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The Original Decking Company (QLD) Pty. Ltd. v Queensland Building and Construction Commission QCAT 326
The Original Decking Company (QLD) Pty Ltd v Queensland Building and Construction Commission  QCAT 326
The Original Decking Company (QLD) Pty Ltd
Queensland Building and Construction Commission
General administrative review matters
On the papers
13 September 2016
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – OTHER MATTERS - where applicant applied to the Tribunal for a direction that an expert conclave be held – where the respondent objected to the application – where proceeding is in the Tribunal’s review jurisdiction – where reviewable decision is a decision to give a direction to rectify
Queensland Building and Construction Act 1991 (Qld) ss 72, 86(1)(e)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17, 19, 20, 24
Uniform Civil Procedure Rules 1999 (Qld) r 428
Fortson Pty Ltd v Commonwealth Bank of Australia & Anor  SASC 49
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- The Queensland Building and Construction Commission (‘the Commission’) gave The Original Decking Company (QLD) Pty Ltd (‘Original Decking’) a direction to rectify relating to building work carried out at 112 Barden Ridge Road, Reedy Creek namely, the construction of a deck. The terms of the direction to rectify given on 5 November 2015 were:
- The timber deck installed at the rear of the building is structurally unstable and unable to resist the actions to which it may reasonably be subjected in that the footings and framing have been installed without adherence to the Structural Engineer’s design viz:
- The footing excavations were excavated to insufficient depths and remains in uncontrolled fill.
- The footings have been cast without reinforcing to all footings.
- The tops of the footings were cast without gradient to prevent water ponding against the steel post.
- Two strip footings F1 were completely omitted and not installed.
- Inferior grade Duragal steel posts were installed, instead of H3 treated hardwood as per the design.
is causing Foundation and Frame failure which is adversely affecting the structural adequacy and serviceability of the deck and therefore causing a danger to the occupants of the building.
- The tie down to the deck framing does not comply with AS1684.2 Timber framing in that the vertical leg of the triple grip fixing between the main bearer and the joist has not been fastened with nails into the main bearer is therefore adversely affecting the structural integrity of the timber deck at the rear of the building.
- On 2 December 2015, Original Decking applied to the Tribunal to review the decision of the Commission to give it a direction to rectify.
The Tribunal’s review jurisdiction
- Part 1 Division 3 of the QCAT Act sets out the provisions relevant to the Tribunal’s review jurisdiction. Section 17(1) of the QCAT Act provides that the Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made under that Act. In this case, the enabling Act is the Queensland Building and Construction Commission Act 1991 (‘the QBCC Act’).
- A decision to give a direction to rectify or remedy is a reviewable decision.In exercising its review jurisdiction, the Tribunal must decide the review in accordance with the QCAT Act and the QBCC Act and, may perform the functions conferred on the Tribunal by the QCAT Act or the QBCC Act. Further, the Tribunal has all the functions of the decision maker for the reviewable decision being reviewed. It must produce the correct and preferable decision following a fresh hearing on the merits.
- The orders the Tribunal can make in a review are essentially to:
- Confirm or amend the decision;
- Set aside the decision and substitute its own decision;
- Set aside the decision and return the matter for reconsideration to the decision-maker for the decision with the directions the tribunal considers appropriate.
The power to give a direction to rectify
- Section 72 of the QBCC Act provides the power to require rectification of building work and remediation of consequential damage. The Commission may direct the person who carried out the building work that is defective to rectify the building work within a period stated in the direction.
- In deciding whether to give the direction, the Commission may take into consideration all the circumstances it considers are reasonably relevant and is not limited to a consideration of the terms of the contract for carrying out the building work. In its application for review, Original Decking says the Commission failed to take into account the following circumstances:
- The terms of the contract between the applicant and the home owner;
- The variation of those terms;
- The intervention of third parties which caused interference to the building works;
- The sufficiency of the footings and the work as constructed;
- The terms of an agreement made between the owner and the Applicant for the resolution of the issues as between them (the resolution agreement);
- The conduct of Original Decking which was consistent with and pursuant to the resolution agreement.
- Section 72(5) of the QBCC Act provides the Commission is not required to give the direction if the commission is satisfied that in the circumstances it would be unfair to the person to give the direction. Original Decking says that in the circumstances it was unfair for the Commission to give it the direction to rectify.
Original Decking’s application for directions
- By application filed 14 July 2016, Original Decking sought directions that an expert conclave be conducted. Original Decking says the experts who should attend the conclave are Mr Steve Belyea of SRB Engineering and Mr John Van de Hoef of NJA Engineering.
- Original Decking seeks to rely upon documents prepared by Mr Belyea. SRB Engineering was responsible for the engineering design of the deck. Mr Belyea has prepared a “briefing report” dated 25 May 2016.
- The Commission obtained a report from NJA Engineering. Mr Van de Hoef has provided a statement dated 29 March 2016, which annexes his curriculum vitae and his report. The Commission objects to the conclave taking place.
- QCAT Practice Direction No. 4 of 2009 relates to expert evidence. The Practice Direction states that it applies whenever a party proposes to call expert evidence in any proceeding unless the Tribunal orders otherwise.
- It also sets out that an expert owes a duty to assist the Tribunal, which overrides any obligation to any party to this proceeding or any person who is liable for their fee or expenses. The expert’s role is to assist and advise the Tribunal on issues in dispute within the expert’s area of expertise. A person must not give, and an expert must not accept, instructions to adopt or reject a particular opinion in relation to an issue in dispute in a proceeding. Expert evidence is based on written reports. Each expert must prepare a written statement of their evidence. If experts have taken part in a conclave, the joint report is taken to be their statement of evidence.
- The Tribunal has been referred to the judgment of the Full Court of the Supreme Court of South Australia in Fortson Pty Ltd v Commonwealth Bank of Australia & Anor. In particular at  the court said:
"Neither Rule 38 nor Practice Direction 46A expressly state that an expert who has a relationship with a party, other than that of being retained as an expert is required to disclose that fact. However, expert evidence should be entirely objective and dispassionate. The expert should not have an interest of any kind in the litigation. The expert should be independent, that is to say, the expert should not have any kind of relationship with the party by whom the expert is called. The expert’s evidence should be prepared by that expert independently or uninfluenced by that party."
- The Tribunal accepts that the independence and impartiality of an expert is fundamental to the expert’s ability to fulfil their duty to assist the Tribunal which must override any obligation to any party to the proceeding or any person who is liable for their fee or expenses.
- According to his curriculum vitae, Mr Van de Hoef is a structural engineer with experience in investigative and forensic engineering. In his statement, he has verified his understanding of the Tribunal’s Practice Direction and stated that he has received no instructions to adopt, or reject any opinion in preparing his report. His statement of evidence looks to comply with the Uniform Civil Procedure Rules rule 428.
- Mr Van de Hoef’s report contains a list of the documents he considered in preparing his report which includes the design documentation of SRB Engineering and other documents written by SRB prior to the giving of the direction to rectify. Prior to the reviewable decision being made, correspondence passed between Mr Belyea and the homeowner, Mr Belyea and Original Decking, and Mr Belyea and the Commission. There is no suggestion that Mr Van de Hoef has any interest in the proceedings. The Tribunal notes that Mr Van de Hoef’s report concludes that a portion of the subsidence of the timber deck at the property is related to the engineering specifications prepared by Mr Belyea.
- Mr Belyea has been professionally involved in the events leading to the reviewable decision being made. His engineering specifications for the building work have been criticised by Mr Van de Hoef.
- Mr Belyea’s report of 25 May 2016 is highly critical of Mr Van de Hoef’s report. Its focus is to present an alternative method of rectifying any structural deficiencies in the deck and otherwise challenge Mr Van de Hoef’s report. His report does not refer to the Practice Direction nor does it comply with rule 428 of the Uniform Civil Procedure Rules. Mr Belyea takes issues with some of the facts relied upon by Mr Van de Hoef in preparation of his report and is critical of his level of expertise, and Mr Van de Hoef’s criticism of his engineering design.
- In the Tribunal’s view, Mr Belyea’s report seeks, in part, to defend his design and his professional reputation. The Tribunal considers that Mr Belyea lacks the requisite degree of independence and impartiality in relation to any issues connected with the original engineering specifications for the deck for a productive expert conclave to occur in relation to any such matters.
- Original Decking says that an expert conclave is required so that the experts can consider the following:
- The difference between lateral movement and vertical movement;
- The causes of any movement;
- Provide a clear account as to the schedule of works to be undertaken by Original Decking Company to give a clear account as to the ambient site conditions as they are now;
- To give a clear account as to the homeowners’ responsibilities and liabilities and to give a clear account as to the interference or damage caused by any third parties;
- An agreeable scope of works for the Original Decking to return to the site under engineering supervision which must be linked back to the specific, identified, point in time;
- A voluntary withdrawal of the direction to rectify by the Commission; and
- An allocation of responsibility to other parties for their scope of works and acknowledgment of the damage they caused to the construction either prior to the site meeting or since.
- The Tribunal has considered whether any of those matters could be appropriately considered at an expert conclave.
- In the event that the Tribunal confirmed the reviewable decision, it would not go on to determine the scope of works for the rectification work. It is confined to conducting a review of the decision to give the direction to rectify. Therefore, the conclave could not determine “an agreeable scope of works for Original Decking to return to the site under engineering supervision…”
- The Tribunal agrees with the submissions of the Commission that the expert conclave cannot:
- Resolve factual issues such as the schedule of the works undertaken by Original Decking at the property;
- Resolve the homeowners’ responsibilities and liabilities in relation to the work carried out at the property.
- Those are not matters for expert evidence. The only persons who attend an expert conclave are the experts themselves and a Member of the Tribunal to facilitate the conclave. It is not the case that an expert conclave can make findings of fact that bind the Tribunal ultimately conducting the review. Original Decking may take issue with some of the facts relied upon by Mr Van de Hoef in forming his opinions. If it does, then it may call the appropriate witness to give evidence relevant to any facts that are in dispute. However, it is for the Tribunal to make findings of fact based on the evidence presented at the hearing.
- The parties do not attend an expert conclave. The experts are not representatives of the parties. An expert conclave is not a compulsory conference. The outcome of an expert conclave is a joint report of the experts. The experts could not consider at a conclave “the Commission’s voluntary withdrawal of the direction to rectify”.
- The Tribunal has given consideration to whether an expert conclave should be conducted to consider the following:
- An allocation of responsibility to other parties for their scope of works and acknowledgment of the damage they caused to the construction either prior to the site meeting or since;
- give a clear account as to the interference or damage caused by any third parties; and
- acknowledgment of the damage they caused to the construction either prior to the site meeting or since.
- Both reports refer to the work of third parties at the site. The report of Mr Belyea, while referring to what he considers the unsatisfactory work of other contractors at particular points in time, does not offer any opinion as to any ‘allocation of responsibility’. In those circumstances, it is not an appropriate matter for an expert conclave.
- The Tribunal does not consider that it is for an expert conclave to determine “a clear account as to the interference or damage caused by any third parties”. Such matters will be for the Tribunal to determine.
- The Tribunal has given consideration to whether an expert conclave should be conducted with the issues for the conclave being restricted to:
- The difference between lateral movement and vertical movement; and
- The causes of any movement.
- The Tribunal does not consider that an expert conclave limited to just those issues is worthwhile. Further, a discussion of those issues as they pertain to the subject site and the relevant building work is inter-related with the engineering specifications produced by Mr Belyea. The Tribunal has already expressed its views regarding his ability to be impartial and objective in relation to matters relating to the engineering specifications he produced. Therefore, the Tribunal does not consider that an expert conclave is the appropriate forum for such matters to be considered. Those matters can be the subject of evidence given at the hearing.
- The Commission does not argue that Mr Belyea’s evidence is inadmissible. It will be a matter for the Tribunal conducting the review to consider what evidence should be admitted. However, at the current time, it appears open for Original Decking to call Mr Belyea to give evidence relevant to the issues for determination by the Tribunal.
- For those reasons, the Tribunal concludes that an expert conclave is not required or warranted. Original Decking’s application to schedule an expert conclave is dismissed.
- The proceeding is currently listed for hearing on 22 and 23 November 2016. The Tribunal directs that the proceeding be listed for a directions hearing at Brisbane on 22 September 2016 at 2:30 pm. The purpose of the directions hearing will be to ensure that the proceeding is ready for hearing and to consider whether any further directions might assist the efficient conduct of the review hearing. For example, it may be that the parties could jointly prepare a statement of agreed facts.
QBCC Act s 86(1)(e).
QCAT Act s 19.
QCAT Act s 20.
QBCC Act s 72(2).
QBCC Act s 72(3).
 SASC 49 at .
Statement of John Van de Hoef  to .
Report pp. 10, 12, 13, 14, 15.
Statement of John Van De Hoef filed 29 March 2016 Annexure JVDH-2 at pages 21 and 22.
The Tribunal observes that in appropriate cases, parties may come to an agreement on certain facts and the Tribunal can consider their statement of agreed facts.
- Published Case Name:
The Original Decking Company (QLD) Pty. Ltd. v Queensland Building and Construction Commission
- Shortened Case Name:
The Original Decking Company (QLD) Pty. Ltd. v Queensland Building and Construction Commission
 QCAT 326
13 Sep 2016