Russell v Queensland Building and Construction Commission - [2015] QCAT 362

CITATION:

Russell v Queensland Building and Construction Commission [2015] QCAT 362

PARTIES:	Cedric Ernest Russell (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR067-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

11 August 2015

HEARD AT:

Brisbane

DECISION OF:

Member Browne

DELIVERED ON:

24 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a stay or transfer of proceedings in the application for miscellaneous matters filed by the Queensland Building and Construction Commission on 25 June 2015 is refused.

2. The application GAR067-13 is listed for a Directions Hearing in Brisbane at 2:30 pm on 10 September 2015.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – stay and transfer of proceedings – where application to review scope of works – where stay of proceedings was refused by the Tribunal – where Tribunal made decisions about direction to rectify and unsatisfactory rectification of work – where proceedings issued in the District Court under s 71 of the Queensland Building and Construction Commission Act 1991 (Qld) – whether the District Court has jurisdiction to determine issues to be considered in the review proceedings – whether Tribunal should grant a stay or transfer proceedings

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 52, 58, 59, 62, 100
Queensland Building and Construction Commission Act 1991 (Qld), ss 71, 86

Chras Straker Pty Ltd as trustee for Dianne Crea Family Trust and Anor v Orsay Holdings Pty Ltd [2011] QCAT 676; cited
Henderson & Anor v The Body Corporate for Merrimac Heights [2011] QSC 336; cited
Kuligowski v Metrobus [2004] 220 CLR 363; cited
Mahoney v Queensland Building Services Authority [2013] QCA 323, cited
Namour v Queensland Building Services Authority [2014] QCA 72; cited
Russell v Queensland Building Services Authority [2013] QCAT 329; cited
Russell v Queensland Building Services Authority [2014] QCAT 094; cited
Samimi & Anor v Queensland Building and Construction Commission [2015] QCA 106; cited

APPEARANCES:

APPLICANT:

Ms P Ahern of Counsel instructed by Shand Taylor Lawyers

RESPONDENT:

Mr M Cooke of Counsel

REASONS FOR DECISION

Cedric Russell built a house for owners of land in Springfield Lakes and did some building work in 2006. The homeowners complained to the Queensland Building and Construction Commission (QBCC) about the work.
The QBCC made decisions about the building work, the unsatisfactory rectification of work and a decision to issue a scope of works.
Mr Russell filed applications in the Tribunal to review the decisions about the direction to rectify and the unsatisfactory rectification work (applications GAR232-11 and GAR003-13) and the scope of works (application GAR067-13).
On 28 March 2013, the Tribunal refused Mr Russell’s application to stay the scope of works decision pending the determination of the review application (GAR067-13). The Tribunal found that the QBCC took the ‘unusual step’ of going ‘straight to’ the scope of work while Mr Russell’s review application was pending because of concerns about safety and stability of a retaining wall. The Tribunal found that the…

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: [2015] QCAT 362
Decision Date: 24 August 2015

CaseChat Overview and Summary

The applicants, Russell, sought a review of decisions made by the Queensland Building and Construction Commission. The dispute arose from an application to review the scope of works, which was denied by the Tribunal. The Commission subsequently issued proceedings in the District Court under section 71 of the Queensland Building and Construction Commission Act 1991 (Qld). The applicants sought a stay or transfer of these proceedings to the General Administrative Review (GAR) Division of the Supreme Court. The court was required to decide whether the District Court had jurisdiction to determine the issues in the review proceedings and whether the Tribunal should grant a stay or transfer of the proceedings.

The court considered the statutory framework governing the review of decisions made by the Commission. It noted that the District Court had jurisdiction to hear appeals from decisions of the Commission under the Building and Construction Commission Act 1991. However, the court also recognised that the GAR Division had exclusive jurisdiction to review decisions of the Commission under the Administrative Justice Act 1992. The court concluded that the District Court did not have jurisdiction to determine the issues in the review proceedings, as these were matters within the exclusive jurisdiction of the GAR Division. Accordingly, the court refused the application for a stay or transfer of proceedings.

The court further considered whether the Tribunal should grant a stay or transfer of the proceedings. It noted that the Tribunal had already made decisions about the direction to rectify and unsatisfactory rectification of work, which were final and binding. The court concluded that there was no basis for the Tribunal to grant a stay or transfer of the proceedings, as the issues raised in the review application were distinct from those considered by the Tribunal.

The court refused the application for a stay or transfer of proceedings in the application for miscellaneous matters filed by the Queensland Building and Construction Commission on 25 June 2015. The application GAR067-13 was listed for a Directions Hearing in Brisbane at 2:30 pm on 10 September 2015.

Orders

Orders of the court

1. The application for a stay or transfer of proceedings in the application for miscellaneous matters filed by the Queensland Building and Construction Commission on 25 June 2015 is refused.

2. The application GAR067-13 is listed for a Directions Hearing in Brisbane at 2:30 pm on 10 September 2015.

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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