Darryl Hathway Painting and Decorating Pty Ltd v Queensland Building and Construction Commission & Anor [2019] QCAT 4

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Darryl Hathway Painting and Decorating Pty Ltd v Queensland Building and Construction Commission & Anor [2019] QCAT 4 PARTIES: DARRYL HATHWAY PAINTING AND DECORATING PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) JASMIN MARIE BLUNDELL (second respondent) APPLICATION NO/S: GAR432-18 (formerly OCR223-17) MATTER TYPE: General administrative review matters DELIVERED ON: 15 January 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: Jasmin Marie Blundell is joined as a respondent in the proceedings. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – whether the home owner should be joined Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 86 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 20, s 21, s 24, s 40, s 42 REPRESENTATION: Applicant: C King of Celtic Legal Respondents: E Ward APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Darryl Hathway Painting and Decorating Pty Ltd (‘DHPD’) has sought review of a decision of the Queensland Building and Construction Commission (‘QBCC’) dated 13 September 2017. The QBCC decided that a domestic building contract between DHPD and Ms Blundell was validly terminated with the consequence of allowing a claim for non-completion under the statutory insurance scheme. [2] On 3 July 2018, the QBCC has made an application for Ms Blundell to be joined to the proceedings. [3] The QBCC has provided written submissions in support of the joinder application. DHPD advised that it did not wish to make any submissions in relation to the joinder application. Applicable Law [4] Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’) provides for the joinder of parties as follows: 42 Joining parties (1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that-- (a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or (b) the person's interests may be affected by the proceeding; or (c) for another reason, it is desirable that the person be joined as a party to the proceeding. (2) The tribunal may make an order under subsection (1) on the application of a person or on its own initiative. [5] Section 40 of the QCAT Act specifies that the parties to a review proceeding include a person joined under section 42. Discussion [6] The Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) provides for the Tribunal to review decisions that a domestic building contract has been validly terminated having the consequence of allowing a claim for non- completion under the statutory insurance scheme.1 [7] In the review jurisdiction, the Tribunal decides the review by way of a fresh hearing on the merits,2 and the purpose of the review is to produce the correct and preferable decision.3 The original decision-maker, in this instance, the QBCC, must use its best endeavours to assist the Tribunal to reach the correct and preferable decision.4 1 QBCC Act, s 86(1)(i). 2 QCAT Act, s 20(2). 3 Ibid, s 20(1). 4 Ibid, s 21(1). -- 2 of 3 -- 3 [8] Under s 24 of the QCAT Act, the functions of the Tribunal for the review jurisdiction are to confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.5 The decision made by the Tribunal is taken to be the decision of the original decision-maker.6 [9] The objects of the QCAT Act include having the Tribunal deal with matters in a manner that is accessible, fair, just, economical, informal and quick.7 [10] A possible outcome of the review proceedings is that the Tribunal may decide to set aside the decision of the QBCC and substitute a decision that the contract was not validly terminated, with the consequence of disallowing Ms Blundell’s claim for non- completion under the statutory insurance scheme. Accordingly, I am satisfied under section 42(1)(b) of the QCAT Act that Ms Blundell’s interests may be adversely affected by the outcome of these review proceedings. [11] I accept that any additional party will add to the length of the proceeding and hearing. However, DHPD and Ms Blundell have competing positions in relation to the termination of the contract. Those competing positions should be put directly to the Tribunal. As noted above, the role of the QBCC is to use its best endeavours to assist the Tribunal to reach the correct and preferable decision. It is not the role of the QBCC to promote the position of either DHPD or Ms Blundell. Joinder of Ms Blundell would enable her to properly advocate her position in respect of issues relevant to the termination of the contract. Decision [12] For these reasons, I am satisfied that it is appropriate to exercise my discretion for Ms Blundell to be joined as a party to the proceedings. Accordingly, I make orders for the joinder of Ms Blundell as a party to the proceedings. 5 Ibid, s 24(1). 6 Ibid, s 24(2). 7 Ibid, s 3(b). -- 3 of 3 --