Rezaee and Anor v Queensland Building Services Authority
[2011] QCATA 335
•14 December 2011
| CITATION: | Rezaee and Anor v Queensland Building Services Authority [2011] QCATA 335 |
| PARTIES: | Mansoor Rezaee Taraneh Rezaee (Applicants/Appellants) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | APL068-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 14 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Declare that the QCAT Appeal Tribunal has jurisdiction to hear this application for leave to appeal, and appeal if leave is granted. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – JURISDICTION – where appellants’ original application commenced in the CCT – where matter finalised in QCAT – where appellants sought leave to appeal QCAT decision – where QCAT appeal tribunal only has jurisdiction to entertain the appeal if proceeding was a pending proceeding when QCAT commenced – whether matter was a ‘pending proceeding‘ or ‘other proceeding’ under the QCAT Act – where appeal tribunal found matter was a pending proceeding Acts Interpretation Act 1954, s 14A Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr and Mrs Rezaee sought leave to appeal the decision of a QCAT Member rejecting their application to review a decision of the Queensland Building Services Authority (QBSA). The QBSA had refused them the right to make a claim against the statutory insurance scheme which the Authority administers.
Mr and Mrs Rezaee’s original application for review was filed in QCAT’s predecessor, the Commercial and Consumer Tribunal (CCT) in 2006 and, regrettably, unfinished when that Tribunal was abolished and its work and jurisdiction transferred to QCAT on 1 December 2009.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009, ss 247, 248.
It is that circumstance which lies behind the present proceeding, in which the QBSA asserts that the QCAT Appeal Tribunal lacks jurisdiction to determine Mr and Mrs Rezaee’s appeal and argues that it should be dismissed, for that reason. By direction, that question of jurisdiction is to be determined on the papers. Each side is legally represented, and has filed detailed submissions and affidavits.
The question raised by the QBSA turns on whether or not a former member of the CCT who had commenced a hearing of the matter but had not finished it had, in words appearing in s 245 of the QCAT Act: ‘… started to consider evidence for the purpose of making (the former tribunal’s) final decision in the proceeding.’
The QCAT Appeal Tribunal only has jurisdiction to entertain the appeal if, when QCAT began on 1 December 2009, the proceeding was what is termed a pending proceeding under s 245.
Both the legislative path to this preliminary question, and the history of the dispute itself, are a little tortuous; the history is also very long, but it is necessary to address it and, in particular, what happened in the CCT to answer the question.
QCAT, unlike the CCT, has an internal Appeal Tribunal. Mr and Mrs Rezaee’s appeal was brought in QCAT’s Appeal jurisdiction from a decision of a QCAT Member delivered on 10 February 2011. The tribunal’s Appeal jurisdiction is created, and defined, under sections 25, 26 and 142 of the QCAT Act. In short, a party to a proceeding may appeal the decision in the proceeding to the QCAT Appeal Tribunal: ‘proceeding’ is defined in the Act to mean a proceeding before the Tribunal[2] and ‘decision’ means the Tribunal’s final decision in a proceeding.[3]
[2]Queensland Civil and Administrative Tribunal Act 2009, Sch 3 (definition of ‘proceeding’).
[3]Queensland Civil and Administrative Tribunal Act 2009, Sch 3 (definition of ‘decision’ para (a)(ii)).
Because QCAT absorbed a number of former Tribunals including the CCT, Chapter 7 of the QCAT Act contains necessary transitional provisions. Section 244 defines an existing tribunal proceeding as a proceeding that was started before a former tribunal and, at the commencement of QCAT, had not been withdrawn, dismissed, struck out or otherwise disposed of under the former Act. It is not in issue that Mr and Mrs Rezaee’s matter in the CCT was a proceeding of that kind, and that QCAT was invested with jurisdiction to determine it after 1 December 2009.
The transitional provisions also, necessarily, address appeal rights in cases involving proceedings that had begun before former Tribunals. That was necessary because, in the present case, an appeal from a final decision in a CCT matter could only have been brought to the District Court of Queensland;[4] but appeal rights were generally transferred, under the QCAT Act, to the QCAT Appeal Tribunal.
[4] Commercial and Consumer Tribunal Act 2003, s 100.
[10] For the purpose of deciding which appeals go where, the transitional provisions distinguish between a pending proceeding[5] and what is termed, under s 257, an other proceeding. Unless the proceeding before the CCT was a pending proceeding an appeal, even from a subsequent decision by a QCAT Member, would have to be brought to the District Court.[6]
[5] Queensland Civil and Administrative Tribunal Act 2009, s 256.
[6] Queensland Civil and Administrative Tribunal Act 2009, s 257.
[11] The original proceeding in the CCT concerned building work done for Mr and Mrs Rezaee at Upper Kedron. The date for practical completion of the building work was as long ago as October 2001. In 2006 Mr and Mrs Rezaee sent a complaint form to the QBSA about aspects of the work which the Authority determined, however, was out of time under the QBSA Insurance Policy Conditions.
[12] Mr and Mrs Rezaee began proceedings in the CCT seeking a review of that decision on 12 July 2006. Subsequently CCT members made directions in the matter and ultimately it was set down for hearing before a CCT Member, Mr Peter Lohrisch, on 28 October 2008.
[13] The transcript of the proceedings on that day shows that Mr and Mrs Rezaee were, despite the late hour, still seeking some disclosure from the QBSA. It was suggested that the hearing be postponed but, after lengthy argument and discussion, the Rezaees decided to proceed with the hearing.
[14] Eventually evidence began to be taken and Mr Rezaee gave oral evidence as did a Mr Woodward (a building inspector with QBSA), and Mr O’Halloran (the claims manager for QBSA).
[15] Towards the end of the day the presiding CCT Member is recorded as saying that the hearing is adjourned to a date to be fixed, but also that it is ‘noted’ that the parties intend to peruse the QBSA files; and, that there would then be a determination whether documents from those files could be introduced into evidence by consent, or whether further evidence would be required and the hearing would have to be reconvened for that purpose.[7]
[7]Transcript of proceedings, Rezaee v QBSA (CCT, QR084 of 2006, Member Lohrisch, 28 October 2008) 71.
[16] The learned Member is recorded[8] as saying: ‘In the event of the first, the parties will confirm in writing in the consent orders the timetable for submissions. In the event of the second, the parties will request the Tribunal to nominate a further hearing date.’
[8]Transcript of proceedings, Rezaee v QBSA (CCT, QR084 of 2006, Member Lohrisch, 28 October 2008) 71.
[17] Five months later, on 30 March 2009, Mr Lohrisch made an order about the production of QBSA’s files in terms that the Authority would tell Mr and Mrs Rezaee within 7 days whether it consented to produce them and, if it did not, the parties would exchange submissions and the ‘application for production and inspection’ would be listed for a further hearing at a time and date to be advised by the CCT Registry.
[18] Later during 2009 a number of further orders were made by another CCT Member, the Chairperson of that tribunal. The parties consented to an order she made on 9 September 2009 to the effect that they would file a statement of agreed facts, whereafter the matter would be listed for another hearing; or, if they could not agree on the contents of that statement, they were ordered to exchange affidavits of documents and submissions about any objections according to a timetable; and, also, exchange ‘… closing submissions in the substantive proceedings’ – again, according to a timetable. The timetables were amended under further consent orders, the last of which was made on 1 October 2009.
[19] The statement of agreed facts was filed on 20 November 2009, 11 days before the advent of QCAT.
[20] The parties have been unable to locate Mr Lohrisch. Although members of former tribunals could become ordinary Members of QCAT,[9] he did not do so. It does not appear that he ever obtained a transcript of the hearing of 28 October 2009. There is nothing in the CCT file to indicate that he had any further involvement in the matter after 30 March 2009, the date of his final order. All orders after that date were signed by Ms Schafer, the Chairperson.
[9] Queensland Civil and Administrative Tribunal Act 2009, s 263.
[21] Eventually the matter was revived in QCAT and, ultimately, one of its Senior Members directed that the parties tell QCAT whether they required the evidence to be reheard, or whether the Tribunal could consider the proceeding on the papers, and make a final decision. The parties eventually acceded to the ‘on the papers’ process, and that lead to the decision of another QCAT Member, made on 10 February 2011, which is the genesis of this appeal.
[22] The parties’ submissions focus on the question posed by s 245 and in particular whether, when QCAT began on 1 December 2009, the proceeding in the CCT was a pending proceeding. It will be recalled that, if it was, the QCAT Appeal Tribunal has jurisdiction.
[23] Section 245 is to be construed in a way that will best achieve the purpose of the QCAT Act.[10] Where, as here, the words used in the provision are in general usage, they should be given their plain and ordinary meaning unless the contrary is shown.[11]
[10] Acts Interpretation Act 1954, s 14 A.
[11] Cody v J H Nelson Pty Ltd (1947) 74 CLR 629, 647 (Dixon J)
[24] The relevant phrase in the section: ‘… has started to hear the matter the subject of the proceeding but has not started to consider evidence for the purpose of making its final decision in the proceeding …’[12] contains words generally used in a legal context, but having no special meaning within that context here.
[12] Queensland Civil and Administrative Tribunal Act 2009, s 245(b).
[25] It is clear from Chapter 7 of the QCAT Act and, in particular, Part 2 Division 3 that the legislature intended to distinguish between proceedings begun in former Tribunals which had reached such an advanced stage that, logically, any appeal from them should be undertaken under the former legislation – e.g. to the District Court of Queensland – and those where the proceedings had not, by the time QCAT began, reached a point at which it would be unfair to have any appeal heard and determined by the QCAT Tribunal.
[26] So much is apparent from s 245(a) which initially refers, in its definition of a pending proceeding, to a proceeding in which the former tribunal: ‘… has not started to hear a matter the subject of the proceedings...’.
[27] A ‘pending proceeding’ is to be distinguished from what s 257 categorises as other proceedings which are, it is apparent, existing Tribunal proceedings in which, although the matter became a QCAT proceeding with the advent of the new tribunal, the tribunal must continue to be constituted ‘… by the persons who constituted the former tribunal immediately before the commencement and, for the purpose, any of the persons who are not members of QCAT (or who have not become members under s 263) are taken to be members of QCAT for the duration of the proceeding.’[13] These other proceedings are those in which the appeal process continues under the former legislation, and must be brought to the District Court.
[13] Queensland Civil and Administrative Tribunal Act 2009, s 257(4).
[28] The distinction between the two categories of proceeding – pending or other – is, with respect, logical. A proceeding in a former tribunal which has reached such an advanced stage that its Members had begun to consider the evidence for the purpose of making their final decision is one in which, sensibly, those Members should be allowed to finish the matter pursuant to s 257.
[29] Against that, s 245 attempts to define the point at which proceedings in a former tribunal have not reached a stage at which continuance, and finalisation, by the former members is desirable or necessary.
[30] The test under s 245(b) for a pending proceeding has three elements: whether or not the member of the former tribunal has begun to hear the matter the subject of the proceedings; whether or not the member has started to consider the evidence; and, whether or not that consideration is for the purpose of making a final decision in the proceeding.
[31] These questions have not been closely considered in QCAT save in two instances. One of them involved a matter[14] in which a Fisheries tribunal had begun to hear an appeal on 2 November 2009 but had not begun to consider evidence for the purpose of making its final decision, and the QCAT Tribunal held the proceeding was a pending proceeding.
[14] Port Ashgrove Pty Ltd v Chief Executive, DEEDI [2010] QCAT 210.
[32] The other is Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority [2011] QCAT 331 in which a QCAT Senior Member held that, in circumstances where the CCT had begun to hear a matter and had taken evidence, the matter was not a pending proceeding. I have the misfortune to disagree. The reasons of the learned Senior Member,[15] referring to the fact that the former tribunal ‘… had started to hear the matter the subject of the proceeding and had taken evidence for the purpose of making a final decision. Therefore the proceeding is not a pending proceeding’, involve a misapplication, with respect, of the actual words in s 245(b) which direct attention, not to the question whether the former tribunal had taken evidence for the purposes of making a final decision but, rather, whether it has started (or not started) ‘… to consider evidence for the purpose of making its final decision.’[16]
[15]Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority [2011] QCAT 331, [7].
[16] Queensland Civil and Administrative Tribunal Act 2009, 245(b).
[33] Mr Lohrisch had certainly begun to hear the matter. It may even be said that, in the nature of the decision making process, he had started to consider that evidence – and, again by reason of the nature of the decision making process, that his consideration would logically have been directed towards the final decision he would be required to make in the proceeding. Unsurprisingly, the submissions for QBSA focus on these possibilities.
[34] In the absence of any word from Mr Lohrisch it is, however, simply impossible to know the point his deliberations had reached. It is clear, from the history recited above, that when the matter adjourned after the first day of hearing before him he did not know what further evidence would be presented to him, or whether it would be in documentary form or given orally and, for the latter purpose, whether further hearings were necessary.
[35] There is nothing in the CCT file to suggest he ever obtained the transcript of the proceedings – something which, it might be thought, would be an integral part of the business of his final deliberations. Subsequently, he made directions in the matter, the last occasion being five months after the hearing. Thereafter, all is silence. Later orders in the CCT were not made by him. In short, whether he had begun to consider the evidence for the purpose of making his final decision is unknown.
[36] It is known, however, that the matter was some considerable distance from being finished. Although it was ultimately decided on the papers after submissions from the parties, that did not occur until more than two years after the first and only hearing date before Mr Lohrisch. He made no decision in the matter and, this history shows, the circumstance in which he might have been required to do so never arose.
[37] The circumstances are akin to those in the Port Ashgrove[17] case and the reasoning there is, with respect, persuasive. When a matter is part heard but, on any view, is interrupted at a point at which further written evidence or submissions, or oral evidence (and submissions) will be necessary, the circumstances can readily be seen to fit those outlined in s 245(b).
[17] Port Ashgrove Pty Ltd v Chief Executive, DEEDI [2010] QCAT 210.
[38] In the legislative context described earlier, the prevailing circumstances here are materially different to those in a case in which all of the evidence has been received and the tribunal members are, realistically, in a position to begin considering that evidence as part of the exercise of making their final decision in the proceeding.
[39] In other words, s 257 is intended to apply when the hearing is, in effect, complete or so close to that point as to make it logical, and sensible, that the tribunal members finish the exercise and make a decision. That analysis sits comfortably with its opposite but complementary provision, s 245(a), which describes the contrasting circumstance in which the Tribunal has not actually begun to hear the matter.
[40] This matter was, in truth, some distance from completion when Mr Lohrisch adjourned it, and much more time and work was necessary to complete it. In the legislative context outlined above I am comfortable with a construction of s 245(b) which, here, points to the conclusion that the matter remained a sufficient distance from finalisation as to warrant it being categorised as a ‘pending proceeding’ under the provision.
[41] For these reasons it is appropriate to declare that the former proceeding before the CCT is, in QCAT, an existing proceeding that is a pending proceeding, and the QCAT Appeal Tribunal has jurisdiction to entertain and determine an appeal from the QCAT decision made in it.
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