Clark v Queensland Building and Construction Commission - [2024] QCAT 329

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Clark v Queensland Building and Construction Commission & Anor [2024] QCAT 329

PARTIES:

JONATHAN HARTLEY CLARK

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

ON THE LEVEL (QLD) PTY LTD

(second respondent)

APPLICATION NO/S:

GAR652-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 July 2024

HEARING DATES:

13, 14, 17 June 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

1.          The Application to review a decision filed on 18 November 2021 is dismissed.

2.          Any party seeking an order for costs must file with the Tribunal two (2) copies of, and give to the other parties one copy of, written submissions, no longer than eight (8) pages, within 14 days of the date of the Decision.

3.          If written submissions as to costs are filed pursuant to order number 2, the party or parties against whom an order for costs is sought must file with the Tribunal two (2) copies of, and give to the other party or parties one copy of, written submissions in response, no longer than eight (8) pages for each response, within 14 days of receipt of the written submissions.

4.          Each party that receives written submissions pursuant to order number 3 may file with the Tribunal two (2) copies of, and give to the other party or parties one copy of, written submissions in reply, no longer than four (4) pages for each reply, within 14 days of receipt of the written submissions.

5.          If no written submissions are filed pursuant to order number 2, there shall be no order as to costs of the proceeding.

6.          If written submissions as to costs are filed, the application for costs will be determined on the papers without an oral hearing.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – where applicant made complaint about alleged defective residential building work – where Queensland Building and Construction Commission (‘QBCC’) decided not to give a direction to rectify to the builder – where applicant sought internal review of decision – where QBCC confirmed decision – where applicant applied to the Tribunal for external review of that decision – where application to review filed more than 6 years and 6 months after completion of the building work – whether Tribunal had jurisdiction to review the decision – where Appeal Tribunal previously found that the Tribunal had no jurisdiction to review in analogous circumstances – whether Tribunal sitting at first instance is bound by the Appeal Tribunal decision

Acts Interpretation Act 1954 (Qld), s 38

Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 72A, s 86

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 9, s 20, s 24, s 25, s 26, s 27, s 142, s 148, s 150, s 164, s 166

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

Barry & Anor v Queensland Building and Construction Commission

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: [2024] QCAT 329
Decision Date: 17 July 2024

CaseChat Overview and Summary

In the matter of Clark v Queensland Building and Construction Commission, the applicant sought judicial review of a decision made by the Queensland Building and Construction Commission (QBCC) regarding alleged defective residential building work. The QBCC had decided not to issue a direction to the builder to rectify the work, and the applicant sought an internal review, which was subsequently confirmed by the QBCC. The applicant then applied to the Queensland Civil and Administrative Tribunal (QCAT) for external review of the decision. The central issue before the court was whether QCAT had jurisdiction to review the decision, given that the application was filed more than 6 years and 6 months after the building work was completed.

The legal issue centred on the interpretation of s 72A(4) of the QBCC Act, which limits the time within which a direction to rectify can be given, and whether this provision also affects the Tribunal's jurisdiction to review such decisions. The applicant argued that the operative event for the purposes of the time limitation was the making of the Review Decision, which occurred on the last day of the 6 years and 6 months period. The Respondents contended that the operative event was the date of filing of the Review Application, which was beyond the statutory period. The Respondents also relied on a previous decision of the Appeal Tribunal in Jorg & Anor v Queensland Building and Construction Commission, which found that QCAT did not have jurisdiction in similar circumstances.

The court examined the definition of 'building work' under the QBCC Act and determined that the completion date was a jurisdictional fact. The court considered the evidence regarding the completion date, concluding that the building work was completed on 1 April 2015, not 23 April 2015 as the applicant contended. The court found that the operative event for the purposes of s 72A(4) was the date of filing of the Review Application, which was beyond the statutory period. The court held that QCAT was not bound by the previous Appeal Tribunal decision, but the outcome was the same: QCAT did not have jurisdiction to review the decision.

The application for review was dismissed. Regarding costs, if any party sought an order for costs, they had to file written submissions within 14 days. The responding party had a further 14 days to file their response, and the original party could file a reply within 14 days of receiving the response. If no submissions were filed, there would be no order for costs. If submissions were filed, the application for costs would be determined on the papers without an oral hearing.

Orders

Orders of the court

1. The Application to review a decision filed on 18 November 2021 is dismissed.

2. Any party seeking an order for costs must file with the Tribunal two (2) copies of, and give to the other parties one copy of, written submissions, no longer than eight (8) pages, within 14 days of the date of the Decision.

3. If written submissions as to costs are filed pursuant to order number 2, the party or parties against whom an order for costs is sought must file with the Tribunal two (2) copies of, and give to the other party or parties one copy of, written submissions in response, no longer than eight (8) pages for each response, within 14 days of receipt of the written submissions.

4. Each party that receives written submissions pursuant to order number 3 may file with the Tribunal two (2) copies of, and give to the other party or parties one copy of, written submissions in reply, no longer than four (4) pages for each reply, within 14 days of receipt of the written submissions.

5. If no written submissions are filed pursuant to order number 2, there shall be no order as to costs of the proceeding.

6. If written submissions as to costs are filed, the application for costs will be determined on the papers without an oral hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, the Respondents have raised a threshold jurisdictional issue that arises out of the operation of s 72A(4) of the QBCC Act.Does the Tribunal have jurisdiction to review the Review Decision?Subsection 72A(4) of the QBCC Act At the time of the Review Decision, s 72A(4) of the QBCC Act provided:[3]A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.[3]And still provides. The QBCC has not made an application under s 72A(4) for an extension of time for the giving of a direction to rectify. During final addresses, Ms Hedger for the QBCC confirmed that the QBCC would not be making such an application. Mr Clark contends that the Tribunal has jurisdiction to decide the Review Application on the basis that, first, the date on which the building work was completed was 23 April 2015 and, second, the making of the Review Decision is the operative event for the purposes of s 72A(4), with the result that the Review Decision was made on the last day of the 6 years and 6 months period. The Respondents contend that the Tribunal does not have jurisdiction to decide the Review Application on the basis that, first, the date on which the building work was completed was 1 April 2015 and, second (and in any event), the operative event for the purposes of s 72A(4) is the date of filing of the Review Application which occurred more than 6 years and 6 months after both 1 April 2015 and 23 April 2015. With respect to the filing of the Review Application being the operative event, the Respondents rely upon the Appeal Tribunal decision of Jorg & Anor v Queensland Building and Construction Commission (‘Jorg’).[4][4][2021] QCATA 134 (Senior Member Brown, Member Howe). I will first address the factual question as to the date on which the building work was completed. I consider this to be a jurisdictional fact.[5] [5]Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120, [43].When was the building work completed? The Respondents submit that the building work to which the direction relates was completed on 1 April 2015 having regard to the issue of a Form 1 certificate in relation to Mr Clark’s house. There is no factual dispute that the certificate was issued on that date. Mr Clark submits that the building work was not completed until 23 April 2015, being the date on which it is contended that practical completion was achieved. At the date of the Review Decision, the term ‘building work’ was defined in Schedule 2 to the QBCC Act to mean:(a) the erection or construction of a building; or (b) the renovation, alteration, extension, improvement or repair of a building; or (c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or (e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or (f) the preparation of plans or specifications for the performance of building work; or (fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or (g) fire protection work; or (ga) mechanical services work; or (h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or (i) carrying out a completed building inspection; or (j) the inspection or investigation of a building, and the provision of advice or a report, for the following— (i) termite management systems for the building; (ii) termite infestation in the building; but does not include work of a kind excluded by regulation from the ambit of this definition.

Ratio Decidendi

Legal Principle Established

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