Ahmet v Queensland Building and Construction Commission

[2021] QCAT 33

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ahmet v Queensland Building and Construction Commission & Anor [2021] QCAT 33

PARTIES:

JESSICA AHMET
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

CRAIG LYALL LOW

(second respondent)

APPLICATION NO/S:

GAR048-20

MATTER TYPE:

General administrative matters

DELIVERED ON:

19 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

Craig Lyall Low is joined as a respondent in the proceedings.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – whether the builder should be joined

Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 86, s 86F

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 40, s 42

APPEARANCES & REPRESENTATION:

Applicant:

Plastiras Lawyers

Respondents:

Norton Rose Fulbright Australia

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. On 7 February 2020, Ms Ahmet lodged an application for review of a decision of the Queensland Building and Construction Commission (‘QBCC’) dated 13 January 2020. The QBCC decided to disallow a claim by Ms Ahmet under the statutory insurance scheme.

2. On 18 February 2020, the Tribunal directed (amongst other things) that any application for joinder in respect of an affected party named in the decision under review must be brought by 25 March 2020.

3. On 25 March 2020, Ms Ahmet lodged an application seeking to have Craig Lyall Low joined as a party to the proceedings.  Mr Low was described in the decision under review as an ‘affected party’.

4. The QBCC has provided written submissions objecting to the joinder of Mr Low.

   Applicable Law

[5]Section 42(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides for the joinder of parties as follows:

(1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that--

(a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or

(b) the person's interests may be affected by the proceeding; or

(c) for another reason, it is desirable that the person be joined as a party to the proceeding.

1. Section 40 of the QCAT Act specifies that the parties to a review proceeding include a person joined under section 42.

   Discussion

2. Section 86(1)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) provides for the Tribunal to review decisions to disallow a claim under the statutory insurance scheme wholly or in part.

3. In the review jurisdiction, the Tribunal decides the review by way of a fresh hearing on the merits pursuant to s 20(2) of the QCAT Act.

4. Under s 24(1) of the QCAT Act, the functions of the Tribunal for the review jurisdiction are to confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.

5. A possible outcome of the review proceedings is that the Tribunal may decide to set aside the decision of the QBCC and substitute a decision allowing Ms Ahmet’s claim under the statutory insurance scheme. In those circumstances, s 71 of the QBCC Act provides that the QBCC may recover the amount of the payment from Mr Low.

6. The QBCC has made the disingenuous submission that Mr Low’s interests are not directly affected by the decision under review, as it retains a discretion as to whether or not to recover any payment under the statutory insurance scheme from Mr Low. However, the QBCC has not provided any undertaking to refrain from exercising its discretion to recover any payment from Mr Low.

7. In my view, it would be unjust to shut Mr Low out of these proceedings on the basis that any recovery by the QBCC is discretionary, only to potentially have the QBCC turn around and exercise its discretion to recover any payment from Mr Low. I note that a decision by the QBCC to recover any payment from Mr Low would not be reviewable by the Tribunal pursuant to s 86F(1)(a) of the QBCC Act.

8. Accordingly, I am satisfied under section 42(1)(b) of the QCAT Act that Mr Low’s interests ‘may be adversely affected’ by the outcome of these review proceedings.

9. I accept that any additional party will add to the length of the proceeding and hearing.  However, the joinder application was lodged at an early stage in the proceedings, in accordance with the timetable set out in directions made by the Tribunal.

   Decision

10. For these reasons, I am satisfied that it is appropriate to exercise my discretion for Mr Low to be joined as a party to the proceedings. Accordingly, I make orders for the joinder of Mr Low as a party to the proceedings.