McGee v Queensland Building and Construction Commission & Anor

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

McGee v Queensland Building and Construction Commission & Anor [2018] QCATA 124

PARTIES:

DANIEL MICHAEL MCGEE 
(applicant/appellant)
v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION  

(respondent)

APPLICATION NO:

APL444-16

MATTER TYPE:

Appeals

DELIVERED ON:

27 August 2018

HEARING DATE:

5 September 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Traves

ORDERS:

The application for leave to appeal is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – RELEVANT PRINCIPLES – WHERE WRONG EXERCISE OF DISCRETION – construction of Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102 and Rule 86 of the Queensland Civil and Administrative Tribunal Rules – where the Tribunal exercised its discretion not to award costs in an administrative review matter to a successful applicant – whether error in construction of s 100 and s 102 of the QCAT Act – whether error in the application of Calderbank offer principles – whether error in omitting to apply or give due consideration to s 105 of the QCAT Act and rule 86 of the QCAT Rules

Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 72, s 77, s 86, s 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 105, s 142(3)(a)(iii)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rule 86

Australian Securities and Investments Commission v Jorgensen [2009] QCA 20
Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130
Country Endeavours Pty Ltd v Casacir Pty Ltd (2013) 194 LGERA 171
Leichardt Municipal Council v Green [2004] NSWCA 341
McEwen v Barker Builders Pty Ltd [2010] QCATA 49
Medical Board of Australia v Wong [2017] QCA 42
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Smith v Wessling-Smith [2017] QSC 189
State of Queensland & Anor v Bell [2016] QCATA 176
Stewart v ATCO Controls Pty Ltd (in liq) (No 2) (2014) 252 CLR 331
Tamawood Ltd v Paans [2005] 2 Qd R 101

APPEARANCES & REPRESENTATION:

Applicant:

D Savage QC, with L Bowden, instructed by QBM Lawyers

Respondent:

S Moody, instructed by M Guiney, in-house solicitor of the Queensland Building and Construction Commission

REASONS FOR DECISION

Introduction

  1. On 15 June 2016 the Tribunal set aside the decision of the Queensland Building and Construction Commission (“QBCC”) to refuse to categorise Daniel McGee as a “permitted individual” under s 56AD(8) of the Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”) and substituted a decision that he was a “permitted individual”. The decision by the QBCC had been made on 17 October 2014, nearly two years earlier.

  2. Mr McGee then made an application for his costs of the proceeding. The application was dismissed by the Tribunal on 30 November 2016. Mr McGee now seeks leave to appeal that decision.

  3. An appeal from a decision about costs, other than a decision about the amount of costs fixed or assessed…

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Details
Case
[2018] QCATA 124
Decision Date

CaseChat Overview and Summary

In the matter of McGee v Queensland Building and Construction Commission & Anor, the applicant sought to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) that refused the applicant's application for costs. The QCAT had found in favour of the applicant in an administrative review matter but declined to award costs to the applicant. The applicant contended that the QCAT erred in its exercise of discretion not to award costs, in the construction of sections 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009, in the application of Calderbank offer principles, and in omitting to apply or give due consideration to section 105 of the QCAT Act and Rule 86 of the QCAT Rules.

The Court examined whether the QCAT had exercised its discretion incorrectly in refusing to award costs. It found that the QCAT had not erred in its application of the Calderbank principles, as it had considered the reasonableness of the Queensland Building and Construction Commission's (QBCC) actions in rejecting the offer. The Court held that the QBCC was entitled to rely on its expert evidence and that it was not unreasonable for the QBCC to refuse to accept expert evidence that could not conclusively determine whether the applicant should be categorised as a permitted individual. The Court further held that it was not appropriate to conduct a forensic analysis of the evidence at the time of the offer to determine whether the QBCC should have accepted the offer.

The Court concluded that the applicant had not established error by the learned member in dismissing the application for costs, and therefore, leave to appeal was refused. The Court did not consider the second general ground, which was not pursued in the hearing.

ORDERS:
The application for leave to appeal is refused.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal, in refuting the applicant’s submission which suggested the Tribunal found that it should have been apparent to the QBCC at the time of the offer that he was a permitted individual, said:[27] In fact, in its reasons for decision, the Tribunal accepted the applicant’s and his witnesses’ evidence in relation to the keeping of proper books of account. Importantly, the Tribunal stated (underlining added):The Tribunal notes the evidence of Mr Haley and in particular the concessions made by him in relation to those matters with which QBCC had taken issue.[28] The Tribunal is satisfied that QBCC was entitled to take the stand it did, based on its expert evidence, which only could then be tested at the hearing. Upon being tested, and upon Mr Haley making certain concessions under cross-examination, and the acceptance by the Tribunal of Mr McGee’s evidence, the Tribunal found in favour of Mr McGee. Further, the Tribunal found that:… although QBCC was not successful in the review application, Mr McGee’s case was not obviously stronger than QBCC’s case, as there were multiple issues to be determined.[39] (emphasis added)[39]McGee v Queensland Building and Construction Commission [2016] QCAT, [33]. The Tribunal did not err in applying the principles relevant to the consideration of a Calderbank offer. The learned member considered the reasonableness of the actions of the QBCC in not accepting the offer and found that the QBCC was entitled to rely upon its expert evidence.[40] Nor, in our view, did the Tribunal err in making the finding that it was not unreasonable at the time for the QBCC to reject the offer. Whilst ultimately unsuccessful in the proceeding, the position adopted by the QBCC as at August 2015 was not so unreasonable that it ought not to have been advanced by a body charged with duties to assist the Tribunal, ensure proper standards in the industry and to achieve a balance between the interests of builders and consumers.[41] Further, it was not unreasonable for the QBCC to refuse to accept expert evidence which could not be conclusive on the ultimate question of whether Mr McGee should be categorised as a permitted individual. This was a question for the QBCC, and ultimately for the Tribunal, and required the decision-maker be satisfied of certain statutory factors. Any argument to the effect that the QBCC should have accepted the opinion of a certain expert attributes to the opinion a legal consequence which it did not have.[42] [40]Ibid, [28]-[29].[41]QBCC Act, s 3.[42]Medical Board of Australia v Wong [2017] QCA 42, [34]. It is not appropriate to conduct a forensic analysis of the evidence at the date of the offer to determine whether the QBCC should, at that time, have been satisfied that the applicant took all reasonable steps to avoid the company going into administration or to try to determine how much of the evidence relied upon by the Tribunal was available at the time the offer was made. What is relevant is whether the QBCC’s rejection of the offer was unreasonable. This question is to be determined by reference to the circumstances which existed at the time the offer was made and rejected.[43] [43]Smith v Wessling-Smith [2017] QSC 189, [16].

Decision

Reasons for decision

Finally, the second general ground was that the Tribunal did not give proper reasons. This was not pursued in the hearing and so we have not considered it.Conclusion The applicant has failed to establish error by the learned member in dismissing the applicant’s application for costs. Leave to appeal is refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.