Stuart v Queensland Building and Construction Commission - [2017] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

Stuart v Queensland Building and Construction Commission [2017] QCA 115

PARTIES:

ANDREW JOHN STUART
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)

FILE NO/S:

Appeal No 10844 of 2016
QCATA No 316 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2015] QCATA 81

DELIVERED ON:

2 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2017

JUDGES:

Sofronoff P and Morrison JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application refused.

2. No order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – GENERALLY – where the applicant seeks leave to appeal against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal dismissing an application for costs – where ss 149 and 150 of the Queensland Civil and Administrative Tribunal Act 2009 allow appeals against the “final decision” of the Tribunal – whether an order as to costs is a “final decision”

Civil Proceedings Act 2010 (Qld), s 10
District Court of Queensland Act 1967 (Qld), s 118B
Judicial Review Act 1991 (Qld), s 43
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 100, s 102, s 121, s 122, s 125, s 129, s 142, s 149, s 150
Supreme Court of Queensland Act 1991 (Qld), s 64

Chandra v Queensland Building and Construction Commission[2014] QCA 335, distinguished
Goldberg v Morrow [2005] FCA 1038, distinguished
Miller v Lida Build Pty Ltd[2013] QCA 332, explained
Re Skinner’s and Smith’s Application (1982) 45 ALR 553; [1982] FCA 254, distinguished

COUNSEL:

B E Codd, with L W V Judd, for the applicant
G I Thomson, with K McAuliffe-Lake, for the respondent

SOLICITORS:

Murdoch Lawyers for the applicant
Holding Redlich for the respondent

SOFRONOFF P: This is an application for leave to appeal against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal dismissing an application for costs.
The applicant had been a builder engaged pursuant to a written contract with the owners of a house to complete its construction. A dispute arose between the applicant and the owners who then made a complaint to the Queensland Building Services Authority. The owners purported to terminate the contract pursuant to s 90 of the Domestic Buildings Contracts Act 2000; for his part, the applicant purported to suspend the contract. The Authority determined that the owners had validly terminated the contract for the applicant’s default and directed the applicant to perform rectification works. This triggered a potential liability in the applicant to reimburse the Authority for moneys paid by it in respect of the rectification works pursuant to a statutory insurance scheme created by the Queensland Building Services Authority Act 1991.
The applicant sought a review…

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: [2017] QCA 115
Decision Date: 2 June 2017

CaseChat Overview and Summary

The case of Stuart v Queensland Building and Construction Commission involves the applicant, Stuart, appealing against the Appeal Tribunal's decision to dismiss an application for costs. The Appeal Tribunal is part of the Queensland Civil and Administrative Tribunal, and the dispute revolves around the interpretation of sections 149 and 150 of the Queensland Civil and Administrative Tribunal Act 2009, which govern appeals to the Court of Appeal from decisions of the Tribunal. The central legal issue before the court was whether the order dismissing the application for costs constitutes a "final decision" of the Appeal Tribunal, thereby permitting an appeal under section 150 of the Act. The court had to determine if this decision fell within the scope of permissible appeals and if the applicant had the right to appeal based on the statutory provisions.

The Court of Appeal examined the statutory language and found that section 150 of the Act specifies that appeals to the Court of Appeal from decisions of the Appeal Tribunal are limited to three matters: decisions to refuse an application for leave to appeal, cost-amount decisions, and the final decision. The court further clarified that even in these cases, an appeal can only be made on a question of law and with the leave of the Court. The court concluded that the decision dismissing the application for costs is not a "final decision" as defined in the Act. The definition of "final decision" was interpreted to mean the Tribunal’s decision that "finally decides the matters the subject of the proceeding," which, in the context of the Appeal Tribunal, would not include a costs order made when allowing or dismissing an appeal. Consequently, the court found that the applicant did not have the right to appeal the Appeal Tribunal's decision.

In light of the above, the Court of Appeal refused the application for leave to appeal. The court did not grant any order as to costs, thereby concluding that the Appeal Tribunal's decision dismissing the application for costs was not subject to further appeal under the provisions of the Act.

Orders

Orders of the court

1. Application refused.

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Appeals to the Court of Appeal from decisions of the Tribunal are governed by ss 149 and 150. These sections provide as follows:“149 Party may appeal – decisions of tribunal(1)A party to a proceeding (other than an appeal under division 1) may appeal to the Court of Appeal against a cost-amount decision of the tribunal in the proceeding, whether or not a judicial member constituted the tribunal in the proceeding.(2)A party to a proceeding (other than an appeal under division 1) may appeal to the Court of Appeal against another decision of the tribunal in the proceeding if a judicial member constituted the tribunal in the proceeding.(3)However –(a)an appeal under subsection (1) may be made only on a question of law and only if the party has obtained the court’s leave to appeal; and(b)an appeal under subsection (2) on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the court’s leave to appeal.(4)Also, a party to a proceeding can not appeal to the Court of Appeal against a decision of the tribunal under section 35.”“150 Party may appeal – decisions of appeal tribunal(1)A person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.(2)A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal - (a) a cost-amount decision;(b) the final decision.(3)However, an appeal under subsection (1) or (2) may be made-(a) only on a question of law; and(b) only if the party has obtained the court’s leave to appeal.” The present application before the Court is for leave to appeal the decision of the Appeal Tribunal dismissing the applicant’s application for costs of the proceedings in the Queensland Civil and Administrative Tribunal. Section 149 is inapplicable. Section 150 limits appeals to the Court of Appeal to three matters:(a)decisions to refuse an application for leave to appeal to the appeal tribunal;(b)a cost-amount decision; (c)the final decision. Even in such cases an appeal can only be made on a question of law and with the leave of the Court. This is not an application for leave to appeal against a refusal of leave to appeal to the Appeal Tribunal; nor does it concern a cost-amount decision which is defined as a decision of the Tribunal about the amount of costs fixed or assessed under s 107 of the Act. Rather, the applicant submits that the decision of the Appeal Tribunal dismissing the application for costs is “the final decision” of the Appeal Tribunal. The expression “the final decision” is defined in the Act’s Dictionary to mean the Tribunal’s decision that “finally decides the matters the subject of the proceeding”. The natural meaning of this expression when applied to the Appeal Tribunal would not include a costs order made when allowing or dismissing an appeal. A costs decision is an ancillary decision made pursuant to the statutory power to award costs and which is a power conferred by s 102.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Stuart v Queensland Building and Construction Commission [2017] QCA 115
PARTIES:	ANDREW JOHN STUART (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
FILE NO/S:	Appeal No 10844 of 2016 QCATA No 316 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane – [2015] QCATA 81
DELIVERED ON:	2 June 2017
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2017
JUDGES:	Sofronoff P and Morrison JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application refused. 2. No order as to costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – GENERALLY – where the applicant seeks leave to appeal against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal dismissing an application for costs – where ss 149 and 150 of the Queensland Civil and Administrative Tribunal Act 2009 allow appeals against the “final decision” of the Tribunal – whether an order as to costs is a “final decision” Civil Proceedings Act 2010 (Qld), s 10 District Court of Queensland Act 1967 (Qld), s 118B Judicial Review Act 1991 (Qld), s 43 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 100, s 102, s 121, s 122, s 125, s 129, s 142, s 149, s 150 Supreme Court of Queensland Act 1991 (Qld), s 64 Chandra v Queensland Building and Construction Commission[2014] QCA 335, distinguished Goldberg v Morrow [2005] FCA 1038, distinguished Miller v Lida Build Pty Ltd[2013] QCA 332, explained Re Skinner’s and Smith’s Application (1982) 45 ALR 553; [1982] FCA 254, distinguished
COUNSEL:	B E Codd, with L W V Judd, for the applicant G I Thomson, with K McAuliffe-Lake, for the respondent
SOLICITORS:	Murdoch Lawyers for the applicant Holding Redlich for the respondent