Sanders v Queensland Building Services Authority - [2013] QCAT 732

CITATION:

Sanders v Queensland Building Services Authority [2013] QCAT 732

PARTIES:	Fay Muriel Sanders (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR238-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michael Howe, Member

DELIVERED ON:

14 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Respondent made on 31 May 2012 is set aside.

2. Return the matter to the Respondent for reconsideration with the following direction:

a. The Respondent determine the Applicant’s claim for indemnity under the Statutory Insurance Scheme without further reference to the Applicant.

CATCHWORDS:

Meaning of the word decision – failure to make decision - jurisdiction of the Tribunal – QBSA Act as a remedial statute – final and effective determination of issues – closing the file – Statutory Insurance Scheme – exercise of a discretion – delegation of decision making power – taking into account irrelevant considerations – returning the matter to the decision maker for reconsideration

Queensland Civil and Administrative Tribunal Act 2009 s 24(1)(c)
Queensland Building Services Authority Act 1991 ss 86, 87, schedule 2

Director-General of Social Services v Chaney (1980) 47 FLR 80; [1980] FCA 87
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Queensland Racing Ltd v McMahon [2010] QCATA 73
Bull v Attorney-General (NSW) (1913) 17 CLR 370
Australian Postal Corporation v Forgie [2003] FCAFC 223
Re Tooheys Limited v The Minister of Business and Consumer Affairs [1981] FCA 121
Redland Shire Council v Bushcliff Pty Ltd [1997] 2 Qd R 97
Resort Management Services Ltd v Noosa Shire Council [1995] 1 Qd R 311
Wilson v Coordinator-General department of State development [2001] QCA 159

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Mrs Sanders owns a home in Aspley. In 2000 she had a problem with encroaching tree roots. She engaged a builder. The builder placed her house on temporary steel supports. There were problems with the work.
It is unclear what the extent of the problems were. It is also unclear when the Queensland Building Services Authority (the Authority) became involved, but they did. The matter is unclear because Mrs Sanders has filed material, albeit confusing, but the Authority has filed very little.
It appears in 2007 remedial work was done to correct the earlier problems, but that further work was not to Mrs Sanders satisfaction either.
By letter of 6 August 2010 to Mrs Sanders the Authority agreed to do work to the rusting temporary steel posts under Mrs Sanders house and the work necessary to rectify an eccentrically loaded concrete stump at the rear of the garage. They made an ‘offer’ about that work on 29 November 2010 and a further ‘offer’ on 14 March 2011, neither of which was accepted by Mrs Sanders.
By letter of 12 April, 2011 those ‘offers’ were…

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: [2013] QCAT 732
Decision Date: 14 February 2013

CaseChat Overview and Summary

The case of Sanders v Queensland Building Services Authority involved a dispute between the applicant, who sought indemnity under the Statutory Insurance Scheme, and the respondent, the Queensland Building Services Authority. The applicant alleged that the respondent had failed to make a decision on his claim for indemnity and had closed the file on his matter without a final and effective determination. The respondent argued that it had made a decision on the matter and had the authority to close the file. The case was heard in the Queensland Civil and Administrative Tribunal. The central legal issues in this case were whether the respondent had made a decision on the applicant's claim for indemnity, whether the respondent had the authority to close the file on the matter, and whether the respondent had taken into account irrelevant considerations when making its decision. The court had to determine whether the respondent's decision to close the file was lawful and whether the respondent had exercised its discretion properly. The court found that the respondent had not made a final and effective determination of the applicant's claim for indemnity and had closed the file without properly considering all relevant factors. The court held that the respondent's decision to close the file was unlawful and that the matter should be returned to the respondent for reconsideration. The court also found that the respondent had taken into account irrelevant considerations when making its decision and that the matter should be reconsidered without further reference to the applicant. The court set aside the respondent's decision made on 31 May 2012 and returned the matter to the respondent for reconsideration with specific directions. The respondent was directed to determine the applicant's claim for indemnity without further reference to the applicant and to consider all relevant factors in making its decision.

Orders

Orders of the court

1. The decision of the Respondent made on 31 May 2012 is set aside.

2. Return the matter to the Respondent for reconsideration with the following direction:

a. The Respondent determine the Applicant’s claim for indemnity under the Statutory Insurance Scheme without further reference to the Applicant.

Background

Background to the litigation

Full text does not contain this section.

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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