Coppens v Fraser Coast Regional Council and Anor [2011] QCAT 274

CITATION: Coppens v Fraser Coast Regional Council and Anor [2011] QCAT 274 PARTIES: Ms Josephine Rosalie Coppens v Fraser Coast Regional Council and Water Wise Design Pty Ltd APPLICATION NUMBER: BDL375-10 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Anne Forbes, Member DELIVERED ON: 9 June 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] The Applicant’s claims against the First Respondent, Fraser Coast Regional Council, are struck out for want of jurisdiction. [2] I direct that the First Respondent be removed from these proceedings. [3] The matter be listed for a directions hearing on a date to be advised by the registry. CATCHWORDS: Claim against local authority – whether a building dispute – absence of jurisdiction – removal of party Queensland Civil and Administrative Tribunal Act 2009, s 47 Queensland Building Services Authority Act 1991 REASONS FOR DECISION Jurisdictional Issue [1] Ms Coppens initiated these proceedings on 15 November 2010. Her application for relief falls under seven headings, which need not be detailed here. Suffice it to say, for present purposes, that they concern the -- 1 of 3 -- 2 installation of an on-site sewerage system (“the system”) at her residence, 3 Westringia Court, Craignish, near Hervey Bay, in 2006. [2] The present question is whether the First Respondent, Fraser Coast Regional Council (formerly Hervey Bay City Council) (“the Council”) is properly a party to these proceedings. [3] The Second Respondent, Water Wise Design Pty Ltd, filed a substantive response on 21 December 2010 and does not contest jurisdiction. [4] The application purports to be a domestic building dispute, within the meaning of the Queensland Building Services Authority Act 1991. The Council says that it is not a building contractor as defined in that Act, and that the Applicant’s claims against it are not a building dispute. Accordingly the Council submits that the Tribunal has no jurisdiction to entertain this case, so far as the Council is concerned. [5] The Council contends that it merely approved the plans for the system, and that it did not design the system, or install it, or make any agreement with the Applicant to do so. Besides, it was the Second Respondent, not the Council, who inspected and approved the system as installed, pursuant to the Plumbing and Drainage Act 2002. [6] In approving plans for the system the Council performed a statutory function. The proposition that such action comes within the definition of a domestic building dispute, and therefore a dispute within the Tribunal’s jurisdiction, was rejected in Cleary v Bowcock.1 Furthermore, the Council’s action lacks the element of physical construction that was sought, but not found, when the term “building contractor” was examined in Cleary v Bowcock2 and in Wayne Fox Building Contracts Pty Ltd v Everlyn Building Certification Pty Ltd.3 [7] The Applicant contends that her claim, in its allegation of negligence, is one “related to the performance of reviewable domestic work” within the meaning of item (a) of the definition of “domestic building work” in Schedule 2 of the Queensland Building Services Authority Act 1991. That suggested connection was found to be too tenuous in Bach v Majestic Pools and Landscapes Pty Ltd4 concerning a certifier engaged by the builder of a swimming pool. Any “relation” between a local authority that approves a plan, and the contractor who executes them is, in my view, even more remote. [8] But be that as it may, the decision of the Court of Appeal in Fraser Property Developments v Summerfield (No 1)5 is an insuperable obstacle to any claim that the Tribunal may adjudicate the Applicant’s claims 1 [2005] QCCTB 8. 2 [2005] QCCTB 8 at [6], [18]-[19]. 3 [2010] QCAT 356 at [12]. 4 [2010] QCAT 581 at [34]. 5 [2005] 2 Qd R 394. -- 2 of 3 -- 3 against the Council. In that case McPherson JA, toiling through the “labyrinthine and poorly integrated definitions and provisions” of the Queensland Building Services Authority Act 1991 came to the conclusion that “even if the Council’s action in considering and approving the design plans for the plaintiff’s residence is ‘tribunal work’ within the general terms of s 75(1), it is taken out of the ambit of that expression by the specific and express terms of s 76(1)(m) as not being ‘tribunal work’”,6 and Williams JA and Phillipides J agreed. For his part Williams JA had “real difficulty in concluding that a local authority's conduct in approving or rejecting building or engineering plans ... would be performing work caught by any ... definition of a "building dispute", or would be within the definition of "tribunal work" in s 75 of the BBSA Act” notwithstanding its reference to “a claim or dispute in negligence . . . related to the performance of reviewable domestic work other than a claim for personal injuries". 7 But in any event, his Honour concluded, s 76(1)(m) puts the matter beyond doubt. [9] I am bound to conclude, therefore, that this Tribunal has no jurisdiction to entertain the Applicant’s claims against the Council, and that so much of the proceeding as concerns the Council is without substance. 8 That part of the proceeding must be struck out and the Council removed as a party. [10] There will be no order for costs of the present application. [11] I note that in addition to the substantive claims against the Second Respondent, there remains to be decided an application by that Respondent for leave to be legally represented. ORDERS: [12] The Applicant’s claims against the First Respondent, Fraser Coast Regional Council, are struck out for want of jurisdiction. [13] I direct that the First Respondent be removed from these proceedings. [14] The matter be listed for a directions hearing on a date to be advised by the registry. 6 [2005] 2 Qd R 394 at [16]. 7 [2005] 2 Qd R 394 at [31]. 8 Queensland Civil and Administrative Tribunal Act 2009, s 47. -- 3 of 3 --