King t/as TJ King House Relocations v Queensland Building and Construction Commission - [2014] QCAT 471

CITATION:

King t/as TJ King House Relocations v Queensland Building and Construction Commission [2014] QCAT 471

PARTIES:	Terry John King t/as TJ King House Relocations (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR138-14

MATTER TYPE:

General administrative review matters

HEARING DATE:

15 August 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver

DELIVERED ON:

19 September 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for review filed on the 16^th April 2014 is struck out.

CATCHWORDS:

JURISDICTION – ADMINISTRATIVE REVIEW – where application to strike out – whether the decision under review is a reviewable decision under s 86 of the Queensland Building and Construction Commission Act 1991.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Coulsen of counsel instructed by Flehr Law

RESPONDENT:

Ms De Luchi, solicitor of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

The applicant carries on business as a house relocator. He holds a licence with the Queensland Building and Construction Commission. On 17 April 2014 he filed an application to review a decision made by the Commission to approve a payment under the Statutory Insurance Fund of $196,211.63.
The payment out of the Fund relates to alleged defective building work carried out by the applicant in respect of the relocation of a house on a property owned by William and Karen McLennan at Charleville in early 2012. After the work was carried out, the McLennan’s lodged a complaint with the Queensland Building Service Authority (as it then was) notified the applicant of the complaint. The applicant wrote to the Commission and advised that it was attending to all of the complaints.
Despite this, on 17 December 2012 the Commission issued Direction to Rectify (number 38327) to the applicant but only in respect of one item of the complaint. That item was item 15 which was in the following terms:
The adjustable stumps installed by the licensee to the underside of the dwelling are not consistent height and out of plumb. The adjustable stumps are not in line and the bearers installed by the licensee to replace damaged bearers are not in the correct locations.
The direction to rectify also noted on that on the complaint form, items 1-14 and items 16-1 inclusive were contractual matters and could not be subject of the direction to rectify.
The applicant attended to the rectification work of item 15 but not to the satisfaction of the Commission. On 30 April 2013, the Commission issued an infringement notice for failure to comply with the direction to rectify.
The applicant then applied to review the Commission’s decision of 24 April 2013. That application proceeded in the normal way in the Tribunal to a compulsory conference on 5 August 2013. Orders were made at the compulsory conference to progress the application but after further negotiations between the applicant and the Commission, the review application was, seemingly, resolved whereby the applicant withdrew his application for review and an order to that effect was made on 10 October 2013.
Despite that, on 18 December 2013 the Commission issued a further direction to rectify in respect of the adjustable stumps, and various other items which it seems were considered to be contractual matters in the earlier decisions made by the authority. The applicant did not file any application to review that decision.
The applicant did not review that decision and the McLennan’s complaint proceeded to considered under the Statutory Insurance Scheme. The claim or part of the claim was accepted and this then led to the Commission’s notification to the applicant on 21 March 2014 that it had approved the McLennan’s claim under the fund in the sum of $196,211.63.
After the application to review the decision to approve the insurance payout was filed, the Commission filed an application to strike out the review application. The principal ground for the strike out is that the decision made by the Commission, is not a reviewable decision within the provisions of s 86 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). That section sets out quite specifically what decisions of the Authority the Tribunal can review under s 20 of the QCAT Act. The only subsection in s 86 that deals with decisions relating to Statutory Insurance Scheme is subsection (h) which provides:
(h)a decision to disallow a claim under the statutory insurance scheme wholly or in part;
It follows that if the decision is not a reviewable decision, then the Tribunal has no jurisdiction because the Tribunal’s jurisdiction is derived from that conferred by the enabling act.
The applicant opposes the strike out application on the grounds that he is affected by the decision and contends the decision does fall within subsection (h). The submission in support of this contention is novel.
Under s 70 of the QBCC Act a person claiming to be entitled to indemnity under the insurance scheme must give notice of the claim to the Commission. That is what the McLennan’s did with their formal complaint. Once the insurance claim is accepted and paid the Commission can then recover any amount paid as a debt from the building contractor, here the applicant or any other person through whose fault the claim arose. There is no doubt that if the payment is made, the applicant is exposed to a debt recovery claim by the Commission. On this basis, the applicant contends that s 86(h) applies to him insofar as it is a decision that relates to the statutory insurance scheme.
The applicant further submits that in their claim on the statutory insurance scheme, the McLennan’s sought to claim rectification of 23 items in the original complaint. However, the Commission disallowed some of those items and has therefore only allowed part of the claim. This is not contentious. Particulars of the items that have been approved relate to the adjustable stumps, flooring and floor coverings, walling roof and ceiling as particularised in paragraph 36 of a statement of claim[1] filed in Supreme Court proceedings. Because subsection (h) permits a review of a decision to disallow a claim, which presumably includes part of a claim the applicant says he can review that decision.
[1]Exhibit ‘KGF-1’ to the Affidavit of Mr Fluer.
If the applicant’s contention is correct, and to avoid exposure to a debt recovery action by the Commission, then presumably he would be urging the Tribunal, if the matter proceeded to a hearing, to set aside the decision and substitute its own decision that the whole of the insurance claim be disallowed. That is because s 24 of the QCAT Act sets out what the Tribunal can do in reviewing 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.
Here the McLennan’s insurance claim has been allowed, albeit in part. The McLennan’s could have, if they wished, applied to review the decision insofar as it relates to the part of the claim that was disallowed. However, the applicant here is not the person who made the claim which was disallowed. When considered against subsection (h) it cannot follow logically that a person has not made a claim under the statutory insurance scheme could have a right of review under that subsection. Mr King did not make a claim on the Statutory Insurance Policy, his claim was not disallowed and therefore, there is no right of review.
The Commission submits that the application should also be dismissed under s 47(1)(c) of the QCAT Act because this review proceeding is an abuse of process. Firstly, there is no reviewable decision, and secondly the applicant has concurrent proceedings in the Supreme Court seeking judicial review of the decisions made by the Commission the subject matter of this application. That proceeding has now been heard but no decision has been made.
It is sufficient to dispose of this application by coming to the conclusion that there is no reviewable decision and therefore the application to review lacks substance and should be struck out. That will be the order of the Tribunal.