Colmer v Queensland Building Services Authority [2011] QCAT 172

CITATION: Colmer v Queensland Building Services Authority [2011] QCAT 172 PARTIES: Mr Steven John Colmer v Queensland Building Services Authority APPLICATION NUMBER: GAR225-10 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 21 April 2011 DELIVERED AT: Brisbane ORDERS MADE: The application filed 8 July 2010 is struck out. CATCHWORDS: Practice and procedure – where applicant has filed an application to review a decision of the respondent – where the applicant challenges the jurisdiction and valid constitution of the Tribunal – where a Notice pursuant to s 78B of the Judiciary Act 1903 (Cth) filed – whether the applicant’s proceeding is frivolous and vexatious – whether the application should be struck out Queensland Civil and Administrative Act 2009, ss 3, 4,6, 20, 24, 47 Queensland Building Services Authority Act 1991, s 71 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 8 April 2010 the Building Services Authority issued Direction to Rectify number 34689 to Mr Colmer in respect of building work for which the Authority hold him responsible. The Direction related to roofing work undertaken by Mr Colmer at residential premises located at 31 Yathong Street, Arana Hills. -- 1 of 5 -- 2 [2] The Direction issued after the Authority requested Mr Colmer to attend to rectification work on 11 March 2010. Pursuant to that request he did carry out further work but not to the Authority’s satisfaction. [3] In response to the Direction, Mr Colmer filed an application in the Tribunal to review the Authority’s decision to issue the Direction on 8 July 2010. He contends that despite the Authority’s view, the pitch of the roof is within manufacturer’s recommendations and complies with proper building practices and therefore the Direction should be set aside. Unless the Tribunal comes to another decision, a licensee is required to carry out rectification of defective building work and if the licensee does not, the Authority can engage other contractors to do that work and recover the cost from the licensee.1 [4] The Tribunal has jurisdiction to review a decision of the Authority.2 The Queensland Building Services Authority Act 1991 is an “enabling Act” which confers jurisdiction on the Tribunal.3 In reviewing the decision of the Authority the Tribunal can confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return it to the decision-maker to make another decision.4 [5] By his application to the Tribunal, Mr Colmer is asking the Tribunal to make another decision that is, namely that the Direction be set aside. Implicit in the application is that Mr Colmer is asking the Tribunal to look at all the circumstances surrounding the decision afresh,5 and that the Tribunal should produce the correct and preferable decision.6 [6] At the same time as filing his application to review, Mr Colmer also filed an application to stay the Authority’s decision to direct rectification pending the outcome of his review application. That application was considered by a Tribunal Member and refused. [7] At the first directions hearing on 23 September 2010 the Tribunal made standard directions for the Authority to file and serve its statement of reasons and for Mr Colmer to file material in support of his application. In anticipation of the directions being complied with, the application was listed for a Compulsory Conference on 10 November 2010. [8] It was also at that directions hearing that Mr Colmer handed to the Tribunal a “Section 78B Notice” pursuant to the Judiciary Act 1903 (Cth). That Notice contended, inter alia, that this Tribunal was not validly constituted at the time of the hearing and as a consequence, the Notice states, Mr Colmer was duty bound to notify all of the Attorneys General of his constitutional challenge to the jurisdiction of the Tribunal and the “infraction of the Australian Constitution”. The Notice then went on to state that constitutional matters would be raised in respect of this proceeding and other matters. 1 QBSA Act, s 71. 2 QCAT Act, s 15. 3 QCAT Act, s 6(2). 4 QCAT Act, s 24(1). 5 QCAT Act, s 20(2). 6 QCAT Act, s 20(1). -- 2 of 5 -- 3 [9] In subsequent correspondence to the Tribunal, Mr Colmer’s position with respect to his application to review the decision of the Authority became even more blurred. In a letter of 1 October 2010 to the Tribunal Mr Colmer states that he had served all of the Attorneys General and that the “78B Notices of 23 September 2010 disclose indictable offences”. He then goes on to say that “in the circumstances the above application7 and revised timetable are void and of no legal effect whatsoever”. The Tribunal was warned of the consequences of its actions and that his correspondence would bring “an end to this folly”. Presumably Mr Colmer is referring to the directions made on 23 September 2010. [10] On 25 October 2010 Mr Colmer wrote to the Tribunal contending that orders made by the Tribunal were void and the proceedings were suspended. He then went on to say that by reason of the section 78B Notice the proceedings will be moved into another jurisdiction. [11] On 1 December 2010 Mr Colmer delivered a document titled “Your Legal Notice”. That document was to confirm his previous advice that this Tribunal was not validly constituted “as per the coloured Notice of Appeal and the notice of a s.78B Notice”. He made reference to an affidavit he had filed in the Tribunal and then went on to state: “As a Commonwealth Public Official (CPO) I am duty bound to remind (sic) of your duty under the Crimes Act report and or not to conceal any treason.” [12] Similar comments were made in letters of 5 January 2011 and 31 January 2011. In a latter document he made reference to orders made by the “invalid Tribunal” on 10 November 2010 that required the Authority to file submissions in response to Mr Colmers “application” presumably about jurisdiction. The rest of the letter makes little sense with the final sentence stating that: “As advised the petition to which I will become a party to and before the Queen for her intervention has been sent.” [13] Both letters are written under the name and seal of Steven John Colmer, Commonwealth Public Official. [14] The Authority was invited to file submissions responding to the jurisdictional question, or the Notice, which it did on 22 December 2010. Those submissions clearly identify the basis upon which this Tribunal has jurisdiction to hear and determine a review of a decision of the Building Services Authority. There is nothing surprising in those submissions. The Tribunal, it is urged, should ignore the contentions raised by Mr Colmer and proceed with the application. 7 Presumably this application GAR225-10. -- 3 of 5 -- 4 [15] One could understand Mr Colmer’s objection, on jurisdictional and constitutional grounds, if he was responding to an application in this Tribunal. However it is difficult to fathom the basis of his contention that the Tribunal is unconstitutional and lacks jurisdiction in circumstances where he has filed the application seeking relief through the review process. This is his application and it is for Mr Colmer to prosecute it with the assistance of the Tribunal. If he chooses not to prosecute it on the basis that this Tribunal does not have jurisdiction then he should simply withdraw it. [16] Mr Colmer’s actions in first filing the application and then filing multiple documents contesting the Tribunal’s jurisdiction and its constitutionality can only be seen as vexatious and frivolous. He obviously does not want the relief sought in his application to have the Direction set aside. [17] The Tribunal can on the application of a party or of its own initiative order that a proceeding be dismissed or struck out.8 When this application was listed for a directions hearing on 7 April 2011 and the Notice of Hearing was sent to the parties, Mr Colmer returned his under the cover of a letter of 25 March 2011 raising the same issues he did in previous correspondence. In that letter he said: “With the current circumstances prevailing; that is, private prosecution for criminal charges in the Melbourne Magistrates Court in a period from 15 December 2006 to January 29 2007 have been filed for grand jury hearing against a number of defendants including the State and Federal Attorney’s General of Australia and the parties to this proceeding. In addition I have been joined in a petition to Her Majesty Queen Elizabeth II of Great Britain and Ireland requesting the Queen’s Bench to determine matters grounded in chapter 4 of the 1623 English Statute of Monopolies arising from these proceedings. With the greatest respect to the alleged judge, magistrate or codan that may of have sat or are endeavouring to sit on any proceeding in this matter, any order made other than a direction suspending this proceeding is and will be null and void.” [18] Mr Colmer has not complied with the direction to file material in support of his application. He has not attended the directions hearing. The file reveals that Tribunal staff have difficulty in contacting him. He is not engaging in the process. This conduct and the history of this matter leads me to conclude that Mr Colmer is not interested in having his review application determined in a timely fashion in accordance with the objects of the QCAT Act.9 [19] Therefore I have come to the conclusion that Mr Colmer’s conduct of these proceedings is frivolous or vexatious and otherwise an abuse of process. There is no reason why this Tribunal should expend further public resources and be burdened with his application in circumstances where there is no discernable intention by him to prosecute it. Mr Colmer’s conduct in this 8 QCAT Act, ss 47(2) and (3). 9 QCAT Act, ss 3 and 4. -- 4 of 5 -- 5 matter has left no doubt that he has no intention of constructively progressing his matter. [20] The Tribunal orders that the application be struck out. -- 5 of 5 --