Russell v Queensland Building Services Authority
[2013] QCAT 391
•26 July 2013
| CITATION: | Russell v Queensland Building Services Authority [2013] QCAT 391 |
| PARTIES: | Mr Cedric Ernest Russell (Applicant) |
| V | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR003-13 & GAR067-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 26 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application filed 3 May 2013 is dismissed. |
| CATCHWORDS: | REVIEW - Statement of Reasons – where applicant contends the respondent’s statement of reasons is deficient – where deficiencies are particularised in the application – consideration of the function of the tribunal on a review application – where relevant evidence can be submitted in the review application. Queensland Civil and Administrative Tribunal Act 2009 ss 21 and 160 McNabb Constructions Pty Ltd v Queensland Building Services Authority [2013] QSC 2013 Kehl v Board of Engineers [2010] QCATA 58 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Russell has filed an application asking the Tribunal to direct the Queensland Building Services Authority to provide a further and more comprehensive statement of reasons for its decisions that rectification work carried out by him is not of a satisfactory standard and the issuing of a Scope of Work in respect of the work undertaken by him.
The Authority stands by the statements of reasons it has prepared, given to Mr Russell and filed in the proceeding. It opposes the application.
The Tribunal can make orders under ss 24(4) and 160(3) of the QCAT Act if it considers the statement of reasons does not contain adequate particulars of the reasons for the decision. Section 27B of the Acts Interpretation Act 1954 also imposes an obligation on a decision maker to set out the findings of material questions of fact and refer to the evidence or other material on which those findings were based. The issue here is whether the Authority has complied with those obligations.
A little history is necessary to fully understand the application.
Mr Russell constructed a retaining wall for the homeowners, Shannon Taylor and Keith Dallinger at their home in Jindalee in 2006/2007. Problems arose with the wall and the Authority intervened.
On 3 August 2011 the Authority made a decision to issue a direction to rectify to Mr Russell. He filed an application to review that decision[1]. A compulsory conference was conducted and an agreement was reached in which resulted in Mr Russell agreed to undertake rectification work of the retaining wall. An agreement was signed in March 2012 and Mr Russell commenced the rectification work from about May through to November 2012.
[1] QCAT proceeding GAR232-11
Mr Russell says that he had problems getting access to the property which delayed the carrying out of the rectification work. There was a further agreement in September 2012 and further directions made by the Tribunal which required Mr Russell to complete the rectification work by 30 November 2012. On 28 November 2012 an inspection was carried out by the Authority with an engineer engaged by it, John Van de Hoef. Mr Russell was present at the inspection as well. The Authority was not satisfied that the rectification work had been completed satisfactorily and wrote to Mr Russell on 6 December 2012 advising him of that fact and enclosed a report from Mr Van de Hoef. That decision is a reviewable decision and Mr Russell filed an application to review it on 4 January 2013[2].
[2] GAR003-13
As no further rectification work was carried out by him and as the Authority was concerned about safety issues it decided to proceed with an insurance claim and issued a Notice of Potential Debt and a Scope of Work. The effect of this is that the cost of the rectification work can, subject to a decision in the various review applications, be recovered from Mr Russell under section 71 of the Queensland Building Services Authority Act 1991 (QBSA Act).
Mr Russell filed an application to review that decision as well[3].
[3] GAR067-13
In both the review applications the Authority, in accordance with directions made in those cases, has delivered a statement of reasons. Section 21 of the QCAT Act says a decision maker must use his or her best endeavours to help the Tribunal so that it can make its decision on the review. Subsection 2 imposes an obligation on the Authority to provide a “written statement of reasons for the decision”.
Mr Russell has a number of complaints about the statements of reasons:
·He says that the statements of reason do not address the contractual relationship between Mr Russell and the homeowners and what was included and excluded in the contract.
·A point is taken about the validity of the direction to rectify because of the time required to be given to the licensee under section 72(3) of the QBSA Act and calls into question the application of McNabb Constructions Pty Ltd v Queensland Building Services Authority.[4]
·The statements of reasons do not address the negotiations between the parties at the original compulsory conference in GAR232-11, the delays in accessing the site, the further discussions at another compulsory conference and inspecting the work when the time for its completion under the agreement had not arrived.
·There is a complaint that the statements of reasons do not include discussions with the homeowners about the work referred to in the direction to rectify.
·Other issues raised is a criticism that the statement of reasons suggest that Mr Russell was acting in a voluntary fashion rather than doing work in accordance with the agreement arising out of the compulsory conference and challenges to the effect of the settlement agreement.
·There is concern expressed that the statement of reasons refers to extracts from the engineers report, selectively, rather than, Mr Russell says, without disclosing the full text of the letter. I do note however that the engineer’s reports have been included in the material filed and what is contained in correspondence to the engineer seems to be is of marginal relevance.
[4] [2013] QSC 2013
The statements of reasons are confined to a consideration of those matters that the Authority took into account and resulted in the decisions about the unsatisfactory rectification work and the reason why the homeowner’s claim was accepted under the statutory insurance scheme. They include a report from a registered professional engineer that the rectification work did not fix the structural problems with the wall and because of that, and safety issues, the Authority approved a claim for work to be carried out to address these issues.
All the points raised by the applicant have not been included in the statements of reasons and whether they are relevant will ultimately be a matter for the Tribunal when the matter comes on for hearing. It is unclear at this early stage how they could be relevant unless they go to the fairness of the Authority’s decisions under s 72(14) of the QBSA Act or whether the Authority breached the agreement made in GAR232-11 and should not have proceeded to accept the claim under insurance. These are matters specifically for the applicant to raise in the review proceeding, as he has done through this application.
The decision maker’s function is to assist the Tribunal. It is not for the Tribunal to dictate to the decision maker as to what should be included in the statement of reasons and what should be relevant to its decision making process. If there are inadequacies in the statement of reasons and those inadequacies are highlighted in the evidence given by the applicant in a review proceeding then, if relevant, the Tribunal will have regard to that evidence when considering the matter afresh. If the decision maker hasn’t taken into account all relevant matters then it is again irrelevant to the hearing because it is for the Tribunal, in a fresh hearing on the merits, to consider that evidence in deciding whether to confirm the decision or set aside the decision and substitute the Tribunal’s own decision.
The statement of reasons is a useful tool because it identifies, or should identify, relevant evidence upon which the decision is based. It is the evidence relevant to the decision maker, rather than evidence that might be considered by the applicant to be relevant to the process. One could reasonably assume that any relevant evidence put forward by an applicant would be considered by the decision maker. Here, all the matters raised by Mr Russell in his affidavit and submissions were before the decision maker and even though it is not specifically referred to in the statement of reasons it does not necessarily mean it has not been taken into account. In any event it is not the function of this Tribunal to identify any error in either the decision making process or the reasoning that lead to the decision being made. There is no presumption that the original decision is correct.[5]
[5] Kehl v Board of Engineers [2010] QCATA 58.
All the matters raised by Mr Russell in his submissions can be lead in evidence at the hearing of the review application and the Tribunal, in performing its function to produce the correct and preferable decision by way of a fresh hearing on the merits, will consider that evidence as well as the evidence from the Queensland Building Services Authority in coming to its decision. A statement of reasons, although not strictly evidence unless its contents are sworn to by the decision maker, is only part of the relevant material that will be considered.
In the end I am satisfied that the statement of reasons does comply with the decision makers obligations to set out the material facts and the relevant material upon which the decision was made. In particular the reports independent engineer, Mr Van de Hoff. This evidence also supports the decision to go to the Scope of Work because of perceived safety issues. Whether the decisions made by the Authority are correct will ultimately be determined by this Tribunal.
In the circumstances the application is dismissed.
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