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

Tinney v Allen[2019] QCATA 116

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Tinney v Allen [2019] QCATA 116

PARTIES:

STEPHANIE KATE TINNEY

(appellant)

 

v

 

CHRISTOPHER ALLEN

(respondent)

APPLICATION NO/S:

APL243-18

ORIGINATING APPLICATION NO/S:

MCDO 25/18

MATTER TYPE:

Appeals

DELIVERED ON:

12 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 2 August 2018 is set aside.
  4. The Application is remitted for hearing before a different Adjudicator.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant applied for leave to appeal – where Tribunal dismissed claim for want of jurisdiction – whether claim was minor civil dispute or building dispute – where enabling Act conferred jurisdiction as building dispute

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where enabling Act prescribed early dispute resolution process – where appellant not given opportunity to present evidence of compliance – where leave needed to correct substantial injustice

Queensland Building and Construction Commission Act 1991 (Qld), s 75, s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, Schedule 3

AAlert Training Pty Ltd v Scott & Ors [2014] QCATA 95

Big4 Brisbane Northside Caravan Village v Schleibs [2012] QCAT 277

Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65

Edwards v Edgar & Wood Solicitors [2018] QCATA 154

Leyden v NJ Tierney Constructions Pty Ltd

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Pisa v Rountree [2011] QCATA 64

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Walsh v Australian Building and Construction Group [2016] QCAT 187

REPRESENTATION:

 

Applicant:

Self-represented 

Respondent:

Self-represented

APPEARANCES:

 

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

What is this appeal about?

  1. [1]
    An Adjudicator dismissed Stephanie Tinney’s claim of $1,520.00 plus costs against Christopher Allen as a refund for planning work. The learned Adjudicator found that the Tribunal did not have jurisdiction to decide the application because it was not for a liquidated sum and was not a consumer-trader dispute because Mr Allen is not a ‘trader’.
  2. [2]
    Ms Tinney wants to appeal the decision on the basis that Mr Allen has a building licence and is therefore a trader. Ms Tinney’s appeal on this ground must fail. Mr Allen drafted plans. His work is produced as a result of intellectual activity.[1] The Appeal Tribunal is satisfied that Mr Allen was not a trader because he was acting in the exercise of an exempt discipline.[2]
  3. [3]
    However, that does not end the appeal. In deciding that the Tribunal did not have jurisdiction, the learned Adjudicator failed to consider whether the Tribunal had jurisdiction to decide the application as a ‘building dispute’.
  4. [4]
    Having decided that the application was not a ‘minor civil dispute’,[3] it was appropriate to then ask whether it otherwise fell within the Tribunal’s jurisdiction and if so, the appropriate way to process it. By not considering these issues, the learned Adjudicator failed to consider relevant considerations which denied Ms Tinney the opportunity to address the Tribunal on these issues. This amounts to a denial of procedural fairness and is an error of law for which leave to appeal should be granted.[4]
  5. [5]
    Preparing plans specifically falls within the definition of ‘tribunal work’[5] for the purposes of a ‘building dispute’.[6] Because the application is a ‘building dispute’, the enabling Act prescribes the procedures to be followed and, to the extent of any inconsistency between that procedure and the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the enabling Act prevails.[7]
  6. [6]
    The enabling Act requires Ms Tinney required to file evidence of participating in early dispute resolution under section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld). Ms Tinney was not alerted to this requirement or given an opportunity to present this evidence.
  7. [7]
    Leave to appeal should be granted and the appeal allowed. The matter should be remitted for hearing before a different Adjudicator to determine whether Ms Tinney has complied with the requirements of section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) and if so, whether to remit the application to the Tribunal’s building list. 
  8. [8]
    The consequence of Ms Tinney not complying with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) will be that the Tribunal does not have jurisdiction to decide her application. It does not matter that Ms Tinney filed her application as a minor civil dispute.[8] This is because there is no basis to displace the learned Adjudicator’s finding that the application was not for a liquidated sum – it is not a case of total failure of consideration. Ms Tinney’s application would require an assessment of damages based on an alleged breach of contract.
  9. [9]
    Importantly, compliance cannot be retrospective. Because compliance with section 77(2) of the Act is the gateway through which an applicant must pass before filing an application for a building dispute,[9] non-compliance with section 77(2) of the Act will be fatal to Ms Tinney’s application:

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]

  1. [10]
    In that event, whether Ms Tinney should file in the Tribunal a further application for a minor commercial building dispute upon compliance with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) is a matter upon which she might wish to obtain independent legal advice.

What are the appropriate Orders?

  1. [11]
    The appropriate Orders are:
    1. Leave to appeal granted.
    2. Appeal allowed.
    3. The decision of 2 August 2018 is set aside.
    4. The Application is remitted for hearing before a different Adjudicator.

Footnotes

[1] Edwards v Edgar & Wood Solicitors [2018] QCATA 154, [15] citing Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65, [21].

[2] Edwards v Edgar & Wood Solicitors [2018] QCATA 154, Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65, AAlert Training Pty Ltd v Scott & Ors [2014] QCATA 95, Pisa v Rountree [2011] QCATA 64.  

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, Schedule 3.

[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[5] Queensland Building and Construction Commission Act 1991 (Qld), s 75(1)(f).

[6] Queensland Building and Construction Commission Act 1991 (Qld), s 77(1).

[7] Big4 Brisbane Northside Caravan Village v Schleibs [2012] QCAT 277, [31] (Wilson J).

[8] Walsh v Australian Building and Construction Group [2016] QCAT 187, [13].

[9] Walsh v Australian Building and Construction Group [2016] QCAT 187, [8], citing with approval Leyden v NJ Tierney Constructions Pty Ltd [2015] QCAT 483.

[10] Walsh v Australian Building and Construction Group [2016] QCAT 187, [12].

Close

Editorial Notes

  • Published Case Name:

    Tinney v Allen

  • Shortened Case Name:

    Tinney v Allen

  • MNC:

    [2019] QCATA 116

  • Court:

    QCATA

  • Judge(s):

    Member Hughes

  • Date:

    12 Jul 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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.