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

CITATION:	Murphy v Queensland Building and Construction Commission [2017] QCAT 344
PARTIES:	Brett Leslie Murphy (Applicant)
v
Queensland Building and Construction Commission (Respondent)
APPLICATION NUMBER:	GAR009-17
MATTER TYPE:	General administrative review matters
HEARING DATE:	19 July 2017
HEARD AT:	On the papers
DECISION OF:	Acting Senior Member Paratz
DELIVERED ON:	13 October 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The application for miscellaneous matters filed 22 June 2017 by Brett Leslie Murphy is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – GENERALLY – Where an application was made to the Queensland Civil and Administrative Tribunal to review a decision – where an application was made to refer part of the proceeding as to jurisdictional error to the President or to the Supreme Court of Queensland – where an application to cancel an experts conclave was made – where the holding of an experts conclave was required by a Practice Direction Queensland Building and Construction Commission Act (Qld) 1991 s 72(4), 86(1)(f), 87 Queensland Civil and Administrative Tribunal Act (Qld) 2009, s 19(c), 20, 24, 52, 117 Kirk v Industrial Relations Commission of New South Wales & Anor [2010] HCA 1; (2010) 239 CLR 531 Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 QBSA v Mark Cullinan Consulting Pty Ltd [2013] QCATA 116
APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

These are the reasons for decision in an interlocutory application in these proceedings.
The Queensland Building and Construction Commission (QBCC) gave Directions to Rectify on 19 September 2016 to a builder in relation to a residential house owned by Brett Leslie Murphy (the homeowner) at 56 Wandal Road, Wandal in Queensland.
The QBCC then made a decision on 13 December 2016 as follows:
I refer to the site inspection of 12 December 2016, when it was confirmed that the contractor has attended to the items listed in the Direction dated 19 September 2016.
No further action will be taken by QBCC in relation to this matter.
The homeowner was dissatisfied with that decision of the QBCC made on 13 December 2016, and filed an Application to review a decision in the Tribunal on 10 January 2017, in relation to that decision.
Directions were made by the Tribunal on 15 June 2017 for the filing of expert evidence by the homeowner by 29 June 2017, and the holding of an experts conclave on 31 July 2017.
The homeowner filed an Application for Miscellaneous Matters on 22 June 2017 applying for the following Directions:
1) Transfer of part of proceeding concerning jurisdictional error to Supreme Court – s 52 QCAT Act (or referral to president S117 QCAT Act).
2) S 62 QCAT Act – annulment of expert’s conclave and direction to parties to determine (between…

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: [2017] QCAT 344
Decision Date: 13 October 2017

CaseChat Overview and Summary

In the matter of Murphy v Queensland Building and Construction Commission, the parties were engaged in a dispute regarding a Direction to Rectify issued by the Queensland Building and Construction Commission. The homeowner, Brett Leslie Murphy, sought a review of the decision through the Queensland Civil and Administrative Tribunal (QCAT). The homeowner challenged the decision on the grounds of alleged jurisdictional error and sought to have part of the proceeding referred to the President or to the Supreme Court of Queensland. The homeowner also sought to cancel an experts conclave, which was required by a Practice Direction.

The legal issues before the court were whether the QCAT had jurisdiction to review the decision of the Queensland Building and Construction Commission, whether there was any jurisdictional error in the decision, and whether the application to cancel the experts conclave was valid. The court examined the statutory provisions and previous cases to determine the scope of its jurisdiction and the nature of any potential jurisdictional error. The court also considered the relevance of 'jurisdictional facts' in the context of the homeowner's submissions.

The court found that the QCAT had jurisdiction to review the decision of the Queensland Building and Construction Commission regarding the Direction to Rectify, as provided by sections 86(1)(f) and 87 of the Queensland Building and Construction Commission Act. The court also found no evidence of jurisdictional error in the decision, as the homeowner failed to demonstrate how the cited cases were relevant. The homeowner's reliance on the concept of 'jurisdictional fact' did not alter the outcome, as the court determined that no such jurisdictional fact existed in this case. The court further held that the application to cancel the experts conclave was not valid under the circumstances.

ORDERS:
1. The application for miscellaneous matters filed 22 June 2017 by Brett Leslie Murphy is dismissed.

Orders

Orders of the court

1. The application for miscellaneous matters filed 22 June 2017 by Brett Leslie Murphy is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There can be no question that the Tribunal has jurisdiction to review a decision of the QBCC as to a Direction to Rectify. That power is expressly given by s 86(1)(f) and s 87 of the QBCC Act, which provide:86 Reviewable decisions(1)Each of the following decisions of the commission under this Act is a reviewable decision –…(f) a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard;…87 Application for reviewA person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. The homeowner has referred to several cases in relation to his submission as to jurisdictional error, but has not identified what in those cases is relevant. The decision in Kirk[13] which he cites, for example, reinforces the capacity of the Tribunal to determine a question of fact. The High Court said:[14]The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between "on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ". The Court said that:"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."[13]Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531.[14]Ibid, [67], quoting Craig (1995) 184 CLR 163, 176, 179. No question of jurisdictional error therefore arises in this matter. It is possible that the homeowner was intending to refer to an error in relation to a ‘jurisdictional fact’. The meaning of that expression was discussed in Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford.[15][15][2016] QCATA 203. In that case the Appeal Tribunal noted:[16][16]Ibid, [44] – [46], quoting BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523, Australian Postal Corporation v D’Rozario (2014) 222 FCR 303, citing Timbarra Protection Coalition Inc v Ross Mining NL [1999] 46 NSWLR 55, Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.[44] One of the grounds of appeal relies on an error of mixed law and fact by the learned member in finding, as a jurisdictional fact, that the obstruction of the view caused by the tree was severe. A “severe obstruction” for the purposes of s 66 of the NDA is a jurisdictional fact. In BKE v Office of Children’s Guardian & Anor, Beech-Jones J identified three relevant standards concerning appeals regarding findings of fact: a. Where the power or jurisdiction of the tribunal depended upon the objective determination of the facts being challenged;b. Where the facts being challenged form part of the determination of a state of satisfaction or an opinion upon which the exercise of power or jurisdiction by the tribunal depended – a “jurisdictional fact”;c. Where the challenged facts do not constitute part of the formation of the opinion or state of satisfaction ie they are not a jurisdictional fact.[45] The meaning of a “jurisdictional fact” has been expressed thus: The doctrine of jurisdictional fact can only have application where the statute in question requires the existence of a particular fact or facts as a condition of the exercise of jurisdiction. It is only where, in the words of Spigelman CJ in Timbarra at [39], “the statutory formulation...contains a factual reference” that the possibility arises that the factual reference in question may be a jurisdictional fact.[46] The term “jurisdictional fact” is applied not only to facts, but also to a mixture of fact and opinion, and to a pure opinion.

Ratio Decidendi

Legal Principle Established

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