Ramke Constructions Pty Ltd v Queensland Building Services Authority - [2012] QCAT 417

CITATION:

Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417

PARTIES:	Ramke Constructions Pty Ltd (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

REO008-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Jeremy Gordon, Member

DELIVERED ON:

30 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Application refused.

CATCHWORDS:

APPLICATION TO REOPEN PROCEEDING –proceeding dismissed under section 48(2) of the QCAT Act (party causing a disadvantage) – whether reopening procedure applies

Queensland Civil and Administrative Tribunal Act 2009, ss 48(2),136, 137

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Background

Ramke Constructions Pty Ltd (“Ramke”) is a builder licensed under the Queensland Building Services Authority Act 1991.

On 16 September 2011 in a proceeding numbered GAR272-11, Ramke applied to QCAT seeking a review of a decision of the Queensland Building Services Authority (“QBSA”).

On 29 March 2012 the proceeding was dismissed.

Ramke now apply to reopen it. The question arises whether, bearing in mind the reason for the dismissal of the proceeding, Ramke can now apply to reopen it.

Events leading up to the dismissal of the proceeding

QCAT gave directions on 24 November 2011 and a compulsory conference was listed for 6 March 2012.

Ramke failed to appear at the compulsory conference and because of this the QBSA asked the presiding member immediately to dismiss the proceeding. The presiding member declined to do so, instead directing that Ramke “file submissions as to why the application should not be dismissed under section 48(2) of the Queensland Civil and Administrative Tribunal Act 2009”. In the same order, the proceeding was listed for a directions hearing at Brisbane on 29 March 2012.

No submissions were filed by Ramke. At the directions hearing on 29 March 2012, Ramke did not appear. The affidavit evidence filed by the QBSA in this application to reopen shows that the directions hearing did take place and was heard by a senior member of the tribunal. A lawyer in the employ of the QBSA attended the directions hearing and asked for the proceeding to be dismissed under section 48(2) on the grounds that Ramke had not complied with two separate orders of QCAT and had caused unnecessary disadvantage to the QBSA by causing an adjournment.

The senior member dismissed the proceeding on that basis. Although the order does not state the grounds for dismissing the proceeding, it is clear from the sequence of orders and from this evidence that the grounds for dismissal were under 48(2) of the QCAT Act.

Section 48(2), together with s 48(1), permits the Tribunal to dismiss a proceeding if an applicant unnecessarily disadvantages another party to the proceeding by (amongst other things) not complying with a tribunal order or direction without reasonable excuse.

When an application to reopen can be made

[10] Applications to reopen proceedings…

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: [2012] QCAT 417
Decision Date: 30 August 2012

CaseChat Overview and Summary

In the matter of Ramke Constructions Pty Ltd v Queensland Building Services Authority, the Queensland Civil and Administrative Tribunal (QCAT) was called upon to determine whether to allow an application to reopen proceedings that had been dismissed. The applicant, Ramke Constructions, sought to reopen proceedings dismissed under section 48(2) of the Queensland Civil and Administrative Tribunal Act 2009, which pertains to proceedings being dismissed due to a party causing a disadvantage to another. The Tribunal needed to decide whether the provisions for reopening under section 51(3) of the same Act were applicable in this instance.

The central legal issue before the Tribunal was whether the provisions for reopening proceedings under section 51(3) of the QCAT Act applied in cases where the proceedings were dismissed under section 48(2) due to a party causing a disadvantage. The Tribunal had to interpret the statutory language and determine if the application for reopening was permissible in this context. The applicant argued that the dismissal should not preclude the possibility of reopening the proceedings, while the respondent contended that the dismissal under section 48(2) explicitly foreclosed any further action to reopen the proceedings.

The Tribunal carefully considered the language of the QCAT Act and concluded that the dismissal under section 48(2) did indeed preclude the possibility of reopening the proceedings under section 51(3). The Tribunal reasoned that section 48(2) provides for a finality to the dismissal, and the legislative intent behind it would be undermined if reopening were permitted. Consequently, the Tribunal found that the applicant's application to reopen the proceedings was not permissible under the statutory framework. The application was thus refused, and the proceedings remained dismissed.

The Tribunal's decision was that the application to reopen the proceedings was refused, and no further action could be taken to reinstate the dismissed proceedings. This ruling reinforced the finality of dismissals under section 48(2) and clarified the scope of the reopening provisions in the QCAT Act.

Orders

Orders of the court

Application refused.

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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