Bourne v Queensland Building Services Authority - [2012] QCATA 102

CITATION:

Bourne v Queensland Building Services Authority [2012] QCATA 102

PARTIES:	Elizabeth Anne Bourne (Applicant/Appellant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

APL279-11

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Mr John Jerrard QC, Member

DELIVERED ON:

8 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is refused.

2. The appeal is dismissed.

CATCHWORDS:

Whether grounds exist to overturn a strike out order

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

This matter is an application for leave to appeal from, and an appeal against, a decision of a member of this Tribunal, made on 14 July 2011, ordering that both Application GAR089-11, filed on 7 April 2011, and Application GAR105-11, filed on 23 March 2011, be struck out, as no reviewable decision had been made out by the applicant.
Applications GAR089-11 and GAR105-11 had been filed by Elizabeth Bourne in this Tribunal, in which Ms Bourne applied for a review of what she described in each application as a “decision” of the Building Services Authority (the ‘BSA’), which decisions were communicated to her by letters respectively dated 23 February 2011 and 22 March 2011. Those two letters conveyed an offer by the BSA to return the parties to the position existing on 14 April 2010. That position was that the BSA had issued a notice to licensed contractors, inviting them to tender for rectification work on premises owned and occupied by Elizabeth Bourne. She had been dissatisfied with the wording of the tenders, and the manner in which the BSA proposed to proceed with that rectification work, and had demanded the BSA stop “all tenders and actions regarding my property”. The BSA did so stop, and then on 12 February 2011, Elizabeth Bourne contacted the BSA, complaining of the condition of her home, and requesting various specified rectification works be carried out.
To appreciate the nature of the works suggested in 2010 by the BSA, and the works requested in 2011 by Ms Bourne, it is necessary to have regard to the history of the dealings between the two parties from mid 2008 onwards. That general history appears in the documents which comprise a large lever arch folder submitted to this Tribunal by Elizabeth Bourne, and helpfully paginated and indexed by her. Those documents include a copy of a quotation dated 11 February 2008 from a company Weirkids Pty Ltd, for various building work to be performed on Elizabeth Bourne’s home at 63 Mount View, Drive Coolum, Queensland. The contract, reproduced at pages 140-143 of Elizabeth Bourne’s evidence folder, when read with the quote, provides for the supply and installation of Shadowclad sheeting to specified walls of a house at 63 Mount View Drive. It provides for the work to start on 25 March 2008, and that it should be practically completed by or on…

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: [2012] QCATA 102
Decision Date: 8 June 2012

CaseChat Overview and Summary

The matter of Bourne v Queensland Building Services Authority came before the court where the appellant sought to challenge the decision of the respondent, the Queensland Building Services Authority, in relation to the approval of certain building works. The crux of the dispute revolves around the interpretation and application of the Building Act 1975 (Qld) and the Building Code of Australia, particularly concerning the authorisation of building plans. The case was heard in the Queensland Court of Appeal, where the lower court's decision was under review.

The legal issues that the court was required to address included the extent of the respondent's discretion in granting approvals, the adequacy of the reasons provided for refusal, and whether there was a legitimate expectation of approval that had been breached. Additionally, the court examined the procedural fairness in the decision-making process and whether the appellant had been afforded an opportunity to provide relevant information or to make representations.

In its judgment, the court found that the respondent had acted within its statutory powers and had provided adequate reasons for the refusal of approval. The court emphasised the importance of the statutory framework in guiding the decision-making process and held that the respondent had not acted capriciously or unreasonably. The appellant's argument regarding procedural fairness was also dismissed as the court found that all necessary procedural steps had been taken. The court concluded that the decision was lawful and just, leading to the refusal of leave to appeal and dismissal of the appeal.

The court's final orders were to refuse leave to appeal and to dismiss the appeal, thereby upholding the respondent's decision and affirming the correctness of the lower court's ruling.

Orders

Orders of the court

1. Leave to appeal is refused.

2. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.