Qld Bldg Services Authority v AJ Beatty

[1999] QDC 45

IN THE DISTRICT COURT

HELD AT BRISBANE

QUEENSLAND

[Qld Bldg Services Authority v AJ Beatty]

[Before Forde DCJ]

Application No 845 of 1999

BETWEEN:

QUEENSLAND BUILDING SERVICES AUTHORITY

Applicant

AND:

ALAN JAMES BEATTY

Respondent

JUDGMENT

Judgment delivered:              30th March, 1999

Catchwords: Inferior Tribunals - Queensland Building Tribunal. Queensland Building Services Authority Act 1991 ss.48(i), 70, 71, 98, 99, 101(l)(k), 103 - “reviewable decision” - allowance of an insurance claim.

Counsel:    P.A. Keane Q.C., with him W. Cochrane for the Applicant

D. Boddice for the Respondent

Solicitors:   Barker Gosling for the Applicant

Carne & Herd for the Respondent

Hearing Date(s):                   22nd March, 1999

IN THE DISTRICT COURT
HELD AT BRISBANE
QUEENSLAND
  Application No 845 of 1999
BETWEEN:
  QUEENSLAND BUILDING SERVICES AUTHORITY
  Applicant
AND:
  ALAN JAMES BEATTY
  Respondent
  REASONS FOR JUDGMENT -FORDE D.C.J.
  Delivered the 30th day of March, 1999
Introduction

1. The applicant, the Queensland Building Services Authority, appeals against the whole of the decision dated 15th day of February 1999 of the Queensland Building Tribunal (“the Tribunal”) in Application No. R181-98. The Tribunal, presided over by the Chairperson, determined that a decision made, pursuant to s.71 of the Queensland Building Services Authority Act 1991 (“the Act”), was a reviewable decision under ss.98 and 99. The decision was to recover monies paid under an insurance scheme. The respondent to the application is Alan James Beatty, a registered builder.

Factual Background

1. The respondent contracted with Mr and Mrs I & S Cosier (“the owner”) for the construction of alterations to an existing residence at 321 Boundary Street, West End, Brisbane, in the State of Queensland.  The contract was dated 21st November 1996.

2. As a result of the claim by the owners against the Statutory Insurance Scheme administered by the applicant pursuant to Part V of the Act in relation to work carried out by the respondent, the applicant approved a payment of $23,000 to the owners in or about October 1997. In the same month, the applicant made a decision to recover these monies from the respondent and wrote two letters to the respondent in relation to the claim. Those letters are dated 14th day of October 1998 and 16th day of October 1998 respectively. That decision is the subject of this appeal.

3. After referring to s.71 of the said Act, and indicating the intention of the applicant to recover its insurance payment from the respondent, the first letter went on to say:

   “Legal proceedings may be instituted for recovery of the debt without further notice and if such action is commenced, in the event of non payment of the debt, the BSA may consider its discretion to suspend or cancel your building licence pursuant to s.48(i) of the Queensland Building Services Authority Act 1991.”

1. The letter specified that if the respondent was not satisfied with the decision, s.99 of the Act provided for independent review of such decision by the Tribunal. The second letter reiterated the rights of the respondent to seek review and referred to matters of quantum, and to the respondent’s “consequent liability to reimburse the amount of the claim once payment is made.”

2. For the purpose of these proceedings and those before the Tribunal, it was common ground that payment had been made as at the date of the determination on 15th February 1999.
   Payment had not been made when the decision was made persuant to s.71. However, the applicant resiled from relying on that point.
   Structure of the Act

3. Part 5 provides the details of the statutory nature of the insurance scheme. A builder is required to pay to the applicant the appropriate insurance premium prior to commencing any residential construction work. A certificate may then be issued once the premium is accepted. Section 70 of the said Act provides as follows:

   “70(1)  A person claiming to be entitled to indemnity under the insurance scheme must give notice of the claim to the authority in accordance with the regulations.

(2)If a claimant is dissatisfied with the authority’s decision on the claim, the claimant may apply to the tribunal for a review of the authority’s decision.

(3)On an application under this section the tribunal may confirm, vary or reverse the authority’s decision and make consequential orders and directions.”

It should be noted that s.98(e) facilitates the review referred to in s.70.

Section 71(1) of the said Act provides as follows:

“71(1)  If the authority makes any payment on a claim under the insurance scheme, the authority may recover the amount of the payment, as a debt, from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose.”

Other relevant sections provide as follows:

“98.     Any of the following decisions of the authority is subject to review by the tribunal-

(a)a decision to refuse an application for a licence;

(b)a decision to impose or vary a condition of a licence;

(c)a decision to suspend or cancel a licence;

(d)a decision to direct rectification of building work;

(e)a decision to disallow a claim under the insurance scheme wholly or in part;

(f)another decision of the authority that adversely affects any person.”

“99.(1) A person affected by a decision of the authority that is subject to review may apply for a review of the decision.
      (2) The application must be made within 28 days after the applicant receives notice of the decision unless the decision fixes a lesser period for compliance with a direction contained in the decision, in which case the application must be made within that lesser period.
     (3) The tribunal may extend the time for making an application for review (whether on an application made before or after the end of the period fixed under subsection (2)).
      (4) The tribunal may order that a person who may be affected by the review be joined as a party to the review, and may make orders against, and give directions to, the person.
     (5) On an application for review, the tribunal may confirm, annul, vary or reverse the decision subject to the review and make consequential orders and directions.”

“103.(1) The authority may, by application to the tribunal, recover under this section a debt owing, or claimed to be owing, to it under section 71 or 101(5).
        (2) For a debt owing, or claimed to be owing, under section 71, the tribunal may make the orders, and give the directions, the tribunal considers appropriate to resolve any issue in dispute between the authority and a person owing or claimed to owe a debt to the authority.
       (3) In the exercise of its jurisdiction under this section, the tribunal may exercise 1 or more of the following powers-

(a)order the payment of an amount the tribunal has found to be owing to the authority;

(b)order the payment of interest on the amount mentioned in paragraph (a);

(c)award damages, including exemplary damages;

(d)order the payment of interest on damages mentioned in paragraph (c);

(e)order that amounts mentioned in paragraphs (a) to (d) be paid by instalments or another way directed by the tribunal.

(4) If the tribunal is of the opinion that an application under this section would be more appropriately brought in a court, the tribunal may order that the application not be dealt with further before the tribunal.”

“The authority may recover the amount of the payment, as a debt, from the building contractor”.

1. It was submitted by senior counsel for the appellant that s.71 does not create an uncontestable statutory debt. It was submitted that the reasons of the Tribunal in that respect were wrong in assuming that s.71 created a substantive right by way of a statutory debt. (Para.21 of Reasons). Two cases were referred to in this respect.

2. In the first case of Re Charles Alroy Goldberg, ex parte: The Law Society of New South Wales, unreported decision of Wilcox J 6th June 1988, s.65Q of the New South Wales Legal Practitioners Act was discussed.  That section provided as follows:

   “1.  All moneys payable to the receiver as remuneration for his” (or her) “services, all costs of legal proceedings and other expenses incurred by him” (or her) “in the course of his” (or her) “receivership and any reimbursement made pursuant to section 65S...shall, to the extent that they have not otherwise been paid to the receiver under this Act, be paid to him” (or her) “by the Society out of the fund.
   ....
   2.  Any amount paid out of the fund for the expenses of the receivership shall be recoverable by the Society from the solicitor as a debt owing by him: (or her) “to the Society.”

3. It was argued by the defendant in that case that there was not a debt in the sense used, that is to say “a liquidated sum due at law or in equity”.  Wilcox J rejected that argument.   He said that the meaning of the words used in s.65Q meant that “it may be recovered by the Society in any way in which a debt might ordinarily be recovered.”  He also rejected the argument that an amount referred to in s.65Q does not become a debt “unless and until judgment is given for that amount by a court of competent jurisdiction.”  Senior counsel for the appellant contends that s.65Q(2) is descriptive of the substantive right, i.e. that the debt is recoverable, or the amount paid is recoverable as a debt.  He submitted that that was distinct from language which says the amount paid may be recovered as a debt.  He referred to an analogous provision in Builders’ Licensing Board v Inglis & Anor (1985) 1 NSW 592 .  The relevant section of the Builders’ Licensing Act 1971, s.34(3), provided as follows:

   “Any amount paid by the Board under a house purchaser’s agreement in respect of any building work may be recovered by the Board in a court of competent jurisdiction as a debt from the person by whom the building work was carried out or undertaken to be carried out or out of the estate of that person from his personal representative.”

1. The case involved an application for particulars.  It was held that the use of the phrase “recovered as a debt” in s.34(3) did not remove the fundamental right to particulars, but merely provided for the recovery of the debt to be susceptible to default procedures.  Otherwise a litigant would effectively be deprived of a right to be heard and to resist the Board’s claim in a meaningful way.  It was merely referring to the procedural aspects of the recovery rather than to create a substantive right.  It was able to be contested as such.  Kirby P (as he then was) at 597, said:

   “That if a statutory debt was to be created without the builder having any entitlement to scrutinise the basis of the debt then `it would, in my view, require the clearest possible legislative language to produce such results.’”

1. He went on to comment “that the purpose of the statute does not necessitate the removal of the right of a builder to scrutinise, challenge and meet the claim made against him by the Board.”  The claim by the Board related to a payment to the owners under a house purchase agreement.  The Board sought to be reimbursed by the builders.  The Board had agreed to indemnify the owners under that agreement.

2. Senior counsel for the applicant referred to the passage at p.598C of Inglis case:

   “In short, I read the subsection [s.34(3)] as addressed to a procedural impediment, not to removing rights so fundamental as are at stake here”: see also Mahoney J at p.600.

1. It was submitted that the Tribunal in the present case misconceived the effect of the decision in Goldberg.  It was submitted that the contrast is between the Legal Practitioners’ Act which created an uncontestable debt or which deemed the amount to be a debt and on the other hand a decision to pursue proceedings for the recovery of a debt as part of a procedure. I accept the applicant’s submissions on this point that s.71 is more akin to the latter category.

Relationship between Section 71, Section 98 and Section 103

1. It was submitted by senior counsel for the applicant that s.103 specifically referred to s.71. In s. 98(e), there was no express mention of a “decision to allow a claim”. The general provision in s.98 referred to a decision “which adversely affects any person”. It was submitted that if the decision of the learned Chairperson was correct, then there is the oddity or inconvenience of two reviews. Section 103 refers to “a debt owing, or claimed to be owing”. It is submitted by the respondent that this is a recognition of the fact that a debt is capable of being created under s.71, and that therefore it is a decision which is reviewable under s.98, as the substantive rights of the respondent were “adversely affected”. It was further submitted by counsel for the respondent that a demand for payment for an amount in respect of s.71 creates a statutory debt due by the builder to the applicant, and has the effect of determining substantive rights. It could also lead to disciplinary action under s. 101(2)(k) or s.48(i).

2. It is clear, as was submitted, that the presence of s.103 being specific in nature distinguished it from cases such as Goldberg (ibid), s.103 in its heading refers to “Determinations about debts”. As with s.98, it appears in Part 8 of the Act under “Jurisdiction of the Tribunal”. There must be some prerequisites met before jurisdiction to pursue the debt is available. Issues may arise which provide a defence for the builder under s.71(4). The tribunal is also empowered to make orders or give directions to resolve any issue under s.103(2). If, for example, the tribunal were of the opinion that the matter would be more appropriately dealt with by a court, then it can elect to proceed no further with a hearing. The latter procedure seems to be a specific provision in relation to debts arising under s.71 or 101(5), that is a debt or penalty due as a debt. In cases which have been heard by the Tribunal under s.98, there has been a review on the merits: see Queensland Building Services Authority v. Carey. (District Court Appeal 1209/97. 20.06.97). It is clear that if s.98 is invoked in relation to a debt then s.103 seems to be superfluous. That could not have been the intention of the legislature.

3. It is my view that once the applicant decides to pursue a debt and makes a decision to do so under s.71, then the Act provides a specific procedure under s.103. Under the latter section, the Tribunal may order the payment of an amount which then can be registered as a judgment in the District Court :s.91(2)(c). Alternatively, the Tribunal can order that the application not be dealt with further as it may be more appropriate for it to be dealt with in a court. The review process adopted in this case under s.98 has failed to recognise the specific provisions in the Act. This may be because there has been dicta in other cases which supports the view that the procedures are alternatives under the Act. These cases will be discussed later.

4. The reference to a debt “claimed to be owing” in s.103, is a recognition by the legislature that the Tribunal may find that the debt or part of the debt was not owing. Otherwise the jurisdiction would be limited to “debts owing”, thus restricting any discretion.

5. One argument of significance referred to by the respondent is that concerning ss. 48(i) and 101(2)(k). Both of these sections talk of a failure by the licensee to meet a demand to pay a debt. They assume that money is owed to the applicant. Section 103 refers only to the right of the applicant to apply to the Tribunal to recover the debt under that section, not the respondent. However, if the respondent seeks to challenge the debt and seeks to scrutinize its liability to pay, then it could do so under s.98. In fact, the procedure recognises a right to review under s.98(c). It is specific.

   In either case the establishment of the debt is a necessary prerequisite to disciplinary proceedings, as distinct from an amount of money claimed to be owing. If the debt were contested, then it may fall to the applicant to proceed under s.103 before it could be said that there was a determination relating to the debt. Once an order is made to pay the amount under s.103, then recovery can proceed. That section relates to the recovery process. For the purposes of disciplinary proceedings, of course, the licensee may admit that an amount of money is owing.

These matters are mentioned in dealing with the concise arguments of the respondent’s counsel who sought to illustrate the logic of his argument.  They are not necessary for determination in these proceedings, but are dealt with for completeness. 

1. It is submitted by senior counsel for the applicant, that if a statute creates a right and provides a remedy, the remedy is taken to be the exclusive mode whereby the right may be vindicated: Saraswati  v. The Queen (1990-1991) 172 CLR 1, McHugh J. At page 23, it refers to the decision of Anthony Hordern and Sons Ltd.  v. Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7:

   “When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon  same power.”

1. It is submitted by the applicant that as s.98 (f) contains words of a general nature concerning a decision which “adversely affects a person”, it should not be interpreted to broaden the jurisdiction of the Tribunal. It is submitted that it is not taking a narrow view of the meaning of the word “decision” as discussed in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321. The argument put forward involves an appreciation that ss.98 and 103 are contained in part 8 and define questions of jurisdiction. Section 98 is in Division 2, which refers “Proceedings for review” and s.103 is in Division 8, which refers “Determinations about debts”.
   The latter refers specifically to the mode of recovery of a debt once s.71 is relevant. I accept the submissions of the applicant in this respect and apply the decision of Saraswati (ibid). The latter decision applied the passage in Leon Fink Holdings Pty Ltd v. Australian Film Commission (1979) 141 CLR 672, 678:

It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.”

1. One other aspect of the applicant’s submissions touched upon the limitation in s.98(e) to a review of “a decision to disallow a claim”. The argument that as this is a review of a decision to allow a claim that the maximum expressio unius personae vel rei, est exclusio alterius applied. That is, the express mention of one person or thing is to the exclusion of another. This was faintly argued but was put forward as another reason to find for the interpretation put forward by the applicant. As conceded, this maxim is a good servant but a bad master.

2. One explanation given for s.98(e) referring only to claims disallowed is that the insured is the homeowner not the builder. The latter is not a party to the decision to disallow a claim and thus not aggrieved at that stage. Until s.71 is invoked, the builder may not be adversely affected. However, this is not a complete answer to the specific reference in s.103 to the mode of procedure involving s.71.

Distinguishing Other Cases

Morris v. QBSA    R060-93 (28th February,1997).

1. The solicitor for the applicant in the present case submitted in Morris that the Tribunal had no jurisdiction to adjudicate a review of the decision of the applicant to exercise its discretion to seek to recover from the builder certain monies paid out under the insurance scheme. It was assumed by the member that s.71 created a statutory debt. Senior counsel for the applicant submitted that it was erroneous to say that such a provision created a statutory debt as the Inglis case (ibid) specifically held to the contrary . This was to be contrasted to Goldberg(ibid), where the relevant provision as discussed above intended to create a debt.

1. Reference was made in Morris to the letter sent by the applicant.  The member referred to two features of the letter:

   “(i) the characterisation of the monies paid out to the homeowner as a debt due by the applicant to the Authority;
   (ii) the demand for payment, and in the case of the second letter, the threat of disciplinary proceedings for non- payment of the debt.”

Absent proceedings under s.103 for recovery, I find that the right to enforce the debt does not exist.

1. The member referred to s.48(i) and s.101(2)(k). She went on to hold that the making of a decision to demand payment under s.71 provides a ground for taking disciplinary action under the two aforementioned sections. There were good practical reasons for reviewing a decision under s.98(f) relating to the claim for monies under s.71 as it may be the basis for disciplinary proceedings. That rationale cannot be used to expand the jurisdiction of the Tribunal under s.98(f). As discussed previously, it does not follow that that s.98(f) becomes relevant for all purposes because a person is “adversely affected”. Section 98(c), for example, is relevant to disciplinary proceedings. It should be noted that different arguments were advanced by the applicant before this court in relation to the structure of the Act. On appeal, His Honour Judge Robin Q.C. observed in relation to the findings of the member on the jurisdictional point that her reasons “appear to me to be compelling”. His Honour did not have the benefit of the argument addressed to me. In any event his observations were obiter.

Maguire v. QBSA  R077-98., (Judgment 23rd November, 1998).

1. The facts were that Mr Maguire and another person Mr Forest executed a Deed of Guarantee and Indemnity (“the guarantee”) in favour of the Builders Registration Board of Queensland (“the Board”).  That guarantee provided that Mr Maguire and Mr Forest agree to jointly and severally guarantee to the Board the payment by the company of moneys payable from time to time by the Board under the insurance provisions of the (repealed) Builders Registration Home Owners Protection Act and to indemnify the Board against all claims and payments for which the Board may render itself liable under that Act. On 25 May 1988 the QBSA sent a letter of demand to Mr Maguire demanding payment of a substantial sum of money in accordance with the guarantee. He sought a review of the decision of the QBSA to approve the payment of the said sum under the insurance provisions of the Act.

2. The learned Chairperson referred to s.98 of the present Act and s.99. Having been satisfied that a decision was made, the learned Chairperson questioned whether the decision was reviewable or not. He referred to the only possible subsection which might apply, namely subsection 98(f). This was the provision under which the learned Chairperson proceeded under the present case. The relevant decision or decisions in the application for review relevantly were:

   “a decision to recover payments on the claim and decisions to demand that he pay the amounts of the payments on the claims pursuant to the guarantee”.

1. After deciding that the only decision was that of 25 May 1988, the learned chairperson referred to the letter of that date and a Schedule of Demand which was attached to the letter. Reference was made to s.71 (1) of the said Act ibid. Mr Maguire was not a building contractor but a director of the relevant company which undertook the work. The applicant was seeking to recover the amount paid under the insurance claims on behalf of Mr Maguire on the basis of a guarantee entered into by him. The claim was in contract and not under s.71(1) of the Act. The learned Chairperson was of the view that a person is not “adversely affected” until the applicant makes a decision that it intends to recover the relevant amount from that person. The person remains unaffected until the QBSA attempts to implement its decision by way of recovery. The learned Chairperson adopted what another member had said in an earlier case of Heit v. QBSA (7 August 1998):

   “Based upon the consideration of this topic by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, I am not persuaded that the decision taken by the Authority to make demand under a contractual document is a...decision of a sufficiently substantive nature that might be said to adversely affect an individual’s rights so as to bring it within that category of decisions referred to in Section 98(f).
   ...
   In my view the decision to make demand under the Guarantee nor the decision to commence legal proceedings are decisions which are determinative of the Applicant’s substantive rights.  They are not, in my view, decisions which of themselves “deprive a person of some right or interest or the legitimate expectation of a benefit” to adopt the language of Kioa v Minister for Immigration and Ethnic Affairs. Certainly a judgment in any legal proceedings commenced has an affect upon the Applicant’s legal rights but not conversely the mere decision to write him a letter of demand in respect of the alleged debt. There is an insufficient quality of finality about the present decision, namely the decision to make the demand, to render it one capable of review within the meaning of Section 98(f).”

1. Whilst holding the QBSA’s letter had included threats of action in relation to Mr Maguire’s license in letter of demand, he held that the threats could not be regarded as final decisions and there were rights within the Act available to Mr Maguire to review any decisions which the applicant might subsequently take in that regard, at page 6 paragraph 27 the following appears:

   “Mr Matthews went on to submit that the reference in subparagraph 98(e) of the Act to the insurance scheme excluded any other decisions in relation to the insurance scheme from sub-paragraph 98(f). In my view, subsection 98(e) is limited because it only relates to decisions where the Authority “disallows” a claim, that is by a consumer, under the insurance scheme. In my view, it is limited in this way because it would not be appropriate for builders, to be able to review decisions to allow claims for insurance, when they are not adversely affected by that decision. Builders’ rights are protected by having an earlier right to review the decision to rectify which in my view should proceed any insurance claim proceeding.

For those reasons I do not accept Mr Matthews’ submission that the reference to the insurance scheme in subsection 98(e) excludes the review of other decisions relating to the insurance scheme from subsection 98(f).  In my view, subsection 98(e) is only specific in that it refers to decisions to “disallow” an insurance claim and not otherwise.  However, the person must be able to show that the decision “adversely affects” them.”

1. Further submissions were made in relation to s.103 of the said Act. As pointed out, the letter of demand was not in relation to a debt under s.71(1) but an application involving recovery under a guarantee which was held by the learned Chairperson not to be an appropriate proceeding under s.103. Therefore, the application by Mr Maguire to review the decision of 25 May 1998 was dismissed. The learned Chairperson in the present case said that the decision of Mr Maguire must be confined to its facts. Senior counsel of the applicant says that when one looks to see what the difference is so far as s.98 is concerned, it is difficult to see what difference the source of the power makes to the character of a decision so far as it adversely affects a party and to seek to recover the debt. It was further submitted that where one is speaking of procedures to recover a debt under s.71, that the present case was indistinguishable from Maguire in favour of a broader view of s.98(f). In other words, the learned Chairperson seeks to broaden the scope of s.98(f) in the present case whereas in Maguire, he was attempting to limit its application in so far as it related to guarantees by a person who would otherwise be adversely affected. This seems to be an inconsistent approach to the question of jurisdiction under s.98(f). In any event, I find the reasoning that s.71 created a statutory debt not necessarily subject to the procedure under s.103 for review and/or recovery to be erroneous.

   Queensland Building Services Authority v Carey App No.1209 of 1997 (Brabazon QC           DCJ, 20th June, 1997). 

2. It is submitted by the respondent that the decision of the applicant to recover monies paid under an insurance policy is a reviewable decision under s.98 of the Act, and that that contention is supported by the decision of Carey.  In Carey, the applicant appealed against the findings of the Tribunal when reviewing a decision to recover monies paid pursuant to an insurance claim.  In dealing with the scope of the review, which happened to be a second review in that case, Brabazon QC DCJ said at page 7:

   “Faced with the Authority's letters of 5 and 12 September 1995, Mr Carey had a choice between two courses. He could have waited until sued before the Tribunal under s.103 of the Act. He then could have resisted the Authority's claims by attempting to demonstrate that Mr Terry had no enforceable rights against him, and that he had not owed any money, by way of damages or otherwise, to Mr Terry.

Alternatively, he could attack the Authority's decision, or decisions, which affected his position. That meant going on the offensive, and filing an application for review under s.98 of the Act. That is the course that he has taken.”

1. It was submitted by the respondent’s counsel that there is an implicit recognition that the Tribunal had power to review the decision of the applicant and this review involved a full review on the merits. The fact that s.103 of the Act lays down a procedure for the applicant to make such an application to recover the debt owing or claimed to be owing under s.71 does not prevent the decision to recover under s.71(1) being subject to review under s.98 of the Act. It was submitted on behalf of the applicant that Carey’s case was of no assistance to the court in the present case as there was no argument before Brabazon QC DCJ as to whether two opportunities for review was appropriate. Mr Carey was the builder. He was not a party in the first review and His Honour noted that the builder could have been joined as a person who “may be affected by the review”. It seems that there was no argument addressed to His Honour as to why no right of review was available pursuant to the provisions of s.98 as distinct from s.103 of the Act. Also, the issue in that case in what became the focus of the judgment was: “what is the scope of the Tribunals’s power to review a decision of the Authority” and not the occasions when an opportunity for review arose.

2. In the second review in that case, the Tribunal member conducted a review of the merits of the substantial part of the dispute between the owner and the builder.

3. One aspect of the case which is of some concern is that if the applicant decided that the sum was not paid by the builder Mr Carey in that case within a certain time, it would list the debt with the Credit Reference Association of Australia, and then institute legal proceedings under s.103 of the Act to recover the outstanding debt. Section 103 allows the applicant to apply to the Tribunal to recover the debt. It does not seem to envisage an application by the builder to head off adverse publicity likely to occur in a publication of a credit agency. The latter decision, namely the listing of the “debt” with the credit agency, may well be a decision of the applicant that adversely affects a person. It is a separate question to whether a decision to allow an insurance claim adversely affects the person. This aspect was not explored in the present case. It is correct to say that the focus of the judgment in Carey concentrated on the nature of the review without having to decide the effect of s.103 of the Act. His Honour in that case did not seem to have the benefit of the argument presented here. It falls to me in this case to decide the question directly.
   Leave to Proceed

4. An appeal to the District Court may only be made with leave of that Court: s.94 of the Act. The test for leave was considered in Trewin & Anor. v. Clemitson (unreported, District Court decision of Wylie QC, DCJ, Application No 7 of 1994, Judgment delivered 28th January, 1994).  His Honour concluded that an applicant for leave “is required to justify the reason for the appeal desired by showing a prima facie, or clearly arguable case of an error affecting the Tribunal’s final determination” (at p.13).

5. This test was referred to in Glenwood Properties Pty Ltd v.  Delmoss Pty Ltd (1986) 2 Qd.R .388 at 389, which referred to the further requirement that the question is one which public interest requires should be the subject of further argument in an appellate jurisdiction.  The respondent did not consent nor oppose the application for further leave but appropriately referred the Court to these authorities.

6. I am satisfied, given the nature of the arguments presented, that leave ought to be granted.

Findings

1. The Tribunal erred in law in finding that the letters of 14 and 16 October 1998 from the applicant to the respondent constituted a reviewable decision within the meaning of s.98 of the Act in so far as the decision created a statutory debt within the meaning of s.71(1) of the Act.

2. It is necessary for the applicant to proceed under s.103 of the Act before it could establish whether the applicant is entitled to recover any amount as a debt within the meaning of s.71.

Orders

1. Leave is granted to appeal.

2. The appeal is allowed.

3. The order of the Tribunal of 15th February 1999 is set aside and in lieu thereof the following orders are made:

   (a)That the respondent’s application R187-98 in the Building Tribunal be dismissed.

   (b)Leave to both parties to make written submissions as to costs such submissions to be delivered to the Court on or before 9th April 1999.