Bielby v Beilby & McGrath
[2010] QCAT 649
•22 December, 2010
CITATION: PARTIES: | Bielby v Beilby & McGrath [2010] QCAT 649 Frankland Morton Bielby |
| v | |
| Mark Beilby and Cathy McGrath |
| APPLICATION NUMBER: | BD286-09 |
| MATTER TYPE: | Building matter |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Ann Fitzpatrick |
| DELIVERED ON: | 22 December, 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for reopening and/or renewal is dismissed. |
| CATCHWORDS : | Sections 88(1), 132, 133, 137,138 and 139 of the Queensland Civil and Administrative Tribunal Act 2009. |
APPEARANCES and REPRESENTATION (if any):
On the papers
REASONS FOR DECISION
This decision relates to an application for renewal or reopening of this matter by the respondents. An application was filed in this Tribunal on 6 October, 2010. Although the application was nominated on the front sheet as being for a renewal, the application form was completed as for a re-opening.
I will deal with the application on the two grounds.
The application follows a compulsory conference held on 31 August, 2010. A settlement of the proceedings was agreed between the parties and a consent order was made to give effect to the settlement. The consent order required the applicant to perform certain works at the home of the respondents; the payment to the respondents of a sum of money held in Tribunal’s trust account and the payment to the applicant of a sum of money held in the Tribunal’s trust account. By the consent order the application and counter-application were dismissed.
The respondents now complain that work has not been completed or completed satisfactorily, in accordance with the Order, dated 31 August, 2010. The applicant in submissions made in response to the respondents’ application denies these allegations.
It is apparent from the application that the respondents wish to air their complaints in relation to alleged non performance of the consent order before the Tribunal in order to obtain some further or other relief in the original proceedings. By way of a facsimile transmission to the Tribunal dated 11 December, 2010, the respondents have raised a further issue in relation to complaints about the groundwater drainage system installed by the applicant as part of his original works at the property.
Reopening
Section 138 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), allows a party to a proceeding to apply to the Tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party. A reopening ground is that:
(a)the party did not appear at the hearing (including for this ground a compulsory conference) and had a reasonable excuse for not attending the hearing; or
(b)the party would suffer substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
Plainly, the first ground is not the case here. The second ground does not apply because the reference to the proceeding being “first heard and decided” is not a reference to an order made consequent upon a compulsory conference, but rather a hearing in the ordinary sense. Such a hearing did not occur in this case.
Section 137 of the QCAT Act defines “hearing” for the purpose of the reopening provisions of the Act as including a compulsory conference if the person presiding over the conference decides the proceeding under section 72 (1)(b). That is makes a decision adverse to a party who does not attend a compulsory conference”. Other than in that circumstance, the reference to “hearing” or a matter being “heard” in the reopening provisions is not extended.
I find that the QCAT Act does not contemplate giving a party a right to reopen the proceeding if it has been finally dealt with by way of a consent order arising out of a compulsory conference. Accordingly I will not deal further with this matter as an application for a reopening. See O’Neill & Dowthwaite v Freedom Pools (2010) QCAT 213 (17 May 2010).
Renewal of final decision
Section 133 of the QCAT Act provides that if
(a)it is not possible for the Tribunal’s final decision in a proceeding to be complied with; or
(b)there are problems with interpreting, implementing or enforcing the Tribunal’s final decision in a proceeding, then
a party may apply to the Tribunal for a renewal of the final decision.
The Tribunal may make the same decision or another decision it could have made when the proceeding was originally decided.
The application for renewal must be made within the period stated in the rules. That is within 28 days of the day the applicants are given notice of the decision. The application has not been made within time, however, I am prepared to extend time pursuant to section 61 of the QCAT Act.
The applicants have not given any reason why the consent order is impossible to comply with, nor have they pointed to any problems with interpreting, implementing or enforcing the consent order. Their complaint is with the standard of performance of the work performed by the original applicant pursuant to the consent order. They also raise a fresh issue of allegedly poor workmanship on the part of the applicant builder which has lead to flooding of the under part of their house.
This Tribunal in Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries (2010) QCAT 326 discussed the intended breadth of section 133 of the QCAT Act and there dismissed an application for renewal on the basis that where the applicant seeks to litigate before QCAT another argument altogether under the guise of seeking interpretation of the decision, that goes beyond anything contemplated by the expression “renewal”.
Finally, I do not think in the circumstances of a consent order having been made that any relief can be given to the respondents under section 134 of the QCAT Act. It is of no benefit to the respondents for the same order to be made. Presumably they are seeking a different order to address their current concerns. Section 134 of the QCAT Act only enables a different order to be made if it could have been made when the matter was originally decided. As the order made was a consent order and there has been no hearing of the evidence, no other order could have been made at the compulsory conference than the one agreed to by both parties at the time.
For these reasons I dismiss the application.
It appears to me that the respondents concern with the consent order is that it has allegedly been breached and they are now searching for a means of dealing with those circumstances.
The respondents may of course pursue their rights at law for breach of the agreement which underlies the consent order in the civil courts or seek to enforce the order pursuant to section 88(1) and section 132 of the QCAT Act.
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