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Alderton v Wide Bay Constructions Pty Ltd[2019] QCATA 105

Alderton v Wide Bay Constructions Pty Ltd[2019] QCATA 105

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Alderton & Anor v Wide Bay Constructions Pty Ltd t/a Dixon Homes Hervey Bay [2019] QCATA 105

PARTIES:

SALLY ALDERTON

(first appellant)

SIMON ALDERTON

(second appellant)

v

WIDE BAY CONSTRUCTIONS PTY LTD T/A DIXON HOMES HERVEY BAY

(respondent)

APPLICATION NO/S:

APL131-17

ORIGINATING APPLICATION NO/S:

BDL100-15 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

11 July 2019

HEARING DATE:

9 March 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member Traves

ORDERS:

  1. The appeal is allowed.

2. (a) The decision of the Tribunal dated 28 March 2017 is set aside;

  1. (b)
    The matter is remitted to the Tribunal  differently constituted for rehearing;
  2. (c)
    The Tribunal is directed to allow the filing and hearing of such further evidence as it may consider appropriate.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – where claim for damages to rectify  defective roof – where claim dismissed at first instance – whether error in decision below – where appellants dispute there was no evidence of structural defects – whether appellants were denied procedural fairness due to conduct of experts conclave and deficiencies in joint experts’ report – whether appellants were denied procedural fairness due to unavailability of  expert witnesses for questioning at hearing – whether failure of Tribunal to properly consider evidence before it - whether error in finding that a review application had not been made - whether error in failing to consider the application of statutory warranties under the Trade Practices Act 1974 (Cth) – whether error in factual chronology adopted by the Tribunal an appealable error – whether error by Tribunal in dismissing claim for review

Australian Consumer Law (Qld), s 2, s 8, s 60

Fair Trading Act 1989 (Qld), s 16, s 48, s 50

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3,  s 33, s 33(3), s 43, s 97

Queensland Civil and Administrative Tribunal Practice Direction No 4 of 2009

Trade Practices Act 1974 (Qld), s 74(1), s 74(2A)

Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59

Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66

Sanctuary Cove Golf and Country Club Pty Ltd v Machon [2019] QCATA 1

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527

APPEARANCES:

Applicants:

Self-represented

Respondent:

R Pezzutti, solicitor of Bell Dixon Butler Lawyers

REASONS FOR DECISION

  1. [1]
    This is an application for leave to appeal and/or appeal against the decision of the Tribunal to dismiss an application for a building dispute. The dispute concerned the construction of the roof of a house in Booral. The principal issue in the proceeding was the cause of water ingress though the roof into the home. Mr Simon Alderton and Ms Sally Alderton (formerly, Ms Raub), the homeowners and appellants, (the Aldertons) contended that there were structural deficiencies in the construction of the roof. Wide Bay Constructions Pty Ltd trading as Dixon Homes Hervey Bay, the builder and respondent contended, and the Tribunal below found, that the cause of the leaking roof was that the water courses between the roof tiles had become blocked by leaves and fine debris from surrounding bushland.

Delay in finalisation of proceeding while awaiting the outcome of related appeal proceedings

  1. [2]
    There has been some delay in the determination of this appeal. The Appeal Tribunal could not finalise this decision until interlocutory applications and appeals to the Court of Appeal from earlier decisions had been determined. In the course of the appeal proceedings, the Aldertons filed an application seeking leave to rely upon fresh evidence. The application was refused by the Appeal Tribunal on 24 November 2017.
  2. [3]
    They then applied to the Court of Appeal for an extension of time in order to seek leave to appeal the decision against the admission of fresh evidence. The Court of Appeal refused the application for an extension of time. In doing so, the Court noted that there was no right to appeal an interlocutory decision relating to fresh evidence to the Court of Appeal. This was because, under s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), appeals to the Court of Appeal from the Appeal Tribunal are limited to appeals against a cost amount decision or a ‘final decision’. As the decision regarding fresh evidence was not a decision that finally decided the matters the subject of the proceeding, leave was refused.
  3. [4]
    The Aldertons then filed another application in the Appeal Tribunal seeking to appeal the fresh evidence decision. This application was refused on 2 January 2019 on the basis, essentially, that it was misconceived. On 4 February 2019, the Aldertons again made an application to the Court of Appeal for leave to appeal the decision of the Appeal Tribunal on 2 January 2019. That application was dismissed by the Court of Appeal on 15 May 2019.
  4. [5]
    Accordingly, it is only recently that the Appeal Tribunal could proceed to finalise its decision even though the hearing occurred in March 2018.

The Grounds of Appeal

  1. [6]
    The application for leave to appeal and/or appeal before us now did not clearly identify the errors of fact or law alleged to have been made by the Tribunal. The Aldertons were given the opportunity to provide submissions addressing the alleged errors upon which they relied and upon the orders sought should the application for leave and/or appeal be successful.[1]
  2. [7]
    The Aldertons filed submissions on 18 July 2017. The builder filed submissions in response on 17 August 2017. The Aldertons filed submissions in reply on 3 October 2017. At the hearing, we allowed the grounds of appeal to be amended in accordance with the Aldertons’ submissions of 18 July 2017.[2]
  3. [8]
    The grounds of appeal fall within the following broad descriptions:
    1. (i)
      issues with respect to the experts conclave and the joint expert report;
    2. (ii)
      inability to cross-examine expert witnesses at the hearing;
    3. (iii)
      failure to properly consider the Aldertons’ evidence in a number of respects;
    4. (iv)
      in finding no application for review of the QBCC decisions had been made;
    5. (v)
      the circumstances surrounding the granting of leave to the builder to be legally represented;
    6. (vi)
      the failure by the Member to consider the application of the statutory warranties under s 74(1) and (2A) of the Trade Practices Act 1974 (Cth) despite intimating in the Hearing that he would ‘get to it’ and that there may have to be submissions about it; and
    7. (vii)
      the chronology of facts relied upon by the Member was incorrect.

Background

  1. [9]
    The Aldertons entered into a contract on 8 December 2007 with Wide Bay Constructions Pty Ltd for the construction of their new home at Booral. On 12 September 2014, the Aldertons wrote to the builder complaining that the eves leaked after rainfall, that the roof was warped or sagging in places and that there was cracked roof tile joinery on the south west side of their home. On 18 November 2014 the Aldertons made a complaint to the Queensland Building and Construction Commission (‘QBCC’) about the leaking roof.
  2. [10]
    The complaint was investigated by the QBCC and a Direction to Rectify dated 12 January 2015 was issued to the builder. The direction required the builder to remove and replace the gutter guard and to repair consequential damage caused to the sarking. In short, the QBCC had concluded that the silicone used to affix the original gutter guard had blocked the water courses in places and that this had contributed to the roof leaking.
  3. [11]
    In February 2015, the QBCC and the relevant licensee, Central Coast Roof Tiling, inspected the roof,[3] and the QBCC made a recommendation that the licensee investigate the silicone that had been used to adhere the leaf guard, to investigate sarking and all areas of the soffit.[4]
  4. [12]
    On 9 March 2015, the QBCC wrote to the Aldertons advising that the licensee had provided an ‘in depth report with photos’ of the rectification works they had carried out. This work included rectification of the sarking and the removal of silicone blocking the water channel in the tiles.
  5. [13]
    On 20 March 2015, the QBCC advised the Aldertons that a further cause of the leaking roof had been discovered by the licensee, namely blocked water channels due to debris from surrounding trees. The Aldertons were advised to arrange for the water channels to be cleaned prior to the installation of the replacement gutter guard and soffit painting and before any final water testing of the roof occurred.
  6. [14]
    The Aldertons confirmed they had completed maintenance cleaning on the water channels to the roof. However, over the following weekend, further rainfall occurred which caused the roof to leak through the soffit and around the fascia.
  7. [15]
    On 24 March 2015, the QBCC wrote to the builder attaching videos that the Aldertons had taken over the weekend of the roof leaking through the soffit and around the fascia. The QBCC advised that until the issue with the roof was identified that the QBCC ‘had no choice but to consider the roof leak as not rectified at this point’.
  8. [16]
    The QBCC obtained the following further roof reports: Roof Report by Mr McGuire of Roofpoint dated 31 March 2015 and Roof Report by Mr Locke of Tennant Roofing Services Pty Ltd following an inspection by Mr Locke and Mr Hutson (‘QBCC inspectors’) on 8 April 2015.
  9. [17]
    The QBCC concluded following these further investigations that the reason for the roof leaking, now that the silicone had been removed, were blocked water courses between the roof tiles. These had been blocked by sediment or fine debris from nearby trees.[5] The QBCC concluded that the roof had been installed correctly and that the technical investigations undertaken had failed to reveal any fault with the installation now that the silicone had been removed from the bottom row of tiles.
  10. [18]
    On 10 April 2015, the QBCC advised the Aldertons that it considered the builder had addressed all issues that could possibly have contributed to the roof leaking and that the main cause of the leaking roof was now the water courses between the roof tiles which had become blocked by fine debris from surrounding bushland. The QBCC then closed its file.
  11. [19]
    Notwithstanding the position adopted by the QBCC, the Aldertons provided a further report prepared by Sanbeck Building Services on 21 April 2015.
  12. [20]
    On 22 April 2015, the QBCC advised the Aldertons that the licensee had attended to the items required to be rectified and that there was an agreement in place for the minor associated work to be completed. The decision to close the file was subject to an internal review by Mr Stephensen of the QBCC on 8 May 2015. The QBCC confirmed in that email that the roof leaking issues had been caused by the ‘build-up of sediment in the roof tiles drainage channels’ and, accordingly, that this was caused by matters relating to the maintenance of the roof, not the result of defective building work. The QBCC confirmed its position by email to the Aldertons on 14 May 2015.
  13. [21]
    On 21 May 2015 the Aldertons filed an application for a domestic building dispute[6] against the builder which sought rectification of defective building work to the value of $18,500 and ‘leave from the Tribunal under its Review Jurisdiction to make orders that would see the decision of the QBCC (22 April 2015) to be overturned so the roof and gutter system to our dwelling can be rectified…’.
  14. [22]
    A response was filed by the builder on 11 June 2015.
  15. [23]
    The Aldertons took further videos of the roof leaking in August 2015 which they submitted to the QBCC to demonstrate that the roof had not been satisfactorily rectified.
  16. [24]
    A compulsory conference in the matter was convened on 13 August 2015.
  17. [25]
    On 27 August 2015 the Aldertons filed an application seeking to join the QBCC.
  18. [26]
    A Directions Hearing was held on 23 September 2015 at which directions were made for submissions to be filed by both parties in relation to the joinder application.
  19. [27]
    The application for joinder was refused on 26 October 2015.
  20. [28]
    On 25 January 2016 (and again on 24 March 2016) the builder filed the following experts’ reports:
    1. (i)
      Report by Mr Locke of Tennant Roofing dated 8 April 2015;
    2. (ii)
      Email from Mr Hutson of QBCC dated 10 April 2015;
    3. (iii)
      Report from Monier Roofing dated 29 September 2015;
    4. (iv)
      Report from Mr McGuire of Roofpoint dated 19 November 2015.
  21. [29]
    On 8 February 2016, Senior Member Brown made specific directions relating to expert evidence, the experts conclave and the provision of and use to be made of any joint experts’ report produced as a result of the Conclave. The relevant directions are as follows:
  1. Each party must give to the other (but not file in the Tribunal) a copy of any report of their expert and any supporting documents by 4:00pm on 15 April 2016.
  1. The parties must file in the Tribunal two (2) copies of:
  1. (a)
    the name, specialisation and contact details of the experts to participate in the Conclave; and
  1. (b)
    an agreed list of issues to be considered by the experts at the Conclave; and
  1. (c)
    a list of documents provided to their experts by 4:00pm on 15 April 2016.
  1. If the parties are unable to agree on a set of issues, each party must file in the Tribunal two (2) copies and give to the other one (1) copy of a list of issues they propose to be considered by the experts at the Conclave by 4:00pm on 22 April 2016.
  1. In either case the Tribunal will settle the list of issues to be considered by the experts at the Conclave and will provide the settled list to each party and to the experts by 4:00pm on 24 April 2016.
  1. The member of the Tribunal convening the conclave shall have such powers, including making directions or other orders, as are required:
  1. (a)
    for the conduct of the conclave; and
  1. (b)
    for the conduct of the proceeding.
  1. The Registrar must provide a copy of the experts’ joint report to the parties within seven (7) days of receipt by the Tribunal.
  1. If the experts prepare a joint report, that report will be the experts’ evidence in chief. An expert may only submit a further report on issues of disagreement recorded in the joint report.
  1. Except with the Tribunal’s leave, a party may not:
  1. (a)
    raise a matter not already mentioned in the joint report.
  1. (b)
    submit evidence from an expert (whether or not they participated in the conclave) that contradicts, departs from or qualifies an opinion about an issue the subject of agreement in the joint report.
  1. (c)
    submit evidence from any other expert about matters mentioned in the joint report.
  1. [30]
    The application for a building dispute was amended by the Aldertons on 19 February 2016. The builder filed an amended response on 3 March 2019. In the response the builder again applied to have the Aldertons’ claim for review of the QBCC decision struck out on the basis it had not been properly made and was out of time. The builder referred to the decision by the Tribunal by which it had ‘already refused …to join the QBCC to these proceedings’.
  2. [31]
    On 24 March 2016, the Aldertons provided their statement of evidence which attached over 300 pages of documents including an undated three line report from Central Coast Roof Tiling, a further three paragraph report from Central Coast Roof Tiling following an inspection on 6 February 2015, the Monier Roof Report of 29 September 2015, an email of 17 February 2015 from Mr Hutson, a Report of 8 April 2015 from Mr Locke of Tennant Roofing Services (engaged by QBCC as an independent roof expert from Brisbane), a Report by Mr Eves, building certifier, of 25 September 2015 and the Sanbeck Assessment Report of 21 April 2015.
  3. [32]
    The Aldertons filed a report by Mr Indelicato on 15 April 2016, following an inspection by him of the roof on 7 August 2015. The Aldertons also filed a report from Mr Eves in the form of a two page letter dated 25 September 2015. The Aldertons also filed a one and a half page unsigned report by Mr Indelicato of Allstate Roof Maintenance & Restoration following an inspection by him of the roof on 7 August 2015
  4. [33]
    An experts conclave was scheduled for 26 April 2016.
  5. [34]
    On 8 April 2016, the Aldertons provided details of the experts they wanted to participate in the conclave and a list of issues to be discussed at the conclave. The Aldertons’ nominated expert witnesses were Mr Indelicato and Mr Eves.
  6. [35]
    The builder provided a list of issues dated 14 April 2016 and a list of experts they wanted to participate in the conclave. The expert witnesses nominated by the builder were: Mr Locke, Mr McGuire, Mr Tsimpikas and Mr Clark.
  7. [36]
    The experts conclave was convened on 26 April 2019. The following experts attended:
    1. (i)
      Mr Indelicato, Allstate Roof Maintenance and Restoration (who appeared by telephone);
    2. (ii)
      Mr Eves, Coast Wide Certification;
    3. (iii)
      Mr Locke, Tennant Roofing Services;
    4. (iv)
      Mr McGuire, Roofpoint;
    5. (v)
      Mr Clark, Monier.
  8. [37]
    Mr Tsimpikas did not participate in the conclave although the builder listed him as one of the experts to attend at its request. The explanation given by the builder for his non-attendance was that he was attending a family emergency.
  9. [38]
    A joint experts’ report of those who attended the conclave was filed on 26 April 2016.
  10. [39]
    On 11 October 2016, the Aldertons filed an application for miscellaneous matters again ‘seeking leave from the Tribunal under its review jurisdiction to make orders that would see the decision of the QBCC (22 April 2015) to be overturned…’. This application was not determined as an interlocutory application: it was determined at the final hearing.
  11. [40]
    On 11 October 2016, the Tribunal issued a notice to attend and give evidence at the hearing pursuant to s 97 of the QCAT Act to Mr Hutson of the QBCC and to Mr Eves. Mr Hutson was also ordered to produce at the hearing the QBCC Report dated 12 January 2015 and an email dated 10 April 2015 and Mr Eves was ordered to produce his report dated 25 September 2015.
  12. [41]
    The Aldertons’ application for a building dispute was heard in Hervey Bay on 13 and 14 October 2016 and was dismissed on 28 March 2017.[7]

Joint Experts’ Report

  1. [42]
    Before considering the grounds of appeal, it is useful to consider the joint experts’ report, and in particular, identify its limitations, both stated and unstated.
  2. [43]
    The Joint Experts’ Report was as follows:
  1. The experts present are solely engaged in relation to the issue of water ingress and the adequacy of the tiling on the roof, except for Mr Eves who has been engaged to comment also on the present structural adequacy and compliance of the roof.
  1. This joint report therefore relates only to issues as to water ingress and adequacy of the tile roof.
  1. The experts agree that the roof was constructed using concrete shingle tiles and tc2 clips, and that such a roof must be walked on carefully by a tradesperson to avoid cracking tiles.
  1. The experts note that since the initial construction of the residence that solar panels have been installed on the roof which would involve persons walking on the roof.
  1. The experts note that there appears to have been considerable traffic by persons on the roof for purposes of inspection and cleaning on numerous unknown occasions since construction of the roof.
  1. The experts note that there are a number of tiles that are currently broken on the roof.
  1. The experts note that there are numerous trees along the boundary of the property, including pine trees, gum trees and other species.
  1. The experts note that the water channels of the tiles appear to have been filled and blocked with leaf and vegetation debris, some quite fine and similar to ‘fur’.
  1. The experts agree that if the water channels of a tile roof of this nature are blocked, that water will flow over the side of the tile onto the battens and the sarking below the battens, and will then be distributed within the roof cavity.
  1. The experts agree that water flowing onto the battens will result in the battens being water affected.
  1. The experts accept that an unascertained number of battens have been water affected and need replacement.
  1. The experts agree that the most economical and practical method of repairing the roof is to:
  1. (a)
    strip the tiles off the roof;
  1. (b)
    clean the water channels of the tiles out;
  1. (c)
    replace the water affected battens and any water affected sarking as required;
  1. (d)
    reinstall the tiles.
  1. The experts note that if the house had been built in another location without adjoining vegetation, and the tiles had not been interfered with, or broken by walking on, that it is most probably that there would be no water ingress through the tiling.
  1. The experts note that the side of the house adjoining the trees is the most affected side.
  1. Mr Indelicato expresses the view that he needs to reinspect the roof to satisfy himself whether the repair would also require that the set-out would need to be brought down and another course of tiles added for the reconstruction, in the process of reconstruction.
  1. The experts agree that the use of hardwood battens to replace the water affected battens would be a good practice.
  1. The experts agree that, given that the roof may have been affected by damage caused by persons walking on the roof, and the extent of water effect on the battens and sarking, that removal of and refitting of the entire roof would be a good practice.
  1. The experts agree that after repair, the roof will require regular maintenance by a qualified tradesperson to keep the water channels clear of debris and avoid any possible future water leak by water flowing over the side of the tiles.
  1. Mr Eves has a concern that there must be a reason why the roof originally began to leak, and that whilst the tiled areas apparently did not leak for a long time, there was apparently a leak affecting the soffit from an early stage, which may have been resulting from the guttering installation in the slots in the front of the gutter being higher than the back of the gutter, and that additional downpipes may be required to address that issue.
  1. The experts note that it cannot be determined whether the leaks affecting the soffit resulted from water entering via the tiles or via the guttering.
  1. [44]
    As paragraph 1 of the joint report states, of the experts present, only Mr Eves was engaged to give opinion about the structural adequacy of the roof. Indeed, it appears that he may have been the only expert qualified to give an opinion about this issue. In this regard, we observe that the joint report itself is inadequate in that it does not specify the qualifications and claimed expertise of each participant, only the business in which they each work. Also, it appears that not all of the ‘experts’ provided a curriculum vitae to establish their expertise,[8] although their expertise to give an opinion does not appear to have been challenged in this case.
  2. [45]
    Because of the limited basis of engagement (and perhaps, expertise) of the other experts, the joint report, as paragraph 2 makes clear, ‘relates only to issues as to water ingress and adequacy of the tile roof.’  The report focusses upon the blocked water channels, (as a consequence of leaf debris from nearby adjoining trees,) of the tile roof as causing water to flow into the roof cavity, causing water damage and necessitating repair: paragraphs 7-14 and 18. Further, the report sets out agreement of the experts that the tiles, which must be walked on ‘carefully’ to avoid cracking, may have been damaged by ‘considerable traffic’ of persons walking on the roof since construction for inspections, cleaning and installation of solar panels: paragraphs 3-6 and 18.  
  3. [46]
    Paragraph 19 sets out Mr Eves’ stated concern that the underlying cause of the origins of the earlier roof leak affecting the soffit (rather than the tiles, which were the limited subject of the report), ‘which may have been resulting from the guttering installation ….’ has not been identified in the joint report. As a consequence, it cannot be said to have been agreed. Paragraph 20 then states, that the experts opine that ‘it cannot be determined whether the leaks affecting the soffit resulted from water entering via the tiles or via the guttering.’
  4. [47]
    The report did not address, nor purport to address in any meaningful way, the essential issue in the case, that is, whether the water ingress through the roof of the Aldertons’ house was due to defective work or to a failure to maintain the roof free of debris. There is also no mention of the sagging roof, truss spacing being wider than the approved plans, one truss being higher than the others, sliding hips and the effect or consequential damage the defective installation of gutter guard may have had on the roof, all of which were discussed in Mr Eves’ earlier report dated 15 September 2015.
  5. [48]
    The issues proposed for consideration by the Aldertons at the conclave were far broader than those addressed, while admittedly failing to clearly identify the essential issue.[9] Indeed, the builder, while disagreeing with the issues nominated by the Aldertons, proposed that the issue for consideration at the conclave was whether the leaking roof was caused by defective workmanship during construction, necessitating consideration of the cause of the leaking roof.[10]
  6. [49]
    Further, it is useful to observe that it appears that the three experts engaged by the builder who attended the conclave were all engaged as roofing experts, even though the relevant Practice Direction 4/2009 specifies that a party may call only one expert from each area of expertise.
  7. [50]
    The Aldertons were aware of these issues, and the limitations or deficiencies in the joint report. The substance of many of the grounds of appeal arise from the treatment by the Tribunal of the Aldertons’ attempts to deal with the inadequacy of the joint report to address all relevant issues that were the subject of expert opinion.

The Aldertons seek to cross examine Mr Tsimpikas

  1. [51]
    Mr Tsimpikas, also engaged a roofing expert, was also nominated by the builder to attend the experts conclave but was unable to do so because of family matters. He was not, therefore, one of the authors of the joint report and he was not subsequently relied upon by the builder. He had, however, provided an earlier statement at the request of the builder. The Aldertons understood he would be at the hearing, on the basis of the Notice of Hearing issued by the Tribunal which provided in note 2:

Your witnesses (i.e. all persons who have provided statements) must attend the hearing unless the other party advises they are not required for crossexamination.

  1. [52]
    The Tribunal had also issued Directions on 4 November 2015 that, unless the Tribunal ordered otherwise, all witnesses must attend the hearing in person for cross-examination.
  2. [53]
    To have expected Mr Tsimpikas to attend the hearing on the basis of the Notice of Hearing and direction was an error by the Aldertons, in circumstances that the builder no longer relied upon his evidence. The direction did not require the builder to have Mr Tsimpikas at the hearing if the builder did not intend to rely upon his evidence. It was for the Aldertons to arrange his attendance if they wished to seek leave to call evidence from him in the circumstances. However, as they acted for themselves in the proceeding and were likely unfamiliar generally with hearing procedures, the misunderstanding is understandable in the context of the directions and Notice of Hearing, especially as the builder had not told them in advance that it did not rely upon Mr Tsimpikas’ evidence. We observe that Practice Direction 4/2009 does not contemplate use of evidence in an expert in Mr Tsimpikis’ position, that is, who did not attend the conclave and participate in production of the joint report. However, nor does it contemplate, as identified earlier, multiple witnesses with the same expertise for a party contributing to the joint report. The non-adherence to the Practice Direction, may have reasonably contributed to the Aldertons’ misunderstanding concerning Mr Tsimpikas.   
  3. [54]
    Notwithstanding that it was in the circumstances for the Aldertons to arrange the attendance of Mr Tsimpikas, if they wished to seek leave to ask him questions, the matter does not end there. Their misunderstanding was clear. In effect, if not in form then in substance, the Aldertons did seek leave to ask questions of Mr Tsimpikas but the Tribunal gave no consideration to the question of leave. There were reasonable grounds for such a request: Mr Tsimpikas inspected the roof with Mr Alderton and would likely have had relevant evidence to give; he was nominated as being a witness to be at the Conclave; he was not able to participate for family reasons; but, notwithstanding this, the learned Member did not consider the potential relevance of his evidence and the reasonableness in all of the circumstances of the Aldertons’ request and desire to ask him questions.
  4. [55]
    It is unnecessary for us to decide whether leave should have been granted for
    Mr Tsimpikas to be questioned. In view of our findings and orders below, it is not necessary for us to determine that question. Whether Mr Tsimpikas gives evidence or not will ultimately be a matter for the Tribunal when the matter is remitted to it for reconsideration.

The Aldertons seek to cross examine Mr Clark

  1. [56]
    The Aldertons also indicated that they wished to ask questions of Mr Clark who was, in contrast to Mr Tsimpikas, a co-author of the joint experts’ report who was engaged to participate in the conclave by the builder.[11] The Aldertons’ request was denied, principally on the basis that Mr Clark was not at the hearing and ‘there would be no normal expectation that they would be here, because the expert report is in’.[12] It appears from the Transcript that the learned Member was under the impression that the Aldertons had the responsibility to ensure Mr Clark was at the hearing and that it was too late at the hearing to expect to be entitled to question him. It also appears that the Member was under the misapprehension that the joint report overtook the individual reports of the experts and, for that reason, that the expert could not be examined or cross-examined.
  2. [57]
    Much of the discussion between the learned Member, the legal representative for the builder, and the Aldertons proceeded on an erroneous basis. The joint report of the experts following a conclave will be evidence at the hearing. Here, as often occurs, directions were made concerning the joint experts’ report, making it clear that leave would be necessary before a party could seek to contradict the views of the experts therein expressed. But the views of the experts in the joint report are not quarantined from further scrutiny by way of questioning by the Tribunal itself and the parties: nor, are they immutable or beyond challenge.
  3. [58]
    Not uncommonly, even when it appears that all issues the subject of expert opinion are agreed, the contents of the joint report may require clarification because of a lack of clarity of expression or inadequate detail in the report or because assumptions were made by the experts in providing their opinions that are not borne out by the other evidence before the tribunal which it accepts. The tribunal does not proceed on the basis that the experts correctly identify the issues in dispute between the parties that are the subject of expert opinion: it is the task of the tribunal to decide the issues to be determined by it and to make the appropriate findings about the relevant issues, based on the evidence of the experts. When relevant issues are the subject of disagreement in the joint report, in the ordinary course, oral evidence will be given by the experts in the nature of, at least, cross-examination and re-examination (if not also, further oral evidence in chief).
  4. [59]
    It is of course necessary that the Tribunal bear in mind the content of Practice Direction 4/2009, the principles of case management and be mindful generally of broader considerations concerning the interests of justice in deciding how to proceed in any given hearing. In the usual course, all witnesses whose evidence is to be relied upon by a party at hearing, must be available for cross-examination at the hearing. There is nothing in Practice Direction 4/2009 that contradicts this, even though it provides for limitations around departure from issues agreed in the joint report and requirements for leave of the tribunal.
  5. [60]
    Moreover, while the experts’ joint report will constitute evidence of its contents, the existence of a report does not obviate the need for the experts to be available to be cross-examined on the report or asked further questions. It is for a party seeking to rely on the evidence of an expert in a joint report to ensure the expert is present at the hearing. Again, the contents of the report are not immutable, and the existence of a report is not a reason to excuse the attendance of the witnesses responsible for it.
  6. [61]
    As above, in the ordinary course, the tribunal itself may commonly seek to clarify matters reported and agreed upon with the experts. Often of course, areas of disagreement will also be the subject of cross-examination. Here, although the report did not clearly identify as contemplated by Practice Direction 4/09, areas of disagreement, on its face, it acknowledged that it addressed only one issue, in light of the limited engagement of all experts except Mr Eves and referred to other issues raised by Mr Eves.  It was reasonable to expect, and in any event, required by the Tribunal’s directions that all expert witnesses who participated in the conclave be available for questions to be asked of them if necessary.
  7. [62]
    Where, through no fault of a party, by reason of the content of the joint report, or on a basis otherwise established to the reasonable satisfaction of the Tribunal, the joint report is limited, deficient, or perhaps inadequate, or incorrect, the Tribunal would, in our view, properly allow other relevant issues for the tribunal to be explored in cross-examination, and even if an issue was the subject of agreement in the joint report, consider granting leave for further evidence to be led in appropriate circumstances. To do otherwise would be to abdicate responsibility to decide the case justly according to its merits.
  8. [63]
    The tribunal must observe the rules of natural justice.[13] A failure to afford a party procedural fairness constitutes an error of law.[14] Generally speaking, the difficulty lies, not in determining whether a particular circumstance requires procedural fairness to be accorded, but in determining what is required in a particular circumstance to satisfy the obligation and whether those requirements have been met. The concern of the law is fairness and, in particular to avoid what has been termed ‘practical injustice’.[15] This means that the application of the requirement is qualified by the question of whether the denial of procedural fairness in particular circumstances would have affected the outcome of the case.[16]
  9. [64]
    What a tribunal must do to afford procedural fairness depends upon the nature of the proceedings and the persons claiming its benefit. In this regard, is it noted that the requirement under s 3 of the QCAT Act, that proceedings are to be brought with as little formality as possible, does not abrogate the fundamental requirements of procedural fairness in those proceedings.[17] In this respect, the Tribunal also has obligations to ensure, as far as practicable, that it has all relevant material to make its decision[18] and that it has taken reasonable steps to ensure the parties understand the processes and procedures of the Tribunal.[19]
  10. [65]
    By proceeding in the way that it did, the Tribunal, respectfully, erred. First, as one of the authors of the joint report, Mr Clark should have been available at the hearing for the purposes of cross-examination. Notwithstanding submissions by the builder’s counsel to the contrary on appeal, Mr Clark remained a witness of the builder despite the fact he was a co-author of the joint report.[20] The joint report merely becomes the evidence of that expert. It does not mean that the expert is not required to be available for cross-examination.
  11. [66]
    Secondly, given the limitations or deficiencies in the joint report, the learned Member should have allowed cross-examination, or, if it considered leave was necessary, given proper consideration to whether the Aldertons should have been permitted to question Mr Clark. Instead, the learned Member wrongly treated the joint report as immutable and gave no proper consideration to that issue.[21] It is not to the point, in our view, that the Aldertons did not formally ‘seek leave’. The substance of the Aldertons’ intentions and request was clear.

The Aldertons seek to examine Mr Eves and the Tribunal’s failure to properly consider his evidence

  1. [67]
    Mr Eves was also an author of the joint report. The Aldertons sought to examine him concerning the report and, in particular, whether the true cause of the leaking was a structural deficiency in the roof. Even though the latter issue was part of the essential issue for the Tribunal to determine, the Aldertons encountered much resistance. This appears to have been a consequence of an absence of clarity on the part of the Tribunal and the builder’s legal representative as to the status and role of the joint report.
  2. [68]
    Ultimately, although leave was not expressly granted, the Aldertons were permitted to ask some questions of Mr Eves concerning the structural elements of the roof. When they did so, the evidence was telling. Mr Eves gave evidence which included the following:

Mr Eves: …When we looked at the gutter – I think the gutter is more of a generic problem these days, in that laws associated with guttering have changed since your problem; they have changed to compensate for guttering that doesn’t essentially, remove water in high-volume rain flows, ie, the slotted fascia doesn’t work, so there’s a 10 mil backgap in this area.

Ms Pezzutti: Just – sorry to interrupt. I just wondered if I could make an inquiry about the relevance of this evidence.

….

Mr Alderton: Well, its going to show that there is other reasons beyond the – other reasons beyond what has been decided that the problems for the roof is, and that the roof is not up to standards. It’s – it wasn’t up to the contract in the first place.

Member: But that has already all been dealt with, hasn’t it? Surely the QBCC has dealt with all of that, and that’s all- all we’re talking about is rectification?

….The only reference in that report to Mr Eves seems to be in paragraph 19, where he had a concern that there must be a reason why the roof originally began to leak…[22]

Mr Eves:…there was two conflicting concerns that I would have had if that had of been my home. And that was: (1) defect batons were found within the building. Let’s just for a moment forget why, but there were batons in there that were seriously defective. They didn’t provide continuous top-chord tie to that building. It was broken off at different points. And what you get when that happens, you get different impact loads on the building; not so much from uplift, but you’ll get different impact loads. The building won’t move holistically, it will move in parts in that roof structure; it’s been proven many times. The second part of the problem was, as I saw on the day, was I had a person who had taken a tile off, found a defective baton. A defective baton was found there. But there was no way at the time I was there …what percentage of batons are in that state in this roof. There was no way. From the inside, you can’t see through the [indistinct] from the outside, you can’t see through the roof cladding. Now, that’s not to say that I’m explaining away what the water ingress was. But certainly, in places where I walked on that roof, I would have been very, very careful. And the second part was, it – once that had happened, it seemed to me that it was assisting the notion that the roof did develop deformation in some parts that, as I measured and I can’t say I measured a whole host, I did measure one that was up to a nine millimetre deformation…I would, as a building certifier, I would say it is not likely that the building would be meeting that wind terrain category as it stands now. I wouldn’t put my name to it, because I can’t tell you how many batons are like that in the roof….You’d have to take the roof off and have a look…The other elements of water ingress into that roof, I’ve partially commented on anyway. And its that the whole industry has changed its way, you know, because of problems associated with slotted fascia gutter. The whole industry has changed now. So that speaks for itself; there must have been issues from the word go.[23]

  1. [69]
    Ms Raub asked the key question a little later:

Ms Raub: But was there any structural inadequacy that would cause a gap in the tile prior to leaves in the gap?[24]

Mr Eves: Apart from what we currently know?- I think there was a little bit of – there was a couple of anomalies with the information that we were given; and one was that those leaves that were on the roof should have been removed, as maintenance. But where the leaves were building up and blocking – causing chaos between the sarking and the roof – and there was quite a build-up between the sarking – the sarking paper under the roof and the roof tile, there was quite a build-up in there. There was no way that could be maintained without taking the roof off. So I did – I never ever understood the comments that were made that that should have been a part of maintenance.[25]

  1. [70]
    The builder’s legal representative objected to the evidence on the basis that it contradicted the joint report. As explained earlier, it did not actually do so. In any event, as Mr Eves explained later, the maintenance referred to in the joint report was maintenance to the face of the roof and could not possibly be referring to or requiring maintenance between the tiles and the sarking.[26]
  2. [71]
    After some time the question was asked again of Mr Eves, as to whether the roof was in a condition that would have allowed leaves to ingress the roof,[27] or to build-up in the gaps between the tiles.[28] Mr Eves replied as follows:[29]

Mr Eves: Clearly, that’s the only way you’re going to get leaves in your roof; it’s through deformations in the roof. I mean it’s – there – it’s not coming in through the gutter line, it’s not coming – it’s not coming in anywhere else. It’s got to be coming through deformations in the roof, otherwise you wouldn’t have leaves in your roof.

  1. [72]
    Mr Eves also refers in questioning by the builder’s legal representative to cracks in the tiles and the roof sagging as problems that could have led to leaves getting in the roof.[30]
  2. [73]
    Mr Eves’ evidence was important because it strongly supported the contention that structural deficiencies in the roof were the root cause of the build-up of the leaves and ultimately of the leaking.
  3. [74]
    We note that Mr Hutson of the QBCC was also questioned by Mr Alderton.
    Mr Alderton asked whether the silicon glue used to install the gutter guard had been an original cause of the rook leaking. Mr Hutson’s evidence was as follows:

Mr Hutson: My determination that it was causing leaking down the bottom section, yes.

Mr Alderton: …There was leaking caused by the glue?

Mr Hutson: It was potential to cau-blocking the last row of drainage channels on the tiles and causing some leaking into the soffits in that bottom section, yes.

Mr Alderton: Under those battens and that could’ve…? That could’ve actually – there is a possibility that the ponding and the sarking was created by that before the leaves would’ve been able to …

Ms Pezzutti: Well, I’d oppose that. I mean, he’s trying to contradict the expert report, and there’s obviously a lack of appreciation there.

  1. [75]
    Notwithstanding the evidence we have set out, the Member found there was ‘no evidence that there was any structural defect or deficiency’ at the time the house was completed.[31] The learned Member did not refer to the evidence set out here in his reasons for decision. This was an error.
  2. [76]
    The evidence was important in the context of the principal issue in the case. The reasons do not explain whether the evidence was considered but contrary evidence preferred; whether it was not considered at all; or whether, having initially permitted the questions to be asked, leave was not ultimately granted or was withdrawn. We consider it likely, given the conduct of the hearing, that this error was caused by uncertainty concerning the status of the experts’ report, Practice Direction 4/2009 and the status of the Tribunal’s directions following the joint report (that is, whether they continued to apply to expert witnesses who were signatories of the joint report). 

Ground One: The experts conclave and joint expert report

  1. [77]
    This ground of appeal is as follows:

The experts conclave was not undertaken in accordance with the Tribunal’s Directions by fault of the Tribunal. As a result we were disadvantaged by the experts conclave and the joint report produced for the following reasons;

  1. (i)
    The list of issues to be discussed at the experts conclave was not received by the Applicants;
  2. (ii)
    Matters for discussion were omissed (sic) as the experts conclave, particularly failures with the N3 wind terrain category condition requirements;
  3. (iii)
    The experts conclave discussion was mostly focussed on leaves and debris;
  4. (iv)
    No other evidence was discussed at the experts conclave relating to possible other causes;
  5. (v)
    The results of the experts conclave were inconclusive, the leaves and debris were not identified to be the cause of the leaking roof;
  6. (vi)
    All experts directed to attend the experts conclave were not present; and
  7. (vii)
    A new expert was allowed to attend the experts conclave which the Applicants were not made aware of.[32]
  1. [78]
    The Aldertons elaborated on this ground in their submissions.[33] There they argued:
    1. (i)
      The respondent had three roofing experts at the conclave while the applicants only had one expert who attended by telephone and one building certifier. This is in conflict with the QCAT Practice Direction No 4 of 2009 which provides that a party to a proceeding may call evidence from only one expert for each area of expertise.
    2. (ii)
      The joint experts’ report which arose out of the conclave only identified areas of agreement. This was also in conflict with Practice Direction 4 which sets out that the joint report must identify matters agreed upon and matters disagreed upon, and reasons for disagreement. This disadvantaged the applicants because they ‘were unable to submit further expert evidence about the areas of disagreement, which resulted in an ineffective hearing’.
    3. (iii)
      Tribunal Directions of 8 February 2016 provided that the Tribunal would settle a list of issues to be considered at the conclave and would provide the settled list to each party and to the experts on 24 April 2016. No such list was provided and instead the Member conducting the conclave advised that the issues discussed would be the issues raised by both parties. However, the joint experts report does not deal with non-compliance with N3 wind terrain conditions or cracking in ridge capping which were issues raised by the applicants in their list of issues to be discussed. The applicants do not know whether these issues were not raised at the conclave or were the subject of disagreement and hence excluded from the report.
    4. (iv)
      Darren Tsimpikas was directed by the Tribunal to attend the experts conclave.[34] He did not attend due to a family emergency and Dave Clark attended in his place. The applicants were disadvantaged by his nonattendance as it was Darren who had prepared the original Monier Report at the request of the applicants in September/October 2015. The joint experts report does not include reference to ‘sliding hips’ raised in Darren’s report, nor to the inadequate set-out of roof tiles.
  2. [79]
    It can be seen that the matters raised contain a number of related elements.
  3. [80]
    The outcome of the conclave was a joint experts’ report filed on 26 April 2016. The Aldertons have articulated what they say are inadequacies in the conclave and joint experts’ report, and have said that they would have wished Mr Tsimpikas to have been part of that process. In essence, they argue that the learned Member’s findings were flawed because the joint experts’ report was flawed and that the joint report was flawed because the conclave process was flawed.[35] In short, the Aldertons submit the joint report was inadequate because it did not deal with the issue of how the leaves came to be blocking the water courses and did not clearly identify, if at all, any areas of disagreement. They also submit that the process was unfair because the builders’ experts outnumbered the Aldertons’ experts because they had not limited themselves to one expert per area of expertise, as required by Practice Direction 4/2009. This meant the discussion at the conclave was necessarily skewed towards the expertise of the majority of the experts.
  4. [81]
    The builder’s representative submitted by way of response at the appeal hearing:

Ms Pezzutti:…I think ultimately, what the applicants are saying is they were unhappy with the experts report in the outcome of the conclave, and my submission is that the tribunal was not in error in accepting the report of the expert conclave, because it was not objected to by the applicants during the hearing, and no issue was raised at the hearing about that, and there was no decision by the Member in the absence of a challenge of the conclave report in his findings, and I’d submit that the applicants did not bring any application to introduce evidence that contradicted the conclave report, or to cross-examine any of the experts who participated in the report, and in the absence of that application, no decision was made by the tribunal that can be the subject of an enquiry now about whether there was an error, and the tribunal Member was entitled to rely on that report in making its findings, and didn’t fall into error in doing so.[36]

  1. [82]
    It should immediately be observed that the conduct of the conclave itself is confidential.[37] Absent of perhaps fraud, for example, it will not be possible for an appellant to contest the conduct or sufficiency of the conclave itself. In any event, the hearing presents the opportunity thereafter to remedy problems which may have arisen by reason of the conduct of the conclave or the joint report which emerges from it. 
  2. [83]
    Practice Direction 4/2009 contemplates the convening of a conclave with the purpose of identifying and clarifying areas of agreement and disagreement between the experts. It requires the preparation between the experts of a joint report which identifies the matters upon which the experts agree and disagree, together with the reasons for any disagreement. The joint report is taken to be the statement of evidence of each of the experts who participated in the conclave.[38] The Practice Direction provides for an expert to submit a further statement of evidence which relates to an issue of disagreement recorded in the joint report,[39] and except with the Tribunal’s leave, that an expert may not, in a statement of evidence or in oral evidence, depart from or qualify an opinion about an issue of agreement in the joint report or raise a matter not already mentioned in the joint report.[40]
  3. [84]
    The purpose of the Practice Direction is to facilitate the conduct of matters before the Tribunal. Its requirements are important in the day-to-day working of the Tribunal, and proper regard to the Practice Direction is important in ensuring that the work of the Tribunal, which often involves the opinions of multiple expert witnesses, is conducted efficiently and with due regard to the differences of views experts may often have concerning matters in dispute. However, the Practice Direction makes clear that, in appropriate circumstances, the agreed issues covered in the joint report may be the subject of further evidence, and indeed contrary evidence, if the leave of the Tribunal is first obtained.
  4. [85]
    Here, it was apparent from the experts’ report that all material issues in dispute were not agreed in the joint report, because only Mr Eves could comment more broadly on issues about structural adequacy. In those circumstances, in respect of those broader issues, Mr Eves’ evidence at the hearing and covered in his earlier report could not reasonably have been regarded as subject to the constraints contained in Practice Direction 4/2009 about later evidence.
  5. [86]
    The Tribunal should have been open, with appropriate reserve and respect for that which had preceded its consideration of the matter, to allow further evidence necessary in order to fully and properly consider the dispute before it. Here, in broad terms, insufficient regard was had to the inadequacy of the joint report and the ability of the parties to supplement and, with leave as necessary, qualify that which had been produced as a result of the conclave process. While the Practice Direction encourages experts to confer together and to agree about issues where possible, in respect of the issues in a matter before the Tribunal, that will not always be possible.
  6. [87]
    Nor will it always be the case that the conclave process can operate to give effect to the spirit of the Practice Direction which is to as efficiently as possible encapsulate and present to the Tribunal at hearing a well-considered and comprehensive description of the issues to be determined and the experts’ views upon them. Not uncommonly, parties engage experts from different disciplines, depending on how they each see the issues in dispute or because they do not understand the issues, or as here, either do not engage experts who can address all of the issues raised, or if the experts are appropriately qualified to address all issues, do not engage them (to sufficiently inspect in order) to give an opinion about all relevant issues.
  7. [88]
    It follows that in appropriate circumstances, it is permissible for a party at hearing to seek to challenge and qualify the sufficiency or adequacy of the joint report which results from the conclave, although the conduct of the conclave itself is not a ground to appeal. This is the main thrust of this ground of appeal: that limitations or inadequacies in the joint report, (which failed to grapple properly with the cause of the problem; failed to address issues essential to the determination of the proceeding; and that therefore, the agreed matters arising from the conclave were inconclusive) which were identified, and sought to be addressed, by the Aldertons at the hearing were ignored by the Tribunal in error. In effect, the Aldertons argue that they were not given a fair opportunity to present their case and to cross-examine the builder’s witnesses. 
  8. [89]
    The builder’s legal representative submitted that the ground of appeal as articulated by the Aldertons did not refer to alleging a breach of procedural fairness and argued that the ground should not therefore be characterised in this manner.[41] However, the characterisation is a legal term descriptive of the arguments made. Irrespective that the term was not used by the Aldertons, it is the substance of their complaints and their complaints are clear to the builder. 
  9. [90]
    As discussed, unfairness arising from the conclave and joint reporting process will find remedy on appeal not by reason of the conclave and joint report itself, but by the failure of the Tribunal to remedy injustice which may have arisen because of it. For that reason, we reject any grounds of appeal so far as they relate to the conduct of the conclave. However, as we have found above, the deficiency on the face of the joint report should have been taken into account and addressed by the learned Member in the conduct of the hearing. It was not. As a consequence, the Aldertons were not afforded a fair opportunity by the Tribunal to present their case, in breach of a central tenet of the requirement to observe procedural fairness.
  10. [91]
    Accordingly, the learned Member erred in law.

Ground Two: Non availability of expert witness at hearing

  1. [92]
    We have addressed this ground of appeal above.
  2. [93]
    Again, for the reasons explained, the Tribunal erred in failing to observe procedural fairness resulting in an error of law.

Ground Three: Failure to consider relevant evidence

  1. [94]
    We have considered this ground above as it relates to evidence given at the hearing by Mr Eves relating to the structural deficiencies with respect to the roof.
  2. [95]
    We would add that the silicone glue used to install the gutter guard was determined by the QBCC to have caused blockage and was the subject of a direction to rectify to the builder. There was evidence that the glue could have caused consequential damage to battens in the roof which would appear, in our view, may constitute a structural deficiency. The Member did not deal with the silicone glue or with the issue of resultant damage. This, in our view, was also an error.
  3. [96]
    As discussed earlier, the learned Member’s reasons for decision do not reveal the basis for disregarding or rejecting the evidence, if he did. In this respect, his reasons for decision were inadequate. Failing to give adequate reasons for decision also constitutes an error of law.

Ground Four: in determining no application for review of QBCC decisions had been made

  1. [97]
    The Aldertons did not make a proper application for review. The QBCC Act requires that a party dissatisfied by a decision of the QBCC must apply for internal review of the decision within prescribed timeframes. If still dissatisfied with the decision given on internal review, a party may apply to QCAT for external review. The Aldertons did not apply for internal review of the decision complained about. Therefore, the Tribunal had no jurisdiction to consider an application from the Aldertons to review the QBCC’s decision. (Even had they been through internal review, by the time they belatedly applied to join the QBCC as a party to the building dispute,[42] it would have been too late to apply for review.)
  2. [98]
    The Aldertons make the following submissions about this:

We did not make an application for administrative review with the QBCC as we felt our right to the statutory warranty was being withheld from us. Therefore we made a Domestic Building Dispute application to QCAT to review the decision of the QBCC under the Tribunals review jurisdiction.[43]

  1. [99]
    It appears from the builder’s submissions regarding the application for joinder that the issue was treated as whether the QBCC should be joined to the building dispute rather than whether an application for review (coupled with an application for an extension of time) could be made in respect of the decision of the QBCC not to issue a direction to rectify. Given the original application to the Tribunal which specifically refers to a review and the letter of 29 September 2015 by way of submissions from the Aldertons to the Tribunal which sought ‘an outcome from the Tribunal that would see the decision of the QBCC (22 April 2015) to be overturned…’, and their letter of 20 October 2015 which specifically refers to s 21 of the QCAT Act, it seems to us that the intent of the Aldertons in joining the QBCC was in effect, to apply for review. We note that it is not uncommon in the Tribunal for building disputes to be run in parallel with applications for review of decisions made regarding defective work.
  2. [100]
    The application for joinder was, however, refused on 26 October 2015. No reasons were provided.
  3. [101]
    The Member dismissed the ‘applicant’s [sic] claim for review of the QBCC’s decision dated 22 April 2015’. In doing so the Member referred to the builder’s submissions:

The builders point out that the applicants have not made an Application for a Review of the QBCC’s decision dated 22 April 2015 in accordance with s 18 of the QCAT Act. They argue that an application for review of the decision is now out of time pursuant to section 33(3) of the QCAT Act and therefore the Tribunal has no jurisdiction to make the order sought in the amended application.[44]

  1. [102]
    The Member deals with the issue as follows:

I accept the builder’s submission that the decision of the QBCC has not been the subject of administrative review and I note the finding in relation to items 2 and 3 of the applicant’s schedule of defective work that this is not a defect that the builder is responsible for because the tiled roof is performing and is within the tolerances allowed in AS2050-2002.[45]

  1. [103]
    Although the Member may have dealt with the issue more comprehensively, the explanation for not doing so could probably be found in the fact that the application could not be brought because there had been no internal review; even had the Aldertons been eligible to apply under the QBCC Act, it was not brought in the proper form,[46] nor was it treated by the parties, particularly the Aldertons, as being an application for review. At the hearing, the builder’s counsel objected to certain questions asked by Mr Alderton on the basis the questions were directed to reports relied upon in arriving at its decisions in the matter and those decisions had not been the subject of review. The Member allowed the questions of Mr Hutson but then said:

Member: What I’m concerned about is that we’re not reviewing behaviour of the QBCC here, are we?[47]

  1. [104]
    The Aldertons both answered no.[48] It is clear from the transcript that the Member, the parties and the builder’s counsel all proceeded on the basis that an application for review had not been made. (As indeed, it had not and could not be in the absence of internal review having occurred).
  2. [105]
    For that reason, the learned Member was not in error in dismissing the claim for review at the hearing of the building dispute.

Ground Five: the circumstances in which the builders were given leave to be legally represented

  1. [106]
    Leave was granted to the builders for legal representation in respect of the original proceeding in July 2016. Both parties were granted leave to be legally represented in the appeal proceedings on 24 November 2017. The Tribunal has the power to grant leave for representation pursuant to s 43 of the QCAT Act where the ‘interests of justice’ require it. Whether to grant leave for representation is therefore a matter of discretion.
  2. [107]
    The decisions about legal representation were not made in the decision appealed. Whether a party has been granted leave to be represented is not a valid ground of appeal of the substantive issues in the case. For this reason, the ground of appeal is without merit.

Ground Six: the Member failed to consider the application of the statutory warranties under s 74(1) and (2A) of the Trade Practices Act 1974 (Cth) despite intimating he would ‘get to it’ and that there may have to be submissions about it

  1. [108]
    The Aldertons filed an application for miscellaneous matters on 11 October 2016 seeking to add a claim under s 74(1) and (2A) of the Trade Practices Act 1974 (Cth).
  2. [109]
    The Member dealt with the issue by stating that ‘the Tribunal doesn’t have any jurisdiction in relation to trade practices matters because that’s a Commonwealth matter’.[49]
  3. [110]
    The builders argue that the Tribunal did not fall into error in treating that application as one outside its jurisdiction.
  4. [111]
    On 1 January 2011, the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth) changed the name of the Trade Practices Act to the Competition and Consumer Act 2010 (Cth). Schedule 2 to that Act, the Australian Consumer Law (‘ACL’), contains consumer guarantees relating to the supply of services in trade and commerce to a consumer. Section 60 of the ACL provides:

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

  1. [112]
    A contract to construct a house is not, in our view, a contract for the supply of services. Section 2 of the ACL provides an inclusive and broad definition of ‘services’. The definition, however, expressly excludes any rights or benefits being the supply of goods or the performance of work under a contract of service. Section 8 of the ACL provides that, for the purposes of the ACL, goods are taken to be supplied to a consumer even if they are affixed to land or premises at the time of the supply. This means that where items are supplied in relation to another transaction, such as building a house, and are fixed to the land, those items are goods for the purposes of the ACL.[50] Accordingly, even if we were to assume the reference by the Aldertons to s 74 of the Trade Practices Act was a reference to s 60 of the ACL, the provision would have no application here.
  2. [113]
    In relation to whether the Tribunal has jurisdiction to determine an action for damages against a supplier of services the answer is not simply that the Tribunal lacks jurisdiction because the action is sourced in Commonwealth legislation, namely the ACL.
  3. [114]
    The Australian Consumer Law has been adopted as a law of Queensland by the Fair Trading Act 1989 (Qld) (‘FTA’) and is to be referred to as the ‘ACL’ (Qld).[51] Division 4 of the FTA confers jurisdiction to deal with particular matters arising under the ACL (Qld).[52] Section 50 of the FTA confers original jurisdiction on the Tribunal in respect of proceedings for the purposes of the provisions listed in the table contained within s 50 where the subject of the proceeding would be a minor civil dispute within the meaning of the QCAT Act.[53] An action to recover damages against a supplier of services because of a failure to comply with a guarantee is listed in the table to s 50 which means it can be heard in the Tribunal if the proceeding would be a ‘minor civil dispute’ within the meaning of the QCAT Act.[54]
  4. [115]
    The Tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under the QCAT Act, applied to the tribunal to deal with the dispute.[55] ‘Relevant person’ is defined to include circumstances where a claim arises out of a contract between a consumer and a trader.[56] A relevant person limits their claim to the prescribed amount (being $25,000) automatically by applying to the Tribunal to deal with the matter as a minor civil dispute. Otherwise, a relevant person may agree to limit their claim to the prescribed amount in order to bring the claim within the Tribunal’s jurisdiction for a minor civil dispute.[57] It follows that the Tribunal does have jurisdiction for a building dispute which includes a claim for damages for breach of the guarantee as to services in s 60 of the ACL, provided the contract is not for the construction of a home,[58] and the claim is limited to $25,000.
  5. [116]
    The ground of appeal is without merit.

Ground Seven: the chronology of facts relied upon by the Member was incorrect

  1. [117]
    The parties were each directed to provide a chronology to the Tribunal. There were a number of differences and events which were included in one chronology but not the other. The Member provided a ‘summary’ of the chronologies. The Aldertons refer to a number of mistakes in the chronology adopted by the Member at paragraph (a) of their submissions filed 3 October 2017. These discrepancies are not material to the proceedings and, in our view, would not have made any difference to the decision.

Conclusions and orders

  1. [118]
    For the reasons explained, the learned Member erred in failing to observe procedural fairness in material respects and in failing to give adequate reasons for his decision. The failures constitute errors of law.
  2. [119]
    That being the case, we must dispose of the appeal pursuant to s 146 of the QCAT Act. The appeal should be allowed. In the circumstances described, the Tribunal’s decision should be set aside. However, we are not in a position, because of the nature of the errors made by the Tribunal, to substitute our own decision by making final orders in the substantive proceeding.  Further evidence about the principal issue is necessary having regard to our conclusions.
  3. [120]
    Accordingly, we make orders as follows:
    1. The appeal is allowed.
    2. (a) The decision of the Tribunal dated 28 March 2017 is set aside;
  1. (b)
    The matter is remitted to the Tribunal differently constituted for rehearing;
  1. (c)
    The Tribunal is directed to allow the filing and hearing of such further evidence as it may consider appropriate.

Footnotes

[1]  Tribunal Directions, dated 8 May 2017.

[2]  Appeal Tribunal Transcript (‘AT’) of 9 March 2018, 1-4, 5.

[3]  Roof Inspection Report by Central Coast Roof Tiling, dated 6 February 2015.

[4]  QBCC Roof Inspection Report, dated 17 February 2015.

[5]  QBCC Report, dated 10 April 2015.

[6]  Form 26 (Application for domestic building disputes) Queensland Building and Construction Commission Act 1991, dated 19 February 2016.

[7]Raub & Alderton v Wide Bay Constructions t/as Dixon Homes Hervey Bay [2017] QCAT 90.

[8]  In any event, they were not before the Appeal Tribunal.

[9]  Appeal Book of Aldertons filed 18 July 2017, p 234-235.

[10]  Appeal Book of Aldertons filed 18 July 2017, p 237.

[11]  Transcript, 1-31.

[12]  Transcript, 1-32.

[13]  QCAT Act s 28(a).

[14]Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 citing Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143, [8].

[15]  Ibid 540, citing Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, [37].

[16]  Ibid 541.

[17]Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66, [15], [150].

[18]  QCAT Act, s 28(3)(e).

[19]  QCAT Act, s 29(1)(a)(i).

[20]  AT 1-90, 91.

[21]  Ibid 1-33.

[22]  Transcript 1-69.

[23]  Ibid 1-76.

[24]  Ibid 1-78.

[25]  Ibid 1-80.

[26]  Ibid 1-81.

[27]  Ibid 1-82.

[28]  Ibid 1-82.

[29]  Ibid 1-83.

[30]  Ibid 1-84.

[31]  Reasons, [42].

[32]  Application for leave to appeal or appeal filed 24 April 2017, Attachment A.

[33]  Applicants’ submissions filed 18 July 2017, [2]-[5], [7].

[34]  Tribunal Directions dated 22 April 2016.

[35]  AT 1-46.

[36]  Ibid 1-44.

[37]  QCAT Practice Direction 4 of 2009, clause 13.

[38]  Ibid clause 18.

[39]  Ibid clause 19.

[40]  Ibid clause 20.

[41]  AT, I-56 to I-57.

[42]  Form 40, filed 27 August 2015.

[43]  Aldertons’ submissions filed 18 July 2017, item 1(c).

[44]  Reasons, [39].

[45]  Reasons, [46].

[46]  See for example: Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59.

[47]  Transcript, 1-45.

[48]  Ibid 1-45.

[49]  Transcript, 1-10.

[50]  Explanatory Memorandum, [2.42].

[51]Fair Trading Act 1989 (Qld), s 16.

[52]  FTA, s 48.

[53]  Considered in Sanctuary Cove Golf and Country Club Pty Ltd v Machon [2019] QCATA 1.

[54]  FTA, s 50(1)(a).

[55]  QCAT Act, s 12(1).

[56]  QCAT Act, s 12(4)(b).

[57]  QCAT Act, s 12(2).

[58]  Excluded from the definition of services in s 2.

Close

Editorial Notes

  • Published Case Name:

    Alderton & Anor v Wide Bay Constructions Pty Ltd t/a Dixon Homes Hervey Bay

  • Shortened Case Name:

    Alderton v Wide Bay Constructions Pty Ltd

  • MNC:

    [2019] QCATA 105

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Traves

  • Date:

    11 Jul 2019

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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