Queensland Building Services Authority v Lazinski
[2009] QDC 381
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- Unreported Judgment
- Queensland Building Services Authority v Lazinski[2009] QDC 381
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Queensland Building Services Authority v Lazinski[2009] QDC 381
Queensland Building Services Authority v Lazinski[2009] QDC 381
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Building Services Authority v Lazinski [2009] QDC 381 |
PARTIES: | QUEENSLAND BUILDING SERVICES AUTHORITY Appellant AND JAN LAZINSKI Respondent |
FILE NO/S: | BD2985/09 |
DIVISION: |
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PROCEEDING: | Application for leave to appeal |
ORIGINATING COURT: | Commercial and Consumer Tribunal |
DELIVERED ON: | 9 November 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 November 2009 |
JUDGE: | McGill DCJ |
ORDER: | Leave to appeal refused with costs. |
CATCHWORDS: | INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – appeal – whether appropriate to grant leave to appeal – relevant considerations Commercial and Consumer Tribunal Act 2003 s 100(1) Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Ltd [1998] QCA 351 – cited. Clements v Flower [2005] QDC 50 – cited. Poiner v Quirk [2007] QDC 299 – followed. R v His Honour Judge Given; ex parte Builders Registration Board of Queensland [1985] 2 Qd R 32 – cited. Walker v Davelin Homes Pty Ltd [2003] QCA 565 – applied. |
COUNSEL: | M. D. Evans for the appellant M. Lazinski (solicitor) for the respondent |
SOLICITORS: |
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- [1]This is an application for leave to appeal from a decision of the Commercial and Consumer Tribunal. On 23 September 2009 that Tribunal ordered that a decision of the appellant to issue to the respondent a direction to rectify defective building work pursuant to s 72 of the Queensland Building Services Authority Act be set aside and that the matter be remitted to the appellant to reconsider whether or not to issue a direction to rectify to the respondent or any other person.
- [2]The proceeding arose because the appellant had issued to the respondent a direction to rectify under s 72 of that Act and the respondent before me had appealed to the Tribunal against that direction. The Tribunal in those circumstances under s 104 of the Commercial and Consumer Tribunal Act 2003 was entitled to either confirm the decision then being reviewed, or set aside the decision and substitute another decision, or set aside the decision and return the matter to the state agency that made the decision with directions that the Tribunal considers appropriate.
- [3]The particular form of the order is a little curious in that on the face of it, it will be consistent with the order of the Tribunal for the appellant to issue a fresh direction to rectify to the respondent. The form of the direction suggests that it does not involve any final conclusion as to whether or not the respondent can be the subject of a direction to rectify.
- [4]Paragraph 49 of the reasons of the Tribunal explains this a little. In that paragraph the Tribunal Member said:
“I propose to return the matter to the authority for it to determine whether or not the respondent was in fact carrying on a business involving carrying out building work, and in the circumstances, whether to issue a fresh direction to rectify to the respondent. Any such direction should be limited to rectifying the leaking shower and the damage to the vanity unit caused by the leak.”
- [5]The effect of this, it seems to me, is not only inconsistent with the proposition advanced on behalf of the appellant that the effect of the decision of the Tribunal was that there was a finding that the respondent was not a person to whom a direction to rectify could be issued pursuant to s 72 of the Act. It is not even, in the circumstances, a finding that the respondent is not a person to whom a direction to rectify can be issued on the basis that he falls within paragraph 72(5)(c) of the Act, on the basis that it is expressly, in paragraph 49 of the reasons, left open to the appellant to determine whether or not the respondent was in fact carrying on a business involving carrying out the work. That was the issue which the Tribunal considered from paragraph 33 of its reasons in relation to the question of whether s 72(5)(c) had been satisfied.
- [6]I should say that s 72 of the Act permits a direction to rectify to be issued to various people listed in s 72(5). There is now a long list of such people.
- [7]The appellant before the Tribunal relied on certain particular parts of subsection (5). The Tribunal was not persuaded that any of those had been made out.
- [8]It seems however, that in relation to paragraph 72(5)(c) the position of the Tribunal was simply that, on the material before it, the Tribunal Member could not be satisfied that the respondent was a building contractor as defined, on the basis that he was a person whose business consisted of or included carrying out building work.
- [9]The Tribunal Member said in paragraph 34:
“I do not know whether the respondent had a habit of carrying out work as a construction manager or otherwise carrying out any building work. I do not know whether he carried on a business that consisted of or included carrying out building work.”
- [10]The position does seem to be a little strange but it would seem to me that, consistently with the decision of the Tribunal, it would be open now for the appellant to decide that on material now before it the respondent was, at the relevant time, carrying on a business that consisted of or included carrying out building work and was therefore a building contractor as defined for the purposes of the section. Consistently with that approach, it would seem to me to be open to the appellant to conclude that the respondent was a person to whom a direction under s 72 of the Act could be issued on some other basis, at least as long as that did not directly contradict a specific finding made by the Tribunal.
- [11]The matter is complicated by the fact that before the Tribunal the appellant sought to rely on particular parts of s 72(5) and in relation to those parts, one of which was (5)(c), the Tribunal either found that the part did not apply or in the case of para (c) that it was not shown to have applied on the evidence before it. It was submitted that this involved a too technical approach on the part of the Tribunal; that this involved placing an onus on the appellant which was not appropriate given the nature of its function in conducting a merits review of the decision of the appellant, and in the light of the terms of the Commercial and Consumer Tribunal Act of 2003, as set out in particular under s 47. It was submitted that that meant that the Tribunal was entitled to be proactive in investigating the matter and in particular that it was open to the Tribunal to investigate the bases upon which the respondent might have been a person within s 72 other than those put forward on behalf of the appellant.
- [12]It was also submitted that it was not appropriate for the Tribunal to approach the matter on the basis that there was an onus on the appellant to prove before the Tribunal that the respondent was a person to whom a direction could be given under s 72. I accept that there is a good deal of authority to the effect that in the case of something like the Commercial and Consumer Tribunal, when conducting a merits review at an administrative level, it is inappropriate to talk in terms of an onus, but it seems to me that ultimately the issue before the Tribunal was whether the respondent was a person who fell within s 72(5) of the Act so that an order could be made against him or a direction could be made against him. That necessarily could only be decided by the Tribunal Member on the basis of the material before him. He might well have been entitled, subject to the statutory obligation to comply with the requirements of natural justice, to investigate the possibility that that requirement was satisfied other than on the basis put forward on behalf of the appellant, but I do not consider that there is any legal obligation upon the Tribunal Member to do so. It is one thing to say that the Tribunal Member is entitled to investigate the question of whether a party is entitled to succeed on a basis other than that advanced by the party, and another to say that the Tribunal Member commits an error of law by not doing so.
- [13]The appeal is not one by way of rehearing. The issue is whether the Tribunal Member has made an error of law. I am far from persuaded that there was any obligation on the Tribunal Member to investigate the question of whether the respondent was a person who fell within subsection (5) other than on one of the bases put forward on behalf of the appellant in those circumstances, so that he made an error of law in failing to do so. In the same way, it cannot be said that the Tribunal Member made an error of law in failing to decide something he was not asked to decide by the appellant.
- [14]I can say that the appellant also submits that there was an error of jurisdiction in failing to properly identify the direction to rectify. It is true that in the reasons of the Tribunal Member, when referring to the direction to rectify, the date which is identified was not the date of the direction to rectify but the date of an earlier request to rectify given by the appellant.
- [15]That was a slip by the Tribunal Member, but in circumstances where there was only ever one direction to rectify and there could have been no ambiguity about the substantive direction that was in issue, I do not consider that it is any more than that, or that it has any effect on the question of jurisdiction of the Tribunal, or for that matter that it amounts to an error of law.
- [16]It was also submitted that there was an error of law in concluding that there was no evidence that the Tribunal Member was carrying on a business. But it seems to me that the position was simply that the Tribunal Member was not persuaded on the basis of the submissions advanced in the light of the material before him that that was the case.
- [17]It does not involve a positive finding that the respondent was not carrying on a business and as I say the Tribunal Member contemplated that it was open to the appellant to reconsider this point.
- [18]So in those circumstances it seems to me that it would be essentially a waste of time to grant leave to appeal for the purpose of investigating whether or not there was evidence before the Tribunal to support a finding that the respondent was carrying on business. The question of whether the respondent was in fact carrying on business at the relevant time, of course, is a question of fact and that cannot be challenged on an appeal under s 100.
- [19]The appellant also sought to rely on some parts of s 72(5) which had not been relied before the Tribunal. It seems to me that there are difficulties in any case in the appellant seeking to rely on arguments not advanced below, unless they are arguments which necessarily could not have been met by evidentiary matters. Even allowing for the approach to the work of the Tribunal under the Statute, the legislation governing the Commercial and Consumer Tribunal is similar to the legislation governing the Queensland Building Tribunal, except that there was an appeal as of right from decisions of that Tribunal to the District Court which were to be reconsidered in a strange way but which was in substance at least an appeal by way of rehearing.
- [20]There was then an appeal subject to leave to the Court of Appeal from decisions of the District Court. The Court of Appeal held that the rules about raising grounds not ventilated before the Tribunal applied in that situation in Walker v Davelin Homes Pty Ltd [2003] QCA 565. In this case, because the appeal is not by way of rehearing but only on a question of law, it is necessary to go further and identify an error of law on the part of the Tribunal and it seems to me that there cannot be an error of law on the part of the Tribunal in failing to decide something which the Tribunal member was not asked to decide.
- [21]It was submitted that there was one provision which was relied on, s 72(5)(f), on the basis that reliance on that had never been abandoned but the Tribunal did not deal with that, apparently because of a conclusion that that provision, which had been inserted by amendment in 2007 before the direction to rectify was given, but apparently after the work was done, did not apply to the respondent.
- [22]There is authority in R v His Honour Judge Given; ex parte Builders Registration Board of Queensland [1985] 2 Qd R 32, that an amendment to an analogous provision, s 59 of the Builders Registration and Home Owner's Protection Act 1979, applied in its amended form in respect of the date on which the then Board exercised the power under the section to require work to be rectified rather than the date on which the work was done.
- [23]That approach was followed by the Court of Appeal in Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Ltd [1998] QCA 351. Presumably a similar approach would apply in relation to the amendment made in 2007. It does not seem that there was any specific transitional provision in the 2007 legislation, which I have looked at, which would prevent that consequence from following.
- [24]However, it is not necessary to decide that because it seems to me that it would be open to the appellant, in the light of the directions given by the Tribunal, itself to decide whether or not now the respondent is susceptible to a direction to rectify on that or some other basis.
- [25]The one matter that does seem to have been constrained by the decision of the Tribunal in relation to that aspect is the question of whether there was some deficiency in the parquetry or some defect in the parquetry which was caused by some problem with the shower. The position seems to be that there was some conflict of evidence before the Tribunal in relation to that matter.
- [26]The Tribunal then decided, in paragraph 42, that he was not satisfied the damage to the parquetry floor in the dining room was caused by any defect in the building work involving the shower. That was apparently sought to be relied on. The shower was not in the dining room, it was in a different room. Presumably the issue was whether, assuming the shower was causing problems, the problems from the shower extended to damaging the parquetry work in the dining room.
- [27]In relation to this it was submitted that the finding, which on the face of it was simply a finding of fact, nevertheless involved in error of law on the basis that the Tribunal member had failed to give sufficient reasons but had simply identified a particular conclusion.
- [28]It may be noted that the Tribunal Member made that finding in the context where he said he was briefly considering certain issues so that findings on those matters could be taken into account in the context of the reconsideration, (see paragraph 39).
- [29]The Tribunal identified the nature of the claim in relation to the parquetry floor at paragraph 12 of the reasons, and identified the issue in relation to that at paragraph 13(h) of the reasons. So there was some earlier reference to the basic issue. What was said then, in paragraph 42, was certainly very concise. Paragraphs 42 and 43 were certainly very concise and did not contain any particular explanation as to why the appellant's evidence in support of the proposition that the damage to the parquetry floor was caused by the shower was wrong. It is, I think, at least arguably inadequate reasons on that basis.
- [30]However, the question of the deficiency of the parquetry floor is a relatively minor matter. Given the nature of the matters in issue in the proceedings I do not think that it would be appropriate to grant leave to appeal in substance merely in order to determine whether or not there was an error of law in relation to the issue about whether the parquetry floor damage was caused by the leak in the shower.
- [31]I think that that would not be a matter of sufficient consequence to justify the grant of leave to appeal. Insofar as there are other deficiencies said to arise out of the decision of the Tribunal, the other matters are, I think, essentially academic because to a large extent it is a matter for the appellant to reconsider the matter itself.
- [32]This is, I think, a somewhat unsatisfactory situation in that it may well lead to further disputation between the parties. It may lead to a further appeal if there is a further direction given. That is unfortunate but in circumstances where the Tribunal has left the matter open in that way then it seemed to me that, unless the respondent was going to challenge that approach of the Tribunal, and the respondent has not sought to do so, it meant that the clearly preferable and appropriate course for the appellant was to reconsider the matter as directed by the authority rather than seeking to appeal against decisions on grounds which I think are substantially hypothetical, or at least moot.
- [33]If there is a proper basis for giving a direction to rectify to the respondent the appellant can do so. If it does do so then the respondent may well comply with it. The one confining feature is that it cannot extend to the rectification of the parquetry floor, but as I say, I do not think I am justified in giving leave to reconsider that issue. The question of the scope and significance of the matters sought to be raised in the appeal are, I think, properly matters for consideration in relation to the question of whether leave should be given to appeal. I approach the matter in the manner I indicated in Poiner v Quirk [2007] QDC 299 at [3].
- [34]It has been subsequently suggested that the standard or the approach would be similar to that adopted by the Court of Appeal in deciding whether to grant leave to appeal from a decision of the Planning and Environment Court. I think it is sufficient to say that it seems to me, with respect, that if that approach is adopted it involves a higher standard rather than a lower standard than the one I was applying in Poiner v Quirk. There are a number of statutes which provide for appeals by leave in respect of errors of jurisdiction or law, similar to that contained in s 100 of the Commercial and Consumer Tribunal Act. Some of those involve appeals to the Court of Appeal and some of those were considered by Judge Wilson, as he then was, in Clements v Flower [2005] QDC 50. They have not always, I think, expressed the test in the same way, but I think the approach in Poiner v Quirk is a reasonable one and in any event that is the approach that I am adopting.
- [35]Applying that approach here the application for leave to appeal is refused with costs.