JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority
[2013] QCAT 502
| CITATION: | JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502 |
| PARTIES: | JM Kelly (Project Builders) Pty Ltd ACN 010 280 412 (Applicant) |
| v | |
| Queensland Building Services Authority (First Respondent) Body Corporate for Captains Corner CTS 36430 (Second Respondent) |
| APPLICATION NUMBER: | GAR375-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 6 December 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 20 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Application for Miscellaneous Matters filed in the Tribunal on 9 October 2012 is dismissed. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – JURISDICTION – where the Queensland Building Services Authority issued a direction to rectify to the applicant – where the applicant filed an application for review of the direction to rectify in the Tribunal – where the applicant challenges the jurisdiction of the Tribunal to determine the application – where the applicant submits that there has been a substantial denial of natural justice and/or manifest unreasonableness in the issuing of the direction to rectify – where the applicant submits the Queensland Building Services Authority had no jurisdiction to issue the direction to rectify – where the applicant submits the Tribunal has no jurisdiction to review a decision made in jurisdictional error – where the applicant submits that certain statutory preconditions are jurisdictional facts that must be satisfied before the Tribunal has jurisdiction – whether the Tribunal has jurisdiction Acts Interpretation Act 1954 (Qld), s 14A Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr B E Codd instructed by Dibbs Barker |
| RESPONDENT: | Mr B Turnbull of HWL Ebsworth Lawyers |
REASONS FOR DECISION
The substantive proceedings
This matter concerns a challenge to the jurisdiction of the Tribunal to hear and determine an application brought within its general review jurisdiction. An interesting aspect of the matter is that the party who challenges the Tribunal’s jurisdiction to hear the substantive application is the party who brought that application. What must follow from this is what has been described elsewhere as the ‘awkward proposition’[1] that the applicant, JM Kelly (Project Builders) Pty Ltd (‘JM Kelly’) lacks the standing to bring the substantive proceedings which it has commenced.
[1]Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 345 per Bowen CJ.
On 19 November 2010 JM Kelly applied to the Tribunal for the review of a decision which it described as ‘QBSA Ref – 3-2885-10 924973_168. Direction to Rectify No. 35497’.
What was sought was:
A review of the decision to find that the applicant is either not responsible for the alleged defects and/or that the alleged defects are not in fact defects capable of enforcement through the provisions of the Queensland Building Services Authority Act 1991.
Detailed submissions in support of the application were filed with it as an attachment. They run to some 75 paragraphs in respect of the 10 defects listed in the direction to rectify.
By direction made in those substantive review proceedings on 3 October 2012,[2] the Queensland Building Services Authority (‘QBSA’), which is the first respondent in these proceedings, was invited to reconsider direction to rectify No. 35497 by 4:00pm on 24 September 2012. By further direction JM Kelly was required to file and serve any miscellaneous application for jurisdictional challenge to any amended direction to rectify (which had been foreshadowed), with written submissions in support, by 4:00pm on 8 October 2012.
[2]Following a hearing on 17 September 2012.
The QBSA issued an amended direction to rectify No. 35497 on 25 September 2012. No issue was taken with the issuing of that amended direction to rectify being outside of the time allowed.
On 9 October 2012 JM Kelly filed an application for miscellaneous matters in which it makes what it describes as a ‘jurisdictional challenge to the amended direction to rectify and/or direction to rectify.’ It seeks orders that the amended direction to rectify issued on 25 September 2012 and/or, in the alternative, the direction to rectify dated 22 October 2010 be set aside, struck out or quashed.
The jurisdictional challenge
In its application in which it raises this jurisdictional challenge, JM Kelly states its reasons for seeking the orders as:
1.The applicant contends that:
(a)A direction to rectify [DTR] which is issued contrary to the statutory preconditions to its issue is void.
(b)A DTR which is issued without the recipient being given the opportunity to address the complaint made against it should be set aside by reason of a denial of natural justice.
(c)An amended DTR made under s 23 of the Queensland Civil and Administrative Tribunal Act 2009 [the QCAT Act] is only valid to the extent that it relates to the original DTR.
(d)A DTR cannot be issued without a complaint under s 71A.
(e)A DTR without the recipient being given an opportunity to rectify the work before the DTR is given should be set aside.
(f)A DTR which is manifestly unreasonable should be set aside or treated as void.
2.The applicant further contends that a direction cannot be partially valid – if the direction to rectify is tainted, severance of the tainted components of the direction is not available and the whole direction must be set aside.
JM Kelly expands upon those contentions as follows:
3.In respect of the original DTR, the following complaints are made:
(a)Items 2, 5 and 6 relate to ‘building work’ which was not carried out by the applicant and the first respondent.
(b)Item 7 relates to work for which a direction was issued without having due regard to the circumstances – that being the reasonableness of directing rectification of work completed in compliance with the original owner’s requirements.
(c)Item 8 was manifestly unreasonable in that time allowed for the rectification work was not practically achievable.
(d)Item 10 was not, as a matter of fact, defective.
4.In respect to the amended DTR, the following complaints are made:
(a)Items 1 and 2 (1 & 2 on the original DTR) are different, and consequently new, allegations as to alleged defects.
(b)Item 3 (6 on the original DTR) relates to building work which was not carried out by the applicant and the first respondent.
(c)Item 4 (8 on the original DTR) was manifestly unreasonable in that time allowed for the rectification work was not practically achievable.
(d)Item 5 is an entirely new allegation and:
(i)Does not relate to the complaint pursuant to which the original DTR was issued.
(ii)Does not arise from property owned by the complainant being the second respondent.
(iii)Has been made in circumstances in which the applicant has been denied the opportunity to address the complaints for the issue the DTR.
(iv)Has not been made pursuant to any “complaint” within the meaning of s 71A of the QBSA Act.
In its written submissions[3] JM Kelly contends that it seeks to have the original and amended directions to rectify set aside, struck out our quashed on the grounds that both were issued without jurisdiction, and in circumstances of a substantial denial of natural justice and/or manifest unreasonableness. It is convenient to consider JM Kelly’s application under those three broad headings.
[3]Amended Applicant’s Outline – Jurisdicitional challenge to the amended direction, filed 7 November 2012 (‘Applicant’s submissions’), [1].
The nature of the present application
Before doing so, however, something should be said about the nature of the application.
The matter before the Tribunal is a challenge to its jurisdiction to hear and determine the substantive application which JM Kelly has brought. In that regard, JM Kelly contends, for reasons which will be discussed later, that the decisions to issue the direction to rectify and amended direction to rectify are void. Or, to put it another way, they are not a valid exercise of the QBSA’s power to direct rectification and at law they are no decisions at all.[4]
[4]In the sense described in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 per Gaudron and Gummow JJ at [51]; McHugh J at [67]; and Kirby J at [153].
Both in its written submissions and in the course of the hearing of the application, JM Kelly on a number of occasions advanced its case not as a true challenge to the Tribunal’s jurisdiction to deal with the substantive application, but rather on the basis that the Tribunal would be compelled to reach certain conclusions based upon the evidence before it. By way of illustration, in its written submissions[5] JM Kelly referred to its assertions in its application for review that:
a) The QBSA had failed to identify how the defect the subject of item 2 of the direction to rectify was within the terms of the QBSA policy;
b) The alleged water ingress was not within a habitable area;
c) The allegation the moisture was compromising building safety was unsustainable.
[5]Applicant’s submissions, [53] – [55].
JM Kelly then submitted that ‘no evidence has been produced by the respondents to contravene (sic) this position’.
It then made an ultimate submission that ‘It is submitted that the Tribunal is therefore bound to determine that Item 2 of the DTR was directed when there was no jurisdiction so direct (sic)’.
Similarly, in respect of item 6 in the direction to rectify, JM Kelly submitted[6] that whilst it accepted that the work the subject of that item was a building defect in the context of the QBSA Act, it did not accept that it was building work carried out by it. JM Kelly then referred to its ‘relevantly uncontested evidence’ that the work the subject of item 6 (and other items) did not involve building work carried out by it.
[6]Applicant’s submissions, [57] – [61].
On that basis, JM Kelly made the following submissions:[7]
No evidence has been put on by the first respondent [QBSA] to contravene (sic) this contention and it is apparent from the first respondent’s material that the first respondent did not consider the issue of jurisdiction in a meaningful way prior to determining to issue the DTR.
It is submitted that the Tribunal is therefore bound to determine that Item 6 of the DTR was directed when there was no jurisdiction so direct (sic).
[7]Ibid, [60] – [61].
In making oral submissions to like effect in the hearing, counsel for JM Kelly referred to the uncontroverted evidence[8] of JM Kelly that the work the subject of items 2, 5 and 6 of the direction to rectify were not completed by it.
[8]Counsel conceded that in the course of a full hearing in which cross-examination of the JM Kelly witnesses who gave that evidence occurred there was a prospect that those witnesses might identify that they had been incorrect in regard to those issues.
However, an appeal to ‘uncontroverted facts’ which would result in the Tribunal being ‘bound to determine’ an issue in a particular way, even an issue described to be the jurisdiction of the QBSA to issue the direction to rectify, invites and requires the resolution of those issues within, and in exercise of, the Tribunal’s jurisdiction to hear and determine the substantive application. It is the antithesis of the Tribunal lacking jurisdiction to entertain and resolve the application.
The application before the Tribunal is not one for summary judgment or the separate resolution of particular issues. Applications of those kind require an exercise in a particular way of the jurisdiction of the court or tribunal involved. Here, the nature of the application is entirely different. It is an application to establish that the Tribunal has no jurisdiction at all to exercise.
If jurisdiction exists, this application must be dismissed. The resolution of issues within jurisdiction must await the hearing of the substantive application.
Directions to rectify issued without jurisdiction
The matters which I have identified above concerning the nature of the application presently before the Tribunal are relevant to JM Kelly’s case that the directions to rectify were issued by the QBSA without jurisdiction and that, consequently, the Tribunal lacks jurisdiction to review the decisions to issue those directions. It submits that the exercise of the QBSA’s power under s 72 of the QBSA Act is conditioned upon the existence of what it identifies as certain jurisdictional facts. If those jurisdictional facts do not exist, then it says the QBSA had no jurisdiction to issue a direction to rectify under s 72. Any direction purportedly issued in the absence of such jurisdictional facts is, JM Kelly submits, void and of no legal effect.
Relevantly, the jurisdictional facts which it identifies are: that there must have been building work; and that building work must have been carried out by the person to whom the direction to rectify is directed. A further jurisdictional fact identified by JM Kelly upon which it says the power under s 72 is conditioned is the existence of a complaint by a consumer under s 71A in respect of the building work.
JM Kelly further submits that ‘[t]he Tribunal is obliged to determine whether or not it has jurisdiction by determining firstly whether or not the relevant [DTR] was within jurisdiction’.[9]
[9]Applicant’s submissions, [22].
It is on the basis of this asserted obligation to determine whether it is satisfied, on the balance of probabilities, of these jurisdictional facts, that JM Kelly contends that its application is truly a challenge to the Tribunal’s jurisdiction to determine the substantive application rather than an exercise of the Tribunal’s jurisdiction.
I am of the view that JM Kelly is wrong both in its identification of purported jurisdictional facts, and as to the obligation of the Tribunal to determine the jurisdictional issues in the way it asserts.
The consequence of this is that JM Kelly is also wrong in its conclusion that the Tribunal lacks jurisdiction to deal with its substantive application for review.
JM Kelly says that the judgment of Fryberg J in Skaines v Kovac Enterprises Pty Ltd[10] provides authority for its contention that there are jurisdictional facts of which the Tribunal is obliged to satisfy itself of before it has jurisdiction to deal with the substantive application for review. It also contends, on the basis of what was said in Skaines, that the Tribunal should resolve these jurisdictional questions itself rather than the Supreme Court being called upon to do so in separate proceedings.
[10][2007] 1 Qd R 98.
Reliance upon Skaines in support of each of these contentions is misplaced.
In Skaines, Fryberg J declined, on discretionary grounds, not to resolve the issues which had been raised in the proceedings in that Court, considering that those matters should be resolved by the Commercial and Consumer Tribunal in proceedings which were then before that Tribunal. The Commercial and Consumer Tribunal had jurisdiction to resolve certain disputes under the QBSA Act.
Section 77(1) of the QBSA Act permitted an application to the Tribunal[11] by ‘a person involved in a building dispute … to have the Tribunal decide the dispute’. Proceedings had been brought against a builder in the Commercial and Consumer Tribunal under s 77(1). An issue which had arisen was whether those proceedings had been compromised by a settlement which the builder said had been agreed.
[11]At the time the Tribunal to which application could be made was the Commercial and Consumer Tribunal. It is now QCAT.
The builder commenced separate proceedings in the Supreme Court in which he sought a declaration that there was no valid and binding contract between him and the applicant in the proceedings in the CCT. Alternatively he sought rescission of any such contract or a declaration that any such contract had been terminated, avoided or rescinded.
The Supreme Court was informed that in a series of decisions the CCT had determined that it would not embark upon a consideration of settlement agreements, and treated itself as not having jurisdiction to do so.
The jurisdiction conferred on the CCT under s 77 of the QBSA Act was original jurisdiction to decide a dispute. It required there to be a dispute to be resolved.
It is in that context which the judgment of Fryberg J must be understood when his Honour said:
It also seems to me that if a party before the Tribunal alleges the continued existence of such a dispute and another party to the proceedings in the Tribunal denies the continued existence of such a dispute, the obligation falls upon the Tribunal to determine whether it has jurisdiction.
In the present case, it can only determine its jurisdiction by resolving the question whether the dispute which undoubtedly existed at the time the proceedings were commenced in the Tribunal had ceased to exist. It can only do that by deciding whether the compromise alleged by Kovac was indeed a compromise, whether the agreement for compromise has been terminated, or whether for some other reason the alleged compromise has become ineffective …
…
It is the duty of the Tribunal to resolve jurisdictional facts and to determine its own jurisdiction.[12]
[12]Skaines, 100 – 101.
Those observations are entirely apposite to a Tribunal exercising original jurisdiction to decide a dispute. The Tribunal must establish the existence of the dispute in order to exercise its jurisdiction.
Where, in contrast, the Tribunal is exercising review jurisdiction, the only matter, the only jurisdictional fact, of which the Tribunal need satisfy itself is the existence of a decision of a kind the Tribunal has power to review. Whether there is such a decision which falls within the Tribunal’s review jurisdiction is governed by the relevant statutes which confer the review jurisdiction on the Tribunal. It is a construction of those statutes which determines whether it is necessary that there be a valid decision made in a lawful exercise of the decision making power in order for the decision to be reviewable.
In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd,[13] a full court of the Federal Court of Australia considered the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT) and whether the AAT could review a decision which had purportedly been made in exercise of statutory powers, but which may not have been a valid exercise of those powers such that the decision may not have been legally effective.
[13](1979) 41 FLR 328.
Bowen CJ found[14] in rejecting the applicants contention that the Tribunal did not have jurisdiction to review a decision which was asserted to be a nullity:
… in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.
[14]At 346.
His Honour was of the view that giving wide meaning to the word ‘decision,’ such that it included a decision made in purported exercise of powers conferred by the enactment, would permit the Tribunal to determine whether the decision was properly made in fact and in law.[15]
[15]Ibid at 344.
Smithers J, who agreed with Bowen CJ in the result, said:
It is to be noted also that the subjects of review are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorised to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.[16]
[16]Ibid at 368.
His Honour concluded that those decisions which were reviewable were those which were ‘…made by an administrator in purported or assumed pursuance of the relevant statutory provision’.[17]
[17]Ibid at 373.
More recently, in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs,[18] a full court of the Federal Court of Australia considered the role of the Migration Review Tribunal in reviewing invalid decisions. Particularly, the Court was called upon to consider such invalidity in light of the High Court’s decision in Minister for Immigration and Multicultural Affairs v Bhardwaj,[19] upon which JM Kelly relies in these proceedings to support its contention that the directions to rectify were, at law, no decisions at all and not reviewable in the Tribunal.
[18](2004) 211 ALR 261.
[19](2002) 209 CLR 597.
The Court noted that another full court had rejected that Bhardwaj was ‘…authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever’,[20] and considered that the appropriate starting point was the provisions of the Act itself.[21]
[20]Jadwan Pty Ltd v Secretary Department of Health and Aged Care (2003) 204 ALR 55 per Gray and Downes JJ at [42].
[21]Ibid at [24].
The Court noted[22] that s 348(1) of the Migration Act 1958 (Cth) provided that ‘the Tribunal must review’ a decision in respect of which an application for review had been properly made. The Court concluded that the decision was an ‘MRT reviewable decision’ which the MRT was not only entitled to, but obliged, to review. In reaching this conclusion it observed that the expression ‘decision’ was not defined by the Act, and that there was no textual suggestion that MRT reviewable decisions as defined were to be restricted to refer only to decisions which had been made after full procedural compliance.[23] In that regard, it observed that there were no qualifications on the word ‘decision’ requiring it to be a ‘decision under the Act’.[24] The Court concluded:[25]
In particular, there is nothing in Pt 5 of the Act which would suggest that the tribunal does not have the power or obligation to review a decision properly brought before it (see s 347) where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may, or may arguably, have committed an error of law either in determining the applicable law or in applying the law. There is no reason why the Act which provides for a full merits review by the tribunal of decisions which may be brought to it, should impose upon the tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the tribunal’s decision as to existence of a valid delegates decision (a jurisdictional fact on the appellant’s argument) to review by a court even where (as here) the tribunal has fully reviewed the decision on the merits.
[22]At [25].
[23]It was a failure to follows procedure which had rendered the decision invalid in that case.
[24]Compare Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476.
[25]At [28].
The Court considered that this approach was in accord with a line of authority commencing with Lawlor and including Secretary, Department of Social Security v Alvaro[26] and Yilmaz v Minister for Immigration and Multicultural Affairs.[27]
[26](1994) 50 FCR 213.
[27](2000) 100 FCR 495.
In Martinez v Minister for Immigration and Citizenship and Another,[28] Rares J, after citing Lawlor and Zubair, said of a Tribunal’s power to review a decision which was affected by jurisdictional error:
The tribunal has power to cure a defect in the delegate’s decision once the tribunal’s jurisdiction has been invoked by an application for review: Zubair 139 FCR 344 at [32]. A party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J.
[28](2009) 177 FCR 337 at 346, at [20].
Section 9(1) of the QCAT Act provides that the Tribunal has jurisdiction to deal with matters it is empowered to deal with under that Act or an enabling Act. Section 9(2) confers original, review and appellate jurisdiction on QCAT. Section 9(3) provides that an enabling act confers jurisdiction on QCAT to deal with a matter if it provides for an application, referral or appeal to be made to QCAT in relation to the matter. Section 9(4) provides that QCAT may do all things necessary or convenient for exercising its jurisdiction.
Section 17 of the QCAT Act provides:
17 Generally
(1)The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
(2)For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.
The expression ‘decision’ is not otherwise defined by the Act.[29] Nor does the Act explain the meaning to be given to the expression ‘made or taken to have been made’. In my view, the inclusion within the Tribunal’s review jurisdiction of decisions taken to have been made under an enabling act recognises that under some enabling acts there may be provisions which deem a decision to have been made in circumstances in which no decision has in fact been made.[30]
[29]The dictionary in Schedule 1 to the Act contains definitions of ‘decision’ when used in the Act in respect of a decision of the Tribunal.
[30]For example, s 85 of the Health Practitioner Regulation National Law(Queensland) deems there to have been a decision to refuse registration when an application is not decided within 90 days.
Unlike the legislation considered in Zubair, s 17(1) does refer to a decision made, or taken to be made, ‘under the (enabling) act’. Notwithstanding that the Court in Zubair particularly noted the absence of such a qualification as supporting its conclusion that an invalid decision was reviewable, I am of the opinion that s 17 should not be construed so as to limit reviewable decisions under the QCAT Act to only those made validly under an enabling act.
The authority to which the full Federal Court referred in Zubair, by way of comparison, was Plaintiff S157/2002 v Commonwealth.[31] In that case, the High Court of Australia found that a purported decision affected by jurisdictional error was not a ‘privative clause decision’ under s 474(2) of the Migration Act 1958 (Cth). Section 474(2) defined a privative clause decision as ‘a decision of an administrative character made … under this Act’.
[31](2003) 211 CLR 476.
The Court concluded that a decision affected by jurisdictional error was not a ‘decision made under the Act’ and, therefore, was not a decision to which the privative clause in s 474(1) of the Migration Act, and limitations on applications to the High Court for constitutional writs imposed by s 486A, applied. The privative clause in s 474(1), on its face, might have applied to all decisions and thus purport to exclude review of a decision under s 75(v) of the Constitution, even if the decision was made in jurisdictional error. By determining that the expression ‘decision made under the Act’ did not extend to decisions which were not valid because they were affected by jurisdictional error, the Court was able to reconcile the privative clause with other provisions of the Act.[32] Such a construction was also consistent with the Constitution as it would not be an attempt to ouster the High Court’s jurisdiction under s 75(v).[33]
[32]Ibid per Gleeson CJ at [19] – [20].
[33]Ibid at [22].
It must be borne firmly in mind that what was said by the High Court in Plaintiff S157/2002 was said in the context of construing a privative clause. The construction of privative clauses is subject to particular rules. The plurality in Plaintiff S157/2002 said:
There are two basic rules of construction which apply to the interpretation of privative clauses. The first, which applies in the case of privative clauses in legislation enacted by the Parliament of the Commonwealth, is that “if there is an opposition between the Constitution in any such provision, it should be resolved by adopting [an] interpretation [consistent with the Constitution if] that is fairly open.
The second basic rule, which applies to privative clauses generally, is that it is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed.[34]
[34]Ibid at [71] – [72] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. (footnotes omitted)
In my view, those rules which require the strict construction of privative clauses are not to be applied in construing a provision such as s 17 of the QCAT Act which is intended to confer broad merits review on the Tribunal. As the majority of the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority[35]
The primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute … Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[35](1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ.
The objects of the QCAT Act include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. To achieve the objects of the Act, the Tribunal is required, amongst other things, to ensure proceedings are conducted in an informal way that minimises costs to the parties and it is as quick as is consistent with achieving justice.[36]
[36]QCAT Act, ss 3(b) and 4(c).
In my view, a construction of s 17 which required a determination of whether any decision which a party applied to have reviewed in the Tribunal was affected by jurisdictional error would not be consistent with the purpose of the legislation as revealed in its objects.
I am also of the view that the extension of the Tribunal’s jurisdiction to review decisions not in fact made, but taken to be made, strongly suggests that the intention of Parliament was to confer broad review jurisdiction upon the Tribunal. It would seem quite inconsistent, and an odd result, that the Tribunal could exercise its review jurisdiction in certain cases in which there was no decision at all, but where there was a decision made in fact, could only review that decision if it was made in valid exercise of the powers under the enabling act.
This construction is also supported by s 18(1) of the QCAT Act which provides:
18 When review jurisdiction exercised
(1)The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.
The use of the word ‘may’ in s 18 should not be construed as conferring a discretion upon the Tribunal to exercise its jurisdiction. Rather, it is to be construed as conferring a power which must be exercised if the circumstances are such to call for its exercise.[37]
[37]Leahy v Barnes [2013] QSC 226 at [36] per Henry J.
Section 87 of the QBSA Act provides that a person affected by a reviewable decision of the QBSA may apply to QCAT, as provided under the QCAT Act, for a review of the decision. By s 86(1)(e) of the QBSA Act, a decision to direct rectification of building work is a reviewable decision.
Once a person affected by a decision of the QBSA to direct rectification work applies to QCAT for a review of that decision, QCAT is obliged to exercise its review jurisdiction. Section 20(1) of the QCAT Act provides that the purpose of that review is to produce the correct and preferable decision. The Tribunal is required, by s 20(2), to hear and decide the review by way of a fresh hearing on the merits. In Kehl v Board of Professional Engineers of Queensland[38] the former Deputy President, Judge Kingham, identified the nature of the Tribunal’s review jurisdiction, in contrast to judicial review as follows:
It is apparent from Mrs Kehl’s submissions on this application that she has misapprehended the function of the Tribunal on an application to review a decision. The Tribunal’s role in exercising review jurisdiction is to reconsider the original decision and to make the correct and preferable decision. The review is conducted on the merits, by way of a fresh hearing. Unlike judicial review, the Tribunal’s function is to review the decision – not the process by which it was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that lead to the decision being made. There is no presumption that the original decision is correct.
[38][2010] QCATA 58 at [9].
This distinction between QCAT’s merit review jurisdiction and judicial review of a decision in the Supreme Court was recently highlighted by Dalton J in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority[39] where her Honour said:
From a review of the statutory provisions it should be plain that the question before me is not the same as the question before QCAT. QCAT has jurisdiction to review the decision of the respondent to direct rectification. The decision to direct rectification is necessarily anterior to the giving of a direction for rectification. My decision concerns only the directions to rectify actually given. It does not touch upon the validity of the decision of the respondent to direct rectification, or of course the merits of that decision. My decision is only concerned with the notice of that decision given to the applicant, by way of direction pursuant to s 72(1) of the QBSA Act.
For these reasons it seems to me that the existence of the impending merits review in QCAT is no reason why I should not make the declaration sought. Further, having regard to the limited statutory powers of QCAT, I am of the view that QCAT does not have jurisdiction to entertain an application for a declaration. As I say, I cannot see that there is any overlap between the proceeding in this Court and the proceeding in QCAT.[40]
[39][2013] QSC 57 at [18] – [19].
[40]By separate application on 28 March 2013 JM Kelly applied for leave to refer to this decision which was delivered after the hearing. The QBSA did not oppose that application subject to its making submissions on the decision. I have considered the submissions of both the QBSA and JM Kelly on Dalton J’s judgement in McNab. I do not consider that I need make a separate order in respect of the application for leave to refer to the decision.
In my view, the relief which JM Kelly seeks in this application is in the nature of judicial review. Its application is misconceived in that regard.
In exercising its review jurisdiction, the Tribunal will be able to determine, as it was said in Lawlor, ‘whether the decision was properly made in fact and law’.[41] That, however, must occur upon a full hearing of the application in exercise of the Tribunal’s jurisdiction. It is not a matter of the Tribunal lacking jurisdiction to hear and determine the substantive application brought by JM Kelly.
[41]At 344.
JM Kelly’s misunderstanding of the Tribunal’s jurisdiction and its error in challenging that jurisdiction may be illustrated by reference to other authority upon which it relies, and from other submissions which it has made. Its submission, for example, that ‘… the Tribunal must be satisfied on the balance of probabilities that the applicant undertook the building work to which the DTR relates in default of which the DTR is void’,[42] rather makes the point that such issues are within jurisdiction and are to be determined as questions of fact.
[42]Applicant’s submissions, [25].
The same point is demonstrated by paragraph 13 of JM Kelly’s submissions in reply[43] and the reference there to the decision of McGill DCJ in Queensland Building Services Authority v Lazinski.[44] In that case his Honour found that:
Ultimately the issue before the Tribunal was whether the respondent was a person who fell within s 72(5) of the Act so that an order could be made against him or a direction could be made against him. That necessarily could only be decided by the Tribunal Member on the basis of the material before him.
[43]Applicant’s Outline in Reply – Jurisdictional Challenge to the amended direction, filed 6 November 2012.
[44][2009] QDC 381.
At paragraph 42 of the Applicant’s submissions, JM Kelly states the relevant question in the application as being ‘to identify whether or not the applicant was the person who “carried out the building work” said by the authority to be defective’. This is either a question of fact or a question of mixed fact and law. Either way, it is a matter to be determined by the Tribunal in exercise of its jurisdiction in the substantive proceedings. It is not a matter in respect of which the Tribunal is deprived of jurisdiction.
JM Kelly’s contention that the Tribunal lacks jurisdiction to review the decision of the QBSA because the QBSA issued the notices to rectify without jurisdiction must be rejected.
Denial of natural justice
JM Kelly asserts that it has been denied natural justice by the QBSA; and that such denial is substantial. It contends that a substantial failure to accord natural justice will render the decision void.[45] It asserts that a direction to rectify issued without the recipient being given the opportunity to address the complaint against it should be set aside.[46] It submits that the imposition of a direction to rectify upon a licensee under the QBSA Act becomes a matter of public record which can have serious consequences for the recipient and that there is no sound practical reason why the QBSA should not provide to a potential recipient of a direction to rectify ‘non hazardous alleged defects’ the opportunity to rectify the defects, or to put to the QBSA why the “would be recipient” may not be responsible for those defects.[47]
[45]Applicant’s submissions, [69](a).
[46]Ibid, [3](b).
[47]Ibid [69](b) and (c).
JM Kelly’s complaint that it has been denied natural justice relates particularly to items 1, 2 and 5 of the amended direction to rectify. In respect of items 1 and 2, it says that those items now allege that work completed under the original direction to rectify is defective. It is said that JM Kelly has not been afforded the opportunity to address the further complaint.
In respect of item 5, the denial of natural justice is advanced on three bases. First, it is said that it ‘… does not spring from any complaint validly made by the complainant/second respondent under s 71A of the QBSA Act as the relevant real property is not owned by the second respondent’.[48] Secondly, it is said that there is no evidence before the Tribunal that the applicant has been asked to rectify the alleged defective building work.[49] Thirdly, it is said that there is no evidence that the applicant has been asked to put its position as to whether it is responsible for the alleged building work.[50]
[48]Ibid, [72].
[49]Ibid [73].
[50]Applicant’s submissions, [74].
The jurisdictional challenge based upon the asserted substantial denial of natural justice should be dismissed for a number of reasons. First, as discussed above, to raise a denial of natural justice is really to advance a basis upon which the process by which the decision was made might be challenged on judicial review. That is not the nature of the proceedings before the Tribunal. Secondly, to the extent that the matters identified as the basis for the denial of natural justice might be relevant to the merits review of the decision, and what is the correct and preferable decision, they are to be considered by the Tribunal in the exercise of jurisdiction which it possesses. They do not deprive the Tribunal of jurisdiction.
Thirdly, they assert procedural requirements which are not prescribed by the Act. Section 72 of the Act permits the QBSA to direct the rectification of building work without the requirement to take the steps which JM Kelly contends ought to have been taken. That such steps may be, or may have been, taken in other circumstances is not to the point. The fact that JM Kelly contends that these processes, or some of them, should be followed only in respect of ‘non hazardous alleged defects’, a classification not found in the QBSA Act, highlights the patent error in asserting that these are matters which go to the very jurisdiction of the Tribunal to review a decision to direct rectification.
Section 71A QBSA Act
JM Kelly separately contends that the power to direct rectification of building work under s 72 of the QBSA Act is conditioned upon there having been a complaint by a consumer under s 71A of the Act. It contends that there is no relevant complaint in respect of items 1, 2 and 5 of the amended direction to rectify and that it is, therefore, ‘void as unauthorised by the QBSA Act’.[51] This construction should be rejected.
[51]Ibid, [111] – [112].
The power of the QBSA to direct rectification under s 72 is not conditioned upon a complaint having been made by a consumer under s 71A. Section 71A provides:
71A Dispute resolution before rectification of building work ordered
(1)This section applies to a consumer who wants the authority to consider whether to direct rectification of building work under section 72.
(2)The consumer must apply in writing to the authority stating—
(a)the name of the person who carried out the building work; and
(b) details of the building work the consumer considers is defective or incomplete; and
(c)other details the authority reasonably requires to consider the matter.
(3)The application must be accompanied by the fee prescribed under a regulation.
(4)Before it considers whether building work is defective or incomplete, the authority may require the consumer to comply with a process established by the authority to attempt to resolve the matter with the person who carried out the building work.
(5)For this section, the person who carried out the building work is taken to include a person mentioned in section 72(5).
Section 71A was inserted into the QBSA Act by the Queensland Building Services Authority and Other Legislation Amendment Act 2003.[52] By contrast, s 72(1) has been part of the Act, in materially the same terms, since its commencement in 1992. The QBSA has had the power to issue a direction, conditioned only upon its opinion[53] that building work is defective or incomplete, since that time.
[52]Act No 1 of 2003, s 37.
[53]Which opinion would have to be reasonably held.
There is nothing in the amending act which inserted s 71A which suggests that the power under s 72 was to become conditional upon a consumer complaint having been made. Contrary to JM Kelly’s submission that ‘[t]here is no legislative purpose to be ascertained by the insertion of s 71A other than to regulate those complaints to which the authority must respond’,[54] a clear and express purpose is to be found in the Explanatory Memorandum to the amending Bill.[55] The explanatory note to clause 37 of the Bill states that the new s 71A provides a head of power for the Authority’s dispute resolution procedures.
[54]At [106].
[55]Reference to the explanatory memorandum is permitted under s 14A of the Acts Interpretation Act 1954 (Qld).
The challenge to jurisdiction on the basis of there having been no complaint under s 71A is misconceived and must be dismissed.
Unreasonableness
For completeness, it should be noted that JM Kelly in its written submissions also raised a ground of unreasonableness as a separate challenge to the Tribunal’s jurisdiction to hear the substantive application. That ground was, effectively, abandoned by counsel for JM Kelly in the course of the hearing.
Disposition
The application for miscellaneous matters filed by JM Kelly on 9 October 2012 will be dismissed.
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