Fox v Queensland Building Services Authority
[2013] QCAT 246
| CITATION: | Fox v Queensland Building Services Authority & Anor [2013] QCAT 246 |
| PARTIES: | Mr Matthew James Fox (Applicant) |
| v | |
| Queensland Building Services Authority Greygull Pty Ltd (Respondents) |
| APPLICATION NUMBER: | GAR076-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kate Buxton, Member |
| DELIVERED ON: | 24 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for reopening filed by Greygull Pty Ltd is refused. 2. Each party may make written submissions by 11 June 2013 as to whether the application against Greygull ought now be struck out. 3. The issue of strike out, together with the correction, will be determined on the papers after 11 June 2013. |
| CATCHWORDS: | REOPENING – whether reasonable excuse for non-attendance – where matter resolved between other parties at Compulsory Conference – whether application against respondent builder should now be struck out. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 84, s 137 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The respondent builder, Greygull Pty Ltd, was joined to these proceedings by the first respondent, the Queensland Building Services Authority. The matter was then referred, and resolved at a compulsory conference. Greygull did not attend that conference. Notwithstanding, the orders made as a result of that compulsory conference were stated to be ‘by consent’. Given its non-attendance, they cannot be said to have been made with the consent of Greygull.
Greygull seeks to reopen the proceedings and have the orders made at the compulsory conference set aside using the procedure in s 137 of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’).
The compulsory conference took place on 3 December 2012 and consent orders were made on that date. By way of recitals to these consent orders they were expressed to be by way of resolution of the claim brought by the home owner, Mr Fox, against the Authority. They were not expressed to bind Greygull. The effect of the orders are as follows:
a)The decision of the Authority to refuse to issue directions to rectify was set aside.
b)Directions to rectify were issued with respect to a schedule of items attached to the order.
c)Orders as to costs.[1]
[1]By application made 21 March 2013, Mr Fox seeks an application for correction in relation to the costs order made on 3 December 2012. That application is in abeyance pending determination of Greygull’s application for reopening.
The Tribunal Member convening the compulsory conference has the power to make orders giving effect to a settlement reached between the parties.[2] The provisions of the QCAT Act apply to that order as if the compulsory conference had been a proceeding and the order made by the Member was made by the Tribunal constituted for the proceeding.[3]
[2]Section 84(2) of the QCAT Act.
[3]Section 84(3) of the QCAT Act.
No orders were made against Greygull. The effect of the “consent” orders is that the Authority, who had previously refused to issue directions to rectify against Greygull has now agreed to do so with respect to certain identified issues. I am satisfied that the “consent” orders are orders to which the QCAT Act applies and which can therefore be the subject of a reopening application.
Section 137 of the QCAT Act defines a ‘reopening ground’ to mean, relevantly, that a party who did not appear at a hearing (including a compulsory conference) and had a reasonable excuse for not attending may have that proceeding reopened. This is the only reopening ground relevant to the issues raised by Greygull’s material. There is no evidence or suggestion that significant new evidence has arisen which was not available at the compulsory conference. Therefore, the alternative ground expressed in s 137 of the QCAT Act of substantial injustice is not relevant to this application.
Greygull has offered an explanation as to why no one appeared at the compulsory conference on its behalf. Closer analysis, however, reveals that there is no ‘reasonable excuse’ of the kind required by s 137. The material indicates that the director of Greygull had a medical condition which, at some stage, had required surgery. However, no dates or specifics were provided on behalf of Greygull as to when that surgery was required, what the condition of the director was at the time of the compulsory conference or why no one else could appear on behalf of Greygull. Further, no attempt was made by Greygull prior to the scheduled compulsory conference to inform either QCAT or the other parties that no one would be in attendance on its behalf. No application was made for an adjournment.
Since being joined as a party to these proceedings, Greygull has taken a passive role. There is nothing compelling in the material to suggest that Greygull did anything other than wait for the outcome of the compulsory conference and then, when that outcome did not suit it, sought to have the matter re-opened. I am not satisfied that the evidence demonstrates a reasonable excuse for nonattendance. The reopening application is therefore refused.
As the reopening in this application is refused this does leave the question of the current status of the remaining proceedings. As I have previously indicated, a consent order cannot bind a party who is not present when it was made or who did not otherwise indicate its consent to those orders being made. Greygull therefore remains a respondent to a proceeding which has been otherwise resolved between the applicant and other respondent to that same proceeding.
The Authority applied to have Greygull joined as a party. Mr Oliver acceded to that application and ordered that Greygull be joined on 4 September 2012. The basis of that application, in the Authority’s submission, was to ensure that Greygull was bound by the findings made in any determination of this review application.
However, Mr Fox and the Authority have now entered into an agreement which has been converted into an enforceable order of this Tribunal to which only they have consented. Greygull is not a party to the consent order and its rights are not affected by that order. The intent of the Authority to bind Greygull to the determination in this review application has been defeated by its decision to consent to arrangements between it and the homeowner, Mr Fox, following the compulsory conference.
As Mr Fox does not seek any relief against Greygull the question arises whether this application as against Greygull ought now be struck out.
I note the application for correction of the costs element of the consent orders has remained in abeyance until determination of this application. Both that application for correction, and the question of the whether the proceedings should now be struck out as against Greygull, should be placed before a member for determination on the papers after the parties have had an opportunity to prepare submissions on this point.
Each party may make written submissions by 11 June 2013 as to whether the application against Greygull ought now be struck out. That application, together with the application for correction, will be determined on the papers thereafter.
Orders
The application for reopening filed by Greygull Pty Ltd is refused.
Each party may make written submissions by 11 June 2013 as to whether the application against Greygull ought now be struck out.
The issue of strike out, together with the correction, will be determined on the papers after 11 June 2013.
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