Jorg v Queensland Building and Construction Commission - [2020] QCAT 528

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT 528

PARTIES:
FRANZ JORG

CHRISTINA JORG

(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR063-19 and GAR085-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 April 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The applications for review in proceedings GAR063-19 and GAR085-19 are dismissed.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether direction to rectify can be issued – whether application should be struck out

Queensland Building and Construction Commission Act 1991 (Qld), s 72A, s 86A, s 86C, s 86E, s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24

REPRESENTATION:

Applicant:

Self-represented

Respondent:

S Tabaiwalu

APPEARANCES:

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

Chronology

On 11 July 2012, a certificate of practical completion was signed in respect of property owned by Mr and Mrs Jorg at 245 Hovard Road, Bald Knob.
On 19 February 2018, Mr and Mrs Jorg lodged a complaint form with the Queensland Building and Construction Commission (‘QBCC’) (‘the first complaint’). The first complaint alleged defects at Mr and Mrs Jorg’s property relating to internal doors.
On 26 March 2018, Mr and Mrs Jorg lodged a complaint form with the QBCC (‘the second complaint’). The second complaint alleged defects at Mr and Mrs Jorg’s property relating to the windows.
On 11 December 2018, the QBCC decided not to issue directions to rectify in respect of the second complaint.
On 14 December 2018, the QBCC decided not to issue a direction to rectify in respect of the first complaint.
On 7 January 2019, Mr and Mrs Jorg requested an internal review of the QBCC’s decision in respect of the second complaint.
On 9 January 2019, Mr and Mrs Jorg requested an internal review of the QBCC’s decisions in respect of the first complaint.
On 11 January 2019, the period of six years and six months from the date of practical completion expired.
On 17 January 2019, the QBCC made an internal review decision in respect of the second complaint, advising that it was unable to issue a direction to rectify as more than six years and six months had passed since the work was completed.
On 6 February 2019, the QBCC made an internal review decision in respect of the first complaint, advising that it was unable to issue a direction to rectify as more than six years and six months had passed since the work was completed.
On 4 March 2019, Mr and Mrs Jorg lodged an application for review with the Tribunal in respect of the second complaint, being proceedings GAR063-19.
On 15 March 2019, Mr and Mrs Jorg lodged an application for review with the Tribunal in respect of the first complaint, being proceedings GAR085-19.
On 13 June 2019,…

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: [2020] QCAT 528
Decision Date

CaseChat Overview and Summary

In Jorg v Queensland Building and Construction Commission, the parties were Mr and Mrs Jorg who contested decisions made by the Queensland Building and Construction Commission (QBCC). The dispute revolved around the timeliness of the Jorgs’ application for review of the QBCC’s decisions, specifically under the constraints of the six-year and six-month limitation period stipulated in section 72A(4) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

The central legal issues addressed by the court were whether the Tribunal could exercise its discretion to allow the Jorgs' review applications to take effect within the limitation period despite the internal review process extending beyond this period, and whether the delay in the QBCC’s original decision-making process could justify such an order. The court needed to interpret the interplay between sections 24 and 86C of the QCAT Act, and section 86E in relation to the timeliness of the Jorgs’ review applications.

The court concluded that while section 24(2)(b) of the QCAT Act allows the Tribunal to set the effect date of its decision, it is subject to any contrary order by the Tribunal. The court considered that the Jorgs’ choice to pursue internal review rather than external review led to their current predicament. Despite acknowledging that the QBCC’s delays might have influenced the timeline, the court found it inappropriate to order the Tribunal’s decision to take effect from a date within the limitation period in these circumstances. The court held that the Jorgs, by opting for internal review, were responsible for their own difficulties regarding the statutory limitation period.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) relevantly provides:(1) In a proceeding for a review of a reviewable decision, the tribunal may— (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. (2) The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision— (a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and (b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.[Emphasis added] Mr and Mrs Jorg had two options open to them when they received the original decisions:(a)they could have applied for external review of the original decisions by the Tribunal pursuant to s 87 of the QBCC Act; or(b)they could have applied for internal review of the original decisions by the QBCC pursuant to s 86A(1) of the QBCC Act. Had Mr and Mrs Jorg chosen the first option, the reviewable decisions before the Tribunal would have been the original decisions pursuant to s 86E(a) of the QBCC Act. Those decisions were made within the six year and six month period. Pursuant to s 24(2)(b) of the QCAT Act, the Tribunal’s decisions on the reviews would have effect from within the six year and six month period. Instead, Mr and Mrs Jorg chose the second option. The effect of having sought internal review is that the reviewable decisions before the Tribunal are the internal review decisions pursuant to s 86E(b) of the QBCC Act. The internal review decisions have effect ‘as if the reviewable decision the subject of the application had not been made’ pursuant to s 86C(1). Those decisions were made after the expiry of the six year and six month period. Pursuant to s 24(2)(b) of the QCAT Act, the Tribunal’s decisions on the reviews would impermissibly take effect after the expiry of the six year and six month period. I note that s 24(2)(b) of the QCAT Act is expressed to be ‘subject to any contrary order of the tribunal’. It would be open to the Tribunal to order that its decision take effect from a date within the six year and six month period. I am mindful that it took the QBCC nine months and 24 days to make its original decision on the first complaint, and eight months and 15 days to make its original decision on the second complaint. Had the QBCC made its original decisions a matter of days earlier, the 28-day period for making the internal review decisions pursuant to s 86C(2)(a) would have expired within the six year and six month period. However, I am of the view that it would not be appropriate to make an order to the contrary pursuant to s 24(2)(b) of the QCAT Act in these cases. It seems to me that, by choosing to pursue an internal review rather than directly pursuing an external review, Mr and Mrs Jorg (and not the QBCC) are the authors of their own difficulties in relation to s 72A(4). For completeness, I note that there may be other circumstances in which a delay by the QBCC in making an original decision would warrant the making of an order giving effect to the Tribunal’s decision from an earlier date within the six year and six month period.

Ratio Decidendi

Legal Principle Established

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