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Sensus building group Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 288

Sensus building group Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 288

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Sensus building group Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 288

PARTIES:

Sensus Building Group Pty Ltd

(applicant)

v

Queensland Building and Construction Commission

(respondent)

APPLICATION NO/S:

GAR152-21

MATTER TYPE:

General administrative review matters.

DELIVERED ON:

2 August 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Matthews

ORDERS:

The application filed by the Applicant on 8 September 2022 pursuant to section 48 of the QCAT Act is dismissed.

CATCHWORDS:

Summary Dismissal – section 48 QCAT Act – unnecessary disadvantage 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 32(2), s 48, s 48(2)(b)(i), 102

Queensland Building and Construction Commission Act 1991 (Qld), s 72

Goldfields Projects Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552

Airstrike Industrial Pty Ltd v Robertson and Anor [2014] QCATA 209

Van Der Westhuizen v Samcol Homes Pty Ltd [2016] QCAT 384

APPEARANCES &

REPRESENTATION

This matter was determined and heard on the papers pursuant to s 32 (2) of the Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

  1. [1]
    This is an application filed by the Sensus Building Group Pty Ltd (“Sensus”) pursuant to section 48 of the Queensland Civil Administrative Tribunal Act 2009. (“QCAT”)
  2. [2]
    Both Sensus and the Queensland Building and Construction Commission (QBCC) have provided written submissions which have been considered by the tribunal.
  3. [3]
    Sensus seek from the tribunal a final decision in their favour by way of summary disposal and an order pursuant to s 102 of the QCAT Act for compensation to cover all reasonable costs incurred in their matter.
  4. [4]
    Sensus claim that throughout the course of this matter and those now travelling with this proceeding that the QBCC have been combative, have not followed directions of the tribunal in regard to the filing of materials, and have attempted to deceive the tribunal which has caused Sensus to suffer “unnecessary disadvantage”.
  5. [5]
    Sensus further alleged that the QBCC as the decision maker and industry regulator have failed to achieve a reasonable balance between the interest of the consumer and the contractor when carrying out its functions pursuant to the Queensland Building and Construction Commission Act 1991[1] (QBCC Act).
  6. [6]
    The QBCC oppose the application and assert that the tribunal should not exercise their discretion in determining the proceeding in favour of the applicant, or through the award of costs against them.
  7. [7]
    Section 48(2)(b)(i) of the QCAT Act states that, the tribunal may:
  1. (b)
    if the party causing the disadvantage is not the applicant for the proceeding-
  1. (i)
    makes its final decision in the proceeding in the applicant’s favour; or
  1. (c)
    make an order under s 102, against the party causing the disadvantage, to compensate another party for any reasonable costs incurred unnecessarily.
  1. [8]
    When considering the tribunal’s discretion in determination of s 48 summary disposal, it is important that serious consideration be given to whether or not it is appropriate and necessary to do so in the circumstances.
  2. [9]
    In Goldfield projects, it was relevantly noted that, when considering and determining an application under section 48:

…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 rights to a fair hearing.[2]

Failure to comply with Tribunal directions

  1. [10]
    On the materials before the tribunal, it is evident that on occasions the QBCC have not filed materials in accordance with the directions of the tribunal and it is these failings that Sensus rely upon to support their application for summary dismissal.
  2. [11]
    Following directions issued 14 June 2021, the QBCC was to file and serve its written statement of reasons pursuant to section 21(2) of the QCAT Act by 4pm 9 August 2021. This was not done until 10 August 2021, namely, one day late, and as alleged by Sensus backdated to deceive the tribunal. The QBCC does not deny that the Statement of Reasons were dated 9 August 2021 when filed but was not done so to deceive either the Tribunal and or Sensus.
  3. [12]
    The Tribunal does not consider the length of delay in filing to amount to a disadvantage that was unnecessary, but rather was one that is experienced in the usual course of litigation[3] especially given the voluminous nature of the documents and the long and complex history of the matter, and whilst the Tribunal acknowledges that the QBCC is an industry regulator which requires of them a high degree of care and diligence, the tribunal does not place more onerous conditions on them than is expected of any party before the Tribunal, but for, their role to assist the Tribunal to arrive at the correct and preferable decision.[4]
  4. [13]
    Additionally, the tribunal does not consider the actions of the QBCC in the other matters to be of any relevance in this decision, including those that are finalised and now travelling alongside this matter.
  5. [14]
    The application for summary dismissal pertains to this matter, and not those that travel along side it, and as such the contrary argument brought forward by Sensus that they are all intrinsically linked has been weighted accordingly in this decision including the interrelatedness of the matters.
  6. [15]
    The tribunal acknowledges that whilst there has been delay in filing and having regard to the remarks of Senior Member Brown in the matter of Van Der Westhuizen[5] I am not satisfied on this occasion that non-compliance in these circumstances are grounds for dismissal as the actions of the QBCC were not deliberate.
  7. [16]
    The QBCC provided explanation regarding late filing including the voluminous materials, the requirement to provide 3 copies, and the staff time that was required to do so following receipt of the executed Statement of reasons which amounts to some 1000 pages.

Deceptive conduct

  1. [17]
    Regarding the allegations by Sensus that the QBCC has acted in a way to deceive or attempt to deceive the applicant and or the tribunal, whilst there is cause for consideration, the tribunal is again not satisfied that the actions of QBCC were derelict or done with the intention of deceiving the tribunal or Sensus.
  2. [18]
    There is nothing before the tribunal that confirms that the signing of the SOR on 9 August 2021 and filed on the 10th amounts to deceptive conduct by the QBCC.
  3. [19]
    The QBCC in response to Sensus regarding the allegation that they have also omitted key information and misrepresented key facts, have provided a reply which is accepted by the tribunal.
  4. [20]
    The QBCC provide that the statement of reasons identifies the issues for the QBCC to determine (and the tribunal if standing in the shoes of the QBCC) to determine when considering whether to give a DTR pursuant to section 72 of the QBCC Act and in doing so sets out its finding of facts, and evidence on which the findings were based, and therefore, satisfied its obligations as per s 21 (2) of the QCAT ACT.
  5. [21]
    Given the application to review involves a DTR, the Tribunal considers the Statement of reasons as being suffice, and should Sensus wish to raise further arguments in regard to certain facts, materials, and disputes between the parties than the most appropriate place for that is before the tribunal in a hearing which accords with the position in Goldfield Projects when considering the context of a review of a decision where it is noted that:

…that should be a matter for the tribunal at hearing, not determined in a summary fashion with untested evidence by way of an interlocutory application. A hearing enables both parties to fully present their evidence and test the opponents’ assertions and material. Should the tribunal exercise powers under section 48 of the QCAT Act at this stage that testing, and examination process will be forestalled. That would not be fair[6].

  1. [22]
    The application filed by the applicant on 8 September 2021 pursuant to s 48 of the QCAT Act is dismissed.

Footnotes

[1]  Section 3(a)(ii), Queensland Building and Construction Commission Act 1991 (Qld).

[2] Goldfields Projects Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552 at 15.

[3] Airstrike Industrial Pty Ltd v Robertson & Anor [2014] QCATA 209 at 8.

[4]  Section 21 Queensland Civil and Administrative Tribunal Act 2009.

[5] Van Der Westhuizen v Samcol Homes Pty Ltd [2016] QCAT 384 at 12.

[6] Goldfields Projects Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552.

Close

Editorial Notes

  • Published Case Name:

    Sensus building group Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Sensus building group Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2022] QCAT 288

  • Court:

    QCAT

  • Judge(s):

    Member Matthews

  • Date:

    02 Aug 2022

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
Airstrike Industrial Pty Ltd v Robertson & Anor [2014] QCATA 209
2 citations
Jump To
Cite 1 - [2014] QCATA 209
Cite 2 - [2014] QCATA 209
Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552
3 citations
Jump To
Cite 1 - [2014] QCAT 552
Cite 2 - [2014] QCAT 552
Cite 3 - [2014] QCAT 552
Van Der Westhuizen v Samcol Homes Pty Ltd [2016] QCAT 384
2 citations
Jump To
Cite 1 - [2016] QCAT 384
Cite 2 - [2016] QCAT 384

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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