Ferris v Queensland Building Services Authority

Case [2013] QCATA 210
CITATION: Ferris v Queensland Building Services Authority [2013] QCATA 210
PARTIES: Paul Ferris (trading as Covecorp Queensland)
(Appellant)
v
Queensland Building Services Authority
(Respondent)
APPLICATION NUMBER: APL026-13
MATTER TYPE: Appeals
HEARING DATE: 12 July 2013
HEARD AT: Brisbane
DECISION OF: Peta Stilgoe OAM, Senior Member
Dr J R Forbes, Member
DELIVERED ON: 23 July 2013
DELIVERED AT: Brisbane
ORDERS MADE: The application is dismissed
CATCHWORDS:

APPEAL – Queensland Building Services Authority Act 1991 – cancellation of licence – review of decision to cancel licence – appeal from decision on review – whether licensed builder exercised reasonable diligence to ensure that the work carried out was not defective – whether work in question structural – Form 16 – whether Form 16 relevant to defence of reasonable diligence – whether Tribunal, on review, erred in ruling Form 16 immaterial – whether refusal of application to reopen applicant’s case error of law

Queensland Civil and Administrative Tribunal Act 2009 ss 3, 4, 20, 28, 95, 142
Queensland Building Services Authority Act 1991 (“the Act”) s 67AB, 67AF, 67AH, 67AO
Queensland Building Services Authority Regulation 2003
Evidence Act 1977 s 129B
Building Act 1975 ss 68, 122
Home Building Regulation 2004 (NSW) reg 70

Armstrong v Plumbing Industry Council [2013] QCAT 223;

Vadasz v Queensland Building Services Authority [2013] QCAT 84
Bradshaw v Bar Association of Queensland [2012] QCA 322

McClintock v Queensland Building Services Authority [2011] QCATA 310
Earle v Castlemaine District Community Hospital [1974] VR 722
 Payne v Parker [1976] 1 NSWLR 191
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Liaweena (NSW) Pty Ltd v McWilliams Wines Pty Ltd [1991] ASC 56-038
Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616
Southwell v Specialised Engineering Services  Pty Ltd (1990) 70 NTR 6
McMahon v Cooper [1989] 2 Qd R 418
G Wallin & Anor v Lake Macquarie City Council &  Ors [1997] NSWLEC 168
Al Mousawy v Howitt-Stevens Constructions Pty Limited & Ors  [2010] NSWSC 122
Turijman v Stonewall Hotel Pty Ltd [2011] NSWCA 392
Kalantzis v Commissioner of Fair Trading, NSW Office of Fair Trading [2008] NSWADT 23
Jones v Queensland Building Services Authority [2010] QCAT 563
Harding v Port Phillip CC [2002] VCAT 416
Carbure Pty Ltd v Brile Pty Ltd [2002] V ConvR 54-663; [2002] VSC 272

McDonald v Director-General of Social Security (1984) 1 FCR 354

Huang v Minister for Immigration and Multicultural Affairs [2011] FCA 901

Briginshaw v Briginshaw (1938) 60 CLR 336
NSW Bar Association v Evatt (1968) 117 CLR 177
Adamson v Queensland Law Society Inc [1990] 1 Qd R 498

Luu v Minister for Immigration and Multicultural Affairs (1988) 157 ALR 213
Brettingham-Moore v Municipality of St Leonards (1969) 121 CLR 509

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr T Matthews, instructed by Madison Lodder, solicitors
RESPONDENT: Mr P Dunning QC instructed by H W L Ebsworth, solicitors

REASONS FOR DECISION

Peta Stilgoe, Senior Member

  1. In this matter, the Appeal Tribunal consisted of Dr John Forbes, QCAT…

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AGLC
Ferris v Queensland Building Services Authority [2013] QCATA 210
Case
[2013] QCATA 210
Decision Date

CaseChat Overview and Summary

Ferris appealed against a decision of the Queensland Civil and Administrative Tribunal (QCAT) that dismissed his application to review the decision of the Queensland Building Services Authority (BSA) to cancel his building licence. Ferris argued that the BSA decision was flawed and that he had exercised reasonable diligence to ensure that the work carried out was not defective. Ferris claimed that he had relied on a certificate from his structural engineer, Mr Biggs, to demonstrate that he had exercised reasonable diligence. Ferris also argued that the BSA decision to exclude a "Form 16" was in error and deprived him of a defence.

The court considered whether the Tribunal erred in law by refusing to allow Ferris to re-examine BSA witnesses or by refusing to allow the Form 16 to be considered as evidence. The court found that the Tribunal was entitled to limit evidence that was insufficiently relevant or already in ample supply and that Ferris was not required to call multiple witnesses on the same point to avoid an adverse inference. The court held that the Tribunal did not err in refusing to allow Ferris to re-examine the BSA witnesses as they had little to add to the criticisms of the structural engineer, Caswell. The court also held that the Form 16 was irrelevant to Ferris's defence of reasonable diligence, as it was not a compliance certificate and did not demonstrate that Ferris had exercised reasonable diligence to ensure that the work carried out was not defective.

The appeal was dismissed, and the decision of the Tribunal was upheld. The BSA's decision to cancel Ferris's building licence was affirmed, and Ferris's application for leave to appeal was dismissed.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 18 December 2012, after a rehearing de novo,[12] the Tribunal, Dr Cullen presiding, dismissed the application, and confirmed the BSA’s decision.[12] QCAT Act s 20; Armstrong v Plumbing Industry Council [2013] QCAT 223 at [17]; Vadasz v Queensland Building Services Authority [2013] QCAT 84 at [20]; Bradshaw v Bar Association of Queensland [2012] QCA 322 at [10].Review Decision Appealed On 16 January 2013 Ferris filed an application for leave to appeal. If, and in so far as the appeal concerns an error of law, leave is not required.[13][13] QCAT Act s 142(3)(b); McClintock v Queensland Building Services Authority [2011]QCATA 310 at [7]. In view of the conduct of proceedings on appeal, it is necessary to consider only the first ground, alleging a denial of natural justice: The Member denied the Appellant natural justice in so far as the Member – (a) refused to allow the Appellant to re-examine the Respondent’s witnesses which resulted in the Appellant being unable to adduce evidence that the building was constructed in accordance with the relevant Australian Standards; (b) erred in determining that the author of Form 16 was not allowed to give evidence on the basis that any such evidence was not relevant; (c) erred in determining that the Appellant did not produce the Form 16; and (d) erred in not allow [sic] the Appellant to provide evidence from the author of the Form 16.Natural Justice Ground: Primary Hearing At the primary hearing the emphasis, so far as natural justice is concerned, was on two points: first, that the notice was defective, in alleging “no core filling” when in fact there was some, albeit insufficient;[14] and, second, that the Appellant was not allowed to “re-examine” (or, rather, cross-examine) two officers of the BSA who were said to have inspected the offending pillars.[15] The Member reasonably decided[16], that there was little if anything that they could add to the criticisms of Lack, Brain, Wright and Ferris’ expert, Caswell[17], concerning the insufficient reinforcement of those items, as anchors for a shade sail potentially subject to high winds. [14] AB Vol 3 - 110 (Alford).[15] AB Vol 3 – 922 to 932.[16] Finding of Member, Vol 7 – 2320, 2322.[17] AB Vol 3 – 723. In the interests of expedition and economy[18] the Tribunal is entitled to curb evidence that is insufficiently relevant, or is already in ample supply.[19] A party is not required to call a plethora of witnesses on the same point to avoid an adverse inference.[20][18] QCAT Act ss 3(c), 4(c).[19] QCAT Act s 95(2).[20] Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 377; Liaweena (NSW) Pty Ltdv McWilliams Wines Pty Ltd [1991] ASC 56-038 at 56,617 per Kirby P.Natural Justice Ground on Appeal However, neither of those arguments was pursued by Ferris’ counsel on appeal. (This is not criticism, but a matter of fact.) The thrust of the appeal was that the Member erroneously excluded or ignored a “Form 16”,[21] thereby depriving Ferris of a defence[22] that he “exercised reasonable diligence to ensure that the work carried out was not defective”, by relying upon the certificate of his structural engineer, Mr Biggs.[21] QBSA Form 16 – Compliance Certificate – Construction.[22] Based on subsection 67AF(2)(c)(iii) of the Act.

Ratio Decidendi

Legal Principle Established

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