Bitossi v Queensland Building and Construction Commission

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Bitossi v Queensland Building and Construction Commission [2021] QCAT 131

PARTIES:

NICOLE MICHELLE BITOSSI  
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR355-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

9 March 2021

HEARING DATE:

16 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   The decision of the Queensland Building and Construction Commission dated 13 August 2019 to partly disallow a claim under the Queensland Home Warranty Scheme is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where applicant sought review of decision by Commission to partly disallow claim under the Queensland Home Warranty Insurance Scheme – where Commission’s experts found no defective workmanship – where applicant failed to adduce independent expert evidence of defective workmanship – where Commission’s decision confirmed

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 7
Queensland Building and Construction Commission Regulation 2018 (Qld), s 19

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 28(3)(a)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69
Briginshaw v Briginshaw (1938) 60 CLR 336
Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Harley v Department of Justice and Attorney-General [2012] QCAT 620
Harris v Foxworth Pty Ltd [2013] QCATA 133
Kehl v Board of Professional Engineers of Qld [2010] QCATA 58
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2) [2013] QCAT 575
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212
Walker v Queensland Building and Construction Commission [2014] QCAT 228

APPEARANCES & REPRESENTATION:

Applicant:

K Bitossi

Respondent:

A Meginyte, In-house Lawyer

REASONS FOR DECISION

What is this application about?

  1. Nicole Bitossi disputes a decision by the Queensland Building and Construction Commission on 13 August 2019 to partly disallow a claim under the Queensland Home Warranty Insurance Scheme. 

  2. Ms Bitossi says that the Commission incorrectly classified the beach entry as only one item, whereas it comprised two separate items: four spa jets; and the in-floor advantage system not installed.

    What does the Tribunal do in a review application?

  3. In a review application, the Tribunal’s purpose is to produce the ‘correct and preferable’ decision by way of a fresh hearing on the merits.[1] This means that Ms Bitossi need not prove any error by the Commission in its original decision – the original decision is not presumed correct.[2]

  4. The Tribunal may confirm or amend the decision, set aside the…

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Details
Case
[2021] QCAT 131
Decision Date

CaseChat Overview and Summary

Bitossi v Queensland Building and Construction Commission was heard by the Queensland Civil and Administrative Tribunal (QCAT). The dispute centred on the adequacy of workmanship in a swimming pool construction project, with Ms Bitossi alleging defects and the Queensland Building and Construction Commission (QBCC) finding no defects. Ms Bitossi sought a review of the QBCC's decision, arguing that the QBCC relied on incorrect advice and that the workmanship was defective.

The central legal issue for the tribunal to decide was whether Ms Bitossi had met the evidential burden to support her claim of defective workmanship. Under the Queensland Civil and Administrative Tribunal Act 2009, the burden is not formal but practical, meaning that Ms Bitossi needed to present appropriate evidence to substantiate her claims. The tribunal examined whether Ms Bitossi's evidence, which included photographs, correspondence, and complaints, was sufficient to support her case against the QBCC's findings. Notably, Ms Bitossi did not provide any independent expert evidence to substantiate her claims of defective workmanship.

The tribunal found that Ms Bitossi's evidence was neither independent nor objective. The submissions and evidence provided by Ms Bitossi and her husband were not considered sufficient to challenge the QBCC's findings. Furthermore, the tribunal highlighted the importance of procedural fairness and the obligation of parties to make their experts available for cross-examination. As Mr Mewitt, the Technical Service Manager of Compass Pools, did not attend to give evidence, the tribunal could not attach weight to his letter without proper cross-examination.

In conclusion, the tribunal upheld the QBCC's decision, finding that Ms Bitossi had not met the evidential burden to support her claims. The tribunal determined that the correct and preferable decision was to dismiss Ms Bitossi's application for review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Commission’s experts, Chris O’Shannessy, Senior Building Inspector and Robert Hughes, Consulting Engineer inspected the property on 4 July 2019. The Commission’s experts relevantly found no defective workmanship for items 1, 2(b) and 5.[6] [6]QBCC Statement of Reasons dated 13 November 2019.What is the Applicant’s evidence? Conversely, Ms Bitossi did not engage any independent experts to inspect the pool and prepare reports. Instead, she relied upon the following evidence:(a)Contract Schedule;(b)Two undated black and white photographs;(c)Letter Scott Mewitt, Technical Service Manager of Compass Pools to Mr Bitossi dated 20 June 2018;(d)Various emails of complaint;(e)Vantage in-floor cleaning system outline undated; (f)Bundle of 14 colour photographs undated; and(g)Document entitled “7.1 Deflection limits”. What is the correct and preferable decision? Ms Bitossi’s case is essentially that the Commission relied upon incorrect advice from the pool manufacturer and the items were defective. Ms Bitossi submitted that the evidence and information supplied to the Commission from Rickard Engineering and Chris Bailey was a conflict of interest and that Mr Bailey had not attended the site since approximately August 2018. Even if this is correct, it does not in itself prove that the Commission’s decision was not the correct and preferable decision. This is because in review proceedings, Ms Bitossi has an evidential onus to provide appropriate material to support the decision she seeks:Generally there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.[7][7]Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23]. This has also been described as a ‘practical onus’.[8] The difficulty is that none of Ms Bitossi’s assertions was supported by any independent expert evidence of her own. The evidence of Ms Bitossi and her husband, Keith Bitossi was neither independent nor objective.[9] Mr Mewitt is a representative of the manufacturer but did not attend to give evidence. The Tribunal must observe procedural fairness.[10] If a party is relying upon an expert, they are obliged to make that expert available for cross-examination by the other party. The Tribunal is unable to attach weight to the letter from Mr Mewitt without him attending the hearing to test his evidence. [8]Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115, [33].[9]Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2) [2013] QCAT 575, [39] to [40]. [10]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).

Decision

Reasons for decision

Conversely, Ms Bitossi did not engage any independent experts to inspect the pool and prepare reports. Instead, she relied upon the following evidence:(a)Contract Schedule;(b)Two undated black and white photographs;(c)Letter Scott Mewitt, Technical Service Manager of Compass Pools to Mr Bitossi dated 20 June 2018;(d)Various emails of complaint;(e)Vantage in-floor cleaning system outline undated; (f)Bundle of 14 colour photographs undated; and(g)Document entitled “7.1 Deflection limits”. What is the correct and preferable decision? Ms Bitossi’s case is essentially that the Commission relied upon incorrect advice from the pool manufacturer and the items were defective. Ms Bitossi submitted that the evidence and information supplied to the Commission from Rickard Engineering and Chris Bailey was a conflict of interest and that Mr Bailey had not attended the site since approximately August 2018. Even if this is correct, it does not in itself prove that the Commission’s decision was not the correct and preferable decision. This is because in review proceedings, Ms Bitossi has an evidential onus to provide appropriate material to support the decision she seeks:Generally there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.[7][7]Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23]. This has also been described as a ‘practical onus’.[8] The difficulty is that none of Ms Bitossi’s assertions was supported by any independent expert evidence of her own. The evidence of Ms Bitossi and her husband, Keith Bitossi was neither independent nor objective.[9] Mr Mewitt is a representative of the manufacturer but did not attend to give evidence. The Tribunal must observe procedural fairness.[10] If a party is relying upon an expert, they are obliged to make that expert available for cross-examination by the other party. The Tribunal is unable to attach weight to the letter from Mr Mewitt without him attending the hearing to test his evidence. [8]Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115, [33].[9]Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2) [2013] QCAT 575, [39] to [40]. [10]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a). This means that Ms Bitossi adduced no independent expert evidence to show:(a)whether the work was not to the appropriate standard;(b)whether the work was defective;(c)causation;(d)remedial work required as a result of the alleged defective workmanship; and(e)whomever was responsible for whatever was causing any issues.

Ratio Decidendi

Legal Principle Established

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