Dispute resolution solicitor
This is the second in a series of blogs regarding the current operations and practices of the Queensland Building and Construction Commission (‘the QBCC’) which details the need to always consult with a dispute resolution solicitor if such matters occur and you need help with building contract disputes.
Who has the power?
The power to Stay an action or a decision within the Court system is a power that is granted to the Judiciary. Regardless of your feeling regarding the administration of the law, it is generally understood that the members of the Judiciary have had long careers in the law and are experienced in its application.
In broad general terms, after a decision has been provided in a matter, either party can decide to appeal the decision. If the party that lost the original matter is appealing, then they might also consider making an application to the Court for a Stay of the judgment.
To be granted a stay is difficult and the judicial member considering the application will only grant the stay in the most compelling of circumstances. As a dispute resolution solicitor you are able to look at the circumstances surrounding a particular matter and provide guidance to an appellant if they should make application for stay or not.
The QBCC
Now we come to operation and practices of the QBCC and the discretion that legislation has granted them to either stay a matter or not stay a matter.
While in the terms of this article I use the term ‘matter’, what I am really talking about is the livelihood of the builder, their employees and subcontractors as well as in some cases the most significant investment of members of the general public; their homes.
Firstly, we need to set the scene. The Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 inserted section 87A – No stay by QCAT of particular decisions of commission. This amendment to the Queensland Building and Construction Commission Act 1991, took the power to grant a decision away from QCAT, the judicial body charged with externally reviewing decision of the QBCC. In the speech introducing this change, it was stated to be a ‘huge win for mums and dads who have taken the plunge on building a new home’. The purpose of the amendment was to improve the effectiveness of the QBCC as regulator, enabling them to progress defects to the Home Owners Warranty Scheme, while an external review was being hear before QCAT. [1]
In real terms this change took the power to grant a stay from the judicial arm of the government and gave it to the executive arm of the government. So that rather than experienced member of the judiciary giving decision on an applicant for a stay that becomes public knowledge with attached reasons, the power has been given to government employees, known as decision makers, within the QBCC.
Where’s the transparency?
The first thing that we have lost is transparency. No longer do parties to a matter make an application for a stay and no longer does the Court consider that application, hear from the parties and then make a transparent decision, which is available to the public. Instead, the decision makers within the QBCC have the discretion to either decide to grant a stay or not grant a stay. The basis upon which that decision is make is not known and the reasons for that decision is not known. Of more concern is that depending on the decision maker, the consequences can be quite different. For example, some decision makers will use a loss of health and amenity to the occupancies and visitors to a building as a reason to not grant a stay, other do not. Some decision makers can use a complaint against unlicensed building work by a contractor and their subcontractors as a reason for granting a stay of a direction to rectify given to the contractor, other would not consider this at all.
What is not considered is the effect of this lack of transparency upon the members of the building industry and the general public.
Within and organisation that has policies for most things, a review of the QBCC website does not reveal a policy regarding the discretion granted to a decision maker to either grant or not grant a stay.
Then we must consider how the QBCC determines that one of its employees has the skills and experience to become a decision maker and make what is essentially a judicial finding in regards to a parties rights to be granted a stay or not. Given the technical nature of the work undertaken by the QBCC in assessing potentially defective building works, again anecdotally, most of the decision makers have technical building training but no legal or judicial background. This lack of experience and training in this area, together with the lack of a policy means that either a member of the building and construction industry or a member of the public who come into contact with the QBCC never exactly know what to expect. As a member of the legal profession, it is simply impossible to advise a client on how any one particular decision maker from within the QBCC will react when considering if a stay is appropriate or not.
The QBCC has been handed unprecedented powers in this area. They have the ability to use their, as it appears personal discretion, to decide to either grant or not grant a stay. That power, has significant impacts on builder and members of the public.
How, does the QBCC handle that power, in secret and that’s a problem.
Contact Becker Watt Lawyers on 07 3269 4888 for all your building & construction and commercial legal advice. Along with any further assistance requiring a dispute resolution solicitor.
If you need a Dispute resolution solicitor do not hesitate to contact us on 07 3269 4888 or email info@beckerwatt.com.au
