Elliott v Queensland Building Services Authority

[2010] QCAT 180

CITATION: Elliott v Queensland Building Services Authority [2010] QCAT 180

PARTIES:	Mr Robert Arthur Elliott
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR124-10  

MATTER TYPE: Building matters

HEARING DATE:     On the papers

HEARD AT:  BRISBANE

DECISION OF: K O’Callaghan – Senior Member

DELIVERED ON: 29 April 2010

DELIVERED AT:      BRISBANE

ORDERS MADE: 1.    The application for stay is dismissed.

CATCHWORDS :  Application for stay
Section 22 – Queensland Civil and Administrative Act 2009

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

Reasons

The Application

1. The applicant lodged an application to review a decision of the Queensland Building Services Authority (QBSA) to direct rectification of sub-floor drainage under the ensuite floor of a property at 2 Macaranga Court, Laidley.  The applicant says the decision was made on 6 April 2010.  He attaches a letter from the QBSA of that date however the letter refers to a direction to rectify made 22 March 2010 and is an advice that the direction has not been complied with and notification that the QBSA is investigating the claim and preparing a scope of works which could be the subject of a review.  In any event the applicant also sought a stay of the decision.

The Issues and the legislation

1. Section 22 of the Queensland Civil and Administrative Tribunal Act2009 (“The Act”) relevantly provides that:

(3)The Tribunal may on application of a party, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started under this Act.

(4)The Tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following:

(a)   the interests of any person whose interests may be affected by the making of the order or the order not being made;

(b)   any submission made to the tribunal by the decision-maker for the reviewable decision;

(c)   the public interest.

1. The issue therefore for the Tribunal is whether it is desirable to stay the QBSA’s decision having regard to the matters referred to subsections (a) and (b) and (c).

Submissions

1. The applicant in his application states he is seeking the stay because “there is an identical case before the Tribunal at present (in the same house) case number QR146-09.”

1. He provides no submissions in support with his application.  QR146-09 deals with a direction to rectify issued with respect to a number of leaks in the house including leaks in subsurface drains in the vicinity of the bath waste in the main bathroom.  This application is being heard with two (2) other review applications relating to the same property. 

1. The QBSA opposes the application for stay and has provided written submissions in support of their opposition.

1. They point out that the Tribunal in making a stay order does not have an unfettered discretion and is required to form a positive view that the order is “desirable”. They submit that “desirable” in the context of section 22 of the Act denotes a positive aspiration or something worthy of achievement. They refer in this regard to the reasoning in the Administrative Appeals Tribunal, see Re Griffiths Grif–Air Helicopters Pty Ltd v Civil Aviation Authority (1993) 31 ALD 380. I accept that interpretation of “desirable”. The QBSA acknowledges that other review applications in relation to the property have been listed for hearing commencing three (3) days on 10 May 2010. As they point out the outcome of that hearing is unknown and the decision may be reserved.

1. They state that because of further failings of the ensuite bathroom the owners are living in a dwelling that does not have any proper functioning toilet or shower facilities.  There also appears that there are signs of subsidence with the dwelling.  They have provided a plumber’s report and QBSA inspection reporting in that regard.

1. They submit that it is not desirable to have the owners without any bathroom or toilet facilities for any longer than is necessary to rectify that situation and it is not desirable to await possible major subsidence, as delay may exasperate that issue to a severe degree.  They submit that the applicant’s ground for stay that there is another case before the Tribunal does not make the stay desirable.

Conclusion

1. The applicant has provided no information as to how his interests are to be affected to assist the Tribunal in considering the application for a stay.  As a result the Tribunal can not have regard to how the applicant’s interests will be affected in the event that a stay of the decision is not made.

1. The Tribunal accepts the submissions made by the QBSA that the interests of the owner of the property may well be adversely affected in the event that a stay is granted.

1. The Tribunal is not satisfied that it is desirable in this case on material before it to make an order to stay the operation of the decision under review.  Accordingly the application for a stay is dismissed.