Murphy v Queensland Building and Construction Commission

CITATION:

Murphy v Queensland Building and Construction Commission [2017] QCAT 164

PARTIES:

Brett Leslie Murphy
(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR250-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

26 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Queensland Building and Construction Commission’s application to dismiss under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where respondent claimed the Tribunal lacked jurisdiction to hear review application – whether decision to withdraw direction to rectify constituted a reviewable decision.

Queensland Building and Construction Commission Act 1991 (Qld) s 86, s 87
Queensland Civil and administrative Tribunal Act 2009 (Qld) s 17 s 47

Aigner v State of Queensland and Anor [2012] QCAT 397
Cowie v Commissioner of State Revenue [2012] QCAT 612

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

1. Mr Murphy engaged Woodsy’s Contracting Services to perform building work being the restumping of the house at his mother’s residence in Rockhampton. He was not satisfied with the work and made a complaint to the Commission. The Commission inspected the building work and issued a direction to rectify to Mr Ross Kevin Wood (the original direction to rectify). The Commission was provided with new information and advised Mr Murphy by letter of 19 September 2016 that the direction to rectify was withdrawn and issued a new direction to rectify to Mr Jie Wood.

2. Mr Murphy made an application to the Tribunal to review the decision to withdraw the original direction to rectify. The Commission has made an interlocutory application to the Tribunal to have the application to review dismissed on the basis that the Tribunal does not have jurisdiction to review the application.

3. The Tribunal may dismiss an application where it is either frivolous, vexatious or misconceived or lacking in substance or otherwise an abuse of process[1]. The Tribunal only uses this power sparingly where for example the Tribunal does not have jurisdiction to hear a matter and determined that the application lacks substance[2]. The Tribunal has previously considered the relevant cases and noted

   “The High Court of Australia has taken a cautious approach in such cases to ensure that the interests of justice are met.

   The authorities suggest that there must be a plain and obvious case that the substantive case will not succeed before a decision is made to prevent a claimant submitting a case for determination. If it appears that there is a case to be determined as to fact or law then that case should not be summarily dismissed as frivolous or as an abuse of process.”[3]

   [1]QCAT Act, s 47.

   [2]Cowie v Commissioner of State Revenue [2012] QCAT 612.

   [3]Aigner v State of…