Hartley v Di Russo - [2018] QCATA 46

CITATION:

Hartley v Di Russo [2018] QCATA 46

PARTIES:	Ben Hartley (Appellant)
v
Paulo Di Russo (Respondent)

APPLICATION NUMBER:

APL232-17

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

11 April 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Appeal allowed.

2. The decision of 23 June 2017 is set aside.

3. The application is dismissed for lack of jurisdiction.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where proceeding for building dispute commenced as minor civil dispute – where Adjudicator did not have jurisdiction to hear and decide proceeding

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where appellant did not comply with process established by Queensland Building and Construction Commission to attempt to resolve a building dispute before commencing proceeding – where provision in enabling Act had substantive effect – whether Tribunal has power to waive compliance with substantive provision of enabling Act – where application dismissed for lack of jurisdiction

Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 32, s 47, s 61, s 146,
s 195

Hayward v LJ Hooker Longreach [2013] QCATA 221
Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483
Redding v Simmons [2016] QCATA 100, (Unreported, QCATA, Dr J R Forbes, 23 February 2016)
Walsh v Australian Building and Construction Group [2016] QCAT 187

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

On 16 March 2017, Ben Hartley filed an Application for a minor civil dispute – minor debt to recover $8,284.00 plus his filing fee of $112.00 for building works he claimed to have done for Paulo Di Russo.
After the Tribunal granted Mr Di Russo an extension of time, he filed a Response on 18 May 2017.
On 31 May 2017, the Tribunal correctly identified that Mr Hartley’s application related to a ‘building dispute’. The Tribunal then directed the parties to file evidence that they had participated in early dispute resolution as required by section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
On 13 June 2017, Mr Hartley filed a letter from the Queensland Building and Construction Commission relevantly stating (my underlining):[1]
I refer to the dispute lodged with QBCC on 9 June 2017 and our telephone conversation of 13 June 2017 about building work being performed at the above property.
…
This correspondence serves as notification that you have participated in the QBCC’s dispute resolution process as prescribed by legislation and your case has now been finalised.
Letter Queensland Building and Construction Commission to Benjamin Joseph Hartley dated 13 June 2017.
However, on 23 June 2017 an Adjudicator dismissed the Application for lack of jurisdiction. Mr Hartley wants to appeal…

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.

Continue reading Hartley v Di Russo

Details

AGLC: Hartley v Di Russo [2018] QCATA 46
Case: [2018] QCATA 46
Decision Date: 11 April 2018

CaseChat Overview and Summary

In the case of Hartley v Di Russo, the appellant, Mr Hartley, sought an appeal against a decision made by the Queensland Civil and Administrative Tribunal (QCAT). The underlying dispute was a building dispute which Mr Hartley had commenced in QCAT. The tribunal had dismissed his application for lack of jurisdiction, finding that he had not complied with the process established by the Queensland Building and Construction Commission to attempt to resolve the dispute before proceeding to QCAT. Mr Di Russo, the respondent, defended the tribunal's decision. The central legal issue before the court was whether QCAT had the power to waive compliance with the substantive provision of the enabling Act that required a dispute to be attempted to be resolved before the Commission prior to being brought to QCAT.

The court examined the relevant statutory provisions and found that the requirement to attempt to resolve a dispute before the Commission was indeed substantive and could not be waived by QCAT. The court held that the tribunal did not have the jurisdiction to hear and decide the proceeding because Mr Hartley had not complied with the mandatory process set out in the enabling Act. The court emphasised the importance of following the established procedures to ensure fairness and consistency in the resolution of building disputes.

The appeal was allowed, the decision of 23 June 2017 was set aside, and the application was dismissed for lack of jurisdiction. The court's decision reinforced the principle that tribunals cannot ignore mandatory procedural requirements set out in the enabling Act and must adhere to the established process for resolving disputes. The outcome of the case serves as a reminder for parties to follow the prescribed procedures to avoid their applications being dismissed for lack of jurisdiction.

Orders

Orders of the court

1. Appeal allowed.

2. The decision of 23 June 2017 is set aside.

3. The application is dismissed for lack of jurisdiction.

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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