Orenshaw v Queensland Building Services Authority and Johnston
[2010] QCAT 537
•2 November 2010
| CITATION: | Orenshaw v Queensland Building Services Authority and Johnston [2010] QCAT 537 |
| PARTIES: | Wayne Francis Orenshaw |
| v | |
| Queensland Building Services Authority (1st Respondent) and Gary Johnston (2nd Respondent) |
| APPLICATION NUMBER: | GAR202-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 19 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | M Howard, Member |
| DELIVERED ON: | 2 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Under section 42 of the Queensland Civil and Administrative Tribunal Act 2009, Gary Johnston, the Home Owner, is joined as a party to the proceeding. |
| CATCHWORDS : | Where application for joinder of the Home Owner- where the Builder has sought review of the decision of the Queensland Building Services Authority to direct rectification- Queensland Civil and Administrative Tribunal Act 2009 s 42. |
APPEARANCES and REPRESENTATION (if any):
This application was heard on the papers in the absence of the parties.
REASONS FOR DECISION
Background to Application
Mr Orenshaw (the applicant or the Builder) has sought review of a decision of the Queensland Building Services Authority (QBSA) to issue him with a direction to rectify certain building work at premises owned by Mr Gary Johnston (Mr Johnston or the Home Owner). QBSA has made application for the Home Owner to be joined to the proceeding.
The Tribunal directed the applicant and Gary Johnston to provide written submissions in relation to the joinder application and directed that the application for joinder be determined on the papers.
Applicable Law
Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides for the joinder of parties as follows:
42 Joining parties
(1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that--
(a) 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.(2) The tribunal may make an order under subsection (1) on the application of a person or on its own initiative.
Section 40 of the QCAT Act specifies that the parties to a review proceeding include a person joined under section 42.
The substantive application is made in the review jurisdiction of the Queensland Civil and Administrative Tribunal (QCAT or the Tribunal). In the review jurisdiction, the Tribunal decides the review by way of fresh hearing on the merits,[1] and the purpose of the review is to produce the correct and preferable decision. [2] The original decision-maker, in this instance, QBSA, must use its best endeavours to assist the Tribunal to reach the correct and preferable decision.[3]
[1] QCAT Act s20(2).
[2] QCAT Act s20(1).
[3] QCAT Act s21(1).
Under section 24 of the QCAT Act the functions of the Tribunal for the review jurisdiction are to confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.[4] The decision made by the Tribunal is taken to be the decision of the original decision-maker.[5]
[4] QCAT Act 24(1).
[5] QCAT Act s24(2).
The objects of the QCAT Act include having the Tribunal deal with matters in a manner that is accessible, fair, just, economical, informal and quick.[6]
[6] QCAT Act s3(b).
The Queensland Building Services Authority Act 1991 (the QBSA Act) provides for the Tribunal to review a decision to direct or not direct rectification.[7]
[7] QBSA Act s86(1)(e).
Submissions of the Parties
QBSA submits that the Home Owner’s interests are affected by the review proceedings. In essence, QBSA says that the reviewable decision creates an obligation for the applicant to undertake rectification works to the Home Owner’s premises. If the Tribunal sets aside the decision, the applicant will no longer be obliged to undertake the rectification works at the property. The QBSA suggests that therefore, under section 42(1)(b) of the QCAT Act, Mr Johnston’s interests may be affected by the proceedings. Therefore, QBSA suggests that the Home Owner should be afforded the opportunity to advance his own position.
In addition, QBSA argues that the outcome of these proceedings may ultimately determine whether or not any future civil litigation is commenced by either Mr Orenshaw or Mr Johnston since it to some extent will determine the potential obligations and liability of the applicant in respect of rectification works. Also, it is argued that the decision of the Tribunal may result in a decision which is reviewable by the Home Owner. Accordingly, QBSA suggests that if Mr Johnston is not a party to the proceedings, the circumstances may lead to a re-litigation of the same issues. For this reason it is argued that it is desirable to join the Home Owner.
10.Mr Orenshaw consents to the application for joinder and did not provide any submissions.
11.Mr Johnston opposes the application for joinder. He refers to an earlier proceeding initiated by him in the Commercial and Consumer Tribunal (which has effectively been replaced by the Queensland Civil and Administrative Tribunal). In that proceeding, Mr Johnston says he sought review of a decision of the QBSA not to direct Mr Orenshaw to rectify work complained about as defective at the property. He says that the matter was resolved on the basis that the application be withdrawn and a direction to rectify be issued. The application was withdrawn. The direction to rectify issued and Mr Orenshaw has now initiated this further review proceedings in relation to that direction.
12.In the circumstances, the Home Owner argues that although superficially it appears appropriate for him to be joined in the proceeding, the time to consider joinder was in the initial review proceeding commenced by Mr Johnston. It is argued that as the initial review proceeding was compromised, along with the Home Owner’s rights of review, there can be no opportunity for inconsistent findings because the Home Owner has no further right to review the QBSA’s decision. He considers the QBSA is bound by the terms of settlement to issue a Direction to Rectify and is bound to follow that course to a conclusion.
13.Mr Johnston then argues that the present review application must fail as the Builder must first apply under the Domestic Building Contracts Act 2000 for compensation to be ordered by QCAT because there was no written contract between the parties. The Home Owner also submits that he has already incurred legal expenses in the initial review application and that there is no basis for him to be required to participate in any capacity other than as a witness.
Discussion and Decision
14.This is a proceeding for review of a reviewable decision which arises following the withdrawal of the earlier review application made by Mr Johnston. Mr Johnston seems to argue that because the issue of joinder was not raised in the initial review proceeding filed by him, that it is not appropriate to consider joinder in this proceeding. I was not referred to any provision in the QCAT Act, or any decided cases, to support this submission. In my view, there is nothing in the provisions of QCAT Act and the QBSA Act which support the argument.
15.Further, an argument seems to be made by Mr Johnston that because the initial review proceeding was resolved between Mr Johnston and the QBSA agreeing that a direction to rectify would issue, that there is some type of estoppel operating in this review proceeding. It is not entirely clear whether this is said to operate regarding the decision which may be made by the Tribunal at the hearing. Alternatively, the argument may be that the QBSA is obliged to act in accordance with the previous settlement, irrespective of the decision made by the Tribunal. In my view, neither of these possible arguments is correct. The Tribunal’s role is to make its own decision about the proceeding by way of fresh hearing and to produce the correct and preferable decision on this review application. The decision made by the Tribunal on the review hearing is taken to be a decision of the original decision-maker which the original decision-maker must then implement. In the review proceeding, the QBSA must use its best endeavours to assist the Tribunal to reach the correct or preferable decision. The functions of the Tribunal and the obligations of the QBSA are not compatible or consistent with the arguments advanced by Mr Johnston.
16.At a hearing, one possible outcome is that the Tribunal may decide to set aside the decision of the QBSA to require rectification. Accordingly, I am satisfied that Mr Johnston’s interests may be adversely affected by the outcome of this review proceeding.
17.The QBSA submits that if Mr Johnston is not joined that the decision of the Tribunal may result in a decision which is reviewable by the Home Owner. I accept that this is also potentially possible. The objects of the QCAT Act include having the Tribunal deal with matters in a way that is fair, just and economical. I do not accept that it would promote these objects to decide this joinder application in a manner which potentially may result in further proceedings regarding the same issues. For these reasons, I am satisfied that it is desirable for Mr Johnston to be joined as a party to the proceeding.
18.Given the nature of the Tribunal’s review jurisdiction and the Tribunal’s functions in that jurisdiction, I do not consider it necessary for me to consider the submissions made regarding possible civil proceedings or any application for compensation under the Domestic Building Contracts Act 2009.
19.Accordingly, I am satisfied that there are two bases under section 42 of the QCAT Act for joining Mr Johnston as a party, namely, his interests may be affected by the proceeding and it is desirable for him to be joined. I make orders accordingly for the joinder of Mr Johnston as a party to the proceeding. He will be the second respondent.
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