Bourne v Queensland Building Services Authority (No 2)

[2010] QCAT 597

CITATION: Bourne v Queensland Building Services Authority (No 2) [2010] QCAT 597

PARTIES:	Elizabeth Anne Bourne (Applicant)
and
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:            RE006-10                 

MATTER TYPE: Reopening, Domestic Building dispute

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Elizabeth Benson-Stott
Member

DELIVERED ON:   16 November 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application refused

CATCHWORDS : 

REOPEN PROCEEDINGS – COMPULSORY CONFERENCE – DIRECTIONS – Queensland Civil and Administrative Tribunal Act 2009, ss 136, 137 – MEANING AND EFFECT – where parties attended compulsory conference in respect of two building dispute matters commenced in the former Commercial and Consumer Tribunal – where applicant seeks to reopen directions from compulsory conference – whether compulsory conference fell within the meaning of a “hearing” under s 137 of the QCAT Act – whether proceeding was heard and determined under s 136 of the QCAT Act

Queensland Civil and Administrative Tribunal Act 2009, ss 136, 137

O’Neill & Dowthwaite v Pools [2010] QCAT 213

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

1. This misconceived application (the ‘reopening application’) concerns proceedings arising out of two domestic building dispute applications, QR114-09 and QR257-09 (the ‘building applications’), commenced in the former Commercial and Consumer Tribunal. As of 1 December 2009, these building applications have become the responsibility of QCAT.

1. The dispute between the parties is confused but is it not necessary here to repeat the history, in full. Suffice to say that the building applications arise from decisions made by the Queensland Building Services Authority (QBSA) concerning complaints made by Ms Bourne in respect of building works carried out by Weirkids Pty Ltd on her property on Mountain View Drive at Mt Coolum.

1. The reopening application arises from directions made by a Member of this Tribunal at a compulsory conference in relation to the building applications held on 25 February 2010. With apparent agreement from both parties, it was directed that:

(i)      Leave is granted to the applicant to withdraw her application[s].

(ii)      The Queensland Building Services Authority will not ask the applicant to contribute any monies for the performance of work under the scope of works for defective building work attached to the Queensland Building Services Authority decision of 25 September 2009 as varied by the Queensland Building Services Authority in accordance with the relevant edition of the Queensland Building Services Authority policy conditions.

(iii)     The Queensland Building Services Authority will perform a final inspection of the rectification works and provide a written copy of the report to the applicant.

1. Ms Bourne’s present application alleges that the QBSA have breached the ‘orders’ from the compulsory conference because (a) they failed to take the proper action perform the inspection for the rectification; and (b) that the senior officer with the QBSA responsible for the final inspection is intentionally failing to properly have the inspections carried out so that Ms Bourne will not be able obtain insurance.

1. Applications to reopen proceedings are governed by Chapter 2 Part 7 Division 7 of the Queensland Civil and Administrative Act 2009 (QCAT Act). Section 136 states, relevantly:

This division applies to a proceeding, other than an appeal under part 8, division 1, that has been heard and decided by the tribunal.
(emphasis added)

Section 137 defines the meaning of a ‘hearing’ of a proceeding for the purposes of a reopening application to include a compulsory conference, if an adverse decision was made in the absence of a party, or the removal of the absent party from the proceeding, as provided under s 72(1)(b).

1. Both parties attended the compulsory conference and therefore a hearing of the kind envisaged in s 137 does not apply in these particular circumstances.

1. The submissions from the QBSA refer to the decision of QCAT Member Stilgoe in O’Neill & Dowthwaite v Pools [2010] QCAT 213, where an application to reopen the outcome of mediation agreement was refused on the grounds that the matter had not been heard and determined by the Tribunal.

1. The decision in O’Neill is apposite to the present reopening application. The outcome of the compulsory conference was an agreement between the parties, and not a proceeding that was heard and determined by the Tribunal.

1. Had the proceeding fallen within the meaning contained in s 136, Ms Bourne would still be required to show the existence of a reopening ground: s 137(a), (b). Nothing in her submissions, however, suggests any persuasive evidence to establish a ground of that kind.

1. For these reasons, the application must be refused.