Parmenter v Queensland Building and Construction Commission
[2024] QCAT 17
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- Unreported Judgment
- Parmenter v Queensland Building and Construction Commission[2024] QCAT 17
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Parmenter v Queensland Building and Construction Commission[2024] QCAT 17
Parmenter v Queensland Building and Construction Commission[2024] QCAT 17
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Parmenter v Queensland Building and Construction Commission [2024] QCAT 17 |
PARTIES: | hilda parmenter (applicant) v queensland building and construction commission (respondent) |
APPLICATION NO: | GAR243-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 16 January 2024 |
HEARING DATE: | 15 January 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member McVeigh |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether proceedings should be dismissed because there is no utility in conducting a hearing Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Chenier v Queensland Building and Construction Commission [2017] QCAT Dey v Victorian Railways Commissioners [1949] HCA 1 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 Rita Commisso Enterprises Pty Ltd v The Body Corporate for Acacia Lodge Hostel [2013] QCAT 342 Stallard v Alsun Aluminium Pty LTD & Lee [2011] QCAT 343 |
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
Should these proceedings be dismissed?
- [1]In these proceedings the applicant has applied for a review of the decision of the Queensland Building and Construction Commission (Commission) not to issue a direction to rectify. The Commission has filed the Statement of Reasons (SOR) for its decision. Neither party has filed any evidence.
- [2]The Commission has applied to have the proceedings dismissed.
- [3]The tribunal can dismiss proceedings if they are:
- frivolous, vexatious or misconceived; or
- lacking in substance; or
- an abuse of process.[1]
Relevant legal principles
- [4]It is a very serious matter for the tribunal to dismiss an application without allowing a hearing of that application to take place. A case must be clearly made out to support a dismissal.[2]
- [5]
- [6]
Material before the tribunal
- [7]The applicant complains about cracks in the concrete pathways around her house.[7]
- [8]Sample concrete cores taken from the path around the applicant’s house were tested by a NATA accredited authority. Only one of the samples achieved 20 Mpa.[8]
- [9]On 20 December 2022 the Commission’s inspector observed:
- both pathways at either end of the home have some cross cracking varying in width from hairline to 1mm;
- almost the entire length of the rear pathway is showing significant cracking in a spiderweb pattern in places;
- the pathways were performing as intended;
- the builder had installed the correct control and isolation joints;
- no evidence of incorrect installation of concrete;
- no crack was greater than 1.25mm;
- the relevant Australian Standard is silent as to the amount of cracking that is acceptable.[9]
- [10]In the opinion of the Commission’s inspector, it is likely that the concrete cracked because the concrete was understrength. He speculated that this might have been as a consequence of a problem at the batching plant. He dismissed the possibility that the problem might have been caused by the addition of water to the concrete on site on the basis that the amount of water needed to be added to reduce the strength of the concrete would have resulted in concrete with so high a slump as to be unworkable.[10]
- [11]The Commission’s inspector decided that even if it could be established that the concrete supplier provided understrength concrete, the supplier was not an entity to which a direction to rectify might be issued.
- [12]The Commission’s internal reviewer observed:
While the applicant contends that the [builder] should be directed to rectify [the cracked patio concrete], she does not engage with the specific findings [of the inspector] and reasons [for the original decision] or otherwise show them to be wrong. …in the absence of sufficiently persuasive explanation or evidence to the contrary…I am satisfied that there is still insufficient evidence to establish that the [builder] undertook defective building work as alleged.[11]
Commission’s submissions
- [13]The Commission’s submissions appear to correlate a lack of substance with a lack of utility. The Commission submits that there would be little utility in the tribunal making an order to set aside the decision under review and substitute it with a direction to rectify to the builder (which is now in external administration).
- [14]It submits that it would not be fair to give a direction to rectify to the builder in circumstances where:
- the likely cause of the cracking is understrength concrete supplied by the concrete batching plant;
- the cracking is within allowable tolerances; and
- the Commission has no power to give a direction to rectify for product failure.
Applicant’s submissions
- [15]The applicant was given leave to be represented by Mr Parmenter in these proceedings.[12] He submits that there are issues to be determined by the tribunal, including:
- whether the cause of the problem was product failure;
- whether the problem with the concrete was caused by the batching plant or by instructions to add water given to the concreter by the builder;
- whether the isolation joints are to Australian Standards;
- the relevance of the fact that the builder is in administration as the building work is covered by home warranty insurance.
Consideration
- [16]The Commission does not submit that the applicant’s claim is frivolous or an abuse of process. Its focus is on the utility of conducting a hearing. It submits that the claim is misconceived, lacking in substance, and has little prospect of success.
- [17]The claim is not misconceived. These proceedings are the appropriate forum to seek a review of the Commission’s decision. The internal reviewer correctly identified what the applicant needed to do to obtain a different outcome: engage with the specific findings of the inspector and reasons for the original decision. That is the purpose of these proceedings.
- [18]The claim has substance. The differences between the Commission and the applicant cannot be resolved without hearing evidence and legal submissions. The applicant may be able to provide evidence from an independent expert as to the cause of the cracking. The applicant can make legal submissions about the fairness, or otherwise, of issuing a direction to rectify to a builder in administration.
- [19]While I accept that the finite resources of the tribunal ought not be applied to cases that are doomed to fail,[13] this is not such a case. Absent any evidence I am not in a position to rule that the applicant has little or no chance of success. Ultimately, the Commission may be correct about the applicant’s prospects, but the applicant must be given a proper opportunity to establish her case at a hearing. A case has not been clearly made out to support dismissal.
Orders
- [20]The Commissioner’s application to dismiss or strike out these proceedings is dismissed.
- [21]The applicant must file in the tribunal two copies and give to the Commission one copy of all material upon which she intends to rely at the hearing by 29 February 2024. The material must:
- contain statements of all witnesses, including expert witnesses, in particular addressing:
- (i)the issue of whether the cracking of the concrete was caused at the batching plant or by the addition of water to the mix on site;
- (ii)whether or not the cracking is within allowable tolerances;
- (iii)whether the isolation joints are to Australian Standards.
- (i)
- contain statements of all witnesses, including expert witnesses, in particular addressing:
- [22]The Commission must file in the tribunal two copies and give to the applicant one copy of all material upon which it intends to rely at the hearing by 2 April 2024.
- [23]The matter is to be listed for a 1-day hearing in Brisbane, not before 15 April 2024.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47.
[2]Rita Commisso Enterprises Pty Ltd v The Body Corporate for Acacia Lodge Hostel [2013] QCAT 342, [2].
[3]Stallard v Alsun Aluminium Pty LTD & Lee [2011] QCAT 343, [8].
[4]Ibid, [8].
[5]Dey v Victorian Railways Commissioners [1949] HCA 1.
[6]General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69.
[7]SOR-6.
[8]SOR, p 82.
[9]SOR-15.
[10]SOR, p 132.
[11]SOR-1.
[12]Order made 24 August 2023.
[13]Chenier v Queensland Building and Construction Commission [2017] QCAT.