Building and Construction Law

"Let me tell me about how the new QCAT Tribunal works if you have a building and construction dispute or BSA review."

QCAT is short for the Queensland Civil and Administrative Tribunal. QCAT commenced on 1 December 2009 and in relation to Building Disputes it took over from the Commercial and Consumer Tribunal. Usually QCAT can not hear a claim involving over $25,000. However there is no monetry ceiling for building disputes, so you may find yourself in QCAT making or defending a building claim for hundreds of thousands of dollars.

Appearing at QCAT for hearings, mediation or compulsory conferences.

You can be legally represented in QCAT. The Queensland Civil and Administrative Tribunal encourages parties to be self represented. However in building disputes where the are large amounts of money involved or complex legal and technical issues you can apply for leave to be Legally represented. Directions Hearings After you have filed your application in QCAT you will receive a notice to attend a directions hearing which is a procedural hearing to put in place any necessary orders which will progress the claim or perhaps your defence of a QCAT claim. In Brisbane the directions hearing is held in a room which looks al lot like a Court Room. It is set up with the tribunal Member at the front, a recording person and audio equipment and a bar table from which the parties adress the Tribunal Member. There is also a witness box and a public gallery.

The QCAT Tribunal may direct that you have to attend a "Compulsory Conference". A Compulsory Conference is like a mediation however a Tribunal Member conducts the conference and has the power to make oders to advance the determination of issues that can not be resolved.

If there are technical issues involved often QCAT will order that an Experts Conclave takes place. The process for an experts conclave is that both sides engage a suitably qualified expert (eg engineer, quantity surveyor) the experts will be ordered to attend a meeting either at the location of the building works or in a meeting room at QCAT. You do not attend only the experts. A tribunal member will oversee the conclaave and the member has the power to order that either side must provide evidence or documents to the experts if more information is necessary. The experts must then prepare a "Joint Report" which essentially identifies the points upon which they both agree and expalins why there is disagreement on the other issues. The "Joint Report" will later be relied upon by QCAT in any final hearing of the dispute.

Final Hearing In Brisbane the final hearing is held in a room which looks a lot like a Court Room. It is set up with the tribunal Member at the front, a recording person and audio equipment and a bar table from which the parties adress the Tribunal Member. There is also a witness box and a public gallery. The hearing is less formal than a hearing in a Court and the rules of evidence do not apply nevertheless the hearing follows a court like process with both sides adressing the Tribunal member with their position and then providing evidence and witnesses to prove their case. In complex building matters it is not unusual for Barrister and Solicitors to present the case and cross examine witnesses. Sometimes written submissions on points of law are provided to the Tribunal Member.

Appeals of QCAT decisions It is important to understand that an appeal of a decision can be made on a question of fact or a question of law, or both. An appeal on a question of fact is one where you are arguing the Tribunal's decision is factually wrong. For example, in the event you disagree with a decision because you think the Tribunal misinterpreted the evidence, made a wrong finding of fact or placed excessive weight on a specific piece of evidence, then you would appeal on a question of fact. A question of law is one that is answered by applying legal principles, as opposed to making a determination about the facts and evidence. For example, an appeal on any of the following grounds is an appeal on a question of law: the decision applies the wrong law to the facts of the case the decision misinterprets the meaning of legislation the decision fails to apply relevant law the decision makes a finding of fact where there is no evidence to support that finding the Tribunal did not have jurisdiction to make the decision; the Tribunal breached the rules of natural justice in making the decision. Whether you seek to appeal on a question of law or on a question of fact or both will impact upon whether you need to have the permission (leave) to commence appeal proceedings. Can I appeal? Queensland Civil and Administrative Tribunal matters may be heard by between 1 and 3 tribunal members. A tribunal member can be a judicial member or a non-judicial member. A judicial member is a member who is the president or the deputy president of , or is a judge of the Supreme or District Court. You need to know whether the QCAT members who decided your matter were judicial members or not to work out your appeal rights. Matters heard by non-judicial members If the matter was heard by a non-judicial member of QCAT, an appeal of the decision is made to the QCAT Appeal Tribunal (see below). An appeal to the Appeal Tribunal can be made on a question of law as of right, or otherwise with the permission of the Appeal Tribunal (s 142 QCAT Act). Permission to appeal is also required to appeal: minor civil disputes, decisions which are not the Tribunal's final decision (unless it is a decision under the Guardianship and Administration Act 2000 (Qld) - see s 101 of that Act) and QCAT costs orders (s 142(3) Queensland Civil and Administrative Tribunal Act). The President may transfer an appeal to the Appeal Tribunal to the Queensland Court of Appeal if that is appropriate (s 144 Queensland Civil and Administrative Tribunal Act). Matters heard by judicial members If the matter was heard by a judicial member of QCAT, then an appeal is to the Queensland Court of Appeal. An appeal can be made on a question of law as of right, or otherwise with the permission of the Court of Appeal (s 149 Queensland Civil and Administrative Tribunal Act). Appealing costs decisions Costs orders may be appealed in accordance with the rules stated above. That is: If the Tribunal didn't include a judicial member - to the appeal division of QCAT with the permission of the appeal tribunal (s 142(3) Queensland Civil and Administrative Tribunal Act). If the Tribunal includes a judicial member - to the Court of Appeal on a question of law as of right, or otherwise with the permission of the Court of Appeal. However, cost-amount decisions may only be appealed to the Court of Appeal on a question of law only, and only if the Court of Appeal gives permission. It does not matter whether the Tribunal did or did not include a judicial member (s 149(1) Queensland Civil and Administrative Tribunal Act). A cost-amount decision is a decision about the amount of costs to be paid, either fixed or assessed by the Tribunal under s 107 of the Queensland Civil and Administrative Tribunal Act. Appealing registrar decisions to accept or reject an application or referral When a person makes an application to the Tribunal or a matter is referred to the Tribunal, the principal registrar may decide to reject the application or referral on certain grounds (s 35 Queensland Civil and Administrative Tribunal Act). The applicant may request that this decision be referred to the Tribunal for review (s 35(4)(b) Queensland Civil and Administrative Tribunal Act). The subsequent decision of the Tribunal is not appealable (ss 142(2)(a) and 149(4) Queensland Civil and Administrative Tribunal Act). Appealing decisions of the Appeal Tribunal The following decisions of the Appeal Tribunal can be appealed: A refusal to grant leave to appeal to the Appeal Tribunal The Appeal Tribunal's final decision A cost-amount decision. Appeals are to the Court of Appeal and can only be made on a question of law and only with the leave of the Court of Appeal (s 150 Queensland Civil and Administrative Tribunal Act). Powers and procedure - Appeals to the Appeal Tribunal The Appeal Tribunal is QCAT exercising its appeal jurisdiction. It is usually constituted by 1, 2 or 3 judicial members of the Tribunal. The normal rules and procedures of QCAT apply. Application for appeal or leave to appeal An application for appeal or leave to appeal must be made using Form 39 and a fileing fee paid. Time limits If the Appeal Tribunal's leave is not required, then an appeal must be filed within 28 days after receiving written reasons for the decision (s 143(4) Queensland Civil and Administrative Tribunal Act). If leave is required, then an application for leave to appeal must be filed within 28 days after receiving written reasons for the decision (s 143(3) Queensland Civil and Administrative Tribunal Act) .The appeal must be filed within 21 days after the leave is given (s 143(4)(a) QCAT Act). The Tribunal may extend these time limits under s 61 QCAT Act, provided they would not cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to the proceeding (s 61(3) Queensland Civil and Administrative Tribunal Act). Powers on appeal If the appeal is on a question of law only, the Appeal Tribunal may: Confirm or amend the decision; Substitute its own decision; Set aside the decision and return the matter to the Tribunal or other entity who made the decision for reconsideration, with or without additional evidence as directed by the appeal tribunal, and with any other directions of the appeal tribunal. Make any other order it considers appropriate (s 146 Queensland Civil and Administrative Tribunal Act). If the appeal is on a question of fact or mixed law and fact, the Appeal Tribunal may: Confirm the decision; Amend the decision; Substitute its own decision (s 147(3) QCAT Act). For powers on making costs orders see the QCAT - Costs factsheet. An enabling Act may also confer certain functions on the appeal tribunal, or vary or exclude functions conferred by the QCAT Act (s 6 Queensland Civil and Administrative Tribunal Act). An appeal to the Appeal Tribunal involving a question of fact must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal (s 147 Queensland Civil and Administrative Tribunal Act). This means that the Appeal Tribunal determines the rights and obligations of the parties under the law as at the date of the rehearing, and may allow new evidence to be submitted. How does an appeal affect the original decision? The start of an appeal does not affect the operation of the original decision or prevent its implementation. However, the Appeal Tribunal may order a stay of the original decision until the appeal has been decided. This can be on the application of a party or on the Appeal Tribunal's own initiative (s 145 Queensland Civil and Administrative Tribunal Act). Reasons for decision The Appeal Tribunal must give reasons for its final decision in writing to each party to the appeal and any other person the Tribunal reasonably considers should be given notice of the decision (s 148 Queensland Civil and Administrative Tribunal Act). Powers and procedure - Appeals to the Court of Appeal An appeal to the Court of Appeal is made under the Uniform Civil Procedure Rules 1999 (Qld) (s 151(2)(a) Queensland Civil and Administrative Tribunal Act). The Court of Appeal is a division of the Supreme Court and is very different to proceedings in the Tribunal. Time Limits An appeal, or an application for leave to appeal, to the Court of Appeal against a decision of the Tribunal must be made within 28 days after the day the person is given written reasons for the decision being appealed against (s 151(2)(b) QCAT Act). Powers on appeal In deciding an appeal on a question of law the Court of Appeal may: confirm or amend the decision; set aside the decision and substitute its own decision; set aside the decision and return the matter to the tribunal for reconsideration, with or without the hearing of additional evidence; or make any other order it considers appropriate (s 153 QCAT Act). In deciding an appeal on a question of fact or mixed law and fact, the Court of Appeal may: confirm or amend the decision; or set aside the decision and substitute its own decision (s 154 QCAT Act). An appeal on a question of fact, or mixed law and fact, must be by way of rehearing, with or without the hearing of additional evidence as decided by the Court of Appeal (s 154(2) QCAT Act). See above in relation to the powers of the Appeal Tribunal for more information. How does an appeal affect the original decision? The start of an appeal in the Court of Appeal does not affect the operation or implementation of the decision being appealed against. However, the Court of Appeal, or the Appeal Tribunal as constituted when the decision was made, may make an order staying the operation of the decision until the appeal has been decided (s 152 QCAT Act). Reopening In certain circumstances, the Tribunal may permit a matter to be re-opened, specifying the issues that must be heard and decided again. A hearing on reopening is by way of a fresh hearing on the merits. It is taken to be part of the original proceedings (s 140 QCAT Act). The Tribunal may grant an application to reopen a proceeding if the party: did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided; and This could be effectively or conveniently dealt with by reopening the proceedings (s 139(4) QCAT Act). An application for reopening cannot be made if an application for appeal or leave to appeal has already been made (s 138(5) QCAT Act). The decision on whether to reopen a matter cannot be challenged, appealed against, reviewed, set aside, or called in question in another way under the Judicial Review Act 1991 (Qld) or otherwise (s 139(5) QCAT Act). A reopened decision cannot be reopened again (s 140(6)). Judicial Review Judicial review of a decision or conduct of the Tribunal cannot be sought, except to the extent the decision or conduct is affected by jurisdictional error (s 156 QCAT Act).

Costs Involved

In Queensland the law is such that building disputes and reviews of BSA decisions must be heard in QCAT. As stated earlier the normal monetary celiing for cases in QCAT is $25,000 however that is not the case with building disputes. The cost of representation in QCAT is similar to the Cost that would be involved if the matter was heard in the Magistrates, District or Supreme Courts. Which would normally be the jurisdictions for litigation involving large amounts of money. The cost varies with the complexity of the matter and the veracity of your opponent. It is always preferable to reach a settlement at an early stage of any litigation to minimise the costs of the litigation, but that is not always possible. The QCAT system is designed to give the parties every opportunity to reach agreement without the necessity of a full hearing.