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

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

  1. [1]
    Mr Schoch is a tiler. QBCC is the building industry regulator.
  2. [2]
    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.
  3. [3]
    QBCC’s decisions were made under the Queensland Building and Construction Act 1991 (Qld) (‘QBCC Act’).
  4. [4]
    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.
  5. [5]
    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.
  6. [6]
    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.
  7. [7]
    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 Tribunal Act 2009 (Qld) (‘QCAT Act’). That section permits the Tribunal to make a final decision in a party’s favour in certain situations where that party has been unnecessarily disadvantaged by the actions of the other party. Relevantly, such a decision can be made where unnecessary disadvantage flows from a party not complying with a Tribunal direction without reasonable excuse[1] or from a party not complying with the QCAT Act.[2]
  8. [8]
    Mr Schoch argues that the late filing of material in the proceeding by QBCC has unnecessarily disadvantaged him, and that the Tribunal should make decisions in his favour as a result.
  9. [9]
    The section 48 applications were heard on 3 June 2019. Both parties had filed written submissions in advance of that hearing.

Legal representation

  1. [10]
    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

  1. [11]
    QBCC has filed a large volume of material in both proceedings, but there is no dispute that some material was filed late.

GAR248-18

  1. [12]
    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.
  2. [13]
    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.
  3. [14]
    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.
  4. [15]
    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.
  5. [16]
    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]
  6. [17]
    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.
  7. [18]
    Mr Schoch’s application under section 48 of the QCAT Act was foreshadowed at the directions hearing on 18 March 2019, and filed on 1 April 2019.

GAR392-18

  1. [19]
    GAR392-18 relates to the scope of works to be undertaken under the statutory insurance scheme, by a building contractor selected by QBCC to carry out rectification works. A scope of works has an impact on an original building contractor such as Mr Schoch because QBCC can recover the amount it pays out under the insurance scheme from the original building contractor under section 71 of the QBCC Act.
  2. [20]
    In GAR392-18, QBCC’s material under section 21(2) of the QCAT Act was filed on 7 March 2019. The statement of reasons was served on Mr Schoch on 7 March 2019 while the source documents were served on him on 12 March 2019.
  3. [21]
    On 3 December 2018 the Tribunal had directed that the section 21(2) material was to be filed and served by 7 January 2019. By consent, on 17 December 2018 the Tribunal extended that deadline to 21 January 2019. The material not having been filed by the deadline, on 25 February 2019 Mr Schoch’s lawyers filed an application under section 48 of the QCAT Act. On 27 February 2019, the Tribunal made a direction that if QBCC failed to comply with the earlier direction in relation to its section 21(2) material by 8 March 2019, Mr Schoch ‘may be entitled to a final decision on the application to review a decision filed on 1 November 2018’.
  4. [22]
    Despite the 27 February 2019 direction, it can be seen that QBCC did not completely comply because the documents accompanying the statement of reasons were not served on Mr Schoch until 12 March 2019. Those documents comprised 42 attachments, covering more than 500 pages. However, Mr Seefeld says, and I accept, that 31 of those attachments were also attached to the statement of reasons in GAR248-18.

Shortcomings in the running of Mr Schoch’s case

  1. [23]
    For a full picture, it is also necessary to note that there have been shortcomings in how Mr Schoch’s case has been run. Mr Knowlman puts most of these shortcomings down to unfamiliarity on his part with Tribunal procedure.
  2. [24]
    First, on 25 July 2018 Mr Schoch through his lawyers applied for interim orders which, if granted, would in effect have stayed the two decisions being reviewed. However, section 87A of the QBCC Act precludes the Tribunal from making such stay orders. This meant that QBCC had to devote time to providing submissions in response to a misconceived application.
  3. [25]
    Second, there was the delay in filing and serving the affidavits referred to in the submissions filed by Mr Schoch’s lawyers on 21 December 2018, discussed in paragraph 16 above. I accept that this was due to error on the part of Mr Schoch’s solicitor.  It has not been suggested by QBCC that this delay contributed to its delay in filing Mr Barrett’s statement.
  4. [26]
    Third, Mr Schoch and his lawyers failed to attend the compulsory conference in GAR392-18 on 15 March 2019. They had filed an application on 13 March 2019 seeking a postponement of the compulsory conference because they had only received QBCC’s voluminous section 21(2) material the day before, and sought more time to prepare. No decision was made by the Tribunal in response to that application. QBCC attended the compulsory conference but Mr Schoch and his lawyers did not. As QBCC points out, it would probably be weeks or months before another time for a compulsory conference could be offered by the Tribunal.

Section 48 of the QCAT Act

  1. [27]
    Section 48(1) says:

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
  1. (b)
    not complying with this Act, an enabling Act or the rules; or
  1. (c)
    asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
  1. (d)
    causing an adjournment; or
  1. (e)
    attempting to deceive another party or the tribunal; or
  1. (f)
    vexatiously conducting the proceeding; or
  1. (g)
    failing to attend mediation or the hearing of the proceeding without reasonable excuse.
  1. [28]
    If the Tribunal finds that a respondent has unnecessary disadvantaged an applicant, the Tribunal can make a final decision in the proceeding in the applicant’s favour, order that the respondent be removed from the proceeding, or make a costs order against the respondent to compensate the applicant for any reasonable costs incurred unnecessarily: section 48(2) of the QCAT Act.
  2. [29]
    Section 48(3) says:
  1. (3)
    In acting under subsection (2), the tribunal must have regard to the following—
  1. (a)
    the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures;
  1. (b)
    the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions;
  1. (c)
    whether the party causing the disadvantage is acting deliberately.

Has QBCC acted in a way that unnecessarily disadvantages Mr Schoch?

  1. [30]
    Mr Knowlman submits that there are two main ways in which QBCC has unnecessarily disadvantaged Mr Schoch.

Proceeding with rectification

  1. [31]
    The first way is that QBCC proceeded with rectification works under the insurance scheme while the review proceeding was on foot, when there was no need for urgency, and despite a request from Mr Schoch’s lawyers for access to the site before any alterations were made. This destroyed evidence, and Mr Knowlman argues that QBCC should have at least given Mr Schoch the opportunity to revisit the site with his lawyer and a building expert for the purposes of assessment, measurement and photography. This has deprived Mr Schoch of the opportunity to properly present his case, and has deprived the Tribunal of the opportunity to view the works, Mr Knowlman submits.
  2. [32]
    However, QBCC has pointed out how its statutory scheme permits it to proceed with such works notwithstanding that a review is under way. As I noted earlier, the QBCC Act provides that the Tribunal cannot stay a decision to issue a direction to rectify or a decision about the scope of works for a statutory insurance claim.[5] Further, I note that Mr Schoch was present during the two QBCC inspections, and on the first occasion he was accompanied by his solicitor and the waterproofer, Mr Foster, who had been engaged by Mr Schoch as a subcontractor. The reports prepared by the QBCC inspectors contain numerous photographs. In the circumstances of this case, I consider that there is ample primary evidence available to both Mr Schoch and the Tribunal. I am not persuaded that QBCC has unnecessary disadvantaged Mr Schoch by proceeding with rectification works.

Delay

  1. [33]
    The second way in which Mr Knowlman says that Mr Schoch has been disadvantaged is delay.
  2. [34]
    Mr Knowlman argues that not only did QBCC fail to comply with some of the Tribunal’s directions, it also failed to comply with the QCAT Act. Section 21(2), he points out, requires the respondent to a review proceeding to provide its statement of reasons and documents ‘within a reasonable period of not more than 28 days after the [respondent] is given a copy of the application for the review’. Mr Knowlman submits that in GAR248-18 the 28-day period would have expired on 30 August 2018, but the material was not filed until 10 September 2018. In GAR392-18, Mr Knowlman submits that the 28-day period would have expired on 15 December 2018, but the material was not filed until 7 March 2019. Mr Knowlman also points out that there is no scope for a reasonable excuse for lateness under section 48(1) in respect of a failure to comply with the QCAT Act, as distinct from lateness in complying with a Tribunal direction.
  3. [35]
    I accept that there was a failure by QBCC to comply with section 21(2) of the QCAT Act in GAR248-18.
  4. [36]
    In my view, however, in GAR392-18 the directions made by the Tribunal for the filing of the section 21(2) material by particular dates constituted orders extending time limits as permitted under section 61(1)(b) of the QCAT Act. Accordingly, I am not persuaded that QBCC failed to comply with the QCAT Act in GAR392-18.
  5. [37]
    It is undisputed that QBCC in not meeting filing deadlines failed to comply with some of the Tribunal’s directions.
  6. [38]
    In relation to the late filing of Mr Barrett’s statement, QBCC says:[6]

… This was due to a variety of factors, including ongoing staff and resourcing issues within Respondent’s Legal Services department, previous part-time work arrangements and personal circumstances of the in-house lawyer with carriage of the matters, and intermittent leave and conflicting other Tribunal commitments of the Respondent’s decision-maker, Ms Debbie White, and technical witness, Mr Geoff Barrett … 

  1. [39]
    Mr Knowlman submits that such challenges are routine ones which a large regulatory body such as QBCC should be expected to handle. I accept that submission. I do not consider that QBCC has a reasonable excuse for failing to comply with the relevant direction.
  2. [40]
    QBCC has not advanced any particular excuse for failing to comply with the other deadlines.
  3. [41]
    Mr Knowlman submits that delay has disadvantaged Mr Schoch by causing ‘increased and ongoing costs, worry and stress’.[7] Mr Knowlman submits that Mr Schoch and his family find the proceedings very stressful, and he points to affidavits from Mr Schoch and his wife and daughter discussing the effects of the stress. He emphasises that Mr Schoch is a small trader for whom adverse regulatory decisions are significant.
  4. [42]
    Mr Knowlman referred me to cases where the Tribunal had found unnecessary disadvantage because of delay, but had not engaged in any detailed discussion of the consequences of the delay.[8] Mr Knowlman submits that this is because delay is recognised as inherently disadvantageous.
  5. [43]
    Mr Knowlman also draws attention to section 45 of the QCAT Act:

45 General obligation of parties

Each party to a proceeding must act quickly in any dealing relevant to the proceeding.

Note—

For possible consequences for a contravention of this section, see sections 48 (Dismissing, striking out or deciding if party causing disadvantage) and 102 (Costs against party in interests of justice).

  1. [44]
    It can be seen that Parliament envisaged that where a party fails to be quick, a consequence could be that the proceeding would be terminated early under section 48.
  2. [45]
    Mr Knowlman also draws attention to the requirement imposed by the Queensland Government on its agencies to act as model litigants. Under the relevant guidelines, such a litigant must deal with claims promptly and not cause unnecessary delay.
  3. [46]
    Mr Knowlman also notes that, under section 21(1) of the QCAT Act, the respondent in a review proceeding must use his or her best endeavours to help the Tribunal so that it can makes its decision on the review.
  4. [47]
    Mr Knowlman also submits that I should take into account that QBCC rejected a settlement offer made on behalf of Mr Schoch on 28 March 2019. Mr Knowlman argues that if that offer had been accepted, the matter would have been resolved without the need to incur further significant costs.
  5. [48]
    In response to that last point, Mr Seefeld submits that QBCC is not obliged to accept a settlement offer. I accept that. Further, based on an initial view of the documents, I would by no means treat QBCC’s case as baseless. Accordingly, I do not consider that the rejection of the offer indicates unnecessary disadvantage.
  6. [49]
    In response to other points made by Mr Knowlman, QBCC says there was no correspondence from Mr Schoch’s solicitor querying QBCC’s failure to file its section 21(2) material in GAR392-18 by 21 January 2019. Further, QBCC submits that Mr Schoch has not demonstrated how QBCC’s late filing of material in both cases has protracted the proceedings beyond the protractions caused by the conduct of Mr Schoch’s representatives. Both parties have caused delay, QBCC contends, and the conduct of both parties is relevant in weighing any disadvantage. Further, Mr Schoch has not suffered ‘unnecessary disadvantage’ as distinct from ‘a disadvantage experienced in the usual course of litigation’.[9] Even if there was some disadvantage, QBCC submits, it would be minimal: pending the outcome of the review, no adverse notation appears on Mr Schoch’s licence record and QBCC has suspended any recovery action against Mr Schoch for the cost of rectification.
  7. [50]
    As noted in paragraphs 23 to 26 above, there have been shortcomings in the running of Mr Schoch’s case by his lawyers. However, it is not suggested that these caused the late filing of QBCC’s material. Therefore, in my view, they should be taken into account not at this point of determining whether there has been unnecessary disadvantage, but at the later point of determining whether to exercise the discretion.
  8. [51]
    Overall, I consider that there has been some delay caused to Mr Schoch by the late filing of QBCC material. I accept that the late filing of material in GAR248-18 inevitably slowed down the filing of material by Mr Schoch’s lawyers in response. I consider that a consequence was that the potential for settlement at the compulsory conference would have been impaired to an extent. The lateness in filing of material in both proceedings was of a sufficient magnitude as to be likely to have caused some prolongation of the proceedings. It is not really possible to gauge the impact precisely: the progress of a proceeding can depend on various factors including backlogs, and so the missing of a particular deadline may not have a significant effect in the long run.
  9. [52]
    In a costs context, the Tribunal observed that any disadvantage must be unnecessary ‘as distinct from a disadvantage experienced in the usual course of litigation’.[10] The Tribunal went on to observe that the late filing of material is a disadvantage experienced in the usual course of litigation.[11] In my view, however, that approach treats ‘unnecessary’ as ‘unexceptional’. I have difficulty seeing how missing a deadline, even if usual, could be regarded as necessary. A necessary disadvantage, in contrast, might arise where one party points out a fatal flaw in the other party’s position.
  10. [53]
    In any event, I do not regard the delays by QBCC in the two cases involving Mr Schoch as usual. The matters should be considered together. A direction having been made that the matters would be heard together, a delay in one proceeding will inevitably delay the other. QBCC not only missed deadlines in both proceedings by a considerable margin, but in doing so it failed to fully comply with the direction made on 27 February 2019 which warned explicitly of the consequence that might flow from non-compliance. Such conduct by an experienced party is very unimpressive.
  11. [54]
    There is some emphasis in the QCAT Act on quickness: in the objects in section 3, in section 45 (quoted earlier), and implicit in some of the examples given in section 48(1) (also quoted earlier). In light of this, I consider that delay must ordinarily be regarded as disadvantageous. Delays in legal proceedings are undesirable for a number of reasons. These include the tendency for the quality of evidence to diminish over time, and the fact that uncertainty for parties is usually stressful. Of course there may be exceptions to this usual approach: for example an applicant who has the advantage of a stay order may wish to prolong a proceeding in order to defer a likely loss. However, in the present case, I consider that delay caused to Mr Schoch has been disadvantageous to him. I further find that QBCC’s failure to meet deadlines has unnecessarily disadvantaged Mr Schoch.

The section 48(3) factors

  1. [55]
    QBCC is party to many proceedings in the Tribunal. It is familiar with the Tribunal’s practices and procedures. It is able to understand and act on the Tribunal’s directions. These considerations favour the exercise of the section 48 discretion in Mr Schoch’s favour.
  2. [56]
    Mr Knowlman submits, in effect, that QBCC acted deliberately in failing to meet deadlines in the sense that it chose to devote its resources elsewhere or, if it found itself inadequately resourced, it chose to resist proceedings that it could have settled or withdrawn from. However, I am not persuaded that QBCC acted deliberately in failing to meet deadlines. I consider that to be quite unlikely. This consideration favours the non-exercise of the section 48 discretion in Mr Schoch’s favour.

Should the section 48 discretion be exercised?

  1. [57]
    Mr Knowlman seeks final decisions in Mr Schoch’s favour. In GAR248-18, he seeks a decision to the effect that there be no directions to rectify. In GAR392-18 he seeks a decision that the scope of works is nil.
  2. [58]
    A final decision is, of course, not the only available outcome under section 48(2). The Tribunal can decline to exercise the discretion in Mr Schoch’s favour. Alternatively, it can order that QBCC be removed from the proceeding, or that QBCC pay costs to compensate Mr Schoch for any reasonable costs incurred unnecessarily.
  3. [59]
    Removal of QBCC as a party would not be desirable, in my view. QBCC’s expertise in the relevant legislation would assist the Tribunal in deciding the reviews.
  4. [60]
    Mr Knowlman does not seek a costs order under section 48 (though he has foreshadowed a likely future application under section 102 of the QCAT Act, for example). There may have been some additional costs to Mr Schoch resulting from the delay, but if so these have not been quantified to the Tribunal at this point.
  5. [61]
    So I will confine my attention to the discretion to make final decisions in Mr Schoch’s favour.
  6. [62]
    QBCC cites a passage from a previous Tribunal case concerning an application for a final decision under section 48:[12]

To succeed in an application under section 48 there should be clear and cogent evidence of contemptible or disruptive behaviour by a party aimed at intentionally or recklessly interrupting or preventing the appropriate adjudication on the merits of a matter before the Tribunal. Generally both parties to a dispute have a right to be heard and to present their cases as they see fit without inappropriate interference. It will rarely be the case that that right to be heard is truncated without very clear evidence of a party’s contumelious disregard of their obligations as a party before the Tribunal or the opponent’s right to a fair hearing.

  1. [63]
    While I agree that the discretion should be sparingly exercised, I do not consider that the discretion should be constrained along the strict lines suggested in that passage. Parliament has required the Tribunal to consider whether the party causing the disadvantage has acted deliberately, but it has not made deliberateness a precondition to the exercise of the discretion. In my view, all of the relevant circumstances should be taken into account. It may in some cases be appropriate to exercise the discretion in the absence of intention or recklessness.
  2. [64]
    In the present case, it is hard to know whether to characterise the faults of QBCC as recklessness or indifference. I suspect that QBCC must have prioritised other cases at the expense of Mr Schoch’s.
  3. [65]
    Of course fairness to both parties is also an important consideration: fairness, as much as speed, is one of the objectives of the QCAT Act.[13]
  4. [66]
    In another case,[14] the Tribunal observed that the section 48 discretion should be exercised only where the Tribunal considers that course to be appropriate or necessary. The unnecessary disadvantage must be of sufficient gravity to justify dismissal or a final decision. Factors to be taken into account include the nature and scope of the dispute, whether it is appropriate to determine the matter without an oral hearing, and the merits of the case. The Tribunal said that the section 48 power to make a final decision is akin to a summary judgment power, and cited a High Court case to the effect that a summary judgment should be granted only in the clearest of cases where there is a high degree of certainty about what the outcome would be if the matter proceeded to trial. However, in the context of observing that the merits of a claim must be weighed along with the conduct of the party and the disadvantage caused to the other party, the Tribunal remarked in relation to a dismissal application under section 48 that the claim in question may have significant merit but the party advancing the claim may have been recalcitrant or delinquent in their conduct of the proceeding.
  5. [67]
    In my view, those observations reflect the need to consider all relevant circumstances, without rigid constraints. The observations, considered as a whole, do not preclude the exercise of the section 48 discretion against a party who has caused unnecessary disadvantage even if the merits in the substantive case favour that party.
  6. [68]
    In the present case, both parties argue that they have good substantive cases on the merits. Mr Knowlman contends that QBCC has not identified any Act or mandatory code breached by Mr Schoch. Mr Schoch’s position is that the work was not defective and the scope of works was excessive. Mr Seefeld, in response, submits that QBCC has a sound case establishing defects, and justifying the scope of works, based on the reports of its inspectors.
  7. [69]
    It appears to me from an initial perusal of key documents that both parties have reasonably arguable cases. It is not realistic or necessary in an interim proceeding, where both parties have filed apparently sensible evidence and submissions on the merits, to form a more concluded view. For present purposes, therefore, I regard both parties’ cases as having merit and I would not treat either case as more meritorious.
  8. [70]
    Mr Knowlman submits that I should take into account that final decisions in Mr Schoch’s favour would not harm the homeowners: they have had the benefit of work carried out under the statutory insurance scheme, and it is only QBCC that would be impacted. I accept that this is a relevant factor.
  9. [71]
    Mr Knowlman also submits that the cost – not only to Mr Schoch but to the public – in allowing the proceedings to continue to a hearing on the merits would be quite disproportionate to the amounts at stake.
  10. [72]
    I do not consider that cost is a weighty factor here. The cost to Mr Schoch might be considerable but that is largely the result of his choice to engage legal representation. Many builders in smaller matters before the Tribunal are content to represent themselves, even though QBCC typically has legal representation.
  11. [73]
    So far as costs to the community are concerned, I do give some weight to this factor but not a great deal. The same concern could be raised about reviews in many small-sum matters. However, Parliament has seen fit to allow a mechanism of review regardless of the amount involved. It is relevant to keep in mind that QBCC has a public role as the industry regulator and in protecting the interests of homeowners,[15] so the Tribunal should be reluctant to overturn QBCC decisions on the basis of cost.
  12. [74]
    Mr Seefeld submits that the section 48 discretion to make a final decision should not be exercised because it would abrogate the Tribunal’s responsibility under section 20 of the QCAT Act in a review proceeding to produce the correct and preferable decision and to decide the matter by way of a fresh hearing on the merits.
  13. [75]
    I note that section 48 is contained in a Division of the QCAT Act that is headed ‘Early end to proceeding’.[16]  There is nothing in section 48 which suggests it is not intended to apply in review proceedings. In my view, section 48 permits the making of a final decision at a preliminary stage in a review matter, and section 20 must be viewed as regulating the hearing of review matters that are not ended early for one reason or another.
  14. [76]
    I have taken into account that QBCC is required by the Queensland Government to be a model litigant. However, I do not regard that as highly significant. All parties are expected to meet deadlines or, if for some genuine reason they cannot meet a deadline, to apply in advance for extra time and with a full explanation to the Tribunal and the other party.

Conclusion on whether the discretion should be exercised

  1. [77]
    In my view, the matter is delicately poised. There has been some delay caused to Mr Schoch. This has added to the stress experienced by him and his family, though I also take into account that it is common for parties to experience stress in the course of legal proceedings.
  2. [78]
    Had there been no fault on the part of Mr Schoch and his representatives, I may well have exercised the discretion to make final decisions in his favour. The indifference of QBCC in meeting deadlines in this case is very unimpressive. The conduct could at the very least have resulted in a costs order for any additional costs caused to
    Mr Schoch by the delays, had these been quantified.
  3. [79]
    However, Mr Schoch’s representatives also missed deadlines and made a misconceived interim application. More significantly, Mr Schoch and his representatives failed to attend a compulsory conference in one of the matters. That failure is likely to delay progress substantially as well. It may be that if they had attended, they would have been allowed an adjournment, but that is unknown. The member may well have refused to adjourn on the basis that Mr Schoch and his lawyers were familiar with the dispute, even if they had not had time to fully absorb the late-served material, and that progress could still have been made.
  4. [80]
    While I do not suggest that a party seeking the exercise of the section 48 discretion has to be without blemish, any shortcomings are a relevant consideration.
  5. [81]
    On balance, I am not persuaded that it is necessary or appropriate to exercise the section 48 discretion in Mr Schoch’s favour.

Conclusion

  1. [82]
    Accordingly, the applications for final decisions under section 48 are refused.

Footnotes

[1]  QCAT Act, s 48(1)(a).

[2]  Ibid, s 48(1)(b).

[3]  QCAT Act, s 69.

[4]  Written submissions for Mr Schoch filed on 1 April 2019, [58].

[5]  QBCC Act, s 87A(1).

[6]  QBCC written submissions filed 15 April 2019, [47].

[7]  Written submissions for Mr Schoch filed 1 April 2019, [114].

[8]Gough v State of Queensland [2013] QCAT 320; Robert Genge v Paragon Portfolio Pty Ltd [2011] QCAT 234; Stainton v Footlong Subs Employment Services Pty Ltd [2011] QCAT 186.

[9]  QBCC’s written submissions filed 15 April 2019, [40(i)].

[10]Tracey v Olinderidge Pty Ltd & Wagner [2015] QCAT 7, [16].

[11]  Ibid, [21].

[12]Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552, [15].

[13]  Section 3(b).

[14]Van Der Westhuizen v Samcol Homes Pty Ltd [2016] QCAT 384, [8]-[11].

[15]  QBCC Act, s 3.

[16]  QCAT Act, Chapter 2, Part 5, Division 1.

Close

Editorial Notes

  • Published Case Name:

    Richard Leslie Schoch v Queensland Building and Construction Commission

  • Shortened Case Name:

    Schoch v Queensland Building and Construction Commission

  • MNC:

    [2019] QCAT 172

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    27 Jun 2019

Appeal Status

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

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