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Queensland
QUEENSLAND BUILDING
TRIBUNAL BILL 1999
Queensland
QUEENSLAND BUILDING TRIBUNAL
BILL 1999
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
Division 1--Introduction
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Division 2--Operation of Act
3 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Division 3--Objects of Act
4 Objects of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5 How objects are to be achieved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Division 4--Interpretation
6 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7 Meaning of "building work" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8 Carrying out building work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
PART 2--ESTABLISHMENT AND MEMBERSHIP OF
TRIBUNAL
9 Establishment of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 Tribunal's seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11 Appointment of chairperson and membership of tribunal . . . . . . . . . . . . . . . 14
12 Terms and conditions of member's appointment . . . . . . . . . . . . . . . . . . . . . . 15
13 Chairperson to direct business of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14 Delegation of powers by chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
15 Appointment of deputy chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
16 Resignation of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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17 Termination of appointment of a member . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
18 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
19 Protection of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
PART 3--REGISTRAR AND OTHER STAFF
20 Registrar of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
21 Registrar's functions and powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
22 Chairperson may direct registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
23 Engagement of consultants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
24 Appointment of acting registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
25 Delegation by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
26 Appointment of tribunal staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
PART 4--GENERAL JURISDICTION AND OPERATION OF
TRIBUNAL
Division 1--Constitution and general jurisdiction of tribunal
27 Constitution of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
28 General jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Division 2--Start of proceedings
29 Start of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
30 Defence and counterclaim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Division 3--Business names
31 Proceeding if business name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
32 Proceeding if registered business name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
33 Proceeding in business name if unregistered . . . . . . . . . . . . . . . . . . . . . . . . . 23
34 Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
35 Amendment as to parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Division 4--Service
36 Service of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
37 Service in relation to a business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
38 Acceptance of service by solicitor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
39 Informal service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Division 5--Case management
40 Tribunal to fix time and place for proceedings . . . . . . . . . . . . . . . . . . . . . . . 26
41 Way tribunal is to conduct proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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42 Directions and orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
43 Documents to which disclosure does not apply . . . . . . . . . . . . . . . . . . . . . . . 27
44 Extension of time and waiver of compliance . . . . . . . . . . . . . . . . . . . . . . . . 28
45 Joinder of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
46 Consolidation of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
47 Sequence of hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
48 Directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
49 Variation of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
50 Vexatious proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
51 Conduct of proceeding causing disadvantage . . . . . . . . . . . . . . . . . . . . . . . . 30
52 Withdrawal by applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
53 Withdrawal by respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
54 Further application after withdrawal restricted . . . . . . . . . . . . . . . . . . . . . . . 31
55 Costs order on applicant's withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
56 Notice of withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Division 6--Costs generally
57 Security for costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
58 Discretionary factors for security for costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
59 Way security given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
60 Finalising security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
61 General power of tribunal to award costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
62 Stay pending payment of costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Division 7--Representation
63 Purposes of div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
64 Who represents party at mediation and case appraisal . . . . . . . . . . . . . . . . 35
65 Who represents party at pre-hearing conference . . . . . . . . . . . . . . . . . . . . . . 36
66 Who represents party at other proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 36
67 Representation for a corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Division 8--Other provisions about proceedings
68 Tribunal may summons witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
69 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
70 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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71 Inspection of documents or things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
72 Offences by witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
73 Person must answer certain questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
74 Warrant may be issued if witness does not attend . . . . . . . . . . . . . . . . . . . . 40
75 Powers of tribunal relating to taking of evidence . . . . . . . . . . . . . . . . . . . . . 40
76 Reference of matters for expert report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
77 Entry and inspection of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
78 Procedure before entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
79 Contempt of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
80 Punishment of contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
81 Conduct that is contempt and offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
82 Protection of persons before tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Division 9--Tribunal decisions and enforcement
83 Form of decisions of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
84 When decision takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
85 Registration and enforcement of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . 45
86 Consequences of failure to comply with tribunal's orders and directions . . 46
Division 10--Further action in relation to a proceeding
87 Correcting mistakes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
88 Reopening an order if party does not appear . . . . . . . . . . . . . . . . . . . . . . . . . 48
89 Reopening an order if problems with interpretation or implementation . . . 48
90 Application to reopen order must not be made if appeal filed . . . . . . . . . . . 48
91 Cases stated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
92 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
PART 5--PARTICULAR JURISDICTION OF THE TRIBUNAL
Division 1--Building disputes
93 Tribunal may decide building dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
94 When major commercial building dispute may be heard by tribunal . . . . . 50
95 Procedure to decide whether all parties consent . . . . . . . . . . . . . . . . . . . . . . 51
96 Procedure if another party discovered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
97 Consent may not be withdrawn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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98 Tribunal may make interim order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
99 Proceeding in tribunal stops action by authority . . . . . . . . . . . . . . . . . . . . . . 53
100 Reports by authority to tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
101 Tribunal to decide about rectification or completion work . . . . . . . . . . . . . 54
102 Tribunal may hear dispute while contract still in operation . . . . . . . . . . . . . 54
103 Tribunal may hear dispute regardless of related criminal or
disciplinary action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Division 2--Proceedings for review
104 Reviewable decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
105 Application for review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
106 Stay of operation of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
107 Tribunal may try to reach settlement during review . . . . . . . . . . . . . . . . . . . 58
Division 3--Disciplinary proceedings
108 Tribunal may conduct disciplinary proceeding . . . . . . . . . . . . . . . . . . . . . . . 58
109 Proper grounds for disciplinary action against a licensee . . . . . . . . . . . . . . 58
110 Proper grounds for disciplinary action against person not a licensee . . . . . 59
111 Orders for disciplinary action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Division 4--Public Examinations
112 Tribunal may conduct public examination . . . . . . . . . . . . . . . . . . . . . . . . . . 61
113 Procedure before public examination starts . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Division 5--Stop orders and suspension orders
114 Stop orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
115 Suspension orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Division 6--Decisions about debts arising from statutory insurance
scheme
116 Decisions about debts arising from statutory insurance scheme . . . . . . . . . 64
Division 7--Transfer of proceedings
117 Transfer of proceedings between tribunal and the courts . . . . . . . . . . . . . . . 64
PART 6--DISPUTE RESOLUTION PROCEDURES AVAILABLE
TO TRIBUNAL
Division 1--General
118 Tribunal may conduct hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
119 Hearing of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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120 Purpose of other divisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Division 2--Decision by default
121 Decision by default for debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
122 Setting aside decision by default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Division 3--Mediation
123 Tribunal may appoint mediator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
124 Method of mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
125 Matters about mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
126 Mediator precluded from tribunal hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
127 Time limit for mediation before expedited hearing . . . . . . . . . . . . . . . . . . . 69
Division 4--Expedited hearings
128 Expedited hearing of domestic building disputes . . . . . . . . . . . . . . . . . . . . . 69
129 Certain minor commercial building disputes may be expedited . . . . . . . . . 69
130 Procedure for expedited hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Division 5--Summary decision
131 Summary decision for applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
132 Summary decision for respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
133 Claims not disposed of by summary decision . . . . . . . . . . . . . . . . . . . . . . . . 72
134 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
135 Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
136 Examination of parties and witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
137 Directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
138 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
139 Stay of enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
140 Setting aside summary decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Division 6--Case appraisals
141 Referral to case appraiser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
142 Jurisdiction of case appraiser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
143 Procedure for case appraisals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
144 Case appraiser may seek information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
145 Case appraisal may be recorded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
146 Case appraiser's decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
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147 Case appraiser's decision on costs in the dispute . . . . . . . . . . . . . . . . . . . . . 76
148 Case appraiser's decision final unless election made . . . . . . . . . . . . . . . . . 77
149 Case appraiser to file report and decision . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
150 Dissatisfied party may elect to go to hearing of tribunal . . . . . . . . . . . . . . . 77
151 Case appraiser's decision may affect costs . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Division 7--Pre-hearing conferences
152 Pre-hearing conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
153 Who is required to attend pre-hearing conferences . . . . . . . . . . . . . . . . . . . . 79
154 Evidence from pre-hearing conferences inadmissible . . . . . . . . . . . . . . . . . . 79
155 When member may hear proceeding after presiding at a
pre-hearing conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
156 Failure of a party to attend a pre-hearing conference . . . . . . . . . . . . . . . . . . 80
Division 8--Settlement Offers
157 Making settlement offers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
158 Effect of offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
159 Accepting settlement offers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
160 Consequences if accepted offer is not complied with . . . . . . . . . . . . . . . . . 81
161 Tribunal must order party to pay costs if certain offers to settle rejected . . 82
PART 7--MISCELLANEOUS
162 Finance and staffing of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
163 Trust account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
164 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
165 Proceedings for offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
166 Limitation on time for starting summary proceedings . . . . . . . . . . . . . . . . . 84
167 Penalties to be paid to authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
168 Contracting out prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
169 Executive officers must ensure corporation complies with Act . . . . . . . . . . 85
170 Judicial Review excluded for minor domestic building disputes . . . . . . . . . 85
171 Proof of signature unnecessary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
172 Evidentiary aids . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
173 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
174 Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
175 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
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176 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
PART 8--TRANSITIONAL PROVISIONS
Division 1--Definitions
177 Definitions for pt 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Division 2--Transitional matters
178 Proceedings started before commencement . . . . . . . . . . . . . . . . . . . . . . . . . 88
179 Former member may continue to hear proceeding . . . . . . . . . . . . . . . . . . . . 88
180 Proceedings that must continue in a court . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
181 Proceedings about matters arising before commencement to be
dealt with under this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
182 Records of former tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
PART 9--CONSEQUENTIAL AND OTHER AMENDMENTS
183 Amendments--sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 90
CONSEQUENTIAL AND OTHER AMENDMENTS OF
QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 94
DICTIONARY
1999
A BILL
FOR
An Act to establish a tribunal to resolve disputes in the building
industry, to review decisions of the Queensland Building Services
Authority and to decide applications by the Queensland Building
Services Authority, and for other matters
s1 10 s4
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The Parliament of Queensland enacts-- 1
ART 1--PRELIMINARY 2
P
1--Introduction 3
Division
title 4
Short
1. This Act may be cited as the Queensland Building Tribunal Act 1999. 5
6
Commencement
2. This Act commences on a day to be fixed by proclamation. 7
Division 2--Operation of Act 8
binds all persons 9
Act
3. This Act binds all persons, including the State and, as far as the 10
legislative power of the Parliament permits, the Commonwealth and the 11
other States. 12
Division 3--Objects of Act 13
of Act 14
Objects
4. The objects of this Act are to establish a tribunal and have it deal with 15
the following in an expeditious way that is just, fair and cost efficient-- 16
(a) domestic building disputes and minor commercial building 17
disputes; 18
(b) major commercial building disputes if the parties to this type of 19
dispute agree; 20
(c) reviews of decisions of the authority; 21
s5 11 s5
Queensland Building Tribunal
(d) applications by the authority for-- 1
(i) proceedings to decide whether proper grounds exist for 2
taking disciplinary action against a person; or 3
(ii) public examinations that investigate stated matters for this 4
Act; or 5
(iii) orders prohibiting a person from starting or continuing 6
building work; or 7
(iv) the recovery of amounts paid by the authority for claims 8
under the statutory insurance scheme under the Queensland 9
Building Services Authority Act 1991;1 10
(e) applications under the Domestic Building Contracts Act 1999; 11
(f) other applications that may be made to the tribunal under this or 12
another Act. 13
objects are to be achieved 14
How
5. The objects of this Act are to be achieved by establishing a system of 15
dispute resolution that-- 16
(a) is just in the results it delivers; and 17
(b) is fair by-- 18
(i) ensuring litigants have an equal opportunity, regardless of 19
their resources, to assert or defend their legal rights; and 20
(ii) giving parties to proceedings an opportunity to state their 21
case and to answer their opponent's case; and 22
(iii) treating like cases alike; and 23
(c) has a range of procedures available and minimises costs to the 24
extent practicable; and 25
(d) deals with applications with reasonable speed and encourages the 26
early resolution of disputes; and 27
(e) is understandable to users of the system; and 28
1 Queensland Building Services Authority Act 1991, part 5 (The Statutory Insurance
Scheme)
s6 12 s7
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(f) is responsive to the needs of users of the system; and 1
(g) allows parties to represent themselves and save legal costs 2
wherever appropriate. 3
4--Interpretation 4
Division
5
Definitions
6. The dictionary in schedule 2 defines particular words used in this Act. 6
of "building work" 7
Meaning
7.(1) The following is "building work"-- 8
(a) the erection or construction of a building; 9
(b) the renovation, alteration, extension, improvement or repair of a 10
building; 11
(c) the provision of electrical work, water supply, sewerage or 12
drainage or other like services for a building; 13
(d) the demolition, removal or relocation of a building; 14
(e) any site work (including the construction of retaining structures, 15
driveways, landscaping and the construction of a swimming pool) 16
related to building work of a kind mentioned in paragraphs (a) to 17
(d); 18
(f) the preparation of plans, specifications or bills of quantity for the 19
carrying out of building work; 20
(g) the inspection of a completed building; 21
(h) subject to subsection (3), work prescribed under a regulation. 22
(2) To remove doubt, it is declared that domestic building work is 23
building work. 24
(3) The following is not "building work"-- 25
(a) the construction, extension, repair or replacement of a water 26
reticulation system, sewerage system or stormwater drain, outside 27
the boundaries of private property; 28
s7 13 s7
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(b) the building or maintenance of a road as defined under the Land 1
Act 1994; 2
(c) the construction, maintenance or repair of a bridge, other than a 3
bridge on private property; 4
(d) the construction, maintenance or repair of railway tracks, signals 5
or associated structures, unless the structures are buildings for 6
residential purposes, or are storage or service facilities; 7
(e) the construction, maintenance or repair of airport runways, 8
taxiways and aprons; 9
(f) the construction, maintenance or repair of ports or ports 10
infrastructure, unless the structures are buildings for residential 11
purposes, or are storage or service facilities; 12
(g) the construction, maintenance or repair of a dam; 13
(h) the construction, maintenance or repair of communications 14
installations performed for a public company or public body 15
engaged in radio or television broadcasting or in some other form 16
of communications business or undertaking; 17
(i) the installation of manufacturing equipment or equipment for 18
hoisting, conveying or transporting materials or products 19
(including primary produce), other than the installation of fixed 20
structures providing shelter for the equipment; 21
(j) construction work in mining; 22
(k) work consisting of monumental masonry, sculpture, or the 23
erection or construction of statues, fountains or other works of art, 24
other than work affecting the way in which a building is 25
constructed; 26
(l) building work carried out by the State for the State or for an entity 27
representing the State; 28
(m) building work carried out by a local government for a local 29
government, the State or an entity representing a local government 30
or the State; 31
(n) building work carried out outside Queensland. 32
(4) For subsection (3)(l), building work is not carried out by the State if 33
s8 14 s 11
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the work is carried out for the State by an independent contractor. 1
(5) For subsection (3)(m), building work is not carried out by a local 2
government if the work is carried out for the local government by an 3
independent contractor. 4
out building work 5
Carrying
8.(1) A person carries out building work whether the person carries it out 6
personally, or directly or indirectly causes it to be carried out. 7
(2) A person is taken to carry out building work if the person provides 8
advisory services, administration services, management services or 9
supervisory services relating to the building work. 10
(3) A person undertakes to carry out building work if the person enters 11
into a contract to carry it out or submits a tender or makes an offer to carry it 12
out. 13
PART 2--ESTABLISHMENT AND MEMBERSHIP OF 14
TRIBUNAL 15
of tribunal 16
Establishment
9. The Queensland Building Tribunal is established. 17
seal 18
Tribunal's
10.(1) The tribunal must have a seal. 19
(2) The registrar is to have custody of the seal. 20
(3) The seal must be judicially noticed. 21
of chairperson and membership of tribunal 22
Appointment
11.(1) The tribunal consists of the chairperson and the number of other 23
members appointed under this Act. 24
s 12 15 s 13
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(2) The chairperson and other members of the tribunal are to be 1
appointed by the Governor in Council. 2
(3) A person is eligible for appointment as a member of the tribunal if the 3
person is-- 4
(a) a lawyer of not less than 5 years standing; or 5
(b) a retired judge of any Australian court. 6
(4) A member may be appointed on a full-time or part-time basis. 7
(5) A member is appointed for the term (not longer than 7 years) stated 8
by the Governor in Council in the instrument of appointment. 9
(6) A member is to be appointed under this Act, and not under the Public 10
Service Act 1996. 11
and conditions of member's appointment 12
Terms
12.(1) A member of the tribunal is entitled to be paid the remuneration 13
and allowances decided by the Governor in Council. 14
(2) To the extent that the terms and conditions are not provided for by 15
this Act, a member of the tribunal holds office on the terms and conditions 16
decided by the Governor in Council. 17
to direct business of tribunal 18
Chairperson
13.(1) The chairperson of the tribunal is to direct the business of the 19
tribunal. 20
(2) Without limiting subsection (1), the chairperson may-- 21
(a) direct the professional development and training of members of 22
the tribunal; and 23
(b) decide and implement procedures and policies for the tribunal; 24
and 25
(c) without limiting paragraph (b), issue practice directions of general 26
application to proceedings. 27
s 14 16 s 17
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of powers by chairperson 1
Delegation
14. The chairperson may delegate the chairperson's administrative 2
powers under this or another Act, including the power to give a direction 3
about how the tribunal is to be constituted for a proceeding, to another 4
member or to the registrar. 5
of deputy chairperson 6
Appointment
15.(1) The Governor in Council may appoint a member of the tribunal to 7
be deputy chairperson. 8
(2) The deputy chairperson is to act as chairperson if-- 9
(a) the chairperson is not available to carry out the chairperson's 10
duties; or 11
(b) there is a vacancy in the office of chairperson. 12
of members 13
Resignation
16. A member may resign by giving a signed notice of resignation to the 14
Minister. 15
of appointment of a member 16
Termination
17.(1) The Governor in Council may terminate the appointment of a 17
member if the member-- 18
(a) becomes incapable of performing the duties of a member because 19
of physical or mental incapacity; or 20
(b) is convicted of an indictable offence; or 21
(c) commits misconduct of a kind that could justify dismissal from 22
the public service if the member were a public service officer; or 23
(d) is affected by bankruptcy action. 24
(2) For subsection (1)(d), a member is affected by bankruptcy action if 25
the member-- 26
(a) is bankrupt; or 27
(b) has compounded with creditors; or 28
s 18 17 s 20
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(c) has otherwise taken, or applied to take, advantage of any law 1
about bankruptcy. 2
of interests 3
Disclosure
18.(1) If a member becomes aware that the member has a conflict of 4
interest about a proceeding before the tribunal, the member must disclose 5
the issue giving rise to the conflict-- 6
(a) if the member is the chairperson--to the parties to the proceeding; 7
or 8
(b) otherwise--to the chairperson and the parties to the proceeding. 9
(2) After making the disclosure, the member may disqualify himself or 10
herself. 11
(3) However, the member may take part in the proceeding, or exercise a 12
power for the proceeding-- 13
(a) if the member is the chairperson--if the parties agree; or 14
(b) otherwise--if the chairperson and the parties agree. 15
(4) A member has a conflict of interest about a proceeding if the member 16
has an interest, financial or otherwise, that could conflict with the proper 17
performance of the member's functions for the proceeding. 18
of members 19
Protection
19. A member has, in the performance of the member's duties as a 20
member, the same protection and immunity as a District Court judge has in 21
the performance of the judge's duties. 22
PART 3--REGISTRAR AND OTHER STAFF 23
of tribunal 24
Registrar
20.(1) There is to be a registrar of the tribunal. 25
s 21 18 s 21
Queensland Building Tribunal
(2) The registrar is a member of the staff of the tribunal. 1
(3) A person is eligible for appointment as the registrar only if the person 2
has particular knowledge and experience of-- 3
(a) public administration; and 4
(b) something else with substantial relevance to the functions of the 5
registrar. 6
functions and powers 7
Registrar's
21.(1) Subject to the chairperson, the registrar is to be responsible for 8
managing the administrative affairs of the tribunal. 9
(2) Without limiting subsection (1), the registrar must-- 10
(a) keep a register containing details of all applications filed; and 11
(b) ensure the register is available for inspection by a person paying 12
the fee, if any, prescribed under a regulation; and 13
(c) supply a certificate as to the correctness of a matter in the register 14
to a person paying the fee, if any, prescribed under a regulation; 15
and 16
(e) sign and issue summonses; and 17
(f) keep the tribunal's records and decisions; and 18
(g) keep account of fees paid and payable to the tribunal; and 19
(h) keep account of moneys paid into and out of the tribunal's trust 20
account. 21
(3) Also, without limiting subsection (1), the registrar is to-- 22
(a) appoint mediators and decide whether a proceeding should be the 23
subject of a mediation or expedited hearing and the times and 24
places of mediations or expedited hearings; and 25
(b) give decisions by default under section 121. 26
(4) The registrar may exercise the powers given to the registrar under this 27
Act. 28
s 22 19 s 25
Queensland Building Tribunal
may direct registrar 1
Chairperson
22. The chairperson may give the registrar a direction about the exercise 2
of the registrar's powers, other than to the extent the direction would be 3
inconsistent with the provisions of this Act about the registrar's powers. 4
of consultants 5
Engagement
23.(1) The registrar may engage persons having suitable qualifications 6
and experience as consultants to perform services for the tribunal. 7
(2) Without limiting subsection (1), the services a consultant may be 8
engaged to perform include conducting research for the tribunal. 9
(3) An engagement under subsection (1) must be made for the State 10
under a written agreement. 11
of acting registrar 12
Appointment
24.(1) The chairperson may appoint an appropriately qualified person to 13
act as registrar. 14
(2) The appointee is to act as registrar if-- 15
(a) the registrar is not available to carry out the registrar's duties; or 16
(b) there is a vacancy in the office of registrar. 17
(3) In this section-- 18
"appropriately qualified" includes having particular knowledge and 19
experience of-- 20
(a) public administration; and 21
(b) something else with substantial relevance to the functions of the 22
registrar. 23
by registrar 24
Delegation
25.(1) The registrar may delegate the registrar's powers under this Act or 25
another Act to an appropriately qualified member of the staff of the tribunal. 26
(2) In this section-- 27
s 26 20 s 29
Queensland Building Tribunal
"appropriately qualified" includes having the qualifications, experience or 1
standing appropriate to exercise the power. 2
3
Example of `standing'--
4
A person's seniority level as a member of the staff of the tribunal.
of tribunal staff 5
Appointment
26. The registrar and other staff of the tribunal are to be appointed and 6
employed under the Public Service Act 1996. 7
PART 4--GENERAL JURISDICTION AND 8
OPERATION OF TRIBUNAL 9
Division 1--Constitution and general jurisdiction of tribunal 10
of tribunal 11
Constitution
27. For a proceeding, the tribunal is to be constituted by a single member. 12
jurisdiction 13
General
28. The tribunal may hear and decide all applications made to it and all 14
matters required or permitted to be heard and decided by it under this Act, 15
the Queensland Building Services Authority Act 1991, the Domestic 16
Building Contracts Act 1999 or another Act. 17
2--Start of proceedings 18
Division
of proceedings 19
Start
29.(1) A proceeding for a matter for which the tribunal has jurisdiction is 20
started by a person (the "applicant") filing an application in the approved 21
form in the tribunal and paying the fee prescribed under a regulation. 22
s 30 21 s 30
Queensland Building Tribunal
(2) However, the authority does not have to pay a fee for an application 1
filed by it. 2
(3) The application must state-- 3
(a) the facts or grounds on which the application is based; and 4
(b) the claims made and outcome or order sought by the applicant. 5
(4) The applicant must serve a copy of the application on each person (the 6
"respondent") against whom a claim is made or in relation to whom an 7
outcome or order is sought. 8
(5) Also, if the tribunal considers another person is affected by the 9
application, it may direct the applicant to serve a copy of the application on 10
the person. 11
(6) The applicant must comply with a direction under subsection (5). 12
(7) For a public examination, the person required to be served under 13
subsection (4) is the person proposed to be the subject of the public 14
examination. 15
and counterclaim 16
Defence
30.(1) This section applies to an application starting a proceeding for-- 17
(a) a building dispute; or 18
(b) the recovery of a debt under the Queensland Building Services 19
Authority Act 1991, section 71; or 20
(c) a matter under the Domestic Building Contracts Act 1999, 21
sections 18, 55, 60 or 84.2 22
(2) The respondent must file a defence to the application and any 23
counterclaim that states-- 24
(a) the facts relied on by the respondent in defence of the claims by 25
the applicant; and 26
(b) the nature of the defence to each outcome or order sought by the 27
2 Domestic Building Contracts Act 1999, section 18 (Effective completion date or
period), 55 (Cost plus contracts), 60 (Effect of improper statements) or 84 (Right
of building contractor to recover amount for variation)
s 31 22 s 32
Queensland Building Tribunal
applicant; and 1
(c) the facts on which any counterclaim is based and the outcome or 2
order sought by the respondent relating to the counterclaim. 3
(3) The respondent must act under subsection (2) within 14 days of being 4
served with the application or the extended time allowed by the tribunal. 5
(4) A defence and any counterclaim must be in the approved form. 6
(5) A copy of the defence and any counterclaim must be served on the 7
applicant. 8
(6) Also, if the tribunal considers another person is affected by the 9
defence or counterclaim, it may direct the respondent to serve a copy of the 10
defence or counterclaim on the person. 11
(7) The respondent must comply with a direction under subsection (6). 12
(8) If the respondent does not file a defence within the period or extended 13
period allowed, the tribunal may deal with the matter in the absence of 14
respondent. 15
3--Business names 16
Division
if business name 17
Proceeding
31. A proceeding may be brought against a person under a name or style, 18
other than the person's own name and under which a person carries on 19
business, regardless of whether the name or style is registered under the 20
Business Names Act 1962. 21
if registered business name 22
Proceeding
32.(1) This section applies if a proceeding is brought against a person in 23
relation to a business carried on by the person under a name or style other 24
than the person's own name and the name is registered under the Business 25
Names Act 1962. 26
(2) The proceeding may be started against the person in the name or style 27
registered under the Business Names Act 1962. 28
(3) The name or style registered under the Business Names Act 1962 is 29
s 33 23 s 35
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sufficient designation of the person in a document filed in the proceeding. 1
(4) An order in the proceeding may be enforced against the person. 2
in business name if unregistered 3
Proceeding
33.(1) This section applies if a proceeding is brought against a person in 4
relation to a business carried on by the person under a name or style other 5
than the person's own name and the name is not registered under the 6
Business Names Act 1962. 7
(2) The proceeding may be started against the person in the name or style 8
under which the person carries on business. 9
(3) The name or style under which the business is carried on is sufficient 10
designation of the person in a document filed in the proceeding. 11
(4) An order in the proceeding may be enforced against the person. 12
13
Defence
34.(1) This section applies if a proceeding is brought against a person in 14
relation to a business carried on by the person under a name or style other 15
than the person's own name, regardless of whether the name or style is 16
registered under the Business Names Act 1962. 17
(2) A defence must be in the name of the person and not in the business 18
name. 19
(3) If the person files a defence, the person must file and serve with the 20
defence a statement of the names and places of residence of all persons who 21
were carrying on business under the name or style as at the day the 22
proceeding was started. 23
(4) The tribunal may set aside the defence if the person does not comply 24
with subsection (3). 25
as to parties 26
Amendment
35.(1) This section applies if a proceeding is brought against a person in 27
relation to a business carried on by the person under a name or style other 28
than the person's own name, regardless of whether the name or style is 29
s 36 24 s 37
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registered under the Business Names Act 1962. 1
(2) The applicant must, as soon as practicable, take all reasonable steps to 2
find out the name of the person carrying on the business under the name or 3
style in question. 4
(3) The applicant must continue the proceeding in the person's name and 5
not in the name or style under which the business was carried on. 6
(4) However with the tribunal's leave, the applicant may take a further 7
step in the proceeding in the name or style under which the business was 8
carried on. 9
(5) Before allowing a proceeding to continue against a named person, the 10
tribunal must be satisfied that the named person is aware the proceeding is 11
being continued against the named person. 12
4--Service 13
Division
of documents 14
Service
36.(1) A document may be served under this Act-- 15
(a) in a way directed by the tribunal; or 16
(b) as stated in this Act; or 17
(c) for person licensed under the Queensland Building Services 18
Authority Act 1991-- by leaving it at, or sending it by post, telex, 19
facsimile or similar facility to, the address of the person in the 20
register of licensees kept by the authority. 21
(2) Subsection (1) does not limit the Acts Interpretation Act 1954, 22
section 39.3 23
in relation to a business 24
Service
37.(1) This section applies if-- 25
(a) a proceeding is brought against a person in relation to a business 26
carried on by the person under a name or style other than the 27
3 Acts Interpretation Act 1954, section 39 (Service of documents)
s 38 25 s 39
Queensland Building Tribunal
person's own name, regardless of whether the name or style is 1
registered under the Business Names Act 1962; and 2
(b) the proceeding is brought in the name or style under which the 3
person carries on the business. 4
(2) The application may be served by leaving a copy at the person's place 5
of business with a person who appears to have control or management of 6
the business at the place. 7
of service by solicitor 8
Acceptance
38.(1) A solicitor may accept service of a document for a party. 9
(2) The document is taken to have been served on the party, unless the 10
party proves the solicitor did not have authority to accept service for the 11
party. 12
(3) This section applies whether or not personal service of the document 13
is required under this Act. 14
(4) The solicitor must make a note on a copy of the document to the 15
effect that the solicitor accepts service for the party. 16
service 17
Informal
39.(1) This section applies if-- 18
(a) for any reason, a document is not served as required by this 19
division but the document or a copy of it came into the possession 20
of the person to be served; and 21
(b) the tribunal is satisfied on evidence before it that the document 22
came into the person's possession on or before a particular day. 23
(2) The tribunal may, by order, decide that the possession of the 24
document is service for this Act on the day it came into the person's 25
possession or a later day stated in the order. 26
s 40 26 s 41
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Division 5--Case management 1
to fix time and place for proceedings 2
Tribunal
40.(1) This section applies if an application has been filed and served 3
under this Act. 4
(2) The tribunal must fix a time and place for the proceedings the tribunal 5
considers necessary for resolution of the matters to which the application 6
and any defence and counterclaim relate. 7
(3) However, the tribunal must not fix a time and place for an application 8
for a matter mentioned in section 30(1)4 until either-- 9
(a) a defence and any counterclaim have been filed and served; or 10
(b) the time or extended time (if the tribunal has extended the time for 11
filing a defence and any counterclaim) for filing a defence and 12
counterclaim has ended without a defence being filed. 13
tribunal is to conduct proceedings 14
Way
41.(1) This section applies to a proceeding. 15
(2) The procedure is at the discretion of the tribunal, subject to this Act 16
and the rules of natural justice. 17
(3) The proceeding is to be conducted with as little formality and 18
technicality and with as much speed as the requirements of this Act and a 19
proper consideration of the matters before the tribunal permit. 20
(4) The tribunal is not bound by the rules of evidence but may inform 21
itself in any way it considers appropriate. 22
(5) The tribunal may, if appropriate, conduct the proceeding by means of 23
telephone conferencing, video conferencing or another form of 24
communication that allows reasonably contemporaneous and continuous 25
communication between persons taking part in the proceeding. 26
(6) The tribunal may decide all or part of the proceeding from a 27
consideration of the documents filed, without the parties or witnesses 28
4 Section 30 (Defence and counterclaim)
s 42 27 s 43
Queensland Building Tribunal
appearing in person if-- 1
(a) the parties to the proceeding agree; and 2
(b) the tribunal considers it appropriate in all the circumstances. 3
and orders 4
Directions
42.(1) The tribunal may make orders, give directions and do whatever is 5
necessary for the expeditious, just, fair and cost effective resolution of a 6
proceeding. 7
(2) The power to give directions under subsection (1) is subject to 8
practice directions under section 13(2)(c).5 9
(3) Without limiting subsection (1), the tribunal may at any time-- 10
(a) set time limits for the completion of anything to be done in 11
relation to the proceeding; and 12
(b) require a party to the proceeding to give the tribunal either or both 13
of the following if the tribunal considers it may be relevant to the 14
proceeding-- 15
(i) a document in the party's possession or control; 16
(ii) any other information or evidence. 17
(4) A party must comply with an order or direction within the time stated 18
in the order or direction unless the party applies to the tribunal for and is 19
granted an extension of time to comply with the order or direction. 20
(5) The tribunal, on application of a party or on its own initiative, may at 21
any time vary or revoke an order or direction given by it. 22
(6) The tribunal may not vary or revoke an order or direction given by it 23
if to do so would cause any prejudice or detriment to a party or potential 24
party that can not be remedied by an appropriate order for costs or damages. 25
to which disclosure does not apply 26
Documents
43.(1) The duty of disclosure does not apply to the following 27
documents-- 28
5 Section 13 (Chairperson to direct business of tribunal)
s 44 28 s 44
Queensland Building Tribunal
(a) a document in relation to which there is a valid claim to privilege 1
from disclosure; 2
(b) a document relevant only to credit; 3
(c) an additional copy of a document already disclosed, if it is 4
reasonable to suppose the additional copy contains no change, 5
obliteration or other mark or feature likely to affect the outcome of 6
the proceeding. 7
(2) A document consisting of a statement or report of an expert is not 8
privileged from disclosure. 9
(3) In this section-- 10
"duty of disclosure" means a requirement under section 42(4) relating to a 11
document mentioned in section 42(3)(b)(i). 12
of time and waiver of compliance 13
Extension
44.(1) The tribunal, on the application of any person or on its own 14
initiative, may extend a time limit fixed by or under this or another Act for 15
the start of a proceeding. 16
(2) The tribunal, on the application of a party or on its own initiative, may 17
for a proceeding-- 18
(a) extend a time limit fixed by or under this Act, the Queensland 19
Building Services Authority Act 1991 or the Domestic Building 20
Contracts Act 1999 for the doing of anything; or 21
(b) waive compliance with any procedural requirement under this 22
Act. 23
(3) The tribunal may extend time or waive compliance even if the time or 24
period for compliance has expired. 25
(4) However, an application for an extension of time to file a defence and 26
any counterclaim under section 30(3)6 must be made before the 14 day 27
period for filing the defence ends. 28
(5) The tribunal may not extend time or waive compliance if to do so 29
6 Section 30 (Defence and counterclaim)
s 45 29 s 47
Queensland Building Tribunal
would cause any prejudice or detriment to a party or potential party that can 1
not be remedied by an appropriate order for costs or damages. 2
of parties 3
Joinder
45.(1) For a proceeding the tribunal may order that a person be joined as 4
a party to a proceeding if the tribunal considers that-- 5
(a) the person ought to be bound by, or have the benefit of, an order 6
of the tribunal in the proceeding; or 7
(b) the person's interests are affected by the proceeding; or 8
(c) for another reason it is desirable the person be joined as a party. 9
(2) The tribunal may make an order under subsection (1) on application 10
of any person or on its own initiative. 11
(3) For a proceeding for a major commercial building dispute a person 12
may not be joined as a party except under section 95.7 13
of proceedings 14
Consolidation
46. The tribunal may on the application of any person or on its own 15
initiative order that 2 or more proceedings be consolidated if-- 16
(a) the same or substantially the same question is involved in all the 17
proceedings; or 18
(b) the decision in 1 proceeding will decide or affect the other 19
proceeding or proceedings. 20
of hearings 21
Sequence
47. The tribunal may on the application of any person or on its own 22
initiative order that 2 or more proceedings be heard together or in a 23
particular sequence. 24
7 Section 95 (Procedure to decide whether all parties consent)
s 48 30 s 51
Queensland Building Tribunal
1
Directions
48. If the tribunal orders that proceedings be consolidated or heard 2
together or in a specified sequence, the tribunal may give a direction it 3
considers appropriate for the conduct of the proceeding or proceedings. 4
of order 5
Variation
49. Before or during the hearing of a consolidated proceeding or of 6
proceedings ordered to be heard together or in a particular sequence, the 7
tribunal may order the proceedings be separated or heard in another 8
sequence. 9
proceedings 10
Vexatious
50. If, in the tribunal's opinion, a proceeding has been brought 11
vexatiously or oppressively, the tribunal may-- 12
(a) summarily dismiss the proceeding; and 13
(b) order costs against the party by whom the proceeding was 14
brought to compensate the party against whom it was brought for 15
loss, inconvenience and embarrassment resulting from the 16
proceeding. 17
of proceeding causing disadvantage 18
Conduct
51.(1) This section applies if the tribunal considers a party to a 19
proceeding is acting in a way that unreasonably disadvantages another party 20
to the proceeding including by-- 21
(a) not complying with a direction or order of the tribunal without 22
reasonable excuse; or 23
(b) asking for an adjournment as a result of not complying with a 24
direction or order of the tribunal; or 25
(c) vexatiously conducting the proceeding; or 26
(d) causing an adjournment. 27
(2) The tribunal may-- 28
(a) order that the party causing the disadvantage compensate the other 29
s 52 31 s 54
Queensland Building Tribunal
party for any costs incurred unnecessarily; or 1
(b) if the party causing the disadvantage is the applicant, dismiss the 2
applicant's claim; or 3
(c) if the party causing the disadvantage has filed a counterclaim, 4
dismiss the counterclaim. 5
(3) The tribunal may refuse to continue with the proceeding until an order 6
under subsection (2)(a) is complied with. 7
by applicant 8
Withdrawal
52.(1) The authority may withdraw an application or part of an 9
application under section 108 or 1128 without the tribunal's leave. 10
(2) For other applications, an applicant may withdraw all or part of an 11
application without the tribunal's leave if the applicant has not been served 12
with a defence or counterclaim relating to the application. 13
(3) After being served with a defence or counterclaim, an applicant may 14
withdraw all or part of an application only with the tribunal's leave. 15
(4) Also, if there is more than 1 applicant, an applicant may withdraw all 16
or part of an application only with the tribunal's leave. 17
(5) An applicant may withdraw against 1 or more respondents without 18
withdrawing against the other respondents only with the tribunal's leave. 19
by respondent 20
Withdrawal
53. A respondent may withdraw all or part of a defence or counterclaim 21
only with the tribunal's leave. 22
application after withdrawal restricted 23
Further
54. If an applicant withdraws all or part of an application, the applicant 24
may make a further application relating to the same facts and circumstances 25
only with the tribunal's leave. 26
8 Section 108 (Tribunal may conduct disciplinary proceeding) or 112 (Tribunal
may conduct public examination)
s 55 32 s 58
Queensland Building Tribunal
order on applicant's withdrawal 1
Costs
55. If an applicant withdraws all or part of an application, the tribunal 2
may make an order that the applicant pay all, or part of, the costs of the 3
other parties to the proceeding. 4
of withdrawal 5
Notice
56.(1) A withdrawal for which the tribunal's leave is not required may be 6
effected by filing a notice of withdrawal and serving it as soon as practicable 7
on the other parties. 8
(2) A withdrawal for which the tribunal's leave is required is effected by 9
the order giving leave and a notice of withdrawal is not required. 10
6--Costs generally 11
Division
for costs 12
Security
57.(1) On the application of a party against whom a claim is made or an 13
outcome or order sought in a proceeding, the tribunal may order-- 14
(a) that another party give security for the costs of the party applying 15
for security within the time stated in the order; and 16
(b) that the proceeding as against the party applying for security be 17
stayed until the security is given. 18
(2) An application under subsection (1) may be made at any time before 19
the proceeding ends. 20
(3) If security for costs is not given within the time stated in the order, the 21
tribunal may make an order dismissing the proceeding as against the party 22
applying for security. 23
factors for security for costs 24
Discretionary
58. In deciding whether to make an order under section 57, the tribunal 25
may have regard to any of the following matters-- 26
(a) the means of the parties to the proceeding; 27
s 59 33 s 60
Queensland Building Tribunal
(b) the prospects of success or merits of the proceeding; 1
(c) the genuineness of the proceeding; 2
(d) if the party against whom an order for costs is sought suffers 3
from a lack of means, whether this is attributable to the conduct of 4
the applicant for the order; 5
(e) whether an order for security for costs would be oppressive; 6
(f) whether an order for security for costs would stifle the 7
proceeding; 8
(g) whether delay by a party in starting the proceeding has prejudiced 9
another party; 10
(h) the costs of the proceeding; 11
(i) anything else the tribunal considers relevant. 12
security given 13
Way
59.(1) If the tribunal orders a party to give security for costs, the security 14
must be given in the form, at the time, and on the conditions, if any, the 15
tribunal directs. 16
(2) If the tribunal does not state the form of the security-- 17
(a) it must be given in a form approved by the registrar; and 18
(b) the form of security approved by the registrar must be written on 19
the order before it is issued. 20
(3) A party who gives security for costs must as soon as practicable after 21
giving security serve on the applicant for security written notice of when, 22
and the way in which, the security was given. 23
security 24
Finalising
60.(1) This section applies if, in a proceeding, security for costs has been 25
given by a party under an order made about security for costs under 26
section 57. 27
(2) If the tribunal decides the party must pay all or part of the costs of the 28
proceeding, the security may be applied in satisfaction of the costs. 29
s 61 34 s 61
Queensland Building Tribunal
(3) However, the security must be discharged-- 1
(a) if the tribunal's decision relating to the proceeding does not 2
require the party to pay all or part of the costs of the proceeding; 3
or 4
(b) if the tribunal orders the discharge of the security; or 5
(c) if the party entitled to the benefit of the security consents to its 6
discharge; or 7
(d) in relation to the balance after costs have been satisfied under 8
subsection (2). 9
power of tribunal to award costs 10
General
61.(1) In a proceeding, the tribunal may award the costs it considers 11
appropriate on-- 12
(a) the application of a party to the proceeding; or 13
(b) its own initiative. 14
(2) The costs the tribunal may award may be awarded at any stage of the 15
proceeding or after the proceeding has ended. 16
(3) If the tribunal awards costs during a proceeding, the tribunal may 17
order that the costs not be assessed until the proceedings ends. 18
(4) In deciding whether to award costs, and the amount of the costs, the 19
tribunal may have regard to the following-- 20
(a) the outcome of the proceeding; 21
(b) the conduct of the parties to the proceeding before and during the 22
proceeding; 23
(c) the nature and complexity of the proceeding; 24
(d) the relative strengths of the claims made by each of the parties to 25
the proceeding; 26
(e) any contravention of the Queensland Building Services Authority 27
Act 1991, the Domestic Building Contracts Act 1999 or any other 28
Act by a party to the proceeding; 29
(f) for a proceeding to which the authority is a party, whether the 30
s 62 35 s 64
Queensland Building Tribunal
other party to the proceeding was afforded natural justice by the 1
authority; 2
(g) anything else the tribunal considers relevant. 3
(5) A party to a proceeding is not entitled to costs merely because-- 4
(a) the party was the beneficiary of an order of the tribunal; or 5
(b) the party was legally represented at the proceeding. 6
(6) The power of the tribunal to award costs under this section is in 7
addition to the tribunal's power to award costs under another provision of 8
this or another Act. 9
pending payment of costs 10
Stay
62.(1) This section applies if a party has been ordered to pay the costs of 11
another party whether under section 61 of otherwise, and the party, before 12
paying the costs, starts another proceeding before the tribunal against the 13
other party. 14
(2) The tribunal may order a stay of the other proceeding until the costs 15
are paid. 16
Division 7--Representation 17
of div 7 18
Purposes
63. The main purpose of this division is to have parties represent 19
themselves and save legal costs unless the interests of justice require 20
otherwise. 21
represents party at mediation and case appraisal 22
Who
64. Unless the mediator or case appraiser considers it appropriate in the 23
interests of justice to allow a party to be represented by a lawyer or other 24
person, a party must represent himself or herself at mediation or case 25
appraisal. 26
s 65 36 s 66
Queensland Building Tribunal
represents party at pre-hearing conference 1
Who
65. Unless the tribunal considers it appropriate in the interests of justice 2
to direct otherwise, a party may be represented by a lawyer or other person 3
at a pre-hearing conference. 4
represents party at other proceedings 5
Who
66.(1) A party to a proceeding, other than a proceeding mentioned in 6
sections 64 and 65, must represent himself or herself. 7
(2) However, a party is entitled to be represented by-- 8
(a) a lawyer, if all parties to the proceeding agree; or 9
(b) a lawyer or other person if-- 10
(i) the proceeding relates to an application under section 116;9 11
or 12
(ii) the proceeding is a disciplinary proceeding; or 13
(iii) the proceeding is a public examination; or 14
(iv) the tribunal directs that representation by a lawyer or other 15
person is appropriate having regard to all the circumstances 16
including, for example-- 17
(A) the amount involved; and 18
(B) the complexity of the legal and factual issues involved; 19
and 20
(C) the ability of the lawyer or other person to help the 21
tribunal and the party represented; and 22
(D) the ability of the party to represent himself or herself. 23
(3) At a disciplinary proceeding or a public examination a person 24
summonsed to attend may be represented by a lawyer or other person. 25
9 Section 116 (Decisions about debts arising from statutory insurance scheme)
s 67 37 s 69
Queensland Building Tribunal
for a corporation 1
Representation
67. Sections 64 to 66 do not prevent a party that is a corporation from 2
being represented by a person who is not a lawyer. 3
Division 8--Other provisions about proceedings 4
may summons witness 5
Tribunal
68.(1) The tribunal may, on the application of a party to a proceeding or 6
on its own initiative, summons a person to attend before it at the time and 7
place notified in the summons to do either or both of the following-- 8
(a) appear as a witness and be examined on oath about the matters the 9
subject of the proceeding; 10
(b) to produce the documents or things stated in the summons or that 11
belong to a class stated in the summons. 12
(2) A person required to appear as a witness is entitled to the witness 13
fees-- 14
(a) prescribed under a regulation; or 15
(b) if no witness fees are prescribed--the reasonable witness fees 16
decided by the tribunal. 17
(3) The witness fees must be paid by the person making the application 18
under subsection (1). 19
or misleading statements 20
False
69.(1) A person appearing as a witness before the tribunal must not state 21
anything the person knows is false or misleading in a material particular. 22
Maximum penalty--100 penalty units. 23
(2) In a proceeding for an offence against subsection (1), it is enough for 24
a charge to state the statement was, without specifying which, `false or 25
misleading'. 26
s 70 38 s 72
Queensland Building Tribunal
or misleading documents 1
False
70.(1) A person appearing as a witness before the tribunal must not 2
produce a document containing information the person knows is false or 3
misleading in a material particular. 4
Maximum penalty--100 penalty units. 5
(2) Subsection (1) does not apply to a person if the person, when giving 6
the document-- 7
(a) tells the tribunal, to the best of the person's ability, how it is false 8
or misleading; and 9
(b) if the person has, or can reasonably obtain, the correct 10
information--gives the correct information. 11
(3) In a proceeding for an offence against subsection (1), it is enough for 12
a charge to state the document was, without specifying which, `false or 13
misleading'. 14
of documents or things 15
Inspection
71.(1) If a document or thing is produced to the tribunal, the tribunal 16
may-- 17
(a) inspect the document or thing; and 18
(b) copy or photograph the document or thing if it is relevant to the 19
proceeding before the tribunal. 20
(2) The tribunal may also take possession of the document or thing, and 21
keep it while it is necessary for the proceeding. 22
(3) While it keeps a document or thing, the tribunal must permit a person 23
otherwise entitled to possession of it to inspect, copy or photograph the 24
document or thing at a reasonable place and time the tribunal decides. 25
by witnesses 26
Offences
72.(1) A person summonsed to attend before the tribunal must not fail, 27
without reasonable excuse to-- 28
(a) attend as required by the summons; or 29
s 73 39 s 73
Queensland Building Tribunal
(b) continue to attend as required by the tribunal until excused from 1
further attendance. 2
Maximum penalty--80 penalty units. 3
(2) A person appearing as a witness before the tribunal must take an oath 4
when required by the tribunal. 5
Maximum penalty--80 penalty units. 6
(3) Also, a person appearing as a witness before the tribunal must not 7
fail, without reasonable excuse-- 8
(a) to answer a question the person is required to answer by the 9
tribunal; or 10
(b) to produce a document or thing the person is required to produce 11
under a summons. 12
Maximum penalty--80 penalty units. 13
(4) It is a reasonable excuse to refuse to answer a question or produce a 14
document or thing on the ground that the answer or production of the 15
document or thing might tend to incriminate the person. 16
(5) Despite subsection (1), the tribunal may at any time excuse a person 17
for failing to attend at the time and place notified. 18
(6) This section is subject to section 73. 19
must answer certain questions 20
Person
73.(1) This section applies if a person, at a public examination, refuses to 21
answer a question about the person's financial affairs. 22
(2) If the tribunal requires the person to answer the question, the tribunal 23
must advise the person of the following-- 24
(a) that if the answer might incriminate the person, the person may 25
claim, before giving the answer, that giving the answer might 26
incriminate the person; 27
(b) the effect that making the claim will have on the admissibility of 28
the answer in any proceeding against the person. 29
(3) The person must answer the question, unless the person has a 30
reasonable excuse. 31
s 74 40 s 75
Queensland Building Tribunal
Maximum penalty--500 penalty units. 1
(4) It is not a reasonable excuse to fail to answer the question that 2
answering might tend to incriminate the person. 3
(5) Subsection (6) applies if an answer might incriminate the person and 4
the person claims, before giving the answer, that giving the answer might 5
incriminate the person. 6
(6) The answer is not admissible in any criminal or civil proceeding 7
against the person, other than a proceeding in which the falsity or 8
misleading nature of the answer is relevant. 9
(7) For subsection (6), the following are not proceedings against the 10
person-- 11
(a) the public examination of a person; 12
(b) a proceeding for the review of a decision of the authority under 13
part 5, division 2.10 14
may be issued if witness does not attend 15
Warrant
74.(1) If a person summonsed does not attend as required by the 16
summons, the tribunal may-- 17
(a) issue a warrant directed to all police officers to bring the person at 18
the time, and to the place, stated in the warrant to give evidence at 19
a proceeding before the tribunal; and 20
(b) adjourn the hearing to the time and place mentioned in 21
paragraph (a) on terms as to costs the tribunal considers 22
appropriate. 23
(2) A warrant issued under subsection (1) is sufficient authority for a 24
police officer to execute it according to its terms. 25
of tribunal relating to taking of evidence 26
Powers
75.(1) For a proceeding, the tribunal may-- 27
(a) take evidence on oath; or 28
10 Part 5 (Particular jurisdiction of the tribunal), division 2 (Proceedings for review)
s 76 41 s 77
Queensland Building Tribunal
(b) require a person who is to give evidence before the tribunal to take 1
an oath; or 2
(c) administer an oath to a person who is to give evidence before the 3
tribunal. 4
(2) The oath to be taken or made by a person is an oath that the evidence 5
the person will give will be true. 6
of matters for expert report 7
Referral
76.(1) The tribunal may refer a matter of a technical nature arising in the 8
course of a proceeding for investigation by an appropriate expert. 9
(2) The expert must report the results of the investigation in writing to the 10
tribunal and provide the parties with copies of the report. 11
(3) The tribunal may adopt the findings of the expert in whole or in part. 12
(4) The parties to the proceeding are responsible for any costs of an 13
expert, and must pay those costs in the proportions decided by the tribunal. 14
(5) In doing anything for the purposes of subsection (2), the expert has 15
the same protection and immunity as a member of the tribunal. 16
and inspection of property 17
Entry
77.(1) The member may, if it is necessary to do so for the purposes of a 18
proceeding before the tribunal-- 19
(a) for a view, enter and inspect a building or land relevant to the 20
proceeding accompanied by the parties to the proceeding; or 21
(b) authorise a person in writing to take the following action and 22
report to the tribunal on the action taken-- 23
(i) enter and inspect a building or land relevant to the 24
proceeding; 25
(ii) take photographs,video film or an image of the building or 26
land or anything relevant to the proceeding; 27
(iii) carry out tests approved by the tribunal. 28
s 78 42 s 79
Queensland Building Tribunal
1
Examples of `building or land relevant to the proceeding'--
2
A display home mentioned in a contract as the model to be followed by a building
3
contractor if the display home is occupied by a third party.
4
Land adjoining other land on which is situated building work the subject of a
5
proceeding to better inspect the building work from the adjoining land.
(2) A person who obstructs a member, or a person authorised under 6
subsection (1)(b), in the exercise of a power mentioned in subsection (1) 7
commits an offence. 8
Maximum penalty--200 penalty units. 9
before entry 10
Procedure
78.(1) This section applies to entry under section 77. 11
(2) Before entering a building or land the member or a person authorised 12
to enter must do or make a reasonable attempt to do the following-- 13
(a) give an occupier or, if there is no occupier, the owner, reasonable 14
notice of the entry; 15
(b) on arriving at the building or land, identify himself or herself to a 16
person present who is an occupier of the building or land by 17
producing-- 18
(i) for the member, a copy of the member's notice of 19
appointment or other document evidencing the appointment; 20
or 21
(ii) for a person authorised to enter, a copy of the authorisation 22
and evidence that the person is the person authorised; 23
(c) give the person present a copy of the things produced under 24
subsection (2)(b); 25
(d) tell the person present the member or authorised person is 26
permitted to enter the building or land. 27
of tribunal 28
Contempt
79.(1) A person is in contempt of the tribunal if the person-- 29
(a) insults a member or a member of the tribunal staff at a 30
s 80 43 s 80
Queensland Building Tribunal
proceeding, or in going to or returning from the proceeding; or 1
(b) deliberately interrupts a proceeding, or otherwise misbehaves at a 2
proceeding; or 3
(c) creates or continues, or joins in creating or continuing, a 4
disturbance in or near a place where a proceeding is being 5
conducted; or 6
(d) obstructs or assaults a person attending a proceeding; or 7
(e) without lawful excuse, disobeys a lawful order or direction of the 8
tribunal made or given at a proceeding; or 9
(f) obstructs a member, or a person authorised under section 77(1), 10
in the exercise of a power under section 77(1); or 11
(g) does anything at a proceeding or otherwise that would be 12
contempt of court if the tribunal were a court of record. 13
(2) The tribunal may order that a person who contravenes subsection (1) 14
at a proceeding be excluded from the place where the proceeding is being 15
conducted. 16
(3) A member of the tribunal staff, acting under the tribunal's order, 17
may, using necessary and reasonable help and force, exclude the person 18
from the place. 19
of contempt 20
Punishment
80.(1) Without limiting the tribunal's power to punish for contempt 21
under section 79, a person's contempt of the tribunal may be punished 22
under this section. 23
(2) The chairperson may certify the contempt in writing to the Supreme 24
Court (the "court"). 25
(3) For subsection (2), it is enough for the chairperson to be satisfied 26
there is evidence of contempt. 27
(4) The chairperson may issue a warrant directed to a police officer or all 28
police officers for the arrest of the person to be brought before the court to 29
be dealt with according to law. 30
(5) The Bail Act 1980 applies to the proceeding for the contempt started 31
by the certification in the same way it applies to a charge of an offence. 32
s 81 44 s 83
Queensland Building Tribunal
(6) The court must inquire into the alleged contempt. 1
(7) The court must hear-- 2
(a) witnesses and evidence that may be produced against or for the 3
person whose contempt was certified; and 4
(b) any statement given by the person in defence. 5
(8) If the court is satisfied the person has committed the contempt, the 6
court may punish the person as if the person had committed the contempt in 7
relation to proceedings in the court. 8
(9) The Uniform Civil Procedure Rules 1999 apply to the court's 9
investigation, hearing and power to punish with necessary changes. 10
(10) The chairperson's certificate of contempt is evidence of the matters 11
contained in the certificate. 12
that is contempt and offence 13
Conduct
81. If conduct of a person is both contempt of the tribunal and an offence, 14
the person may be proceeded against for the contempt or for the offence, but 15
the person is not liable to be punished twice for the same conduct. 16
of persons before tribunal 17
Protection
82.(1) A person representing a person before the tribunal has the same 18
protection and immunity as a barrister has if appearing for a party in a 19
proceeding in the District Court. 20
(2) A person summoned to attend or appearing before the tribunal as a 21
witness has the same protection as a witness in a proceeding in the District 22
Court. 23
Division 9--Tribunal decisions and enforcement 24
of decisions of tribunal 25
Form
83.(1) A decision of the tribunal that finally decides matters the subject of 26
the proceeding-- 27
s 84 45 s 85
Queensland Building Tribunal
(a) must be in writing; and 1
(b) must state the decision, and the reasons for the decision; and 2
(c) may be published. 3
(2) To remove doubt, it is declared that this section does not apply to a 4
pre-hearing conference. 5
decision takes effect 6
When
84. A decision of the tribunal takes effect-- 7
(a) if all parties to a proceeding before the tribunal are present when 8
the decision is given or order is made--when the decision is 9
given or the order is made; or 10
(b) if 1 party only is not present when the decision is given or order is 11
made--when the party is served with the decision; or 12
(c) if 2 or more parties are not present when the decision is given or 13
order is made--when the decision is served on all of those 14
parties. 15
and enforcement of decisions 16
Registration
85.(1) A person (the "registrant") may register a decision by the 17
tribunal by filing in the registry of the appropriate court-- 18
(a) a copy of the decision certified as correct by the registrar; and 19
(b) the registrant's affidavit deposing to-- 20
(i) service of a certified copy of the decision on the party against 21
whom the decision was given; and 22
(ii) noncompliance, or the extent of noncompliance, with the 23
decision by that party. 24
(2) On registration of the decision in the appropriate court-- 25
(a) the decision has, for the purposes of enforcement, the same force 26
and effect; and 27
(b) proceedings may be taken on the decision; and 28
(c) the amount, if any, for which the decision is registered carries 29
s 86 46 s 86
Queensland Building Tribunal
interest; and 1
(d) the appropriate court has the same control over the enforcement of 2
the decision; 3
as if the decision had been originally given as a judgment of the appropriate 4
court and entered on the day of registration. 5
(3) No court fee is payable for filing the decision and affidavit in the 6
appropriate court's registry. 7
(4) In this section-- 8
"appropriate court" means-- 9
(a) the Magistrates Court if the tribunal's decision is within that 10
court's jurisdictional limit; or 11
(b) in any other case--the District Court. 12
(5) For subsection (2), the appropriate court is taken to have had 13
jurisdiction to make the decision. 14
of failure to comply with tribunal's orders and 15
Consequences
directions 16
86.(1) The tribunal may, in a proceeding to which a licensee is a party, 17
order that the licensee's licence be suspended or cancelled if the licensee 18
fails to comply with an order or direction of the tribunal within the time 19
allowed by the tribunal. 20
(2) Before ordering that a licence be suspended or cancelled, the tribunal 21
must give the licensee a reasonable opportunity to show cause why it should 22
not be cancelled or suspended. 23
(3) Subsection (2) does not apply to an order or direction made in 24
disciplinary proceedings under part 5, division 3.11 25
(4) An order under this section operates, of its own force, to suspend or 26
cancel the licence if the licensee fails to comply with the tribunal's order or 27
direction within the time allowed by the tribunal. 28
11 Part 5 (Particular jurisdiction of the tribunal), division 3 (Disciplinary
proceedings)
s 87 47 s 87
Queensland Building Tribunal
10--Further action in relation to a proceeding 1
Division
mistakes 2
Correcting
87.(1) The tribunal may correct a decision made by it if the decision 3
contains-- 4
(a) a clerical mistake; or 5
(b) an error arising from an accidental slip or omission; or 6
(c) a material miscalculation of figures or a material mistake in the 7
description of any person, thing or matter referred to in the 8
decision; or 9
(d) a defect of form. 10
(2) The correction may be made-- 11
(a) on the tribunal's own initiative; or 12
(b) on the written application of a party to the proceeding to which the 13
decision relates. 14
(3) An application under this section-- 15
(a) must be made within 14 days after the making of the decision; 16
and 17
(b) must be based on something mentioned in subsection (1)(a) to (d) 18
that is of sufficient significance to have influenced the outcome of 19
the proceeding. 20
(4) The tribunal need not conduct a hearing for the application. 21
(5) The correction-- 22
(a) may be made by the member who made the decision, the 23
chairperson or another member; and 24
(b) must be made only on the evidence placed before the tribunal at 25
the hearing of the proceeding in which the decision was made. 26
(6) The making of the application under this section does not, of itself, 27
stop the order or decision from taking effect according to its terms. 28
s 88 48 s 91
Queensland Building Tribunal
an order if party does not appear 1
Reopening
88.(1) A person in relation to whom an order is made may apply to the 2
tribunal for a review of the order if the person did not appear and was not 3
represented at the hearing at which the order was made. 4
(2) An application under this section must be made within 14 days after 5
the order is served on the person. 6
(3) A person may apply only once in relation to the same order. 7
(4) The tribunal may grant the application if satisfied that the applicant 8
had a reasonable excuse for not attending or for not being represented at the 9
hearing. 10
(5) On a review under this section, the tribunal may confirm, vary or 11
revoke the order. 12
an order if problems with interpretation or implementation 13
Reopening
89.(1) A party to a proceeding may apply to the tribunal to vary an order 14
if the party considers there are problems with interpreting or implementing 15
the order. 16
(2) The tribunal may grant the application if satisfied that there are 17
problems with interpreting or implementing the order. 18
(3) The tribunal may grant an application under subsection (2) only if it 19
has given all parties to the proceeding an opportunity to be heard on the 20
application. 21
to reopen order must not be made if appeal filed 22
Application
90. An application under sections 88 or 89 must not be made for a 23
proceeding in relation to which an appeal has been filed under section 92. 24
stated 25
Cases
91.(1) The tribunal may, on the application of a party to a proceeding or 26
on its own initiative, state a case on a question of law arising in the 27
proceeding for the opinion of the District Court. 28
(2) The District Court may decide a question of law stated under this 29
s 92 49 s 92
Queensland Building Tribunal
section as it considers just and make consequential or ancillary orders and 1
directions. 2
(3) If a question has been stated for the opinion of the District Court, the 3
tribunal must not, in the proceeding-- 4
(a) make a decision to which the question is relevant while the 5
reference is pending; or 6
(b) proceed in a way, or make a decision, that is inconsistent with the 7
District Court's opinion on the question. 8
9
Appeals
92.(1) A party to a proceeding before the tribunal may appeal to the 10
District Court against a decision of the tribunal that finally decides matters 11
the subject of the proceeding. 12
(2) An appeal must be filed within 28 days after the decision takes effect. 13
(3) An appeal must-- 14
(a) be accompanied by the tribunal's decision and reasons for 15
decision, if any; and 16
(b) refer to the tribunal's decision and reasons for decision, if any, 17
and any other relevant material and state the grounds for the 18
application. 19
(4) The appeal is by way of rehearing, unaffected by the tribunal's 20
decision, on the material before the tribunal and any further evidence 21
allowed by the District Court. 22
(5) The tribunal is not a party to the appeal but the party appealing must 23
serve a copy of the appeal and supporting documents on the tribunal within 24
7 days of filing the appeal in the District Court. 25
(6) On an appeal, the District Court may do any of the following-- 26
(a) confirm, annul, vary or reverse the tribunal's decision; or 27
(b) remit the case to the tribunal for further hearing or rehearing; or 28
(c) make consequential or ancillary orders or directions. 29
(7) The registrar of the District Court must give the tribunal a copy of the 30
court's judgment and reasons. 31
s 93 50 s 94
Queensland Building Tribunal
ART 5--PARTICULAR JURISDICTION OF THE 1
P
TRIBUNAL 2
Division 1--Building disputes 3
may decide building dispute 4
Tribunal
93.(1) A person involved in a building dispute may apply to the tribunal 5
to have the tribunal decide the dispute. 6
(2) Without limiting the tribunal's powers to resolve the dispute, the 7
tribunal may exercise 1 or more of the following powers-- 8
(a) order the payment of an amount found to be owing by 1 party to 9
another; 10
(b) order relief from payment of an amount claimed by 1 party from 11
another; 12
(c) award damages, including damages in the nature of interest; 13
(d) order restitution; 14
(e) declare any misleading, deceptive or otherwise unjust contractual 15
term to be of no effect, or otherwise vary a contract to avoid 16
injustice; 17
(f) avoid a policy of insurance under the statutory insurance scheme; 18
(g) order rectification or completion of defective or incomplete 19
building work; 20
(h) award costs. 21
major commercial building dispute may be heard by tribunal 22
When
94. However, a major commercial building dispute may be decided by 23
the tribunal only if the tribunal is satisfied all parties to the dispute consent to 24
it doing so. 25
s 95 51 s 97
Queensland Building Tribunal
to decide whether all parties consent 1
Procedure
95.(1) An application to start a proceeding for a major commercial 2
building dispute must be accompanied by the written consent of all parties 3
to the dispute. 4
(2) The written consent must include an acknowledgment by the 5
consenting party that the consent can not be withdrawn. 6
(3) The tribunal may, before another step is taken in the proceeding, 7
conduct a pre-hearing conference to decide whether there is another person 8
who should be joined as party to the dispute. 9
(4) If the tribunal decides that there is another person who should be 10
joined as party to the dispute, the tribunal-- 11
(a) must give the consenting parties an opportunity to obtain the 12
written consent of the other person; and 13
(b) may hear the dispute only if the other person consents. 14
(5) If the consenting parties obtain the consent of the other person, the 15
tribunal must join the other person as a party to the dispute. 16
(6) The consent of all parties to the dispute must be obtained before 17
another step is taken in the proceeding. 18
if another party discovered 19
Procedure
96.(1) This section applies if the tribunal becomes aware that there is 20
another person who should be joined as a party to a major commercial 21
building dispute (other than at a pre-hearing conference under section 95). 22
(2) The tribunal does not have jurisdiction to decide the dispute. 23
(3) The tribunal must order that the proceeding be removed to a court 24
under section 117(3).12 25
may not be withdrawn 26
Consent
97. A party that gives written consent to have a major commercial 27
12 Section 117 (Transfer of proceedings between tribunal and the courts)
s 98 52 s 98
Queensland Building Tribunal
building dispute heard and decided by the tribunal can not withdraw the 1
consent. 2
may make interim order 3
Tribunal
98.(1) Before finally deciding a building dispute, the tribunal may make 4
1 or more of the interim orders mentioned in subsections (2) to (4). 5
(2) The tribunal may make an order requiring a building contractor to 6
rectify or complete defined building work, or building work to be defined 7
by a process identified in the order, that is the subject of the dispute. 8
(3) The tribunal may make an order requiring a building owner, in 9
relation to the amount claimed to be owing from the building owner to a 10
building contractor, to do 1 or more of the following-- 11
(a) pay an amount decided by the tribunal into the tribunal's trust 12
account13 to be held until the tribunal is satisfied that the building 13
contractor has completed the building work; 14
(b) provide security of a type and for an amount decided by the 15
tribunal until the tribunal is satisfied that the building contractor 16
has completed the building work; 17
(c) pay an amount decided by the tribunal to the building contractor. 18
(4) The tribunal may make an order requiring a person, in relation to the 19
amount claimed to be owing from the person to a subcontractor, to do 1 or 20
more of the following-- 21
(a) pay an amount decided by the tribunal into the tribunal's trust 22
account to be held until the tribunal is satisfied that the 23
subcontractor has completed the building work; 24
(b) provide security of a type and for an amount decided by the 25
tribunal until the tribunal is satisfied that the subcontractor has 26
completed the building work; 27
(c) pay an amount decided by the tribunal to the subcontractor. 28
(5) On being satisfied the building work has been completed the tribunal 29
must order-- 30
13 Section 163 (Trust account)
s 99 53 s 100
Queensland Building Tribunal
(a) the amount paid into the tribunal's trust account under 1
subsection (3)(a) or (4)(a) be paid to the building contractor or 2
subcontractor; or 3
(b) the application of the security in satisfaction of the amount 4
decided by the tribunal under subsection (3)(b) or (4)(b) in favour 5
of the building contractor or subcontractor. 6
(6) However for subsection (5)(b), the tribunal may order that the 7
security be discharged if an amount equal to the amount of the security is 8
paid to the building contractor or subcontractor. 9
in tribunal stops action by authority 10
Proceeding
99.(1) If a proceeding about a building dispute is started in or removed 11
from a court to the tribunal-- 12
(a) the tribunal is to have the management of the dispute; and 13
(b) the authority must not act in relation to the dispute except as 14
allowed or required by section 100 or 101. 15
(2) To remove doubt, it is declared that nothing in this section affects a 16
direction that building work be rectified or completed issued by the authority 17
before the proceeding is started or removed. 18
by authority to tribunal 19
Reports
100.(1) If asked by the tribunal, the authority must give the tribunal a 20
report about a building dispute that includes-- 21
(a) details of building work the authority considers is defective or 22
incomplete; and 23
(b) an assessment of the time within which the rectification or 24
completion work should be finished; and 25
(c) other matters of a technical nature asked for by the tribunal. 26
(2) A report under subsection (1) must be given within the reasonable 27
time stated by the tribunal in the request. 28
s 101 54 s 103
Queensland Building Tribunal
to decide about rectification or completion work 1
Tribunal
101.(1) This section applies if-- 2
(a) a proceeding about a building dispute is started in, or removed 3
from a court to, the tribunal; and 4
(b) before the proceeding is started or removed, the authority has 5
acted in relation to the building dispute but has not issued a 6
direction that building work be rectified or completed. 7
(2) The authority may apply to the tribunal for an order that building 8
work be rectified or completed if the authority considers the building work 9
needs to be urgently rectified or completed. 10
(3) The application must be heard by the tribunal as an expedited hearing. 11
(4) Whether or not the authority applies under subsection (2), the 12
authority may also apply to the tribunal for a decision about whether it 13
would have been appropriate for the authority to have issued a direction to 14
rectify or complete building work if section 99 had not stopped the authority 15
from acting further in relation to the dispute. 16
(5) The tribunal must make a decision under subsection (4) if it hears the 17
proceeding mentioned in subsection (1). 18
may hear dispute while contract still in operation 19
Tribunal
102. The tribunal may make an order to resolve a building dispute even 20
though the contract under which the dispute arose has not been terminated 21
or finalised. 22
may hear dispute regardless of related criminal or 23
Tribunal
disciplinary action 24
103.(1) This section applies if matters arising in a building dispute 25
involve the contravention, or the alleged contravention, by a building 26
contractor of the Queensland Building Services Authority Act 1991 or 27
another Act. 28
(2) The tribunal may make an order to resolve the dispute whether or not 29
the building contractor-- 30
(a) has been charged with, convicted of or sentenced for an offence 31
s 104 55 s 104
Queensland Building Tribunal
arising out of the contravention; or 1
(b) is the subject of a pending disciplinary proceeding relating to the 2
contravention; or 3
(c) may be, or has been, subject to disciplinary action under 4
section 11114 relating to the contravention. 5
2--Proceedings for review 6
Division
decisions 7
Reviewable
104.(1) The tribunal may review the following decisions of the authority 8
made under the Queensland Building Services Authority Act 1991-- 9
(a) a decision to refuse an application for a licence or a permit; 10
(b) a decision to impose or vary a condition of a licence; 11
(c) a decision to suspend or cancel a licence; 12
(d) a decision that there are reasonable grounds for concern that a 13
licensee does not satisfy the relevant financial requirements for a 14
licence; 15
(e) a decision to direct or not to direct rectification or completion of 16
building work; 17
(f) a decision that building work undertaken at the direction of the 18
authority is or is not of a satisfactory standard; 19
(g) a decision about the scope of works to be undertaken under the 20
statutory insurance scheme to rectify or complete building work; 21
(h) a decision to disallow a claim under the statutory insurance 22
scheme wholly or in part; 23
(i) a decision that a domestic building contract has been validly 24
terminated having the consequence of allowing a claim for non- 25
completion under the statutory insurance scheme; 26
(j) a decision not to categorise an individual as a permitted individual 27
for a relevant event; 28
14 Section 111 (Orders for disciplinary action)
s 104 56 s 104
Queensland Building Tribunal
(k) a decision under the Queensland Building Services Authority Act 1
1991, section 56AF or 56AG15 that-- 2
(i) a person is an excluded individual or excluded company; or 3
(ii) an individual is still a director or secretary of, or an 4
influential person for, a company. 5
(2) However, the tribunal may not review the following decisions of the 6
authority made under the Queensland Building Services Authority Act 7
1991-- 8
(a) a decision to recover an amount under the Queensland Building 9
Services Authority Act 1991, section 7116; 10
(b) a decision to direct rectification or completion of building work by 11
a building contractor and any finding by the authority in arriving 12
at the decision if-- 13
(i) 28 days have elapsed from the date the direction to rectify or 14
complete was served on the building contractor and the 15
contractor has not, within that time, applied to the tribunal for 16
a review of the decision; and 17
(ii) the authority has-- 18
(A) started a disciplinary proceeding against the building 19
contractor by an application under division 3;17 or 20
(B) served a notice on the building contractor advising a 21
claim under the statutory insurance scheme has been 22
approved in relation to building work stated in the 23
direction; 24
(c) a decision about the scope of works to be undertaken under the 25
statutory insurance scheme to rectify or complete building work if 26
28 days have elapsed since the decision was served on the 27
15 Queensland Building Services Authority Act 1991, section 56AF (Procedure if
licensee is excluded individual) or 56AG (Procedure if licensee is excluded
company)
16 Queensland Building Services Authority Act 1991, section 71 (Recovery from
building contractor etc.)
17 Division 3 (Disciplinary proceedings)
s 105 57 s 106
Queensland Building Tribunal
building contractor and the contractor has not, within that time, 1
applied to the tribunal for a review of the decision. 2
for review 3
Application
105.(1) A person affected by a reviewable decision of the authority may 4
apply to the tribunal for a review of the decision. 5
(2) The application must be made within 28 days after the applicant 6
receives written notice of the decision. 7
(3) To remove doubt, it is declared that the application must be served on 8
the authority under section 29(4).18 9
(4) On an application for review of a reviewable decision, the tribunal 10
may confirm, annul, vary or reverse the decision under review and make 11
consequential orders and directions including the awarding of costs. 12
of operation of decision 13
Stay
106.(1) The tribunal may make an order staying the operation of a 14
decision in relation to which an application for review has been made to the 15
tribunal. 16
(2) The tribunal may make the order on the application of a party to the 17
review proceeding or on its own initiative. 18
(3) In making the order, the tribunal-- 19
(a) may require any undertaking as to costs or damages it considers 20
appropriate; and 21
(b) may make provision for the lifting of the order if stated conditions 22
are met. 23
(4) The tribunal may assess costs or damages mentioned in 24
subsection (3)(a). 25
18 Section 29 (Start of proceedings)
s 107 58 s 109
Queensland Building Tribunal
may try to reach settlement during review 1
Tribunal
107.(1) At any time after an application is made under section 105, the 2
tribunal may try to reach a negotiated settlement between the parties to the 3
review proceeding. 4
(2) The tribunal may adjourn the review proceeding to allow the parties to 5
try to reach a settlement. 6
Division 3--Disciplinary proceedings 7
may conduct disciplinary proceeding 8
Tribunal
108. The tribunal may, on application by the authority, conduct a 9
proceeding to decide whether proper grounds exist for taking disciplinary 10
action against a person under this division. 11
grounds for disciplinary action against a licensee 12
Proper
109. For section 108, proper grounds exist for taking disciplinary action 13
against a licensee if-- 14
(a) the licensee contravenes a requirement imposed under this Act, 15
the Queensland Building Services Authority Act 1991 or the 16
Domestic Building Contracts Act 1999; or 17
(b) the licensee is convicted of an indictable offence; or 18
(c) if a licensee is a corporation--a director or other person who is in 19
a position to control or substantially influence the conduct of the 20
corporation's affairs is not a fit and proper person to exercise that 21
control or influence; or 22
(d) the licensee is carrying on business under the licence in 23
partnership with a person who is not a fit and proper person to 24
have an interest in the business; or 25
(e) the licensee is bankrupt or insolvent; or 26
(f) the licensee has committed an offence involving fraud or 27
dishonesty relating to the business carried on under the licence; or 28
(g) the licensee knowingly helps a person to perform building work 29
s 110 59 s 110
Queensland Building Tribunal
in contravention of the Queensland Building Services Authority 1
Act 1991 or the Domestic Building Contracts Act 1999; or 2
(h) the licensee contravenes or is taken to have contravened the Fair 3
Trading Act 1989 in relation to building work carried out under 4
the licence; or 5
(i) the licensee is negligent or incompetent in carrying out building 6
work under the licence; or 7
(j) the licensee fails to comply with a direction of the authority under 8
the Queensland Building Services Authority Act 1991 to rectify or 9
complete building work; or 10
(k) the licensee contravenes a condition of the licence; or 11
(l) the licensee owes an amount to the authority and fails to comply 12
with a demand by the authority to pay the amount; or 13
(m) the licensee fails to comply with an order of the tribunal. 14
grounds for disciplinary action against person not a licensee 15
Proper
110. For section 108, proper grounds exist for taking disciplinary action 16
against a person who is not a licensee if the person-- 17
(a) carries out building work for which a licence is required without 18
holding a licence of the appropriate class; or 19
(b) has committed an offence involving fraud or dishonesty relating 20
to the performance of building work; or 21
(c) contravenes or is taken to have contravened the Fair Trading Act 22
1989 in relation to the performance of building work; or 23
(d) is negligent or incompetent in carrying out building work for 24
which a licence is required; or 25
(e) fails to comply with a direction of the authority under the 26
Queensland Building Services Authority Act 1991 to rectify or 27
complete building work. 28
s 111 60 s 111
Queensland Building Tribunal
for disciplinary action 1
Orders
111.(1) If the tribunal decides that proper grounds exist for taking 2
disciplinary action against a person, the tribunal may make 1 or more of the 3
orders mentioned in subsections (2) to (4). 4
(2) The tribunal may make an order imposing a penalty on the person of 5
not more than-- 6
(a) for an individual--an amount equivalent to 200 penalty units; or 7
(b) for a corporation--an amount equivalent to 1 000 penalty units. 8
(3) The tribunal may, in relation to defective or incomplete building work 9
carried out by the person for a building owner-- 10
(a) make an order that the person rectify or complete the work; or 11
(b) if the person is not appropriately licensed to rectify or complete 12
the work--make an order that the person have the work rectified 13
or completed by another person who is appropriately licensed; or 14
(c) make an order that the person pay the building owner an amount 15
sufficient to rectify or complete the work. 16
(4) If the person is a licensee, the tribunal may make an order-- 17
(a) reprimanding the licensee; or 18
(b) suspending the licence; or 19
(c) imposing conditions on the licence; or 20
(d) cancelling the licence. 21
(5) The authority may recover an amount ordered by the tribunal to be 22
imposed as a penalty as a debt due to it in the appropriate court. 23
(6) In this section-- 24
"appropriate court" means-- 25
(a) the Magistrates Court if the amount ordered by the tribunal's 26
decision is within that court's jurisdictional limit; or 27
(b) in any other case, the District Court. 28
s 112 61 s 113
Queensland Building Tribunal
4--Public Examinations 1
Division
may conduct public examination 2
Tribunal
112. The tribunal may, on application by the authority, conduct a public 3
examination-- 4
(a) that investigates the conduct or competence of a person who has 5
carried out building work or undertaken to carry out building 6
work; or 7
(b) that investigates whether a person-- 8
(i) meets the financial requirements imposed under the 9
Queensland Building Services Authority Act 1991 for the 10
licence held by the person; or 11
(ii) has the qualifications and experience required under the 12
Queensland Building Services Authority Act 1991 for the 13
licence held by the person; or 14
(iii) if the person is the nominated supervisor for a corporation 15
that holds a licence under the Queensland Building Services 16
Authority Act 1991--has the qualifications and experience 17
required for the licence held by the corporation; or 18
(iv) is a fit and proper person to hold a licence under the 19
Queensland Building Services Authority Act 1991; or 20
(v) if the person exercises control over a corporation that holds a 21
licence under the Queensland Building Services Authority 22
Act 1991--is a fit and proper person to exercise control over 23
the corporation; or 24
(vi) has breached a condition imposed on the person's licence. 25
before public examination starts 26
Procedure
113.(1) Before the start of a public examination, the tribunal must be 27
satisfied each person who is the subject of the public examination has 28
received the following in writing-- 29
(a) the grounds for the public examination; 30
s 114 62 s 114
Queensland Building Tribunal
(b) if the application is based on a complaint to the authority--the 1
substance of the complaint. 2
(2) On being satisfied under subsection (1), the tribunal must decide a 3
time and place for the public examination. 4
(3) If the person is a corporation, for the purposes of the public 5
examination, the tribunal may under section 6819 summons a director or an 6
executive officer of the corporation. 7
(4) The tribunal must serve on each person who is the subject of the 8
public examination and the authority written notice stating-- 9
(a) the time and place for the public examination decided by the 10
tribunal; and 11
(b) that oral and written submissions may be made to the public 12
examination. 13
5--Stop orders and suspension orders 14
Division
orders 15
Stop
114.(1) This section applies if the tribunal is satisfied, on application by 16
the authority, that building work is being carried out, or is about to be 17
carried out, in contravention of the Queensland Building Services Authority 18
Act 1991. 19
(2) The tribunal may, by order, prohibit the person who is carrying out, 20
or about to carry out, the building work (the "prohibited person") from 21
starting or continuing the building work. 22
(3) The tribunal may make an order under this section on application by 23
the authority made without notice to the prohibited person but, in that case, 24
the tribunal must allow the prohibited person a reasonable opportunity to 25
show cause why the order should not be confirmed. 26
(4) If the tribunal, after considering the prohibited person's evidence and 27
representations, if any, and any further evidence or representations of the 28
authority, is not satisfied the order should continue in force, the tribunal 29
19 Section 68 (Tribunal may summons witness)
s 115 63 s 115
Queensland Building Tribunal
must rescind the order. 1
(5) A person must not carry out building work in contravention of an 2
order under this section. 3
Maximum penalty--500 penalty units. 4
orders 5
Suspension
115.(1) If the tribunal is satisfied, on application by the authority, that a 6
licence should be suspended, the tribunal may, by order, suspend the 7
licence-- 8
(a) for the period the tribunal considers just; or 9
(b) until the holder of the licence (the "suspended person") 10
complies with a condition imposed on the licence by the authority 11
or tribunal. 12
(2) The order may direct the suspended person to deliver the licence to 13
the authority and include any other directions the tribunal considers 14
necessary or convenient to give effect to the order. 15
(3) The tribunal may make an order under this section on application 16
made without notice to the suspended person, but, in that case, the tribunal 17
must subsequently allow the suspended person a reasonable opportunity to 18
show cause why the order should be rescinded. 19
(4) If the tribunal after considering the suspended person's evidence and 20
representations, if any, and any further evidence or representations of the 21
authority, is not satisfied the order should continue in force, the tribunal 22
must rescind the order. 23
(5) The holder of a licence who contravenes a direction under 24
subsection (2) commits an offence. 25
Maximum penalty--80 penalty units. 26
s 116 64 s 117
Queensland Building Tribunal
Division 6--Decisions about debts arising from statutory insurance 1
scheme 2
about debts arising from statutory insurance scheme 3
Decisions
116.(1) The authority may recover a debt under the Queensland Building 4
Services Authority Act 1991, section 7120 by application to the tribunal under 5
this section. 6
(2) The tribunal may exercise 1 or more of the following powers-- 7
(a) order the payment of an amount the tribunal has found to be 8
owing to the authority; 9
(b) order the payment of interest on the amount mentioned in 10
paragraph (a); 11
(c) order the payment of costs; 12
(d) order that amounts mentioned in paragraphs (a), (b) and (c) be 13
paid by instalments or another way directed by the tribunal. 14
Division 7--Transfer of proceedings 15
of proceedings between tribunal and the courts 16
Transfer
117.(1) If a proceeding is brought in a court, and the proceeding could be 17
heard by the tribunal under this Act the court must, on the application of a 18
party, order that the proceeding be removed to the tribunal. 19
(2) To remove doubt, it is declared that if proceedings relating to a major 20
commercial building dispute are brought in a court, the court may order that 21
the proceeding be removed to the tribunal only if all parties to the dispute 22
apply for the order. 23
(3) If the tribunal is of the opinion that it does not have jurisdiction to 24
hear all matters in a proceeding before the tribunal, the tribunal may order 25
20 Queensland Building Services Authority Act 1991, section 71 (Recovery from
building contractor etc.
s 118 65 s 119
Queensland Building Tribunal
that all or part of the proceeding be removed to a court. 1
(4) The tribunal may make an order under subsection (3) even though the 2
proceeding has previously been removed from a court to the tribunal under 3
subsection (1). 4
(5) However, if the tribunal makes an order under subsection (3), a court 5
must not make an order under subsection (1) relating to the proceeding. 6
PART 6--DISPUTE RESOLUTION PROCEDURES 7
AVAILABLE TO TRIBUNAL 8
Division 1--General 9
may conduct hearings 10
Tribunal
118. The tribunal may conduct a hearing to decide any matter within its 11
jurisdiction. 12
of proceedings 13
Hearing
119.(1) If the tribunal conducts a hearing, it must allow the parties a 14
reasonable opportunity-- 15
(a) to call or give evidence; and 16
(b) to examine or cross-examine witnesses; and 17
(c) to make submissions to the tribunal. 18
(2) However, the tribunal may-- 19
(a) refuse to allow a party to call evidence or cross-examine about a 20
matter if the tribunal considers there is already sufficient evidence 21
about the matter before the tribunal; and 22
(b) decide whether evidence is given orally or in writing and whether 23
it is to be given on oath or to be by affidavit; and 24
(c) limit the time for a proceeding and may allocate the time equally 25
s 120 66 s 121
Queensland Building Tribunal
between the parties. 1
(3) If a party fails to appear at a time and place notified by the tribunal, 2
the tribunal may proceed in the party's absence. 3
(4) This section is subject to section 130.21 4
of other divisions 5
Purpose
120. The other divisions of this part set out other ways of resolving 6
proceedings. 7
Division 2--Decision by default 8
by default for debt 9
Decision
121.(1) This section applies if an applicant has filed an application under 10
this Act to recover a liquidated amount from a respondent and the 11
respondent has not filed a defence to the application within the period 12
required. 13
(2) The applicant may file a request for an order in favour of the applicant 14
(a "decision by default") in the approved form for an amount limited to-- 15
(a) the amount claimed in the application starting the proceeding; and 16
(b) the fee paid for the application; and 17
(c) legal costs based on a scale prescribed under a regulation; and 18
(d) interest on the amount claimed at the rate and calculated in the 19
way prescribed under a regulation. 20
(3) If the applicant files a request for a decision by default under this 21
section the registrar may give the decision. 22
(4) A decision by default given under subsection (3) is taken to be a 23
decision of the tribunal. 24
(5) The applicant must prove service of the application on the respondent 25
before a decision by default may be given under this section. 26
21 Section 130 (Procedure for expedited hearing)
s 122 67 s 123
Queensland Building Tribunal
aside decision by default 1
Setting
122. The tribunal may set aside or amend a decision by default under 2
section 121 on terms, including terms about costs and the giving of security, 3
the tribunal considers appropriate. 4
Division 3--Mediation 5
may appoint mediator 6
Tribunal
123.(1) If the tribunal considers a proceeding relating to a building 7
dispute or a review of the authority's decision is suitable for mediation, the 8
tribunal may appoint a mediator or mediators to try to achieve a negotiated 9
settlement of the proceeding. 10
(2) If all the parties to a proceeding request the tribunal to appoint a 11
particular mediator, the tribunal may appoint that mediator. 12
(3) The powers of the tribunal under subsection (1) or (2) may be 13
exercised by the registrar. 14
(4) If the registrar exercises the tribunal's power under subsection (3) the 15
power is taken to be exercised by the tribunal. 16
(5) If there is an additional cost in appointing a mediator under 17
subsection (2) when compared with the cost of a mediator not requested by 18
the parties, the additional cost must be paid by the parties. 19
(6) The mediator may be a member of the tribunal or another person. 20
(7) The tribunal may appoint a person as mediator only if the tribunal 21
considers the person has suitable qualifications and experience to be a 22
mediator. 23
24
Example of `suitable qualifications and experience'--
25
Successful completion of a recognised training course in mediation and
26
experience in a business or profession relevant to the proceeding the subject of the
27
mediation.
(8) A mediator appointed under this section has the protection and 28
immunity of a member of the tribunal. 29
s 124 68 s 126
Queensland Building Tribunal
of mediation 1
Method
124. The tribunal may, in appropriate cases, allow a mediator to conduct 2
a mediation by means of telephone conferencing, video conferencing or 3
another form of communication that allows reasonably contemporaneous 4
and continuous communication between persons taking part in the 5
mediation. 6
about mediation 7
Matters
125.(1) Anything said or done during the mediation process is 8
inadmissible in any other proceeding of the tribunal. 9
(2) Despite subsection (1), if a building dispute is not settled at 10
mediation, the mediator must obtain the following from each party and 11
report them to the tribunal-- 12
(a) the issues each party considers are the issues in dispute; and 13
(b) the orders each party seeks from the tribunal. 14
(3) In a hearing before the tribunal, the tribunal is not limited to 15
considering the issues reported under subsection (2). 16
(4) If a building dispute is, or some of the issues in the dispute are, 17
settled, the mediator must report the terms of the settlement to the tribunal. 18
(5) The tribunal may make a decision in terms of the settlement, and may 19
make consequential orders or give consequential directions. 20
(6) If requested by the parties, the tribunal must ensure the terms of the 21
settlement remain confidential and not be included in a register or other 22
record available for inspection under this Act. 23
precluded from tribunal hearing 24
Mediator
126.(1) If a mediator is a member of the tribunal, the member must not 25
hear a proceeding before the tribunal about the dispute or review that was 26
the subject of the mediation. 27
(2) Subsection (1) does not apply to a pre-hearing conference. 28
s 127 69 s 129
Queensland Building Tribunal
limit for mediation before expedited hearing 1
Time
127. If the registrar has set a proceeding down for mediation followed on 2
the same day by an expedited hearing the registrar must set a time limit of 3
not more than 2.5 hours for the mediation. 4
4--Expedited hearings 5
Division
hearing of domestic building disputes 6
Expedited
128.(1) The tribunal must decide a minor domestic building dispute at an 7
expedited hearing if the dispute has been to mediation but has not been 8
settled. 9
(2) However, the tribunal may decide it is inappropriate for the dispute to 10
be decided at an expedited hearing if the tribunal considers the dispute is too 11
complex to be properly dealt with at an expedited hearing. 12
13
Example of `too complex to be properly dealt with'--
14
The dispute involves complex legal and contractual issues for which the tribunal is
15
unaware of any authoritative precedent.
(3) The tribunal may decide a domestic building dispute that is not a 16
minor domestic building dispute at an expedited hearing only if-- 17
(a) all parties to the proceeding apply to the tribunal for the matter to 18
be dealt with at an expedited hearing; and 19
(b) the tribunal considers it appropriate for the dispute to be decided at 20
an expedited hearing. 21
minor commercial building disputes may be expedited 22
Certain
129.(1) The tribunal may conduct an expedited hearing for a minor 23
commercial building dispute between a subcontractor and another person 24
if-- 25
(a) neither the claim nor any counterclaim exceeds $10 000; and 26
(b) the dispute relates only to a claim for moneys owing by a person 27
to the subcontractor for building work completed by the 28
subcontractor under a written contract; and 29
s 130 70 s 130
Queensland Building Tribunal
(c) the subcontractor files an application for an expedited hearing, a 1
copy of the contract and an affidavit by the subcontractor stating 2
that-- 3
(i) the building work under the contract has been completed by 4
the subcontractor to the standard required under the contract; 5
and 6
(ii) a claim for payment payable under the contract has been 7
given to the other person by the subcontractor; and 8
(iii) the amount claimed by the subcontractor has not been paid 9
by the other person; and 10
(iv) no complaint about the building work under the contract has 11
been made to the subcontractor by the other person. 12
(2) A hearing under this section may proceed only if the subcontractor 13
has given the other person a copy of the application and all documents filed 14
by the subcontractor at least 5 days before the hearing. 15
for expedited hearing 16
Procedure
130.(1) Before an expedited hearing each party to the hearing must, if 17
directed by the tribunal-- 18
(a) file statements of witnesses, expert reports and other documents 19
the party intends to rely on; and 20
(b) exchange these with the other parties within the time limit set by 21
the tribunal. 22
(2) At the expedited hearing-- 23
(a) cross-examination is at the discretion of the tribunal; and 24
(b) the parties must, as directed by the tribunal, arrange for the 25
attendance of witnesses, including expert witnesses to clarify or 26
expand on evidence in the documents filed; and 27
(c) the tribunal may limit the time for the hearing and allocate the 28
time equally between the parties. 29
s 131 71 s 132
Queensland Building Tribunal
5--Summary decision 1
Division
decision for applicant 2
Summary
131.(1) An applicant who starts a proceeding in the tribunal for a matter 3
mentioned in section 30(1)22 may, at any time after a respondent serves a 4
defence on the applicant, apply to the tribunal under this division for a 5
decision in favour of the applicant ( a "summary decision"). 6
(2) The tribunal may give the summary decision for the applicant for all 7
or part of the relief claimed in the application if the tribunal is satisfied-- 8
(a) the applicant has complied with this division and is entitled to all 9
or part of the relief sought in the application; and 10
(b) the respondent has no defence other than in relation to the amount 11
of the claim; and 12
(c) there is no need for a hearing by the tribunal of the proceeding or 13
of that part of the proceeding for which the summary decision is 14
sought. 15
(3) However, if the amount of the claim can not be calculated, because, 16
for example, there is insufficient evidence available to satisfy the tribunal of 17
the amount of the claim, the tribunal may instead-- 18
(a) order the amount of the claim to be decided in the way the tribunal 19
directs; and 20
(b) give leave for the summary decision to be given for the amount 21
decided and costs. 22
(4) A second or later application under this division may be made with 23
the tribunal's leave. 24
decision for respondent 25
Summary
132.(1) The respondent against whom a proceeding is started by 26
application in the tribunal may at any time apply to the tribunal under this 27
division for a decision in favour of the respondent (also a "summary 28
decision"). 29
22 Section 30 (Defence and counterclaim)
s 133 72 s 134
Queensland Building Tribunal
(2) The tribunal may give the summary decision or make any other 1
decision the tribunal considers appropriate if satisfied-- 2
(a) no reasonable cause of action is disclosed against the respondent; 3
or 4
(b) the proceeding is frivolous, vexatious or an abuse of the process 5
of the tribunal; or 6
(c) the respondent has a defence to the proceeding. 7
not disposed of by summary decision 8
Claims
133. The giving of a summary decision under this division that does not 9
dispose of all claims in issue in a proceeding (including a counterclaim) 10
does not prevent the continuation of any part of the proceeding not disposed 11
of by the summary decision. 12
13
Evidence
134.(1) In a proceeding under this division, evidence must be given by 14
affidavit made by the party giving the evidence. 15
(2) Despite subsection (1), on the hearing of an application under this 16
division, the tribunal may, on terms the tribunal considers appropriate, 17
permit further evidence to be given by affidavit or otherwise by or for a 18
party. 19
(3) The affidavit may contain statements of information and belief if the 20
person making it states the sources of the information and the reasons for 21
the belief. 22
(4) A party applying for a summary decision under this division must 23
swear in support of the application that in the party's belief the party against 24
whom the summary decision is sought has no defence to the relief sought in 25
the application. 26
(5) If a party to an application under this division intends to rely on a 27
document, the document must be identified in the affidavit. 28
(6) A person who makes an affidavit to be read in an application under 29
this division may not be cross-examined without the leave of the tribunal. 30
(7) An affidavit giving evidence in defence of a party's claim must 31
s 135 73 s 138
Queensland Building Tribunal
identify the parts of the claim for which the evidence is claimed to be a 1
defence. 2
3
Service
135. Subject to section 134(2), a party applying for a summary decision 4
against another party must serve the other party with the application and a 5
copy of each affidavit and any exhibits mentioned in the affidavit at least 6
4 business days before the date for hearing shown on the application. 7
of parties and witnesses 8
Examination
136. The tribunal may order any of the following to attend the tribunal to 9
be examined on oath or to produce to the tribunal all relevant documents and 10
records-- 11
(a) a party applying for a summary decision; 12
(b) a party defending the application for a summary decision; 13
(c) a person who made an affidavit for a party; 14
(d) a witness for a party; 15
(e) for an incorporated party, an officer of the corporation. 16
17
Directions
137.(1) This section applies if-- 18
(a) the tribunal dismisses an application for a summary decision; or 19
(b) a summary decision does not dispose of all claims in a 20
proceeding. 21
(2) The tribunal may give directions or impose conditions about the 22
future conduct of the proceeding. 23
osts 24
C
138.(1) This section applies if it appears to the tribunal that a party who 25
applied for a summary decision was, or ought reasonably to have been, 26
aware that another party relied on a point that would entitle the other party to 27
s 139 74 s 141
Queensland Building Tribunal
have the application dismissed. 1
(2) The tribunal may dismiss the application and order costs to be paid 2
within a time specified by the tribunal. 3
(3) Subsection (2) does not limit the tribunal's powers relating to costs. 4
of enforcement 5
Stay
139.(1) The tribunal may order a stay of the enforcement of a summary 6
decision given under this division for the time and on the terms the tribunal 7
considers appropriate. 8
(2) If a summary decision has been registered in a court under 9
section 85,23 a stay of that decision has no effect until it is filed in the court. 10
aside summary decision 11
Setting
140. The tribunal may set aside or vary a summary decision given 12
against a party who did not appear on the hearing of the application for the 13
decision. 14
Division 6--Case appraisals 15
to case appraiser 16
Referral
141.(1) The tribunal may refer a proceeding to a person (the "case 17
appraiser") to decide all issues in dispute between the parties. 18
(2) The tribunal may act under subsection (1) only if all parties to the 19
proceeding apply to the tribunal to have the proceeding referred to a case 20
appraiser. 21
(3) If all the parties to a proceeding request the tribunal to appoint a 22
particular case appraiser, the tribunal may appoint that case appraiser. 23
(4) If there is an additional cost in appointing a case appraiser under 24
subsection (3) when compared with the cost of a case appraiser not 25
requested by the parties, the additional cost must be paid by the parties. 26
23 Section 85 (Registration and enforcement of decisions)
s 142 75 s 144
Queensland Building Tribunal
(5) The case appraiser may be a member of the tribunal or another 1
person. 2
(6) The tribunal may appoint a person as case appraiser only if the 3
tribunal considers the person has suitable qualifications and experience to be 4
a case appraiser. 5
of case appraiser 6
Jurisdiction
142.(1) The case appraiser for the proceeding referred has the power of 7
the tribunal to decide the issues in dispute but may only give a decision that 8
could have been given in the proceeding if it had been decided by the 9
tribunal. 10
(2) Subsection (1) is subject to section 150.24 11
for case appraisals 12
Procedure
143. The case appraiser for a proceeding-- 13
(a) must consider all documents filed and served on the parties to the 14
proceeding; and 15
(b) unless the case appraiser considers it necessary to clarify or 16
expand on evidence in the documents being considered, must 17
conduct the case appraisal-- 18
(i) in the absence of the parties; and 19
(ii) without oral evidence from witnesses; and 20
(c) if the case appraiser allows parties to be present, must not allow 21
cross-examination unless the case appraiser considers it necessary 22
to clarify or expand on evidence in the documents being 23
considered. 24
appraiser may seek information 25
Case
144.(1) A case appraiser may ask anyone for information and may 26
obtain, and act on, information obtained from anyone on any aspect of the 27
24 Section 150 (Dissatisfied party may elect to go to hearing of tribunal)
s 145 76 s 147
Queensland Building Tribunal
proceeding. 1
(2) However, if obtaining the information involves extra cost, the case 2
appraiser must first obtain-- 3
(a) the parties' agreement to pay the extra cost; or 4
(b) the tribunal's leave. 5
(3) If the tribunal gives leave, the tribunal must also-- 6
(a) order the parties to pay the extra cost; and 7
(b) state to whom and by when the payment must be made. 8
(4) The case appraiser must disclose the substance of the information to 9
the parties. 10
appraisal may be recorded 11
Case
145.(1) A case appraiser may have the case appraisal recorded if the case 12
appraiser considers it appropriate, in the special circumstances of the case. 13
(2) If the case appraisal is to be recorded, the case appraiser must decide 14
the extent to which, and the way in which, the recording may be done. 15
appraiser's decision 16
Case
146.(1) A case appraiser's decision must be in writing, but the case 17
appraiser need not give reasons for the decision. 18
(2) However, a case appraiser may, at any stage of a case appraisal 19
decline to proceed further with the appraisal. 20
21
Example for subsection (2)--
22
The dispute proves to be unsuitable for case appraisal.
(3) A copy of the decision must be given to each party. 23
appraiser's decision on costs in the dispute 24
Case
147.(1) A case appraiser has the same power to award costs in the 25
dispute as the tribunal would have had if the tribunal had heard and decided 26
the dispute. 27
s 148 77 s 150
Queensland Building Tribunal
(2) A case appraiser's decision must include a decision on costs in the 1
dispute. 2
appraiser's decision final unless election made 3
Case
148. A case appraiser's decision about a dispute is final, unless an 4
election to have the dispute heard by the tribunal is made under section 150. 5
appraiser to file report and decision 6
Case
149.(1) As soon as practicable after a case appraisal has finished, the case 7
appraiser must file-- 8
(a) a report about the case appraisal; and 9
(b) the case appraiser's decision, if any; and 10
(c) if the case appraisal was recorded, a copy of the record. 11
(2) If the case appraiser makes a decision about the dispute or any issue 12
in the dispute, the case appraiser must-- 13
(a) place the written decision in a sealed container, for example, an 14
envelope; and 15
(b) mark the container with a distinguishing number; and 16
(c) endorse the container `Not to be opened without an order of the 17
tribunal'; and 18
(d) file the container. 19
(3) The container may be opened only if the tribunal orders it to be 20
opened. 21
(4) No fee is payable for filing anything under this section. 22
party may elect to go to hearing of tribunal 23
Dissatisfied
150.(1) A party who is dissatisfied with a case appraiser's decision about 24
a dispute may elect to have the dispute heard by the tribunal. 25
(2) To elect to have a dispute heard by the tribunal, the dissatisfied party 26
must file an election within 14 days after the party receives a copy of the 27
decision. 28
s 151 78 s 152
Queensland Building Tribunal
(3) If an election is filed as mentioned in subsection (1)-- 1
(a) the case appraiser's decision ceases to have effect except for 2
section 151; and 3
(b) the dispute must be decided by the tribunal as if it had never been 4
referred to the case appraiser. 5
(4) To remove doubt, it is declared that anything said or done during the 6
case appraisal is inadmissible in the hearing of the dispute by the tribunal. 7
appraiser's decision may affect costs 8
Case
151.(1) If the tribunal's decision in the dispute is not more favourable 9
overall to a party filing an election than the case appraiser's decision in the 10
dispute was to the party, the costs of the proceeding including the case 11
appraisal must be awarded against the party. 12
(2) If all parties to a dispute elect to have the dispute heard by the tribunal, 13
the case appraiser's decision has no effect on the awarding of costs. 14
7--Pre-hearing conferences 15
Division
conferences 16
Pre-hearing
152.(1) The tribunal may require the parties to a proceeding to attend 1 or 17
more pre-hearing conferences before the tribunal before the proceeding is 18
heard by the tribunal. 19
(2) At a pre-hearing conference the tribunal may do any of the 20
following-- 21
(a) identify and clarify the issues in dispute in the proceeding; 22
(b) promote a settlement of the proceeding; 23
(c) identify the questions of fact and law to be decided by the tribunal; 24
(d) if the proceeding is not settled, give directions about the conduct 25
of the proceeding; 26
(e) make the orders and give the directions the tribunal considers 27
appropriate to manage the proceeding or resolve the dispute the 28
subject of the proceeding. 29
s 153 79 s 154
Queensland Building Tribunal
1
Examples for subsection (2)(e)--
2
The tribunal may order a party to pay an amount into the tribunal's
3
trust account pending settlement of, or a decision in relation to, the
4
dispute.
(3) Written notice of a pre-hearing conference must be given to each 5
party by the registrar. 6
(4) Unless the tribunal otherwise directs, a pre-hearing conference must 7
be held in private. 8
(5) The procedure for a pre-hearing conference is at the discretion of the 9
tribunal. 10
is required to attend pre-hearing conferences 11
Who
153. The tribunal may require a party to attend a pre-hearing conference 12
personally or by a representative who has authority to settle the proceeding 13
on behalf of the party. 14
from pre-hearing conferences inadmissible 15
Evidence
154. Evidence of anything said or done in the course of a pre-hearing 16
conference is inadmissible in any hearing before the tribunal in the 17
proceeding, except-- 18
(a) if all parties agree to the admission of the evidence; or 19
(b) evidence of directions given at a pre-hearing conference or the 20
reasons for the directions; or 21
(c) evidence of anything said or done relevant to-- 22
(i) a proceeding for an offence in relation to the giving of false 23
or misleading information; or 24
(ii) a proceeding under section 79;25 or 25
(iii) a proceeding relating to an order made under 26
section 156(b)(i). 27
25 Section 79 (Contempt of tribunal)
s 155 80 s 157
Queensland Building Tribunal
member may hear proceeding after presiding at a pre-hearing 1
When
conference 2
155.(1) A member who presides at a pre-hearing conference for a 3
proceeding that attempts to promote a settlement of the proceeding-- 4
(a) may disqualify himself or herself from constituting the tribunal 5
that hears the proceeding; and 6
(b) must not constitute the tribunal that hears the proceeding if a party 7
to the proceeding objects to the member hearing the proceeding. 8
(2) At the end of a pre-hearing conference that attempts to promote a 9
settlement of the proceeding the presiding member must advise the parties 10
of their rights under subsection (1)(b). 11
(3) An objection under subsection (1)(b) must be made within 48 hours 12
of receiving the advice mentioned in subsection (2) or before the start of the 13
hearing of the proceeding, whichever is the shorter period. 14
of a party to attend a pre-hearing conference 15
Failure
156. If a party does not attend a pre-hearing conference-- 16
(a) the conference may proceed at the appointed time in the party's 17
absence; and 18
(b) if all the parties present agree, the tribunal may-- 19
(i) decide the proceeding adversely to the absent party and make 20
appropriate orders; or 21
(ii) direct that the absent party be struck out of the proceeding. 22
Division 8--Settlement Offers 23
settlement offers 24
Making
157.(1) A party to a proceeding may offer to settle the proceeding in so 25
far as it relates to another party. 26
(2) The offer must be made by signed writing served on the party to 27
whom the offer relates. 28
s 158 81 s 160
Queensland Building Tribunal
(3) A party may make more than one offer. 1
(4) If an offer provides for the payment of an amount by a party to 2
another person, the offer must state when the amount is to be paid and to 3
whom. 4
(5) Payment under subsection (4) may be into the tribunal's trust 5
account26 to be disbursed in accordance with the terms of the settlement. 6
of offer 7
Effect
158.(1) An offer to settle under this division is taken to be an offer made 8
without prejudice. 9
(2) The tribunal must not be told of the offer until after it has made its 10
decision on the matters in dispute. 11
settlement offers 12
Accepting
159.(1) An offer to settle must remain open until immediately before the 13
tribunal delivers its decision, or until the expiry of a period stated in the 14
offer, whichever is the shorter period. 15
(2) If a period is stated, that period must be at least 14 days from the date 16
of service of the offer. 17
(3) A party can only accept an offer by serving the party who made the 18
offer with a signed notice of acceptance of the offer. 19
(4) A party may accept an offer even though it has made a counteroffer. 20
if accepted offer is not complied with 21
Consequences
160.(1) This section applies if an offer is accepted, but the party who 22
made the offer does not comply with its terms. 23
(2) The tribunal, at the request of a party who accepted the offer, may-- 24
(a) make an order giving effect to the terms of the offer; or 25
(b) if the party making the offer was the applicant-- 26
26 Section 163 (Trust account)
s 161 82 s 161
Queensland Building Tribunal
(i) dismiss the proceeding; or 1
(ii) if a party who accepted the offer made a counterclaim before 2
the offer was made, make an order awarding the party any or 3
all of the things asked for in the counterclaim; or 4
(c) if a party who accepted the offer is the applicant, make an order 5
awarding the applicant any or all of the things asked for in the 6
application. 7
must order party to pay costs if certain offers to settle 8
Tribunal
rejected 9
161.(1) This section applies if-- 10
(a) a party to a proceeding serves another party to the proceeding with 11
an offer in writing to settle the matters in dispute between the 12
parties; and 13
(b) the other party does not accept the offer within the time the offer 14
is open; and 15
(c) the offer complies with this division; and 16
(d) in the opinion of the tribunal, the decision of the tribunal on the 17
matters in dispute is not more favourable to the other party than 18
the offer. 19
(2) The tribunal must award the party who made the offer all reasonable 20
costs incurred by that party in conducting the proceeding after the offer was 21
made. 22
(3) If a proceeding involves more than 2 parties, this section applies only 23
if the acceptance of the offer would have resulted in the settlement of the 24
matters in dispute between all the parties. 25
(4) In deciding whether a decision is or is not more favourable to a party 26
than an offer, the tribunal must-- 27
(a) take into account any costs it would have awarded on the date the 28
offer was served; and 29
(b) disregard any interest or costs it awarded relating to any period 30
after the date the offer was served. 31
s 162 83 s 164
Queensland Building Tribunal
PART 7--MISCELLANEOUS 1
and staffing of tribunal 2
Finance
162.(1) The tribunal is part of the department for the Financial 3
Administration and Audit Act 1977. 4
(2) However, the costs of the tribunal are to be paid from the authority's 5
General Statutory Fund under the Queensland Building Services Authority 6
Act 1991 at the written direction of the Minister. 7
account 8
Trust
163.(1) The tribunal must maintain a trust account to receive and hold-- 9
(a) amounts paid to the trust account under sections 98 and 157;27 10
and 11
(b) amounts ordered by the tribunal to paid to the trust account for a 12
proceeding. 13
(2) The tribunal must pay amounts from the trust account-- 14
(a) for amounts paid to the trust account under sections 98 and 157, 15
in accordance with those sections; and 16
(b) for amounts ordered by the tribunal to be paid to the trust account 17
for a proceeding, as ordered by the tribunal. 18
(3) Interest on the trust account is to be applied to the cost of keeping the 19
account with any balance relating to interest as at 30 June each year to be 20
paid to the authority. 21
report 22
Annual
164.(1) As soon as practicable each year, but not later than 30 September, 23
the chairperson must give the Minister a report containing-- 24
(a) a review of the operation of the tribunal during the 12 months 25
ending on the preceding 30 June; and 26
27 Sections 98 (Tribunal may make interim order) and 157 (Making settlement
offers)
s 165 84 s 168
Queensland Building Tribunal
(b) proposals for improving the operation of, and forecasts of the 1
workload of, the tribunal in the 12 months following that 30 June. 2
(2) The Minister must cause a copy of the report to be laid before the 3
Parliament within 14 sitting days after its receipt by the Minister. 4
for offences 5
Proceedings
165. A prosecution for an offence against this Act is by way of summary 6
proceedings under the Justices Act 1886. 7
on time for starting summary proceedings 8
Limitation
166. A proceeding for an offence against this Act must start-- 9
(a) within 1 year after the commission of the offence; or 10
(b) within 6 months after the offence comes to the complainant's 11
knowledge, but within 3 years after the commission of the 12
offence. 13
to be paid to authority 14
Penalties
167. All penalties recovered as a result of proceedings for offences 15
against this Act brought by the authority must be ordered to be paid to the 16
authority. 17
out prohibited 18
Contracting
168.(1) A contract or agreement is void to the extent to which it-- 19
(a) is contrary to this Act; or 20
(b) purports to annul, exclude, restrict or otherwise change the effect 21
of a provision of this Act. 22
(2) Subsection (1) does not apply to an agreement that a building dispute 23
be referred to arbitration if the agreement is entered into after the dispute 24
arises. 25
(3) Nothing in this section prevents the parties to a contract or agreement 26
from including provisions in the contract or agreement that impose greater 27
s 169 85 s 170
Queensland Building Tribunal
or more onerous obligations on a person than are imposed under this Act. 1
(4) This section applies to contracts or agreements entered into before or 2
after the commencement of this Act. 3
officers must ensure corporation complies with Act 4
Executive
169.(1) The executive officers of a corporation must ensure the 5
corporation complies with this Act. 6
(2) If a corporation commits an offence against a provision of this Act, 7
each of the corporation's executive officers also commits an offence, 8
namely, the offence of failing to ensure that the corporation complies with 9
the provision. 10
Maximum penalty--the penalty for the contravention of the provision by an 11
individual. 12
(3) Evidence that the corporation has been convicted of an offence against 13
a provision of this Act is evidence that each of the executive officers 14
committed the offence of failing to ensure that the corporation complies 15
with the provision. 16
(4) However, it is a defence for an executive officer to prove-- 17
(a) if the officer was in a position to influence the conduct of the 18
corporation in relation to the offence--the officer exercised 19
reasonable diligence to ensure the corporation complied with the 20
provision; or 21
(b) the officer was not in a position to influence the conduct of the 22
corporation in relation to the offence. 23
Review excluded for minor domestic building disputes 24
Judicial
170.(1) The exercise by the tribunal of its powers in relation to a 25
proceeding for a minor domestic building dispute is not subject to the 26
Judicial Review Act 1991. 27
(2) Subsection (1) does not apply if-- 28
(a) the tribunal had or has no jurisdiction under the Act to hear and 29
decide the proceeding; or 30
s 171 86 s 174
Queensland Building Tribunal
(b) a breach of the rules of natural justice happened in relation to a 1
party to the proceeding. 2
of signature unnecessary 3
Proof
171. A signature purporting to be the signature of the registrar or a 4
member of the tribunal is evidence of the signature it purports to be. 5
aids 6
Evidentiary
172.(1) A certificate signed by the registrar certifying anything about the 7
contents of the register is evidence of the thing stated. 8
(2) A certificate by the registrar stating that a stated document is a record 9
or document, a copy of a record or document, or an extract from a record or 10
document, kept under this Act is evidence of the matter. 11
from liability 12
Protection
173.(1) An official does not incur civil liability for an act done, or 13
omission made, honestly and without negligence under this Act. 14
(2) If subsection (1) prevents a civil liability attaching to an official, the 15
liability attaches instead to the State. 16
(3) In this section-- 17
"official" means-- 18
(a) a member of the staff of the tribunal; or 19
(b) a person authorised under section 7728 by the tribunal. 20
21
Forms
174. The chairperson may approve forms for use under this Act. 22
28 Section 77 (Entry and inspection of property)
s 175 87 s 177
Queensland Building Tribunal
power 1
Regulation-making
175.(1) The Governor in Council may make regulations under this Act. 2
(2) Without limiting subsection (1), a regulation may set fees payable 3
under this Act. 4
(3) A regulation may impose a penalty of not more than 40 penalty units 5
for a contravention of a provision of a regulation. 6
7
Rules
176.(1) The Governor in Council may make rules about-- 8
(a) the practice and procedure in the tribunal; and 9
(b) the conduct of the business of the tribunal. 10
(2) A rule made under subsection (1) is subordinate legislation. 11
PART 8--TRANSITIONAL PROVISIONS 12
1--Definitions 13
Division
for pt 8 14
Definitions
177. In this part-- 15
"commencement" means the commencement of this section. 16
"former Act" means the Queensland Building Services Authority Act 1991 17
as in force from time to time before the commencement. 18
"former member" means a member of the former tribunal. 19
"former tribunal" means the Queensland Building Tribunal under the 20
former Act. 21
s 178 88 s 179
Queensland Building Tribunal
Division 2--Transitional matters 1
started before commencement 2
Proceedings
178.(1) A proceeding under the former Act started in a court or the 3
former tribunal before the commencement must continue under the former 4
Act as if this Act had not commenced and, for that purpose, the tribunal 5
under this Act has the jurisdiction of the former tribunal. 6
(2) To remove doubt, it is declared that a proceeding may be removed 7
under section 9729 of the former Act and if removed continues under the 8
former Act. 9
(3) The following proceedings may be heard and decided under the 10
former Act by the tribunal as if it were the former tribunal-- 11
(a) a proceeding started under the former Act before the 12
commencement; and 13
(b) a proceeding removed to the tribunal under section 97 of the 14
former Act. 15
member may continue to hear proceeding 16
Former
179.(1) A former member hearing a proceeding or doing anything else in 17
relation to a proceeding under the former Act at the commencement may 18
continue to hear the proceeding or do the thing after the commencement 19
under the former Act. 20
(2) For subsection (1), the former member is taken to constitute the 21
tribunal. 22
(3) For hearing a proceeding or doing anything else under the former Act 23
a former member has-- 24
(a) for a former member not appointed as a member under this Act, 25
the member's entitlements under the former Act; or 26
(b) for a former member appointed as member under this Act, the 27
member's entitlements under this Act. 28
29 Queensland Building Services Authority Act 1991, section 97 (Transfer of
proceedings between tribunal and the courts)
s 180 89 s 183
Queensland Building Tribunal
that must continue in a court 1
Proceedings
180.(1) This section applies to a proceeding started in a court before the 2
commencement for which the tribunal has jurisdiction but the former 3
tribunal did not. 4
(2) The court must continue to hear the proceeding under the former Act. 5
(3) The proceeding must not be removed to the tribunal. 6
about matters arising before commencement to be dealt 7
Proceedings
with under this Act 8
181.(1) A proceeding for a matter arising before the commencement for 9
which the tribunal has jurisdiction under this Act may be started in the 10
tribunal after the commencement. 11
(2) Subsection (1) applies even if the former tribunal would not have had 12
jurisdiction under the former Act. 13
(3) However, this section does not apply to a matter for which a 14
proceeding is started before the commencement in a court or in the former 15
tribunal. 16
(4) A matter for which a proceeding is started before the commencement 17
in a court or in the former tribunal must not be restarted under this Act. 18
of former tribunal 19
Records
182. All records of the former tribunal are taken to be records of the 20
tribunal. 21
ART 9--CONSEQUENTIAL AND OTHER 22
P
AMENDMENTS 23
1 24
Amendments--sch
183. Schedule 1 amends the Queensland Building Services Authority Act 25
1991. 26
90
Queensland Building Tribunal
SCHEDULE 1 1
¡
ONSEQUENTIAL AND OTHER AMENDMENTS OF 2
C
QUEENSLAND BUILDING SERVICES AUTHORITY 3
ACT 1991 4
section 183 5
1. Section 3(c)-- 6
omit. 7
2. Section 3(d)-- 8
renumber as section 3(c). 9
3. Section 25(3), after `scheme)'-- 10
insert-- 11
`and the Tribunal Act'. 12
4. Section 39(3)(b) and (c)-- 13
omit, insert-- 14
`(b) each order made against the licensee by the tribunal under 15
section 11130 of the Tribunal Act; and 16
(c) any decision of the tribunal under section 10131 of the Tribunal 17
Act that it would have been appropriate for the authority to issue a 18
direction requiring the licensee to rectify or complete building 19
work; and 20
30 Queensland Building Tribunal Act 1999, section 111 (Orders for disciplinary
action)
31 Queensland Building Tribunal Act 1999, section 101 (Tribunal to decide about
rectification or completion work)
91
Queensland Building Tribunal
SCHEDULE 1 (continued)
(d) each time the licensee is convicted of an offence against this Act, 1
the Tribunal Act or the Domestic Building Contracts Act 1999 2
and the provision of the Act that was contravened.'. 3
5. Section 39(5), `(3)(b)'-- 4
omit, insert-- 5
`(3)(b) or (c)'. 6
6. Section 39(5), `order'-- 7
omit, insert-- 8
`order or decision'. 9
7. Section 39(6), `(3)(c)'-- 10
omit, insert-- 11
`(3)(d)'. 12
8. Section 42-- 13
insert-- 14
`(11) In subsection (10)-- 15
"tribunal" means the Queensland Building Tribunal under this Act before 16
the commencement of this subsection.'. 17
9. Section 56AH(1), `If'-- 18
omit, insert-- 19
`This section applies if'. 20
92
Queensland Building Tribunal
SCHEDULE 1 (continued)
10. Section 56AH(1), from `a company,'-- 1
omit, insert-- 2
`a company.'. 3
11. Section 56AH(2), `of the decision'-- 4
omit, insert-- 5
`of the authority's decision'. 6
12. Section 72-- 7
insert-- 8
`(15) A direction given under this section need not be complied with if-- 9
(a) a proceeding for a review of the authority's decision is started in 10
the tribunal; and 11
(b) the tribunal orders a stay of the decision.'. 12
13. Parts 7 and 8-- 13
omit. 14
14. Section 111A(1)(b) `section 101'-- 15
omit., insert-- 16
`part 5, division 3 of the Tribunal Act'. 17
15. Section 111A(1)(b), `the section'-- 18
omit, insert-- 19
`the division'. 20
93
Queensland Building Tribunal
SCHEDULE 1 (continued)
16. Section 111C(2)(a) `section 101(4)'-- 1
omit, insert-- 2
`section 111 of the Tribunal Act'. 3
17. Section 115-- 4
omit. 5
18. Schedule 2, definitions "determination", "domestic building 6
dispute" and "tribunal"-- 7
omit. 8
19. Schedule 2-- 9
insert-- 10
` "review" means review by the tribunal. 11
"tribunal" means the Queensland Building Tribunal under the Tribunal 12
Act. 13
"Tribunal Act" means the Queensland Building Tribunal Act 1999.'. 14
94
Queensland Building Tribunal
SCHEDULE 2 1
¡
DICTIONARY 2
section 6 3
"applicant" see section 29. 4
"approved form" means a form approved by the chairperson under 5
section 174. 6
"authority" means the Queensland Building Services Authority established 7
under the Queensland Building Services Authority Act 1991. 8
"building" includes any fixed structure. 9
"building contractor" means a person who carries on a business that 10
consists of or includes carrying out building work, and includes a 11
subcontractor who carries out building work for a building contractor. 12
"building dispute" means-- 13
(a) a domestic building dispute; or 14
(b) a minor commercial building dispute; or 15
(c) a major commercial building dispute if the parties to the dispute 16
consent to the dispute being heard by the tribunal under 17
section 95. 18
"building owner" means a person for whom building work is to be, is 19
being or has been carried out, but does not include a building contractor 20
for whom building work is carried out by a subcontractor. 21
"building work" see section 7. 22
"chairperson" means the chairperson of the tribunal. 23
"commercial building dispute" means-- 24
(a) a claim or dispute arising between a building owner and a 25
building contractor relating to the performance of commercial 26
building work or a contract for the performance of commercial 27
building work; or 28
95
Queensland Building Tribunal
SCHEDULE 2 (continued)
(b) a claim or dispute arising between 2 or more building contractors 1
relating to the performance of commercial building work or a 2
contract for the performance of commercial building work; or 3
(c) a claim or dispute in negligence, nuisance or trespass related to the 4
performance of commercial building work other than a claim for 5
personal injuries; or 6
(d) a claim or dispute arising between a building owner or a building 7
contractor and any 1 or more of the following relating to the 8
performance of commercial building work or a contract for the 9
performance of commercial building work-- 10
(i) an architect; 11
(ii) an engineer; 12
(iii) a surveyor; 13
(iv) a quantity surveyor; 14
(v) an electrician or an electrical contractor; 15
(vi) a supplier or manufacturer of materials used in the building 16
work. 17
"commercial building work" means building work other than domestic 18
building work. 19
"contract" means a contract for carrying out building work. 20
"decision" includes an order or direction. 21
"decision by default", for part 6, division 2, see section 121. 22
"defective", in relation to building work, includes faulty or unsatisfactory. 23
"disciplinary proceeding" means a proceeding under section 108. 24
"domestic building contract" see Domestic Building Contracts Act 1999, 25
section 7. 26
"domestic building dispute" means-- 27
(a) a claim or dispute arising between a building owner and a 28
building contractor relating to the performance of domestic 29
building work or a contract for the performance of domestic 30
96
Queensland Building Tribunal
SCHEDULE 2 (continued)
building work; or 1
(b) a claim or dispute arising between 2 or more building contractors 2
relating to the performance of domestic building work or a 3
contract for the performance of domestic building work; or 4
(c) a claim or dispute in negligence, nuisance or trespass related to the 5
performance of domestic building work other than a claim for 6
personal injuries; or 7
(d) a claim or dispute arising between a building owner or a building 8
contractor and any 1 or more of the following relating to the 9
performance of domestic building work or a contract for the 10
performance of domestic building work-- 11
(i) an architect; 12
(ii) an engineer; 13
(iii) a surveyor; 14
(iv) a quantity surveyor; 15
(v) an electrician or an electrical contractor; 16
(vi) a supplier or manufacturer of materials used in the building 17
work. 18
"domestic building work" see Domestic Building Contracts Act 1999, 19
section 8. 20
"executive officer", of a corporation, means a person who is concerned 21
with, or takes part in, the corporation's management, whether or not 22
the person is a director or the person's position is given the name of 23
executive officer. 24
"expedited hearing" means an expedited hearing conducted under part 6, 25
division 4. 26
"file" means file in the tribunal. 27
"licence" means a licence under the Queensland Building Services 28
Authority Act 1991. 29
"licensee" means a licensee under the Queensland Building Services 30
Authority Act 1991. 31
97
Queensland Building Tribunal
SCHEDULE 2 (continued)
"major commercial building dispute" means a commercial building 1
dispute where either the claim or the counterclaim exceeds $50 000. 2
"member" means a member of the tribunal. 3
"minor commercial building dispute" means a commercial building 4
dispute where neither the claim nor the counterclaim exceeds $50 000. 5
"minor domestic building dispute" means a domestic building dispute 6
where neither the claim nor the counterclaim exceeds $10 000. 7
"obstructs" includes attempt to obstruct. 8
"party" means a party to a proceeding before the tribunal, including-- 9
(a) the applicant; and 10
(b) the respondent; and 11
(c) a person joined as a party under section 45. 12
"proceeding" means a proceeding-- 13
(a) started by application to the tribunal; or 14
(b) removed to the tribunal by order of a court under section 117. 15
"public examination" means a public examination by the tribunal under 16
part 5, division 4. 17
"registrar" means the registrar of the tribunal. 18
"respondent" see section 29. 19
"reviewable decision" means a decision of the authority that is reviewable 20
by the tribunal under section 104. 21
"statutory insurance scheme" means the statutory insurance scheme 22
under the Queensland Building Services Authority Act 1991. 23
"subcontractor" means-- 24
(a) a building contractor that carries out building work for another 25
building contractor; or 26
(b) a building contractor that carries out building work for another 27
person under a construction management trade contract under the 28
Queensland Building Services Authority Act 1991, section 67B. 29
98
Queensland Building Tribunal
SCHEDULE 2 (continued)
"summary decision", for part 6, division 5, see section 131(1). 1
"tribunal" means the Queensland Building Tribunal established under 2
section 9. 3
4
© State of Queensland 1999
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