Leisure Pools Construction Townsville Pty Ltd v Queensland Building Services Authority (No 2)

[2010] QCAT 437

CITATION:		Leisure Pools Construction Townsville Pty Ltd  v Queensland Building Services Authority (No 2) [2010] QCAT 437
PARTIES:	Leisure Pools Construction Townsville Pty Ltd
v
Queensland Building Services Authority (No 2)

APPLICATION NUMBER:   QR259-09

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 3 September 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Respondent’s application to strike out proceedings for want of jurisdiction dismissed.

CATCHWORDS :  Jurisdiction – where notice issued that work was not satisfactorily completed – where work not undertaken at all – whether a notice within s86(1)(f) of QBSA Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. On 23 March 2010, in determining an application for an extension of time in this proceeding, I made this comment[1]: “That leaves the application for a review of the letter of 30 July 2009. That letter is reviewable under section 86(1)(f) – a decision that Tribunal work undertaken at the direction of the Authority is or is not of a satisfactory standard. Leisure Pools filed an application within time and the Tribunal has jurisdiction to hear it.”

   [1] [2010] QCAT 166 at paragraph 15

2. That observation is now challenged; the Authority asserts that the tribunal has no jurisdiction. It says that the letter of 30 July 2009 is not a decision that the tribunal work undertaken at the direction of the authority is not of a satisfactory standard pursuant to section 86(1)(f) of the Queensland Building Services Authority Act (“QBSA Act”) because Leisure Pools Construction Townsville Pty Ltd (“Leisure”) never, in fact, undertook rectification work.

3. The Authority issued a direction to rectify by letter dated 30 June 2009. The direction was: “Rectify the defective installation of the pool that has allowed the pool walls and floor to bulge”.

4. The letter of 30 July 2009 stated:”It is noted that the following direction items were not satisfactorily rectified. Rectify the defective installation of the pool that has allowed the pool walls and floor to bulge.” The letter went on to list the consequences of Leisure’s failure as:

a)imposition of two demerit points on Leisure’s licence;

b)a maximum penalty if prosecuted of up to $25,000 or a penalty of $2,000 if the Authority issued an infringement notice.

c)disciplinary action in the Commercial and Consumer Tribunal;

d)imposition of conditions on Leisure’s licence;

e)issuing of show cause notices that may result in the cancellation or suspension of Leisure’s licence.

1. The potential consequences listed in the letter of 30 July are not so different from the consequences of failing to comply with the direction to rectify, as set out in the letter of 30 June 2009:

a)imposition of two demerit points on Leisure’s licence;

b)a maximum penalty if prosecuted of up to $25,000 or a penalty of $2,000 if the Authority issued an infringement notice.

c)disciplinary action in the Commercial and Consumer Tribunal;

d)imposition of conditions on Leisure’s licence;

e)having any outstanding works completed by a third party and recovery of the amount of an approved claim as a debt due.

The Authority chose none of these options, when it was clearly open for it to do so.

1. What was the point of issuing the letter of 30 July 2009 unless it was to give Leisure once last opportunity to rectify the work? The only way that the Authority could urge Leisure to rectify the work, rather than go down the time-consuming and no doubt expensive process of getting a third party to rectify the work, was to issue the notice that it did issue – that it was not satisfied with the rectification work undertaken pursuant to the earlier direction.

2. It is a bit too cute for the Authority to now argue that, because no work was in fact done, the letter of 30 July 2009 was not a decision under section 86(1)(f) of the QBSA Act. If the Authority wants to take advantage of the procedural advantages that this course of conduct offered in July 2009, it must also bear the procedural disadvantages that have now come to light. The letter of 30 July 2009 specifically notifies Leisure that it has a right to review the decision by filing an application within 28 days of receipt. It cannot now resile from that position.

3. If the tribunal determined that it had no jurisdiction to hear this application for review that would not be the end of the dispute. Almost any disciplinary action that the Authority chose to take thereafter would be subject to review by this tribunal:

a)If it sought to impose conditions on Leisure’s licence, that decision would be reviewable under section 86(b) of the QBSA Act.

b)If it decided to engage a third party to complete the works, the scope of works would be reviewable pursuant to section 86(g) of the QBSA Act.

c)If the Authority decided to take disciplinary action against Leisure, that proceeding would come before the tribunal pursuant to section 88 of the QBSA Act.

1. It is almost inevitable that the Authority’s decision will be reviewed by the tribunal in some form and at some time. The interests of cost effective, efficient justice indicate that the review should be undertaken in these proceedings.