Hartley v Di Russo

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 that decision.
It is understandable that in the busy minor civil disputes jurisdiction in which the learned Adjudicator was sitting, she sought to determine the application quickly and expeditiously. That is consistent with the objects of the QCAT Act.[2]
[2] QCAT Act, s 3.
Unfortunately, in doing so it would appear that the learned Adjudicator fell into an error of law in dismissing the application. This is because an Adjudicator does not have jurisdiction to hear and decide domestic building disputes.[3] Once the learned Adjudicator determined that Mr Hartley’s application was a domestic building dispute, she did not have jurisdiction to dismiss his application. For this reason, the appeal must be allowed.
[3] Ibid, s 195.
However, the Appeal Tribunal is satisfied that it is still appropriate to dismiss Mr Hartley’s application for the reasons that follow.[4] This course is appropriate because the Appeal Tribunal has all necessary material before it.[5]
[4] Ibid, s 146.
[5] Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221, [43] (Wilson J).
There is a fundamental flaw in Mr Hartley’s original application: he did not comply with section 77(2) of the QBCC Act until after he commenced the proceeding. Because compliance with section 77(2) is the gateway through which an applicant must pass before filing an application for a building dispute,[6] his non-compliance is fatal to his application and his appeal:[7]
Section 77(2) QBCC Act is expressed in clear and unequivocal terms. A person may not apply to the tribunal to decide a building dispute unless the person has complied with a process established by the QBCC to attempt to resolve the dispute. Compliance with the section is a precondition to the jurisdiction of the Tribunal being enlivened. The provision is not merely procedural, it is mandatory and has substantive effect. The Tribunal cannot exercise the powers conferred by s 61 QCAT Act to waive compliance with s 77(2) QBCC Act.
[6] Walsh v Australian Building and Construction Group [2016] QCAT 187, [8], citing with
approval Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483.
[7] Ibid, [12], citing with approval Redding v Simmons (Unreported, QCATA, Dr J R
Forbes, 23 February 2016).
The consequence of Mr Hartley not complying with section 77(2) of the QBCC Act is that the Tribunal does not have jurisdiction in his application. It does not matter that he filed his application as a minor civil dispute.[8]
Walsh v Australian Building and Construction Group [2016] QCAT 187, [13], citing with approval Redding v Simmons (Unreported, QCATA, Dr J R Forbes, 23 February 2016).
The original application was misconceived and must therefore be dismissed as lacking in jurisdiction.[9]
QCAT Act, s 47; Walsh v Australian Building and Construction Group [2016] QCAT 187, [13].
Whether or not Mr Hartley should file in the Tribunal a further application for a domestic building dispute is a matter upon which he might wish to seek independent legal advice, particularly having regard to the matters raised in Mr Di Russo’s response to the original application.

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.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established