QBCC narrowed the categories of documents the subject of the application for production. Ms Abbott offers no persuasive argument as to how she was disadvantaged by the amendment to the orders sought. Indeed, the categories of documents encompassed by the amended application were all within the scope of the original application, albeit better particularised. The second ground of appeal relied upon by Ms Abbott is, essentially, that the learned member erred in the exercise of the discretion to order the production of the documents. Error may be established in respect of the exercise of a discretion in the following circumstances:(a)The decision maker acts upon wrong principle;(b)The decision maker allows extraneous or irrelevant matters to guide or affect him/her;(c)The decision maker mistakes the facts;(d)The decision maker does not take into account a material consideration;(e)It may not appear apparent how the decision maker has reached the result however upon the facts the decision is unreasonable or plainly unjust.[4] [4]House v The King (1936) 55 CLR 499 The purpose of review proceedings is to produce the correct and preferable decision.[5] The tribunal must hear and decide the review by way of a fresh hearing on the merits.[6] [5]QCAT Act, s 20(1). [6]Ibid, s 20(2). In the review proceedings below, the tribunal will be required to decide whether to give a direction to rectify to Mish Developments Pty Ltd. In determining the review proceedings, the tribunal will step into the shoes of the QBCC to make the correct and preferable decision.