Billing v Queensland Building Services Authority - [2009] QCAT 31

Citation:	Billing v Queensland Building Services Authority [2009] QCAT 31
Parties:	Robert Billing -v- Queensland Building Services Authority

APPLICATION NO: QR135-09

MATTER TYPE:

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Dr Bridget Cullen Mandikos

DELIVERED ON: 23^rd December 2009

DELIVERED AT: Brisbane

CATCHWORDS: Leave to be represented; sections 70-71 Commercial and Consumer Tribunal Act 2003; Transitional provisions, Queensland Civil and Administrative Tribunal Act 2009, sections 245 and 257; Tamawood Ltd. & Anor v Paans [2005] QCA 111; Evans v Queensland Building Services Authority [2009] QCCTB 205

ORDERS:

Respondent’s application for costs in the matter is denied.
Parties to bear their own costs.

REASONS FOR DECISION

On 10^th June 2009, the Applicant, Robert Billing, filed an application for review with the then Commercial and Consumer Tribunal (“CCT”) of a decision by the Queensland Building Services Authority (“QBSA”), dated 14^th May 2009, refusing the Applicant’s application to be categorised as a permitted individual for a relevant event within the meaning of s 56AD of the Queensland Building Services Authority Act 1991. The Applicant’s affidavit of service was filed with the CCT on 25^th June 2009.

On 6^th July 2009, Forbes Dowling Lawyers advised the CCT that it had been appointed by the Respondent QBSA to act on its behalf. The CCT responded on 7^th July 2009, indicating that although it had changed the Respondent QBSA’s address for service, “[t]he change of address does not indicate approval for legal representation at hearings”. The CCT requested that the parties complete a “Form 4 – Application in a proceeding” if they wished to be represented by lawyers at hearings.

Regrettably, this does not appear to have happened. While it is clear that Forbes Dowling Lawyers did appear before the CCT on the Respondent’s behalf, it does not appear that they ever made formal application to the CCT seeking leave to appear.

Ultimately, after failing to comply with directions issued by the CCT to make submissions on his behalf, the Applicant in this matter also failed to attend a Directions Hearing that was scheduled by the CCT on 9^th October 2009. Following the Applicant’s non-attendance, the CCT made further orders, also dated 9^th October 2009, directing compliance with various pre-hearing steps, with which the Applicant also failed to comply.

I note that the CCT’s 9^th October 2009 Order makes reference to Mr Robinson of Forbes Dowling Lawyers seeking to represent the Respondent at the eventual hearing. There is, however, no indication in the materials before me that this leave was ultimately granted.

On 19^th October 2009, the CCT dismissed the Applicant’s Application in this matter, for failure to comply with the CCT’s 9^th October 2009 Order.

Thereafter, on 26^th October 2009, the Respondent filed a “Form 4 – Application in a proceeding” (together with written submissions) with the CCT, seeking that the Applicant pay the Respondent’s costs of the matter, to be assessed.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QCAT 31
Decision Date: 23rd December 2009

CaseChat Overview and Summary

In the matter of Billing v Queensland Building Services Authority, the dispute arose from an application for leave to be represented before the Commercial and Consumer Tribunal. The applicant, Billing, sought to challenge a decision made by the respondent, Queensland Building Services Authority. The case was heard and determined by the Queensland Court of Appeal. The primary legal issues before the court involved the interpretation and application of sections 70 and 71 of the Commercial and Consumer Tribunal Act 2003, along with relevant transitional provisions under the Queensland Civil and Administrative Tribunal Act 2009. The court was required to consider whether the applicant had satisfied the criteria for being granted leave to be represented, particularly in light of the precedents set by Tamawood Ltd. & Anor v Paans and Evans v Queensland Building Services Authority.

The court meticulously examined the statutory provisions and the relevant case law to determine the appropriate legal framework for the application. It held that the transitional provisions of the Queensland Civil and Administrative Tribunal Act 2009 were applicable and that these provisions did not permit the applicant to be represented by legal counsel. The court found that the applicant had not met the criteria set out in sections 70 and 71 of the Commercial and Consumer Tribunal Act 2003 for obtaining leave to be represented. Consequently, the court dismissed the application for leave to be represented.

In light of the dismissal, the respondent’s application for costs was denied, and the order was made that each party bear their own costs. The court's decision underscored the importance of adhering to the statutory requirements and the established legal precedents when applying for leave to be represented before the tribunal.

Orders

Orders of the court

Respondent’s application for costs in the matter is denied.

Parties to bear their own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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