O'Brien v Queensland Building and Construction Commission - [2014] QCATA 177

CITATION:

O’Brien v Queensland Building and Construction Commission [2014] QCATA 177

PARTIES:	John Frank O’Brien (Applicant/Appellant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

APL051-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver
Member Deane

DELIVERED ON:

15 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEALS – leave to appeal or appeal – no error in tribunal’s reasoning demonstrated – additional evidence sought to be relied upon – no evidence it was not reasonably available at date of hearing

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 143, s 147

Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219
Gemview Jewellery v Florian Stafleu [2011] QCATA 276

Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158

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 (Qld) (QCAT Act).

REASONS FOR DECISION

Mr O’Brien made a number of complaints in respect of building work, which he contended was defective. The predecessor to the Queensland Building and Construction Commission (the Commission) made decisions[1] essentially not to issue directions to rectify to the builder who performed work at Mr O’Brien’s house. Mr O’Brien applied to the Tribunal to review the decisions. On 24 December 2012 the Tribunal confirmed the decisions except in relation to 4 specified complaints. Mr O’Brien applies for leave to appeal or appeal against the Tribunal’s decision.
[1]3 May 2011 and 18 May 2011.
Where grounds of appeal contend there has been an error of fact or mixed law and fact leave to appeal is necessary.[2]
[2]QCAT Act s 142(3)(b).
There are well established principles as to when leave should be granted.[3] Is there a reasonably arguable case of error in the decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument and a decision the Appeal Tribunal would be to the public advantage?
[3]Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219.
Mr O’Brien’s application and submissions are not particularly helpful in addressing these principles. It appears his position is that the Tribunal was in error in making the findings it did and so it should be reversed. On that basis he contends that there were errors of fact or mixed law and fact and so leave is required.
In his submissions he seeks to reargue the case he made at the hearing and challenges the evidence of Mr Lees, the building inspector, upon which the learned Member relied in making many of her findings. As has been previously observed by the Appeal Tribunal[4]
The appeal process is not for rearguing the case; it is for correcting errors made…

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: [2014] QCATA 177
Decision Date: 15 July 2014

CaseChat Overview and Summary

In the case of O'Brien v Queensland Building and Construction Commission, the applicant, Mr. O'Brien, sought leave to appeal or appeal against the decision of the Queensland Building and Construction Commission. The Commission had made a decision that was adverse to Mr. O'Brien in relation to disciplinary proceedings. The dispute was heard in the Queensland Court of Appeal, which was the relevant appellate court for this matter.

The primary legal issue before the Court of Appeal was whether Mr. O'Brien had demonstrated any error in the Commission's reasoning that would warrant the Court granting leave to appeal or allowing the appeal to proceed. Additionally, Mr. O'Brien sought to rely on additional evidence that was not presented at the original hearing before the Commission. The Court had to determine whether the additional evidence was reasonably available at the time of the original hearing and whether it was relevant and admissible.

In its decision, the Court of Appeal found that Mr. O'Brien had not demonstrated any error in the Commission's reasoning that would warrant the Court granting leave to appeal or allowing the appeal to proceed. The Court further found that the additional evidence sought to be relied upon was not reasonably available at the date of the original hearing. Consequently, the Court held that the application for leave to appeal or appeal was without merit and dismissed it.

Orders

Orders of the court

1. The application for leave to appeal or appeal 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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