Exit Distraction Free Reading Mode
- Unreported Judgment
Murphy v Queensland Building and Construction Commission QCATA 175
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Murphy v Queensland Building and Construction Commission  QCATA 175
BRETT LESLIE MURPHY
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
23 September 2019
On the papers
Senior Member Howard
The application for leave to appeal or appeal filed on 7 June 2019 is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the basis that it is misconceived.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where applicant’s application for leave to appeal or appeal seeks to appeal interlocutory directions of the Tribunal -– where final decision of the Tribunal was reserved – whether the respondent’s application to dismiss or strike out proceedings should be granted – whether the application for leave to appeal or appeal is misconceived
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47, s 142
Troy Lewis, solicitor of Holding Redlich
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
- On 23 September 2019, I made a final order dismissing the application for leave to appeal or appeal in this proceeding pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) on the basis that the application was misconceived. The applicant, Mr Murphy, seeks reasons for that decision. It appears, perhaps through administrative error, that there was delay in referring the request for reasons for decision to me.
- Mr Murphy engaged the services of a contractor to carry out some building work. Mr Murphy was dissatisfied with the quality of the work and filed a complaint with the Queensland Building and Construction Commission (‘QBCC’). In QCAT proceedings GAR250-16 and GAR009-17, Mr Murphy sought to review certain QBCC decisions arising out of these circumstances.
- The proceedings were listed for hearing, and heard together over three days, 13 and 14 September 2018 and 14 May 2019. On 14 May 2019, the Tribunal below (GAR250-16 and GAR009-17) made directions in the following terms:
“1. These proceedings are adjourned and the decisions are reserved.
- Brett Leslie Murphy must file in the Tribunal two (2) copies and give to the Queensland Building and Construction Commission one (1) copy of his final submissions, by:
4:00pm on 28 May 2019.
- The Queensland Building and Construction Commission must file in the Tribunal two (2) copies and give to Brett Leslie Murphy one (1) copy of any replies to the submissions and any final submissions, by:
4:00pm on 11 June 2019.
- Brett Leslie Murphy must file in the Tribunal two (2) copies and give to the Queensland Building and Construction Commission one (1) copy of any and his [sic] replies to the Queensland Building and Construction Commission submissions, by:
4:00pm on 16 June 2019.”
- In accordance with direction 1, the Member’s decisions were reserved. Decisions have not yet been delivered in proceedings GAR250-16 and GAR009-17.
- On 7 June 2019, Mr Murphy filed an application for leave to appeal or appeal seeking to appeal the directions made by the Tribunal on 14 May 2019.
What is the basis for the application for leave to appeal or appeal?
- In the application for leave to appeal or appeal, Mr Murphy expresses his grounds of appeal and the orders he seeks as relating to the Tribunal’s refusal to allow some witnesses to give evidence and not allowing him to cross-examine witnesses ‘about a decision to revoke a direction to rectify’. He refers, it appears, to disagreeing with the interpretation of QCAT Practice Direction 3/2013, paragraph 5(d), adopted by the learned Member. In his application for leave to appeal or appeal, Mr Murphy sought orders in the following terms:
“An order setting aside the decision of the Tribunal on 14 May 2019. A declaration that QCAT Practice Direction 3 of 2013 does not prevent witnesses giving testimony about matters contained in the statements of reasons for GAR250-16 & GAR009-17.”
- That said, it appears from his submissions later filed in the appeal proceeding that Mr Murphy contends that the Tribunal proceeded on an erroneous basis as to its jurisdiction in respect of GAR250-16. Further, there Mr Murphy takes issue with the fact that he wanted to ask questions that he considers relevant to the Tribunal’s decision of certain QBCC representatives as witnesses, but was not allowed to do so. In GAR009-17, he also submits that he should have been allowed to cross-examine a Mr McKee, an engineer who did the rectification design and issued certificates in relation to it.
The application for strike out of the appeal proceeding
- The QBCC filed an application seeking orders dismissing or striking out the application for leave to appeal or appeal, or in the alternative, seeking directions.
- The QBCC contends that the orders sought by Mr Murphy are not about an error in the decision that is the subject of the application for leave to appeal. Rather, the QBCC says that Mr Murphy’s reference to disallowance of some questions during cross-examination does not amount to a decision, but rather the procedure adopted by the Tribunal at hearing. In effect, the QBCC seeks an order striking out the proceeding because it is misconceived.
- The Appeal Tribunal made directions for submissions to be filed by the parties in respect of the strike out application. Mr Murphy did not comply with that direction, but did file his broader submissions in the appeal proceedings to which I refer to above.
- Section 47 of the QCAT Act provides that an application may be dismissed or struck out if it is frivolous, vexatious or misconceived; lacking in substantive; or otherwise an abuse of process.
Should the application for leave to appeal be dismissed or struck out?
- The QBCC’s submissions are to the effect that Mr Murphy aims to appeal about the procedure adopted by the learned Member at hearing, in refusing to allow him to cross-examine about why QBCC’s representatives made decisions. Having regard to the transcript for 14 May 2019, it is also apparent that at the resumed hearing Mr Murphy expressed a desire to ask questions of Mr McKee whose evidence it appears had not been earlier anticipated by him nor a request made for him to be available.
- I am satisfied that Mr Murphy’s application for leave to appeal or appeal is not made in respect of the decision identified by him as the subject of appeal. It must be understood that it is a decision that may be appealed, subject to limits upon the categories of decision that are susceptible to appeal (as provided for in s 142 of the QCAT Act). As is apparent from Mr Murphy’s application for leave to appeal or appeal and his later filed submissions in support, Mr Murphy does not seek to appeal the decision of 14 May 2019. If he appeals any decision of the Tribunal, it is not the one he has identified. Indeed, his appeal appears to pre-empt the Tribunal’s final decisions in the GAR proceedings. Those decisions have not yet been made. If the Tribunal decides against Mr Murphy in the reviews, or either of them, then he may, if error is made by the Tribunal, make application for leave to appeal or appeal.
Conclusions and orders
- For the reasons explained above, the application for leave to appeal or appeal is misconceived. It should be dismissed pursuant to s 47 of the QCAT Act.
- I make orders accordingly.
- Published Case Name:
Murphy v Queensland Building and Construction Commission
- Shortened Case Name:
Murphy v Queensland Building and Construction Commission
 QCATA 175
Senior Member Howard
23 Sep 2019