QCAT & QBCC

Please watch this space. Text and documents will be uploaded when time permits. 

Update: Lyons' appeals in his proceedings against the QBCC have been "settled upon terms that involved the payment of a substantial sum of money by the [QBCC] to Lyons and are otherwise confidential".  Given that settlement I now am free to publish my observations founded upon my experience of the conduct of QCAT and the QBCC. I will do so for the benefit of those considering proceeding in QCAT against the QBCC and to evidence the need for the abolition of this Tribunal.

The Courier Mail article on 17.4.21 refers to a letter to the President of QCAT of August 2018. A link to a copy of the exhibited letter is at the bottom of this page.

Two key observations.

First, some Tribunal Members are yet to acquire the knowledge, skills and experience required for the proper discharge of their duties.

Secondly, QCAT has been captured by the QBCC, one of its biggest 'customers'. One basis for that observation is the extraordinarily high success rate of the QBCC in the Tribunal that is evident in the below figures extracted from QBCC annual reports. Another basis is cherrypicking evident when one compares some published reasons with the evidence and submissions: Some Tribunal Members refuse or fail to consider substantial arguments for the private citizen without expressing a proper reason for so doing. A third basis is that some Members rely upon arguments favourable to the QBCC that were not raised by the QBCC and first become known to the private citizen litigant when reasons are published. Typically, such arguments are without merit.

(Reports from December 2013 to 2018 do not appear to include these figures. A related table is cited below.)

These statistics understate the QBCC's success in this Tribunal. Even where private citizens succeed on claim, their victory may be pyrrhic if they are denied costs. For example, the Tribunal denied costs to a certifier who won against the QBCC in relation to a homeowner's complaint that proved to be unfounded. The Court of Appeal described it as a "hard case" (Stuart v QBCC [2018] 1 QdR 399, 405 [30]) writing that the certifier was "now out of pocket for a very substantial sum". That sum exceeded $130,000: Stuart v QBCC [2016] QCATA 135, [54]. The CA refused to intervene because it held that it lacked jurisdiction to do so. It did not recommend reform to cure this. There has been no reform to date. 

Another example is that the Tribunal denied costs to husband and wife homeowners who establised their wrongfully denied home warranty claim following 13 days of hearing. Their costs of counsel and solicitors will have been substantial and massively eroded the claim payment (maximum $400k = maximum sum insured of $200k for each of defects and non completion). They may have been left worse off than if they had never approached the Tribunal seeking justice. Cowen v QBCC [2018] QCAT 385.

Another example is the writer's own case. The writer established his denied non completion claim at the maximum sum insured of $200k and sought his costs. The QBCC had refused to attend a mediation and 6 settlement offers lower than the recovered sum. The Tribunal awarded the writer only some of his standard costs, denied indemnity costs and interest entirely, leaving him worse off than if he had never approached the Tribunal seeking justice. Some of the reasons expressed for this were not argued by the QBCC. The writer learnt of them first when reading the reasons for decision. Some other complaints about the decision are expressed in the below attached letter to the President dated 31.8.18. The writer applied for leave to appeal. Those applications were settled as mentioned above. In settling, the writer proceeded upon the basis that he could not be confident that decisions of the Tribunal involving the QBCC would be determined in accordance with law. No litigant should have to so proceed.

Denial of costs to homeowners undermines the purpose of the home warranty scheme. Denied costs are likely to be met from the claim payment which is thus unavailable to meet the rectification and noncompletion expense that it is the purpose of the scheme to fund.

In future posts, I will identify steps that others claiming against this government owned corporation may consider with a view to improving their prospects of having their matter determined in accordance with law, free of incompetence and bias, and to improve prospects of recovering costs against the QBCC. One of those steps is to request that the final hearing be heard before a Tribunal constituted to include a Judge rather than a ordinary full time or part time Member of the Tribunal. My letter to the President making such a request is attached. The QBCC settled with me after that letter was sent.

Homeowners seeking to recover costs against the QBCC should tender evidence that the QBCC carries reinsurance with respect to the Home Warranty Scheme and ensure that written submissions draw attention to that evidence and QCAT Act, s. 102(3)(e). QBCC annual reports are online and refer to re-insurance and its financial position. An RTI request may extract such information but should be commenced asap. In my case, the QBCC and the Office of the Information Commissioner took about a year to process the application (unsatisfactorily). The Tribunal did not mention this evidence or submission in its decision on costs without explanation. Such a refusal or failure can be used as a ground of appeal and evidence of bias favourable to the QBCC. It is an illustration of the cherrypicking mentioned above.

The QBSA (previous name of the QBCC) submitted the following table to the Transport, Housing and Local Government Committee of the Qld Parliament.