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Jorg v Queensland Building and Construction Commission[2019] QCATA 124

Jorg v Queensland Building and Construction Commission[2019] QCATA 124

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jorg & Anor v Queensland Building and Construction Commission [2019] QCATA 124

PARTIES:

franz jorg

(first applicant)

 

CHRISTINA JORG

(second applicant)

v

 

queensland building and construction commission

(respondent)

APPLICATION NO/S:

APL378-16

ORIGINATING APPLICATION NO/S:

GAR264-15

MATTER TYPE:

Appeals

DELIVERED ON:

7 August 2019

HEARING DATE:

22 September 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding

Member Deane

ORDERS:

The application for leave to appeal and appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where decision to deny home owners’ claim under statutory insurance scheme confirmed on review – where home owners’ argue that Tribunal erred in both law and fact – where home owners’ also allege a denial of procedural fairness at hearing – whether the Tribunal’s decision on review to confirm the QBCC’s decision was contrary to the available evidence –– whether leave to appeal or appeal should be granted

Building Code of Australia

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 69, s 69(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28, s 141, s 142, s 142(1), s 142(3)(b), s 146, s 147

Chambers v Jobling (1986) 7 NSWLR 1

Dearman v Dearman (1908) 7 CLR 549

Dunmoor Pty Ltd v Queensland Building and Construction Commission & Anor [2016] QCATA 39

Ericson v Queensland Building and Construction Commission [2014] QCA 297

Fox v Percy (2003) 214 CLR 118

Gray v Simmons [2016] QCAT 239

Harrison & Anor v Meehan [2017] QCA 315

John Urquhart t/as Hart Renovations v Partington [2016] QCA 199

Jorg v Queensland Building and Construction Commission [2016] QCAT 364

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Moose Plastering Pty Ltd v Habul [2014] QCATA 354

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

J Stroud, legal counsel of the Queensland Building and Construction Commission

REASONS FOR DECISION

  1. [1]
    Mr and Mrs Jorg (‘the Jorgs’) are homeowners, who made a claim against the statutory insurance scheme administered by the Queensland Building and Construction Commission (‘QBCC’) in respect of leaking windows, described as the sitting and dining room windows and the southern veranda window. The QBCC declined their claim.[1]
  2. [2]
    The Jorgs unsuccessfully applied to the Tribunal to review the QBCC’s decision. Their review application was heard over two days.[2] They subsequently commenced appeal proceedings in respect of the Tribunal’s review decision.[3]
  3. [3]
    The Jorgs are self-represented in the appeal proceedings. They have done their best to articulate the reasons they say the learned Member’s decision should be set aside.
  4. [4]
    The delay in finalising this appeal proceeding is regrettable and relates to resourcing issues.

Leave to appeal and appeal

  1. [5]
    On appeal, legal, factual or discretionary error must be demonstrated. An appeal is not another opportunity to simply reargue and remake submissions not accepted at the initial hearing. It is not sufficient that the Appeal Tribunal might have come to a different conclusion if it was hearing the matter for the first time. Appellate tribunals will not usually set aside findings of fact on appeal if there is evidence capable of supporting the conclusions reached.[4] However, if the conclusion is ‘contrary to compelling inferences’ an appellate tribunal may interfere.[5]
  2. [6]
    An appeal on a question of law only is an appeal in the strict sense. A breach of procedural fairness, if established, is an error of law.[6] In deciding an appeal on a question of law only, the appeal tribunal must proceed under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). There is no element of rehearing. Here, the grounds of appeal raise questions of law, and mixed law and fact. An appeal on a question of fact or a question of mixed law and fact may be brought only if leave to appeal is granted.[7] An appeal decided on a question of fact or on a question of mixed law and fact must be decided by way of rehearing.[8]
  3. [7]
    Leave to appeal will usually only be granted where there is a reasonable argument that the Tribunal’s decision is attended by error and the appeal is necessary to correct a substantial injustice caused by the error.[9]

The grounds of appeal

  1. [8]
    The grounds of appeal are as articulated in the Appeal Tribunal’s direction dated 10 May 2017 and as supplemented by the Jorgs’ final submissions as follows:[10]
    1. (a)
      There was a lack of procedural fairness in the way the learned Member conducted the hearing in:
      1. (i)
        Cross-examination of Mrs Jorg with the assistance of Mr Cuppitt, the original decision maker for the QBCC;
      1. (ii)
        There was no cross-examination of Mr Cuppitt;
      1. (iii)
        The cross-examination of witnesses including Mr Southern and Mr Hayes was cut short; and
      1. (iv)
        The Jorgs did not have a proper opportunity to prepare submissions within the time given, which was three business days, although five days in total because it included a weekend.
  1. (b)
    The finding of the Tribunal that the Jorgs are not able to claim under the statutory insurance scheme because there was no contract with Mr Southern, is contrary to the evidence available to the Tribunal including because important evidence before the Tribunal was not considered. In particular, the evidence that demonstrated that there were two separate pieces of defective work causing the leaking.

Background

  1. [9]
    The Jorgs’ experience in building their house was very difficult for them. The statutory insurance scheme is designed to assist homeowners in certain specific circumstances. However, it does not respond to all possible, difficult and unfortunate circumstances, which homeowners may encounter in building a house.
  2. [10]
    Further, we observe that these appeal proceedings relate to the review of a particular decision of the QBCC. The review, and the issues raised in this appeal proceeding, are confined to limited and particular matters, that sit within a more complex and wide-ranging factual matrix that may be relevant in other circumstances. 
  3. [11]
    Many of the relevant facts are not in dispute, and were not contested in the review proceeding.
  4. [12]
    The Jorgs entered into a contract dated 14 March 2010 with Good Living Constructions (‘GLC’), the original builder, to build a new house (‘GLC Contract’). GLC obtained and accepted a quote, no 1793, from Impact Aluminium Windows and Doors Pty Ltd (‘Impact’), suppliers of aluminium windows and doors. The evidence is that Impact’s quote addressed to the Jorgs,[11] was for the supply and installation of items 29-32 and 34-40, which items included the sitting and dining room windows and for the supply of the balance. Much of the evidence in this matter was in respect of the sitting and dining room windows. Under the GLC Contract, the windows and doors work was a ‘Prime Cost item’. The Jorgs had interactions with Impact in finalising their selection of windows and doors for their house.
  5. [13]
    Issues arose between the Jorgs and GLC. The Jorgs sought advice from Mr Southern, a licensed builder. The Jorgs were considering terminating the GLC Contract from at least March 2011. The evidence was that the Jorgs and/or Mr Southern on the Jorgs’ behalf held discussions with Impact in relation to the windows the subject of quote no 1793, in or about March 2011, in anticipation of the GLC Contract being terminated and Mr Southern being engaged to perform work.
  6. [14]
    The GLC Contract was subsequently terminated by mutual agreement on 9 June 2011.[12] At that time, many of the windows had been manufactured pursuant to a contract between GLC and Impact, but none had been delivered to site. The evidence was that a significant proportion of the price quoted in a quote no 1793 had been paid to Impact prior to their delivery to site.
  7. [15]
    In the meantime, Impact encountered financial difficulties. The business was sold to SI Fabrications Pty Ltd, which also traded as Impact Aluminium Windows and Doors (referred to as ‘Impact Mark 2’). The evidence is that settlement of the sale of the business occurred on 19 October 2011. Impact and Impact Mark 2 agreed to honour quote no 1793 for the windows and doors, despite the GLC Contract being terminated.
  8. [16]
    There is evidence that Impact delivered windows and doors on or about 3 October 2011,[13] and Impact or Impact Mark 2 performed unsatisfactory installation work in mid-October 2011.[14] The unsatisfactory work was performed by 20 October 2011, when photographs were taken and sent to Impact Mark 2.
  9. [17]
    Neither Impact nor Impact Mark 2 were licensed to install the windows.
  10. [18]
    After the GLC Contract was terminated, the Jorgs had entered into a cost plus contract dated 7 July 2011 with Mr Southern for rectifying work done by GLC (‘the Rectification Contract’). The rectification works were set out in a non-exhaustive way, no doubt, to accommodate defective work by GLC, which was uncovered once commenced. They included ‘install window and door openings to fit window sizes including at steel portal frames’. This work was required to be performed before the windows could be installed by Impact.
  11. [19]
    The Jorgs entered into a further contract dated 20 November 2011 with Mr Southern to complete certain works previously part of the GLC Contract (‘the Completion Contract’). The Jorgs gave evidence that the terms of the Completion Contract were agreed between the parties by 20 October 2011 and that Mr Southern performed works pursuant to their oral agreement prior to the agreement being documented and signed.
  12. [20]
    The southern veranda window was ordered later. The Jorgs accepted quote no 2890 dated 10 November 2011 from Impact Mark 2 for the southern veranda window.
  13. [21]
    The sitting and dining room windows were installed by a person named ‘Paul’ on 14 and 19 October 2011. The installation work was defective. From in or about late October 2011 Mr Southern removed and reinstalled the windows. Much of the evidence focussed on the work performed by Mr Southern on 27 October 2011. Further, Mr Southern installed the veranda window on about 17 December 2011.
  14. [22]
    It is uncontentious that the work in relation to the sitting and dining room windows and the veranda windows is defective. The QBCC issued a Direction to Rectify (‘DTR’) to Impact Mark 2 in respect of it.
  15. [23]
    The DTR was issued by QBCC to Impact Mark 2 in the following terms:[15]

You are directed to have the following defective or incomplete building work rectified by a licensed contractor(s) within the Time Period for Completion.

  1. Water penetration occurs to the interior of the dwelling from the ends of the sub-sill section to the fixed aluminium framed windows located along the external wall to the sitting, dining and enclosed veranda areas and from the transom sill section to the second window from the northern end of the sitting area. This is resulting in water ponding on the floor tiles causing a health and safety issue to the occupants in the dwelling. The Building Code of Australia Volume 2 Part 2.2 clause P2.2.2 requires that external walls including openings around windows must prevent the penetration of water.
  1. [24]
    The DTR was not complied with: in the meantime, Impact Mark 2 went into liquidation.

The review hearing and Tribunal’s decision

  1. [25]
    The Tribunal confirmed the decision of the QBCC to refuse the insurance claim in respect of the windows.
  2. [26]
    The issue for determination by the learned Member in deciding the review application was whether a policy of insurance under the statutory insurance scheme established by the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) had come into force, in respect of the leaking windows that had been the subject of a DTR.
  3. [27]
    The learned Member particularised the windows that were the subject of the insurance claim.[16] His findings in this regard are not challenged in the appeal proceedings. To decide the review, the learned Member was required to determine the contractual arrangements under which Impact Mark 2 performed the defective work the subject of the DTR.
  4. [28]
    As discussed, it was not in dispute that work performed by Mr Southern in installing/re-installing the sitting and dining room windows was defective. The primary matter for determination was for whom Mr Southern performed that defective work. The learned Member found that Mr Southern performed the work under a contract between him and Impact Mark2.
  5. [29]
    The learned Member also considered the evidence in relation to the leaking southern veranda window, which as discussed, was installed under different contractual circumstances, being Impact Mark 2 quote 2890 dated 10 November 2011 addressed to Mrs Jorg. The learned Member found that the window was supplied and installed pursuant to an agreement between Impact Mark 2 and the Jorgs. The learned Member accepted the evidence of QBCC’s inspector, Mr Hayes, that the southern veranda window had a manufacturing defect rather than an installation defect.[17] Again, there was no dispute that Mr Southern installed this window. The learned Member found that the manufacture of the window was pursuant to a contract between Mrs Jorg and Impact Mark 2.
  6. [30]
    Accordingly, the Tribunal found that the defective work did not arise from a contract between the Jorgs and a licensed contractor. Therefore, it held the statutory insurance policy ‘did not arise’, unless Impact had fraudulently claimed to be a licensed contractor. The learned Member was not satisfied that Impact had so claimed.
  7. [31]
    Whilst it is perhaps not entirely clear, we infer, because we have not been referred by the Jorgs to specific paragraphs of the learned Member’s reasons relating to the southern veranda window and because of the concessions in the appeal proceedings that Impact paid Mr Southern for the installation of the southern veranda window in the Jorgs’ written submissions handed up at the appeal tribunal hearing,[18] that the Jorgs are not seeking to set aside the findings in respect of this window.[19] Even if the Jorgs intend their more general submissions that Mr Southern was responsible to include the findings in respect of this window, we are not satisfied that any error causing substantial injustice has been demonstrated.
  8. [32]
    At this stage, we observe that the Jorgs produced evidence that Mr Southern had failed to waterproof window openings, prior to the installation of window frames and windows and they contend this also contributed to the water penetration they were experiencing. They particularly relied upon a statement by another builder, Mr Ratcliffe.[20] Mr Ratcliffe did not give oral evidence in the proceedings. Although, a complete copy of the transcript was not provided to us, we accept the Jorgs’ submissions that Mrs Jorg brought Mr Ratcliffe’s statement to the learned Member’s attention at the start of day one of the hearing. The QBCC’s submissions handed up to the learned Member acknowledged that Mr Ratcliffe’s statement was part of the material given to the QBCC by the Jorgs.[21] Mrs Jorg submitted to us that Mr Ratcliffe was available to give evidence by phone but the learned Member would not permit it.
  9. [33]
    There is no exchange of this nature in the copy of the transcript before us, which commences at 11.54am on 22 July 2016, and indicates the hearing was resumed at that time. The learned Member did not specifically refer to Mr Ratcliffe’s evidence in his reasons. However, he referred generally to a large body of evidence and documentation that the Jorgs had submitted, which he regarded as having no or little relevance.[22]
  10. [34]
    Because Mr Southern was a licensed contractor, the QBCC accepted that if the defective installation/re-installation work was performed by Mr Southern under an agreement with the Jorgs, a policy of insurance had come into force.
  11. [35]
    At this point, it is useful to note that s 69(2) of the QBCC Act provides that:
  1. (2)
    A policy of insurance comes into force in the terms stated in the Board’s policies for the purpose –
  1. (a)
    if a consumer enters into a contract for the performance of residential construction work, and –
  1. (i)
    the contract bears the licence number of a licensed contractor, and under the licensed contractor’s licence, the licensed contractor may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme; or
  1. (ii)
    the contract is with a licensed contractor and, under the licensed contractor’s license, the licensed contractor may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme; or
  1. (iii)
    the contract is with a person fraudulently claiming to hold a licence under which the person may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme...

Ground of Appeal: The finding of the Tribunal that the Jorgs are not able to claim under the statutory insurance scheme because there was no contract with Mr Southern, is contrary to the evidence available to the Tribunal including because important evidence before the Tribunal was not considered

  1. [36]
    In essence, the Jorgs contend that the learned Member erred in finding that a contract, in respect of the supply and installation of the leaking sitting and dining room windows, was formed by conduct between the Jorgs and Impact and that Mr Southern performed the defective installation work as a subcontractor to Impact Mark 2. They contend that the defective work was performed by Mr Southern pursuant to an agreement(s) between the Jorgs and Mr Southern.
  2. [37]
    The Jorgs’ submissions,[23] set out a number errors they contend the learned Member made. The QBCC submissions ascribed numbers to most of the alleged errors.[24] For convenience, we have adopted that numbering system below. The unnumbered alleged errors also addressed in the paragraphs that follow arise from the Jorgs’ written submissions[25] handed up at the appeal tribunal hearing.
  3. [38]
    For the reasons explained in the paragraphs that follow, we are not satisfied that this ground of appeal is made out.

Error 1 – the second report issued by QBCC was not the initial report

  1. [39]
    The Jorgs contend that the learned Member made an error in that he was apparently not aware that two inspection reports were prepared by Mr Hayes and did not refer to the first report.
  2. [40]
    Both reports were in evidence before the learned Member. Both were described as ‘Initial Inspection Report’. The windows the subject of the proceedings were identified by reference to the report to which reference was made.[26]
  3. [41]
    The Jorgs’ Submissions in Reply,[27] elaborate on this submission and contend that the QBCC has not complied with its policies. This does not point to an error by the learned Member.
  4. [42]
    We are not satisfied that the learned Member was unaware that there were two inspection reports prepared by Mr Hayes. There were numerous documents before the learned Member. A failure to specifically refer to a document does not mean that the learned Member did not consider the document and its relevance. For reasons which we elaborate on later in these reasons it is not surprising that the learned Member specifically referred to the second report. It was the report, which resulted in the issue of the DTR, which when not complied with lead to a consideration of whether an insurance policy came into existence.
  5. [43]
    We are not satisfied that the matters raised demonstrates an error by the learned Member.

Error 2 – Work did not grind (sic),[28] to a halt as the Tribunal found

  1. [44]
    The Jorgs contend that the learned Member made an error in that he incorrectly assumed that no work was being done by GLC by around March 2011 and he did not explore at the hearing whether or not GLC worked on site during or after March 2011. In particular, they contend that they took their diaries to the hearing and they could have used the diaries to prove this fact.
  2. [45]
    They also contend that the learned Member incorrectly decided that ‘by this time,[29] it was clear that GLC would not be continuing on the construction of the house’.[30]
  3. [46]
    The learned Member’s statements appear to be by way of background information. These statements may have been an over simplification of the evidence. However, the learned Member found, and the Jorgs do not dispute, that the GLC Contract was terminated by mutual agreement on 9 June 2011. As set out earlier there was evidence that the Jorgs were considering terminating the GLC Contract from at least March 2011 because of the issues they were encountering with GLC. The evidence was that the Jorgs and/or Mr Southern on the Jorgs’ behalf held discussions with Impact in relation to the windows the subject of quote no 1793 in or about March 2011 in anticipation of the GLC contract being terminated.
  4. [47]
    We are not satisfied that the matters raised demonstrates an error causing substantial injustice.

Error 3 - the Tribunal found incorrectly there was a contract by conduct since about March 2011

  1. [48]
    The Jorgs contend the learned Member found there was a contract between the Jorgs and Impact in or about March 2011. The learned Member did not stipulate the date the contract was formed. He found that the contract by conduct arose ‘at some point in time before the windows were delivered in early October 2011’.[31] He identified the facts he considered in making the finding that a contract by conduct was formed, which included evidence that Impact changed the account name from GLC to Mrs Jorg but that was only one of a number of factors taken into account.
  2. [49]
    On a review of the evidence before the learned Member, to which we will refer in greater detail later in these reasons, we are satisfied that the conclusion that the contract by conduct arose ‘at some point in time before the windows were delivered in early October 2011’ was open on the evidence.
  3. [50]
    We are not satisfied that the matters raised demonstrate an error.

Error 4 – The work of the window removal and re-installation was not carried out by us as owner builders

  1. [51]
    The Jorgs contend that if a contract by conduct between them and Impact was formed, then it follows they must have carried out the work as owner builders, which they deny. We accept that the Jorgs did not actively take steps to notify the QBCC it would undertake this work as owner builders.
  2. [52]
    The learned Member made no such express or implied finding. We are not satisfied that such a matter was relevant to the issues required to be determined in the proceeding.

We are not satisfied that the matters raised demonstrate an error.

Error 5 - Our name was on correspondence as the windows were a Prime Cost item

  1. [53]
    The Jorgs contend that the learned Member erred by relying upon their name on an invoice from Impact dated 11 March 2011 as evidence that a contract was formed between the Jorgs and Impact. They contend that their names appeared because the windows were a Prime Cost item, they liaised and corresponded with Impact in that context and it was not unusual for their names to appear on other Prime Cost items’ invoices.
  2. [54]
    The fact that the Jorgs name was on the invoice was one of a number of facts considered by the learned Member, upon which he relied to conclude that a contract by conduct was formed.
  3. [55]
    On a review of the evidence before the learned Member, to which we will refer in greater detail later in these reasons, we are satisfied that such a conclusion was open on the evidence.
  4. [56]
    We are not satisfied that the matters raised demonstrate an error.

Error 6 - Impact safeguarded the deposit

  1. [57]
    The Jorgs contend that their name was placed on the invoice by Impact to safeguard the deposit from being refunded to GLC and is not evidence of a contract between the Jorgs and Impact. This submission was made at the hearing below and acknowledged in the Tribunal’s reasons for decision.[32] Having weighed all the evidence and the Jorgs’ submissions, the learned Member found on balance that a contract by conduct had been formed.[33]
  2. [58]
    On a review of the evidence before the learned Member, to which we will refer in greater detail later in these reasons, we are satisfied that such a conclusion was open on the evidence.
  3. [59]
    We are not satisfied that the matters raised demonstrates an error.

Error 7 - the Tribunal determined incorrectly how money was paid

  1. [60]
    The Jorgs contend that the learned Member incorrectly found that the Jorgs might have paid Impact via Mr Southern.[34] The Jorgs also contend that the learned Member incorrectly found that the Jorgs supplied funds needed for the work to progress.[35]
  2. [61]
    We accept that Mrs Jorg gave evidence that in or about March or April 2011, which was prior to the GLC Contract being terminated, amounts additional to the deposits previously paid were paid to Impact leaving a balance of $13,726.21, and that her evidence was that the amounts might have been paid by cheques made out to Impact or to GLC.
  3. [62]
    The reference to Mr Southern appears to have been made in error, but we are not satisfied that it gives rise to a substantial injustice. We are satisfied that a finding that the Jorgs supplied funds needed for the work to progress was open on the evidence.
  4. [63]
    Another matter weighed by the learned Member was that there was evidence before the Tribunal that Impact created an invoice and accompanying letter dated 11 March 2011, which was to the effect that the account was now in the Jorgs’ name but as is clear from the learned Member’s reasons there were a number of factors he considered.
  5. [64]
    We are not satisfied that the matters raised demonstrates an error causing substantial injustice.

Error 8 – Mr Southern took charge over the windows

  1. [65]
    The Jorgs contend that the learned Member may have overlooked their evidence that Mr Southern had taken charge over the window order and window contract on or before 11 March 2011. They point to the letter from Impact which refers to Mr Southern having a meeting with Impact to confirm window sizes. We observe that this submission appears somewhat at odds with claimed error 7.
  2. [66]
    The letter to which the Jorgs referred was clearly considered by the learned Member.[36] He described it as a key piece of evidence. He also refers to Mr Southern advising the Jorgs.[37]
  3. [67]
    On a review of the evidence before the learned Member, to which we will refer in greater detail later in these reasons, we are satisfied that a conclusion that Mr Southern did not take over the window order and window contract with Impact on or before March 2011 or at all was open on the evidence.
  4. [68]
    We are not satisfied that the matters raised demonstrate an error.

Error 9 – Mr Southern failed to write the completion contract in time

  1. [69]
    The Jorgs contend that the learned Member erred as he did not consider the agreement confirmed in the letter of 26 October 2011. They point to Mrs Jorg’s evidence of the meeting on 20 October 2011 during which the terms of the completion contract were discussed.
  2. [70]
    The meeting to which the Jorgs referred was clearly considered by the learned Member.[38] The learned Member also clearly considered the terms of the Completion Contract to which the letter of 26 October 2011 is attached.[39] The learned Member noted that the Completion Contract did not come into force until it was signed on 20 November 2011.[40] The copy of the letter of 26 October 2011 was also approved and signed by Mr Southern on 20 November 2011.[41]
  3. [71]
    The Jorgs point to Mr Southern performing works prior to the Completion Contract being signed. The Completion Contract indicates some completion work was performed prior to its commencement. Annexure A, Special Condition 2, sets out works performed and payments made. None of the work listed appears to relate to the installation of window frames or windows.[42]
  4. [72]
    Even if the Completion Contract was on foot (or an oral agreement in the same terms) when the defective works were performed, the agreement provides that the supply and installation of the aluminium doors and windows as ordered by GLC was an owner supplied item.
  5. [73]
    This evidence is not consistent with Mr Southern ‘taking over the window order’. It is consistent with Mr Southern agreeing that the windows be incorporated into the house.
  6. [74]
    Consistent with the learned Member’s findings that the window contract with Impact or Impact Mark 2 was between the manufacturer and the Jorgs, the Completion Contract provides

Materials and goods ordered by Good Living Constructions, the previous builder, had been transferred to the owner as a result of the termination of the contract with that previous builder. Such transferred contracts include the aluminium windows and doors, timber floors, wall and floor tiles.[43]

The Builder approves the supply and installation of the property, materials and fixtures supplied by the owner as said in the letter from the owner to the builder and dated 26 October 2011 which letter is attached to this contract.[44]

  1. [75]
    The letter of 26 October 2011 sets out the list of materials to be supplied by the Jorgs.[45] Relevantly, it states:

I am writing to you regarding the placing and installation of property and materials supplied by us for the completion of our new house.....

That is the supply and installation of:

 The aluminium windows and doors from Impact Windows & Doors P/L...

  1. [76]
    The evidence is that the general conditions under both the Rectification Contract and the Completion Contract were the same.[46] General Condition 23 provides:

Notwithstanding subclauses 23.3 and 23.4, the builder is not responsible for the performance and suitability of materials, services, labour and goods provided by the owner.[47]

The builder may reject any item or material supplied by the owner, if the builder believes that item or material to be defective, and require the replacement or correction of that item or material.[48]

The builder may reject any work carried out by or on behalf of the owner or by the owner’s contractor and require that the owner or the owner’s contractor replace, correct or remove the defective work.[49]

If the owner carries out or causes to be carried out other work on site…the owner must, and must ensure the owner’s contractors…hold an appropriate licence to carry out the work.[50]

  1. [77]
    The Jorgs point to payment of additional QBCC insurance premiums as a result. This is not necessarily consistent with Mr Southern taking on the window contract. As owner supplied items these would need to be factored into the replacement value of the construction works.
  2. [78]
    The Jorgs’ Submissions in Reply,[51] contend that the learned Member incorrectly concluded at paragraph [24],[52] that Mr Southern performed installation work on the windows in question as distinct from rectification work under the Rectification Contract.[53] They contend that as the Rectification Contract was a cost plus contract that the learned Member erred in finding that its scope did not include all rectification work that needed to be done, including that as a result of Impact’s defective work. They contend the learned Member’s finding at [30] was incorrect.[54]
  3. [79]
    With respect, the finding that the Rectification Contract did not envisage rectifying work that had not been performed at the time the contract was signed, which was performed by an entity other than GLC, was clearly available to the learned Member on a proper construction of the Rectification Contract and in our view a correct analysis of the sequence of events and documents. 
  4. [80]
    We are not satisfied that the matters raised demonstrates an error.

Error 10 – The window contract was passed on to Mr Southern

  1. [81]
    The Jorgs contend that the learned Member erred in not finding that the window contract was passed on to Mr Southern and accepted by conduct by Mr Southern, and erred in finding that a contract by conduct was formed with Impact. Contrary to the submission, the learned Member set out in detail the matters he considered.
  2. [82]
    For the reasons set out earlier we are not satisfied that learned Member erred in concluding that the window contract was not passed on to Mr Southern.
  3. [83]
    We are not satisfied that the matters raised demonstrate an error.

Error 11 - Mr Southern has not weatherproofed/waterproofed the window and door openings

  1. [84]
    We are not satisfied that the matters raised demonstrates an error.
  2. [85]
    The Jorgs contend that the learned Member erred in not finding that Mr Southern performed defective work under the Rectification Contract, which gives rise to a separate entitlement to claim under the QBCC insurance in respect of the relevant windows.
  3. [86]
    This is because he found that that there was no dispute that there was defective work done in relation to the sitting and dining room windows and that the only issue for determination was who the Jorgs’ contracted with for the installation of the relevant windows. In respect of the southern veranda window he found that the relevant defect was a manufacturing defect.
  4. [87]
    The Jorgs contend that Mr Southern was required to waterproof the window and door openings in accordance with the Building Code of Australia and that this work was required to be performed prior to the windows being installed. They contend that Mrs Jorg attempted to explain this issue to the learned Member but he ruled that it was not relevant.
  5. [88]
    The history of the matter is that the Jorgs made a complaint to the QBCC against Mr Southern. This included that the windows were leaking. Mr Southern was requested to rectify certain defects. The QBCC did not direct Mr Southern to rectify a failure to waterproof window and door openings. The Jorgs did not apply to the Tribunal for a review of a failure of the QBCC to issue a direction to rectify to Mr Southern.
  6. [89]
    The Jorgs made another complaint to the QBCC against the window company, on the evidence, encouraged by the QBCC to do so. The QBCC issued a direction to rectify the windows, which direction was the subject of a review application. The evidence before us is that, those proceedings were withdrawn and the window company, Impact Mark 2, went into liquidation. In those circumstances, there was a direction to rectify, which had not been complied with and the matter was referred to the QBCC insurance section.
  7. [90]
    The QBCC’s decision, which was the subject of the review, was to decline a claim against the statutory insurance scheme in respect of the defective installation of the windows. It was conceded that the installation of the sitting and dining room windows by the window company was defective and the installation/reinstallation by Mr Southern was defective.
  8. [91]
    We are satisfied that the question for determination by the learned Member was under what contractual arrangements the defective installation of the windows was performed by Mr Southern and that there was no error in him not exploring whether Mr Southern may have performed other defective work prior to the installation of the windows, which contributed to the leaking. There was, therefore, no error in the learned Member not specifically referring to Mr Ratcliffe’s statement in his Reasons because, as the learned Member observed, the review hearing was not a proceeding between the Jorgs and Mr Southern in respect of alleged negligent work, where the scope of evidence of defective work could appropriately be more wide ranging.
  9. [92]
    We understand that, as a consequence of the additional information the Jorgs have obtained and presented, the QBCC has reinvestigated the work performed by Mr Southern under the Rectification and Completion Contracts and directions to rectify have been issued in respect of the waterproofing issue,[55] but that does not give rise to an error by the learned Member.

Error 12 - Mr Southern signed the Certificate on Practical Completion that says he will rectify if any problems arise from his failure to waterproof window opening etc.

  1. [93]
    The Jorgs contend that the learned Member erred by not exploring Mr Southern’s responsibility to rectify water penetration to their house and point to the Certificate on Practical Completion, by which Mr Southern conceded that he had failed to waterproof ‘the aluminium sliding doors and some of the windows’.[56] They contend that the learned Member failed to consider the Certificate on Practical Completion, which certified that his work was complete and free from defects.
  2. [94]
    This acknowledgement does not clearly specify the windows to which the concession applies. The learned Member did explore the contents of this certificate with Mr Southern during the hearing. 
  3. [95]
    As set out earlier in these reasons, we are satisfied that the question for determination by the learned Member was under what contractual arrangements the defective installation of the relevant windows was performed and that there was no error in him not fully exploring whether Mr Southern may have performed other defective work, which contributed to the leaking or had agreed to rectify waterproofing problems.
  4. [96]
    We are not satisfied that the matters raised demonstrate an error.

Error 13 - We obtained advice about waterproofing

  1. [97]
    The Jorgs sought leave to rely upon new evidence about waterproofing. The application was refused. The refusal was not appealed. We do not consider the additional report.
  2. [98]
    As set out earlier in these reasons, we are satisfied that the question for determination by the learned Member was, under what contractual arrangements the defective installation of the windows was performed, and that there was no error in him not fully exploring whether Mr Southern may have performed other defective work, which contributed to the leaking.
  3. [99]
    We are not satisfied that the matters raised demonstrate an error.

Error 14 - The Tribunal confirmed the QBCC decision to refuse our insurance claim

  1. [100]
    The Jorgs contend that the learned Member erred in not finding that the defective work was carried out by Mr Southern, a licensed builder, under contractual arrangements with the Jorgs. No specific error is identified, which has not been identified elsewhere.

We are not satisfied that the matters raised demonstrate an error.

Error 15 – The Licensed builder Mr Rex Southern is responsible under section 69(2) of the QBCC Act

  1. [101]
    The Jorgs contend that they referred to this section. The learned Member clearly considered this section.[57]
  2. [102]
    The Jorgs again refer to the failure of Mr Southern to apply waterproofing to the concrete as part of the works performed under the Rectification Contract. As set out earlier in these reasons, we are satisfied that the question for determination by the learned Member was under what contractual arrangements the defective installation of the windows was performed and that there was no error in him not fully exploring whether Mr Southern may have performed other defective work, which contributed to the leaking.
  1. [103]
    We are not satisfied that the matters raised demonstrates an error.

Error 16 - Mr Southern was the responsible licensed builder for the dwelling and ultimately responsible for the building work under his licence

  1. [104]
    The Jorgs contend that the learned Member erred in finding that ‘there is no evidence other than the invoicing for work done on 27 October 2011 of a contract between the Jorgs and Mr Southern for the installation of those windows’.[58] They contend there is plenty of evidence of such a contract. They contend that he was the licensed builder for the site and ultimately responsible for the building work of the dwelling.
  2. [105]
    We accept that Mr Southern was responsible for the works that were the subject of the Rectification Contract and the Completion Contract. As set out earlier both contracts provided that the builder was not responsible for owner supplied items.
  3. [106]
    The learned Member considered the evidence before him and on balance found that the installation work for the sitting and dining room windows was performed under a contract between the Jorgs and Impact Mark 2. We are not satisfied that an error has been demonstrated.
  4. [107]
    To the extent that the Jorgs refer generally to defective work by Mr Southern or to alleged breaches of the contracts between them,[59] we are not satisfied that these matters were relevant to the determination of the issue the subject of the review.
  5. [108]
    As set out earlier in these reasons, we are satisfied that the question for determination by the learned Member was, under what contractual arrangements the defective installation of the windows was performed. There was no error in him not fully exploring whether Mr Southern may have performed other defective work, which contributed to the leaking or breached provisions of the contracts between Mr Southern and the Jorgs.
  1. [109]
    We are not satisfied that the matters raised demonstrate an error.

Error 17 - Mr Southern confirmed that he was the responsible supervisor/builder for the dwelling

  1. [110]
    The Jorgs sought leave to rely upon new evidence being a ‘Form 16 - Inspection Certificate’. The application was refused. The Jorgs did not appeal from the refusal. We have not considered the Form 16.
  2. [111]
    As set out earlier in these reasons, to the extent that the Jorgs refer generally to defective work by Mr Southern or to alleged breaches of the contracts between them, we are not satisfied that these matters were relevant to the determination of the issue the subject of the review.
  3. [112]
    We are satisfied that the question for determination by the learned Member was under what contractual arrangements the defective installation of the windows was performed and that there was no error in him not fully exploring whether Mr Southern may have performed other defective work, which contributed to the leaking.
  1. [113]
    We are not satisfied that the matters raised demonstrate an error.

Error 18 - The rectification contract was the contract dated 7 July 2011

  1. [114]
    The Jorgs contend that the learned Member erred in finding that window rectification work was not specified or listed in the Rectification Contract.[60] The learned Member set out in paragraph [24],[61] key pieces of evidence before him. He extracted the part of the Rectification Contract that related to window openings.
  2. [115]
    The Jorgs contend that the window rectification work was performed by Mr Southern under the Rectification Contract and that because it was a cost-plus contract and set out the works to be performed in a non-exhaustive way all of the work did not have to be listed or specified.
  3. [116]
    The learned Member found that the Rectification Contract only envisaged that Mr Southern would install window openings rather than the windows and it would not extend to rectifying defective installation of work which had not been performed at the time the contract was formed.[62] As discussed earlier in these reasons, we are satisfied that the conclusion was open on the evidence and was a proper construction of the terms of the Rectification Contract. The scope of the Rectification Contract was non-exhaustive but it clearly related to work performed by GLC prior to the time the Rectification Contract was formed. At the time the defective installation work was performed, the GLC contract had been terminated. The defective installation work could not in our view be regarded as GLC work and the terms of the Rectification Contract did not extend to Mr Southern rectifying work performed in respect of owner supplied items after the GLC Contract had been terminated.
  1. [117]
    We are not satisfied that the matters raised demonstrate an error.

Error 19 - The licensed builder, Mr Southern, rectified the windows under contracts with us

  1. [118]
    The Jorgs point to evidence relied upon by them before the learned Member and referred to in his decision to contend that there is substantial evidence that the removal and reinstallation work was performed by Mr Southern under a contract between the Jorgs and Mr Southern.
  2. [119]
    The learned Member heard the evidence, including that Mr Southern charged the Jorgs for work performed on 27 October 2011, considered it and weighing all the evidence came to the conclusion Mr Southern did not rectify the windows under contracts with the Jorgs. On our review of the evidence, the learned Member’s conclusion was open on the evidence.
  1. [120]
    We are not satisfied that the matters raised demonstrate an error.

Error 20 – QBCC and Mr Southern attempted to split the rectification work

  1. [121]
    The Jorgs contend that the QBCC and Mr Southern minimised the rectification work performed on 27 October 2011 to removal of the windows only so as to justify Mr Southern invoicing the Jorgs for other work under the Rectification Contract that day. We infer that the Jorgs contend that the learned Member erred in accepting Mr Southern’s evidence. It is clear that the learned Member had reservations about Mr Southern’s evidence,[63] but when weighing all the evidence, concluded the evidence strongly supported that Mr Southern performed the rectification work under an arrangement with Impact Mark 2 and not pursuant to a contract with the Jorgs.[64]
  2. [122]
    We are satisfied that such a conclusion was open on the evidence.
  1. [123]
    We are not satisfied that the matters raised demonstrate an error.

Error 21 – Oral evidence by Mr Southern

  1. [124]
    The Jorgs contend that the learned Member erred in finding that Mr Southern charged the Jorgs and Impact for the work on 27 October 2011 because the invoice from Mr Southern to Impact did not identify the windows to which it related and there was conflicting evidence about the work invoiced.
  2. [125]
    The observation by the learned Member to which we were referred,[65] was not clearly a finding that Mr Southern charged both parties for some of the same work but rather a possible explanation for why Mr Southern’s evidence was unconvincing and defensive.
  1. [126]
    We are not satisfied that the matters raised demonstrates an error.

Error 22 – The rectification work on 10 January 2012

  1. [127]
    The Jorgs contend that Mr Southern performed defective work under the Completion Contract.
  2. [128]
    In the Jorgs’ Submissions in Reply,[66] they contend that even if Mr Southern carried out the defective work for Impact Mark 2, which they deny, the work was to be carried out in accordance with industry standards and the Building Code of Australia to the satisfaction of the licensed builder responsible for the site and so Mr Southern is ultimately responsible. 
  3. [129]
    As set out earlier in these reasons, to the extent that the Jorgs refer generally to defective work by Mr Southern or to alleged breaches of the contracts between them we are not satisfied that these matters were relevant to the determination of the review of the QBCC decision about the insurance claim.
  4. [130]
    As discussed, we are satisfied that the relevant question for determination by the learned Member was under what contractual arrangements the defective installation of the windows was performed. Therefore, there was no error in him not fully exploring whether Mr Southern may have performed other defective work or breached other contractual provisions, which contributed to the leaking, in this review proceeding.
  1. [131]
    We are not satisfied that the matters raised demonstrate an error.

Error 23 – The purchase of Sikaflex on 27 October 2011

  1. [132]
    The Jorgs contend that the learned Member erred in finding that the Sikaflex sealer they purchased on the afternoon of 27 October 2011 was used to ‘fix up the windows’.[67] They contend that Mr Southern’s sealing work was not rectification work but rather separate work after the windows had been completely reinstalled. The evidence relied upon in support of this contention is not clear.
  2. [133]
    That said, it is sufficiently clear that the point the learned Member was making in the paragraph to which we were referred, was that rectification works continued after 27 October 2011 and there was no evidence that Mr Southern charged the Jorgs for subsequent days. He regarded the purchase of the Sikaflex as evidence that reinstallation work continued. Even if he was in error in concluding that the Sikaflex was used in the rectification work, we are not satisfied that such an error causes the Jorgs’ substantial injustice and is required to be corrected.
  3. [134]
    We are not satisfied that the matters raised demonstrate an error causing substantial injustice.

Error 24 - The dubious invoice Mr Southern issued to Impact

  1. [135]
    The Jorgs contend that the learned Member erred in finding that the invoice dated 11 November 2011 from Mr Southern to Impact Mark 2 was for work performed on the relevant windows. They contend that the QBCC should have obtained further documentary evidence including that the invoice was paid.
  2. [136]
    Whilst additional evidence could have been obtained and filed in the proceeding by either of the parties, it was open on the evidence before the Tribunal for the learned Member to find that the invoice had been paid and that on balance, despite some conflicting evidence which was assessed by the learned Member, it related to the rectification work undertaken by Mr Southern in respect of the relevant windows.
  3. [137]
    The Jorgs submit that an adverse inference should be drawn because the quote was not produced. Mr Southern gave evidence of computer issues as to why he no longer had a copy of the quote.
  4. [138]
    There was evidence, in the form of an email dated 24 October 2011 from Impact Mark 2, that it was agreeable to Mr Southern rectifying the defective installation work performed by or on their behalf by ‘Paul’ and they sought a quote from Mr Southern. Mr Southern performed rectification work for a number of days following 27 October 2011 and did not charge the Jorgs for work on those days and Mr Jorg’s diary note for 27 October 2011 referred to his understanding of work performed that day, which was that, ‘Rex took frames out – works for Impact…Made quote and was accepted by Impact’.
  5. [139]
    In the Submissions in Reply the Jorgs contend that the learned Member did not explore issues with the invoice and prevented Mrs Jorg from asking Mr Southern questions about it.[68] The part of the transcript to which we were referred does show that the learned Member did rule against Mrs Jorg showing to Mr Southern what she referred to as the payment document because he ruled that payment was not in dispute. On a review of the transcript, it is, in our view, not accurate to say the learned Member did not give the Jorgs an opportunity to ask Mr Southern questions about the quote, the invoice and whether he invoiced Impact or Impact Mark 2 for other work.[69]
  6. [140]
    We are not satisfied that the matters raised demonstrate an error.

Error 25 – Window deliveries and installation

  1. [141]
    The Jorgs set out a summary of evidence before the learned Member in respect of the delivery of windows and quotes provided to them by Impact Mark 2 and refer to work they contend was subject of the 11 November 2011 invoice from Mr Southern to Impact Mark 2. This appears to be simply an attempt to reargue points made before the learned Member which were not accepted.
  2. [142]
    We are unable to identify a relevant error.

Error 26 – The alleged quote that was not produced by Mr Southern or Impact

  1. [143]
    As we understand it, the Jorgs contend that the learned Member erred in accepting that the quote was for installation/re-installation of the relevant windows by Mr Southern because he was not a credible witness for various reasons and that adverse inferences ought to have been drawn that the quote was not produced.
  2. [144]
    The Jorgs concede that Impact Mark 2 engaged Mr Southern to perform some work but contend that was not the work the subject of their insurance claim. They refer to Mr Southern’s evidence that he received one payment from Impact Mark 2 and contend it is improbable that it was for all the work Mr Southern claimed. 
  3. [145]
    The learned Member’s reasons make it clear that he weighed the evidence before him. We are satisfied that the conclusion reached was available on the evidence.
  4. [146]
    We are not satisfied that the matters raised demonstrate an error.

Error 27 – The failed contract between Mr Southern and Impact

  1. [147]
    The Jorgs contend that the learned Member erred in not accepting their submission that any contract between the Jorgs and Impact or Impact Mark 2 or between Impact Mark 2 and Mr Southern was a ‘failed’ contract because it was illegal or void from the outset under s 42 of the QBCC Act. As we understand their submission, they contend that in those circumstances, the learned Member ought to have concluded that the works were performed under lawful contracts on foot between the Jorgs and Mr Southern.
  2. [148]
    The learned Member considered the cases to which he (and subsequently, we) were referred by the Jorgs. He concluded that they had no or minimal relevance to the issues he was required to determine. We respectfully agree.
  3. [149]
    The cases to which the Jorgs refer are cases where the unlicensed contractor was attempting to enforce the contract or to otherwise claim payment of an amount for the work performed. Section 42 of the QBCC Act founds a right in the party who contracts with an unlicensed contractor to defend a claim for money owing or to seek to recover amounts paid.  Such contracts are not enforceable by the unlicensed contractor.
  4. [150]
    The learned Member was not required to determine whether Impact Mark 2 could enforce the contracts but rather whether unlicensed contracting occurred.
  5. [151]
    The learned Member’s reasons make it clear that he weighed the evidence and submissions before him. We are satisfied that the conclusions reached were available on the evidence and a proper consideration of the cases.
  6. [152]
    We are not satisfied that the matters raised demonstrate an error.

Failed to consider Direction to Rectify, and Gray v Simmons [70]

  1. [153]
    The Jorgs contend that the learned Member did not consider that the QBCC had issued a DTR to Impact Mark 2, the QBCC described Impact Mark 2 as a contractor in the DTR, Impact Mark 2 did not comply with the DTR, and the insurance policy assists home owners should a contractor fail to satisfactorily comply with a DTR. They contend if he had considered these matters he would have come to a different conclusion.
  2. [154]
    The learned Member expressly refers to considering Gray v Simmons[71] and found it to be of minimal or no relevance.[72] He also refers to considering numerous other documents and arguments as having minimal or no relevance.[73]
  3. [155]
    We respectfully agree. We are satisfied that the primary issue for determination by the learned Member in the review required him to determine the contractual arrangements under which the defective installation of the windows was performed, which lead to the DTR. In the circumstances, and having regard to his conclusions, there was no error in not exploring whether other preconditions to the insurance policy were established.
  4. [156]
    We are not satisfied that the matters raised demonstrate an error.

Failed to accept that Mr Southern charged the Jorgs for the majority of the window work performed on 27 October 2011[74]

  1. [157]
    The Jorgs contend that the learned Member ought to have accepted their evidence and submissions. This is simply an attempt to reargue their case, which was not accepted by the learned Member.
  2. [158]
    We are satisfied that the conclusion reached by the learned Member was open on the evidence.
  3. [159]
    We are not satisfied that the matters raised demonstrate an error.

The Member misunderstood the defects:[75] Major Defect Number 1 was about preparing or installing or correcting window openings in October 2011;[76]and Major Defect Number 2 was about removing and re-installing windows[77]

  1. [160]
    The Jorgs referred us to some instances where they contend the learned Member did not understand the defects and contend that the learned Member did not include in his decision that Mr Southern’s duties under their contracts with him included installing the window and door openings.
  2. [161]
    They contend that the learned Member erred in not concluding that

The defective preparation of the window openings was such a major defect that it requires removing all windows etc. irrespective of Major Defect Number 2.[78]

  1. [162]
    They submit that the failure of Mr Southern to waterproof the concrete in preparing the openings was clearly defective work under the Rectification Contract and that the learned Member erred in not taking into account evidence about this.[79]
  2. [163]
    This again relates to the Jorgs’ contention that the scope of the review was a broader exercise to determine responsibility as to defective work and in particular that Mr Southern failed to waterproof the concrete under the window openings.
  1. [164]
    The learned Member clearly accepted that Mr Southern’s duties included installing the window and door openings under the Rectification Contract and not the windows themselves.[80] This was a factor in his conclusion that the Rectification Contract did not extend to the installation/re-installation work performed.
  2. [165]
    The Jorgs contend they reported the waterproofing defect to the QBCC in their complaint on 4 February 2013. As stated earlier in these reasons the review before the learned Member was not a review of the QBCC’s previous failure to issue a direction to rectify to Mr Southern in respect of failure to waterproof the openings nor was it a broad exercise to determine the cause of the leaking windows.
  3. [166]
    We are not satisfied that the learned Member misunderstood the defects nor that the learned Member erred in not taking evidence about the claimed failure to waterproof under the window openings into account.
  4. [167]
    We are not satisfied that the matters raised demonstrate an error.

Internal review by Mr Pacey[81]

  1. [168]
    We are not satisfied that the matter raised demonstrates an error by the learned Member.
  2. [169]
    Mr Pacey conducted an internal review and confirmed Mr Cuppitt’s decision. The Jorgs contend that Mr Pacey made errors in his internal review.
  3. [170]
    The learned Member assessed the evidence himself. On a review, the Tribunal considers the matter afresh and there is no presumption that the decision under review is correct. We discuss these matters in some more detail below.

Ground of appeal: Denial of procedural fairness

  1. [171]
    We are not satisfied that the Jorgs have established this appeal ground. We are not satisfied that they were denied procedural fairness.

Cross-examination of Mrs Jorg with the assistance of Mr Cuppitt – no cross-examination of Mr Cuppitt

  1. [172]
    We are not satisfied that the matters raised demonstrate an error.
  2. [173]
    Mr Cuppitt was the original decision maker on behalf of the QBCC. He is an assessment officer in the QBCC’s insurance section. He was permitted to be present in the hearing room to provide instructions to the QBCC’s legal representative. A party to a proceeding is usually permitted to have an officer present throughout the hearing to provide instructions to the party’s legal representative.
  3. [174]
    QCAT Practice Direction No 3 of 2013 applies to such matters heard in the tribunal’s review jurisdiction, a copy of which is published on the Tribunal’s website. It states at [3] that:

...the decision-maker’s role is not adversarial. However, in discharging it’s (sic) obligations the decision-maker must properly test the evidence relied upon by the applicant...to perform its function of assisting the Tribunal.

  1. [175]
    It further states at [5](d) that:

Note: because the Tribunal’s role in merits review is to make the decision afresh, the decision-maker shall not give evidence or be cross-examined about why it made the decision.

  1. [176]
    A review is by way of a fresh hearing on the merits on the evidence before the Tribunal.[82] There is no presumption that the decision is correct.[83]  
  2. [177]
    To the extent the QBCC lead technical evidence, that evidence was provided by Mr Hayes.
  3. [178]
    Mrs Jorg did not object to Mr Cuppitt being present in the Hearing Room on Day 2.[84] The learned Member indicated to Mrs Jorg that he would permit her to ask questions of Mr Cuppitt, if relevant.[85] He asked Mrs Jorg to provide examples of the questions she wished to ask Mr Cuppitt and ruled that they were matters for submission and noted that he would be assessing the evidence himself and would not be relying upon Mr Cuppit’s interpretation of the evidence.[86]
  4. [179]
    Mrs Jorg outlined in the submissions before us the questions she wished to ask Mr Cuppitt.[87] They were essentially in the nature of why Mr Cuppitt made the decision and whether Mr Cuppitt would have changed his mind having heard the evidence. With respect, this misconceives the nature of review proceedings. Once the Tribunal steps into the shoes of the decision-maker, it is for the Tribunal to assess all of the evidence to make the correct and preferable decision on the evidence before it.
  5. [180]
    We are not satisfied that the learned Member erred in not allowing Mrs Jorg to explore that line of questioning.
  6. [181]
    The Jorgs contends that the QBCC’s legal representative subjected Mrs Jorg to lengthy cross-examination and was not similarly constrained by the learned Member in her cross examination of Mrs Jorg and Mr Jorg. Mrs Jorg felt she was put under time pressure, which the QBCC was not. She does not identify particular questions explored by the QBCC, which she contends the learned Member ought to have ruled were irrelevant. We are unable to make findings on any specific lines of questioning. 

The cross-examination of witnesses including Mr Southern and Mr Hayes was cut short

  1. [182]
    Mrs Jorg referred us to a number of instances where she was not allowed to ask witnesses certain questions.[88] A number of the instances related to her attempts to raise the issue of Mr Southern’s failure to waterproof the window openings or to seal the end stops. It was conceded that Mr Southern performed the installation/re-installation work defectively. If Mr Southern also performed other defective work in respect of the windows, we accept that was not a matter the subject of the decision under review. We are not satisfied that the learned Member erred in not allowing Mrs Jorg to explore those issues.
  2. [183]
    The Jorgs referred us to the learned Member not allowing Mrs Jorg to ask Mr Riches, a QBCC employee, about a site visit on 26 February 2015.[89] Mrs Jorg was asked to explain the relevance of her line of questioning. On the face of the transcript, the learned Member considered, and we agree, that it was not relevant to the issues to be determined.
  3. [184]
    The Jorgs referred us to the learned Member not allowing Mrs Jorg to ask Mr Hayes about the invoice from Mr Southern to Impact Mark 2.[90] This relates to Error 24 above. Mr Hayes had limited knowledge of this invoice. He did not create it nor was he the recipient of it, other than he received a copy of it as part of the investigation. Any conclusions Mr Hayes made based on the invoice as to which windows it related and the reasons for those conclusions was irrelevant. The learned Member was considering the evidence before him afresh and drawing his own conclusions. We are not satisfied that the learned Member erred in not allowing Mrs Jorg to explore that line of questioning.
  4. [185]
    The Jorgs contend that there were several things in Mr Hayes statement with which they disagree.[91] It appears the Jorgs contend that the learned Member prevented them from asking Mr Hayes questions challenging those matters. From a review of the transcript it is clear that the learned Member encouraged Mrs Jorg to ask witnesses questions and if he did not consider them relevant asked her to explain why they were relevant and then made a ruling on them. We are not satisfied that the learned Member prevented Mrs Jorg from asking relevant questions.
  5. [186]
    The Tribunal member conducting the hearing has a broad discretion.[92] In conducting a proceeding the tribunal has an obligation to act fairly and according to the substantial merits of the case, observe the rules of natural justice while acting with as little formality and with as much speed as a proper consideration of the matters permit.[93]
  6. [187]
    The Tribunal has limited resources. A party is not denied procedural fairness if prevented the opportunity to ask irrelevant questions. Parties are not free to ask any and all questions they deem appropriate. The learned Member did prevent Mrs Jorg from asking questions. However, he gave Mrs Jorg many opportunities to explain what she regarded as their relevance and to explain what knowledge the witness may have of the subject matter. Based on Mrs Jorg’s submissions and his knowledge of the case, he made rulings about the relevancy of matters Mrs Jorg sought to raise with witnesses and rulings about whether witnesses had any direct knowledge of the subject matter such that they could give evidence, which might assist the Tribunal to come to the correct and preferable decision.
  7. [188]
    As set out earlier in these reasons we find that the learned Member did not err in deciding that evidence relating to the failure of Mr Southern to waterproof the window openings was not relevant to the issues to be determined by him.
  1. [189]
    We are not satisfied that the matters raised demonstrate an error.

The Jorgs did not have a proper opportunity to prepare submissions within the time given, which was three business days.

  1. [190]
    The Jorgs contend that three business days was insufficient time within which to obtain legal advice to assist their preparation of submissions. The Jorgs sought an extension of time and the learned Member considered their submissions and dismissed their request for an extension of time.
  2. [191]
    At the commencement of the second day of hearing, Mrs Jorg requested that they be given an opportunity to give final written submissions. The learned Member indicated that the usual practice would be for oral submissions to be made but that he would consider her request.
  1. [192]
    At the conclusion of the two day hearing the learned Member requested the Jorgs to make oral submissions, which is in accordance with Practice Direction No 3 of 2013.[94] The Jorgs requested to be able to provide written submissions. The learned Member agreed and made directions permitting the parties a short period within which to do so. The learned Member was inclined to allow a shorter period, which was essentially close of business the following business day but three days including the weekend, day two of the hearing being on a Friday but Mrs Jorg asked for a day or two more. The learned Member allowed Mrs Jorg the two additional business days requested.
  2. [193]
    We are not satisfied that the matters raised demonstrate error.

Conclusion and Orders

  1. [194]
    Having regard to our conclusions, the application for leave to appeal and appeal should be dismissed.
  2. [195]
    We make orders accordingly.

Footnotes

[1]  23 April 2015 and further on internal review, on 23 September 2015.

[2]  22 July and 23 September 2016.

[3]  Application for leave to appeal or appeal filed on 8 November 2016.

[4]  See Dearman v Dearman (1908) 7 CLR 549; Fox v Percy (2003) 214 CLR 118.

[5]Chambers v Jobling (1986) 7 NSWLR 1.

[6]Dunmoor Pty Ltd v Queensland Building and Construction Commission & Anor [2016] QCATA 39, [9].

[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) ss 142(1); (3)(b).

[8]  See QCAT Act s 147; Harrison & Anor v Meehan [2017] QCA 315; Ericson v Queensland Building and Construction Commission [2014] QCA 297; John Urquhart t/as Hart Renovations v Partington [2016] QCA 199.

[9]Dunmoor Pty Ltd v Queensland Building and Construction Commission & Anor [2016] QCATA 39, [10].

[10]  Exhibit 4.

[11]  A94–A115.

[12]  Mr Southern witnessed the termination agreement.

[13]  A116.

[14]  A119; A134.

[15]  Supplementary Appeal Book filed 28 April 2017, section 3, DCH3 (‘Supplementary Appeal Book’).

[16]Jorg v Queensland Building and Construction Commission [2016] QCAT 364, [7-8].

[17]Jorg v Queensland Building and Construction Commission [2016] QCAT 364, [45].

[18]  Exhibit 4, [126-133].

[19]  Ibid, [39]–[45].

[20]  A173–A173.1.

[21]  Supplementary Appeal Book, section 8.

[22]Jorg v Queensland Building and Construction Commission [2016] QCAT 364, [56].

[23]  Filed 1 March 2017. See also Exhibit 4.

[24]  Filed 3 April 2017.

[25]  Exhibit 4.

[26]Jorg v Queensland Building and Construction Commission [2016] QCAT 364, [7].

[27]  Filed 20 April 2017, [38]–[46].

[28]  Grain.

[29]  Referring to 11 March 2011.

[30]Jorg v Queensland Building and Construction Commission [2016] QCAT 364, [15].

[31]  Ibid, [35].

[32]  Ibid, [25].

[33]  Ibid, [29].

[34]  Ibid, [24].

[35]  Ibid, [35].

[36]  Ibid, [24].

[37]  Ibid, [10].

[38]  Ibid, [25].

[39]  Ibid, [24].

[40]  Ibid, [24]

[41]  A45.6.

[42]  A45.2.

[43]  (Emphasis added). See A45.3, Annexure A, Special Condition 12.

[44]  Ibid, Annexure A, Special Condition 13.

[45]  A45.6.

[46]  Exhibit 3.

[47]  General Condition 23.2.

[48]  Ibid, 23.3

[49]  Ibid 23.4.

[50]  Ibid, 23.6(c).

[51]  Filed 20 April 2017.

[52]Jorg v Queensland Building and Construction Commission [2016] QCAT 364.

[53]  Ibid, [92].

[54]  Ibid, [30].

[55]  Dated 21 September 2017 and dated on or about 6 December 2018. We also understand that Mr Southern has sought to review in the Tribunal in proceeding GAR010-18.

[56]  A120.3

[57]Jorg v Queensland Building and Construction Commission [2016] QCAT 364, [20].

[58]  Ibid, [32].

[59]  Including breaches of warranties.

[60]Jorg v Queensland Building and Construction Commission [2016] QCAT 364, [24].

[61]  Ibid.

[62]  Ibid, [30].

[63]  Ibid, [27]

[64]  Ibid, [29].

[65]  Ibid, [28].

[66]  Filed 20 April 2017, [160].

[67]Jorg v Queensland Building and Construction Commission [2016] QCAT 364, [31].

[68]  Transcript of Day One of the Tribunal Hearing (22 July 2016), T1-107, lines 10–20.

[69]  Ibid, T1-102–T1-112.

[70]  Exhibit 4, [31]–[34].

[71]  [2016] QCAT 239.

[72]Jorg v Queensland Building and Construction Commission [2016] QCAT 364, [58].

[73]  Ibid, [56].

[74]  Exhibit 4, [75].

[75]  Ibid, [107]–[109].

[76]  Ibid, [110]–[112].

[77]  Ibid, [113]–[114].

[78]  Ibid, [115].

[79]  Submissions filed 20 April 2017.

[80]Jorg v Queensland Building and Construction Commission [2016] QCAT 364, [30].

[81]  Exhibit 4, [156]–[157].

[82]  QCAT Act s 20.

[83]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[84]  Transcript of Day Two of the Tribunal Hearing (23 September 2016), T1-9.

[85]  Ibid.

[86]  Ibid, T1-77; T1-78.

[87]  Exhibit 4, [138]–[145].

[88]  Ibid, [21].

[89]  Ibid, [29].

[90]  Ibid, [131]; [150].

[91]  Exhibit 4, [153].

[92]  QCAT Act s 28.

[93]  Ibid, ss 28(2)–(3).

[94]   [5](e);(g).

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Editorial Notes

  • Published Case Name:

    Jorg & Anor v Queensland Building and Construction Commission

  • Shortened Case Name:

    Jorg v Queensland Building and Construction Commission

  • MNC:

    [2019] QCATA 124

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Presiding Member Deane

  • Date:

    07 Aug 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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