Room v Queensland Building Services Authority

[2010] QCAT 262

CITATION:Room v Queensland Building Services Authority [2010] QCAT 262

PARTIES:	Dr Peter Room Mrs Sandra Room
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR059-10  

MATTER TYPE: General administrative review matters

HEARD AT:  BRISBANE

DECISION ON THE PAPERS OF: R Oliver – Senior Member

DELIVERED ON: 7 June 2010

DELIVERED AT:      BRISBANE

ORDERS MADE: The application be struck out

CATCHWORDS :  Application to strike out; Application seeks to review a decision by the respondent not to direct an expert to include certain matters in an expert building report; application lacks substance; section 47 of the QCAT Act applied.

REASONS FOR DECISION

1.    On 26 January 2010 the Queensland Building Services Authority (“the Authority”), by its building inspector Mr Blair Lowrie, conducted an inspection of the Applicants’ home at 9 Dornoch Crescent, Ferny Grove for the purposes of providing a building report.

2.    The report prepared on behalf of the Authority was to address deficiencies in a pre-inspection purchase report prepared by Cowan & Sons Pty Ltd trading as – Bill Britain Inspection Services.  The report by Mr Lowrie was provided to the Applicants and this is included with the application they have filed in the Tribunal.

3.    That application seeks a review of a decision of the Authority.  The decision sought to be reviewed seems to be the report of Mr Lowrie dated 26 January 2010. However the report was accompanied by a letter from the Authority dated 28 January 2010, which is the decision of the Authority.  Mr Lowrie’s report is not a decision of the Authority.

4.    In the letter of 28 January 2010 and a subsequent letter of 5 February 2010 the Applicants were advised that:

“BSA’s decision not to direct Cowan & Sons Pty Ltd to rectify defective work is reviewable in the Queensland Civil and Administrative Tribunal (QCAT).  Review applications to QCAT must be made within 28 days.  Before making an application, you should consider obtaining independent legal advice”

5.    The application made seeks the following:

The BSA report is to be revised to state that Mr Lowrie’s inspection combined with the evidence we submitted proves that incorrect ground levels had incorrectly built, damaged and patched external walls were present when Cowan & Sons made their pre-inspection building and pest inspections in March 2005.  The BSA report to state that Cowan & Sons should have told us about these defects and recommended follow up special purposes inspections rather than reporting that “the property is representative of properties of similar age and type” and that drainage and ant capping were “adequate”.

The BSA report to be revised to deal with complaint items singularly rather than lumped together.  This will make much clearer where the building and pest reports by Cowan & Sons failed to meet AS 4349.1-1995 and AS 4349.3-1998.

6.    Therefore, what is sought on the face of the application is a review of the content of the Mr Lowrie’s report, rather than a decision by the Authority.

7.    The Authority, on 5 May 2010 brought an application to strike out the Application for Review of a Decision.  The grounds identified in the Authority’s application are:

“Pursuant to section 47(1)(B) the proceeding is considered lacking in substance.  In support of the Respondents application to dismiss, the Respondent relies on the statement of Blair Jeffrey Lowrie dated 27 April 2010 and submissions of the Respondents supported its application to dismiss dated 4 May 2010.”

8. The Applicants’ submission points out, quite rightly, that section 4(C) of the Queensland Building Services Authority Act (“the QBSA Act”) provides that building and pest inspectors are not bound by the provisions of the QBSA Act. Therefore, pursuant to section 72 of the QBSA Act the Authority can not issue any directions to building and pest inspectors because they do not undertake building work within the definition of the Act. The submission proceeds on that basis and as the Authority cannot issue directions, it submits that the application for review is misguided and cannot succeed. The submissions go on to state:

“The Authority strongly submits that the Tribunal, in conducting a review of the Authority’s decision and in stand in the shoes of the Authority, is not able to enliven the discretion conferred upon the Authority under section 72 to issue a direction to rectify to the Building and Pest Inspectors on the basis that they were not the entity who carried out the defective building work at the property.”

9.    This submission is undoubtedly correct and if that was the relief sought from the Authority, the application for review would be dismissed.

10. However, the Applicants contend that is not the relief claimed.  In their written submissions, they seek that which they have included in the Application to Review, and that is to have Mr Lowrie complete his report to include the matters, they say, are excluded from his report and are identified in attachment one (1) to their complaint of 2 March 2010.  The written submissions of 17 May 2010 set out what they say should be included in Mr Lowrie’s report and in particular, in paragraphs 3.2 and paragraphs 10 of that report.

11. Therefore, what the Applicants are asking this Tribunal to do is to direct, as they say the Authority should have, that Mr Lowrie include matters in his report which they say should be included in reliance on other expert evidence.

12. It is right to say that this Tribunal even on a review application, and standing in the shoes of the Authority, cannot direct witnesses or parties to include evidence or opinion in reports provided to the Tribunal at the insistence of another party.  Even if the Tribunal were of the opinion that the report is lacking and does require further information, it is not appropriate or desirable for this Tribunal to either instruct or direct parties as to what evidence ought to be included in material filed in the Tribunal. This proposition is fundamental to the administration of justice.

13. Mr Lowrie is an expert building inspector and as such it is a matter for him to include that which he considers relevant in his report.  If there is any contest about what is included, or not included in the report, that is a contest that can take place at an appropriate hearing where that evidence is admitted.

14. It seems that the Authority is a little misguided, having regard to their responses, as to what the review application is about but, on either ground, it must fail. 

15. The Authority relies on section 47 of the Queensland Civil and Administrative Tribunal Act 2009 which provides:

Dismissing, striking out or deciding if unjustified proceeding or part

(1) This section applies if the tribunal considers a proceeding or a part of a proceeding is—

(a) frivolous, vexatious or misconceived; or

(b) lacking in substance; or

(c) otherwise an abuse of process.

(2) The tribunal may—

(a) if the party who brought the proceeding or part before the tribunal is the Applicant for the proceeding, order the proceeding or part be dismissed or struck out;

16. It is clear to me that this application cannot succeed. I therefore conclude that it is misconceived by the Applicants, and although I am not in any way critical of their ultimate intention, that is to have the report record what they consider to be all of the defects, unfortunately the application is so lacking in substance that it should not proceed.

17. Therefore, the order of the Tribunal will be that the application be struck out.