Queensland Building Services Authority v Bickle
[2012] QCATA 100
•6 June 2012
| CITATION: | Queensland Building Services Authority v Bickle [2012] QCATA 100 |
| PARTIES: | Queensland Building Services Authority (Applicant/Appellant) |
| v | |
| Gregory Arthur Bickle (Respondent) |
| APPLICATION NUMBER: | APL061-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Dr J R Forbes, Member |
| DELIVERED ON: | 6 June 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – INTERLOCUTORY APPLICATION – BUILDING DISPUTE – DEFECTIVE BUILDING WORK – ERROR OF LAW – EVIDENCE – SUFFICIENT EVIDENCE – where the Respondent made a claim upon the Home Warranty Assurance Fund for defective building work – where the Fund is administered by the Appellant – where the Appellant contends that the subject building falls within the definition of “multiple dwelling of more than 3 storeys” in Regulation 13 of the Queensland Building Services Authority Regulation 2003 – where the Appellant contends that the subject property therefore does not qualify for assistance from the Fund – where the learned Senior Member found that the subject building was not an excluded property within the meaning of the legislation – whether the learned Senior Member erred in law in finding that the residence was not a multiple dwelling or more than three storeys – whether there is evidence to support the findings – whether there is sufficient evidence to support the findings Words and phrases – “storey” Queensland Building Services Authority Act 1991, s 67AB, Div 4 Pt 5, Sch 1 s 34(d), Sch 2 Australian Broadcasting Tribunal v Bond (1990) 10 CLR 321 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
PRESIDENT
The proceedings before this Appeal Tribunal have their origin in a decision by a QCAT Senior Member who was asked by the parties to determine a discrete issue: whether the structure to which the proceedings relate was a “multiple dwelling of more than three storeys…”.
The learned Senior Member heard argument about that question on 16 December 2011 and, on 24 January 2012, published his decision and reasons: Bickle v QBSA [2012] QCAT 114. In short, he answered the question in the negative. It is from that decision that the Authority seeks leave to appeal.
I agree with Dr J R Forbes, who joins me on the QCAT Appeal Tribunal in this matter, that the appeal ought not succeed. I have had the advantage of reading his reasons in draft and also agree with them, and with the orders he proposes.
DR J R FORBES, MEMBER
Mr Bickle, the Respondent to this appeal, owns a home unit at 19 Harcourt Street, New Farm. He found serious defects in his property, and attributed them to the poor workmanship of the builder, Baxbex Pty Ltd. His rights against Baxbex are worthless, indeed non-existent; Baxbex has been liquidated and deregistered. So he made a claim upon the Home Warranty Assurance Fund (“the Fund”), administered by the Queensland Building Services Authority (“the QBSA”).[1]
[1] Queensland Building Services Authority Act 1991, Div 4, Pt 5.
Residential construction work?
The claim is large, and quite properly the QBSA has examined it closely. A claimant upon the Fund must show that the work in question is “residential construction work” within the meaning of Edition 7 of the Authority’s Insurance Policy Conditions. The Authority disallowed the claim, invoking s 13 of the Queensland Building Services Authority Regulation 2003, which, so far as is now material provides:
“Building work that is not classified as residential construction work
(1) Each of the following is not classified as residential construction work –
(a) building work on ... a building ... that is or forms part of any of the following –
(i) a multiple dwelling of more than 3 storeys ...”
It is a major premise of the Appellant’s case that the roof terrace of the premises is a fourth storey, and that accordingly the claim does not qualify for assistance from the Fund. The Respondent, Bickle, for his part, contends that the subject property is not a structure of more than three storeys.
What is a “storey”?
The word “storey” is not defined in the Queensland Building Services Authority Act 1991, or in the Regulation. However, the following definition, to which the Appellant refers[2], appears in the Building Code of Australia (“the Code”):[3]
[2] Transcript of hearing, 16 December 2011, pages 13, 14, 17, 19, 40.
[3]Part A 1.1. The Code is recognised in QBSA Act, s 67AB, Sch 1 s 34(d), Sch 2 (definitions), and in the Regulation, Sch 2 Pt 14 s 3(2), Pt 23 s 2, Pt 30B s 2.
“Storey means a space within a building which is situated between one floor level and the floor level next above, or if there no floor above, the ceiling or roof above, but not –
(a) A space that contains only –
(i)a lift shaft, stairway or meter room; or
(ii)a bathroom, shower room, laundry, water closet, or other sanitary compartment; or
(iii)accommodation intended for more than 3 vehicles; or
(iv)a combination of the above; or
(b) A mezzanine.”
The area in question is a covered portion, occupying significantly less than 50% of the roof terrace, the remainder of which has neither roof nor ceiling. The covered portion contains a lift shaft, a stairway and water closets. While those facilities themselves do not bring the roof terrace within the Code’s definition of a storey, the Appellant says that other space within the covered portion, labelled “sunroom” on the building plan, means that the roof terrace is a fourth storey, and that consequently the building is not eligible for the exemption contained in s 13(1)(a)(i) of the Regulation, set out above.
The learned Senior Member did not agree. He held that the subject building is a residence that is not a “multiple dwelling of more than 3 storeys”, within the meaning of subsection 13(1)(a)(i) of the Regulation. In particular, he rejected the proposition that the so-called “sunroom” effectively converts the roof terrace into a fourth storey.
[10] The Appellant says that the learned Member’s findings involve several errors of law, and that, in so far as leave may be necessary[4], it should be granted, and the decision set aside.
[4] Leave is need to appeal against an interlocutory decision: QCAT Act, s 142(3)(a)(ii).
[11] There are several grounds of appeal, but for the reasons following I consider that the matter can be resolved by focusing on the submission that the contents of the covered area of the roof terrace are such that the exceptions to the Code’s definition of “storey” do not apply.
[12] The disqualifying criteria relied on by the Appellant appear in section 13(1)(a)(i) of the Regulation, set out above: “a multiple dwelling of more than 3 storeys”. Before that negative provision takes effect, it must be shown that the building in question is both a “multiple dwelling” and a building “of more than 3 storeys”. If either of those elements be missing, the disqualification does not apply. Assuming (without deciding) that this building is a multiple dwelling, does it comprise more than 3 storeys?
[13] The Senior Member answered that question in the negative. The Appellant submits that his decision was made without any relevant evidence, or, at any rate, against the weight of the evidence.
“Evidence”
[14] Before I examine each of those submissions, it is appropriate to consider a matter that is not treated in the notice of appeal, or in the Appellant’s written submissions, namely, the meaning of “evidence” in this Tribunal. In essence, it means any information with a rational tendency to show that a fact in issue does, or does not exist. Subject to rationality and procedural fairness, the Tribunal is liberated from the rules of evidence[5] and may inform itself in any way it considers appropriate.[6] It may, but not must, take evidence on oath.[7] Evidence (sworn or unsworn) may be written or oral.[8] However this is not to deny that a great deal of evidence before the Tribunal would be admissible in a court of law.
[5]Or most of them. The rules of legal professional privilege and (absent statutory abrogation) privilege against self incrimination still apply: Baker v Campbell (1983) 153 CLR 52; Re a Brisbane Hotel (No 2) [1964] QWN 29; Sorby v The Commonwealth (1983) 152 CLR 281; R v McDonnell [1988] 2 Qd R 189.
[6] QCAT Act, s 28(3)(c).
[7] QCAT Act, s 57.
[8] QCAT Act, s 95(4).
[15] At the commencement of the interlocutory hearing, the Senior Member frankly and fairly informed the parties that he had recently viewed the subject property, and about that, the Appellant makes no complaint. In addition to other evidence about the covered part of the roof terrace, relevant plans and photographs are exhibited. The Respondent, Mr Bickle, who is no doubt familiar with the premises, offered his impressions of the covered area, as follows:
“[A]s you can see from the images, you couldn’t put a chair [in the other space].”[9]
“[T]here is no habitable space [in the other space] ... you could only go from the lift – or the stairwell to the lift. It’s all accesses on that level, to or from the toilet, to or from the lift, to or from the stairwell ... There has to be a hallway or a corridor ...”.[10]
[9] Transcript of hearing, 16 December 2011, page 33 (Bickle).
[10] Transcript of hearing, 16 December 2011, page 41 (Bickle).
[16] Upon the information outlined above, the Senior Member concluded, in effect, that the “sunroom” is not a facility additional to the lift, stairs and toilets, but merely a necessary incident of, or a means of access to, the lift shaft and other facilities specified in the exceptions to the Code’s definition of “storey”:
”It can’t be used for anything really. You might be able to put a pot plant in there.”[11]
“[There has to be] a landing.”[12]
“Are you going to shut it off right at the bathroom door, or you walk up the stairs and, bang, there’s a door in your face? ... [W]hen I look at this space around the staircase, in front of the lift well and outside the water closet, [the question is] whether or not that can be included as part of the stairway, lift shaft, water closet ...”[13]
[11] Transcript of hearing, 16 December 2011, page 17 (Senior Member).
[12] Transcript of hearing, 16 December 2011, page 41 (Senior Member).
[13] Transcript of hearing, 16 December 2011, page 21 (Senior Member).
[17] Counsel for the Appellant accepted that:
“[t]he issue ... is ultimately whether or not that space there makes this a storey, and ... you look to the definition of “storey’ in the [Code].”[14]
[14] Transcript of hearing, 16 December 2011, page 24 (Turnbull).
Evidence in this Case
[18] One needs only a brief inspection of the plan and photographs in evidence to see that, if there were no space between the top of the staircase and an inward-opening door, access to the open roof would be difficult, if not dangerous. As it is, the walkway is just 670 mm (26 inches) wide – “just passable”[15], according to the Respondent – when a door is fully open. It would literally be impossible to move from the stairs to a water closet, or from the lift to the roof terrace, if the grandiloquently labelled “sunroom” did not exist.
[15] Transcript of hearing, 16 December 2011, page 4 and 6 (Bickle).
[19] The Senior Member (rightly, in my view) was unimpressed by the “sunroom” label, regarding it, perhaps, as “mere puff,”[16] the kind of hyperbole favoured by estate agents and developers: “It’s a pretty cramped sunroom,” the Member observed.[17] “It may not be spacious”, the Appellant cautiously conceded.[18]
[16] Cf Carlill v Carbolic Smoke Ball Co [1892] 2 QB 484.
[17] Transcript of hearing, 16 December 2011, page 25 (Senior Member).
[18] Transcript of hearing, 16 December 2011, page 16 (Turnbull).
[20] In my opinion, there was evidence, particularly in the plans and photographs of the roof terrace[19], upon which the learned Member could reasonably form a view that the space enabling access to the lift and other facilities (the “landing” as he put it) did not remove the roof terrace from the exceptions attached to the definition of “storey” in the Code. There is no answer “written in black and white”,[20] to be found in scholastic contemplation of the definition. A decision can only be made by venturing beyond the Platonic forms of the law into the world of empirical observation, and the consequent questions of judgment and degree.
[19] Exhibits 1 and 2.
[20] Transcript of hearing, 16 December 2011, page 20 (Turnbull).
[21] It is difficult to believe that the draftsman of the Building Code’s definition of “storey” intended or expected that a “space within a building”, containing some or all of the facilities specified therein, such as a lift shaft, stairway, bathroom or water closet, could exist in reality without incidental space to enable access to, or between them.
[22] I reject the proposition that there is no evidence to support the decision.
Insufficient Evidence?
[23] There remains the alternative submission, that there is insufficient evidence to warrant the decision. Undoubtedly a decision for which there is no evidence – a decision that no rational decision-maker could arrive at in good faith – is an egregious error of law.[21] But a glissando from “no evidence” to “insufficient evidence”, by a party in search of appellable error, requires close examination.
[21]Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 481, 483; Australian Broadcasting Tribunal v Bond (1990) 10 CLR 321.
[24] If, as I have found, there is some evidence for the decision under appeal, the question whether it is sufficient, on the balance of probabilities, to warrant the decision is itself a question of fact.[22] Is it a decision that ignores the probative force of evidence that is all one way, or a decision that no reasonable adjudicator could have made?[23] I am satisfied that, in this case, the answer to that question is “No”.
[22] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156.
[23] Ibid at 156.
[25] In my opinion the decision is a practical judgment that the learned Senior Member was well entitled to make. Where reasonable minds may differ, a decision cannot properly be described as unreasonable, simply because one conclusion has been preferred to another possible result.[24] Indeed:
[24]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611; [2010] HCA 16 at [131].
“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable” or even “so unreasonable that no reasonable person could adopt it”. If these are merely emphatic ways of saying that the reasoning is wrong, they may have no particular legal consequence.”[25]
“Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable.”[26]
“No one can properly be labelled as unreasonable unless he is not only wrong but unreasonably wrong, so wrong that no reasonable person could sensibly take that view.”[27]
[25]Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J.
[26] Re W (An Infant) [1971] AC 682 at 700 per Lord Hailsham LC.
[27]Secretary of State for Education & Science v. Tameside Metropolitan Borough Council [1977] AC 1014 at 1025-1026 per Lord Denning.
[26] If leave be necessary I would grant leave, but dismiss the appeal.
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