Tyler v Queensland Building Services Authority

DISTRICT COURT OF QUEENSLAND

CITATION: 

Tyler v Queensland Building Services Authority [2010] QDC
40

PARTIES: 

STUART TYLER
appellant

V

QUEENSLAND BUILDING SERVICES AUTHORITY
respondent

FILE NO/S: 

BD 634/09

DIVISION: 

Civil

PROCEEDING: 

Appeal

ORIGINATING 
COURT: 

District Court, Brisbane

DELIVERED ON: 

25 February 2010

DELIVERED AT: 

Brisbane

HEARING DATE: 

25 January 2010

JUDGE: 

Ryrie DCJ

ORDER: 

1.	Leave to appeal refused
2.	Appellant to pay the respondent’s costs of and incidental to the appeal to be assessed
3.	Case remitted to the Tribunal for hearing in respect of the costs reserved by the Tribunal Member on 6 February 2009

CATCHWORDS: 

APPEAL – INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – where the Tribunal reviewed administrative decision of the Queensland Building Services Authority directing the appellant to rectify and/or complete certain building works – whether the Tribunal Member’s decision involved an error of principle or resulted in a substantial injustice to the appellant

Commercial and Consumer Tribunal Act 2003 (Qld),
ss 100(1), 100(8) & 101
Queensland Building Services Authority Act 1991 (Qld), ss
70, 71, 72 & 86(1)(e)

Adam Peter Brown Male Fashions Pty Ltd v Phillip Morris
Incorporated (1981) 148 CLR 170, applied
Albem Pty Ltd v PKF Qld Pty Ltd [2004] QDC 013, applied
Capable Consulting (Aust) Pty Ltd v Garget [2009] QDC
404, applied
Clements v Flower [2005] QDC 50, applied

COUNSEL: 

Mr R Anderson for the appellant
Mr G I Thomson for the respondent

SOLICITORS: 

Crasso Searles Romano for the appellant
Queensland Building Services Authority for the respondent

Introduction

1. The appellant (‘Mr Tyler’) seeks leave to appeal from a decision of the Commercial and Consumer Tribunal (‘Tribunal’) of 6 February 2009 and, in the appeal proper, an order that the decision made by the Tribunal, set out at paragraph 68 (1) (a),(b),(c) and (g) respectively be set aside. The appellant takes no issue with the correctness of the Tribunal’s decision as it relates to paragraph 68 (1) (d), (e) and (f). In accordance with the usual practice of this court, the application for leave was argued together with the appeal.

2. This matter was originally before the Tribunal as review proceedings pursuant to s.86(1)(e) of the Queensland Building Services Authority Act 1991 (QBSA Act) and s.101 of the Commercial and Consumer Tribunal Act 2003 (CCT Act). Mr Tyler had sought review of an administrative decision of the Queensland Building Services Authority (‘QBSA’) of 11 April 2008 directing him to rectify and/or complete certain building works. That direction was given pursuant to s.72 of the QBSA Act. The Tribunal Member who heard the review application subsequently published his reasons on 6 February 2009.

Leave to Appeal

1. Leave is required to appeal under s 100 of the Commercial and Consumer Tribunal Act 2003, and the appeal can be only on error of law or excess or want of jurisdiction. The test laid down by Wilson DCJ (as he then was) in Clements v Flower [2005] QDC 50, that an appellant must show there is a reasonable prospect…