Queensland QUEENSLAND BUILDING TRIBUNAL BILL 1999 Queensland oh QUEENSLAND BUILDING TRIBUNAL BILL 1999 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY Division I—Introduction 1 Short title 20.6... 10 2 Commencement ..... 2.6... ccc eee eee nee 10 Division 2—Operation of Act 3 Act binds all persons ... 6.6... cece eee 10 Division 3—Objects of Act 4 Objects of Act 2... cece eee nett eee eee 10 5 How objects are to be achieved ..... 66... eee eee eee 11 Division 4—Interpretation 6 Definitions 2.0.0... 0... ete ene eee 12 7 Meaning of "building work"... 2.6.6... 12 8 Carrying out building work ... 0.0.0.0... 0... 14 PART 2—ESTABLISHMENT AND MEMBERSHIP OF TRIBUNAL 9 Establishment of tribunal .... 2... 0. eee 14 10 Tribunal's seal... 1... ieee ete 14 11 Appointment of chairperson and membership of tribunal............... 14 12 Terms and conditions of member's appointment .................0.005 15 13 Chairperson to direct business of tribunal ................0.0000000 0 15 14 Delegation of powers by chairperson ............. 00000 cece eee eee eee 16 15 Appointment of deputy chairperson ........... 0.000 e eee 16 16 Resignation of members ........... 00.00 e cece eect eee eens 16 Queensland Building Tribunal 1821232528 30 32343739 4l Termination of appointment of amember...............0...0..0000. Disclosure of interests .... 0.6... cece eee eee Protection of members ...... 6... eee eee PART 3—REGISTRAR AND OTHER STAFF Registrar of tribunal........ 0.000... eee eee ee Registrar's functions and powers .............. 0.0 e eee eee eee eee Chairperson may direct registrar... 2.2.0.0... eee eee eee eee Engagement of consultants ...........0.0. 0000... Appointment of acting registrar .. 2.0.0.0 .... 0... Delegation by registrar... 2.0... eee eee Appointment of tribunal staff ......... 00.0.0 PART 4—GENERAL JURISDICTION AND OPERATION OF TRIBUNAL Division 1—Constitution and general jurisdiction of tribunal Constitution of tribunal ........ 0.0... eee eee General jurisdiction ...... 00.0... cee eee eee Division 2—Start of proceedings Start of proceedings ............ 0... eee eee Defence and counterclaim ........... 0... eee cee eee eee eee Service of documents .......... 0.0... eee eee Service in relation to a business ............0.. 000.0000. c eee eee eee Acceptance of service by solicitor... 2.0.2.0... 0.000.000. cee eee eee Informal service... 2... cee eee eee Division 5—Case management Tribunal to fix time and place for proceedings. ..................0... Way tribunal is to conduct proceedings ...............0...0 0.000000. Queensland Building Tribunal 43454749515355586062 646669 Directions and orders ......... 0... 27 Documents to which disclosure does not apply ...............00000005 27 Extension of time and waiver of compliance ...............0.0000005 28 Joinder of parties 2.0... 666k eee tenes 29 Consolidation of proceedings ............ 0.0 c ccc c cece eee eee 29 Sequence of hearings .... 2.6.6... 60... cece cece cece eects 29 Directions ...... 0. etna 30 Variation of order... 2... eee eee eens 30 Vexatious proceedings ... 2... 6... 30 Conduct of proceeding causing disadvantage ...............-..000005 30 Withdrawal by applicant... 6.2.66... eee eee 31 Withdrawal by respondent ......... 0... eee eee 31 Further application after withdrawal restricted. ................000005 31 Costs order on applicant's withdrawal ..... 2... 0.0.0. e cece eee eee 32 Notice of withdrawal... 0.6.66. ieee eee 32 Division 6—Costs generally Security for costs... 0.0.0.6... cece eects 32 Discretionary factors for security for costs ........... 0.6 eee eee eee 32 Way security ZIVEN 2.6.6.6 33 Finalising security... 0.6... cece tee eet 33 General power of tribunal to award costs .......... 0.000 e eee eee eee 34 Stay pending payment of costs... 6.6... ec eee 35 Division 7—Representation Purposes of div 7 2.0.0... ccc ccc tenet teens 35 Who represents party at mediation and case appraisal ................ 35 Who represents party at pre-hearing conference..................--05 36 Who represents party at other proceedings .............. 00000 eee eee 36 Representation for a corporation ........ 0... cece cee cee eee eee eee 37 Division 8—Other provisions about proceedings Tribunal may summons Witness ........... 000 e cece cece 37 False or misleading statements ............ 0... c cece eee eee 37 False or misleading documents ............ 0000 c cece eee eee ee 38 Queensland Building Tribunal 72 2B757779818486 889092 9496 Inspection of documents or things .............. 0.000000... eee eee ee Offences by witnesses... 0... 0... ee eee eee Person must answer certain questions ................000020 00 0c eee Warrant may be issued if witness does not attend .................... Powers of tribunal relating to taking of evidence..................0.. Reference of matters for expert report............0..00..00 00000000. Entry and inspection of property ..............0 0.000000 eee eee ee eee Procedure before entry... 2.0... 0 cee eee Contempt of tribunal ........ 0... eee ee Punishment of contempt ................. 000. Conduct that is contempt and offence...........0...0..0 0000000000. Protection of persons before tribunal .................00...00000000. Division 9—Tribunal decisions and enforcement Form of decisions of tribunal ........... 00.6 c cece eee eee eee When decision takes effect... 6... 0... cece eee eects Registration and enforcement of decisions .....................000.. Consequences of failure to comply with tribunal's orders and directions . . Division 10—Further action in relation to a proceeding Correcting mistakes... 2.0.0.2. Reopening an order if party does not appear................02..0000. Reopening an order if problems with interpretation or implementation ... Application to reopen order must not be made if appeal filed........... Cases stated... 1. eee cece eee e eee eens PART 5—PARTICULAR JURISDICTION OF THE TRIBUNAL Division 1—Building disputes Tribunal may decide building dispute ................00.....000000. When major commercial building dispute may be heard by tribunal... .. Procedure to decide whether all parties consent...................0.. Procedure if another party discovered ................000200.0000 0002 Consent may not be withdrawn .......... 0... 0. ee eee Queensland Building Tribunal 99101103 105107 109111 113 115 119 Tribunal may make interim order............0...000..00 0000002000. Proceeding in tribunal stops action by authority. ..................... Reports by authority to tribunal ................ 0.000000... 00 e eee Tribunal to decide about rectification or completion work ............. Tribunal may hear dispute while contract still in operation............. Tribunal may hear dispute regardless of related criminal or disciplinary action... 20... 0... ee ee eee eee Division 2—Proceedings for review Reviewable decisions .......... 0.00.02 oes Application for review ...... 0.0.0.2 Stay of operation of decision ......... 0.0.0.0... eee eee eee Tribunal may try to reach settlement during review................... Division 3—Disciplinary proceedings Tribunal may conduct disciplinary proceeding ...................0... Proper grounds for disciplinary action against a licensee .............. Proper grounds for disciplinary action against person not a licensee ..... Orders for disciplinary action ............... 0000s Division 4—Public Examinations Tribunal may conduct public examination ......................00.. Procedure before public examination starts. ...............00..00000. Division 5—Stop orders and suspension orders Stop orders 2.0... 0.2 ee eee eee eee Suspension orders ........ 0... eee eee eee Division 6—Decisions about debts arising from statutory insurance scheme Decisions about debts arising from statutory insurance scheme ......... Division 7—Transfer of proceedings Transfer of proceedings between tribunal and the courts............... PART 6—DISPUTE RESOLUTION PROCEDURES AVAILABLE TO TRIBUNAL Division I—General Tribunal may conduct hearings. ............. 0.000000 cece ee ee eee Hearing of proceedings ......... 0.0.0.0. cece eee Queensland Building Tribunal 122 124126129132134136138140 142144146 Purpose of other divisions ............. 0.000 cece cece eee ee eee eee 66 Division 2—Decision by default Decision by default for debt ........ 0.6... cece cece eee eee eee 66 Setting aside decision by default. ......... 0.0.0... cece 67 Division 3—Mediation Tribunal may appoint mediator... 1.0.00... 0.0 c eee eee eee eee eee 67 Method of mediation ........... 0. ccc eect eee eee 68 Matters about mediation... 0.0... 6... cece cece eects 68 Mediator precluded from tribunal hearing.................... 000 eee 68 Time limit for mediation before expedited hearing ................... 69 Division 4— Expedited hearings Expedited hearing of domestic building disputes ...................-5 69 Certain minor commercial building disputes may be expedited......... 69 Procedure for expedited hearing......... 6.6.00. cece eee cece eee 70 Division 5—Summary decision Summary decision for applicant ............ 0.66. e cece eee eee 71 Summary decision for respondent ................5. 0000 c eee eee eee 71 Claims not disposed of by summary decision.................0000005 72 Evidence... 0.0.6... cece eens 72 Service 266... t ete eens 73 Examination of parties and witnesses .............. 000s eee eeee eens 73 Directions ...... 0. etna 73 COStS on eee 73 Stay of enforcement ........ 0... eee 74 Setting aside summary decision. ............0...0 0.0000 e eee eee eee 74 Division 6—Case appraisals Referral to case appraiser... 2.6.6... cece ee 74 Jurisdiction of case appraiser .... 6.6.6... eee eee eee 75 Procedure for case appraisals... 2... 66... e eee eee eee eee 75 Case appraiser may seek information ................-20 ee eeeeeeeee 75 Case appraisal may be recorded... .. 2.6... eee eee eee 76 Case appraiser's decision ........ 0.000 76 Queensland Building Tribunal 148150153155 158160163165167169171173175 Case appraiser's decision on costs in the dispute..................0.. Case appraiser's decision final unless election made ................. Case appraiser to file report and decision....................0..000. Dissatisfied party may elect to go to hearing of tribunal............... Case appraiser's decision may affect costs...............0..00.0000. Division 7—Pre-hearing conferences Pre-hearing conferences ........ 0.00... o oe eee eee Who is required to attend pre-hearing conferences .................... Evidence from pre-hearing conferences inadmissible .................. When member may hear proceeding after presiding at a pre-hearing conference ............. 0... Failure of a party to attend a pre-hearing conference.................. Division 8—Settlement Offers Making settlement offers ..........00. 00.00 e cee eee eee eee Effect of offer... 0.6... eect eens Accepting settlement offers .......... 00.00... eee eee Consequences if accepted offer is not complied with ................. Tribunal must order party to pay costs if certain offers to settle rejected . . PART 7—MISCELLANEOUS Finance and staffing of tribunal ...................00....0000 00008 Trust account ©... 6.6 cence Annual report 2.0.0... eee eee Proceedings for offences .......... 0... eee eee Limitation on time for starting summary proceedings ................. Penalties to be paid to authority ...............0...0 00.0002 c eee eee Contracting out prohibited. ....... 2.0.0... eee eee ee Executive officers must ensure corporation complies with Act.......... Judicial Review excluded for minor domestic building disputes......... Proof of signature unnecessary ........... 0000. c cece eee eee Evidentiary aids .... 2.0... eee eee Protection from liability ..........0 0.00.0... eee FOrms 2... ee eee eee eee eee Regulation-making power.... 2.0.0.0... eee eee Queensland Building Tribunal 179181 PART 8—TRANSITIONAL PROVISIONS Division 1—Definitions Definitions for pt 8.1.0.0... eee eet eeteeeeeee Division 2—Transitional matters Proceedings started before commencement .....................0.. Former member may continue to hear proceeding................... Proceedings that must continue ina court..................00.0000. Proceedings about matters arising before commencement to be dealt with under this Act... 0.2... eee eee eee Records of former tribunal... 1.2.0... 0... e cee eee eee PART 9—CONSEQUENTIAL AND OTHER AMENDMENTS Amendments—sch 1... 1... eee eee eens SCHEDULE 1 ....................... CONSEQUENTIAL AND OTHER AMENDMENTS OF QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991 SCHEDULE 2 ....................4.. DICTIONARY 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 sl 10 s4 Queensland Building Tribunal The Parliament of Queensland enacts— PART 1—PRELIMINARY Division 1—Introduction Short title 1. This Act may be cited as the Queensland Building Tribunal Act 1999. Commencement 2. This Act commences on a day to be fixed by proclamation. Division 2—Operation of Act Act binds all persons 3. This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States. Division 3—Objects of Act Objects of Act 4. The objects of this Act are to establish a tribunal and have it deal with the following in an expeditious way that is just, fair and cost efficient— (a) domestic building disputes and minor commercial building disputes; (b) major commercial building disputes if the parties to this type of dispute agree; (c) reviews of decisions of the authority; 1116 18 20 s5 11 s5 Queensland Building Tribunal (d) applications by the authority for— (e) (f) (i) proceedings to decide whether proper grounds exist for taking disciplinary action against a person; or (11) public examinations that investigate stated matters for this Act; or (111) orders prohibiting a person from starting or continuing building work; or (iv) the recovery of amounts paid by the authority for claims under the statutory insurance scheme under the Queensland Building Services Authority Act 1991;1 applications under the Domestic Building Contracts Act 1999, other applications that may be made to the tribunal under this or another Act. How objects are to be achieved 5. The objects of this Act are to be achieved by establishing a system of dispute resolution that— (a) (b) is Just in the results it delivers; and is fair by— (i) ensuring litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights; and (i1) giving parties to proceedings an opportunity to state their case and to answer their opponent's case; and (11) treating like cases alike; and has a range of procedures available and minimises costs to the extent practicable; and deals with applications with reasonable speed and encourages the early resolution of disputes; and is understandable to users of the system; and 1 Queensland Building Services Authority Act 1991, part 5 (The Statutory Insurance Scheme) ow w ND ns Wn eS an ion' wn 16 18 20 22 25 27 s6 12 s7 Queensland Building Tribunal (f) is responsive to the needs of users of the system; and (g) allows parties to represent themselves and save legal costs wherever appropriate. Division 4—Interpretation Definitions 6. The dictionary in schedule 2 defines particular words used in this Act. Meaning of "building work" 7.(1) The following is "building work" — (a) the erection or construction of a building; (b) the renovation, alteration, extension, improvement or repair of a building; (c) the provision of electrical work, water supply, sewerage or drainage or other like services for a building; (d) the demolition, removal or relocation of a building; (e) any site work (including the construction of retaining structures, driveways, landscaping and the construction of a swimming pool) related to building work of a kind mentioned in paragraphs (a) to (d); (f) the preparation of plans, specifications or bills of quantity for the carrying out of building work; (g) the inspection of a completed building; (h) subject to subsection (3), work prescribed under a regulation. (2) To remove doubt, it is declared that domestic building work is building work. (3) The following is not "building work" — (a) the construction, extension, repair or replacement of a water reticulation system, sewerage system or stormwater drain, outside the boundaries of private property; 11 13 1618 20 22 24 27 s7 13 s7 Queensland Building Tribunal (b) (c) (d) (e) (f) (g) (h) (i) 0) (k) (I) (m) (n) the building or maintenance of a road as defined under the Land Act 1994; the construction, maintenance or repair of a bridge, other than a bridge on private property; the construction, maintenance or repair of railway tracks, signals or associated structures, unless the structures are buildings for residential purposes, or are storage or service facilities; the construction, maintenance or repair of airport runways, taxiways and aprons; the construction, maintenance or repair of ports or ports infrastructure, unless the structures are buildings for residential purposes, or are storage or service facilities; the construction, maintenance or repair of a dam; the construction, maintenance or repair of communications installations performed for a public company or public body engaged in radio or television broadcasting or in some other form of communications business or undertaking; the installation of manufacturing equipment or equipment for hoisting, conveying or transporting materials or products (including primary produce), other than the installation of fixed structures providing shelter for the equipment; construction work in mining; work consisting of monumental masonry, sculpture, or the erection or construction of statues, fountains or other works of art, other than work affecting the way in which a building is constructed; building work carried out by the State for the State or for an entity representing the State; building work carried out by a local government for a local government, the State or an entity representing a local government or the State; building work carried out outside Queensland. (4) For subsection (3)(1), building work is not carried out by the State if co NAW BW NE \o RP Re NRO = w eeu NAW LE NNR KF COO we N N NN Rw Nv Nn NYnwu on Ww wh roo Ww Ww wiN s8 14 sll Queensland Building Tribunal the work is carried out for the State by an independent contractor. (5) For subsection (3)(m), building work is not carried out by a local government if the work is carried out for the local government by an independent contractor. Carrying out building work 8.(1) A person carries out building work whether the person carries it out personally, or directly or indirectly causes it to be carried out. (2) A person is taken to carry out building work if the person provides advisory services, administration services, management services or supervisory services relating to the building work. (3) A person undertakes to carry out building work if the person enters into a contract to carry it out or submits a tender or makes an offer to carry it out. PART 2—ESTABLISHMENT AND MEMBERSHIP OF TRIBUNAL Establishment of tribunal 9. The Queensland Building Tribunal is established. Tribunal's seal 10.(1) The tribunal must have a seal. (2) The registrar is to have custody of the seal. (3) The seal must be judicially noticed. Appointment of chairperson and membership of tribunal 11.(1) The tribunal consists of the chairperson and the number of other members appointed under this Act. BRwWN ao ntniwn 1215 17 1921 24 s12 15 s 13 Queensland Building Tribunal (2) The chairperson and other members of the tribunal are to be appointed by the Governor in Council. (3) A person is eligible for appointment as a member of the tribunal if the person is— (a) a lawyer of not less than 5 years standing; or (b) aretired judge of any Australian court. (4) A member may be appointed on a full-time or part-time basis. (5) A member is appointed for the term (not longer than 7 years) stated by the Governor in Council in the instrument of appointment. (6) A member is to be appointed under this Act, and not under the Public Service Act 1996. Terms and conditions of member's appointment 12.(1) A member of the tribunal is entitled to be paid the remuneration and allowances decided by the Governor in Council. (2) To the extent that the terms and conditions are not provided for by this Act, a member of the tribunal holds office on the terms and conditions decided by the Governor in Council. Chairperson to direct business of tribunal 13.(1) The chairperson of the tribunal is to direct the business of the tribunal. (2) Without limiting subsection (1), the chairperson may— (a) direct the professional development and training of members of the tribunal; and (b) decide and implement procedures and policies for the tribunal; and (c) without limiting paragraph (b), issue practice directions of general application to proceedings. rr O OoAmA NIH nH HRW Ne ee 14 1620 23 25 27 s14 16 s17 Queensland Building Tribunal Delegation of powers by chairperson 14. The chairperson may delegate the chairperson's administrative powers under this or another Act, including the power to give a direction about how the tribunal is to be constituted for a proceeding, to another member or to the registrar. Appointment of deputy chairperson 15.(1) The Governor in Council may appoint a member of the tribunal to be deputy chairperson. (2) The deputy chairperson is to act as chairperson if— (a) the chairperson is not available to carry out the chairperson's duties; or (b) there is a vacancy in the office of chairperson. Resignation of members 16. A member may resign by giving a signed notice of resignation to the Minister. Termination of appointment of a member 17.1) The Governor in Council may terminate the appointment of a member if the member— (a) becomes incapable of performing the duties of a member because of physical or mental incapacity; or (b) is convicted of an indictable offence; or (c) commits misconduct of a kind that could justify dismissal from the public service if the member were a public service officer; or (d) is affected by bankruptcy action. (2) For subsection (1)(d), a member is affected by bankruptcy action if the member— (a) is bankrupt; or (b) has compounded with creditors; or aA pRWN 18 20 23 26 28 s 18 17 s 20 Queensland Building Tribunal (c) has otherwise taken, or applied to take, advantage of any law about bankruptcy. Disclosure of interests 18.(1) If a member becomes aware that the member has a conflict of interest about a proceeding before the tribunal, the member must disclose the issue giving rise to the conflict— (a) ifthe member is the chairperson—to the parties to the proceeding; or (b) otherwise—to the chairperson and the parties to the proceeding. (2) After making the disclosure, the member may disqualify himself or herself. (3) However, the member may take part in the proceeding, or exercise a power for the proceeding— (a) if the member is the chairperson—if the parties agree; or (b) otherwise—if the chairperson and the parties agree. (4) A member has a conflict of interest about a proceeding if the member has an interest, financial or otherwise, that could conflict with the proper performance of the member's functions for the proceeding. Protection of members 19. A member has, in the performance of the member's duties as a member, the same protection and immunity as a District Court judge has in the performance of the judge's duties. PART 3—REGISTRAR AND OTHER STAFF Registrar of tribunal 20.(1) There is to be a registrar of the tribunal. Bo 0 MONI ANA w il oon wn Se nan & eee wornad 2125 s21 18 s21 Queensland Building Tribunal (2) The registrar is a member of the staff of the tribunal. (3) A person is eligible for appointment as the registrar only if the person has particular knowledge and experience of — (a) public administration; and (b) something else with substantial relevance to the functions of the registrar. Registrar's functions and powers 21.(1) Subject to the chairperson, the registrar is to be responsible for managing the administrative affairs of the tribunal. (2) Without limiting subsection (1), the registrar must— (a) keep a register containing details of all applications filed; and (b) ensure the register is available for inspection by a person paying the fee, if any, prescribed under a regulation; and (c) supply a certificate as to the correctness of a matter in the register to a person paying the fee, if any, prescribed under a regulation; and (e) sign and issue summonses; and (f) keep the tribunal's records and decisions; and (g) keep account of fees paid and payable to the tribunal; and (h) keep account of moneys paid into and out of the tribunal's trust account. (3) Also, without limiting subsection (1), the registrar is to— (a) appoint mediators and decide whether a proceeding should be the subject of a mediation or expedited hearing and the times and places of mediations or expedited hearings; and (b) give decisions by default under section 121. (4) The registrar may exercise the powers given to the registrar under this Act. DAun fF WN 11 13 151821 2428 s 22 19 s 25 Queensland Building Tribunal Chairperson may direct registrar 22. The chairperson may give the registrar a direction about the exercise of the registrar's powers, other than to the extent the direction would be inconsistent with the provisions of this Act about the registrar's powers. Engagement of consultants 23.(1) The registrar may engage persons having suitable qualifications and experience as consultants to perform services for the tribunal. (2) Without limiting subsection (1), the services a consultant may be engaged to perform include conducting research for the tribunal. (3) An engagement under subsection (1) must be made for the State under a written agreement. Appointment of acting registrar 24.(1) The chairperson may appoint an appropriately qualified person to act as registrar. (2) The appointee is to act as registrar if— (a) the registrar is not available to carry out the registrar's duties; or (b) there is a vacancy in the office of registrar. (3) In this section— "appropriately qualified" includes having particular knowledge and experience of — (a) public administration; and (b) something else with substantial relevance to the functions of the registrar. Delegation by registrar 25.(1) The registrar may delegate the registrar's powers under this Act or another Act to an appropriately qualified member of the staff of the tribunal. (2) In this section— RwWN ro UOUOOH ND WN 14 1618 20 23 26 s 26 20 s 29 Queensland Building Tribunal "appropriately qualified" includes having the qualifications, experience or standing appropriate to exercise the power. Example of 'standing '— A person's seniority level as a member of the staff of the tribunal. Appointment of tribunal staff 26. The registrar and other staff of the tribunal are to be appointed and employed under the Public Service Act 1996. PART 4—GENERAL JURISDICTION AND OPERATION OF TRIBUNAL Division 1—Constitution and general jurisdiction of tribunal Constitution of tribunal 27. For a proceeding, the tribunal is to be constituted by a single member. General jurisdiction 28. The tribunal may hear and decide all applications made to it and all matters required or permitted to be heard and decided by it under this Act, the Queensland Building Services Authority Act 1991, the Domestic Building Contracts Act 1999 or another Act. Division 2—Start of proceedings Start of proceedings 29.(1) A proceeding for a matter for which the tribunal has jurisdiction is started by a person (the "applicant") filing an application in the approved form in the tribunal and paying the fee prescribed under a regulation. BW Ne Nn 12 1517 21 s 30 21 s 30 Queensland Building Tribunal (2) However, the authority does not have to pay a fee for an application filed by it. (3) The application must state— (a) the facts or grounds on which the application is based; and (b) the claims made and outcome or order sought by the applicant. (4) The applicant must serve a copy of the application on each person (the "respondent") against whom a claim is made or in relation to whom an outcome or order is sought. (5) Also, if the tribunal considers another person is affected by the application, it may direct the applicant to serve a copy of the application on the person. (6) The applicant must comply with a direction under subsection (5). (7) For a public examination, the person required to be served under subsection (4) is the person proposed to be the subject of the public examination. Defence and counterclaim 30.(1) This section applies to an application starting a proceeding for— (a) a building dispute; or (b) the recovery of a debt under the Queensland Building Services Authority Act 1991, section 71; or (c) a matter under the Domestic Building Contracts Act 1999, sections 18, 55, 60 or 84.2 (2) The respondent must file a defence to the application and any counterclaim that states— (a) the facts relied on by the respondent in defence of the claims by the applicant; and (b) the nature of the defence to each outcome or order sought by the 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) BW Ne Be ew No FOU OND ww eee AK w 1720 22 24 26 s31 22 s 32 Queensland Building Tribunal applicant; and (c) the facts on which any counterclaim is based and the outcome or order sought by the respondent relating to the counterclaim. (3) The respondent must act under subsection (2) within 14 days of being served with the application or the extended time allowed by the tribunal. (4) A defence and any counterclaim must be in the approved form. (5) A copy of the defence and any counterclaim must be served on the applicant. (6) Also, if the tribunal considers another person is affected by the defence or counterclaim, it may direct the respondent to serve a copy of the defence or counterclaim on the person. (7) The respondent must comply with a direction under subsection (6). (8) If the respondent does not file a defence within the period or extended period allowed, the tribunal may deal with the matter in the absence of respondent. Division 3—Business names Proceeding if business name 31. A proceeding may be brought against a person under a name or style, other than the person's own name and under which a person carries on business, regardless of whether the name or style is registered under the Business Names Act 1962. Proceeding if registered business name 32.(1) This section applies if a proceeding is brought against a person in relation to a business carried on by the person under a name or style other than the person's own name and the name is registered under the Business Names Act 1962. (2) The proceeding may be started against the person in the name or style registered under the Business Names Act 1962. (3) The name or style registered under the Business Names Act 1962 is re OO eA HD ns WN Se See N Ree nan BW 1921 24 26 28 $33 23 $35 Queensland Building Tribunal sufficient designation of the person in a document filed in the proceeding. (4) An order in the proceeding may be enforced against the person. Proceeding in business name if unregistered 33.(1) This section applies if a proceeding is brought against a person in relation to a business carried on by the person under a name or style other than the person's own name and the name is not registered under the Business Names Act 1962. (2) The proceeding may be started against the person in the name or style under which the person carries on business. (3) The name or style under which the business is carried on is sufficient designation of the person in a document filed in the proceeding. (4) An order in the proceeding may be enforced against the person. Defence 34.(1) This section applies if a proceeding is brought against a person in relation to a business carried on by the person under a name or style other than the person's own name, regardless of whether the name or style is registered under the Business Names Act 1962. (2) A defence must be in the name of the person and not in the business name. (3) If the person files a defence, the person must file and serve with the defence a statement of the names and places of residence of all persons who were carrying on business under the name or style as at the day the proceeding was started. (4) The tribunal may set aside the defence if the person does not comply with subsection (3). Amendment as to parties 35.(1) This section applies if a proceeding is brought against a person in relation to a business carried on by the person under a name or style other than the person's own name, regardless of whether the name or style is Bo COM IDWA Ww ee a N 1517 19 2123 25 28 s 36 24 837 Queensland Building Tribunal registered under the Business Names Act 1962. (2) The applicant must, as soon as practicable, take all reasonable steps to find out the name of the person carrying on the business under the name or style in question. (3) The applicant must continue the proceeding in the person's name and not in the name or style under which the business was carried on. (4) However with the tribunal's leave, the applicant may take a further step in the proceeding in the name or style under which the business was carried on. (5) Before allowing a proceeding to continue against a named person, the tribunal must be satisfied that the named person is aware the proceeding is being continued against the named person. Division 4— Service Service of documents 36.(1) A document may be served under this Act— (a) ina way directed by the tribunal; or (b) as stated in this Act; or (c) for person licensed under the Queensland Building Services Authority Act 1991— by leaving it at, or sending it by post, telex, facsimile or similar facility to, the address of the person in the register of licensees kept by the authority. (2) Subsection (1) does not limit the Acts Interpretation Act 1954, section 393 Service in relation to a business 37.(1) This section applies if— (a) a proceeding is brought against a person in relation to a business carried on by the person under a name or style other than the 3 Acts Interpretation Act 1954, section 39 (Service of documents) 1517 1921 23 27 s 38 25 $39 Queensland Building Tribunal person's own name, regardless of whether the name or style is registered under the Business Names Act 1962; and (b) the proceeding is brought in the name or style under which the person carries on the business. (2) The application may be served by leaving a copy at the person's place of business with a person who appears to have control or management of the business at the place. Acceptance of service by solicitor 38.(1) A solicitor may accept service of a document for a party. (2) The document is taken to have been served on the party, unless the party proves the solicitor did not have authority to accept service for the party. (3) This section applies whether or not personal service of the document is required under this Act. (4) The solicitor must make a note on a copy of the document to the effect that the solicitor accepts service for the party. Informal service 39.(1) This section applies if— (a) for any reason, a document is not served as required by this division but the document or a copy of it came into the possession of the person to be served; and (b) the tribunal is satisfied on evidence before it that the document came into the person's possession on or before a particular day. (2) The tribunal may, by order, decide that the possession of the document is service for this Act on the day it came into the person's possession or a later day stated in the order. NAN BPW NE 1114 16 18 2023 26 s 40 26 s41 Queensland Building Tribunal Division 5—Case management Tribunal to fix time and place for proceedings 40.(1) This section applies if an application has been filed and served under this Act. (2) The tribunal must fix a time and place for the proceedings the tribunal considers necessary for resolution of the matters to which the application and any defence and counterclaim relate. (3) However, the tribunal must not fix a time and place for an application for a matter mentioned in section 30(1)4 until either— (a) adefence and any counterclaim have been filed and served; or (b) the time or extended time (if the tribunal has extended the time for filing a defence and any counterclaim) for filing a defence and counterclaim has ended without a defence being filed. Way tribunal is to conduct proceedings 41.(1) This section applies to a proceeding. (2) The procedure is at the discretion of the tribunal, subject to this Act and the rules of natural justice. (3) The proceeding is to be conducted with as little formality and technicality and with as much speed as the requirements of this Act and a proper consideration of the matters before the tribunal permit. (4) The tribunal is not bound by the rules of evidence but may inform itself in any way it considers appropriate. (5) The tribunal may, if appropriate, conduct the proceeding by means of telephone conferencing, video conferencing or another form of communication that allows reasonably contemporaneous and continuous communication between persons taking part in the proceeding. (6) The tribunal may decide all or part of the proceeding from a consideration of the documents filed, without the parties or witnesses 4 Section 30 (Defence and counterclaim) CMO ADDN BW Bw 13 15 17 1922 2426 28 s 42 27 s 43 Queensland Building Tribunal appearing in person if— (a) the parties to the proceeding agree; and (b) the tribunal considers it appropriate in all the circumstances. Directions and orders 42.(1) The tribunal may make orders, give directions and do whatever is necessary for the expeditious, just, fair and cost effective resolution of a proceeding. (2) The power to give directions under subsection (1) is subject to practice directions under section 13(2)(c).5 (3) Without limiting subsection (1), the tribunal may at any time— (a) set time limits for the completion of anything to be done in relation to the proceeding; and (b) require a party to the proceeding to give the tribunal either or both of the following if the tribunal considers it may be relevant to the proceeding— (i) adocument in the party's possession or control; (11) any other information or evidence. (4) A party must comply with an order or direction within the time stated in the order or direction unless the party applies to the tribunal for and is granted an extension of time to comply with the order or direction. (5) The tribunal, on application of a party or on its own initiative, may at any time vary or revoke an order or direction given by it. (6) The tribunal may not vary or revoke an order or direction given by it if to do so would cause any prejudice or detriment to a party or potential party that can not be remedied by an appropriate order for costs or damages. Documents to which disclosure does not apply 43.11) The duty of disclosure does not apply to the following documents— 5 Section 13 (Chairperson to direct business of tribunal) w om ADM Bp 12 1417 1922 2428 s 44 28 844 Queensland Building Tribunal (a) adocument in relation to which there is a valid claim to privilege from disclosure; (b) a document relevant only to credit; (c) an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding. (2) A document consisting of a statement or report of an expert is not privileged from disclosure. (3) In this section— "duty of disclosure" means a requirement under section 42(4) relating to a document mentioned in section 42(3)(b)(i). Extension of time and waiver of compliance 44.(1) The tribunal, on the application of any person or on its own initiative, may extend a time limit fixed by or under this or another Act for the start of a proceeding. (2) The tribunal, on the application of a party or on its own initiative, may for a proceeding— (a) extend a time limit fixed by or under this Act, the Queensland Building Services Authority Act 1991 or the Domestic Building Contracts Act 1999 for the doing of anything; or (b) waive compliance with any procedural requirement under this Act. (3) The tribunal may extend time or waive compliance even if the time or period for compliance has expired. (4) However, an application for an extension of time to file a defence and any counterclaim under section 30(3)6 must be made before the 14 day period for filing the defence ends. (5) The tribunal may not extend time or waive compliance if to do so 6 Section 30 (Defence and counterclaim) CO ADHERE W NE 1518 2023 25 27 s 45 29 s47 Queensland Building Tribunal would cause any prejudice or detriment to a party or potential party that can not be remedied by an appropriate order for costs or damages. Joinder of parties 45.(1) For a proceeding the tribunal may order that a person be joined as a party to a proceeding if the tribunal considers that— (a) the person ought to be bound by, or have the benefit of, an order of the tribunal in the proceeding; or (b) the person's interests are affected by the proceeding; or (c) for another reason it is desirable the person be joined as a party. (2) The tribunal may make an order under subsection (1) on application of any person or on its own initiative. (3) For a proceeding for a major commercial building dispute a person may not be joined as a party except under section 95.7 Consolidation of proceedings 46. The tribunal may on the application of any person or on its own initiative order that 2 or more proceedings be consolidated if— (a) the same or substantially the same question is involved in all the proceedings; or (b) the decision in | proceeding will decide or affect the other proceeding or proceedings. Sequence of hearings 47. The tribunal may on the application of any person or on its own initiative order that 2 or more proceedings be heard together or in a particular sequence. 7 — Section 95 (Procedure to decide whether all parties consent) Fo © Om NAD UAB WwW ee ion' wn 16 18 20 23 s 48 30 s51 Queensland Building Tribunal Directions 48. If the tribunal orders that proceedings be consolidated or heard together or in a specified sequence, the tribunal may give a direction it considers appropriate for the conduct of the proceeding or proceedings. Variation of order 49. Before or during the hearing of a consolidated proceeding or of proceedings ordered to be heard together or in a particular sequence, the tribunal may order the proceedings be separated or heard in another sequence. Vexatious proceedings 50. If, in the tribunal's opinion, a proceeding has been brought vexatiously or oppressively, the tribunal may— (a) summarily dismiss the proceeding; and (b) order costs against the party by whom the proceeding was brought to compensate the party against whom it was brought for loss, inconvenience and embarrassment resulting from the proceeding. Conduct of proceeding causing disadvantage 51.(1) This section applies if the tribunal considers a party to a proceeding is acting in a way that unreasonably disadvantages another party to the proceeding including by— (a) not complying with a direction or order of the tribunal without reasonable excuse; or (b) asking for an adjournment as a result of not complying with a direction or order of the tribunal; or (c) vexatiously conducting the proceeding; or (d) causing an adjournment. (2) The tribunal may— (a) order that the party causing the disadvantage compensate the other RwWN COND Wn 12 1517 2023 25 2729 s 52 31 $54 Queensland Building Tribunal party for any costs incurred unnecessarily; or (b) if the party causing the disadvantage is the applicant, dismiss the applicant's claim; or (c) if the party causing the disadvantage has filed a counterclaim, dismiss the counterclaim. (3) The tribunal may refuse to continue with the proceeding until an order under subsection (2)(a) is complied with. Withdrawal by applicant 52.(1) The authority may withdraw an application or part of an application under section 108 or 1128 without the tribunal's leave. (2) For other applications, an applicant may withdraw all or part of an application without the tribunal's leave if the applicant has not been served with a defence or counterclaim relating to the application. (3) After being served with a defence or counterclaim, an applicant may withdraw all or part of an application only with the tribunal's leave. (4) Also, if there is more than | applicant, an applicant may withdraw all or part of an application only with the tribunal's leave. (5) An applicant may withdraw against | or more respondents without withdrawing against the other respondents only with the tribunal's leave. Withdrawal by respondent 53. A respondent may withdraw all or part of a defence or counterclaim only with the tribunal's leave. Further application after withdrawal restricted 54. If an applicant withdraws all or part of an application, the applicant may make a further application relating to the same facts and circumstances only with the tribunal's leave. 8 Section 108 (Tribunal may conduct disciplinary proceeding) or 112 (Tribunal may conduct public examination) NH NAB WY 1215 17 19 22 26 s 55 32 s 58 Queensland Building Tribunal Costs order on applicant's withdrawal 55. If an applicant withdraws all or part of an application, the tribunal may make an order that the applicant pay all, or part of, the costs of the other parties to the proceeding. Notice of withdrawal 56.(1) A withdrawal for which the tribunal's leave is not required may be effected by filing a notice of withdrawal and serving it as soon as practicable on the other parties. (2) A withdrawal for which the tribunal's leave is required is effected by the order giving leave and a notice of withdrawal is not required. Division 6—Costs generally Security for costs 57.(1) On the application of a party against whom a claim is made or an outcome or order sought in a proceeding, the tribunal may order— (a) that another party give security for the costs of the party applying for security within the time stated in the order; and (b) that the proceeding as against the party applying for security be stayed until the security is given. (2) An application under subsection (1) may be made at any time before the proceeding ends. (3) If security for costs is not given within the time stated in the order, the tribunal may make an order dismissing the proceeding as against the party applying for security. Discretionary factors for security for costs 58. In deciding whether to make an order under section 57, the tribunal may have regard to any of the following matters— (a) the means of the parties to the proceeding; RwWN CoO DANI D WN 14 16 18 20 2226 s59 33 s 60 Queensland Building Tribunal (b) the prospects of success or merits of the proceeding; (c) the genuineness of the proceeding; (d) if the party against whom an order for costs is sought suffers from a lack of means, whether this is attributable to the conduct of the applicant for the order; (e) whether an order for security for costs would be oppressive; (f) whether an order for security for costs would stifle the proceeding; (g) whether delay by a party in starting the proceeding has prejudiced another party; (h) the costs of the proceeding; (i) anything else the tribunal considers relevant. Way security given 59.(1) If the tribunal orders a party to give security for costs, the security must be given in the form, at the time, and on the conditions, if any, the tribunal directs. (2) If the tribunal does not state the form of the security— (a) it must be given in a form approved by the registrar; and (b) the form of security approved by the registrar must be written on the order before it is issued. (3) A party who gives security for costs must as soon as practicable after giving security serve on the applicant for security written notice of when, and the way in which, the security was given. Finalising security 60.(1) This section applies if, in a proceeding, security for costs has been given by a party under an order made about security for costs under section 57. (2) If the tribunal decides the party must pay all or part of the costs of the proceeding, the security may be applied in satisfaction of the costs. cow eAIY DA nNABPW NV Se Se Ne 1518 20 222629 s 61 34 s 61 Queensland Building Tribunal (3) However, the security must be discharged— (d) if the tribunal's decision relating to the proceeding does not require the party to pay all or part of the costs of the proceeding; or if the tribunal orders the discharge of the security; or if the party entitled to the benefit of the security consents to its discharge; or in relation to the balance after costs have been satisfied under subsection (2). General power of tribunal to award costs 61.(1) In a proceeding, the tribunal may award the costs it considers appropriate on— (a) (b) the application of a party to the proceeding; or its own initiative. (2) The costs the tribunal may award may be awarded at any stage of the proceeding or after the proceeding has ended. (3) If the tribunal awards costs during a proceeding, the tribunal may order that the costs not be assessed until the proceedings ends. (4) In deciding whether to award costs, and the amount of the costs, the tribunal may have regard to the following— (a) (b) (c) (d) (e) (f) the outcome of the proceeding; the conduct of the parties to the proceeding before and during the proceeding; the nature and complexity of the proceeding; the relative strengths of the claims made by each of the parties to the proceeding; any contravention of the Queensland Building Services Authority Act 1991, the Domestic Building Contracts Act 1999 or any other Act by a party to the proceeding; for a proceeding to which the authority is a party, whether the CO IAD ND Bw 12 14 16 18 20 23 26 28 s 62 35 s 64 Queensland Building Tribunal other party to the proceeding was afforded natural justice by the authority; (g) anything else the tribunal considers relevant. (5) A party to a proceeding is not entitled to costs merely because— (a) the party was the beneficiary of an order of the tribunal; or (b) the party was legally represented at the proceeding. (6) The power of the tribunal to award costs under this section is in addition to the tribunal's power to award costs under another provision of this or another Act. Stay pending payment of costs 62.(1) This section applies if a party has been ordered to pay the costs of another party whether under section 61 of otherwise, and the party, before paying the costs, starts another proceeding before the tribunal against the other party. (2) The tribunal may order a stay of the other proceeding until the costs are paid. Division 7—Representation Purposes of div 7 63. The main purpose of this division is to have parties represent themselves and save legal costs unless the interests of justice require otherwise. Who represents party at mediation and case appraisal 64. Unless the mediator or case appraiser considers it appropriate in the interests of justice to allow a party to be represented by a lawyer or other person, a party must represent himself or herself at mediation or case appraisal. OAN HD Hn FP W NK 1214 16 2024 26 s 65 36 s 66 Queensland Building Tribunal Who represents party at pre-hearing conference 65. Unless the tribunal considers it appropriate in the interests of justice to direct otherwise, a party may be represented by a lawyer or other person at a pre-hearing conference. Who represents party at other proceedings 66.(1) A party to a proceeding, other than a proceeding mentioned in sections 64 and 65, must represent himself or herself. (2) However, a party is entitled to be represented by— (a) a lawyer, if all parties to the proceeding agree; or (b) a lawyer or other person 1f— (i) the proceeding relates to an application under section 116;9 or (11) the proceeding is a disciplinary proceeding; or (11) the proceeding is a public examination; or (iv) the tribunal directs that representation by a lawyer or other person is appropriate having regard to all the circumstances including, for example— (A) the amount involved; and (B) the complexity of the legal and factual issues involved; and (C) the ability of the lawyer or other person to help the tribunal and the party represented; and (D) the ability of the party to represent himself or herself. (3) At a disciplinary proceeding or a public examination a person summonsed to attend may be represented by a lawyer or other person. 9 — Section 116 (Decisions about debts arising from statutory insurance scheme) RwWN Co OND Ww 131620 22 25 $67 37 s 69 Queensland Building Tribunal Representation for a corporation 67. Sections 64 to 66 do not prevent a party that is a corporation from being represented by a person who is not a lawyer. Division 8—Other provisions about proceedings Tribunal may summons witness 68.(1) The tribunal may, on the application of a party to a proceeding or on its own initiative, summons a person to attend before it at the time and place notified in the summons to do either or both of the following— (a) appear as a witness and be examined on oath about the matters the subject of the proceeding; (b) to produce the documents or things stated in the summons or that belong to a class stated in the summons. (2) A person required to appear as a witness is entitled to the witness fees— (a) prescribed under a regulation; or (b) if no witness fees are prescribed—the reasonable witness fees decided by the tribunal. (3) The witness fees must be paid by the person making the application under subsection (1). False or misleading statements 69.(1) A person appearing as a witness before the tribunal must not state anything the person knows is false or misleading in a material particular. Maximum penalty—100 penalty units. (2) In a proceeding for an offence against subsection (1), it is enough for a charge to state the statement was, without specifying which, 'false or misleading'. 22 26 s 70 38 s 72 Queensland Building Tribunal False or misleading documents 70.(1) A person appearing as a witness before the tribunal must not produce a document containing information the person knows is false or misleading in a material particular. Maximum penalty—100 penalty units. (2) Subsection (1) does not apply to a person if the person, when giving the document— (a) tells the tribunal, to the best of the person's ability, how it is false or misleading; and (b) if the person has, or can reasonably obtain, the correct information—gives the correct information. (3) In a proceeding for an offence against subsection (1), it is enough for a charge to state the document was, without specifying which, 'false or misleading'. Inspection of documents or things 71.(1) If a document or thing is produced to the tribunal, the tribunal may— (a) inspect the document or thing; and (b) copy or photograph the document or thing if it is relevant to the proceeding before the tribunal. (2) The tribunal may also take possession of the document or thing, and keep it while it is necessary for the proceeding. (3) While it keeps a document or thing, the tribunal must permit a person otherwise entitled to possession of it to inspect, copy or photograph the document or thing at a reasonable place and time the tribunal decides. Offences by witnesses 72.(1) A person summonsed to attend before the tribunal must not fail, without reasonable excuse to— (a) attend as required by the summons; or Fo OAM ND WH PWN ee See BRWN 17 20 22 2428 s 73 39 s 73 Queensland Building Tribunal (b) continue to attend as required by the tribunal until excused from further attendance. Maximum penalty—80 penalty units. (2) A person appearing as a witness before the tribunal must take an oath when required by the tribunal. Maximum penalty—80 penalty units. (3) Also, a person appearing as a witness before the tribunal must not fail, without reasonable excuse— (a) to answer a question the person is required to answer by the tribunal; or (b) to produce a document or thing the person is required to produce under a summons. Maximum penalty—80 penalty units. (4) It is a reasonable excuse to refuse to answer a question or produce a document or thing on the ground that the answer or production of the document or thing might tend to incriminate the person. (5) Despite subsection (1), the tribunal may at any time excuse a person for failing to attend at the time and place notified. (6) This section is subject to section 73. Person must answer certain questions 73.(1) This section applies if a person, at a public examination, refuses to answer a question about the person's financial affairs. (2) If the tribunal requires the person to answer the question, the tribunal must advise the person of the following— (a) that if the answer might incriminate the person, the person may claim, before giving the answer, that giving the answer might incriminate the person; (b) the effect that making the claim will have on the admissibility of the answer in any proceeding against the person. (3) The person must answer the question, unless the person has a reasonable excuse. COANY DBD Uf WwW Ne 12 1518 22 24 2629 31 s 74 40 s 75 Queensland Building Tribunal Maximum penalty—S00 penalty units. (4) It is not a reasonable excuse to fail to answer the question that answering might tend to incriminate the person. (5) Subsection (6) applies if an answer might incriminate the person and the person claims, before giving the answer, that giving the answer might incriminate the person. (6) The answer is not admissible in any criminal or civil proceeding against the person, other than a proceeding in which the falsity or misleading nature of the answer is relevant. (7) For subsection (6), the following are not proceedings against the person— (a) the public examination of a person; (b) a proceeding for the review of a decision of the authority under part 5, division 2.10 Warrant may be issued if witness does not attend 74.(1) If a person summonsed does not attend as required by the summons, the tribunal may— (a) issue a warrant directed to all police officers to bring the person at the time, and to the place, stated in the warrant to give evidence at a proceeding before the tribunal; and (b) adjourn the hearing to the time and place mentioned in paragraph (a) on terms as to costs the tribunal considers appropriate. (2) A warrant issued under subsection (1) is sufficient authority for a police officer to execute it according to its terms. Powers of tribunal relating to taking of evidence 75.(1) For a proceeding, the tribunal may— (a) take evidence on oath; or 10 Part 5 (Particular jurisdiction of the tribunal), division 2 (Proceedings for review) Fo OMAN DWNF WN Se See N eile' Rw 17 192225 27 s 76 41 s77 Queensland Building Tribunal (b) require a person who is to give evidence before the tribunal to take an oath; or (c) administer an oath to a person who is to give evidence before the tribunal. (2) The oath to be taken or made by a person is an oath that the evidence the person will give will be true. Referral of matters for expert report 76.(1) The tribunal may refer a matter of a technical nature arising in the course of a proceeding for investigation by an appropriate expert. (2) The expert must report the results of the investigation in writing to the tribunal and provide the parties with copies of the report. (3) The tribunal may adopt the findings of the expert in whole or in part. (4) The parties to the proceeding are responsible for any costs of an expert, and must pay those costs in the proportions decided by the tribunal. (5) In doing anything for the purposes of subsection (2), the expert has the same protection and immunity as a member of the tribunal. Entry and inspection of property 77.(1) The member may, if it is necessary to do so for the purposes of a proceeding before the tribunal— (a) for a view, enter and inspect a building or land relevant to the proceeding accompanied by the parties to the proceeding; or (b) authorise a person in writing to take the following action and report to the tribunal on the action taken— (i) enter and inspect a building or land relevant to the proceeding; (11) take photographs,video film or an image of the building or land or anything relevant to the proceeding; (11) carry out tests approved by the tribunal. Dn BW Ne 11 14 16 19 21 23 25 27 s 78 42 s 79 Queensland Building Tribunal Examples of 'building or land relevant to the proceeding'— A display home mentioned in a contract as the model to be followed by a building contractor if the display home is occupied by a third party. Land adjoining other land on which is situated building work the subject of a proceeding to better inspect the building work from the adjoining land. (2) A person who obstructs a member, or a person authorised under subsection (1)(b), in the exercise of a power mentioned in subsection (1) commits an offence. Maximum penalty—200 penalty units. Procedure before entry 78.(1) This section applies to entry under section 77. (2) Before entering a building or land the member or a person authorised to enter must do or make a reasonable attempt to do the following— (a) give an occupier or, if there is no occupier, the owner, reasonable notice of the entry; (b) on arriving at the building or land, identify himself or herself to a person present who is an occupier of the building or land by producing— (i) for the member, a copy of the member's notice of appointment or other document evidencing the appointment; or (11) for a person authorised to enter, a copy of the authorisation and evidence that the person is the person authorised; (c) give the person present a copy of the things produced under subsection (2)(b); (d) tell the person present the member or authorised person is permitted to enter the building or land. Contempt of tribunal 79.(1) A person is in contempt of the tribunal if the person— (a) insults a member or a member of the tribunal staff at a CMID WH WH 11 13 15 172023 25 27 29 s 80 43 s 80 Queensland Building Tribunal proceeding, or in going to or returning from the proceeding; or (b) deliberately interrupts a proceeding, or otherwise misbehaves at a proceeding; or (c) creates or continues, or joins in creating or continuing, a disturbance in or near a place where a proceeding is being conducted; or (d) obstructs or assaults a person attending a proceeding; or (e) without lawful excuse, disobeys a lawful order or direction of the tribunal made or given at a proceeding; or (f) obstructs a member, or a person authorised under section 77(1), in the exercise of a power under section 77(1); or (g) does anything at a proceeding or otherwise that would be contempt of court if the tribunal were a court of record. (2) The tribunal may order that a person who contravenes subsection (1) at a proceeding be excluded from the place where the proceeding is being conducted. (3) A member of the tribunal staff, acting under the tribunal's order, may, using necessary and reasonable help and force, exclude the person from the place. Punishment of contempt 80.(1) Without limiting the tribunal's power to punish for contempt under section 79, a person's contempt of the tribunal may be punished under this section. (2) The chairperson may certify the contempt in writing to the Supreme Court (the "court"). (3) For subsection (2), it is enough for the chairperson to be satisfied there is evidence of contempt. (4) The chairperson may issue a warrant directed to a police officer or all police officers for the arrest of the person to be brought before the court to be dealt with according to law. (5) The Bail Act 1980 applies to the proceeding for the contempt started by the certification in the same way it applies to a charge of an offence. BPO C0 NIN ANR WN | ee ee wn a Dnt eee oon 2225 27 2932 s 81 44 s 83 Queensland Building Tribunal (6) The court must inquire into the alleged contempt. (7) The court must hear— (a) witnesses and evidence that may be produced against or for the person whose contempt was certified; and (b) any statement given by the person in defence. (8) If the court is satisfied the person has committed the contempt, the court may punish the person as if the person had committed the contempt in relation to proceedings in the court. (9) The Uniform Civil Procedure Rules 1999 apply to the court's investigation, hearing and power to punish with necessary changes. (10) The chairperson's certificate of contempt is evidence of the matters contained in the certificate. Conduct that is contempt and offence 81. If conduct of a person is both contempt of the tribunal and an offence, the person may be proceeded against for the contempt or for the offence, but the person is not liable to be punished twice for the same conduct. Protection of persons before tribunal 82.(1) A person representing a person before the tribunal has the same protection and immunity as a barrister has if appearing for a party in a proceeding in the District Court. (2) A person summoned to attend or appearing before the tribunal as a witness has the same protection as a witness in a proceeding in the District Court. Division 9—Tribunal decisions and enforcement Form of decisions of tribunal 83.(1) A decision of the tribunal that finally decides matters the subject of the proceeding— 15192227 s 84 45 s 85 Queensland Building Tribunal (a) must be in writing; and (b) must state the decision, and the reasons for the decision; and (c) may be published. (2) To remove doubt, it is declared that this section does not apply to a pre-hearing conference. When decision takes effect 84. A decision of the tribunal takes effect— (a) ifall parties to a proceeding before the tribunal are present when the decision is given or order is made—when the decision is given or the order is made; or (b) if 1 party only is not present when the decision is given or order is made—when the party is served with the decision; or (c) if 2 or more parties are not present when the decision is given or order is made—when the decision is served on all of those parties. Registration and enforcement of decisions 85.(1) A person (the "registrant") may register a decision by the tribunal by filing in the registry of the appropriate court— (a) acopy of the decision certified as correct by the registrar; and (b) the registrant's affidavit deposing to— (i) service of a certified copy of the decision on the party against whom the decision was given; and (11) noncompliance, or the extent of noncompliance, with the decision by that party. (2) On registration of the decision in the appropriate court— (a) the decision has, for the purposes of enforcement, the same force and effect; and (b) proceedings may be taken on the decision; and (c) the amount, if any, for which the decision is registered carries nk WwW NY onan 12 1418 20 22 24 27 29 s 86 46 s 86 Queensland Building Tribunal interest; and (d) the appropriate court has the same control over the enforcement of the decision; as if the decision had been originally given as a judgment of the appropriate court and entered on the day of registration. (3) No court fee is payable for filing the decision and affidavit in the appropriate court's registry. (4) In this section— "appropriate court" means— (a) the Magistrates Court if the tribunal's decision is within that court's jurisdictional limit; or (b) im any other case—the District Court. (5) For subsection (2), the appropriate court is taken to have had jurisdiction to make the decision. Consequences of failure to comply with tribunal's orders and directions 86.(1) The tribunal may, in a proceeding to which a licensee is a party, order that the licensee's licence be suspended or cancelled if the licensee fails to comply with an order or direction of the tribunal within the time allowed by the tribunal. (2) Before ordering that a licence be suspended or cancelled, the tribunal must give the licensee a reasonable opportunity to show cause why it should not be cancelled or suspended. (3) Subsection (2) does not apply to an order or direction made in disciplinary proceedings under part 5, division 3.11 (4) An order under this section operates, of its own force, to suspend or cancel the licence if the licensee fails to comply with the tribunal's order or direction within the time allowed by the tribunal. 11 Part 5 (Particular jurisdiction of the tribunal), division 3 (Disciplinary proceedings) Ne ion ro OU OD AND ALE W a N eile' Rw 16 1820 2225 27 s 87 47 s 87 Queensland Building Tribunal Division 10—Further action in relation to a proceeding Correcting mistakes 87.(1) The tribunal may correct a decision made by it if the decision contains— (a) aclerical mistake; or (b) an error arising from an accidental slip or omission; or (c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the decision; or (d) a defect of form. (2) The correction may be made— (a) on the tribunal's own initiative; or (b) onthe written application of a party to the proceeding to which the decision relates. (3) An application under this section— (a) must be made within 14 days after the making of the decision; and (b) must be based on something mentioned in subsection (1)(a) to (d) that is of sufficient significance to have influenced the outcome of the proceeding. (4) The tribunal need not conduct a hearing for the application. (5) The correction— (a) may be made by the member who made the decision, the chairperson or another member; and (b) must be made only on the evidence placed before the tribunal at the hearing of the proceeding in which the decision was made. (6) The making of the application under this section does not, of itself, stop the order or decision from taking effect according to its terms. COI HD nN BW wp Se Be NF oO aon' Bw Nn Ree na 1922 24 26 28 s 88 48 s91 Queensland Building Tribunal Reopening an order if party does not appear 88.(1) A person in relation to whom an order is made may apply to the tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made. (2) An application under this section must be made within 14 days after the order is served on the person. (3) A person may apply only once in relation to the same order. (4) The tribunal may grant the application if satisfied that the applicant had a reasonable excuse for not attending or for not being represented at the hearing. (5) On a review under this section, the tribunal may confirm, vary or revoke the order. Reopening an order if problems with interpretation or implementation 89.(1) A party to a proceeding may apply to the tribunal to vary an order if the party considers there are problems with interpreting or implementing the order. (2) The tribunal may grant the application if satisfied that there are problems with interpreting or implementing the order. (3) The tribunal may grant an application under subsection (2) only if it has given all parties to the proceeding an opportunity to be heard on the application. Application to reopen order must not be made if appeal filed 90. An application under sections 88 or 89 must not be made for a proceeding in relation to which an appeal has been filed under section 92. Cases stated 91.(1) The tribunal may, on the application of a party to a proceeding or on its own initiative, state a case on a question of law arising in the proceeding for the opinion of the District Court. (2) The District Court may decide a question of law stated under this aonnann BwWN 12 1518 2024 27 $92 49 $92 Queensland Building Tribunal section as it considers just and make consequential or ancillary orders and directions. (3) If a question has been stated for the opinion of the District Court, the tribunal must not, in the proceeding— (a) make a decision to which the question is relevant while the reference is pending; or (b) proceed in a way, or make a decision, that is inconsistent with the District Court's opinion on the question. Appeals 92.(1) A party to a proceeding before the tribunal may appeal to the District Court against a decision of the tribunal that finally decides matters the subject of the proceeding. (2) An appeal must be filed within 28 days after the decision takes effect. (3) An appeal must— (a) be accompanied by the tribunal's decision and reasons for decision, if any; and (b) refer to the tribunal's decision and reasons for decision, if any, and any other relevant material and state the grounds for the application. (4) The appeal is by way of rehearing, unaffected by the tribunal's decision, on the material before the tribunal and any further evidence allowed by the District Court. (5) The tribunal is not a party to the appeal but the party appealing must serve a copy of the appeal and supporting documents on the tribunal within 7 days of filing the appeal in the District Court. (6) On an appeal, the District Court may do any of the following— (a) confirm, annul, vary or reverse the tribunal's decision; or (b) remit the case to the tribunal for further hearing or rehearing; or (c) make consequential or ancillary orders or directions. (7) The registrar of the District Court must give the tribunal a copy of the court's judgment and reasons. OI AN BW NE 1114 16 1821242729 31 s 93 50 $94 Queensland Building Tribunal PART 5—PARTICULAR JURISDICTION OF THE TRIBUNAL Division 1—Building disputes Tribunal may decide building dispute 93.(1) A person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute. (2) Without limiting the tribunal's powers to resolve the dispute, the tribunal may exercise | or more of the following powers— (a) order the payment of an amount found to be owing by | party to another; (b) order relief from payment of an amount claimed by | party from another; (c) award damages, including damages in the nature of interest; (d) order restitution; (e) declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice; (f) avoid a policy of insurance under the statutory insurance scheme; (g) order rectification or completion of defective or incomplete building work; (h) award costs. When major commercial building dispute may be heard by tribunal 94. However, a major commercial building dispute may be decided by the tribunal only if the tribunal is satisfied all parties to the dispute consent to it doing so. 24 s 95 51 s97 Queensland Building Tribunal Procedure to decide whether all parties consent 95.(1) An application to start a proceeding for a major commercial building dispute must be accompanied by the written consent of all parties to the dispute. (2) The written consent must include an acknowledgment by the consenting party that the consent can not be withdrawn. (3) The tribunal may, before another step is taken in the proceeding, conduct a pre-hearing conference to decide whether there is another person who should be joined as party to the dispute. (4) If the tribunal decides that there is another person who should be joined as party to the dispute, the tribunal— (a) must give the consenting parties an opportunity to obtain the written consent of the other person; and (b) may hear the dispute only if the other person consents. (5) If the consenting parties obtain the consent of the other person, the tribunal must join the other person as a party to the dispute. (6) The consent of all parties to the dispute must be obtained before another step is taken in the proceeding. Procedure if another party discovered 96.(1) This section applies if the tribunal becomes aware that there is another person who should be joined as a party to a major commercial building dispute (other than at a pre-hearing conference under section 95). (2) The tribunal does not have jurisdiction to decide the dispute. (3) The tribunal must order that the proceeding be removed to a court under section 117(3).12 Consent may not be withdrawn 97. A party that gives written consent to have a major commercial 12 Section 117 (Transfer of proceedings between tribunal and the courts) Fo OMAN AYN FPwWNH il oon wn os eR num ile' on 2125 27 s 98 52 s 98 Queensland Building Tribunal building dispute heard and decided by the tribunal can not withdraw the consent. Tribunal may make interim order 98.(1) Before finally deciding a building dispute, the tribunal may make 1 or more of the interim orders mentioned in subsections (2) to (4). (2) The tribunal may make an order requiring a building contractor to rectify or complete defined building work, or building work to be defined by a process identified in the order, that is the subject of the dispute. (3) The tribunal may make an order requiring a building owner, in relation to the amount claimed to be owing from the building owner to a building contractor, to do 1 or more of the following— (a) pay an amount decided by the tribunal into the tribunal's trust account!3 to be held until the tribunal is satisfied that the building contractor has completed the building work; (b) provide security of a type and for an amount decided by the tribunal until the tribunal is satisfied that the building contractor has completed the building work; (c) pay an amount decided by the tribunal to the building contractor. (4) The tribunal may make an order requiring a person, in relation to the amount claimed to be owing from the person to a subcontractor, to do | or more of the following— (a) pay an amount decided by the tribunal into the tribunal's trust account to be held until the tribunal is satisfied that the subcontractor has completed the building work; (b) provide security of a type and for an amount decided by the tribunal until the tribunal is satisfied that the subcontractor has completed the building work; (c) pay an amount decided by the tribunal to the subcontractor. (5) On being satisfied the building work has been completed the tribunal must order— 13 Section 163 (Trust account) Ne eee ee BwWwN FOU ANAND NAS Ww Bee IAG Co Nwpore EH So NNN BRwWN NwHn NAY N o wn ow s 99 53 s 100 Queensland Building Tribunal (a) the amount paid into the tribunal's trust account under subsection (3)(a) or (4)(a) be paid to the building contractor or subcontractor; or (b) the application of the security in satisfaction of the amount decided by the tribunal under subsection (3)(b) or (4)(b) in favour of the building contractor or subcontractor. (6) However for subsection (5)(b), the tribunal may order that the security be discharged if an amount equal to the amount of the security is paid to the building contractor or subcontractor. Proceeding in tribunal stops action by authority 99.(1) If a proceeding about a building dispute is started in or removed from a court to the tribunal— (a) the tribunal is to have the management of the dispute; and (b) the authority must not act in relation to the dispute except as allowed or required by section 100 or 101. (2) To remove doubt, it is declared that nothing in this section affects a direction that building work be rectified or completed issued by the authority before the proceeding is started or removed. Reports by authority to tribunal 100.(1) If asked by the tribunal, the authority must give the tribunal a report about a building dispute that includes— (a) details of building work the authority considers is defective or incomplete; and (b) an assessment of the time within which the rectification or completion work should be finished; and (c) other matters of a technical nature asked for by the tribunal. (2) A report under subsection (1) must be given within the reasonable time stated by the tribunal in the request. CHOI AUN WHE 12 15 1721 23 25 28 s 101 54 s 103 Queensland Building Tribunal Tribunal to decide about rectification or completion work 101.(1) This section applies if— (a) a proceeding about a building dispute is started in, or removed from a court to, the tribunal; and (b) before the proceeding is started or removed, the authority has acted in relation to the building dispute but has not issued a direction that building work be rectified or completed. (2) The authority may apply to the tribunal for an order that building work be rectified or completed if the authority considers the building work needs to be urgently rectified or completed. (3) The application must be heard by the tribunal as an expedited hearing. (4) Whether or not the authority applies under subsection (2), the authority may also apply to the tribunal for a decision about whether it would have been appropriate for the authority to have issued a direction to rectify or complete building work if section 99 had not stopped the authority from acting further in relation to the dispute. (5) The tribunal must make a decision under subsection (4) if it hears the proceeding mentioned in subsection (1). Tribunal may hear dispute while contract still in operation 102. The tribunal may make an order to resolve a building dispute even though the contract under which the dispute arose has not been terminated or finalised. Tribunal may hear dispute regardless of related criminal or disciplinary action 103.(1) This section applies if matters arising in a building dispute involve the contravention, or the alleged contravention, by a building contractor of the Queensland Building Services Authority Act 1991 or another Act. (2) The tribunal may make an order to resolve the dispute whether or not the building contractor— (a) has been charged with, convicted of or sentenced for an offence COM NDUMN Fw NY an Pere Ree DAwnwkwWNd ile' on 2124 2628 30 s 104 55 s 104 Queensland Building Tribunal (b) (c) arising out of the contravention; or is the subject of a pending disciplinary proceeding relating to the contravention; or may be, or has been, subject to disciplinary action under section 11114 relating to the contravention. Division 2—Proceedings for review Reviewable decisions 104.(1) The tribunal may review the following decisions of the authority made under the Queensland Building Services Authority Act 199]— (a) (b) (c) (d) (ec) (f) (g) (h) (i) 0) a decision to refuse an application for a licence or a permit; a decision to impose or vary a condition of a licence; a decision to suspend or cancel a licence; a decision that there are reasonable grounds for concern that a licensee does not satisfy the relevant financial requirements for a licence; a decision to direct or not to direct rectification or completion of building work; a decision that building work undertaken at the direction of the authority is or is not of a satisfactory standard; a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete building work; a decision to disallow a claim under the statutory insurance scheme wholly or in part; a decision that a domestic building contract has been validly terminated having the consequence of allowing a claim for non- completion under the statutory insurance scheme; a decision not to categorise an individual as a permitted individual for a relevant event; 14 Section 111 (Orders for disciplinary action) np WN 111417 19 21 23 26 28 s 104 56 s 104 Queensland Building Tribunal (k) a decision under the Queensland Building Services Authority Act 1991, section 56AF or 56AG15 that— (i) aperson is an excluded individual or excluded company; or (11) an individual is still a director or secretary of, or an influential person for, a company. (2) However, the tribunal may not review the following decisions of the authority made under the Queensland Building Services Authority Act 199]— (a) (b) (c) a decision to recover an amount under the Queensland Building Services Authority Act 1991, section 7116; a decision to direct rectification or completion of building work by a building contractor and any finding by the authority in arriving at the decision if— (1) 28 days have elapsed from the date the direction to rectify or complete was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision; and (11) the authority has— (A) started a disciplinary proceeding against the building contractor by an application under division 3;!7 or (B) served a notice on the building contractor advising a claim under the statutory insurance scheme has been approved in relation to building work stated in the direction; a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete building work if 28 days have elapsed since the decision was served on the 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.) Division 3 (Disciplinary proceedings) CID HDR WwW HH 121517 20 2224 26 s 105 57 s 106 Queensland Building Tribunal building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision. Application for review 105.(1) A person affected by a reviewable decision of the authority may apply to the tribunal for a review of the decision. (2) The application must be made within 28 days after the applicant receives written notice of the decision. (3) To remove doubt, it is declared that the application must be served on the authority under section 29(4).18 (4) On an application for review of a reviewable decision, the tribunal may confirm, annul, vary or reverse the decision under review and make consequential orders and directions including the awarding of costs. Stay of operation of decision 106.(1) The tribunal may make an order staying the operation of a decision in relation to which an application for review has been made to the tribunal. (2) The tribunal may make the order on the application of a party to the review proceeding or on its own initiative. (3) In making the order, the tribunal— (a) may require any undertaking as to costs or damages it considers appropriate; and (b) may make provision for the lifting of the order if stated conditions are met. (4) The tribunal may assess costs or damages mentioned in subsection (3)(a). 18 Section 29 (Start of proceedings) 1518 21 23 25 s 107 58 s 109 Queensland Building Tribunal Tribunal may try to reach settlement during review 107.(1) At any time after an application is made under section 105, the tribunal may try to reach a negotiated settlement between the parties to the review proceeding. (2) The tribunal may adjourn the review proceeding to allow the parties to try to reach a settlement. Division 3—Disciplinary proceedings Tribunal may conduct disciplinary proceeding 108. The tribunal may, on application by the authority, conduct a proceeding to decide whether proper grounds exist for taking disciplinary action against a person under this division. Proper grounds for disciplinary action against a licensee 109. For section 108, proper grounds exist for taking disciplinary action against a licensee if— (a) the licensee contravenes a requirement imposed under this Act, the Queensland Building Services Authority Act 1991 or the Domestic Building Contracts Act 1999; or (b) the licensee is convicted of an indictable offence; or (c) ifa licensee is a corporation—a director or other person who is in a position to control or substantially influence the conduct of the corporation's affairs is not a fit and proper person to exercise that control or influence; or (d) the licensee is carrying on business under the licence in partnership with a person who is not a fit and proper person to have an interest in the business; or (e) the licensee is bankrupt or insolvent; or (f) the licensee has committed an offence involving fraud or dishonesty relating to the business carried on under the licence; or (g) the licensee knowingly helps a person to perform building work Dun FBWN 11 14 162022 2428 s 110 59 s110 Queensland Building Tribunal (h) (i) 0) (k) (I) in contravention of the Queensland Building Services Authority Act 199] or the Domestic Building Contracts Act 1999; or the licensee contravenes or is taken to have contravened the Fair Trading Act 1989 in relation to building work carried out under the licence; or the licensee is negligent or incompetent in carrying out building work under the licence; or the licensee fails to comply with a direction of the authority under the Queensland Building Services Authority Act 1991 to rectify or complete building work; or the licensee contravenes a condition of the licence; or the licensee owes an amount to the authority and fails to comply with a demand by the authority to pay the amount; or (m) the licensee fails to comply with an order of the tribunal. Proper grounds for disciplinary action against person not a licensee 110. For section 108, proper grounds exist for taking disciplinary action against a person who is not a licensee if the person— (a) (b) (c) (d) (e) carries out building work for which a licence is required without holding a licence of the appropriate class; or has committed an offence involving fraud or dishonesty relating to the performance of building work; or contravenes or is taken to have contravened the Fair Trading Act 1989 in relation to the performance of building work; or is negligent or incompetent in carrying out building work for which a licence is required; or fails to comply with a direction of the authority under the Queensland Building Services Authority Act 1991 to rectify or complete building work. lan olle <) Na OA BR WwW NR eS an lon' wn os 17 19 21 23 25 27 s111 60 s111 Queensland Building Tribunal Orders for disciplinary action 111.(1) If the tribunal decides that proper grounds exist for taking disciplinary action against a person, the tribunal may make | or more of the orders mentioned in subsections (2) to (4). (2) The tribunal may make an order imposing a penalty on the person of not more than— (a) for an individual—an amount equivalent to 200 penalty units; or (b) for a corporation—an amount equivalent to 1 000 penalty units. (3) The tribunal may, in relation to defective or incomplete building work carried out by the person for a building owner— (a) make an order that the person rectify or complete the work; or (b) if the person is not appropriately licensed to rectify or complete the work—make an order that the person have the work rectified or completed by another person who is appropriately licensed; or (c) make an order that the person pay the building owner an amount sufficient to rectify or complete the work. (4) If the person is a licensee, the tribunal may make an order— (a) reprimanding the licensee; or (b) suspending the licence; or (c) imposing conditions on the licence; or (d) cancelling the licence. (5) The authority may recover an amount ordered by the tribunal to be imposed as a penalty as a debt due to it in the appropriate court. (6) In this section— "appropriate court" means— (a) the Magistrates Court if the amount ordered by the tribunal's decision is within that court's jurisdictional limit; or (b) in any other case, the District Court. SCO ON DAWN BWH LD eS an eli andilend RwWN eR num wN Fe Be Be Se SO wm AN NN wh Ny N na & Nw Na N o $112 61 s 113 Queensland Building Tribunal Divisio n 4—Public Examinations Tribunal may conduct public examination 112. The tribunal may, on application by the authority, conduct a public examination— (a) that investigates the conduct or competence of a person who has carried out build work; or ing work or undertaken to carry out building (b) that investigates whether a person— (i) meets the Queensland licence held (11) has the qua Queensland licence held financial requirements imposed under the Building Services Authority Act 1991 for the by the person; or ifications and experience required under the Building Services Authority Act 1991 for the by the person; or (11) if the person is the nominated supervisor for a corporation that holds a icence under the Queensland Building Services Authority Act 1991—has the qualifications and experience required for the licence held by the corporation; or (iv) is a fit and proper person to hold a licence under the Queensland Building Services Authority Act 1991; or (v) ifthe person exercises control over a corporation that holds a licence under the Queensland Building Services Authority Act 1991—1s a fit and proper person to exercise control over the corporation; or (vi) has breached a condition imposed on the person's licence. Procedure before public examination starts 113.(1) Before the start satisfied each person who of a public examination, the tribunal must be is the subject of the public examination has received the following in writing— (a) the grounds for th e public examination; BEOoD OM NIDAWN PW LH ee eli andilend RwWN RP Ree onan Ne cow NRNNN BRONE N Nn 28 s114 62 s114 Queensland Building Tribunal (b) if the application is based on a complaint to the authority—the substance of the complaint. (2) On being satisfied under subsection (1), the tribunal must decide a time and place for the public examination. (3) If the person is a corporation, for the purposes of the public examination, the tribunal may under section 6819 summons a director or an executive officer of the corporation. (4) The tribunal must serve on each person who is the subject of the public examination and the authority written notice stating— (a) the time and place for the public examination decided by the tribunal; and (b) that oral and written submissions may be made to the public examination. Division 5—Stop orders and suspension orders Stop orders 114.(1) This section applies if the tribunal is satisfied, on application by the authority, that building work is being carried out, or is about to be carried out, in contravention of the Queensland Building Services Authority Act 1991. (2) The tribunal may, by order, prohibit the person who is carrying out, or about to carry out, the building work (the "prohibited person") from starting or continuing the building work. (3) The tribunal may make an order under this section on application by the authority made without notice to the prohibited person but, in that case, the tribunal must allow the prohibited person a reasonable opportunity to show cause why the order should not be confirmed. (4) If the tribunal, after considering the prohibited person's evidence and representations, if any, and any further evidence or representations of the authority, is not satisfied the order should continue in force, the tribunal 19 Section 68 (Tribunal may summons witness) Bo COM NINDN BW NE ee ion' wn os 1719 2124 26 28 s 115 63 s 115 Queensland Building Tribunal must rescind the order. (5) A person must not carry out building work in contravention of an order under this section. Maximum penalty—S00 penalty units. Suspension orders 115.(1) If the tribunal is satisfied, on application by the authority, that a licence should be suspended, the tribunal may, by order, suspend the licence— (a) for the period the tribunal considers just; or (b) until the holder of the licence (the "suspended person") complies with a condition imposed on the licence by the authority or tribunal. (2) The order may direct the suspended person to deliver the licence to the authority and include any other directions the tribunal considers necessary or convenient to give effect to the order. (3) The tribunal may make an order under this section on application made without notice to the suspended person, but, in that case, the tribunal must subsequently allow the suspended person a reasonable opportunity to show cause why the order should be rescinded. (4) If the tribunal after considering the suspended person's evidence and representations, if any, and any further evidence or representations of the authority, is not satisfied the order should continue in force, the tribunal must rescind the order. (5) The holder of a licence who contravenes a direction under subsection (2) commits an offence. Maximum penalty—80 penalty units. BR WN eorAID WN 11141719 2123 25 s 116 64 s117 Queensland Building Tribunal Division 6—Decisions about debts arising from statutory insurance scheme Decisions about debts arising from statutory insurance scheme 116.(1) The authority may recover a debt under the Queensland Building Services Authority Act 1991, section 7120 by application to the tribunal under this section. (2) The tribunal may exercise | or more of the following powers— (a) order the payment of an amount the tribunal has found to be owing to the authority; (b) order the payment of interest on the amount mentioned in paragraph (a); (c) order the payment of costs; (d) order that amounts mentioned in paragraphs (a), (b) and (c) be paid by instalments or another way directed by the tribunal. Division 7—Transfer of proceedings Transfer of proceedings between tribunal and the courts 117.(1) Ifa proceeding is brought in a court, and the proceeding could be heard by the tribunal under this Act the court must, on the application of a party, order that the proceeding be removed to the tribunal. (2) To remove doubt, it is declared that if proceedings relating to a major commercial building dispute are brought in a court, the court may order that the proceeding be removed to the tribunal only if all parties to the dispute apply for the order. (3) If the tribunal is of the opinion that it does not have jurisdiction to hear all matters in a proceeding before the tribunal, the tribunal may order 20 Queensland Building Services Authority Act 1991, section 71 (Recovery from building contractor etc. Fo OA NY DAWN WwW Se See N eile' Rw 182123 25 s 118 65 s 119 Queensland Building Tribunal that all or part of the proceeding be removed to a court. (4) The tribunal may make an order under subsection (3) even though the proceeding has previously been removed from a court to the tribunal under subsection (1). (5) However, if the tribunal makes an order under subsection (3), a court must not make an order under subsection (1) relating to the proceeding. PART 6—DISPUTE RESOLUTION PROCEDURES AVAILABLE TO TRIBUNAL Division 1—General Tribunal may conduct hearings 118. The tribunal may conduct a hearing to decide any matter within its jurisdiction. Hearing of proceedings 119.(1) If the tribunal conducts a hearing, it must allow the parties a reasonable opportunity— (a) to call or give evidence; and (b) to examine or cross-examine witnesses; and (c) to make submissions to the tribunal. (2) However, the tribunal may— (a) refuse to allow a party to call evidence or cross-examine about a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal; and (b) decide whether evidence is given orally or in writing and whether it is to be given on oath or to be by affidavit; and (c) limit the time for a proceeding and may allocate the time equally DAN BWP 12 15 1719 2124 s 120 66 $121 Queensland Building Tribunal between the parties. (3) If a party fails to appear at a time and place notified by the tribunal, the tribunal may proceed in the party's absence. (4) This section is subject to section 130.21 Purpose of other divisions 120. The other divisions of this part set out other ways of resolving proceedings. Division 2—Decision by default Decision by default for debt 121.(1) This section applies if an applicant has filed an application under this Act to recover a liquidated amount from a respondent and the respondent has not filed a defence to the application within the period required. (2) The applicant may file a request for an order in favour of the applicant (a "decision by default") in the approved form for an amount limited to— (a) the amount claimed in the application starting the proceeding; and (b) the fee paid for the application; and (c) legal costs based on a scale prescribed under a regulation; and (d) interest on the amount claimed at the rate and calculated in the way prescribed under a regulation. (3) If the applicant files a request for a decision by default under this section the registrar may give the decision. (4) A decision by default given under subsection (3) is taken to be a decision of the tribunal. (5) The applicant must prove service of the application on the respondent before a decision by default may be given under this section. 21 Section 130 (Procedure for expedited hearing) KR WN Nn 1113 15 1720 22 24 26 s 122 67 s 123 Queensland Building Tribunal Setting aside decision by default 122. The tribunal may set aside or amend a decision by default under section 121 on terms, including terms about costs and the giving of security, the tribunal considers appropriate. Division 3—Mediation Tribunal may appoint mediator 123.(1) If the tribunal considers a proceeding relating to a building dispute or a review of the authority's decision is suitable for mediation, the tribunal may appoint a mediator or mediators to try to achieve a negotiated settlement of the proceeding. (2) If all the parties to a proceeding request the tribunal to appoint a particular mediator, the tribunal may appoint that mediator. (3) The powers of the tribunal under subsection (1) or (2) may be exercised by the registrar. (4) If the registrar exercises the tribunal's power under subsection (3) the power is taken to be exercised by the tribunal. (5) If there is an additional cost in appointing a mediator under subsection (2) when compared with the cost of a mediator not requested by the parties, the additional cost must be paid by the parties. (6) The mediator may be a member of the tribunal or another person. (7) The tribunal may appoint a person as mediator only if the tribunal considers the person has suitable qualifications and experience to be a mediator. Example of 'suitable qualifications and experience'— Successful completion of a recognised training course in mediation and experience in a business or profession relevant to the proceeding the subject of the mediation. (8) A mediator appointed under this section has the protection and immunity of a member of the tribunal. RwWN $124 68 s 126 Queensland Building Tribunal Method of mediation 124. The tribunal may, in appropriate cases, allow a mediator to conduct a mediation by means of telephone conferencing, video conferencing or another form of communication that allows reasonably contemporaneous and continuous communication between persons taking part in the mediation. Matters about mediation 125.(1) Anything said or done during the mediation process is inadmissible in any other proceeding of the tribunal. (2) Despite subsection (1), if a building dispute is not settled at mediation, the mediator must obtain the following from each party and report them to the tribunal— (a) the issues each party considers are the issues in dispute; and (b) the orders each party seeks from the tribunal. (3) In a hearing before the tribunal, the tribunal is not limited to considering the issues reported under subsection (2). (4) If a building dispute is, or some of the issues in the dispute are, settled, the mediator must report the terms of the settlement to the tribunal. (5) The tribunal may make a decision in terms of the settlement, and may make consequential orders or give consequential directions. (6) If requested by the parties, the tribunal must ensure the terms of the settlement remain confidential and not be included in a register or other record available for inspection under this Act. Mediator precluded from tribunal hearing 126.(1) If a mediator is a member of the tribunal, the member must not hear a proceeding before the tribunal about the dispute or review that was the subject of the mediation. (2) Subsection (1) does not apply to a pre-hearing conference. ANnNfPwWN 1114 16 18 20 2226 $127 69 s 129 Queensland Building Tribunal Time limit for mediation before expedited hearing 127. If the registrar has set a proceeding down for mediation followed on the same day by an expedited hearing the registrar must set a time limit of not more than 2.5 hours for the mediation. Division 4—Expedited hearings Expedited hearing of domestic building disputes 128.(1) The tribunal must decide a minor domestic building dispute at an expedited hearing if the dispute has been to mediation but has not been settled. (2) However, the tribunal may decide it is inappropriate for the dispute to be decided at an expedited hearing if the tribunal considers the dispute is too complex to be properly dealt with at an expedited hearing. Example of 'too complex to be properly dealt with'— The dispute involves complex legal and contractual issues for which the tribunal is unaware of any authoritative precedent. (3) The tribunal may decide a domestic building dispute that is not a minor domestic building dispute at an expedited hearing only if— (a) all parties to the proceeding apply to the tribunal for the matter to be dealt with at an expedited hearing; and (b) the tribunal considers it appropriate for the dispute to be decided at an expedited hearing. Certain minor commercial building disputes may be expedited 129.(1) The tribunal may conduct an expedited hearing for a minor commercial building dispute between a subcontractor and another person if— (a) neither the claim nor any counterclaim exceeds $10 000; and (b) the dispute relates only to a claim for moneys owing by a person to the subcontractor for building work completed by the subcontractor under a written contract; and RwWN 2428 s 130 70 s 130 Queensland Building Tribunal (c) the subcontractor files an application for an expedited hearing, a copy of the contract and an affidavit by the subcontractor stating that— (i) the building work under the contract has been completed by the subcontractor to the standard required under the contract; and (11) a claim for payment payable under the contract has been given to the other person by the subcontractor; and (111) the amount claimed by the subcontractor has not been paid by the other person; and (iv) no complaint about the building work under the contract has been made to the subcontractor by the other person. (2) A hearing under this section may proceed only if the subcontractor has given the other person a copy of the application and all documents filed by the subcontractor at least 5 days before the hearing. Procedure for expedited hearing 130.(1) Before an expedited hearing each party to the hearing must, if directed by the tribunal— (a) (b) file statements of witnesses, expert reports and other documents the party intends to rely on; and exchange these with the other parties within the time limit set by the tribunal. (2) At the expedited hearing— (a) (b) (c) cross-examination is at the discretion of the tribunal; and the parties must, as directed by the tribunal, arrange for the attendance of witnesses, including expert witnesses to clarify or expand on evidence in the documents filed; and the tribunal may limit the time for the hearing and allocate the time equally between the parties. CI' DAWNR WNL 12 1418 20 22 24 2629 s 131 71 s 132 Queensland Building Tribunal Division 5—Summary decision Summary decision for applicant 131.(1) An applicant who starts a proceeding in the tribunal for a matter mentioned in section 30(1)22 may, at any time after a respondent serves a defence on the applicant, apply to the tribunal under this division for a decision in favour of the applicant ( a "summary decision"). (2) The tribunal may give the summary decision for the applicant for all or part of the relief claimed in the application if the tribunal is satisfied— (a) the applicant has complied with this division and is entitled to all or part of the relief sought in the application; and (b) the respondent has no defence other than in relation to the amount of the claim; and (c) there is no need for a hearing by the tribunal of the proceeding or of that part of the proceeding for which the summary decision is sought. (3) However, if the amount of the claim can not be calculated, because, for example, there is insufficient evidence available to satisfy the tribunal of the amount of the claim, the tribunal may instead— (a) order the amount of the claim to be decided in the way the tribunal directs; and (b) give leave for the summary decision to be given for the amount decided and costs. (4) A second or later application under this division may be made with the tribunal's leave. Summary decision for respondent 132.(1) The respondent against whom a proceeding is started by application in the tribunal may at any time apply to the tribunal under this division for a decision in favour of the respondent (also a "summary decision"). 22 Section 30 (Defence and counterclaim) 2729 s 133 72 s 134 Queensland Building Tribunal (2) The tribunal may give the summary decision or make any other decision the tribunal considers appropriate if satisfied— (a) no reasonable cause of action is disclosed against the respondent; or (b) the proceeding is frivolous, vexatious or an abuse of the process of the tribunal; or (c) the respondent has a defence to the proceeding. Claims not disposed of by summary decision 133. The giving of a summary decision under this division that does not dispose of all claims in issue in a proceeding (including a counterclaim) does not prevent the continuation of any part of the proceeding not disposed of by the summary decision. Evidence 134.(1) In a proceeding under this division, evidence must be given by affidavit made by the party giving the evidence. (2) Despite subsection (1), on the hearing of an application under this division, the tribunal may, on terms the tribunal considers appropriate, permit further evidence to be given by affidavit or otherwise by or for a party. (3) The affidavit may contain statements of information and belief if the person making it states the sources of the information and the reasons for the belief. (4) A party applying for a summary decision under this division must swear in support of the application that in the party's belief the party against whom the summary decision is sought has no defence to the relief sought in the application. (5) If a party to an application under this division intends to rely on a document, the document must be identified in the affidavit. (6) A person who makes an affidavit to be read in an application under this division may not be cross-examined without the leave of the tribunal. (7) An affidavit giving evidence in defence of a party's claim must NY DWN BPW NR 1115 1719 2124 26 28 30 s 135 73 s 138 Queensland Building Tribunal identify the parts of the claim for which the evidence is claimed to be a defence. Service 135. Subject to section 134(2), a party applying for a summary decision against another party must serve the other party with the application and a copy of each affidavit and any exhibits mentioned in the affidavit at least 4 business days before the date for hearing shown on the application. Examination of parties and witnesses 136. The tribunal may order any of the following to attend the tribunal to be examined on oath or to produce to the tribunal all relevant documents and records— (a) aparty applying for a summary decision; (b) aparty defending the application for a summary decision; (c) aperson who made an affidavit for a party; (d) a witness for a party; (e) for an incorporated party, an officer of the corporation. Directions 137.(1) This section applies if— (a) the tribunal dismisses an application for a summary decision; or (b) a summary decision does not dispose of all claims in a proceeding. (2) The tribunal may give directions or impose conditions about the future conduct of the proceeding. Costs 138.(1) This section applies if it appears to the tribunal that a party who applied for a summary decision was, or ought reasonably to have been, aware that another party relied on a point that would entitle the other party to Ne NYDN Ww 11 13151821 23 26 s 139 74 s 141 Queensland Building Tribunal have the application dismissed. (2) The tribunal may dismiss the application and order costs to be paid within a time specified by the tribunal. (3) Subsection (2) does not limit the tribunal's powers relating to costs. Stay of enforcement 139.(1) The tribunal may order a stay of the enforcement of a summary decision given under this division for the time and on the terms the tribunal considers appropriate. (2) If a summary decision has been registered in a court under section 85,23 a stay of that decision has no effect until it is filed in the court. Setting aside summary decision 140. The tribunal may set aside or vary a summary decision given against a party who did not appear on the hearing of the application for the decision. Division 6—Case appraisals Referral to case appraiser 141.(1) The tribunal may refer a proceeding to a person (the "case appraiser") to decide all issues in dispute between the parties. (2) The tribunal may act under subsection (1) only if all parties to the proceeding apply to the tribunal to have the proceeding referred to a case appraiser. (3) If all the parties to a proceeding request the tribunal to appoint a particular case appraiser, the tribunal may appoint that case appraiser. (4) If there is an additional cost in appointing a case appraiser under subsection (3) when compared with the cost of a case appraiser not requested by the parties, the additional cost must be paid by the parties. 23 Section 85 (Registration and enforcement of decisions) BR WN SO OID Ww 1318 2023 26 s 142 75 s 144 Queensland Building Tribunal (5) The case appraiser may be a member of the tribunal or another person. (6) The tribunal may appoint a person as case appraiser only if the tribunal considers the person has suitable qualifications and experience to be a case appraiser. Jurisdiction of case appraiser 142.(1) The case appraiser for the proceeding referred has the power of the tribunal to decide the issues in dispute but may only give a decision that could have been given in the proceeding if it had been decided by the tribunal. (2) Subsection (1) is subject to section 150.24 Procedure for case appraisals 143. The case appraiser for a proceeding— (a) must consider all documents filed and served on the parties to the proceeding; and (b) unless the case appraiser considers it necessary to clarify or expand on evidence in the documents being considered, must conduct the case appraisal— (i) inthe absence of the parties; and (11) without oral evidence from witnesses; and (c) if the case appraiser allows parties to be present, must not allow cross-examination unless the case appraiser considers it necessary to clarify or expand on evidence in the documents being considered. Case appraiser may seek information 144.(1) A case appraiser may ask anyone for information and may obtain, and act on, information obtained from anyone on any aspect of the 24 Section 150 (Dissatisfied party may elect to go to hearing of tribunal) A pW NR SCO AN a 13 15 1720 2224 27 s 145 76 s 147 Queensland Building Tribunal proceeding. (2) However, if obtaining the information involves extra cost, the case appraiser must first obtain— (a) the parties' agreement to pay the extra cost; or (b) the tribunal's leave. (3) If the tribunal gives leave, the tribunal must also— (a) order the parties to pay the extra cost; and (b) state to whom and by when the payment must be made. (4) The case appraiser must disclose the substance of the information to the parties. Case appraisal may be recorded 145.(1) A case appraiser may have the case appraisal recorded if the case appraiser considers it appropriate, in the special circumstances of the case. (2) If the case appraisal is to be recorded, the case appraiser must decide the extent to which, and the way in which, the recording may be done. Case appraiser's decision 146.(1) A case appraiser's decision must be in writing, but the case appraiser need not give reasons for the decision. (2) However, a case appraiser may, at any stage of a case appraisal decline to proceed further with the appraisal. Example for subsection (2)— The dispute proves to be unsuitable for case appraisal. (3) A copy of the decision must be given to each party. Case appraiser's decision on costs in the dispute 147.(1) A case appraiser has the same power to award costs in the dispute as the tribunal would have had if the tribunal had heard and decided the dispute. coo Om N DO HW KR WN e 13 15 18 20 22 26 s 148 77 s 150 Queensland Building Tribunal (2) A case appraiser's decision must include a decision on costs in the dispute. Case appraiser's decision final unless election made 148. A case appraiser's decision about a dispute is final, unless an election to have the dispute heard by the tribunal is made under section 150. Case appraiser to file report and decision 149.(1) As soon as practicable after a case appraisal has finished, the case appraiser must file— (a) areport about the case appraisal; and (b) the case appraiser's decision, if any; and (c) if the case appraisal was recorded, a copy of the record. (2) If the case appraiser makes a decision about the dispute or any issue in the dispute, the case appraiser must— (a) place the written decision in a sealed container, for example, an envelope; and (b) mark the container with a distinguishing number; and (c) endorse the container 'Not to be opened without an order of the tribunal'; and (d) file the container. (3) The container may be opened only if the tribunal orders it to be opened. (4) No fee is payable for filing anything under this section. Dissatisfied party may elect to go to hearing of tribunal 150.(1) A party who is dissatisfied with a case appraiser's decision about a dispute may elect to have the dispute heard by the tribunal. (2) To elect to have a dispute heard by the tribunal, the dissatisfied party must file an election within 14 days after the party receives a copy of the decision. Ne 25 27 s 151 78 s 152 Queensland Building Tribunal (3) If an election is filed as mentioned in subsection (1)— (a) the case appraiser's decision ceases to have effect except for section 151; and (b) the dispute must be decided by the tribunal as if it had never been referred to the case appraiser. (4) To remove doubt, it is declared that anything said or done during the case appraisal is inadmissible in the hearing of the dispute by the tribunal. Case appraiser's decision may affect costs 151.(1) If the tribunal's decision in the dispute is not more favourable overall to a party filing an election than the case appraiser's decision in the dispute was to the party, the costs of the proceeding including the case appraisal must be awarded against the party. (2) If all parties to a dispute elect to have the dispute heard by the tribunal, the case appraiser's decision has no effect on the awarding of costs. Division 7—Pre-hearing conferences Pre-hearing conferences 152.(1) The tribunal may require the parties to a proceeding to attend 1 or more pre-hearing conferences before the tribunal before the proceeding is heard by the tribunal. (2) At a pre-hearing conference the tribunal may do any of the following— (a) identify and clarify the issues in dispute in the proceeding; (b) promote a settlement of the proceeding; (c) identify the questions of fact and law to be decided by the tribunal; (d) if the proceeding is not settled, give directions about the conduct of the proceeding; (e) make the orders and give the directions the tribunal considers appropriate to manage the proceeding or resolve the dispute the subject of the proceeding. ND nO Wp 1114 1821 2326 28 s 153 79 s 154 Queensland Building Tribunal Examples for subsection (2)(e)— The tribunal may order a party to pay an amount into the tribunal's trust account pending settlement of, or a decision in relation to, the dispute. (3) Written notice of a pre-hearing conference must be given to each party by the registrar. (4) Unless the tribunal otherwise directs, a pre-hearing conference must be held in private. (5) The procedure for a pre-hearing conference is at the discretion of the tribunal. Who is required to attend pre-hearing conferences 153. The tribunal may require a party to attend a pre-hearing conference personally or by a representative who has authority to settle the proceeding on behalf of the party. Evidence from pre-hearing conferences inadmissible 154. Evidence of anything said or done in the course of a pre-hearing conference is inadmissible in any hearing before the tribunal in the proceeding, except— (a) ifall parties agree to the admission of the evidence; or (b) evidence of directions given at a pre-hearing conference or the reasons for the directions; or (c) evidence of anything said or done relevant to— (i) a proceeding for an offence in relation to the giving of false or misleading information; or (ii) a proceeding under section 79;25 or (iil) a proceeding relating to an order made _ under section 156(b)(1). 25 Section 79 (Contempt of tribunal) ow! aon nn BWN e 131721 24 27 s 155 80 s 157 Queensland Building Tribunal When member may hear proceeding after presiding at a pre-hearing conference 155.(1) A member who presides at a pre-hearing conference for a proceeding that attempts to promote a settlement of the proceeding— (a) may disqualify himself or herself from constituting the tribunal that hears the proceeding; and (b) must not constitute the tribunal that hears the proceeding if a party to the proceeding objects to the member hearing the proceeding. (2) At the end of a pre-hearing conference that attempts to promote a settlement of the proceeding the presiding member must advise the parties of their rights under subsection (1)(b). (3) An objection under subsection (1)(b) must be made within 48 hours of receiving the advice mentioned in subsection (2) or before the start of the hearing of the proceeding, whichever is the shorter period. Failure of a party to attend a pre-hearing conference 156. Ifa party does not attend a pre-hearing conference— (a) the conference may proceed at the appointed time in the party's absence; and (b) ifall the parties present agree, the tribunal may— (i) decide the proceeding adversely to the absent party and make appropriate orders; or (11) direct that the absent party be struck out of the proceeding. Division 8—Settlement Offers Making settlement offers 157.(1) A party to a proceeding may offer to settle the proceeding in so far as it relates to another party. (2) The offer must be made by signed writing served on the party to whom the offer relates. BEOoD ONIN AWN BW NH ee eli andilend RwWN 16 18 21 26 28 s 158 81 s 160 Queensland Building Tribunal (3) A party may make more than one offer. (4) If an offer provides for the payment of an amount by a party to another person, the offer must state when the amount is to be paid and to whom. (5) Payment under subsection (4) may be into the tribunal's trust account2¢ to be disbursed in accordance with the terms of the settlement. Effect of offer 158.(1) An offer to settle under this division is taken to be an offer made without prejudice. (2) The tribunal must not be told of the offer until after it has made its decision on the matters in dispute. Accepting settlement offers 159.(1) An offer to settle must remain open until immediately before the tribunal delivers its decision, or until the expiry of a period stated in the offer, whichever is the shorter period. (2) If a period is stated, that period must be at least 14 days from the date of service of the offer. (3) A party can only accept an offer by serving the party who made the offer with a signed notice of acceptance of the offer. (4) A party may accept an offer even though it has made a counteroffer. Consequences if accepted offer is not complied with 160.(1) This section applies if an offer is accepted, but the party who made the offer does not comply with its terms. (2) The tribunal, at the request of a party who accepted the offer, may— (a) make an order giving effect to the terms of the offer; or (b) ifthe party making the offer was the applicant— 26 Section 163 (Trust account) auN fBwhd 11 1417 19 23 26 s 161 82 s 161 Queensland Building Tribunal (i) dismiss the proceeding; or (11) ifa party who accepted the offer made a counterclaim before the offer was made, make an order awarding the party any or all of the things asked for in the counterclaim; or (c) if a party who accepted the offer is the applicant, make an order awarding the applicant any or all of the things asked for in the application. Tribunal must order party to pay costs if certain offers to settle rejected 161.(1) This section applies if— (a) aparty to a proceeding serves another party to the proceeding with an offer in writing to settle the matters in dispute between the parties; and (b) the other party does not accept the offer within the time the offer is open; and (c) the offer complies with this division; and (d) in the opinion of the tribunal, the decision of the tribunal on the matters in dispute is not more favourable to the other party than the offer. (2) The tribunal must award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made. (3) If a proceeding involves more than 2 parties, this section applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties. (4) In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must— (a) take into account any costs it would have awarded on the date the offer was served; and (b) disregard any interest or costs it awarded relating to any period after the date the offer was served. YAWN BRwWN o 1215 18212427 29 31 s 162 83 s 164 Queensland Building Tribunal PART 7—MISCELLANEOUS Finance and staffing of tribunal 162.(1) The tribunal is part of the department for the Financial Administration and Audit Act 1977. (2) However, the costs of the tribunal are to be paid from the authority's General Statutory Fund under the Queensland Building Services Authority Act 199] at the written direction of the Minister. Trust account 163.(1) The tribunal must maintain a trust account to receive and hold— (a) amounts paid to the trust account under sections 98 and 157;27 and (b) amounts ordered by the tribunal to paid to the trust account for a proceeding. (2) The tribunal must pay amounts from the trust account— (a) for amounts paid to the trust account under sections 98 and 157, in accordance with those sections; and (b) for amounts ordered by the tribunal to be paid to the trust account for a proceeding, as ordered by the tribunal. (3) Interest on the trust account is to be applied to the cost of keeping the account with any balance relating to interest as at 30 June each year to be paid to the authority. Annual report 164.(1) As soon as practicable each year, but not later than 30 September, the chairperson must give the Minister a report containing— (a) a review of the operation of the tribunal during the 12 months ending on the preceding 30 June; and 27 Sections 98 (Tribunal may make interim order) and 157 (Making settlement offers) NAN BW Bw 11 13 16 18 2024 26 s 165 84 s 168 Queensland Building Tribunal (b) proposals for improving the operation of, and forecasts of the workload of, the tribunal in the 12 months following that 30 June. (2) The Minister must cause a copy of the report to be laid before the Parliament within 14 sitting days after its receipt by the Minister. Proceedings for offences 165. A prosecution for an offence against this Act is by way of summary proceedings under the Justices Act 1886. Limitation on time for starting summary proceedings 166. A proceeding for an offence against this Act must start— (a) within 1 year after the commission of the offence; or (b) within 6 months after the offence comes to the complainant's knowledge, but within 3 years after the commission of the offence. Penalties to be paid to authority 167. All penalties recovered as a result of proceedings for offences against this Act brought by the authority must be ordered to be paid to the authority. Contracting out prohibited 168.(1) A contract or agreement is void to the extent to which it— (a) is contrary to this Act; or (b) purports to annul, exclude, restrict or otherwise change the effect of a provision of this Act. (2) Subsection (1) does not apply to an agreement that a building dispute be referred to arbitration if the agreement is entered into after the dispute arises. (3) Nothing in this section prevents the parties to a contract or agreement from including provisions in the contract or agreement that impose greater BW Ne Nn 12161922 2427 s 169 85 s 170 Queensland Building Tribunal or more onerous obligations on a person than are imposed under this Act. (4) This section applies to contracts or agreements entered into before or after the commencement of this Act. Executive officers must ensure corporation complies with Act 169.(1) The executive officers of a corporation must ensure the corporation complies with this Act. (2) If a corporation commits an offence against a provision of this Act, each of the corporation's executive officers also commits an offence, namely, the offence of failing to ensure that the corporation complies with the provision. Maximum penalty—the penalty for the contravention of the provision by an individual. (3) Evidence that the corporation has been convicted of an offence against a provision of this Act is evidence that each of the executive officers committed the offence of failing to ensure that the corporation complies with the provision. (4) However, it is a defence for an executive officer to prove— (a) if the officer was in a position to influence the conduct of the corporation in relation to the offence—the officer exercised reasonable diligence to ensure the corporation complied with the provision; or (b) the officer was not in a position to influence the conduct of the corporation in relation to the offence. Judicial Review excluded for minor domestic building disputes 170.(1) The exercise by the tribunal of its powers in relation to a proceeding for a minor domestic building dispute is not subject to the Judicial Review Act 1991. (2) Subsection (1) does not apply if— (a) the tribunal had or has no jurisdiction under the Act to hear and decide the proceeding; or w aon nm AK 12 1416 1921 23 2630 s171 86 s174 Queensland Building Tribunal (b) a breach of the rules of natural justice happened in relation to a party to the proceeding. Proof of signature unnecessary 171. A signature purporting to be the signature of the registrar or a member of the tribunal is evidence of the signature it purports to be. Evidentiary aids 172.(1) A certificate signed by the registrar certifying anything about the contents of the register is evidence of the thing stated. (2) A certificate by the registrar stating that a stated document is a record or document, a copy of a record or document, or an extract from a record or document, kept under this Act is evidence of the matter. Protection from liability 173.(1) An official does not incur civil liability for an act done, or omission made, honestly and without negligence under this Act. (2) If subsection (1) prevents a civil liability attaching to an official, the liability attaches instead to the State. (3) In this section— "official" means— (a) amember of the staff of the tribunal; or (b) aperson authorised under section 7728 by the tribunal. Forms 174. The chairperson may approve forms for use under this Act. 28 Section 77 (Entry and inspection of property) 22 s 175 87 s177 Queensland Building Tribunal Regulation-making power 175.(1) The Governor in Council may make regulations under this Act. (2) Without limiting subsection (1), a regulation may set fees payable under this Act. (3) A regulation may impose a penalty of not more than 40 penalty units for a contravention of a provision of a regulation. Rules 176.(1) The Governor in Council may make rules about— (a) the practice and procedure in the tribunal; and (b) the conduct of the business of the tribunal. (2) A rule made under subsection (1) is subordinate legislation. PART 8—TRANSITIONAL PROVISIONS Division 1—Definitions Definitions for pt 8 177. In this part— "commencement" means the commencement of this section. "former Act" means the Queensland Building Services Authority Act 1991 as in force from time to time before the commencement. "former member" means a member of the former tribunal. "former tribunal" means the Queensland Building Tribunal under the former Act. DAN BPW NY 11 1518 21 s 178 88 s 179 Queensland Building Tribunal Division 2—Transitional matters Proceedings started before commencement 178.(1) A proceeding under the former Act started in a court or the former tribunal before the commencement must continue under the former Act as if this Act had not commenced and, for that purpose, the tribunal under this Act has the jurisdiction of the former tribunal. (2) To remove doubt, it is declared that a proceeding may be removed under section 9729 of the former Act and if removed continues under the former Act. (3) The following proceedings may be heard and decided under the former Act by the tribunal as if it were the former tribunal— (a) a proceeding started under the former Act before the commencement; and (b) a proceeding removed to the tribunal under section 97 of the former Act. Former member may continue to hear proceeding 179.(1) A former member hearing a proceeding or doing anything else in relation to a proceeding under the former Act at the commencement may continue to hear the proceeding or do the thing after the commencement under the former Act. (2) For subsection (1), the former member is taken to constitute the tribunal. (3) For hearing a proceeding or doing anything else under the former Act a former member has— (a) for a former member not appointed as a member under this Act, the member's entitlements under the former Act; or (b) for a former member appointed as member under this Act, the member's entitlements under this Act. 29 Queensland Building Services Authority Act 1991, section 97 (Transfer of proceedings between tribunal and the courts) - © oon NnpwWY NY il oon wn = ee AR 1820 22 24 26 28 s 180 89 s 183 Queensland Building Tribunal Proceedings that must continue in a court 180.(1) This section applies to a proceeding started in a court before the commencement for which the tribunal has jurisdiction but the former tribunal did not. (2) The court must continue to hear the proceeding under the former Act. (3) The proceeding must not be removed to the tribunal. Proceedings about matters arising before commencement to be dealt with under this Act 181.(1) A proceeding for a matter arising before the commencement for which the tribunal has jurisdiction under this Act may be started in the tribunal after the commencement. (2) Subsection (1) applies even if the former tribunal would not have had jurisdiction under the former Act. (3) However, this section does not apply to a matter for which a proceeding is started before the commencement in a court or in the former tribunal. (4) A matter for which a proceeding is started before the commencement in a court or in the former tribunal must not be restarted under this Act. Records of former tribunal 182. All records of the former tribunal are taken to be records of the tribunal. PART 9—CONSEQUENTIAL AND OTHER AMENDMENTS Amendments—sch 1 183. Schedule 1 amends the Queensland Building Services Authority Act 1991, 21 23 26 Queensland Building Tribunal SCHEDULE 1 CONSEQUENTIAL AND OTHER AMENDMENTS OF QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991 section 183 . Section 3(c)— omit. . Section 3(d)— renumber as section 3(c). . Section 25(3), after 'scheme)'— insert— 'and the Tribunal Act'. . Section 39(3)(b) and (c)— omit, insert— '(b) each order made against the licensee by the tribunal under section 11 130 of the Tribunal Act; and (c) any decision of the tribunal under section 1013! of the Tribunal Act that it would have been appropriate for the authority to issue a direction requiring the licensee to rectify or complete building work; and Queensland Building Tribunal Act 1999, section 111 (Orders for disciplinary action) Queensland Building Tribunal Act 1999, section 101 (Tribunal to decide about rectification or completion work) 1114 16 1820 Queensland Building Tribunal SCHEDULE | (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 Queensland Building Tribunal SCHEDULE | (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 Queensland Building Tribunal SCHEDULE | (continued) 16. Section 111C(2)(a) 'section 101(4)'— omit, insert— 'section 111 of the Tribunal Act'. 17. Section 115— omit. 18. Schedule 2, definitions "determination", "domestic building dispute" and "tribunal"— omit. 19. Schedule 2— insert— review" means review by the tribunal. "tribunal" means the Queensland Building Tribunal under the Tribunal Act. "Tribunal Act" means the Queensland Building Tribunal Act 1999.'. 11 13 Queensland Building Tribunal SCHEDULE 2 DICTIONARY section 6 "applicant" see section 29. "approved form" means a form approved by the chairperson under section 174. "authority" means the Queensland Building Services Authority established under the Queensland Building Services Authority Act 1991. "building" includes any fixed structure. "building contractor" means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor. "building dispute" means— (a) adomestic building dispute; or (b) aminor commercial building dispute; or (c) a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under section 95. "building owner" means a person for whom building work is to be, is being or has been carried out, but does not include a building contractor for whom building work is carried out by a subcontractor. "building work" see section 7. "chairperson" means the chairperson of the tribunal. "commercial building dispute" means— (a) a claim or dispute arising between a building owner and a building contractor relating to the performance of commercial building work or a contract for the performance of commercial building work; or aon nm -& 11141720232628 Queensland Building Tribunal (b) (c) (d) SCHEDULE 2 (continued) a claim or dispute arising between 2 or more building contractors relating to the performance of commercial building work or a contract for the performance of commercial building work; or a claim or dispute in negligence, nuisance or trespass related to the performance of commercial building work other than a claim for personal injuries; or a claim or dispute arising between a building owner or a building contractor and any | or more of the following relating to the performance of commercial building work or a contract for the performance of commercial building work— (i) an architect; (i1) an engineer; (11) a surveyor; (iv) a quantity surveyor; (v) an electrician or an electrical contractor; (vi) a supplier or manufacturer of materials used in the building work. "commercial building work" means building work other than domestic building work. "contract" means a contract for carrying out building work. "decision" includes an order or direction. "decision by default", for part 6, division 2, see section 121. "defective", in relation to building work, includes faulty or unsatisfactory. "disciplinary proceeding" means a proceeding under section 108. "domestic building contract" see Domestic Building Contracts Act 1999, section 7. (a) "domestic building dispute" means— a claim or dispute arising between a building owner and a building contractor relating to the performance of domestic building work or a contract for the performance of domestic SCOMAN DAWN WNHK a a nA FB Ww NHN Ree na ee \o Nw NY NY NY NY RW NY KF S&S NN Hun N NX WNN Cow ow Queensland Building Tribunal SCHEDULE 2 (continued) building work; or (b) aclaim or dispute arising between 2 or more building contractors relating to the performance of domestic building work or a contract for the performance of domestic building work; or (c) aclaim or dispute in negligence, nuisance or trespass related to the performance of domestic building work other than a claim for personal injuries; or (d) aclaim or dispute arising between a building owner or a building contractor and any | or more of the following relating to the performance of domestic building work or a contract for the performance of domestic building work— (i) an architect; (i1) an engineer; (11) a surveyor; (iv) a quantity surveyor; (v) an electrician or an electrical contractor; (vi) a supplier or manufacturer of materials used in the building work. "domestic building work" see Domestic Building Contracts Act 1999, section 8. "executive officer", of a corporation, means a person who is concerned with, or takes part in, the corporation's management, whether or not the person is a director or the person's position is given the name of executive officer. "expedited hearing" means an expedited hearing conducted under part 6, division 4. "file" means file in the tribunal. "licence" means a licence under the Queensland Building Services Authority Act 1991. "licensee" means a licensee under the Queensland Building Services Authority Act 1991. re OO CO NAM BWN ea a na FB W N e a ile' on Ne cow NNNN BRWNe NN Hun N NX NN \o co WwW WwW re Oo Queensland Building Tribunal SCHEDULE 2 (continued) "major commercial building dispute" means a commercial building dispute where either the claim or the counterclaim exceeds $50 000. "member" means a member of the tribunal. "minor commercial building dispute" means a commercial building dispute where neither the claim nor the counterclaim exceeds $50 000. "minor domestic building dispute" means a domestic building dispute where neither the claim nor the counterclaim exceeds $10 000. "obstructs" includes attempt to obstruct. "party" means a party to a proceeding before the tribunal, including— (a) the applicant; and (b) the respondent; and (c) aperson joined as a party under section 45. "proceeding" means a proceeding— (a) started by application to the tribunal; or (b) removed to the tribunal by order of a court under section 117. "public examination" means a public examination by the tribunal under part 5, division 4. "registrar" means the registrar of the tribunal. "respondent" see section 29. "reviewable decision" means a decision of the authority that is reviewable by the tribunal under section 104. "statutory insurance scheme" means the statutory insurance scheme under the Queensland Building Services Authority Act 1991. "subcontractor" means— (a) a building contractor that carries out building work for another building contractor; or (b) a building contractor that carries out building work for another person under a construction management trade contract under the Queensland Building Services Authority Act 1991, section 67B. Co DA AND aA WO NK a a nA FF Ww NY KF SO Ree na re \o ow Nw a) NN wh N NN Hun NNN 'oon Queensland Building Tribunal SCHEDULE 2 (continued) "summary decision", for part 6, division 5, see section 131(1). "tribunal" means the Queensland Building Tribunal established under section 9. © State of Queensland 1999