Chand v Queensland Building and Construction Commission

[2024] QCAT 492

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Chand v Queensland Building and Construction Commission & Anor [2024] QCAT 492

PARTIES:

ANITA KAY CHAND

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(First respondent)

GEDOUN CONSTRUCTIONS PTY LTD 

(Second respondent)

APPLICATION NO/S:

GAR624-23; GAR625; 23; GAR626-23; GAR641-23; GAR700-23; GAR701-23; GAR593-23

GEDOUN CONSTRUCTIONS PTY LTD

(Applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(First respondent)

ANITA KAY CHAND

(Second respondent)

APPLICATION NO/S:

GAR593-23

MATTER TYPE:

General administrative review matters

ORDER/DIRECTIONS DELIVERED ON:

2 July 2024

REASONS DELIVERED ON:

6 November 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

1.     The time for the parties to comply with direction 2 of the Tribunal Directions dated 10 April 2024 (to file and serve submissions in response to any application for leave to be legally represented) is extended to 4:00pm on 30 May 2024.

2.     Direction 3 of the Tribunal Directions dated 10 April 2024 is amended to provide that any application for leave to be legally represented will be determined by the Tribunal on the papers, without an oral hearing, after 30 May 2024.

3.     The parties each have leave to be legally represented in each proceeding.

4.     The time for Anita Kay Chand to comply with direction 5 of the Tribunal Directions dated 10 April 2024 (to file and serve statements of evidence) is extended to 4:00pm on 30 October 2024.

5.     The time for the Queensland Building and Construction Commission to comply with direction 6 of the Tribunal Directions dated 10 April 2024 (to file and serve statements of evidence) is extended to 4:00pm on 27 November 2024.

6.     The time for Gedoun Constructions Pty Ltd to comply with direction 7 of the Tribunal Directions dated 10 April 2024 (to file and serve statements of evidence) is extended to 4:00pm on 6 January 2024.

7.     The time for Anita Kay Chand to comply with direction 8 of the Tribunal Directions dated 10 April 2024 (to file and serve any material in reply) is extended to 4:00pm on 14 February 2025.

8.     The Directions Hearing to be conducted by telephone on 10 October 2024 at 10:30am is vacated.

9.     GAR624-23, GAR625-23, GAR626-23, GAR641-23, GAR700-23, GAR701-23 and GAR593-23 are listed together for a Directions Hearing to be conducted by telephone on 24 February 2025 at 9:30am.

10.    The parties are to provide a copy of proposed draft directions to the Tribunal (by email to [email protected] and [email protected]) by 4:00pm on 17 February 2025.

CATCHWORDS:

ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether leave to be represented should be granted under s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. This is an application for reasons for my decision of 2 July 2024 to grant leave to each party in review proceedings GAR593-23; GAR625-23; GAR626-23; GAR641-23; GAR700-23 and GAR701-23 to be legally represented under s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

2. The Queensland Building and Construction Commission and Gedoun Constructions Pty Ltd both sought leave to be legally represented, which Ms Chand opposed.

3. Under section 43 the starting position is to have parties represent themselves unless the interests of justice require otherwise. Sub-section (3) sets out a number of matters which the tribunal, in deciding whether to grant leave, may consider as supporting the giving of leave.

4. In deciding to give leave I had regard to the starting position in sub section (1), however, in my view, the interests of justice required that leave be granted. Of those matters listed in sub section (3) I had regard to the following in the exercise of my discretion:

   (a)the party is a State agency;

   (b)the proceeding is likely to involve complex questions of fact or law.

5. The Queensland Building and Construction Commission is a State agency. The proceedings are a voluminous matter comprising seven (7) separate review applications all of which are interrelated and some of which, if not all, may ultimately be heard and determined together. The proceedings raise complex issues of law requiring consideration of the interpretation and application of the legislative framework and the Queensland Building and Construction Commission Act 1991 (Qld), Queensland Building and Construction Regulation 2018 (Qld) and Rectification of Building Work Policy, whether relevant works comply with the relevant provisions of the Building Code of Australia, relevant Australian Standards and any other relevant codes or standards and consideration of relevant authorities. The proceedings will likely also require detailed lay witness and expert evidence and legal submissions as to the application of relevant case law and legal principles.

6. In addition, I have taken into account that Ms Chand, who strenuously opposed the granting of leave, is a practising solicitor of over thirty years’ experience and is well able to look after her own interests in the matters in the face of legal representation by the other parties.

7. I note that Ms Chand refers to her experience in the conduct of litigation by Gedoun’s legal representatives in a separate building dispute which she says demonstrates how their involvement will “overly complicate matters, make it more litigious and not promote the objects of the QCAT Act including not conducting the matter in an economical and informal way to minimise costs”. Ms Chand also refers to correspondence by lawyers for the Commission which she found “aggressive and intimidating” and which referred to costs and to the possibility of applying to have the building matter transferred to the District Court.

8. Although I have taken Ms Chand’s submissions into account, I also take into account the obligation upon lawyers, in the due administration of justice, to conduct litigation efficiently and with regard to the real issues in dispute. In my view, it would be inappropriate to refuse leave on the basis of the way litigation was allegedly conducted in another, albeit related, matter.

9. The giving of leave in these circumstances is, in my view, consistent with the objects of the QCAT Act as expressed in s 3, particularly in assisting the Tribunal to arrive at the correct and preferable decision in each of the review proceedings in a way that is economical and quick.

10. Accordingly, for the reasons above, I gave leave on 2 July 2024 for each party to be legally represented.