Redding v Simmons
[2016] QCATA 100
•23 February 2016
| CITATION: | Redding v Simmons [2016] QCATA 100 |
| PARTIES: | Michael John Redding (Appellant) |
| v | |
| Briann William Simmons (Respondent) |
| APPLICATION NUMBER: | APL420-15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 23 February 2016 |
DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – APPLICATION FOR LEAVE TO APPEAL – BUILDING DISPUTE – where application dismissed for want of jurisdiction – where applicant failed to submit to the dispute resolution process provided by the Queensland Building and Construction Commission before commencing action – where application dismissed on that ground – whether applicant was lawfully required to submit to said process – whether dismissal of application was in error – where dismissal for want of jurisdiction creates cause of action estoppel Acts Interpretation Act 1954 s 14A Bloomfield & Roofshield Restorations Pty Ltd v QBCC [2014] QCAT 149 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 Todd and 1 Other v Todd and 1 Other [2007] NSWCA 224 |
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
On 2 July 2015 Michael John Redding (“Redding”), a builder, instituted a minor civil dispute (minor debt) against Briann William Simmons (“Simmons”) claiming $8,630.86, being the balance owing for work done and materials supplied in repairing Simmons’ premises at Upper Mt Gravatt, Brisbane.
Simmons denies liability and defends the claim on two bases, namely (i) that charges for part of the work are excessive, and (ii) that he (Simmons) did not authorise certain items that have been charged.[1] There is no plea that the work done is defective, substandard or incomplete.
[1]Response filed 17 July 2015.
The matter came on for hearing on 8 October 2015. The presiding Adjudicator asked Redding:
“[Y]ou’re a registered builder are you ... [Y]ou’ve got a licence with the QBCC? Are you aware of section 77 of the QBCC Act now? ... [A]ny building dispute must go through the QBCC’s dispute resolution. Have you done that?”
To which Redding replied: “No sir, I wasn’t aware of that rule.”[2]
[2]Transcript of hearing 8 October 2015 (“Transcript”), page 2 lines 17-30.
The presiding Adjudicator then dismissed the application for want of jurisdiction, for these reasons:
“[B]uilding disputes must go through the [Queensland Building and Construction Commission’s] dispute resolution process before an application to the Tribunal can be made. ... [T]he approach of the Tribunal is that I should desist from hearing any such application. Otherwise I’d be contravening the legislation.”[3]
[3]Transcript page 4 lines 21-22, 40-41.
Section 77 of the Queensland Building and Construction Commission Act 1991 (“the QBCCA”) materially provides:
Tribunal may decide building dispute
(1) A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal resolve the dispute.
(2) However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute.[4]
[4]Subsection 77(2), as amended by s 39 of the Queensland Building and Construction Commission and Other Legislation Amendment Act 2014, to refer to the mediation process.
Redding now seeks leave to appeal on these grounds:
“The application was dismissed for lack of jurisdiction. We were referred to QBCC to follow proper legal procedure. However, on contacting QBCC to do this, they told me that they do not resolve problems that are disputes about payments. For this we need to go to QCAT. We were correct with our attendance, and the application should not have been dismissed.”[5]
[5]Application for leave to appeal APL420-15, filed 14 October 2015.
On 6 January 2016, I directed Redding to obtain evidence in writing from the QBCC which might support his unsworn hearsay statement that the QBCC does not “resolve problems that are disputes about payments”. Absent timely compliance with that direction, further directions to the same effect, were issued on 1 and 5 February 2016.
On 11 February 2016, the appellant filed and served a letter provided to him by an officer of the QBCC’s Resolution Services, dated 9 February 2016 (“the letter”), which reads in part:
“This correspondence serves as notification that you have participated in the QBCC’s dispute resolution process as prescribed by legislation and your case has now been finalised. If you wish to pursue the matter further you may now apply to QCAT for assistance”.
Contrary to Redding’s pleading,[6] the letter implies that it was necessary to submit to the QBCC’s dispute resolution process in this case, although it involves no allegation of defective workmanship or materials.
[6]Quoted in paragraph [7], above.
However, the letter provides no direct answer to the question raised in the Tribunal’s several directions, namely, does the QBCC regard its resolution service as applicable generally, or only to certain types of building disputes?[7]
[7]See Directions issued on 6 January 2016 paragraph 1, 1 February 2016 paragraph 2, and 5 February 2016 paragraph 3.
The “dispute process” requirement was added to section 77(2) by section 39 of the Queensland Building and Construction Commission and Other Legislation Amendment Act 2014. The Explanatory Notes to the relevant Bill merely record that the change provides “an early dispute intervention process to allow the QBCC to conciliate/mediate disputes between consumers and contractors at no cost”.
Clearly this contest is a “building dispute” within the meaning of the Act. “Building dispute” includes a “domestic building dispute”.[8] “Domestic building dispute” includes "the renovation, alteration, extension, improvement or repair of a home”.[9] It is undisputed that the subject premises are a “home”, that is, a building designed, constructed or adapted as a residence.[10]
[8]QBCCA Schedule 2.
[9]Ibid Schedule 1B s 4(b).
[10]Ibid Schedule 1B s 9.
But is there a mediation process to deal with building disputes that involve contractual issues other than defective workmanship? Logically, section 77(2) leaves open the possibility that the QBCC may not have provided a “process” to mediate every kind of building dispute. But neither the Act nor the available evidence offers a clear, conclusive answer.
The respondent Simmons, has not exercised his right to offer evidence or submissions in answer to the material filed by Redding in response to the directions of the appeal Tribunal.
In these circumstances, resort to official websites[11] may provide some assistance.
[11]The Tribunal is not strictly bound by the rules of evidence, and frequently makes use of official internet websites (including its own) for assistance in resolving matters before it. See for examples Bloomfield & Roofshield Restorations Pty Ltd v QBCC [2014] QCAT 149 (application licence forms); Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89; Pharmacy Board of Australia v Chung [2012] QCAT 483 (drug strategy); Legal Services Commissioner v Lee [2013] QCAT 447.
A Queensland Government Information Service, “Resolving Building Disputes”, offers this advice:
“If you are a homeowner ... and are having a dispute with someone who has done building work on your property ... call your nearest QBCC office. QBCC will try to ... resolve the problem. If they cannot help you to come to an agreement they will ... inspect the building work. The QBCC representative will decide (i) if the work passes industry standards (ii) who is at fault (if there is a Problem); (iii) how the person you hired should fix the problem ... (if they are at fault) ... [and] in what time frame”.
The focus here is upon substandard work, but “Resolving Building Disputes” may relate to the QBCC’s relatively long-standing power to issue rectification orders,[12] rather than to the more recent mediation power now in question.
[12]QBCCA s 72.
The Commission’s Annual Report 2014-2015 states that the QBCC “supports the industry by providing remedies for defective building work”,[13] and by promoting “the efficient resolution of building disputes.”[14] The latter statement is followed by a list of “ten most common defects”, all of which are clearly instances of defective work.
[13]QBCC Annual Report 2014-15 page 5.
[14]Ibid page 40.
But on the other hand, the Commission’s 2014-2015 Report states:
“On 1 July 2014 the QBCC piloted a new Early Dispute Resolution service for disputes between contractors and home owners concerning building defects, non-completion and contractual issues. The pilot was a success and resulted in legislative amendments ... to provide a formal framework for the process.”[15]
[15]Ibid page 42.
While the available evidence is less than ideal, this official statement indicates that “contractual issues” (as in the present case) are within the purview of the mediation service established under section 77(2). There is nothing in the broad terms of that provision to forestall such a view (“the general jurisdiction view”), which accords with the Commission’s letter to Redding.[16] There is no evidence to suggest that the services offered or provided are narrower in scope than the Report proclaims.
[16]Quoted in paragraph [9], above.
The “general jurisdiction view” is accepted by QCAT, on its official internet site, in this notice to intending litigants:
“Building Disputes – Before you make an application: Parties are required to participate in a dispute resolution process with the QBCC before making a commercial or domestic building dispute application to QCAT. A letter from the QBCC advising of the outcome of this process must be provided when commencing a QCAT application. Applications cannot be accepted at QCAT without this letter from the QBCC.”[17]
[17]QCAT website notice, last updated 30 October 2015.
The objects of the QBCC, according to its constitutional Act, include the maintenance of proper standards in the [building] industry, to regulate domestic building contracts so as to secure a reasonable balance between the interests of builders and owners, and to provide support, education and advice for both parties.[18]
[18]QBCCA s 3.
Objects clauses in legislation are to be interpreted in a manner that “will best achieve the purposes of the legislation.”[19] It is the duty of a court to apply legislation to new circumstances according to its terms and so as to achieve its objects.[20] So interpreted, the constitution of the QBCC is quite capable of accommodating the “general jurisdiction view” of section 77(2). Legal purists may suggest, with apologies to Dr Samuel Johnson, that if the QBCC interprets contracts, as well as supervising builders, the wonder is not that it may be done inexpertly, but that it is done at all. But that would be hypercritical. The intent of the legislature must prevail, and mediation demands skills other than refined jurisprudence. Submission to the Commission’s dispute resolution process is a necessary condition precedent to the commencement of a building dispute in this Tribunal.
[19]Acts Interpretation Act 1954 s 14A; Calanca v The Queensland Parole Board [2016] QSC 3 at
[29]; Saraswati v The Queen (1991) 172 CLR 1 at [7].
[20]Nominal Defendant v GLG Australia Pty Ltd (2006) 225 ALR 643; [2006] HCA 11 at [42].
For these reasons the decision of the Adjudicator was correct, and leave to appeal must be refused.
However, it does not follow that Mr Redding is left without a remedy. Now that he has the requisite letter from the QBCC, he may commence his action anew. Sympathy for the appellant notwithstanding, that letter, dated 9 February 2016, cannot lawfully be treated as one that was issued before he filed his original application on 14 October 2015.
The original cause of action has not been dismissed on the merits, but merely on the procedural ground of want of jurisdiction. The substance of the case remains for adjudication. It is not res judicata, but still alive.[21] Inconvenient as it may be, Mr Redding is at liberty to file and serve a fresh application, repeating the claims set out in his application of 14 October 2015. That is entirely a matter for him, and nothing in this decision prejudges his prospects of success.
[21]Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91; [2012] WASCA 50 at [195];Todd and 1 Other v Todd and 1 Other [2007] NSWCA 224 at [32]; J D Heydon (ed) Cross on Evidence 5th Aust ed (Butterworths 1996) at [5025]; Spencer Bower, Turner and Handley Res Judicata (Butterworths, 1996) at 37; Phipson on Evidence Sweet and Maxwell 12 ed 1976 at [1306].
ORDER
The application for leave to appeal is dismissed.
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