Legal Research
Cases
Chandra v Queensland Building and Construction Commission

Chandra v Queensland Building and Construction Commission

Link copied

Case Copied 16 December 2014 45 min read

Contents

On this page

SUPREME COURT OF QUEENSLAND

CITATION:

Chandra v Queensland Building and Construction Commission [2014] QCA 335

PARTIES:

SURESH CHANDRA
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)

FILE NOS:

Appeal No 2885 of 2014
QCAT Appeal No 58 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

16 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2014

JUDGES:

Margaret McMurdo P and Peter Lyons and North JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The parties are at liberty, if they so choose, to file written submissions about the form of orders proposed in paragraph 91 of the reasons for judgment of Peter Lyons J, by 30 January 2015.1.

The parties are at liberty, if they so choose, to file written submissions about orders for costs (including any application by the respondent for an indemnity certificate), by 30 January 2015, in accordance with paragraph 52(4) of Practice Direction 3 of 2013.2.

Unless such submissions are filed, the orders will be as proposed in paragraph 91 of the reasons for judgment of Peter Lyons J.3.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Queensland Civil and Administrative Tribunal (QCAT) found that the applicant had engaged in professional misconduct – where QCAT made orders that the applicant never be re-licensed as a building certifier by the respondent and that the applicant pay compensation to the home owners – where the applicant lodged an application to the appeal tribunal to extend time to appeal against the decision only in respect of the order that the applicant never be re-licensed as a building certifier – where a Senior Member of QCAT constituting the appeal tribunal refused the application for an extension of time and dismissed the application for leave to appeal or appeal – whether the applicant can appeal against the appeal tribunal's decision to refuse the application for an extension of time – whether the applicant can appeal against the appeal tribunal's decision to dismiss the application for leave to appeal or appeal

PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant's application for an extension of time in which to appeal to the appeal tribunal was refused because the Senior Member did not accept the applicant's explanation for the delay and considered that an extension of time would cause prejudice to the home owners – whether the Senior Member failed to accord natural justice to the applicant by conducting the matter without an oral hearing, and without giving the applicant an opportunity otherwise to respond to matters which she regarded as potentially of importance – whether the Senior Member failed to give adequate consideration to the applicant's submissions, including those…

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.

Keep reading for free

Create a free CaseChat account to read Chandra v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QCA 335
Decision Date: 16 December 2014

CaseChat Overview and Summary

Chandra sought leave to appeal against two orders made by the Queensland Building and Construction Commission (QBCC). The first was that Chandra be permanently debarred from holding a licence as a building certifier. The second was that Chandra pay compensation to the homeowners for losses incurred as a result of his actions. Chandra had previously appealed against the first order to the Queensland Civil and Administrative Tribunal (QCAT), which had dismissed his appeal. Chandra sought to extend the time in which he could appeal to the Supreme Court. The Senior Member of QCAT dismissed Chandra's application for an extension of time and his application for leave to appeal against the QCAT's decision.

The central issues were whether Chandra could appeal against the QCAT's refusal to extend the time in which he could appeal to the Supreme Court, and whether he could appeal against the QCAT's dismissal of his application for leave to appeal. The Supreme Court held that Chandra could appeal against the QCAT's refusal to extend time. The QCAT's decision was not one that could be made only by a tribunal constituted with members who had heard the original case. The decision was one that could be made by any QCAT member, and therefore could be made by the Supreme Court. The Supreme Court held that Chandra could not appeal against the QCAT's dismissal of his application for leave to appeal. The QCAT's decision to refuse leave to appeal was final, and could not be appealed.

The Supreme Court ordered that the parties could file written submissions about the form of orders and costs by 30 January 2015. If no submissions were filed, the orders would be as proposed in the reasons for judgment of Peter Lyons J.

Orders

Orders of the court

The parties are at liberty, if they so choose, to file written submissions about the form of orders proposed in paragraph 91 of the reasons for judgment of Peter Lyons J, by 30 January 2015.1.

The parties are at liberty, if they so choose, to file written submissions about orders for costs (including any application by the respondent for an indemnity certificate), by 30 January 2015, in accordance with paragraph 52(4) of Practice Direction 3 of 2013.2.

Unless such submissions are filed, the orders will be as proposed in paragraph 91 of the reasons for judgment of Peter Lyons J.3.

Background

Background to the litigation

The applicant's extension submissions, after indicating that the applicant wished to appeal against the disciplinary decision, stated that the appeal "should ordinarily be lodged within 28 days of the decision". It then referred to s 61 of the QCAT Act. Under the heading "BACKGROUND", after a statement that the decision was made on 22 November 2013, the following appeared[17]: A little later, it set out an explanation for the delay. It stated that the applicant left Australia on 11 December 2013 to visit an ill relative in India, and did not return until 2 January 2014. While he was away, the applicant had difficulty with communications and emails, including with his solicitor. His solicitor was on vacation from 22 December 2013 until 13 January 2014. On 13 January 2014 the applicant contacted his solicitor to obtain advice in relation to the decision. He expected to be able to file the application on 28 January 2014. The document addressed the strength of the case on the proposed appeal, stating that the grounds were set out in the draft application for appeal; and that the strength of the grounds could only be assessed at the hearing of the appeal. The submissions also dealt with prejudice. It was submitted that there was no conceivable prejudice to the respondent. Nor was there prejudice to the home owners because, as has been stated earlier, the proposed appeal related only to Order 1, and not to the compensation order. The submissions made the point that the delay was short; and that the application could not have realistically been made earlier, because the tribunal was closed over the Christmas vacation, and because the applicant's solicitor was unavailable over the Christmas-New Year period. Some submissions were made under the heading, "FAIR AND EQUITABLE". They referred to the fact that the applicant's registration had previously been cancelled for a period of two and a quarter years, for later conduct; and to the length of time that had passed since the certification which led eventually to the disciplinary hearing. They contended that the penalty was overly harsh, having regard to the age of the applicant, his loss of earning ability, and his responsibility to extended family. They noted that the only limitation on the power to extend time was that found in s 61(3) of the QCAT Act, namely, that the extension would cause prejudice or damage to a party to the proceedings that could not be remedied by an order for costs or damages. They referred to a statement in a decision of this Court[18] said to set out principles relevant to the granting of an extension of time, including that there is a tendency to relax rigid time limits where that can be done without causing prejudice or injustice to the parties. At the outset, the Senior Member identified the applications before her as an application for leave to appeal; and an application for an extension of time[19].[19]AR p 67, para [2]. The Senior Member accepted the explanation for delay from 22 December 2013 to 13 January 2014[20]. However, the reasons stated that the applicant received a copy of the decision by email on 17 December 2013; and that the applicant "is silent about when his lawyer received a copy of the decision"; and "about why he did not receive a copy of the decision before he left for India"[21]. They noted the absence of an affidavit from the lawyer "about what happened between 22 November 2013 and 17 December 2013". The Senior Member stated that if the delay was as a result of error by the lawyer, "the tribunal would giver (sic) serious consideration to an extension of time. In the absence of an explanation, however, I can only assume that nothing was done and there was no good reason for that omission[22]."[20]AR p 67, para [4].[21]AR p 67, para [5].[22]AR p 67, para [5].

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.

CITATION:	Chandra v Queensland Building and Construction Commission [2014] QCA 335
PARTIES:	SURESH CHANDRA (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
FILE NOS:	Appeal No 2885 of 2014 QCAT Appeal No 58 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	16 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2014
JUDGES:	Margaret McMurdo P and Peter Lyons and North JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The parties are at liberty, if they so choose, to file written submissions about the form of orders proposed in paragraph 91 of the reasons for judgment of Peter Lyons J, by 30 January 2015.1. The parties are at liberty, if they so choose, to file written submissions about orders for costs (including any application by the respondent for an indemnity certificate), by 30 January 2015, in accordance with paragraph 52(4) of Practice Direction 3 of 2013.2. Unless such submissions are filed, the orders will be as proposed in paragraph 91 of the reasons for judgment of Peter Lyons J.3.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Queensland Civil and Administrative Tribunal (QCAT) found that the applicant had engaged in professional misconduct – where QCAT made orders that the applicant never be re-licensed as a building certifier by the respondent and that the applicant pay compensation to the home owners – where the applicant lodged an application to the appeal tribunal to extend time to appeal against the decision only in respect of the order that the applicant never be re-licensed as a building certifier – where a Senior Member of QCAT constituting the appeal tribunal refused the application for an extension of time and dismissed the application for leave to appeal or appeal – whether the applicant can appeal against the appeal tribunal's decision to refuse the application for an extension of time – whether the applicant can appeal against the appeal tribunal's decision to dismiss the application for leave to appeal or appeal PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant's application for an extension of time in which to appeal to the appeal tribunal was refused because the Senior Member did not accept the applicant's explanation for the delay and considered that an extension of time would cause prejudice to the home owners – whether the Senior Member failed to accord natural justice to the applicant by conducting the matter without an oral hearing, and without giving the applicant an opportunity otherwise to respond to matters which she regarded as potentially of importance – whether the Senior Member failed to give adequate consideration to the applicant's submissions, including those…