Saunders v Queensland Building and Construction Commission

[2022] QCAT 388

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Saunders v Queensland Building and Construction Commission [2022] QCAT 388

PARTIES:

kevin gordan saunders 

(applicant)

v

Queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR456-19

MATTER TYPE:

Building matters

DELIVERED ON:

14 November 2022

HEARING DATE:

31 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Bishop

ORDERS:

The application to review a decision is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to dismiss or strike out a proceeding

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld)

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. On 22 October 2019 the Queensland Building and Construction Commission (the Commission) made a decision that work carried out by David Stanley Roberts (the Contractor) at the direction of the Commission was of a satisfactory standard. Mr Saunders filed an application to review that decision on 26 November 2019.

2. Under section 86(1)(f) of the Queensland Building and Construction Commissioner Act 2009 (the QBCC Act) a decision of the Commission that building work undertaken at the direction of the Commission is or is not of a satisfactory standard is a reviewable decision. Under section 87 of the QBCC Act a person affected by a reviewable decision of the Commission may apply to the Tribunal for a review of the decision.

3. The Tribunal is satisfied it has jurisdiction.

Application to strike out or dismiss proceedings

1. On 17 May 2021 the Commission submitted to the Tribunal that after undertaking a review of the decision and receiving new evidence, it wanted to reconsider the decision. On 28 July 2021 the Commission reconsidered the decision and determined the building work undertaken by the Contractor was not of a satisfactory standard.

2. On 9 September 2021 the Commission sent Mr Saunders’ legal representative a letter asking Mr Saunders to withdraw his application. The letter stated if Mr Saunders did not discontinue his review application the Commission would prepare an application to strike out the review application.[1]

   [1]Letter from Caitlin Low (Senior Lawyer) dated 9 September 2021 to Grant & Simpson Lawyers.

3. On 19 October 2021 Grant & Simpson Lawyers advised the Commission, the Tribunal and Mr Saunders that “they were no longer sufficiently instructed in this matter to continue acting on behalf of Mr Saunders…”.[2]

   [2]Letter from Grant & Simpson Lawyers dated 19 October 2021.

4. On 2 December 2021 the Commission wrote to Mr Saunders inviting him to withdraw his application.[3] On 17 December 2021 the Commission wrote to Mr Saunders asking him to “advise whether you intend to withdraw your application…”.[4]

   [3]Email dated 2 December 2021 sent from the Commission to Mr Saunders at 9.37am.

   [4]Email dated 17 December 2021 sent from the Commission to Mr Saunders at 9.07am.

5. On 20 December 2021 Mr Saunders responded to the Commission and advised:

   …I won’t be withdrawing my application to the Tribunal.

   Please stop trying to trick me into making a decision contrary to my interests…

6. On 6 January 2022 the Commission wrote to Mr Saunders and advised an application to strike out his review application was to be prepared and filed.[5]

   [5]Email dated 6 January 2022 sent from the Commission to Mr Saunders at 8.35am.

7. On 12 January 2022 the Commission filed an application for miscellaneous matters to dismiss or strike out a proceeding. Mr Saunders responded on 31 January 2022 stating he will not be withdrawing his application. He states:

   QCAT should make its own determination and have no regard for the vexatious strike-out application which serves no purpose other than to improve the QBCC’s win rate in statistics at QCAT and deprive [Mr Saunders] of [his] lawful rights.

The reviewable decision

1. Under section 23 of the Queensland and Civil Administrative Tribunal Act 2009 (Qld) (the QCAT Act) if a decision maker sets aside a decision and substitutes another decision, the substituted decision becomes the reviewable decision, and the review must continue unless the applicant withdraws the application. The Tribunal finds the reviewable decision before the Tribunal is the building work undertaken by the Contractor was not of a satisfactory standard.

2. Under section 24 of the QCAT Act, the Tribunal can confirm, amend or set aside and substitute a new decision. Or the Tribunal can set aside the decision and send the matter back for reconsideration with directions the Tribunal considers appropriate.

3. The Tribunal can make one of two decisions in this review. The first is that the building work undertaken by the Contractor was not of a satisfactory standard. The second is that the building work undertaken by the Contractor was of a satisfactory standard. The most favourable decision to Mr Sanders is the reviewable decision before the Tribunal and it is unclear what determination Mr Saunders wants the Tribunal to make.

4. Under section 47 of the QCAT Act a proceeding may be struck out or dismissed if it is lacking in substance.[6] Mr Saunders cannot obtain a more favourable decision from the Tribunal and, in those circumstances, the Tribunal finds the proceeding is lacking in substance and should be dismissed.

   [6]See section 47(1)(b) of the QCAT Act.

Costs

1. Mr Saunders also stated withdrawing his application would prohibit him from making submissions for costs. On 8 April 2022 the Commission responded that Mr Saunders had made no application for costs and there was no basis to override the statutory mandate that each party to a Tribunal proceeding must bear their own costs.[7]

   [7]See section 100 of the QCAT Act.

2. Under section 106 of the QCAT Act, if the Tribunal can award costs those costs can be awarded at any stage of the proceedings or after the proceeding has ended. Notwithstanding the application to review a decision being dismissed, Mr Saunders can file an application for costs if he wishes to do so.