Electrix by Greens v Industrial Electrics Pty Ltd [2022] QCATA 2

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Electrix by Greens v Industrial Electrics Pty Ltd [2022] QCATA 2 PARTIES: ELECTRIX BY GREENS (appellant) V INDUSTRIAL ELECTRICS PTY LTD (respondent) APPLICATION NO/S: APL294-20 ORIGINATING APPLICATION NO/S: MCDO 258 of 2020 (Southport) MATTER TYPE: Appeals DELIVERED ON: 6 January 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon ORDERS: 1. The name of the respondent to this appeal on the Appeal Tribunal’s record is changed to Industrial Electrics Pty Ltd. 2. Leave to appeal is refused. This means the appeal fails. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where Adjudicator found that the claim was a building dispute but that there had been no attempt at conciliation before the Queensland Building and Construction Commission – where appellant says that the claim did not come under the relevant provisions – whether any reasonably arguable grounds of appeal Queensland Building and Construction Commission Act 1991 (Qld), s 75, s 77, schedule 2 APPEARANCES & REPRESENTATION: Appellants: Self-represented Respondent: Did not participate in the appeal This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and -- 1 of 4 -- 2 Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] In this appeal it is said that the Adjudicator who heard this application was wrong to dismiss it for want of jurisdiction. [2] It was an application by Electrix by Greens seeking payment for electrical sub- contract work done for Industrial Electrics Pty Ltd. Industrial Electrics defended the claim on the basis that Electrix by Greens made a mistake on site, a matter which was in dispute. [3] The Adjudicator dismissed the application because it was a ‘building dispute’, which meant that it was necessary to seek conciliation of the claim by the Queensland Building and Construction Commission before bringing it in the tribunal, and this had not happened. [4] In this appeal it is said that the Adjudicator was mistaken to say that the QBCC could offer conciliation and that it was not a building dispute as defined because the reference to electrical services in the definition of building dispute was only to permit an electrical contractor to take action against a QBCC licensed builder for non-payment. It is said that in any event the work done was project management of a contract between Industrial Electrics and the head contractor and so it was not within the relevant provisions. [5] The respondent named in the application for leave to appeal or appeal was ‘Industrial Electrics’ but in later documents Electrix by Greens used the name Industrial Electrics Pty Ltd. Since that latter name was the name of the party in the minor civil dispute file it is right to correct this accordingly. [6] In order to deal with this appeal, I refer to section 77 of the Queensland Building and Construction Commission Act 1991 (Qld). It reads: 77 Tribunal may decide building dispute (1) A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute. (2) However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute. [7] The Adjudicator decided that subsection (2) had not been complied with. This was admitted at the hearing.1 The issue in this appeal however is whether the claim was a ‘building dispute’. If so, then the Adjudicator was right to dismiss it because subsection (2) had not been complied with. [8] We can start with Schedule 2 to the QBCC Act. There, it is said that: building dispute means— (a) a domestic building dispute; or (b) a minor commercial building dispute; or 1 Transcript 1-3, line 27. -- 2 of 4 -- 3 (c) a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under section 79. [9] Then we have: minor commercial building dispute means a commercial building dispute where neither the claim nor the counterclaim exceeds $50,000 [10] I should point out here that the claim was for $10,408.82 brought on Form 3 (minor debt claim). There was no counterclaim although Industrial Electrics relied on a large set-off as a defence to the claim. [11] So we move on to the next definition, that of commercial building dispute. I shall only recite the ones of relevance here: (b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or (d) a claim or dispute arising between a .. building contractor and any 1 or more of the following relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work— .. (v) an electrician or an electrical contractor; [12] A ‘building contractor’ is widely defined: building contractor— (a) generally, means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor; but (b) for schedule 1B, see schedule 1B, section 1. [13] ‘Building work’ is also widely defined. I shall only recite the ones of relevance here: building work means— (a) the erection or construction of a building; or (b) the renovation, alteration, extension, improvement or repair of a building; or (c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or (e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or [14] Returning to the definition of commercial building dispute, this required a definition of reviewable commercial work which is: reviewable commercial work means tribunal work other than reviewable domestic work [15] ‘Tribunal work’ is defined in section 75 and 76 of the Act and includes: 75(1)(c) the provision of electrical work, water supply, sewerage or drainage or other like services for a building; [16] And of relevance to the point made in this appeal: -- 3 of 4 -- 4 75(4) A person is taken to carry out tribunal work if the person provides advisory services, administration services, management services or supervisory services relating to the tribunal work [17] ‘Electrical work’ is not further defined. [18] The Adjudicator could see from the invoice upon which the claim was based that the work done by Electrix by Greens was described as: Supply labour April Supply labour May After hours labour Materials at cost [19] A letter was on the file from the solicitors for Industrial Electrics stating that the subcontract was ‘to assist with carrying out the installation services at the site’, those services being for the installation of lighting at the site, and an affidavit from a director of Industrial Electrics describes the work done by Electrix by Greens as ‘Site Supervising Electrician’.2 Electrix by Greens provided submissions for the hearing before the Adjudicator and described the subcontract work as ‘project management and labour hire’.3 [20] As the Adjudicator found, the subcontract work was ‘tribunal work’ and the claim related to the performance of that work. Hence before coming to the tribunal, Electrix by Greens should have asked QBCC to attempt to resolve the dispute. This is required even if QBCC cannot assist, or would not otherwise control licences for the work in question. Conclusion in the appeal [21] An appeal in a matter of this type requires leave of the Appeal Tribunal. This would be given if the appeal was arguable but here it is not at all arguable. The decision by the Adjudicator that the tribunal did not have jurisdiction to hear and determine this claim because there had been no attempt at QBCC conciliation (even if it was not available) was clearly correct. Leave to appeal is refused. This means that the appeal fails. 2 Affidavit dated 6 August 2020, [3]. 3 Submissions dated 6 September 2020. -- 4 of 4 --