Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission (No 3)
[2022] QCAT 192
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission & Anor (No 3) [2022] QCAT 192
PARTIES:
GEDOUN CONSTRUCTIONS PTY LTD (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent)
MARK ELLIOT AGUIS
(second respondent) APPLICATION NO/S:
GAR373-20
MATTER TYPE:
General administrative review matters
DELIVERED ON:
19 May 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Cranwell
ORDERS:
The strike out application filed on 13 September 2021 is dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to strike out application to review
Acts Interpretation Act 1954 (Qld), s 14, s 32C
Queensland Building and Construction Commission Act 1991 (Qld), s 86A, s 86E
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
On 25 September 2020, Gedoun Constructions Pty Ltd (‘Gedoun’) lodged an application to review a decision with the Tribunal.
On 3 June 2021, Mr Agius was joined as a respondent to the proceeding.
On 13 September 2021, Mr Aguis filed an application seeking to have application for review struck out. The basis of his application is that Gedoun does not seek review of a reviewable decision under s 86E(a) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
Relevant history
On 28 August 2020, the Queensland Building and Construction Commission (‘QBCC’) made an initial decision in relation to the scope of works under the statutory insurance scheme.
On 3 September 2020, Gedoun applied for an internal review of the initial decision.
On 25 September 2020, Gedoun filed an application with the Tribunal seeking external review of the QBCC’s decision.
Also on 25 September 2020, Mr Aguis applied for an internal review of the initial decision.
On 22 October 2020, the QBCC made its internal review decision.
Legislative scheme
A person whose interests are affected by an initial decision of the QBCC, and who is dissatisfied with the decision, has an election between two avenues of review. They may seek an internal review of the initial decision and, if still dissatisfied, proceed to seek an external review of the internal review decision with the Tribunal. Alternatively, they may proceed immediately to seek an external review of the initial decision with the Tribunal.
This scheme is relevantly set out in sections 86A and 86E of the QBCC Act. Section 86A provides:
(1) A person who is given, or is entitled to be given, notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed.
(2) However, subsection (1) does not apply if the person has applied to the tribunal for a review of the reviewable decision under subdivision 2.
(3) Also, if—
(a) the person applies for an internal review of the reviewable decision; and
(b) before the application is decided, the person applies to the tribunal for review of the reviewable decision under subdivision 2;
the application for internal review of the decision lapses
Section 86E provides:
In this subdivision— reviewable decision means—
(a) a reviewable decision within the meaning of subdivision 1, other than a decision that was the subject of an internal review under subdivision 1; or
(b) an internal review decision within the meaning of subdivision 1.
Consideration
Putting to one side Mr Aguis’ application for internal review, the legislation is clear as to how Gedoun’s applications are to be considered. Gedoun applied for an internal review but, before the internal review decision was finalised, it applied for external review with the Tribunal. Pursuant to s 86A(3) of the QBCC Act, his internal review application lapses, leaving the external review application to proceed.
The issue before me is whether Mr Aguis’ application for an internal review alters this position. To all intents and purposes, the situation may be summarised as follows:
(a)Gedoun and Mr Aguis both had review rights in relation to the initial decision; and
(b)on the same day, Gedoun applied for external review and Mr Aguis applied for internal review.
I do not have any evidence before me as to the time of day Gedoun’s application for external review and Mr Aguis’ application for internal review were filed. In other words, I do not know whose application was made first. Nothing appears to turn on this in any event.
In construing s 86E(a), I place emphasis on the provision’s reference to internal review in the past tense, namely that the initial decision ‘was the subject of an internal review’ (emphasis added). In my view, s 86E(a) does not preclude an application for external review being made before an internal review decision is made. If s 86E(a) were to extend to the position where the internal review application had yet to be decided, it would have to read ‘is the subject of an internal review’. It does not.
Accordingly, s 86E(a) did not preclude Gedoun from applying to the Tribunal for external review on 25 September 2020, as at that date no internal review decision had been made. It is not in dispute that the internal review was not made until 22 October 2020.
Having reached this conclusion, it follows that the Tribunal has jurisdiction to review the decision under review.
In my view, nothing in s 86A detracts from this view. Section 86A(1) refers to ‘a person’ who is given or entitled to be given a copy of the initial decision. There may be more than one such person, and in this regard s 32C of the Acts Interpretation Act 1954 (Qld) (‘the AIA’) provides:
In an Act—
(a) words in the singular include the plural; and
(b) words in the plural include the singular.
Accordingly, in the circumstances of this case, the reference to ‘a person’ in s 86A(1) would include both Gedoun and Mr Aguis.
The evident purpose of the provision is to prevent an internal review proceeding at the same time as an external review, and to give primacy to the external review application. Section 14(1) of the AIA requires me to adopt an interpretation consistent with the purpose of the provision. In my view, when s 86A(3) refers to ‘the person’, in circumstances where there may be more than one person, it is tolerably clear that the provision is capable of referring to either Gedoun or Mr Aguis.
It follows that, in the event that Mr Aguis’ internal review application was filed before Gedoun’s external review application, Mr Aguis’ application lapsed upon the filing of Gedoun’s application. Alternatively, if Mr Aguis’ internal review application was filed after Gedoun’s external review application, it was incompetent pursuant to s 86A(2). In either event, the QBCC acted beyond its power in proceeding to make a decision on the internal review application.
Disposition
The appropriate order is to dismiss the strike out application.
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