Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2023
  4. Carter v Queensland Building and Construction Commission - [2023] QCAT 278

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Carter v Queensland Building and Construction Commission[2023] QCAT 278

Carter v Queensland Building and Construction Commission[2023] QCAT 278

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Carter v Queensland Building and Construction Commission & Ors [2023] QCAT 278

PARTIES:

LOUISA CARTER

(applicant)

v

QUEEnsland building and construction commission

maxcon constructions pty ltd

body corporate for the johnson cts 49098

body corporate for the johnson apartments cts 49099

(respondents)

APPLICATION NO:

GAR259-19

MATTER TYPE:

Building matters

DELIVERED ON:

26 June 2023

HEARING DATE:

16 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

  1. The second respondent’s application filed 6 January 2023 for a stay of the proceeding is dismissed.
  2. The second respondent’s application filed 10 January 2023 for an extension of the time to comply with order 1 of the orders made by the Tribunal on 14 November 2022 is granted.  The second respondent comply with the order by 4.00pm on 15 August 2023.
  3. The proceeding be fixed for hearing for four days commencing on the next available hearing date after 15 August 2023.
  4. The proceeding be listed for a directions hearing by telephone after 15 August 2023 and not less than fourteen days before the date fixed for the hearing of the proceeding.  The purpose of the directions hearing is for the Tribunal to confirm with the parties:
  1. (a)
    the material they have filed and on which they intend to rely at the hearing;
  2. (b)
    the precise issues to be determined at the hearing;
  3. (c)
    the witnesses, if any, they require for cross-examination;
  4. (d)
    whether it is proposed the witnesses will be giving evidence in person or by remote means (specifying the mode of attendance);
  5. (e)
    any limitations on the time of availability of witness; and
  6. (f)
    any other issue necessary to ensure the proceeding is ready for hearing.
  1. This order be served on the parties by email.

CATCHWORDS:

APPLICATION FOR STAY – where one respondent commenced a proceeding in the Supreme Court of Queensland against another respondent nearly four years after commencement of the Tribunal proceeding – power to grant stay – considerations for the grant of a temporary stay – whether public interest or interests of justice favours grant of stay – whether claim sufficiently particularized.

Body Corporate and Community Management Act 1997 (Qld)

Queensland Building and Construction Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(3), 58(1)

Chief Executive of the Department of Justice and Attorney-General v Kollosche & Anor [2015] QCAT 145

JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2011] QCAT 60

Stirling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

First respondent:

Ms Nean, Queensland Building and Construction Commission

Second respondent:

Mr Kidston, instructed by Diakou Faigen

Third and fourth respondents:

Mr Robinson of Robinson Locke

REASONS FOR DECISION

Introduction

  1. [1]
    On 2 July 2019 the applicant, Dr Louisa Carter, made application to the Tribunal for a review of two decisions of the first respondent, Queensland Building and Construction Commission (QBCC).  The first decision, given on 10 May 2018, directed the second respondent, Maxcon Constructions Pty Ltd (Maxcon), to rectify work in accordance with the direction to rectify work and/or complete work number 0103379 given under the Queensland Building and Construction Act 1991 (QBCC Act) in respect of the premises at unit 1510, 477 Boundary Street, Spring Hill (Dr Carter’s unit and her unit).
  2. [2]
    The second decision, given on 14 June 2018, was to the effect Maxcon had complied with the first decision.
  3. [3]
    On 3 January 2020 the Tribunal directed that Maxcon and the third respondent, Body Corporate for the Johnson CTS 49098 (Principal Body Corporate), be joined as second and third respondents to the proceeding.
  4. [4]
    On 8 October 2020 Body Corporate for the Johnson Apartments CTS49099 (Subsidiary Body Corporate) was joined as fourth respondent to the proceeding.

Background.

  1. [5]
    Dr Carter is the owner of her unit.  Maxcon is the builder of the building in which Dr Carter’s unit is located.  The building is known “The Johnson”.
  2. [6]
    The Principal Body Corporate and Subsidiary Body Corporate (together, Bodies Corporate) are the bodies corporate for The Johnson.
  3. [7]
    Dr Carter complained about water entering her unit on 21 February 2018.  She asked that QBCC give a direction to Maxcon to rectify building work she considers is defective or incomplete.
  4. [8]
    On 10 May 2018 QBCC decided Maxcon is responsible “… in that the installation of the rain water drainage system at the top units were not installed in accordance with the relevant Australian Standards and or the BCA FF1.2 and 3.5.2 (gutters and downpipes) resulting in water being directed to the units below and caused extensive damage to the adjacent building elements including the carpets …” (first decision).
  5. [9]
    On 11 June 2018 QBCC reinspected Dr Carter’s unit and, on 14 June 2018, decided Maxcon had complied with the direction to rectify it having, amongst other things, “… installed roofing tray flashing and spreaders to the drainage system to the lower roof …” (second decision).
  6. [10]
    On 2 July 2019 Dr Carter applied to the Tribunal for a review of the first and second decisions (Tribunal proceeding).
  7. [11]
    Progressing the Tribunal proceeding has been delayed for several years, in part because of Maxcon’s disregard of directions given by the Tribunal.  On 12 May 2022 the Tribunal afforded it a final opportunity to file material.  It sought an extension of the time to do so.  Despite the extension being granted, it did not file any material.  The Tribunal proceeding was fixed for hearing for four days, commencing on 30 January 2023.  The dates, on 3 January 2023, were vacated, and that the Tribunal gave directions for the filing of any interlocutory application for the future conduct of the Tribunal proceeding.

Applications

  1. [12]
    There are five applications before the Tribunal:
  1. (a)
    an application by Maxcon filed 29 November 2022 for the following directions:
  1. The proceeding be referred to and listed for a compulsory conference before any hearing of the matter.
  2. The compulsory conference be held in person at the relevant property at The Johnson, 477 Boundary Street, Spring Hill, Queensland 4000.
  3. The compulsory conference be held in the presence of each of the parties’ experts who will be required to have an experts’ conclave as soon as practicable after the compulsory conference to attempt to agree a resolution of the matter.
  4. The decision/orders of the Tribunal made 14 November 2022 be vacated.
  5. The hearing scheduled for 30 and 31 January 2023 and 1 and 2 February 2023 be vacated.
  6. In the alternative to 4 above:
  1. (a)
    the time and date for compliance with orders 1 and 3 be extended to a date to be fixed after the compulsory conference/experts’ conclave;
  2. (b)
    the time and date for attendance to give evidence referred to in orders 2 and 3 be extended to a date to be fixed after the compulsory conference/experts’ conclave.
  1. In the alternative to 5 above, the hearing scheduled for 30 and 31 January 2023 and 1 and 2 February 2023 be adjourned to a date after the compulsory conference/experts’ conclave.

The reasons for the application are in the following terms:

  1. [Maxcon] wrote to the parties on 12 September 2022 providing them with a without prejudice proposal for Maxcon to carry out certain works to the roof drainage system the subject of this proceeding, at its cost, which Maxcon and its hydraulic consulting engineer believe will satisfy all of the parties’ concerns outlined in their respective reports filed with the Tribunal in this matter and result in a fully compliant roof drainage system (proposal).
  2. On 17 November 2022 (after the Tribunal made the orders above on 14 November 2022) the solicitors for the [Bodies Corporate] sent a letter to the solicitors for Maxcon, in essence agreeing to the proposal subject to certain clarifications; a copy of which is attached.  Maxcon is of the strong view that those clarifications which are only minor, can be provided to satisfy the [Bodies Corporate] to achieve a resolution of the matter.
  3. The proposal does not directly or adversely affect the [QBCC] and if accepted, would lead to a favourable outcome for the benefit of all the residents including [Dr Carter] and the [Bodies Corporate] and if that can be achieved, the QBCC should fully support the resolution rather than standing in its way.
  4. The proposal if accepted by the parties and their experts would provide a full and final resolution to the proceeding without the parties being required to incur further costs and inconvenience including legal costs (resolution).
  5. The resolution would provide a better and more certain outcome to the parties than proceeding to a 4-day hearing of the matter simply to review a decision made by QBCC the outcome of which is not guaranteed to fix the roof drainage system the subject of this proceeding.

The application has been overtaken by events and may be put to one side.

  1. (b)
    an application by QBCC filed 22 December 2022 for a directions hearing.  The application, once again, has been overtaken by events and may be put to one side.
  2. (c)
    an application by Maxcon filed 6 January 2023 for a stay of the Tribunal proceeding “… pending final determination, including all appeals, of Supreme Court Proceeding No. BS10826/22 ...”;
  3. (d)
    an application by Maxcon filed 10 January 2023 for an extension of the time for compliance with the directions given by the Tribunal on 14 November 2022; and
  4. (e)
    an application by Dr Carter filed 24 January 2023 for leave to appear on 30 January 2023 and all future hearings of the review proceeding by telephone.  The application was granted in respect of the hearings on 30 January 2023 and 16 February 2023.

Hearing on 30 January 2023

  1. [13]
    On 30 January 2023 the Tribunal directed as follows:
  1. [Dr Carter] have leave to attend the hearing of the proceeding today and on 16 February 2023 by telephone.
  2. [Maxcon] file and serve on the other parties by email any submissions in support of its applications filed 6 and 10 January 2023 and any documents on which it intends to rely, by:

4:00pm on 06 February 2023

  1. The other parties file and serve by email any submissions in reply to [Maxcon’s] submissions and documents on which they intend to rely, by:

4:00pm on 13 February 2023

  1. In default of compliance with order 2, [Maxcon’s] applications filed 6 and 10 January 2023 be dismissed.
  2. [Maxcon’s] applications filed 6 and 10 January 2023 are adjourned to 16 February 2023 for a half-day hearing at 1.30pm.

Material

  1. [14]
    The parties filed extensive material, both before and following the hearing on 30 January 2023.  The material includes:

Dr Carter

  1. (a)
    a letter addressed to the Tribunal and dated 9 January 2023;
  1. (a)
    a letter addressed to the Tribunal and dated 27 January 2023; and
  2. (b)
    a letter addressed to the Tribunal and dated 13 February 2023.

QBCC

  1. (a)
    submissions filed 22 January 2023;
  2. (b)
    submissions filed 27 January 2023; and
  3. (c)
    submissions filed 14 February 2023.

Maxcon

  1. (a)
    claim and statement of claim in proceeding number 1082 of 2022 commenced by the Principal Body Corporate in the Supreme Court of Queensland against Maxcon (Supreme Court proceeding);
  2. (b)
    affidavit of Dimitrios Jimmy Diakou (Mr Diakou) filed 30 January 2023.  Exhibited to the affidavit is a draft defence in the Supreme Court proceeding;
  3. (c)
    affidavit of Mr Diakou filed 6 February 2023.  The affidavit exhibits the notice of intention to defend and defence of Maxcon filed in the Supreme Court proceeding and deposes to the truth of the defence, the status of the proceeding and the estimated costs of Maxcon of a hearing of the Tribunal proceeding; and
  4. (d)
    submissions filed 6 February 2023.

Bodies Corporate

  1. (a)
    letter addressed to the Tribunal and dated 27 January 2023; and
  2. (b)
    submissions filed 10 February 2023.

Hearing on 16 February 2023

  1. [15]
    The focus of the hearing on 16 February 2023 was whether Maxcon should be granted a stay of the Tribunal proceeding given commencement of the Supreme Court proceeding.  It was agreed by the parties Maxcon should be granted a stay of the directions given on 14 November 2022 pending a decision on the application for a stay, with further directions given if the application for a stay of the Tribunal proceeding is refused.
  2. [16]
    Also in issue was whether the claims made, and relief sought, by Dr Carter are sufficiently particularized in the Tribunal proceeding.

Supreme Court proceeding

  1. [17]
    The Supreme Court proceeding was commenced by the Principal Body Corporate against Maxcon on 8 September 2022.  A notice of intention to defend and defence were filed by Maxcon on 30 January 2023.  The Principal Body Corporate filed a reply on 30 May 2023.

Submissions

Maxcon’s submissions

  1. [18]
    Maxcon, in submissions filed 6 February 2023, submits the application for review “… is somewhat unclear and the various relief claimed is unavailable to Dr Carter …”
  2. [19]
    The relevant contract is in dispute between the parties to the Supreme Court proceeding.  It will be necessary for the Tribunal to decide what is the contract in the Tribunal proceeding, it is submitted by Maxcon.
  3. [20]
    The Principal Body Corporate, in the Supreme Court proceeding, claims damages for the consequential loss allegedly suffered by Dr Carter.  In the circumstances, it is submitted by Maxcon, it would be unfair to give the direction sought by Dr Carter.
  4. [21]
    Mr Kidston of counsel, who appeared on behalf of the Maxcon on 30 January 2023 and 16 February 2023, expanded on the submissions.

Dr Carter’s submissions

  1. [22]
    Dr Carter, in submissions filed 13 February 2023, submits:
  1. (a)
    the Bodies Corporate acknowledge water is continuing to enter her unit; and
  2. (b)
    in the Supreme Court proceeding, the Principal Body Corporate alleges “… there are no issues raised by [Maxcon] in relation to building defects at The Johnson.”
  1. [23]
    Maxcon’s application to stay the review proceeding can be dismissed “… as it is irrelevant to the workings of Australian Building Law …”, it is submitted.  Dr Carter further submits Maxcon’s submissions on costs are “unacceptable” she having incurred significant costs.
  2. [24]
    The submissions were expanded on by Dr Carter during the hearing on 16 February 2023.

QBCC’s submissions

  1. [25]
    QBCC, in submissions filed on 14 February 2023, outlines the background to the Tribunal proceeding.  The submissions then identify the relevant allegations in the Supreme Court proceeding, and Maxcon’s response to the allegations, and summarises the issues in the Supreme Court proceeding in the following terms:
    1. (a)
      whether the contract was a “sham”;
    2. (b)
      the nature and terms of the “true contract” between Maxcon and [Asian Pacific Group Pty Ltd] including the work undertaken by Maxcon pursuant to same;
    3. (c)
      the effect of the above issues on the operation of section 36(3) of the [Body Corporate and Community Management Act 1997], if any;
    4. (d)
      whether, in light of the above issues, Maxcon has breached the contract;
    5. (e)
      whether, in light of the above issues, Maxcon is liable for the defects and associated damage and/or costs incurred alleged in the [statement of claim];
  1. (a)
    whether the Principal Body Corporate has standing to bring the [Supreme Court proceeding] so far as it relates to “scheme land” for which the Principal Body Corporate is not the registered owner.
  1. [26]
    Maxcon, QBCC submits, neither admits nor denies the defects in the design or construction, nor damage or the cost to rectify the damage.  Having pleaded non-admissions, Maxcon may not give or call evidence in the Supreme Court proceeding in respect of facts not admitted.
  2. [27]
    QBCC submits the relevant question is whether it is in the interests of the justice to stay the Tribunal proceeding.  In deciding that question, QBCC submits, the Tribunal may have regard to the following:
  1. (a)
    whether Maxcon, as the party seeking the stay and a respondent, has met the burden to justify a stay of this proceeding, interfering with Dr Carter's entitlement to have the [Tribunal proceeding] determined; and
  2. (b)
    in balancing the “the justice” between the parties, weighing:
  1. (i)
    the effect on Dr Carter and the Bodies Corporate and the effect on Maxcon of either refusing or granting the Stay Application; and
  2. (ii)
    the objects of the QBCC Act, which includes both achieving a reasonable balance between contractors and consumers and providing remedies for defective building work.
  1. [28]
    It is also relevant, QBCC submits, to have regard to whether the Supreme Court proceeding impedes the Tribunal being able to reach the correct and preferable decision in the Tribunal proceeding.
  2. [29]
    QBCC submits there is a clear overlap between the subject matter of the Supreme Court proceeding and the Tribunal proceeding.  There is limited potential for issue estoppel to arise from a decision in the Tribunal proceeding prior to a decision in the Supreme Court proceeding.  The overlap mentioned weighs in favour of the grant of a stay of the Tribunal proceeding, QBCC submits.  However, having regard to matters weighing against the grant of a stay, it submits the potential prejudice does not justify departing from the ordinary course of the Tribunal proceeding being determined.

Bodies Corporate’s submissions

  1. [30]
    The Bodies Corporate’s submissions filed 10 February 2023 respond to Maxcon’s submissions.  They helpfully summarised the items of complaint the subject of the Tribunal proceeding.  Then, they summarise the scope and issues in the Supreme Court proceeding and submit Maxcon’s position is as follows:
  1. (a)
    work was performed by it, but not pursuant to the contract signed by it, rather pursuant to a verbal side-deal (i.e., via an alleged sham, the real transaction is the “true contract”);
  2. (b)
    does not admit, but also does not deny, the defects;
  3. (c)
    raises a legal point about responsibility for consequential loss.
  1. [31]
    The “interplay” between the Tribunal proceeding and the Supreme Court proceeding, the Bodies Corporate submit, is as follows:

Issue

QCAT

Supreme Court

Whether the respective items are building work as apart from other types of work

In issue.

Note, this is a legal point only

Not in issue, as this arises from the statutory test

Responsibility for the work performed

In issue - but pursuant to statutory test.

However, sham has not been asserted in QCAT as, notwithstanding directions for filing of evidence, there is no evidence of alleged sham.

In issue - but as per contractual responsibility

Whether work is defective

In issue - but based on statutory test.

Notwithstanding direction, Maxcon has not adduced evidence

In issue - based on the contract or “True Contract”

Maxcon cannot adduce evidence

Whether it would be fair to issue a direction

In issue

Not in issue

Consequential damages argument

Not in issue

In issue

  1. [32]
    The submissions then continue:

Accordingly, in relation to contentious points upon which Maxcon would adduce evidence, the real issue is responsibility for the work.  However, in the absence of the filing of any evidence by Maxcon deposing to having been involved in a sham, there is no controversy before this tribunal of same.

  1. [33]
    Maxcon deposes to being involved in a sham.  It is not in issue in the Tribunal proceeding, it is further submitted.  It has not produced evidence on whether the work was defective in the Tribunal proceeding and it cannot do so in the Supreme Court proceeding.
  2. [34]
    The submissions conclude the application for a stay of the Tribunal proceeding should be dismissed.

Discussion

  1. [35]
    Section 58(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) empowers the Tribunal to make an interim order it considers appropriate in the interests of justice before making a final decision.  The examples include to protect a party’s position for the duration of the proceeding.[1]
  2. [36]
    A specific power to make an order staying the operation of all or part of a reviewable decision if a proceeding for the review of the decision has started under the Act is found in section 22(3).  The Tribunal may make the order under the subsection only if it considers the order is desirable after having regard to the following:
  1. (a)
    the interests of any person whose interests may be affected by the making of the order or the order not being made;
  1. (b)
    any submission made to the tribunal by the decision-maker for the reviewable decision; and
  1. (c)
    the public interest.[2]
  1. [37]
    It is well-settled the Tribunal has power to make the orders sought by Maxcon.[3]  It was not suggested otherwise by the parties.
  2. [38]
    Maxcon’s application is for a temporary stay of the Tribunal proceeding.  As was said in Re Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd[4], there is significant difference between a permanent stay or dismissal of a proceeding, and a temporary stay or lengthy adjournment of the proceeding.  If a temporary stay of the Tribunal proceeding is granted, the Tribunal remains in control of the proceeding.
  3. [39]
    In Sterling, Lockhart J, at [16], set out a non-exhaustive list of the considerations for the grant of a temporary stay of a proceeding:
  • Which proceeding was commenced first.
  • Whether the termination of one proceeding is likely to have a material effect on the other.
  • The public interest.
  • The undesirability of two courts competing to see which of them determines common facts first.
  • Consideration of circumstances relating to witnesses.
  • Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
  • The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
  • How far advanced the proceedings are in each court.
  • The law should strive against permitting multiplicity of proceedings in relation to similar issues.
  • Generally balancing the advantages and disadvantages to each party.
  1. [40]
    The list of considerations was approved by the High Court of Australia in Henry v Henry[5], and more recently referred to in Langford v RCL Cruise Ltd trading as Royal Caribbean Cruises[6].

Which proceeding was commenced first?

  1. [41]
    The Tribunal proceeding was commenced by Dr Carter on 2 July 2019, long before the Supreme Court proceeding.  In the former proceeding, voluminous material has been filed by Dr Carter, QBCC and the Bodies Corporate.  The material includes statements of evidence, documents and submissions filed by Dr Carter, the statement of reasons for decision and the accompanying documents, other documents and submissions filed by QBCC and statements of evidence, documents and submissions filed by the Bodies Corporate.
  2. [42]
    As I have said, Maxcon has not filed material on which it intends to rely at the hearing of the Tribunal proceeding.  It has been given several opportunities to do so.
  3. [43]
    The Supreme Court proceeding was commenced on 8 September 2022.  A notice of intention to defend and defence were not filed by Maxcon until almost 4 months later, on 30 January 2023.  A reply was filed by the Principal Body Corporate more than three months later, on 13 May 2023.
  4. [44]
    The Tribunal proceeding has progressed to the point it was fixed for hearing.  Pleadings have closed in the Supreme Court proceeding.  Notwithstanding, and given the leisurely pace to date, it is unlikely the Supreme Court proceeding will be heard and decided for many months, perhaps years.  Any appeal, or appeals, from the decision and orders at first instance is likely to add significantly to the delay in finally concluding the proceeding.
  5. [45]
    The fact the Tribunal proceeding commenced long before the Supreme Court proceeding and it has progressed to the point it was fixed for hearing, whereas the Supreme Court proceeding has not progressed beyond the close of pleadings, are significant matters weighing against the grant of a stay of the Tribunal proceeding.

Public interest

  1. [46]
    The public interest favours the early and economic resolution of disputes before the Tribunal and proceedings being concluded in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice.[7]  The interests of justice will be better served by allowing the Tribunal proceeding, a proceeding before the Tribunal for nearly four years and in which the parties, other than Maxcon, have filed voluminous material thereby incurring significant cost and expense, to continue rather than staying the Tribunal proceeding in favour of the Supreme Court proceeding only recently commenced and it and any appeal or appeals unlikely to finally resolve the proceeding for an indefinite time.

Parallel proceedings

  1. [47]
    There is an overlap between the issues in dispute in the Tribunal proceeding and those in dispute in the Supreme Court proceeding.  The central issues, however, are different.
  2. [48]
    In general terms, it is undesirable for parallel proceedings to be conducted in two jurisdictions, thereby putting the parties to the two proceedings to additional cost and expense.  However, in the Tribunal proceeding significant cost and expense has already been incurred whilst significant cost and expense is yet to be incurred in the Supreme Court proceeding.
  3. [49]
    Additionally, the Tribunal is conscious of the effect of the circumstances giving rise to the Tribunal proceeding on the health and well-being of Dr Carter.  A stay of the review proceeding after nearly four years of litigation is likely to have a profound effect on her.

Witnesses

  1. [50]
    The parties did not raise for consideration the circumstances relating to witnesses.  A consideration of significance relating to witnesses is the effect of an indefinite delay on their recollection of the events.

Wasted work

  1. [51]
    The extent to which work done in the Tribunal proceeding might be wasted if the stay of the proceeding were granted was not addressed by the parties in submissions.  An indefinite stay is likely to give rise to some waste.

Summary

  1. [52]
    I am not satisfied it is in the public interest, or the interests of justice, to grant the stay of the Tribunal proceeding.  Maxcon’s application for a stay of the proceeding is dismissed.

Dr Carter’s claims

  1. [53]
    Maxcon submits it is entitled to know the case it is required to meet and Dr Carter’s original application in the Tribunal proceeding fails to identify the case with sufficient particularity.  It would be a denial of natural justice, the submissions continue, to allow the proceeding to continue without sufficient particulars of what is sought by Dr Carter from the Tribunal.
  2. [54]
    It is unclear whether the submissions were put as a ground for a stay of the Tribunal proceeding or the giving of directions for particulars.  Whatever be the reason, the submissions are rejected.
  3. [55]
    Dr Carter’s original application, in part B, is a brief summary of why she thinks the decision is wrong or not properly made.  The case Maxcon is required to meet is adequately particularised in the material filed since the application, in particular QBCC’s statement of reasons for the decision and the accompanying documents.

Directions

  1. [56]
    Directions will be given for Maxcon complying with order 1 of the orders made by the Tribunal on 14 November 2022, the proceeding being fixed for hearing and a directions hearing.

Decision

  1. [57]
    The decision of the Tribunal is as follows:
  1. (a)
    Maxcon’s application filed 6 January 2023 for a stay of the review proceeding is dismissed;
  2. (b)
    Maxcon’s application filed 10 January 2023 for an extension of the time to comply with order 1 of the orders made by the Tribunal on 14 November 2022 is granted.  Maxcon comply with the order by 4.00pm on 15 August 2023;
  3. (c)
    the Tribunal proceeding be fixed for hearing for four days commencing on the next available hearing date after 15 August 2023;
  4. (d)
    the Tribunal proceeding be listed for a directions hearing by telephone after 15 August 2023 and not less than fourteen days before the date fixed for the hearing of the proceeding.  The purpose of the directions hearing is for the Tribunal to confirm with the parties:
  1. (i)
    the material they have filed and on which they intend to rely at hearing;
  1. (ii)
    the precise issues to be determined at the hearing;
  1. (iii)
    the witnesses, if any, they require for cross-examination;
  1. (iv)
    whether it is proposed the witnesses will be giving evidence in person or by remote means (specifying the mode of attendance);
  1. (v)
    any limitations on the time of availability of witness; and
  1. (vi)
    any other issue necessary to ensure the proceeding is ready for hearing; and
  1. (e)
    this order be served on the parties by email.

Footnotes

[1] Section 58(1)(a) of the QCAT Act.

[2] Section 22(4) of the QCAT Act.

[3] See, for example, JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2011] QCAT 60 and Chief Executive of the Department of Justice and Attorney-General v Kollosche & Anor [2015] QCAT 145.

[4] [1992] FCA 72.

[5] (1996) 185 CLR 571, per Dawson, Gaudron, McHugh and Gummow JJ at 590.

[6] [2023] FCA 626, per Jackman J at [26].

[7] Section 4(b) and (c) of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    Carter v Queensland Building and Construction Commission & Ors

  • Shortened Case Name:

    Carter v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 278

  • Court:

    QCAT

  • Judge(s):

    Member Scott-Mackenzie

  • Date:

    26 Jun 2023

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
Chief Executive of the Department of Justice and Attorney-General v Kollosche [2015] QCAT 145
2 citations
Jump To
Cite 1 - [2015] QCAT 145
Cite 2 - [2015] QCAT 145
Henry v Henry (1996) 185 CLR 571
1 citation
Jump To
Cite 1 - (1996) 185 CLR 571
JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2011] QCAT 60
2 citations
Jump To
Cite 1 - [2011] QCAT 60
Cite 2 - [2011] QCAT 60
Langford v RCL Cruises Ltd t/as Royal Caribbean Cruises [2023] FCA 626
1 citation
Jump To
Cite 1 - [2023] FCA 626
Stirling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72
2 citations
Jump To
Cite 1 - [1992] FCA 72
Cite 2 - [1992] FCA 72

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.