Agius v Queensland Building and Construction Commission - [2023] QCATA 145

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Agius v Queensland Building and Construction Commission & anor [2023] QCATA 145

PARTIES:

MARK ELLIOT AGIUS

(Applicant/appellant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(First respondent)

GEDOUN CONSTRUCTIONS PTY LTD

(Second respondent)

APPLICATION NO/S:

APL184-22

ORIGINATING APPLICATION NO/S:

GAR194-20

MATTER TYPE:

Appeals

DELIVERED ON:

22 November 2023

HEARING DATE:

24 October 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

1. The application for leave to appeal is allowed.

2. The appeal is dismissed.

CATCHWORDS:

APPEAL – INTERLOCUTORY DECISION – GENERAL ADMINISTRATIVE REVIEW – where application to review ambiguous – whether application sought to review the decision to issue a direction to rectify or the subsequent direction to rectify – whether direction to rectify is a reviewable decision within the meaning of s 86(1)(e) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether application to review should be taken to be an application to review the decision to issue a direction to rectify

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 29, s 43, s 142(3)(a)(ii)

Queensland Building and Construction Commission Act 1991 (Qld), s 86

McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 57

Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 419
Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 69

Queensland Building and Construction Commission v Whalley [2018] QCATA 38

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Appeals APL183-22 and APL184-22 were directed to be heard and determined together. The appeals raise issues under the review provisions in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
The first appeal (APL183-22) raised the question of what happens if two persons entitled to have reviewed a reviewable decision, both exercise their entitlements. That appeal is the subject of separate reasons.
This appeal (APL184-22) raises the question of whether a decision to issue a direction to rectify and the issuing of a notice to rectify is one decision or two decisions, and if two, whether both or which is a reviewable decision under the QBCC Act.
The decisions under appeal were decisions made on interlocutory applications, so that, under s 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) leave is required to appeal. Each matter raises issues of general application, in this case on which there have been inconsistent decisions of the tribunal, and in the circumstances, it is appropriate to give leave to appeal.
Relevant Background
It appears that the respondent undertook construction work for the appellant.[1] Prior to April 2020 the appellant complained to the Commission about certain aspects of the work undertaken by the respondent, as a result of which on 15 April 2020 the Commission directed the respondent to rectify two items of building work.[2]
[1]For convenience I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCATA 145
Decision Date: 22 November 2023

CaseChat Overview and Summary

In the appeal of Agius v Queensland Building and Construction Commission, the primary dispute was whether the tribunal had jurisdiction to review the decision to issue a direction to rectify under the Queensland Building and Construction Commission Act 1991 (Qld). The appeal arose from the tribunal’s decision to deny the appellant's application to strike out the proceeding for review of the direction to rectify issued by the Commission. The appellant argued that the direction to rectify was not a reviewable decision under s 86(1)(e) of the QBCC Act and, therefore, the tribunal did not have jurisdiction to review it.

The legal issues before the court were whether the direction to rectify constituted a reviewable decision and whether the tribunal had jurisdiction to review it. The court had to consider the interpretation of s 86(1)(e) of the QBCC Act and the nature of the direction to rectify in the context of the statutory framework. The appellant contended that the direction to rectify was not a decision in itself, but merely gave effect to the earlier decision to issue that direction. The respondent and the Commission argued that the direction to rectify was a reviewable decision, as held in earlier tribunal decisions.

The court found that the direction to rectify was not a reviewable decision under s 86(1)(e) of the QBCC Act. It held that the giving of the direction to rectify was a consequential step and not a decision involving any further judgment or discretion. This conclusion was based on the statutory language of s 86(1)(e), which only lists a decision to give a direction to rectify as reviewable, not the act of giving the direction itself. The court disagreed with the tribunal's decision and found that it was erroneous in considering the direction to rectify as a reviewable decision. However, the appeal was dismissed as the court found that the appeal did not meet the criteria for leave to appeal under s 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Orders

Orders of the court

1. The application for leave to appeal is allowed.

2. The appeal is dismissed.

Background

Background to the litigation

The decisions under appeal were decisions made on interlocutory applications, so that, under s 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) leave is required to appeal. Each matter raises issues of general application, in this case on which there have been inconsistent decisions of the tribunal, and in the circumstances, it is appropriate to give leave to appeal. Relevant Background It appears that the respondent undertook construction work for the appellant.[1] Prior to April 2020 the appellant complained to the Commission about certain aspects of the work undertaken by the respondent, as a result of which on 15 April 2020 the Commission directed the respondent to rectify two items of building work.[2] [1]For convenience I will refer to Mr Agius as the appellant, the contractor Gedoun Constructions Pty Ltd as the respondent, and the Queensland Building and Construction Commission as the Commission.[2]It may be that one of the items had a number of different parts. On 28 April 2020 the respondent lodged an application for internal review of that decision. On 26 May 2020 that internal review was decided, when the review officer decided not to give a direction to rectify in respect of complaints 1, A2.1, A2.2 in part, A2.3 and A2.5 in part, but to give a direction to rectify in respect of complaints A2.2 in part, A2.4 and A2.5 in part. It appears from the reasons for decision that some defective work had been rectified after the original decision, and before the review decision. On 28 May 2020 the Commission issued direction to rectify no 0106161 to the respondent. On 8 June 2020 the respondent filed an application to review ‘Direction to Rectify No 0106161 dated 28 May 2020 in the tribunal. On 23 October 2020 the appellant was joined as a respondent to the proceeding following an application by the Commission to join him. On 3 November 2020 the appellant filed an application to dismiss the review on the basis the respondent had applied as trustee of a trust when there was no reference to a trust in the building contract or the respondent’s licence. On 11 May 2021 that application was dismissed. On 19 July 2021 the appellant applied to the tribunal to strike out the proceeding for review of the decision, on the ground that the tribunal did not have jurisdiction to review the issue of the direction to rectify, which was a separate decision from the decision to issue that direction. That application was decided by a Member on the papers on 19 May 2022 and was dismissed. This appeal is brought from that decision.The decision at first instance The Member identified that the appellant’s argument was that the respondent applied to the tribunal to review the direction to rectify, whereas it was the preceding decision to issue a direction to rectify which was the reviewable decision within the meaning of s 86(1)(e) of the QBCC Act. The Member considered the terms of the application to review and noted that there were features that suggested that the decision sought to be reviewed was the decision to give a direction to rectify, and others which suggested it was the issue of the direction to rectify itself which was the subject of the application. The Member concluded that, on a fair reading of the application to review a decision form, the decision under review was the direction to rectify made on 28 May 2020.[3][3]GAR194-20 Reasons at [15].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 19 July 2021 the appellant applied to the tribunal to strike out the proceeding for review of the decision, on the ground that the tribunal did not have jurisdiction to review the issue of the direction to rectify, which was a separate decision from the decision to issue that direction. That application was decided by a Member on the papers on 19 May 2022 and was dismissed. This appeal is brought from that decision.The decision at first instance The Member identified that the appellant’s argument was that the respondent applied to the tribunal to review the direction to rectify, whereas it was the preceding decision to issue a direction to rectify which was the reviewable decision within the meaning of s 86(1)(e) of the QBCC Act. The Member considered the terms of the application to review and noted that there were features that suggested that the decision sought to be reviewed was the decision to give a direction to rectify, and others which suggested it was the issue of the direction to rectify itself which was the subject of the application. The Member concluded that, on a fair reading of the application to review a decision form, the decision under review was the direction to rectify made on 28 May 2020.[3][3]GAR194-20 Reasons at [15]. The Member then considered some decisions of the tribunal on the question of whether a direction to rectify was reviewable under s 86(1)(e) of the QBCC Act and concluded that it was, so that the tribunal had jurisdiction to review the direction to rectify. The appellant’s application to strike out the proceeding was therefore dismissed.Submissions of the appellant The appellant reinforced the finding of the Member as to the interpretation of the application to review form and relied on s17(1) of the QCAT Act, that the tribunal may only review decisions where an enabling Act, such as the QBCC Act, specifically confers jurisdiction. The appellant submitted that the decision of the Member erred in characterising the direction to rectify notice as itself a decision under the QBCC Act, since it simply gave effect to the earlier decision to issue that direction. The issuing of the direction did not involve the making of any further decision in its own right, as claimed by the Member at [24] of the Reasons. Accordingly, there was no reviewable decision identified in the application. The submissions also adopted the submissions at first instance. These included the proposition that the respondent was out of time because the period of twenty-eight days referred to in the QBCC Act, s 86F(1)(b)(i) had been exceeded. But this argument depends on the proposition that the application to review filed on 8 June 2020 was not an application to review a reviewable decision so, as such, really adds nothing to the earlier submissions.Submissions of the respondent The respondent submitted that the appellant’s contention as to lack of jurisdiction rested on the proposition that the question of jurisdiction is determined entirely on the content of the application to review form, as to which there are no formal requirements in the QBCC Act, associated regulations or QCAT Act. The only requirement being that a review application be made on the approved form (Rule 7(1)(a) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld)). Further, to dismiss an application to review on the basis of a failure to adhere with strict compliance with forms, is inconsistent with the objects of the QCAT Act which eschew formality (s 3(b) of the QCAT Act). The respondent sought to distinguish Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 69 on the basis that in that matter there was no doubt the direction to rectify was the decision under review and it was decided at a final hearing, rather than on an interlocutory basis.Submissions of the Commission

Ratio Decidendi

Legal Principle Established

The Commission submitted that the Member erred in applying the reasoning in Oracle 1 [2019] QCAT 419 because those reasons were overturned in Oracle 2 [2020] QCAT 69 when it was observed that a direction to rectify is not a ‘reviewable decision’ for the purposes of s 86(1)(e). Further, it was submitted that procedural fairness had been afforded to the appellant in directing submissions to be filed and in determining the strike out decision based on those submissions, as well as those of the Commission and the respondent.Consideration Section 86 (1)(e) of the QBCC Act provides that the following decision of the Commission under this Act is a “reviewable decision”:A decision to give a direction to rectify or remedy or not to give the direction. The giving of the direction is a consequential step, but if and to the extent that it involves a decision, it is not a reviewable decision under the QBCC Act.[4] To the extent the learned Member decided to the contrary, I respectfully disagree.[4]It may still be reviewable under the Judicial Review Act 1991 (Qld) or in proceedings for a declaration in the Supreme Court. The learned Member referred to Queensland Building and Construction Commission v Whalley.[5] In that matter an application for review identified one reviewable decision as sought to be reviewed (a decision that work had not been satisfactorily rectified), but not another of the same date (to issue a new direction to rectify). It would have been sensible to also seek review of the decision to issue the direction to rectify as it was, in a practical sense, consequent on the decision reviewed. The Appeal Tribunal held that one of the errors made was to set aside the decision for DTR no 40913 because that was not the decision sought to be reviewed. As there had been no request to review that decision, the Appeal Tribunal held the tribunal lacked jurisdiction to review it, even if it was, for the purposes of the QBCC Act, a reviewable decision.[6] That is a different situation from the present.[5][2018] QCATA 38. [6]Ibid at [36]. In Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission[7] the Member who decided the strike out application in this matter, decided that the decision to give a direction to rectify and the giving of the direction to rectify were each a reviewable decision within the meaning of the QBCC Act s 86(1)(e). In Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission,[8] a different Member declined to follow that decision, and said that the giving of the direction to rectify was not a decision and hence not a reviewable decision under s 86 of the QBCC Act.[7][2019] QCAT 419.[8][2020] QCAT 69. In McNab Constructions Australia Pty Ltd v Queensland Building Services Authority[9] Dalton J (as her Honour then was) drew a distinction between the decision to give a direction to rectify and the direction to rectify given pursuant to the decision. In that matter it was held that notices which required the work to be completed within 28 days from the date of signing, or the date of posting of the notices giving a direction to rectify did not comply with the requirement in s 72(3) of the QBCC Act, which was interpreted as requiring a period of 28 days from the receipt of the notice by the contractor. Accordingly, a declaration was made that the directions were void. The Commission had argued that a merits review of the decisions to give the directions to rectify was soon to be heard in the tribunal and that the declaration should be refused as a matter of discretion. That was refused on the basis that the decision to give the directions and the giving of the notices of the directions were different, and her Honour’s decision concerned the validity of the directions to rectify that were actually given.[10] The problem in that case was that the period within which work was required to be done was less than that required by the QBCC Act, whether or not there was anything wrong with the decision to give the directions. The distinction was, with respect, entirely appropriate in the circumstances of that case but did not, in my view, go so far as to establish that the giving of the direction was a separate decision, whether or not reviewable. [9][2013] QSC 57.[10]Ibid at [18].