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O'Connell v P J Burns Buildings Pty Ltd[2022] QCAT 155

O'Connell v P J Burns Buildings Pty Ltd[2022] QCAT 155

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

O'Connell & Anor v P J Burns Buildings Pty Ltd & Anor [2022] QCAT 155

PARTIES:

RICKY O'CONNELL AND CAROLYN O'CONNELL

(applicant)

v

P J BURNS BUILDERS PTY LTD

(first respondent)

sta CONSULTING GROUP PTY LTD

(second respondent)

APPLICATION NO:

BDL357-18

MATTER TYPE:

Building matters

DELIVERED ON:

5 April 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

  1. The proceeding initiated by Ricky O'Connell and Carolyn O'Connell being a domestic building dispute matter number BDL358-18 filed in this Tribunal on 13 December 2018 is transferred to the District Court of Queensland at Brisbane.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JURISDICTION – where the first respondent is the builder and the second respondent is an engineering consulting firm – where the applicant homeowners consulted the second respondent regarding building their house – where the second respondent produced a report including the wind categorisation – where the applicants claim the wind categorisation was incorrect – where applicants seek to bring a claim in contract against the first respondent and under the Australian Consumer Law against the second respondent – where it is agreed that the Tribunal does not have jurisdiction under the Australian Consumer Law – whether the complete matter should be transferred to a Court of competent jurisdiction.  

Australian Consumer Law

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52

Alluvion Property Pty Ltd v MPD Developments Pty Ltd [2020] QCAT 73

Henderson & Anor v The Body Corporate for Merrimac Heights [2011] QSC 336

Hicks v Bell Estate Agents & Anor [2021] QCAT 313

M & J Gray Investments PTY Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454

APPEARANCES &
REPRESENTATION:

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]
    PJ Burns Builders Pty Ltd built a house for the Mr and Ms O'Connell. STA Consulting Group Pty Ltd was engaged by PJ Burns to undertake the preparation of engineering drawings for the construction of the house. STA prepared and supplied to PJ Burns a Foundations Design Report outlining the requirements for wind classification, footings and slab design.
  2. [2]
    STA assessed the wind classification as N3 and this classification was the basis for the build. The O'Connells say that the wind classification should have been N4 and the building work is defective. They claim damages from PJ Burns for breach of contract, breach of statutory warranty and breach of duty. They claim damages from STA for breach of its tortious duty of care and damages under sections 236 and 237 of the Australian Consumer Law.
  3. [3]
    On 20 August 2021, the O'Connells filed a miscellaneous application in QCAT seeking the transfer of the whole of these proceedings to the District Court of Queensland under s 52 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  4. [4]
    Submissions were sought from all parties to this application but were received from the O'Connells and STA only. 
  5. [5]
    PJ Burns and STA each denies liability and PJ Burns has filed a counter application against STA.  A previous interlocutory strike out application was refused leading to an amended application filed by the O'Connells which included the Australian Consumer Law claim. 
  6. [6]
    STA has further filed a miscellaneous application in QCAT seeking to strike out or dismiss the amended originating application files by the O'Connells.  This application was amended in submissions saying that STA “no longer presses the for the dismissal of the proceedings; the District Court has jurisdiction to determine the Australian Consumer Law Claim.
  7. [7]
    The issues then raised by STA under this application are:
    1. (i)
      Whether the negligence claim discloses a reasonable cause of action; and
    2. (ii)
      Whether the O'Connells should be allowed to change experts.
  8. [8]
    I will consider the conduct of this amended application after the transfer application as they are interrelated. 

The transfer application

  1. [9]
    It is common ground as submitted by the O'Connells and STA that QCAT has no jurisdiction for claims under the Australian Consumer Law. No submission was received from PJ Burns on this issue. 
  2. [10]
    This submission is accepted.  It is therefore necessary to transfer this part of the application to the District Court for determination.   
  3. [11]
    The question then becomes whether the rest of the matter (the claims against PJ Burns) should also be transferred so that there is one hearing only of all issues. 
  4. [12]
    PJ Burns makes no submissions on the strike out application by STA. This is hardly   surprising, as the current strike out application is now not aimed at it.  However, no submissions were received from PJ Burns on the transfer application.  I can only assume by this silence that PJ Burns is prepared to argue the claims against it in either jurisdiction.
  5. [13]
    STA says:
  • The Tribunal cannot be satisfied that it is appropriate to transfer the proceedings because the application fails to articulate the cause of action in negligence in a way that is harmonious with the Uniform Civil Procedure rules 1999 (Qld) (the “UCPR”), in particular it being contrary to rule 171.
  • Transfer would produce procedural duplication, requiring STA to again apply for strike out in that Court.
  • The statement of claim would have to be repleaded.
  • This approach aligns with the approach the Tribunal took in M & J Gray Investments PTY Ltd v AMP Pacific Fair Pty Ltd & Ors[1] and Alluvion Property Pty Ltd v MPD Developments Pty Ltd.[2]
  1. [14]
    In reply, the O'Connells say:
    • There is an issue as to whether the Tribunal has jurisdiction to hear claims against STA at all as the company is not a registered professional engineer in its own right.  This is cured by transfer to the District court.
    • A multiplicity of proceedings in different jurisdictions arising out of the same underlying facts and issues is therefore to be avoided wherever possible”.[3]
    • The total claim by the O'Connells against PJ Burns and STA is within the jurisdiction of the District Court.
    • The drafting of the O'Connells’ amended application is harmonious with the UCPR in may pleading respects and amendments are allowable under the Rules with costs being borne by the amending party.
    • If the matter is transferred, there is no requirement for or need for this Tribunal to dismiss the negligence claim (which in the O'Connells’ view is properly and sufficiently pleaded).
    • Any strike out claim can by dealt with by the District Court.
    • Neither the PJ Burns nor STA have pleaded an amended response to the O'Connells’ amended application despite Tribunal directions to so do.  In place of this direction, amended pleadings can simply be filed in the District Court. 
    • The O'Connells acknowledge they may be subject to cost implications against any further amendments they make in the District Court.

Discussion

  1. [15]
    I accept that these proceedings involve a degree of complexity both factually and legally and that at least one and potential another of the O'Connells’ claims is outside the jurisdiction of this Tribunal. 
  2. [16]
    His Honour Justice McMurdo J in Henderson & Anor v The Body Corporate for Merrimac Heights[4] states

‘I do not accept that submission of the plaintiffs. The power of the QCAT to transfer a matter to a court exists only where the Tribunal considers that the subject matter of the proceeding (or a part of that proceeding) would be more appropriately dealt with by that court. That could not be the case where the court lacked any jurisdiction to deal with the proceeding. Section 52 does not confer jurisdiction upon other courts or tribunals. Rather, it permits a transfer to a court or tribunal where that entity has jurisdiction to determine the proceeding. This is confirmed by the explanatory note to the Queensland Civil and Administrative Tribunal Bill 2009 (Qld), which said this of what is now s 52:

“This provision does not confer any additional jurisdiction on the courts or other tribunals or entities and cannot be utilised if the tribunal has exclusive jurisdiction for the matter. An example of when it may be more appropriate for a court to hear a matter and for the tribunal to make a transfer order is where a related cause of action is on foot in the court, the issues in dispute in the court and the tribunal matters are intertwined and the tribunal did not have the jurisdiction to make all the orders being sought in the matter.” ’

  1. [17]
    Section 52 of the QCAT Act empowers this Tribunal to refer a proceeding in circumstances where it considers it does not have jurisdiction to hear all matters in the proceeding to a ‘Court of competent jurisdiction’. Both parties appear to agree that this District Court is such a Court on at least one issue. 
  2. [18]
    I cannot see the utility of having the same matter based on the same evidence heard in two different jurisdictions.  Particularly where both factually and legally, the proceedings are complex.  In my view the right jurisdiction is simply the one where all issues can be determined in one hearing and there is control over the proceedings under one set of rules.
  3. [19]
    To echo the explanatory memorandum for this section, in my view it is more appropriate for the District Court to hear this matter because the issues in dispute in are intertwined and the Tribunal does not have the jurisdiction to make all the orders being sought. 
  4. [20]
    I am satisfied it is appropriate to transfer this whole matter to the District Court. 

The strike out application

  1. [21]
    In regard to the strike out application, as this matter is now to be determined in the District Court, it is appropriate, in my view, that if STA wishes to pursue this interlocutory application, it is heard by the District Court after the transfer.  

Footnotes

[1]  [2010] QCAT 454 at [14]-[15].

[2]  [2020] QCAT 73 at [35].

[3] Hicks v Bell Estate Agents & Anor [2021]QCAT 313 at [13].

[4]  [2011] QSC 336 at [113].

Close

Editorial Notes

  • Published Case Name:

    O'Connell & Anor v P J Burns Buildings Pty Ltd & Anor

  • Shortened Case Name:

    O'Connell v P J Burns Buildings Pty Ltd

  • MNC:

    [2022] QCAT 155

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    05 Apr 2022

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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