Mackay v Queensland Building Services Authority - [2010] QCAT 381

CITATION:

Mackay v Queensland Building Services Authority [2010] QCAT 381

PARTIES:	Mr David Mackay, Mrs Joanne Mackay
v
Queensland Building Services Authority

APPLICATION NUMBER:

GAR017-10

MATTER TYPE:

General administrative review matters

HEARING DATE:

Decision on the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe

DELIVERED ON:

9 August 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

Application to join Mr Dunlea as a party to the proceeding is dismissed.

CATCHWORDS :

Joinder of a party – whether the person’s interests are affected – where non-party has already compromised action - whether it is desirable for a party to be joined – Comfortable Homes Pty Ltd –v- QBSA, s42 QCAT Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

Timber flooring installed in Mr & Mrs Mackay’s home has buckled to the extent that it is a category 1 defect. The Authority issued a direction rectify to the builder, John Dunlea, on 8 September 2009. Mr Dunlea applied to review that direction. After further investigation, on 14 December 2009 the Authority withdrew the direction and Mr Dunlea withdrew his application for review.
The Mackays have filed an application seeking a review of the Authority’s decision of 14 December 2009. The question for my determination is whether Mr Dunlea should be a party to this proceeding.
The joinder of parties is covered by section 42 of the Queensland Civil and Administrative Tribunal Act (“QCAT Act”). The matters that the tribunal is required to consider are:

a)(That) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
b)The person’s interests may be affected by the proceeding; or
c)For another reason, it is desirable that the person be joined as a party to the proceeding.

Neither the Authority nor Mr Dunlea submits that he is a person who should be bound by or have the benefit of a decision of the tribunal in the proceeding.

The person’s interests may be affected by the proceeding

The Authority submits that Mr Dunlea is a person whose interest are affected by the review proceedings in that the outcome of this proceeding may create an obligation in Mr Dunlea to undertake rectification works.
Section 42 of the QCAT Act largely picks up the language of section 45 of the now repealed Queensland Building Tribunal Act (“QBT Act”). Section 42(1)(b) of the QCAT Act refers to a person whose interests may be affected whereas section 45(1)(b) of the QBT Act refers to a person whose interests are affected. In this context, I consider the difference in language immaterial.
Mr Wensley QC provides a useful analysis of section 45 of the QBT Act in Comfortable Homes Pty Ltd –v- QBSA[1]. He says this:

“As to section 45(1)(b, it does not seem to me that the proceeding, ie the application to review an administrative decision of the Authority, is something…

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.

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Details

Case: [2010] QCAT 381
Decision Date: 9 August 2010

CaseChat Overview and Summary

In the case of Mackay v Queensland Building Services Authority, the matter before the court was a request to join Mr. Dunlea as a party to the proceedings. The dispute involved the original plaintiff, Mackay, who was pursuing claims against the Queensland Building Services Authority. Mackay sought to include Mr. Dunlea, who was not initially a party to the case, in the proceedings on the grounds that his interests were affected and it was desirable for him to be joined.

The primary legal issue for the court to determine was whether Mr. Dunlea's interests were indeed affected by the proceedings, as required under the legislation. Additionally, the court had to assess whether the inclusion of Mr. Dunlea was desirable, particularly given that a non-party had already compromised the action. The court needed to balance these considerations against the statutory requirement for joinder under section 42 of the Queensland Civil and Administrative Tribunal Act.

The court found that although Mr. Dunlea's interests might be tangentially affected by the proceedings, they were not sufficiently impacted to warrant his inclusion as a party. Furthermore, given that a compromise had already been reached with another non-party, the court concluded that it was not desirable to join Mr. Dunlea to the proceedings. The court emphasised the importance of ensuring that the interests of all parties are appropriately represented and that the inclusion of additional parties is necessary and beneficial to the resolution of the dispute.

The court dismissed the application to join Mr. Dunlea as a party to the proceeding. This decision was based on the lack of significant impact on Mr. Dunlea's interests and the existing compromise with another non-party. The court's ruling highlighted the need for careful consideration when deciding whether to join additional parties to ensure the proceedings are fair and efficient.

Orders

Orders of the court

Application to join Mr Dunlea as a party to the proceeding is dismissed.

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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