Hartley v Di Russo[2018] QCATA 46

REASONS FOR DECISION

1. [1]
   On 16 March 2017, Ben Hartley filed an Application for a minor civil dispute – minor debt to recover $8,284.00 plus his filing fee of $112.00 for building works he claimed to have done for Paulo Di Russo.
2. [2]
   After the Tribunal granted Mr Di Russo an extension of time, he filed a Response on 18 May 2017.
3. [3]
   On 31 May 2017, the Tribunal correctly identified that Mr Hartley’s application related to a ‘building dispute’. The Tribunal then directed the parties to file evidence that they had participated in early dispute resolution as required by section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
4. [4]
   On 13 June 2017, Mr Hartley filed a letter from the Queensland Building and Construction Commission relevantly stating (my underlining):^[1]

I refer to the dispute lodged with QBCC on 9 June 2017 and our telephone conversation of 13 June 2017 about building work being performed at the above property.

…

This correspondence serves as notification that you have participated in the QBCC’s dispute resolution process as prescribed by legislation and your case has now been finalised.

5. [5]
   However, on 23 June 2017 an Adjudicator dismissed the Application for lack of jurisdiction. Mr Hartley wants to appeal that decision.
6. [6]
   It is understandable that in the busy minor civil disputes jurisdiction in which the learned Adjudicator was sitting, she sought to determine the application quickly and expeditiously. That is consistent with the objects of the QCAT Act.^[2]
7. [7]
   Unfortunately, in doing so it would appear that the learned Adjudicator fell into an error of law in dismissing the application. This is because an Adjudicator does not have jurisdiction to hear and decide domestic building disputes.^[3] Once the learned Adjudicator determined that Mr Hartley’s application was a domestic building dispute, she did not have jurisdiction to dismiss his application. For this reason, the appeal must be allowed.
8. [8]
   However, the Appeal Tribunal is satisfied that it is still appropriate to dismiss Mr Hartley’s application for the reasons that follow.^[4] This course is appropriate because the Appeal Tribunal has all necessary material before it.^[5]
9. [9]
   There is a fundamental flaw in Mr Hartley’s original application: he did not comply with section 77(2) of the QBCC Act until after he commenced the proceeding. Because compliance with section 77(2) is the gateway through which an applicant must pass before filing an application for a building dispute,^[6] his non-compliance is fatal to his application and his appeal:^[7]

Section 77(2) QBCC Act is expressed in clear and unequivocal terms. A person may not apply to the tribunal to decide a building dispute unless the person has complied with a process established by the QBCC to attempt to resolve the dispute. Compliance with the section is a precondition to the jurisdiction of the Tribunal being enlivened. The provision is not merely procedural, it is mandatory and has substantive effect. The Tribunal cannot exercise the powers conferred by s 61 QCAT Act to waive compliance with s 77(2) QBCC Act.

10. [10]
    The consequence of Mr Hartley not complying with section 77(2) of the QBCC Act is that the Tribunal does not have jurisdiction in his application. It does not matter that he filed his application as a minor civil dispute.^[8]
11. [11]
    The original application was misconceived and must therefore be dismissed as lacking in jurisdiction.^[9]
12. [12]
    Whether or not Mr Hartley should file in the Tribunal a further application for a domestic building dispute is a matter upon which he might wish to seek independent legal advice, particularly having regard to the matters raised in Mr Di Russo’s response to the original application.