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 for drainage at each pan, but why when its not leaking?
Item 3 Water penetration has occurred on the soffit at the vicinity of the box guttering. Without removing a sheet for closer inspection, it appears at this stage that the end of the sheets projecting into the box gutter had been “stood” on causing the fold-down to flatten and “pop” straight thus allowing water to flow/run back under the roof sheet. Failing this, the box gutter could possibly be leaking at the join which means breaking the existing joint and resealing.”
Gamlin Roofing went on to say:
“Gamlin Roofing finished work on this property in August 2002 and since then there has been repairs / rectification / maintenance carried out by others which leave Gamlin Roofing and possibly Adam Dew not liable for the above rectification as per your direction.”
This is not a matter for consideration by the Tribunal here as the DTR could have been reviewed by Mr Dew if these issues were relevant.
In this regard, the Tribunal notes the exchange of emails between Mr Blumel of BSA and Mr Dew of 5 February 2008 where Mr Blumel set-out the manner in which Mr Dew could review a decision of the BSA.
The Tribunal finds on the basis of Mr Dew’s evidence including that from Gamlin Roofing that after the DTR of 17 March 2008 was issued no rectification work was carried out by Mr Dew in relation to Items 1 to 3 of the DTR.
Mr Warren Nonmus, an architect, filed a statement on behalf of the BSA in which he confirmed that on 21 April 2008 he advised the BSA that rectification required by the DTR had not occurred. He also advised that rectification prior to the DTR was unsatisfactory.
In relation to Item 4, Mr Dew was adamant at the Tribunal hearing that he was not responsible for any rectification of the pool fence and that what occurred by way of rectification in 2008 was carried out not by him but by the owner, Mr Starkey.
Therefore, in relation to Item 4, the Tribunal finds that the rectification of the pool fence was not undertaken at the direction of the BSA, as the BSA directed Mr Dew, and not Mr Starkey, to do this rectification. Therefore, the Tribunal finds that this work does not fall within section 86(1)(f) of the Queensland Building Services Authority Act 1991. Section 86(1)(f) refers to reviewable decisions and states as follows:
86 Reviewable decisions
(1) The tribunal may review the following decisions of the authority—
…
(f) a decision that tribunal work undertaken at the direction of the authority is or is not of a satisfactory standard;
On the basis of the Tribunal’s findings that no work was undertaken, the Tribunal has no jurisdiction to review the BSA’s decision of 22 April 2008. No “tribunal work” was undertaken so the question of whether or not the work was of a satisfactory standard does not arise.
While the Tribunal notes Mr Dew remains adamant that he has done everything necessary to rectify Items 1 to 3 and that he was not responsible for rectifying the pool fence, these are not issues of relevance to this Tribunal in view of its lack of jurisdiction to review the decision of 22 April 2008.
Mr Dew has not sought to have this Tribunal review the decision of 17 March 2008 to issue him with the DTR under section 86(1)(e).
Whether or not the Tribunal could or should review this decision in light of subsection 86(2)(b) is not a matter for determination by this Tribunal at this stage as there was no evidence of the BSA’s actions in relation to insurance or disciplinary proceedings. The 28 day limitation period for seeking a review of the DTR of 17 March 2008 expired on 14 April 2008, approximately 2 years and 5 months ago. Subsection 86(2)(b) states as follows:
(2)    The tribunal must not review the following decisions of the authority—
(a)    …
(b)    a decision to direct rectification or completion of tribunal work by a building contractor and any finding by the authority in arriving at the decision if—
(i)28 days have elapsed from the date the direction to rectify or complete was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision; and
(ii)the authority has—
(A)started a disciplinary proceeding against the building contractor by an application under division 4; or
(B)served a notice on the building contractor advising a claim under the statutory insurance scheme has been approved in relation to tribunal work stated in the direction; or
(C)started a prosecution, or served an infringement notice, for an offence against section 72(10);”
Because the Tribunal lacks jurisdiction to review the decision of 22 April 2008, this application must be dismissed. The Tribunal’s order will be:
a) This application is dismissed for lack of jurisdiction under section 86(1)(f) of the Queensland Building Services Authority Act 1991.