Austin & Anor v One Off Projects & Anor [2018] QCAT 326

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Austin & Anor v One Off Projects & Anor [2018] QCAT 326 PARTIES: KATE AUSTIN (first applicant) BRADLEY EVANS (second applicant) v ONE OFF PROJECTS (first respondent) JON REID (second respondent) APPLICATION NO/S: MCDO60255-17 MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 28th September 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: It is confirmed that minor civil dispute MCDO60255- 17 is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – where building dispute commenced as minor civil proceeding – where parties did not comply with requirement to attempt resolution through a process established by the Queensland Building and Construction Commission – where no jurisdiction in the Tribunal without that process attempted prior to application to the Tribunal – where proceedings dismissed because of perceived failure to comply with a time limit to file material – where evidence was filed within time but no sufficient evidence to establish the Tribunal’s jurisdiction to consider the dispute between the parties Queensland Building and Construction Commission Act 1991 (Qld), s 77(1), s 77(2) REPRESENTATION: -- 1 of 3 -- 2 Applicants: Self-represented Respondent: Self-represented APPEARANCES: 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] The applicants filed a minor civil dispute – minor debt application in the Tribunal seeking recovery of the sum of $3,575 from the respondents (the applicants did not make clear which entity or entities contracted with them) who performed some pre- construction soil testing and preliminary site work for them in anticipation of building them a home. [2] The construction did not proceed and the applicants sought to recover some of the money they had spent on the preliminary site work from the builder. [3] The matter was listed before Justices of the Peace for hearing on 5 June 2018. The Justices of the Peace determined that the matter was a building dispute and that it should be more appropriately referred to the building list in the Tribunal. [4] The matter was put before me on 11 June 2018 to consider and approve, if appropriate, for transfer to the building list. The disagreement between the parties was clearly a building dispute as work associated with the erection or construction of a detached dwelling.1 There was no evidence that the parties had complied with the statutory requirements under s 77 of the Queensland Building and Construction Commission Act 1991 (Qld). [5] By s 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. [6] The Tribunal has no jurisdiction to consider a building dispute unless s 77 has been complied with before proceedings are commenced. Given there was no evidence that that jurisdictional threshold had not been complied with I ordered the applicants to file evidence of compliance within 7 days. [7] The applicants did file evidence of the parties attempting to resolve the dispute through a process established by the Commission, but the process was only commenced after the proceedings had already been filed in the Tribunal which breached the mandatory requirements of s 77(2). The evidence filed was in the form 1 Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2, definitions of building dispute, domestic building dispute and reviewable domestic building work and the definition domestic building work under Schedule 1B section 4 -- 2 of 3 -- 3 of a letter dated 14 June 2018 from the Commission referring to the dispute having been referred to the Commission on 12 June 2018. This was well after the proceedings had been commenced and was in breach of s 77(2). [8] Accordingly the Tribunal had, and currently has, no jurisdiction to hear the application, whether as a minor civil dispute or as a building dispute. [9] The matter was placed before a learned Adjudicator on 19 June 2018 for consideration because it appeared that the applicants had failed to file any evidence about compliance (or attempted compliance) as ordered to be done within 7 days after 11 June 2018. [10] That was a registry error. The application was dismissed on that basis, of failure to comply with the 7 day time limit, which was wrong. However regardless of that error the matter cannot be reopened, as the applicants have applied for, because the problem is a fundamental one of lack of jurisdiction in the Tribunal to determine the parties’ dispute given s 77(2) was not complied with by the applicants before commencing proceedings. [11] I need not address the problem that the application to review the learned Adjudicator’s decision was a reopening application (which was wrong) rather than an appeal, which was appropriate, because even if an appeal had been filed the outcome would have been the same. The Tribunal has no jurisdiction to make orders in the dispute as it presently stands. [12] That having been said, and s 77(2) now complied with given the referral to the Commission on 12 June 2018, it is open to the applicants to file a fresh application (whether as a minor civil dispute or a building application – that is a matter for them) and the Tribunal will, once that new proceeding is filed, then (and only then) have jurisdiction to determine the dispute. The matter has not been litigated on its merits but dismissed because of procedural mistake on the part of the applicants. [13] The appropriate order at this stage is to confirm that the current proceedings commenced as minor civil dispute MCDO60255-17 are dismissed. -- 3 of 3 --