CITATION:	Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2015] QCATA 101	

PARTIES:	Goldfield Projects Pty Ltd
(Applicant/Appellant)	
	v	
	Queensland Building and Construction Commission
(Respondent)	

APPLICATION NUMBER:	APL526-14	

MATTER TYPE:	Appeals	

HEARING DATE:	16 June 2015	

HEARD AT:	Brisbane	

DECISION OF:	A/Deputy President Stilgoe OAM
Member Deane	

DELIVERED ON:	8 July 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The Appeal is dismissed.
2.	Queensland Building and Construction Commission is to file in the Tribunal two (2) copies and provide to Goldfield Projects Pty Ltd one (1) copy of submissions and evidence in support of any application for costs by 4:00pm on 29 July 2015.
3.	If an application for costs is made in accordance with order 2, 
a.	Goldfield Projects Pty Ltd is to file in the Tribunal two (2) copies and provide to Queensland Building and Construction Commission one (1) copy of submissions and evidence in response to the application for costs by 4:00pm on 19 August 2015.
b.	The application for costs will be determined on the papers unless a party requests an oral hearing not before 19 August 2015.
4.	If no application for costs is made in accordance with order 2, each party is to bear its own costs of this appeal.	

CATCHWORDS:	APPEALS – BUILDING  - Breach of settlement agreement reached at compulsory conference – whether jurisdiction to make order sought in review application – no jurisdiction where final order previously made

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 21, s 28, s 35, s 47, s 48, s 73, s 84, s 85, s 86, s 87, s 88, s 89, s 121, s 122, s 123, s 132, s 142, s 143, s 146, s 147, Schedule 3
Commercial and Consumer Tribunal Act 2003 (Qld) s 141
Queensland Building and Construction Commission Act 1991 (Qld) s 99, s 102

Briginshaw v Briginshaw (1938) 60 CLR 336
Pickering v McArthur [2005] QCA 294
Ericson v Queensland Building Services Authority [2013] QCA 391
Rider-Bell v Legal Services Commissioner [2013] QCATA 191
	
APPEARANCES and REPRESENTATION (if any):
		
APPLICANT:	Goldfield Projects Pty Ltd represented by Mr H Chan, director	

RESPONDENT:	Queensland Building and Construction Commission represented by Mr R Zwart, in-house counsel	

REASONS FOR DECISION

[1]	Goldfield Projects, a building contractor, sought review by the Tribunal of a Direction to Rectify issued by the Queensland Building Services Authority now known as the Queensland Building and Construction Commission (the Commission). The parties reached an agreement to resolve the dispute at a Compulsory Conference, the terms of which were recorded in writing (settlement agreement). Goldfield Projects contends that it carried out its obligations under the settlement agreement and the Commission did not. 
[2]	As a consequence of the Commission’s non-compliance, Goldfield Projects applied on 30 June 2014 to the Tribunal for orders, under s 89(2)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), including an order to remove the direction (Section 89 Application). 
[3]	The learned Member dismissed the Section 89 Application by order dated 16 July 2014. 
[4]	Goldfield Projects then applied on 28 July 2014 for orders including that the learned Member’s decision to dismiss the Section 89 Application be set aside for failure to comply with s 73 of the QCAT Act and for the Section 89 Application to be heard by another member (Second Application). 
[5]	The learned Member directed the Principal Registrar to reject the Second Application by order dated 30 July 2014. 
[6]	Goldfield Projects seeks to leave to appeal or to appeal both of the decision of 16 and 30 July 2014. Goldfield Projects claims that the matters raised by it are errors of law and, to the extent they are not, leave ought to be granted, because there will be substantial injustice if there is no consequence for the Commission’s breach of the settlement agreement.
[7]	Where the ground of appeal raises an error of law leave is not required. Where grounds of appeal raise questions of mixed law and fact, leave to appeal is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error and an appeal is necessary to correct a substantial injustice to the applicant caused by that error. Where leave is granted, the appeal is to be decided by way of rehearing.
[8]	Section 146 of the QCAT Act sets out the Appeal Tribunal’s powers on appeal where the appeal is on a question of law. It does not provide for rehearing as compared to s 147, which relates to appeals on questions of fact or mixed law and fact. If the question of law resolves the matter as a whole then the Appeal Tribunal may substitute its decision, otherwise it is to remit the matter for further consideration.
[9]	Goldfield Projects submits that the Tribunal was not properly constituted. It submits that there was a breach of the requirement to provide natural justice. It submits the Tribunal erred in finding it had no jurisdiction to consider Goldfield Projects’ application.
Is this an appeal from decisions under s 35 of the QCAT Act?
[10]	The Commission contends that the appeal application ought to be dismissed or struck out pursuant to s 47 and s 143(2) of the QCAT Act. It contends that the Tribunal does not have jurisdiction to determine the appeal application because both decisions are decisions made pursuant to s 35 of the QCAT Act and s 142(2) of the QCAT Act excludes any right to appeal such decisions. 
[11]	The Commission relies upon the decision of Rider-Bell v Legal Services Commissioner in which the Deputy President, Horneman-Wren J found that where the Appeal Tribunal had no jurisdiction to entertain an appeal that the appeal application ought not be rejected under s 35 of the QCAT Act but rather dismissed under s 47 of the QCAT Act because ‘the entire proceeding … is misconceived and lacks substance’.
[12]	Section 35(3) states that the principal registrar may reject an application if it does not comply with the QCAT Act, an enabling Act, or the Rules. The decision of 30 July 2014, a direction to reject the Second Application, is clearly a decision under s 35 of the QCAT Act. There is no right to appeal to the Appeal Tribunal in respect of such a decision. 
[13]	In respect of the decision of 30 July 2014, the Application for Leave to Appeal or Appeal is dismissed.
[14]	The Commission contends that the decision of 16 July 2014 was also a direction to reject the application under s 35. On its face, the decision of 16 July 2014 is not a direction to the Principal Registrar to reject the application. The learned Member’s reasons did not reference s 35 but rather relied upon the Tribunal’s lack of jurisdiction to enforce its own orders in dismissing the application.
Was the Tribunal properly constituted?
[15]	Goldfield Projects contends that the learned Member erred in making the decision of 16 July 2014 because she conducted the Compulsory Conference and ought not to have constituted the Tribunal because she did not advise the parties of their right to object to her constituting the Tribunal for the proceeding contrary to s 73(2) of the QCAT Act.
[16]	We are not satisfied that there is a demonstrated error.
[17]	Section 73 provides:
(2)	At the end of the compulsory conference, the person presiding must advise the parties to the proceeding of their rights to object to the person constituting the tribunal for the proceeding.
…
(5)	…
(b)	The person presiding must not constitute the tribunal for the proceeding if a party objects to the person constituting the tribunal for the proceeding.
[18]	We accept that, having chaired the Compulsory Conference, the Tribunal might have been better served by having a different member constitute the Tribunal for the purposes of considering the Applications because, as Mr Chan for Goldfield Projects submitted, there is an appearance of ‘Caesar judging Caesar’.
[19]	However, as the review application was withdrawn, by virtue of the order dated 17 February 2014, the ‘proceeding’ to which the Compulsory Conference related had been finalised. 
[20]	Further, as conceded by Goldfield Projects, the order of 17 February 2014 was a final order, from which there was no appeal, and for the reasons set out below the Tribunal had no power to make the order sought in the circumstances. 
Was there a breach of Natural Justice? 
[21]	Goldfield Projects contends that the learned Member erred in making the decision of 16 July 2014 because she did not comply with the rules of natural justice as she made the decision before the Commission provided its submissions and, consequently, before Goldfield Projects had an opportunity to consider the Commission’s submissions.
[22]	We are not satisfied that there is a demonstrated error.
[23]	The Tribunal is required to observe the rules of natural justice. 
[24]	The learned Member made the decision without making formal directions for submissions from the Commission and any opportunity for submissions in reply from Goldfield Projects. On 11 July 2014, the Tribunal informally requested a response to the application from the Commission by 4.00pm on 16 July 2014. By letter dated 15 July 2014 the Commission objected to the application and indicated it would provide submissions on or before 30 July 2014. The learned Member proceeded to make the decision prior to receiving any such submissions.
[25]	We accept that, if the decision had been to allow the Application without affording the Commission the opportunity to make submissions, that would have constituted an error of law by failing to afford the Commission natural justice. 
[26]	Because the Commission did not provide submissions prior to the learned Member making the decision, there were no submissions to influence the learned Member in dismissing the Application. Goldfield Projects was not denied the opportunity to respond to any submissions, because none were received and considered by the learned Member. There was no breach of natural justice affecting Goldfield Projects.
[27]	Goldfield Projects also raises an issue as to the delivery of reasons orally. It submits that the failure to provide written reasons at the time of publishing the decision to dismiss indicates that the decision was made without any grounds and that it was ‘very unusual’. 
[28]	Whilst written reasons are often provided at the time a decision is published, the Tribunal may provide reasons orally. Where a party requests the Tribunal to provide written reasons for a decision it is sufficient for the Tribunal to give an audio recording, in which the reasons are given orally. 
[29]	The failure to provide written or oral reasons at the time of publishing the decision does not equate to there being no grounds for the decision nor does it mean that the application was not properly heard.
Did the learned Member err in finding the Tribunal had no jurisdiction? 
[30]	Goldfield Projects contends that the learned Member was in error in finding that the Tribunal has no jurisdiction under s 89 where there was a breach of the agreement reached at the Compulsory Conference.
[31]	We are not satisfied that there is a demonstrated error.
[32]	The learned Member gave oral reasons. In dismissing the Applications she found that the Tribunal has no powers to enforce its own orders and that, because the matter had been finalised, the Tribunal no longer had jurisdiction to make the orders sought.
[33]	The terms of the settlement agreement were recorded in a hand written document and signed by the parties. The Tribunal also made an order giving effect to the agreement in the same terms.
[34]	The terms of the settlement agreement and order were:
1.	The Application in GAR376-13 is withdrawn and each party bears their own costs.
2.	Time for compliance with Direction (No. 39454) to Rectify and/or Complete is extended until 17 March 2014.
3.	Any rectification work carried out by Goldfield Projects Pty Ltd in accordance with No.39454, if necessary, will be reinspected by a building inspector other than Mr William Pullar.
4.	Item 1 in No.39454 will be rectified subject to the pre-existing agreement of the developer and homeowner dated 28 October 2013. 
[35]	The facts are essentially undisputed. Goldfield Projects performed work to rectify the items in the Direction to Rectify. The homeowner indicated her acceptance of the work. The Commission inspected the work and found that the work was satisfactory. 
[36]	Goldfield Projects contends that the Commission breached paragraph 3 of the settlement agreement. The primary contention is that Mr Pullar attended and actively participated in the inspection. Mr Chan submitted that Goldfield Projects would not have entered into the settlement agreement if he knew that Mr Pullar was to attend the inspection and he would have pursued a determination of Goldfield Project’s review application. 
[37]	The importance of this to Goldfield Projects is that if the direction to rectify is set aside it is removed from its record held by the Commission, which would otherwise be required to remain on its record for a period of five years.
[38]	In this regard, Mr Chan referred us to the Commission’s new policy to remove a direction from a licensee’s record where the defective work the subject of a direction to rectify has been satisfactorily rectified. The Commission’s new policy is not relevant to our decision as it was not in place at the time of the learned Member’s decision under appeal. The Commission contends that in respect of Direction to Rectify no 39454, Mr Pullar attended to point out the previously defective work to Mr Stick and that it was Mr Stick who performed the inspection and signed off on the rectification work. This account is not consistent with the contemporaneous documentation the Commission produced. The inspection report states that the inspector was Mr Pullar and that Mr Stick was another attendee. Mr Pullar was the author of the inspection report. 
[39]	The learned Member in her oral reasons commented that the Commission’s actions had ‘created a perception’ that it had not complied with the settlement agreement. 
[40]	Whilst not strictly necessary to make a finding, we observe that Goldfield Projects was justified in forming a view that the Commission had breached paragraph 3 of the settlement agreement. Its wish to hold the Commission to account for its failure to comply with the settlement agreement is understandable. 
[41]	Goldfield Projects suggests that the Commission never intended to comply with the settlement agreement. Such an allegation is in the nature of an allegation of fraudulent behaviour. Convincing evidence is required to support such an allegation. We are not satisfied to the required standard that the Commission acted fraudulently in entering into the settlement agreement. 
[42]	However, we observe that we are of the view that the Commission’s actions in permitting Mr Pullar to actively participate in the inspection and author the inspection report were in breach of the settlement agreement, inappropriate and not befitting its role as a model litigant. If the Commission had complied with the settlement agreement then no further action by Goldfield Projects would have been required. 
[43]	Goldfield Projects also contends that the Commission breached paragraph 3 of the settlement agreement because there was an oral agreement that a re-inspection would not be necessary if the homeowner signed off on the works. The Commission denies such an agreement. 
[44]	It is not necessary for us to make a finding about this additional breach because even if we accept that the Commission was in breach we are not satisfied that the learned Member erred in finding there was no jurisdiction to make the orders sought.
[45]	The Tribunal is a creature of statute and must find its powers within the QCAT Act or a relevant enabling act. 
[46]	Division 4 of the QCAT Act sets out a number of provisions relating to settlement in different circumstances e.g. settlement in compulsory conference, mediation and other than in compulsory conference or mediation.
[47]	Section 84 provides that: 
(2)	The person presiding at the compulsory conference may –
(a)	record the terms of the settlement in writing; and
(b)	make the orders necessary to give effect to the settlement.	
(3)	This Act applies to an order made under subsection (2) as if -
(a)	the compulsory conference were a proceeding before the tribunal; and
(b)	the order were an order made by the tribunal constituted for the proceeding.
[48]	The use of the term ‘may’ in s 84(2) indicates that there is a discretion. There are similar discretions in each of s 85(2) and s 86(3). 
[49]	There are limits on when an order giving effect to a settlement may be made. The Tribunal must be satisfied that it could make a decision in the terms of the settlement or in terms consistent with the settlement. In some circumstances contemplated by Division 4, no final order may be made at the time of the agreement being reached or soon thereafter.
[50]	In this matter, the learned Member exercised her discretion to record the terms and make an order. The order of 17 February 2014 was an order made under s 84 giving effect to the settlement and has the same effect as if it was an order made by the Tribunal after deciding the proceeding. It was a final non-monetary decision capable of being enforced by filing in the Supreme Court a certified true copy of the decision and an affidavit as to noncompliance. 
[51]	Section 89 applies if an offer to settle is accepted but the party who made the offer does not comply with its terms.
[52]	It relevantly provides that:
(2)	The tribunal, on the application of the party who accepted the offer (the relevant party), may –
(a)	make an order giving effect to the terms of the offer; or
(b)	if the party making the offer was the applicant –
(i)	dismiss the proceeding; or
(ii)	if the relevant party responded to the application for the proceeding before the offer was made, make an order awarding the relevant party any or all of the things asked for in the response; or
(c)	if the relevant party is the applicant, make an order awarding the relevant party any or all of the things asked for in the proceeding.
[53]	The Commission submitted that s 89 was of no application because it was a general provision and s 84 was a specific provision, which should take precedence. Section 89 is in substantially the same terms as the repealed s 141 of the Commercial and Consumer Tribunal Act 2003 (Qld) (CCT Act). However, Division 7 of the CCT Act, where s 141 was situated, did not contain equivalent provisions to s 84, s 85, s 86 or s 87 of the QCAT Act. Relevantly the CCT did not conduct Compulsory Conferences. The Commission did not refer us to any CCT decisions as to the interpretation of s 141 and we have not located any. 
[54]	We are not satisfied that s 89 has no application where s 84 is applicable.
[55]	In interpreting the ordinary meaning of s 89, we have had regard to its context in the QCAT Act and in particular its context in Division 4. In each of s 84, s 85 and s 86 of the QCAT Act it is possible that a settlement has been reached and the terms recorded in writing but no final order made in the proceedings. 
[56]	We find that the preferable construction of s 89 is that the discretionary powers set out are to be exercised where no final order has previously been made in the proceeding. Each of s 89(2)(a), (b) and (c) empowers the Tribunal to make orders finalising the proceeding. 
[57]	Relevantly s 89(2)(a) provides that an order giving effect to the settlement may be made. There is no clear power to set aside a final order made to give effect to a settlement and to substitute it with an order as provided for in s 89(2)(b) and (c). This is what Goldfield Projects sought; an order setting aside an order consequent upon the settlement and in its place an order that the direction to rectify be set aside, being the original relief sought by the review proceedings, because of the breach. 
[58]	In this case, there was a final order made on 17 February 2014 and, in the circumstances, there was no jurisdiction to make another order under s 89.
[59]	Goldfield Projects contends that there is a substantial injustice if there are no consequences of a breach of the settlement agreement and that it is in the interests of justice to make sure parties comply with agreements reached during compulsory conferences. 
[60]	The appropriate course of action, as a result of the Commission’s failure to comply with the settlement and the order of 17 February 2014 giving effect to the settlement, was for Goldfield Projects to apply to the Supreme Court as provided for under s 132 of the QCAT Act. 
[61]	We observe that if no final order had been made and an application under s 89 was brought then we consider that, in exercising the discretion provided in s 89(2), the Tribunal should have regard to the agreement reached and the manner in which it was breached. 
[62]	In the current circumstances, we would not be satisfied that there was a sufficient nexus between the Commission’s breach of the settlement agreement and the direction remaining on Goldfield Project’s record. Under the terms of the settlement, there was no agreement to withdraw the direction. Rather there was an agreement to extend time to comply with the direction. The breach did not result in a finding that the work remained defective. 
[63]	Goldfield Projects submits that the items set out in the Direction to Rectify were not properly the subject of a direction and that the Commission has acted in a way, which unnecessarily disadvantaged Goldfield Projects by ‘aggressively defending its direction’ rather than assisting the Tribunal. In view of our finding as to jurisdiction, it is not necessary or appropriate to consider these matters. 
[64]	Goldfield Projects’ submissions raise a number of issues relating to the Compulsory Conference such as challenging the validity of the expert report relied upon by the Commission because of noncompliance with the Tribunal’s practice direction and making allegations of inappropriate conduct by representatives of the Commission and the learned Member. During the hearing, Mr Chan conceded that Goldfield Projects was not seeking to appeal the orders made at the Compulsory Conference. In those circumstances, we do not consider those matters further.
[65]	The Appeal against the decision of 16 July 2014 is also dismissed.
[66]	The Commission seeks its costs of this appeal and submits that directions ought to be made to allow for submissions on costs once our decision is published.