Clark v Queensland Building and Construction Commission

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.