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TRIBUNALS – A USER’S PERSPECTIVE The Queensland Commercial and Consumer Tribunal (“CCT”)– Building List 1. Context of and scope of review process under CCT Act The CCT hears and reviews, de novo, certain decisions made by the Queensland Building Services Authority (“QBSA”). The QBSA is a statutory body established under the QBSA Act 1991 which regulates building work in Queensland. The QBSA has powers under the QBSA Act in relation to the licensing of builders and other contractors, issuing directions to builders or other persons to rectify defective or incomplete building work, administering a statutory insurance fund for defective or incomplete residential building work and for taking action to discipline builders who breach the QBSA Act or other legislation. It should be noted that the CCT, in addition to this review power, also has power to hear and determine, inter alia, domestic building disputes and minor commercial building disputes (under $50,000.00). “Reviewable decisions” of the QBSA include: A decision to refuse an application for a license or a permit; A decision to direct or not to direct rectification or completion of certain building work; A decision to disallow a claim under the statutory insurance scheme wholly or in part. 2. How does the CCT meet the challenge of providing people with satisfactory access? One of the objects of the CCT Act is for the Tribunal to deal with matters in a way that is informal. The Tribunal assists users appearing before it by providing information explaining the procedures via: The CCT website; Brochures and information sessions for users; “Kits” for Applicants and Respondents so they can understand the processes before the Tribunal. In an informal, but very important way, the Tribunal Members assess the ability of the parties appearing before them to properly present their case and will provide some guidance (within limits) to enable parties to better comply with and understand the procedures before the Tribunal. However, because the Tribunal cannot be seen to be acting with any perception of bias, there is a limit to the assistance that it can provide to users and where appropriate, the Tribunal may make recommendations for parties to obtain legal representation so that their interests can be best protected. The approaches used by the Tribunal are useful and appropriate. However, there will always be some users who will struggle to understand the Tribunal processes. 3. What are the techniques of case management employed by the Tribunal to assist the parties? Under the CCT Act, the Tribunal has a wide range of powers it can use to case manage proceedings before it. The Tribunal refers matters to mediation at an early time (in review proceedings usually after the QBSA has been directed to deliver its Statement of Reasons to the parties). The Tribunal also uses pre-hearing conferences which allows Tribunal Members (who must then disqualify themselves) to express non-binding views in relation to parties’ prospects and investigate ways in which the matter can either be resolved or hearing time reduced. The use of Directions Hearings progresses matters in the quickest possible time while still allowing the Tribunal flexibility to allow parties additional time where appropriate to properly prepare their cases. 4. What is the ideal role of the QBSA in the review process? Unfortunately, historically the QBSA has approached the review process on an adversarial basis and has sought to uphold decisions made by it. The QBSA should be encouraged (perhaps even by legislation) to continually reassess decisions it has made under review whilst evidence is being adduced as it does sometimes transpire that the decisions made by the QBSA were ill founded. The adversarial attitude of the QBSA has sometimes resulted in unnecessary cost and time being incurred by parties in proceeding with the review process before the Tribunal. Russell Ensbey Partner Lambert & Ho Lawyers Brisbane
"Tribunals – A Users Perspective"