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
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- Case
- [2024] QCAT 329
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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