Schoch v Queensland Building and Construction Commission - [2019] QCAT 172

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Schoch v Queensland Building and Construction Commission [2019] QCAT 172

PARTIES: RICHARD LESLIE SCHOCH

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR248-18; GAR392-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

27 June 2019

HEARING DATE:

3 June 2019

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:
1. Both parties have leave to be legally represented in GAR392-18.

2. The applications by Richard Leslie Schoch for final decisions in his favour under section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) are refused.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant seeks final decisions before a full hearing – whether respondent caused unnecessary disadvantage – whether discretion should be exercised

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 21, s 45, s 48

Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552

Tracey v Olinderidge Pty Ltd & Wagner [2015] QCAT 7

Van Der Westhuizen v Samcol Homes Pty Ltd [2016] QCAT 384

APPEARANCES & REPRESENTATION:

Applicant:

H J Knowlman instructed by The Real Estate Lawyer

Respondent:

S E Seefeld of counsel

REASONS FOR DECISION

Introduction

Mr Schoch is a tiler. QBCC is the building industry regulator.
Mr Schoch has brought two review proceedings in the Tribunal. One (GAR248-18) is to review a decision of QBCC to issue directions to rectify. The other (GAR392-18) is to review a decision of QBCC to approve a scope of works for an insurance claim under the statutory insurance scheme.
QBCC’s decisions were made under the Queensland Building and Construction Act 1991 (Qld) (‘QBCC Act’).
The proceedings arise out of a bathroom tiling job. The quote for the job was $3,750. The owners complained to QBCC of defects in the work. QBCC issued directions to rectify to Mr Schoch under section 72 of the QBCC Act. Mr Schoch carried out rectification works, but QBCC was not satisfied that they were adequate. On internal review, QBCC issued a revised set of directions to rectify. Mr Schoch disputes the revised directions and did not carry them out.
QBCC then decided to have rectification work carried out under the statutory insurance scheme. For this purpose it approved a scope of works. The scope was disputed by Mr Schoch. On internal review, QBCC approved an amended scope of works. The rectification work has since been carried out by a contractor engaged by QBCC at a cost of $17,541.50.
Mr Schoch has applied for external review by the Tribunal of the decision relating to the directions to rectify and the decision relating to the scope of works. Neither review has yet proceeded to a hearing on the merits. The Tribunal has made a direction that both matters are to be heard and determined together.
I am presently deciding applications by Mr Schoch to have final decisions in his favour made in both review proceedings under section 48 of the Queensland Civil and Administrative…

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: [2019] QCAT 172
Decision Date: 27 June 2019

CaseChat Overview and Summary

In the Queensland Civil and Administrative Tribunal, Schoch v Queensland Building and Construction Commission was heard, where the applicant, Richard Leslie Schoch, sought final decisions in his favour before a full hearing. Schoch argued that the respondent, Queensland Building and Construction Commission (QBCC), caused him unnecessary disadvantage by filing material late, thus affecting his ability to prepare for the compulsory conference and potentially settle the matter. Both parties supported a grant of leave for legal representation in the proceeding GAR392-18, which was granted by the Tribunal.

The legal issues that the court needed to decide were whether the respondent caused unnecessary disadvantage to the applicant and whether the discretion under section 48 of the Queensland Civil and Administrative Tribunal Act 2009 should be exercised in Schoch's favour. The court examined the circumstances surrounding the late filing of material by QBCC and its impact on Schoch's preparation for the compulsory conference. The court also considered whether the delay in filing a witness statement by QBCC had persisted beyond the date set by the Tribunal.

The court concluded that, on balance, it was not necessary or appropriate to exercise the section 48 discretion in Schoch's favour. The court found that the late filing of material by QBCC did not significantly impact Schoch's ability to prepare for the compulsory conference or to settle the matter. The court also noted that other purposes of the compulsory conference, such as the identification and clarification of issues and the making of directions, were achieved. The court further found that the delay in filing a witness statement by QBCC should be treated as not having persisted beyond the date set by the Tribunal. Consequently, the applications for final decisions under section 48 were refused.

The final orders of the court were that both parties have leave to be legally represented in GAR392-18 and that the applications by Richard Leslie Schoch for final decisions in his favour under section 48 of the Queensland Civil and Administrative Tribunal Act 2009 were refused.

Orders

Orders of the court

1. Both parties have leave to be legally represented in GAR392-18.

2. The applications by Richard Leslie Schoch for final decisions in his favour under section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) are refused.

Background

Background to the litigation

The Tribunal has previously granted leave for both parties to be legally represented in GAR248-18. However, there does not appear to have been a similar grant of leave in GAR392-18. Both parties support a grant of leave in GAR392-18, and I so I made such a grant at the start of the 3 June 2019 hearing. Background to the section 48 applications for final decisions in Mr Schoch’s favour QBCC has filed a large volume of material in both proceedings, but there is no dispute that some material was filed late. GAR248-18 The Tribunal directed on 26 July 2018 that QBCC was to file, and serve a copy on Mr Schoch of, its material under section 21(2) of the QCAT Act by 30 August 2018. Section 21(2) requires the respondent to a review proceeding to provide to the Tribunal, within 28 days of receiving a copy of the application to review a decision, a statement of reasons for the decision together with the respondent’s documents that may be relevant to the Tribunal’s review. QBCC’s section 21(2) material was filed on 10 September 2018, and (according to Mr Schoch’s lawyers) served on 11 September 2018. Mr Schoch’s lawyers contend that the late receipt of this material put them behind schedule, and meant that they were unable to comply with a direction that had also been made by the Tribunal on 26 July 2018 for Mr Schoch to file his statements of evidence by 27 September 2018. They say they served Mr Schoch’s ‘submissions’ on 10 October 2018. They say that this was so close to the compulsory conference held on 11 October 2018 that any opportunity to settle the matter was effectively lost. QBCC, on the other hand, points out that the compulsory conference proceeded. QBCC submits that while the matter did not settle, other purposes of a compulsory conference – such as the identification and clarification of issues and the making of directions[3] – were achieved.[3]QCAT Act, s 69. Directions were made by the Tribunal at the compulsory conference for Mr Schoch to file and serve all statements of evidence by 14 December 2018 and for QBCC to file and serve all statements of evidence by 1 February 2019. By consent, the deadline for Mr Schoch’s statements was extended by the Tribunal to 21 December 2018. His lawyers filed and served submissions on 21 December 2018. Mr Knowlman says that the affidavits referred to in the submissions were ready and should have been filed and served with the submissions, but due to clerical error (apparently by the instructing solicitor) these were not filed and served until ‘much later’.[4][4]Written submissions for Mr Schoch filed on 1 April 2019, [58]. QBCC has not yet filed statements in response to the 11 October 2018 direction. Mr Seefeld informed me that the only statement that the QBCC wishes to file is one by the QBCC building inspector, Geoffrey Barrett. Mr Seefeld pointed out that a detailed report by Mr Barrett is already in the material filed, and so, in effect, the statement would not contain any substantive new content. I accept that. Mr Seefeld says, and I accept, that QBCC was in a position to file Mr Barrett’s statement by 20 March 2019, but a request by QBCC for an extension of time to file the statement by that date was refused by the Tribunal at a directions hearing on 18 March 2019. That refusal would have been because it was desirable to deal with the applications under section 48 of the QCAT Act before dealing with the question of whether QBCC could file the witness statement. For present purposes, the delay by QBCC in filing a statement from Mr Barrett should be treated as not having persisted beyond 20 March 2019.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On balance, I am not persuaded that it is necessary or appropriate to exercise the section 48 discretion in Mr Schoch’s favour.Conclusion Accordingly, the applications for final decisions under section 48 are refused.

Ratio Decidendi

Legal Principle Established

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