Stuart v Queensland Building and Construction Commission [2017] QCA 115 

Significance

The Queensland Court of Appeal dismissed an application for leave to appeal a costs decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT) because the decision was not an appealable decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (Act).

Facts

A dispute arose between the applicant, Stuart, and the owners of a house that the applicant was engaged to construct, which became the subject of a complaint by the owners to the Queensland Building Services Authority, now the Queensland Building and Construction Commission (QBCC). The QBCC determined that the owners' termination of the contract for the applicant's default was valid and directed the applicant to perform rectification works. The applicant sought a review of the decision of the QBCC.

QCAT set aside the decision on the basis that the contract had been mutually abandoned by the parties, and made two ancillary orders:

  • to return the matter to the QBCC to determine whether the applicant had been in breach of the contract at the date of termination by mutual abandonment; and
  • in the event that this issue was determined in the affirmative, whether an insurance claim was appropriate.

The applicant was successful in his appeal to the QCAT Appeal Tribunal contending that there was no basis for the two ancillary orders. However, the Appeal Tribunal dismissed the applicant's application for an order for costs. The applicant sought leave from the Court of Appeal to appeal this decision..

Decision

The Court of Appeal held that the decision of the Appeal Tribunal was not a 'final decision' within the meaning of the Act and could not be the subject of an application for leave to appeal to the Court of Appeal. The Court of Appeal also refused the application for leave but made no order as to costs (which meant that the parties bear their costs).

Sofronoff P, with Morrison and Applegarth JJ agreeing, found that section 150 of the Act limits appeals to the Court of Appeal to three matters:

  • decisions to refuse an application for leave to appeal to the appeal tribunal;
  • a cost-amount decisions;
  • the final decision.

Sofronoff P analysed the meaning of 'the final decision' under the Act and found that the definition of the term and the references to the term throughout the Act were indicative of its use to describe 'a final decision in relation to the subject of the proceeding'. His Honour found that there can only be one 'final decision' under the Act and decisions about costs would not constitute a 'final decision'.

His Honour found that if decisions other than the final decision could be made the subject of an appeal to the Court of Appeal, it would impede the object of the Act, which is to 'have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick'.

His Honour considered the applicant's alternative submission that the Court of Appeal ought to grant declaratory relief on the basis of a review of the merits of the Appeal Tribunal's decision. His Honour was of the view that while some exceptional cases of excess jurisdiction may arise warranting such a review, this was not such a case.

According to his Honour, this was a 'hard case' because the applicant was the subject of a complaint that proved to be unfounded and was out of pocket for a very substantial sum despite having won against the QBCC. His Honour noted that substantial costs were also incurred in the appeal when the Court of Appeal lacked jurisdiction to decide the issues raised. His Honour ruled that, in the circumstances, the parties should bear their own costs of the appeal.