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Arabin v Queensland Building and Construction Commission[2018] QCAT 188

Arabin v Queensland Building and Construction Commission[2018] QCAT 188

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Arabin v Queensland Building and Construction Commission [2018] QCAT 188

PARTIES:

PETER ARABIN

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR037-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

22 June 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The application for miscellaneous matters filed on 26 April 2018 is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – GENERALLY – whether applicant seeking determination of a preliminary issue or summary disposal of the proceedings

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 47, s 48

A L Builders Pty Ltd v Fatseas & Anor [2014] QCATA 171

Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495

REPRESENTATION:

 

Applicant:

Construct Law Group

Respondent:

Self-represented

APPEARANCES:

 

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. [1]
    On 19 January 2018, Mr Arabin lodged an application to review a decision of the Queensland Building and Construction Commission (the ‘QBCC’) made on 22 December 2017.
  2. [2]
    The orders sought by Mr Arabin were set out in Annexure A to the application to review a decision as follows:
  1. (a)
    The Second Internal Review Decision dated 22 December 2017 about the scope of works to be undertaken under the statutory insurance scheme to rectify be set aside.
  2. (b)
    The Commission pay the Applicant’s costs of and incidental to the proceedings.
  1. [3]
    On 26 April 2018, Mr Arabin lodged an application for miscellaneous matters with the Tribunal.
  2. [4]
    The directions sought in the application for miscellaneous matters are as follows:
  1. 1.
    The decision of the QBCC dated 22 December 2017 to issue a scope of work in relation to residential construction work performed by the applicant at the Property is to be set aside and:
  1. (a)
    substituted with a decision not to issue a scope of work; or
  2. (b)
    the matter is to be returned to the QBCC for reconsideration of whether a scope of work is to be issued in circumstances where the Police of Insurance expired.
  1. 2.
    If the Applicant is successful on this application, the Applicant seeks to be heard on the issue of costs.
  1. [5]
    The application for miscellaneous matters was accompanied by submissions entitled ‘Applicant’s Submissions in Support of Application to Determine Preliminary Issue’.
  2. [6]
    The powers of the Tribunal in exercising its review jurisdiction are set out in s 24 of the Queensland Civil and Administrative Act 2009 (Qld) (‘the QCAT Act’) as follows:

Functions for review jurisdiction

  1. (1)
    In a proceeding for a review of a reviewable decision, the tribunal may—
  1. (a)
    confirm or amend the decision; or
  2. (b)
    set aside the decision and substitute its own decision; or
  3. (c)
    set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
  1. [7]
    The factors to be considered in determining whether to decide a preliminary issue prior to a substantive hearing were considered by the Tribunal in cases such as A L Builders Pty Ltd v Fatseas & Anor.[1] In that case, the applicant identified three questions which it wanted the Tribunal to determine prior to a substantive hearing. However, in the present case, the application for miscellaneous matters seeks final orders under s 24(1)(b) or (c) of the QCAT Act which are substantially the same as those sought in the application for review. Despite the title to his submissions, it is apparent to me that Mr Arabin is not seeking the determination of a preliminary issue. Rather, he is seeking a summary disposal of the proceedings.
  2. [8]
    Provisions relating to the early end to proceedings are contained in Part 5, Division 1 of the QCAT Act. Sections 47 and 48 relevantly provide:

47 Dismissing, striking out or deciding if unjustified proceeding or part

  1. (1)
    This section applies if the tribunal considers a proceeding or a part of a proceeding is—
  1. (a)
    frivolous, vexatious or misconceived; or
  2. (b)
    lacking in substance; or
  3. (c)
    otherwise an abuse of process.
  1. (2)
    The tribunal may—
  1. (a)
    if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
  2. (b)
    for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding—
  1. (i)
    make its final decision in the proceeding in the applicant’s favour; or
  2. (ii)
    order that the party who brought the part before the tribunal be removed from the proceeding; or
  1. (c)
    make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.

…

48 Dismissing, striking out or deciding if party causing disadvantage

  1. (1)
    This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
  1. (a)
    not complying with a tribunal order or direction without reasonable excuse; or
  2. (b)
    not complying with this Act, an enabling Act or the rules; or
  3. (c)
    asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
  4. (d)
    causing an adjournment; or
  5. (e)
    attempting to deceive another party or the tribunal; or
  6. (f)
    vexatiously conducting the proceeding; or
  7. (g)
    failing to attend mediation or the hearing of the proceeding without reasonable excuse.
  1. (2)
    The tribunal may—
  1. (a)
    if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out; or
  2. (b)
    if the party causing the disadvantage is not the applicant for the proceeding—
  1. (i)
    make its final decision in the proceeding in the applicant’s favour; or
  2. (ii)
    order that the party causing the disadvantage be removed from the proceeding; or
  1. (c)
    make an order under section 102, against the party causing the disadvantage, to compensate another party for any reasonable costs incurred unnecessarily.
  1. [9]
    The QBCC has brought no part of the proceedings, and therefore there is no basis to make a final decision under s 47. There is no evidence before me to suggest that the QBCC has engaged in any of the conduct of the kind mentioned in s 48(1), and therefore there is also no basis to make a final decision under s 48. In any event,
    Mr Arabin has not sought to rely on either of these provisions.
  2. [10]
    There are no other relevant powers to summarily dispose of a proceeding brought in the Tribunal’s review jurisdiction. Accordingly, the appropriate order is that the application for miscellaneous matters filed on 26 April 2018 is dismissed.

Footnotes

[1][2014] QCATA 171. See also Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495.

Close

Editorial Notes

  • Published Case Name:

    Peter Arabin v Queensland Building and Construction Commission

  • Shortened Case Name:

    Arabin v Queensland Building and Construction Commission

  • MNC:

    [2018] QCAT 188

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    22 Jun 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
A L Builders Pty Ltd v Fatseas & Anor [2014] QCATA 171
2 citations
Jump To
Cite 1 - [2014] QCATA 171
Cite 2 - [2014] QCATA 171
Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
2 citations
Jump To
Cite 1 - (1999) 217 ALR 495
Cite 2 - (1999) 217 ALR 495

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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