Queensland Building Services Authority v O'Brien & Ors - [2002] QDC 329

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v O’Brien & Ors [2002] QDC 329

PARTIES:

QUEENSLAND BUILDING SERVICES AUTHORITY

Appellant

v

PATRICK MICHAEL O’BRIEN

First Respondent

and

VINBRIDGE PTY LTD

Second Respondent

and

REGINALD D’ROZARIO

Third Respondent

FILE NO/S:

Appeal D1373/02
Appeal D3034/02

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Queensland Building Tribunal

DELIVERED ON:

15 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2002

JUDGE:

McGill DCJ

ORDER:

Appeal dismissed; cross-appeal allowed; decision of 12 April 2002 set aside; order in lieu that the appellant pay all reasonable costs incurred by the respondent in conducting the proceeding after 27 November 2001, to be assessed by the Tribunal if not agreed. The appellant pay the respondent’s costs of the appeal to be assessed.

CATCHWORDS:

APPEAL AND NEW TRIAL – Appellate Jurisdiction – Queensland Building Tribunal – nature of appeal – Queensland Building Tribunal Act 2000 s 92.
INFERIOR TRIBUNALS – Building Tribunal – Appeal to District Court – nature of appeal – Queensland Building Tribunal Act 2000 s 92.
BUILDING CONTROL AND TOWN PLANNING – Regulation of Construction – directions to rectify defective building work – discretion to exercise – nature of appeal from decision not to exercise – whether discretion should be exercised – Queensland Building Services Authority Act 1991 s 72.
Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131 – followed.
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – applied.
Aldrich v Ross [2001] 2 Qd R 235 – distinguished.
R v Miller; ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446 – followed.

COUNSEL:

P J Davis for the appellant

P H N Major for the respondent

SOLICITORS:

Dominic Robinson for the appellant

Macrossan & Amiet for the respondent

On 2 August 2000 the Queensland Building Services Authority (“the appellant”) issued 13 directions to Mr O’Brien (“the respondent”) pursuant to s 72(1) of the Queensland Building Services Authority Act 1991 (“the QBSA Act”). On 16 August 2000 the appellant issued a further three directions to the respondent. The respondent applied to the Queensland Building Tribunal to have the decision to issue these directions set aside. There was apparently a separate application in respect of each direction. On 13 March 2002 the tribunal ordered that each of the directions be reversed. On 12 April 2002 the tribunal refused the respondent’s application for costs in respect of each of the applications. By a notice of appeal filed 10 April 2002 the appellant appealed against the substantive orders in respect of each application. By a notice of appeal filed in the Mackay registry on 13 May 2002 the respondent appealed against the refusal of his application for costs. On 17 June 2002 another judge ordered that the respondent’s appeal be transferred to Brisbane and heard together with the appellant’s appeal. It is convenient to treat it as a cross-appeal.

On 5 July 2001 Vinbridge Pty Ltd and a Mr D’Rozario were joined as parties…

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: [2002] QDC 329
Decision Date: 15 November 2002

CaseChat Overview and Summary

In the matter of Queensland Building Services Authority versus O'Brien and others, the Queensland District Court was called upon to review a decision of the Queensland Building Tribunal. The dispute arose from a determination by the Tribunal not to exercise its discretion under the Queensland Building Services Authority Act 1991 to direct the appellant to remedy defective building work. The Tribunal's decision was appealed by the appellant, and the respondents sought to cross-appeal on certain grounds.

The primary legal issues before the court were whether the appeal from the Tribunal was properly before the District Court under section 92 of the Queensland Building Tribunal Act 2000 and whether the Tribunal had erred in not exercising its discretion to direct the appellant to remedy the defective building work. The court needed to determine the nature of the appeal and whether the Tribunal had applied the correct legal principles in its decision-making process.

The court held that the appeal was correctly brought under section 92 of the Queensland Building Tribunal Act 2000, which provides for an appeal to the District Court from a decision of the Tribunal. The court also found that the Tribunal had failed to exercise its discretion appropriately in not directing the appellant to remedy the defective building work. The court considered the principles outlined in Pointon v Redcliffe Demolitions Pty Ltd and applied the reasoning in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. The court concluded that the Tribunal had not sufficiently considered the statutory objectives and the importance of ensuring public safety and satisfaction in building work.

The court dismissed the appeal and allowed the cross-appeal. It set aside the Tribunal's decision of 12 April 2002 and ordered that the appellant pay all reasonable costs incurred by the respondent in conducting the proceeding after 27 November 2001, to be assessed by the Tribunal if not agreed. The appellant was also ordered to pay the respondent's costs of the appeal, to be assessed.

Orders

Orders of the court

Appeal dismissed; cross-appeal allowed; decision of 12 April 2002 set aside; order in lieu that the appellant pay all reasonable costs incurred by the respondent in conducting the proceeding after 27 November 2001, to be assessed by the Tribunal if not agreed. The appellant pay the respondent’s costs of the appeal to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Queensland Building Services Authority v O’Brien & Ors [2002] QDC 329
PARTIES:	QUEENSLAND BUILDING SERVICES AUTHORITY Appellant v PATRICK MICHAEL O’BRIEN First Respondent and VINBRIDGE PTY LTD Second Respondent and REGINALD D’ROZARIO Third Respondent
FILE NO/S:	Appeal D1373/02 Appeal D3034/02
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Queensland Building Tribunal
DELIVERED ON:	15 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2002
JUDGE:	McGill DCJ
ORDER:	Appeal dismissed; cross-appeal allowed; decision of 12 April 2002 set aside; order in lieu that the appellant pay all reasonable costs incurred by the respondent in conducting the proceeding after 27 November 2001, to be assessed by the Tribunal if not agreed. The appellant pay the respondent’s costs of the appeal to be assessed.
CATCHWORDS:	APPEAL AND NEW TRIAL – Appellate Jurisdiction – Queensland Building Tribunal – nature of appeal – Queensland Building Tribunal Act 2000 s 92. INFERIOR TRIBUNALS – Building Tribunal – Appeal to District Court – nature of appeal – Queensland Building Tribunal Act 2000 s 92. BUILDING CONTROL AND TOWN PLANNING – Regulation of Construction – directions to rectify defective building work – discretion to exercise – nature of appeal from decision not to exercise – whether discretion should be exercised – Queensland Building Services Authority Act 1991 s 72. Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131 – followed. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – applied. Aldrich v Ross [2001] 2 Qd R 235 – distinguished. R v Miller; ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446 – followed.
COUNSEL:	P J Davis for the appellant P H N Major for the respondent
SOLICITORS:	Dominic Robinson for the appellant Macrossan & Amiet for the respondent