Murphy v Queensland Building and Construction Commission - [2024] QCATA 27

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Murphy v Queensland Building and Construction Commission [2024] QCATA 27

PARTIES:

BRETT LESLIIE MURPHY

(appellant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL233-20

ORIGINATING APPLICATION NO/S:

GAR250-16 and GAR009-17

MATTER TYPE:

Appeals

DELIVERED ON:

5 March 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. The appeal against the decision dated 23 June 2020 in GAR250-16 and GAR009-17 is allowed.

2. The decision dated 23 June 2023 in GAR250-16 and GAR009-17 is set aside and the matter is remitted to the Tribunal for reconsideration according to law and in accordance with these reasons.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – identifying the nature of the decision under review – where a direction to rectify is issued against licensed contractor – where the direction to rectify is withdrawn and reissued to an unlicensed person – where the tribunal makes an interlocutory decision that the withdrawal of the direction to rectify is a decision not to give a direction to rectify – where the applicant brings an application to review the decision - whether the decision-maker was functus officio after giving the original direction to rectify – whether the tribunal erred in considering matters irrelevant to the decision not to issue a direction to rectify against the licensed contractor

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – identifying the nature of the decision under review – where direction to rectify given to unlicensed person – whether rectification work undertaken by licensed contractor by arrangement with the unlicensed person is work undertaken at the direction of the QBCC – whether decision by QBCC that work has been rectified is a reviewable decision – whether tribunal erred in deciding matter in the absence of jurisdiction

Acts Interpretation Act 1954 (Qld) s 24AA
Queensland Building and Construction Commission Act 1991 (Qld) ss 42, 68H, 71I, 71J, 72, 72A, 73, 74B, 86
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 23

Dew v Queensland Building Services Authority [2010] QCAT 687
Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480
Kline Industries International Pty Ltd v Queensland Building and Construction Commission [2020] QSC 243
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211
Murphy v Queensland Building and Construction Commission [2017] QCAT 164

Murphy v Queensland Building and Construction Commission [2017] QCAT 344

Queensland Building and Construction Commission v Russell [2015] QCATA 57

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

This is an appeal from a decision of the Tribunal in two related proceedings. The hearing below was conducted over three days. The Tribunal confirmed decisions made by the Queensland Building and Construction Commission (‘QBCC’) and dismissed Mr…

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: [2024] QCATA 27
Decision Date: 5 March 2024

CaseChat Overview and Summary

In the case of Murphy v Queensland Building and Construction Commission, the appellant, Mr Murphy, sought to appeal the Tribunal's decisions in two related proceedings concerning the rectification of defective building work. Mr Murphy had engaged Woodsy's Contracting Services, operated by Jie Wood, for restumping work at his residence. Following completion, Mr Murphy complained to the Queensland Building and Construction Commission (QBCC) about the defects, naming Ross Wood as the contractor. The QBCC initially issued a direction to rectify to Ross Wood, but later withdrew this direction upon discovering that Jie Wood was the actual contractor and not licensed. A new direction was issued to Jie Wood, who arranged for Ross Wood, a licensed contractor, to perform the rectification. Mr Murphy applied to review both the initial direction to rectify and the subsequent direction to rectify.

The primary legal issues before the court were whether the QBCC's decision to withdraw the initial direction to rectify and issue a new one constituted a decision not to give a direction to rectify, and whether the Tribunal had the jurisdiction to review the QBCC's decision that the rectification work had been completed. Additionally, the court had to determine whether the QBCC was functus officio after issuing the initial direction to rectify and if the Tribunal erred by considering irrelevant matters in its decision-making process.

The court found that the QBCC's power to issue or withdraw a direction to rectify was not exhausted by its initial exercise, as there was no express statutory provision preventing such action. The court relied on the Acts Interpretation Act 1954 (Qld) to support this conclusion, highlighting that the power to give or withhold a direction to rectify is exercisable "from time to time as occasion requires." The court also noted that the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) allows the tribunal to invite the decision maker to reconsider a decision, aligning with the concept of repealing a decision under the Acts Interpretation Act 1954 (Qld). The court concluded that the Tribunal had erred by considering the second direction to rectify as a reviewable decision and by not focusing on the initial decision not to give a direction to rectify against Ross Wood.

The court allowed the appeal, setting aside the Tribunal's decisions and remitting the matter back to the Tribunal for reconsideration in accordance with the court's reasons.

Orders

Orders of the court

1. The appeal against the decision dated 23 June 2020 in GAR250-16 and GAR009-17 is allowed.

2. The decision dated 23 June 2023 in GAR250-16 and GAR009-17 is set aside and the matter is remitted to the Tribunal for reconsideration according to law and in accordance with these reasons.

Background

Background to the litigation

This is an appeal from a decision of the Tribunal in two related proceedings. The hearing below was conducted over three days. The Tribunal confirmed decisions made by the Queensland Building and Construction Commission (‘QBCC’) and dismissed Mr Murphy’s review applications. Background Mr Murphy had building work undertaken at a domestic residence. Mr Murphy accepted two quotes from Woodsy’s Contracting Services to undertake restumping works. The building work was performed by Jie Wood and his father Ross Wood. After the work was completed, Mr Murphy complained to the QBCC that the work was defective. In the complaint Mr Murphy named Ross Wood as the building contractor. Ross Wood was a licensed building contractor. After investigating the complaint, the QBCC gave Ross Wood a direction to rectify defective building work. The QBCC withdrew the direction to rectify when it was discovered that Jie Wood was both the individual trading as Woodsy’s Contracting Services and the building contractor who had entered into the agreement with Mr Murphy to undertake the building work. Jie Wood was not a licensed building contractor. A direction to rectify was then given to Jie Wood. As Jie Wood was not licensed, he arranged for Ross Wood (who was licensed) to undertake the rectification work. The QBCC subsequently advised Mr Murphy that ‘the contractor has attended to the items listed in the (direction to rectify)’ (the second decision). In separate applications, Mr Murphy applied to review the first decision and the second decision. Before detailing the reasons for the decision below, it is useful to consider in more detail each of the reviewable decisions and what the parties had to say.The first decision – review proceeding GAR250-16 After Mr Murphy complained to the QBCC about the building work, the QBCC issued a direction to rectify to Ray Wood who, the QBCC understood, was the building contractor Mr Murphy had engaged to undertake the building work. When the QBCC discovered that Jie Wood, and not Ray Wood, was the contracting party, the QBCC withdrew the direction to rectify to Ray Wood and gave a direction to rectify to Jie Wood. The letter from the QBCC to Ray Wood in relation to the withdrawal of the direction was brief and stated: ‘Please be advised, as discussed last week, the Direction to Rectify Number 100883, for the above address, has now been withdrawn. The Direction has been re-issued to the correct responsible party.’ Mr Murphy sought to review the decision. The QBCC argued that the decision, which was one to withdraw the direction to rectify, was not a reviewable decision for the purposes of s 86 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). The QBCC brought an application to strike out the review proceeding on the basis that the decision was not reviewable by the Tribunal. Opposing the application, Mr Murphy argued that the decision was a decision not to give a direction to rectify to Ray Wood pursuant to s 86(e) of the QBCC Act. The Tribunal dismissed the application, finding that the first decision was a decision not to give a direction to rectify.[1] That decision was not appealed. [1]Murphy v Queensland Building and Construction Commission [2017] QCAT 164.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 24AA of the Acts Interpretation Act 1954 (Qld) (‘AI Act’) provides:24AA Power to make instrument or decision includes power to amend or repealIf an Act authorises or requires the making of an instrument or decision—(a) the power includes power to amend or repeal the instrument or decision; and(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision. The provisions of the AI Act apply to all Queensland Acts[7] unless displaced, wholly or partly, by a contrary intention appearing in any Act.[8] [7]AI Act, s 2.[8]Ibid, s 4. In Minister for Immigration and Ethnic Affairs v Kurtovic[9], Gummow J stated:“ . . .there was “an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise”: . . . however, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed “from time to time as occasion requires”. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of a estoppel or, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue.”[9](1990) 21 FCR 193 at 211. Gummow J also stated:As I see it, if the decision maker were estopped from resiling from a single exercise of his discretion, then the nature of the discretionary power (being exercisable from time to time) would be stifled. The power to give a direction to rectify, or to not give a direction to rectify, is quite different in nature to the power under consideration in Kurtovic. As Gummow J stated, whether a statutory decision making power is spent is a determination requiring interpretation of the statute. Mr Murphy points to no express provision in the QBCC Act preventing a decision to give a direction to rectify, or not to give a direction to rectify, from being withdrawn or, to use the language found in s 24AA of the AI Act, repealed. As previously noted, a decision to give a direction to rectify or not to give a direction to rectify are each reviewable decisions. By s 23(1) of the QCAT Act, at any stage of a proceeding for the review of a reviewable decision, the tribunal may invite the decision maker for the decision to reconsider the decision. The decision maker may confirm the decision, amend the decision or set aside the decision and substitute a new decision.[10] Section 23(2)(b)(iii) clearly contemplates that a decision maker may, in appropriate circumstances, set aside a decision. The term ‘set aside’ may be equated with the term ‘repeal’ in s 24AA of the AI Act. The potential for the application of s 23(1) in such a case as the present circumstances is readily apparent. Where a decision has been made to issue a direction to rectify and it is later ascertained that the person to whom the direction was given was not the person who carried out the work, it would, to adopt the words used by Gummow J in Kurtovic, stifle the nature of the discretionary power conferred upon the QBCC if the QBCC was prevented from giving the direction to the person who actually carried out the work. In such circumstances it would be entirely appropriate for the tribunal to invite the decision maker to reconsider the decision. [10]QCAT Act, s 23(2)(b).

Ratio Decidendi

Legal Principle Established

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