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 D3034/02DIVISION:
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…
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- Case
- [2002] QDC 329
- Decision Date
CaseChat Overview and Summary
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
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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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