McDonald v Queensland Building Services Authority

[2012] QCAT 224

CITATION: McDonald v Queensland Building Services Authority [2012] QCAT 224

PARTIES:	Mr Jonathan Steward McDonald (Applicant/Appellant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: GAR292-11 / GAR019-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: K Buxton, Member

DELIVERED ON: 31 May 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Application to strike out GAR191-12 is dismissed.

2.    Application to strike out GAR292-11 is dismissed.

3. Applications GAR019-12 and GAR292-11 are consolidated pursuant to section 54 of the QCAT Act.

4.    The consolidated action be relisted for compulsory conference before Dr Bridget Cullen, Member, at a date to be fixed by the registry.

CATCHWORDS:

Striking out – whether vexatious or abuse of process – Tribunal determination of jurisdiction

Queensland Civil and Administrative Tribunal Act 2009, ss 47, 54
Queensland Building Services Authority Act 1991, s 86(2)

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

1. Mr McDonald is a builder who undertook works for the owners of 24 George Street, Helidon, Queensland 4344 (the “homeowners”) and who has now filed two applications in QCAT seeking review of decisions of the Queensland Building Services Authority (the “QBSA”).  The details of each application are as follows:

   (a)GAR292-11 in which Mr McDonald seeks review of the BSA’s decision of 8 April 2010 to issue direction to rectify number 34686; and

   (b)GAR019-12 in which Mr McDonald seeks review of the QBSA’s decision of 15 December 2011, which he received on 20 December 2011, which he describes as a decision terminating the contract between himself and the homeowners for the works at 24 George Street, Helidon.

2. By application filed 5 March 2012 in GAR292-11 the QBSA has sought to have that proceeding struck out on the basis that the application is outside the Tribunal’s jurisdiction by virtue of the operation of section 86(2) of the Queensland Building Services Authority Act 1991 (the “QBSA Act”).

3. By application filed 8 March 2012 in GAR019-12 the QBSA has sought to have that proceeding struck out as vexatious or an abuse of process pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (the “QCAT Act”).

4. These applications are considered together as the background to the actions inextricably links the two proceedings.  Mr McDonald commenced proceedings in the former Commercial and Consumer Tribunal (the “CCT proceedings”) against the homeowner in relation to monies outstanding from the homeowner.  Included in his application for relief was an order that the notice given by the homeowners on 19 August 2008 was ineffective and that the contract between them had not been terminated.  On the day scheduled for the determination of that matter before the CCT, 24 November 2009, the action was compromised by the parties on the basis that Mr McDonald’s claim and the homeowners counter claim be dismissed and that the applicant pay to the homeowners a sum for their costs.

5. During the course of those proceedings the QBSA’s ability to make decisions and manage the dispute between the parties to those proceedings was affected by the operation of section 83 of the QBSA Act. Since resolution of the proceedings two decisions have been made by the QBSA in relation to the works of which Mr McDonald now seeks review.

6. The decision in GAR019-12 is one reviewable under section 86(1)(i) of the QBSA Act. The QBSA have applied to strike out the proceeding under section 47 of the QCAT Act which confers jurisdiction upon the Tribunal to dismiss or strike out proceedings on the basis, inter alia, that they are vexatious or an abuse of process.

7. Curiously, the QBSA assert that the CCT proceedings determined, finally, the issue of whether or when the contract between Mr McDonald and the homeowners was determined.  They rely upon a construction of the word “dismissed” in the consent order as leading, in its submission, to the conclusion that the issue of contractual determination was then finally determined.  The trouble is, both parties to that proceeding contended for a different construction of the contract.  In their amended defence dated 20 November 2009 the homeowners asserted that the notice given by the homeowners on 19 August 2008 was effective and the contract had been validly terminated.  The consent orders dismissed both claims equally.  It is impossible to conclude any meaning from the orders other than that the parties’ rights to claim against one another for the issues ventilated in those claims merged in their agreement, as reflected in the consent orders of 24 November 2009.

8. I described the QBSA’s submission as curious because, even if the strained interpretation of the consent order for which it contended was in fact correct, it would still not bind the rights and remedies available as between the QBSA and Mr McDonald.  The QBSA was not a party to the earlier proceeding and performs a statutory function entirely distinct from the determination of the rights of individuals to a private contract.  The QBSA indicated, in its submission, that any such undesirable result could be avoided by the QBSA itself “joining the homeowners” to this application.  The QBSA may apply for leave to join a party to a QCAT proceeding and that application may be considered and determined by this Tribunal when made.  Neither step has yet occurred. 

9. The QBSA submits that Mr McDonald has been vexatious, alluding to his repetitious allegations of the same issues.  On the face of the consent orders, he settled his action with the homeowners without the issue of contractual termination being expressly determined.  The fact that the QBSA issued a determination itself lends some support to the suggestion that clarity was needed in whether and when the contract was determined.  It is that determination of which Mr McDonald now seeks review.  That determination has not yet been reviewed and is reviewable in QCAT.  The action is not vexatious, nor is it an abuse of process.

10. The application to strike out GAR019-12 is dismissed.

11. The application to strike out GAR292-11 is brought on the basis that QCAT does not have jurisdiction to hear the matter.  There is an established body of law[1] to the effect that a decision identified in section 82(2)(b) of the QBSA Act, being a decision to direct rectification[2] where the application is filed outside the 28 day stipulated period and the other requirements in section 82 are met the Tribunal must not review such a decision.  That provision applies where the direction to rectify is valid.  Here, the validity of the direction to rectify is under attack by Mr McDonald.

    [1]Smith v QBSA [2010] QCAT 448 at [30]; Cornpig v QBSA [2011] QCAT 255 at [12]; Orenshaw v QBSA [2012] QCAT 79 at [9].

    [2]        Otherwise reviewable under section 82(1)(e).

12. If this Tribunal has jurisdiction to review the decision to issue a direction to rectify it must also have jurisdiction to determine whether the decision under review is in power.  This Tribunal must have power to determine the limits of its own jurisdiction.

13. The arguments advanced by the QBSA in this application may ultimately be available to them in the hearing of these proceedings if they can establish that, by issuing the direction to rectify on 8 April 2010, they did so within the limits of their statutory authority. If they succeed, QBSA may submit that section 82(2)(b) should be invoked, but on the material presently before the Tribunal, such summary dismissal is not available.

14. The application to strike out application GAR292-11 is therefore dismissed.

15. These applications are inextricably linked factually and their determination is likely to involve the same or similar evidence from the same witnesses. In order to dispose of these matters in a way which is economical and quick these applications are consolidated pursuant to section 54 of the QCAT Act. As each application was progressing through a compulsory conference prior to the filing and determination of these applications, I direct that the compulsory conference in the consolidated matter be relisted before Dr Bridget Cullen, Member, at a date to be fixed by the registry.