Murphy v Queensland Building and Construction Commission - [2020] QCAT 255

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Murphy v Queensland Building and Construction Commission [2020] QCAT 255

PARTIES: BRETT LESLIE MURPHY

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR250-16
GAR009-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

23 June 2020

HEARING DATES:

13 September 2018
14 September 2018
14 May 2019

HEARD AT:

Rockhampton

DECISION OF:

Member Quinlivan

ORDERS:
1. The decision of the Queensland Building and Construction Commission dated 13 December 2016 that “the contractor [Jie Wood had] attended to the items listed in [Direction to Rectify number 0101003]”, is confirmed.

2. The decision of the Queensland Building and Construction Commission dated 19 September 2016, not to issue a direction to rectify to Ross Kevin Wood is confirmed.

CATCHWORDS:
BUILDING DISPUTE - DIRECTIONS TO RECTIFY – where applicant claimed Tribunal lacked jurisdiction to hear review application - whether decision to withdraw direction to rectify constituted a reviewable decision – where applicant has misconceived the role of the respondent to issue direction to rectify – where applicant has misconceived role of Tribunal to determine application – expert conclave

Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 72, s 72A, s 73, s 86(1)(e), s 86(1)(f),
s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Body Corporate for Parkwood Villas Community Titles Sc heme 25893 v Queensland Building and Construction Commission [2015] QCAT 59
Dew v Queensland Building Services Authority [2010] QCAT 687
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
Queensland Building and Construction Commission v Russell [2015] QCATA 57
Queensland Building and Construction Commission v Whalley [2018] QCATA 38
Murphy v Queensland Building and Construction Commission [2017] QCAT 164
Murphy v Queensland Building and Construction Commission [2017] QCAT 344
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mr McNulty, Inhouse Lawyer, Queensland Building and Construction Commission and Mr Michael Stretton, Solicitor, Holding Redlich

REASONS FOR DECISION

These are the Reasons for decision in matters GAR 250-16 and GAR 009-17.
On 6 October 2016, Brett Leslie Murphy filed an Application to Review a Decision (GAR250 -16) seeking the following:
(a)A speedy hearing;
(b)Reinstatement of Decision 1 – Direction to Rectify no. 0100883;
(c)Immediate costs;
(d)Damages – calculated when ascertainable.
On 10 January 2017 Mr. Murphy filed a further Application to Review a Decision (GAR009 -17) seeking:
A direction for payment of an amount to rectify the work: Home Warranty Insurance Scheme.
On 13 March 2017 the QBCC made an interlocutory application to the Tribunal to have the application to review (GAR250-16) dismissed on the basis that the Tribunal does not have jurisdiction to review the application.
On 26 May 2017, the Tribunal ordered that:
The Queensland Building and Construction Commission’s Application to dismiss under section 47 of the Queensland Civil and Administrative Tribunal Act is dismissed.
The learned Member found that:
Mr. Murphy made a complaint about the building work of Ross Kevin Wood and ultimately the Commission has…

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 255
Decision Date: 23 June 2020

CaseChat Overview and Summary

In the case of Murphy v Queensland Building and Construction Commission, the applicant, Murphy, sought to challenge the decisions of the Commission in relation to a dispute regarding building works. The primary dispute centred on the Commission's issuance of a direction to rectify, which was later withdrawn. Murphy contested the Commission's jurisdiction to hear the review application and argued that the decision to withdraw the direction to rectify was reviewable. Additionally, Murphy contended that the Commission had misconceived its role in issuing directions to rectify and that the Tribunal had misconceived its role in determining the application.

The court was required to determine whether the Commission's decision to withdraw the direction to rectify constituted a reviewable decision. Furthermore, the court needed to clarify the roles of both the Commission and the Tribunal in the context of issuing directions to rectify and determining review applications. The court had to consider whether Murphy had misconceived the functions of the Commission and the Tribunal, particularly in relation to the issuance of directions to rectify and the review of such decisions.

The court found that Murphy had misconceived the role of the Commission in issuing directions to rectify and the Tribunal's role in determining review applications. The court held that the Commission's decision to withdraw the direction to rectify was not a reviewable decision, as it did not constitute an exercise of statutory power or discretion. Moreover, the court confirmed that the Commission's decision to not issue a direction to rectify to Ross Kevin Wood was also not subject to review. The court emphasised the importance of understanding the distinct roles of the Commission and the Tribunal in the building dispute resolution process.

The court confirmed the decisions of the Commission, upholding the decision of 13 December 2016 and the decision of 19 September 2016. The court's ruling underscored the need for clarity in the roles and functions of the Commission and the Tribunal in building dispute resolution, particularly in relation to directions to rectify and review applications.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission dated 13 December 2016 that “the contractor [Jie Wood had] attended to the items listed in [Direction to Rectify number 0101003]”, is confirmed.

2. The decision of the Queensland Building and Construction Commission dated 19 September 2016, not to issue a direction to rectify to Ross Kevin Wood is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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