The 2021 case of Bitossi v Queensland Building and Construction Commission^[1] provides an example of how self-represented applicants seeking review of Queensland Building and Construction Commission (“QBCC”) statutory insurance claim decisions can underestimate the evidence required to overturn a QBCC decision.  

In that case, Ms Nicole Bitossi lodged a statutory insurance claim with the QBCC alleging defective construction of her swimming pool.  The QBCC subsequently partially rejected the claim, so Ms Bitossi applied for an external review of that decision with the Queensland Civil and Administrative Tribunal (“Tribunal”).

In such review proceedings, the Tribunal stands in the shoes of the decision-maker to produce the ‘correct and preferable’ decision by way of a fresh hearing on the merits.^[2]  It is not necessary to prove that there was any error in the QBCC’s original decision.^[3]  The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter for reconsideration with appropriate directions.^[4]

The Evidence

The QBCC provided expert reports to the Tribunal from its Senior Building Inspector and a consulting engineer in support of disallowing the relevant items under the claim.

Ms Bitossi did not engage any independent experts to inspect the pool and prepare reports.  Instead, she relied upon the following evidence:

• A contract schedule;
• Two undated black and white photographs;
• A copy of a letter from Scott Mewitt, the Technical Service Manager of Compass Pools to Mr Bitossi (but without calling Mr Mewitt as a witness);
• Various emails of complaint;
• A Vantage in-floor cleaning system outline that was undated;
• A Bundle of 14 colour photographs that were undated; and
• Document entitled “7.1 Deflection limits”.

Ultimately, the Tribunal accepted the QBCC’s evidence and rejected Ms Bitossi’s evidence.  In dismissing Ms Bitossi’s evidence, the Tribunal made a number of observations that ought to be taken into account by anyone seeking to have a QBCC decision reviewed by the Tribunal.

Evidentiary Onus ‍

On the question of onus of proof, the Tribunal stated that Ms Bitossi had the evidential onus to provide appropriate material to support the decision she sought, citing a previous case in which it was stated:^[5]

 “Generally there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence the Tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.”

Lack of independent expert evidence

The Tribunal was critical of the fact that Ms Bitossi relied on the contents of the letter from Scott Mewitt as “expert” evidence, but failed to produce him as a witness, stating:^[6]

“The Tribunal must observe procedural fairness.^[10] If a party is relying upon an expert, they are obliged to make that expert available for cross-examination by the other party. The Tribunal is unable to attach weight to the letter from Mr Mewitt without him attending the hearing to test his evidence.”

The Tribunal stated that the evidence of Ms Bitossi and her husband was considered neither independent nor objective, and none of her assertions were supported by any independent expert evidence, which meant that Ms Bitossi had adduced no independent expert evidence to show:

• whether the work was not to the appropriate standard;
• whether the work was defective;
• causation;
• what remedial work was required as a result of the alleged defective workmanship; and
• who was responsible for whatever was causing any issues. 

Evidence of the appropriate standard

The Tribunal stated it was necessary for the relevant standard to be produced in evidence to enable the Tribunal to determine whether there has been non-compliance with the standard in question.   Ms Bitossi had not done that.

Evidence of the defective workmanship

Ms Bitossi relied on the images contained in her undated photographs for her evidence of the defective workmanship, however, the Tribunal concluded dismissively: “They show debris.”  

The Tribunal was critical of the fact that Ms Bitossi’s photographs were undated, stating it is unclear whether they were taken before, during, or after the work was done, concluding that the Tribunal was not satisfied that the photographs were evidence of defective workmanship.

In explaining that finding, the Tribunal stated:

"[19] The Tribunal cannot make findings of defective workmanship without proof. No independence [sic] expert evidence was adduced of defective workmanship or causation. The Tribunal cannot make findings of fact where the evidence is insufficient – parties must take responsibility to prepare their own case. A homeowner must prove their claims to the reasonable satisfaction of the Tribunal. As the High Court has held:

"... ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect references..."

[20] Ms Bitossi has an obligation to act in her own best interests. The onus is always upon Ms Bitossi to present her case. It is not the job of the Tribunal to guess:

"In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences..."

The Decision

Unsurprisingly, the Tribunal decided that, as the weight of the evidence was that the work was neither defective nor incomplete, the QBCC’s decision to partly disallow the claim under the Queensland Home Warranty Scheme was confirmed.

Takeaways

Self-represented litigants often fail to fully appreciate the evidentiary onus placed upon applicants when applying for an external review of a QBCC decision regarding the rejection of a statutory insurance claim.

Consequently, by neglecting to obtain competent legal assistance in preparing the claim, they risk having the application being decided against them for want of evidence, even if their complaints have merit.

Need Assistance?

Applications to review QBCC statutory insurance claim decisions can involve complex and/or nuanced issues that will need to be identified and addressed if the application is to be successful.  

For practical legal advice and effective support and assistance regarding your particular circumstances, contact Law Force Lawyers by calling us on 1300 445 000, or by emailing us at info@lawforce.com.au.

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References

[1] [2021] QCAT 131.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.  

[3] Bitossi v Queensland Building and Construction Commission [2021] QCAT 131, [3], citing Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8] citing with approval Kehl v Board of Professional Engineers of Qld [2010] QCATA 58, [9].  

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.  

[5] Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23].

[6] Bitossi v Queensland Building and Construction Commission [2021] QCAT 131, [16].

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