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Abbott v Queensland Building and Construction Commission[2021] QCATA 145

Abbott v Queensland Building and Construction Commission[2021] QCATA 145

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Abbott v Queensland Building and Construction Commission [2021] QCATA 145

PARTIES:

elicia abbott

(applicant/appellant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

APL052-21

ORIGINATING

APPLICATION NO/S:

GAR378-19

MATTER TYPE:

Appeals

DELIVERED ON:

30 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

EVIDENCE – ADDUCING EVIDENCE – DOCUMENTS – REQUESTS TO PRODUCE – where the applicant filed an application to review a decision of the QBCC – where the applicant was ordered by the Tribunal to produce documents – whether the Tribunal erred in its discretion to order the production of documents – consideration of the role of the decision-maker in merits review proceedings

Queensland Building and Construction Commission Act 1991 (Qld), s 72(3)

Queensland Civil and Administrative Tribunal 2009 (Qld), s 20, s 20(1), s 20(2), s 62(3), s 95(2)(a), s 142(1), s 142(3)(a)(ii)

Bergin v Department of Housing and Public Works [2014] QCATA 185

House v The King (1936) 55 CLR 499

Pickering v McArthur [2005] QCA 294

Queensland Building and Construction Commission v Whalley [2018] QCATA 38

 

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

  1. [1]
    This is an appeal from an interlocutory decision of the tribunal in administrative review proceedings.
  2. [2]
    A party may appeal to the appeal tribunal against a decision of the tribunal.[1] An appeal against an interlocutory decision of the tribunal may only be made with the leave of the appeal tribunal.[2]
  3. [3]
    Leave to appeal will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.[3]
  4. [4]
    It should be noted at the outset that no reasons were given by the tribunal in respect of the decision under appeal.

The relevant background events

  1. [5]
    The background events relevant to the present appeal are set out in the chronology below:

Date

Event

07.08.17

Applicant and Mish Developments Pty Ltd enter into building contract.

26.01.18

Mish Developments Pty Ltd assigns building contract to Unitol Building Design Pty Ltd.

16.05.18

Mish Developments Pty Ltd put into external administration.

21.05.18

Applicant purports to terminate building contract.

25.05.18

Applicant lodges non-completion claim with Queensland Building and Construction Commission (‘QBCC’).

31.07.18

Applicant obtains Owner-Builder permit.

15.01.19

Applicant withdraws non-completion claim with QBCC.

18.03.19

Applicant lodges complaint with QBCC regarding defective building work by Mish Developments Pty Ltd.

11.06.19

QBCC building inspector undertakes inspection of building works.

26.06.19

QBCC issues direction to rectify to Mish Developments Pty Ltd (original decision).

27.06.19

Initial inspection report by QBCC.

29.07.19

Applicant applies for internal review of original decision.

28.08.19

QBCC makes internal review decision (the reviewable decision the subject of the proceedings).

02.09.19

QBCC issues direction to rectify to Mish Developments Pty Ltd.

25.09.19

Applicant files application to review decision.

28.09.19

QBCC makes internal review decision to issue Mish Developments Pty Ltd with a direction to rectify items of defective building work.

11.10.19

Tribunal directs applicant to file statements of evidence.

16.12.19

Applicant files statements of evidence.

17.02.20

Compulsory conference held. Parties directed to file further statements of evidence.

30.03.20

Applicant files further statements of evidence.

28.10.20

QBCC files application for miscellaneous matters seeking orders for the production of documents by the applicant.

09.11.20

Tribunal directs parties to file any further statements of evidence.

18.12.20

QBCC files further statements of evidence

04.02.21

  • Tribunal directs QBCC to file an addendum bundle of documents in accordance with s 21 of the Queensland Civil and Administrative Tribunal 2009 (Qld) (‘QCAT Act’).
  • Tribunal directs applicant to file evidence of expenditure and details of work carried out by applicant to bring building works to completion (the decision under appeal).
  1. [6]
    Ms Abbott appeals the order of the tribunal of 4 February 2021 requiring her to file evidence of the expenditure she incurred, and the details of the works she undertook, to bring the building works to completion after she obtained an owner builder permit.

The order under appeal

  1. [7]
    As noted in the chronology above, the QBCC filed an application for miscellaneous matters on 28 October 2020 seeking the production of documents by the applicant including, inter alia, ‘evidence of expenditure and details of work carried out by the Applicant as owner builder to bring the build to completion.’
  2. [8]
    In support of the application the QBCC said:
    1. (a)
      The applicant completed the construction of the building as an owner builder;
    2. (b)
      Several items in the Owner Builder Permit obtained by the applicant correlated with items of work not directed to be rectified in the internal review decision;
    3. (c)
      The scope of the Owner Builder Permit suggested that the Applicant had undertaken to complete or rectify the complaint items herself;
    4. (d)
      The QBCC had limited information as to the extent of the work carried out by the Applicant as an Owner Builder;
    5. (e)
      The evidence of expenditure and details of work carried out by the Applicant as owner builder are relevant to the state of the property at the time the builder ceased work, at the property and the work the Applicant carried out as an owner builder to bring the property to completion.
  3. [9]
    In response to the application Ms Abbott said:
    1. (a)
      The documents sought by the QBCC were absurd and irrelevant;
    2. (b)
      There was no doubt about, and no question raised as to, who performed the defective work items the subject of the review. All of the work was undertaken by the builder under the various stages pursuant to the contract;
    3. (c)
      There was no reasonable basis to question who undertook the defective building work;
    4. (d)
      The applicant had not rectified the defective items with the exception of items 13 and 30;
    5. (e)
      The hundreds of miscellaneous receipts were unlikely to provide clarity on what works were performed;
    6. (f)
      The applicant was unsure whether she was still in possession of the documents;
    7. (g)
      The QBCC had provided no reasonable basis upon which production of the documents was sought;
    8. (h)
      It would take an extensive amount of time to produce the documents for little or no purpose, and the production of the documents would not assist in narrowing the issues in dispute and would delay the matter;
    9. (i)
      The orders sought by the QBCC were not in the interests of justice.
  4. [10]
    The QBCC responded to Ms Abbott’s submissions:
    1. (a)
      By seeking to amend the orders for the production of documents to include:
      1. certification documents and payments to certifiers for works carried out under the owner builder permit (Owner Builder Permit);
      2. payments to licensed contractors for works carried out under the Owner Builder Permit;
      3. payments for materials purchased under the Owner Builder Permit; and
      4. any other expenditure incurred in bringing the Property to practical completion.
    2. (b)
      Stating that there was a factual dispute between Ms Abbott and the builder as to:
      1. the stage the works had reached when the contract came to an end and any monies owed, noting that:
        1. Ms Abbott said the works had reached the enclosed stage;
        2. The builder said the works had reached the fixing stage and were near practical completion; and
      2. whether the Applicant interfered with the complaint items in her capacity as owner builder;
    3. (c)
      Stating that the Applicant undertook to complete a significant amount of building work to bring the property to practical completion.
  5. [11]
    The order made by the tribunal, the subject of this appeal, was in the following terms:

3.  The application for miscellaneous matters, filed by the Queensland Building and Construction Commission on 28 October 2020 (as to production of documents) is determined as follows:

  1. Pursuant to section 62(3) of the Queensland Civil and Administrative Tribunal Act 2009, Elicia Abbott must file two (2) copies in the Tribunal and give one (1) copy to the Queensland Building and Construction Commission, of the following documents and/or information:
  1. Evidence of expenditure and details of work carried out by Elicia Abbott as owner builder to bring the building to completion, specifically,
  1. (i)
    Certification documents and payments to certifiers for works carried out under the owner builder permit;
  1. (ii)
    Payments to licensed contractors for works carried out under the owner builder permit;
  1. (iii)
    Payments for materials purchased under the builder permit, by:

4:00pm on 12 March 2021.

  1. [12]
    As I have observed, the tribunal did not give reasons for the decision nor did either party request reasons.

The grounds of appeal

  1. [13]
    The grounds of appeal relied upon by Ms Abbott may be summarised as follows:
    1. (a)
      Ms Abbott was denied procedural fairness as a result of the QBCC amending the orders sought without Ms Abbott being given an opportunity to respond to such amendments;
    2. (b)
      The tribunal was led into error by the QBCC’s submissions, specifically, that it is an issue in dispute that the building works had reached the fixing stage. Ms Abbott says that both she and the QBCC disagree with the builder’s assertion that the building works had reached the fixing stage. Ms Abbott in fact goes further to say that the tribunal cannot determine this issue in the review proceedings.

Consideration

  1. [14]
    Section 62(3) of the QCAT Act confers upon the tribunal a broad discretion to order the production of documents, by a party to a proceeding, to the tribunal or to another party to the proceeding.
  2. [15]
    The production of documents will generally only be ordered if an applicant can establish that:
    1. (a)
      The documents probably relate to a matter in question in the proceedings;
    2. (b)
      The documents sought must be specified with sufficient particularity to enable the specific documents or categories of documents to be identified;
    3. (c)
      An order for the production of the documents is in the interests of justice and will facilitate the just and expeditious resolution of the real issues in the proceedings at a minimum of expense.
  3. [16]
    I turn now to the grounds of appeal.
  4. [17]
    There is no substance in the first ground of appeal. The amended orders sought by the QBCC narrowed the categories of documents the subject of the application for production. Ms Abbott offers no persuasive argument as to how she was disadvantaged by the amendment to the orders sought. Indeed, the categories of documents encompassed by the amended application were all within the scope of the original application, albeit better particularised.
  5. [18]
    The second ground of appeal relied upon by Ms Abbott is, essentially, that the learned member erred in the exercise of the discretion to order the production of the documents.
  6. [19]
    Error may be established in respect of the exercise of a discretion in the following circumstances:
    1. (a)
      The decision maker acts upon wrong principle;
    2. (b)
      The decision maker allows extraneous or irrelevant matters to guide or affect him/her;
    3. (c)
      The decision maker mistakes the facts;
    4. (d)
      The decision maker does not take into account a material consideration;
    5. (e)
      It may not appear apparent how the decision maker has reached the result however upon the facts the decision is unreasonable or plainly unjust.[4]
  7. [20]
    The purpose of review proceedings is to produce the correct and preferable decision.[5] The tribunal must hear and decide the review by way of a fresh hearing on the merits.[6]
  8. [21]
    In the review proceedings below, the tribunal will be required to decide whether to give a direction to rectify to Mish Developments Pty Ltd. In determining the review proceedings, the tribunal will step into the shoes of the QBCC to make the correct and preferable decision.
  9. [22]
    In deciding whether to give a direction to rectify, the QBCC may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work.[7] The QBCC is not required to give the direction to rectify if it is satisfied that it would be unfair to the person to give the direction. The terms of s 72(2) of the QBCC Act are clear. The QBCC may take into consideration all circumstances it considers relevant, not only the terms of the contract.
  10. [23]
    Ms Abbott’s submissions make much of what she characterises as the issues in dispute.  Review proceedings are quite unlike adversarial proceedings. As the QCAT Appeal Tribunal observed in Queensland Building and Construction Commission v Whalley:[8]

A tribunal conducting a merits review proceeding is also conducting a hearing de novo because the tribunal is required to consider all of the material afresh, including the material that was before the decision-maker and, subject to any modifying provisions, any material or new evidence filed by the applicant and the decision-maker. Unlike a judicial review proceeding that is concerned with the legal merits, a merits review is a proceeding concerned with the factual merits. More importantly, the tribunal in reviewing a decision may make any findings of fact and has the power to deal with all questions of law or legal issues relevant to the decision being reviewed.

  1. [24]
    In the review proceedings below, the tribunal will decide whether and what building work is defective or incomplete and, if work is defective or incomplete, whether a direction to rectify should be given to the builder. This will require the tribunal to make factual findings on the evidence.
  2. [25]
    It is not contentious that Ms Abbott obtained an Owner Builder Permit and undertook the completion of the building works. Ms Abbott concedes that she rectified two of the defective items of work. Ms Abbott submits that there is otherwise no overlap between the items of defective work undertaken by the builder and the works she undertook as an owner builder. These are matters which the tribunal will consider and, if appropriate, determine in the review proceedings. It seems reasonably clear that, prima facie, the documents relating to the completion of the building works may well be relevant to the consideration by the tribunal of the issues in the proceedings.
  3. [26]
    Ms Abbott says that the tribunal did not have jurisdiction to make the direction for the production of the documents. Ms Abbott says that the tribunal does not have jurisdiction to make orders about other decisions made by the QBCC ‘even if those decisions are, for the purposes of the QBCC Act, a reviewable decision. This includes decisions about “whether the fixing stage was achieved” and “whether payment is due to the Builder under the Contract”.’ Ms Abbott’s submission is rejected. In determining the present review application, the tribunal is not bound by previous decisions the QBCC may have made although such decisions and the basis for the decisions may form part of the relevant factual matrix in the current proceedings.
  4. [27]
    I also note that the decision by the QBCC referred to by Ms Abbott, that the building works had not reached the fixing stage, was made in the context of a claim under the statutory insurance scheme, not a claim in respect of defective building work. Secondly, and of greater relevance for present purposes is this: what stage the building works had reached at the time of the purported termination and whether any monies were payable to the builder will be matters for the tribunal to determine in the review proceedings. These are matters relevant to whether it would be unfair to give a direction to rectify. The documents the subject of the order under appeal would therefore appear to be relevant to the factual matrix regarding the stage the building works had reached at the time Ms Abbott commenced to undertake the completion work.
  5. [28]
    Ms Abbott says that the evidence of the builder as to the stage the building works had reached should not have been afforded weight by the tribunal in making the decision for the production of documents. In the absence of reasons for the decision under appeal, it is not possible to say what, if any, weight was given by the tribunal to the statement of evidence of the builder.
  6. [29]
    Ms Abbott says that the tribunal should have considered the application of s 95(2)(a) of the QCAT Act by which the tribunal may refuse to allow a party to a proceeding to call evidence on a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal.[9] In the absence of reasons it is not possible to know whether the tribunal considered s 95(2)(a). Having said this, it is appropriate to make the following observations. Section 95 is contained in Division 5 of Part 6 of the QCAT Act. Division 5 contains various provisions dealing with tribunal hearings. Section 95 is concerned with, inter alia, calling evidence at a hearing and the power of the tribunal to curb repetitive or irrelevant evidence or argument.[10]  Section 95 was not relevant to the determination of the application for the production of documents.
  7. [30]
    Ms Abbott says that the QBCC has acted contrary to model litigant principles and, specifically, that it should not contest matters which it accepts as correct. This submission goes to the issue of whether the fixing stage had been reached. Ms Abbott’s submission is that the QBCC knows that the fixing stage had not been reached by the builder and that it should not be contesting the issue of the state of the works at the time of termination. For the reasons set out, the stage the building works had reached at the time of termination is one of the issues about which the tribunal will make appropriate findings.
  8. [31]
    Ms Abbott’s submissions appear in large part to be premised upon the perception that the QBCC is acting in an adversarial manner in these proceedings. The role of the decision maker in review proceedings is explained in QCAT Practice Direction No. 3 of 2013:

The government or agency official (the decision-maker) which made the decision is required to use their best endeavours to assist the Tribunal so that it can make its decision on the review: that is, the decision-maker must assist the Tribunal to make the correct and preferable decision. Therefore, the decision-maker’s role is not adversarial. However, in discharging its obligations the decision-maker must properly test the evidence relied upon by the applicant (and the evidence of any other party intervening in or joined as a party to the proceeding), to perform its function of assisting the Tribunal. (emphasis added)

  1. [32]
    As the decision maker, the QBCC is required to ensure that all of the relevant evidence is placed before the tribunal to enable the correct and preferable decision to be made. The documents ordered to be produced relating to the completion of the building works, would appear to be relevant to the matters to be decided by the tribunal. In applying for the production of the documents from Ms Abbott the QBCC acted consistently with its obligations as the decision maker. 

Conclusion

  1. [33]
    Ms Abbott has failed to establish that the tribunal acted upon wrong principle, took into consideration irrelevant matters, was mistaken as to the facts or failed to take into account a material consideration. Nor was the decision of the tribunal unreasonable or plainly unjust.
  2. [34]
    Ms Abbott has failed to demonstrate any reasonably arguable case of error in the decision under appeal.
  3. [35]
    Leave to appeal is refused.

Footnotes

[1] Queensland Civil and Administrative Tribunal 2009 (Qld) s 142(1) (‘QCAT Act’).

[2]  Ibid. s 142(3)(a)(ii).

[3] Pickering v McArthur [2005] QCA 294.

[4] House v The King (1936) 55 CLR 499

[5] QCAT Act, s 20(1).

[6]  Ibid, s 20(2).

[7] Queensland Building and Construction Commission Act 1991 (Qld), s 72(3) (‘QBCC Act’)

[8] Queensland Building & Construction Commission v Whalley [2018] QCATA 38.

[9] QCAT Act, s 95(2)(a).

[10] Bergin v Department of Housing and Public Works [2014] QCATA 185.

Close

Editorial Notes

  • Published Case Name:

    Abbott v Queensland Building and Construction Commission

  • Shortened Case Name:

    Abbott v Queensland Building and Construction Commission

  • MNC:

    [2021] QCATA 145

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown

  • Date:

    30 Nov 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bergin v Department of Housing and Public Works [2014] QCATA 185
2 citations
Jump To
Cite 1 - [2014] QCATA 185
Cite 2 - [2014] QCATA 185
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Queensland Building & Construction Commission v Whalley [2018] QCATA 38
2 citations
Jump To
Cite 1 - [2018] QCATA 38
Cite 2 - [2018] QCATA 38

Cases Citing

Case NameFull CitationFrequency
Rosecove Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 2352 citations
Stella v Griffith University [2024] QCATA 1422 citations
1

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