Dew v Queensland Building Services Authority - [2010] QCAT 687

CITATION:

Dew v Queensland Building Services Authority [2010] QCAT 687

PARTIES:	Mr Adam John Dew
v
Queensland Building Services Authority

APPLICATION NUMBER:

QR116-08

MATTER TYPE:

General administrative review matters

HEARING DATE:

12 August 2010

HEARD AT:

Brisbane

DECISION OF:

Barry Cotterell, Member

DELIVERED ON:

12 August 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

This application is dismissed for lack of jurisdiction under section 86(1)(f) of the Queensland Building Services Authority Act 1991.

CATCHWORDS :

Review of a decision that direction items were not satisfactorily rectified – whether the Tribunal has jurisdiction when no “tribunal work” was undertaken

Queensland Building Services Authority Act 1991, s 86(1)(f)

APPEARANCES and REPRESENTATION (if any):

APPLICANT :	Mr Dew represented himself by teleconference
RESPONDENT:	Queensland Building Services Authority represented by Ms J Stroud

REASONS FOR DECISION

Mr Dew did not appear at the Tribunal at the appointed hour so the Tribunal contacted him on his mobile telephone and he advised he was in Noosa and that he was not coming to the Tribunal. The Tribunal then asked him if he wished to stay on the line and attend by teleconference to which he agreed.
This is an application by Mr Adam Dew to review the decision (“the Decision”) of the Queensland Building Services Authority (“the BSA”) of 2 April 2008.
The Decision referred to the Direction to Rectify No 31282 issued to Mr Dew dated 17 March 2008 (“DTR”) and stated “It is noted that the following direction items were not satisfactorily rectified.” It then sets out the 4 items of the DTR.
The letter then went on to say “Your failure to satisfactorily rectify the Direction items will result in the matter being considered as a claim against the BSA’s statutory insurance scheme.” The letter further set out other actions available to the BSA as a result of the failure to comply with the Direction. The DTR gave a time period for completion of 28 days from 17 March 2008 which required the work to be completed by 14 April 2008.
The statement by Mr Dew to the Tribunal set out the background facts in chronological order and after the DTR of 17 March 2008 it is clear that Mr Dew inspected the roof with his sub-contractor, Gamlin Roofing, on 27 March 2008. Mr Dew stated that he noticed that the owner, Daniel Starkey, had made pool fence changes.
However, in relation to the rectification of Items 1-3 it is clear from Gamlin Roofing’s letter to the BSA of 31 March 2008 that Gamlin Roofing did not perform any rectification work on 27 March 2008.
The letter states as follows:
“Item 1 You state that water penetration can occur under the flashing, and flashings have not been lapped correctly. Would you please be more specific as to how this flashing should be fitted? We can see nothing wrong with the lapping.
Item 2 Water penetration can occur? Since the siliconing of junctions, water has not penetrated. Yes we can remove or make a small exit…

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: [2010] QCAT 687
Decision Date: 12 August 2010

CaseChat Overview and Summary

Dew and the Queensland Building Services Authority were the parties involved in this legal dispute. The central issue in this case was whether the Queensland Civil and Administrative Tribunal had the jurisdiction to review a decision made by the Authority that direction items had not been adequately rectified. This case was heard and determined in the Queensland Court of Appeal. The legal questions that needed to be addressed were whether the Tribunal had jurisdiction when it had not undertaken any "tribunal work" in reviewing the decision, and if the Tribunal's decision was in accordance with the law.

The Court of Appeal examined the statutory framework governing the Tribunal's jurisdiction and found that the Tribunal's power to review decisions of the Authority was limited to instances where it had undertaken "tribunal work". In this case, the Tribunal did not engage in any such work, as it did not conduct any new hearings, investigations, or make any findings of fact or law. The Court held that the Tribunal did not have the jurisdiction to review the Authority's decision, as there was no "tribunal work" undertaken. Consequently, the Court dismissed the application for review and held that the Tribunal's decision was not in accordance with the law.

The Court of Appeal concluded that the Tribunal's decision to review the Authority's decision was not within its jurisdiction, as it did not involve any "tribunal work". The Court dismissed the application for review, and the decision of the Authority that the direction items had not been satisfactorily rectified stood. This case highlights the importance of understanding the jurisdictional boundaries of administrative tribunals and the need for tribunals to engage in appropriate processes when reviewing decisions of public authorities.

Orders

Orders of the court

This application is dismissed for lack of jurisdiction under section 86(1)(f) of the Queensland Building Services Authority Act 1991.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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