Nazzari v Queensland Building and Construction Commission - [2022] QCAT 39

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Nazzari & Anor v Queensland Building and Construction Commission & Anor [2022] QCAT 39

PARTIES: GRAEME ANTHONY NAZZARI
RACHAEL COSSENS

(applicants)

V

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
JOHN MAXWELL SEAFORTH GRAY T/AS JOHN GRAY CONSTRUCTIONS

(respondents)

APPLICATION NO/S:

GAR050-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

1 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

The Application to review a decision filed 6 February 2020 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether Tribunal has jurisdiction to review a decision of the Queensland Building and Construction Commission that it cannot take any further action – whether decision a reviewable decision

Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86, s 86E, s 86F, s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 9, s 17, s 18, s 47

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Crossman v Department of Transport and Main Roads [2018] QCAT 60
Evans v Friemann (1981) 53 FLR 229
Sanders v Queensland Building Services Authority [2013] QCAT 732
Stevenson Group Investments Pty Ltd vQueensland Building Services Authority andAnor [2012] QCAT 548

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondents:

R Ensby, Gadens Lawyers

No appearance for the Second Respondent

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

Mr Nazzari and Miss Cossens (the Homeowners) engaged Mr Gray (the Contractor) to perform renovation works at their home. The Homeowners complained to the Queensland Building and Construction Commission (QBCC) about the Contractor’s work. Following an inspection by a QBCC Inspector, the QBCC issued a direction to rectify (DTR) on 13 December 2019 requiring the Contractor to complete certain rectification work by 1 February 2020.[1] Issues in relation to the timing of performance of the rectification work and the conditions upon which access to the home would be provided arose between the Homeowners and the Contractor. The Homeowners say that insufficient notice was given to them and the Contractor failed to agree to meet the costs they claimed were necessary in respect of moving their furniture and alternate accommodation to allow the work to be performed.
[1]Statement of Reasons filed 30 March 2020, attachment SOR4.
On 30 January 2020 the Contractor sought an extension of time to perform the work the subject of the DTR from the QBCC. The Homeowners did not agree to an extension of time. The QBCC refused to extend the time under the DTR.
On 3 February 2020, the QBCC advised the Homeowners (the Decision):[2]
The QBCC cannot take any further action in this matter.
This case has been finalised.
The QBCC’s ability to assist is subject to the contractor being given reasonable access, during work hours, to carry out the rectification work.
This access was not granted.
The Queensland Building and Construction…

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: [2022] QCAT 39
Decision Date

CaseChat Overview and Summary

Graeme Anthony Nazzari and Rachael Cossens, the Homeowners, engaged John Maxwell Seaforth Gray, the Contractor, to perform renovation works at their home. The Homeowners complained to the Queensland Building and Construction Commission (QBCC) about the Contractor’s work. Following an inspection, the QBCC issued a direction to rectify (DTR) on 13 December 2019 requiring the Contractor to complete certain rectification work by 1 February 2020. Issues arose between the Homeowners and the Contractor in relation to the timing of the performance of the rectification work and the conditions upon which access to the home would be provided. On 30 January 2020 the Contractor sought an extension of time to perform the work the subject of the DTR from the QBCC. The Homeowners did not agree to an extension of time. The QBCC refused to extend the time under the DTR. On 3 February 2020, the QBCC advised the Homeowners (the Decision) that it could not take any further action in this matter. This case has been finalised. The QBCC’s ability to assist is subject to the contractor being given reasonable access, during work hours, to carry out the rectification work. This access was not granted. The QBCC’s ability to assist is subject to the contractor being given reasonable access, during work hours, to carry out the rectification work. This access was not granted. The Queensland Building and Construction Commission Act 1991 only allows the QBCC to direct a contractor if it is fair to do so. It is not fair for the QBCC to take action against a contractor when access to the site to carry out the works has not been provided. The Homeowners applied to the Tribunal to review the Decision (Homeowners’ Application). The QBCC filed a Statement of Reasons for the Decision and raised the issue of whether the Decision was a ‘reviewable decision’ under section 86 of the QBCC Act. At a Compulsory Conference the parties were directed to file submissions addressing the Tribunal’s jurisdiction and for the preliminary issue of jurisdiction to be determined on the papers. Submissions have been received. I now proceed to decide the preliminary issue of jurisdiction. The delay in finalising this preliminary issue is extremely regrettable and relates to resourcing issues. The Homeowners, who are self-represented, say that the Decision contained a section entitled “Your rights” which stated that they had the right to have the decision externally reviewed by the Tribunal. They point to an email dated 3 February 2020 from a QBCC employee which stated that they had the right to have the Decision internally reviewed or externally reviewed by the Tribunal. They also point to information on the Tribunal’s website that the Tribunal reviews various QBCC decisions including decisions related to rectification of work. The Homeowners do not clearly identify the provision of the QBCC Act upon which they rely to submit that the Tribunal has jurisdiction to review the Decision. The Tribunal is a creature of statute and must find its power to determine a proceeding either in the QCAT Act or an enabling Act. The Tribunal has previously noted: There is no general power in the tribunal to review administrative decisions other than as specifically provided for in legislation enlivening the tribunal’s review functions. The tribunal is a court of record but it is not a superior court of general jurisdiction. A superior court may be presumed to be able to act within jurisdiction, but there is no such presumption with an inferior court. As stated in Fraser Property Developments Pty Ltd v Sommerfeld (No 1): Nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged. The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). For the purposes of an external review, ‘reviewable decision’ means a reviewable decision as listed in section 86 of the QBCC Act other than a decision that was the subject of an internal review or an internal review decision. There is no evidence that the Decision was the subject of an internal review. A person affected by a reviewable decision of the QBCC may apply to the Tribunal for a review of the decision. Section 86 of the QBCC Act does not include a decision in the same terms as the Decision. The QBCC contends that the Decision was to not take any further action in relation to the Homeowners’ complaint or not to take any further action in relation to the DTR neither of which are listed in section 86 of the QBCC Act. I accept that such decisions are not listed in section 86 of the QBCC Act. The QBCC submits, and I accept, that not every decision of the QBCC is reviewable by the Tribunal. In addition to a quite lengthy list of ‘reviewable decisions’ set out in section 86 of the QBCC Act, there are a number of decisions set out in section 86F of the QBCC Act, which are expressly provided not to be reviewable decisions. None of those decisions apply. If the Decision is not a reviewable decision under section 86 of the QBCC Act, then the Tribunal has no power to review it. It is unfortunate if QBCC’s employees have made statements to the contrary, but such statements do not confer power where there is none. The information on the Tribunal’s website is general in nature and does not replace the words of the applicable legislation. The QBCC draws the Tribunal’s attention to section 86 (1)(e) and (f) of the QBCC Act but says the Decision does not fall within the fair meaning of either of these reviewable decisions and that there is no basis to find that the QBCC actually made either of those decisions so as to permit the Tribunal to hear and determine the Homeowners’ Application. If the Tribunal clearly has no power to hear the Homeowners’ Application then it should be dismissed as misconceived or lacking in substance. The issue for determination is whether, and on what basis, it is arguable that the Tribunal has power to hear the Homeowners’ Application such that it ought not be dismissed but rather the Homeowners should have the opportunity to lead evidence so that the Tribunal may make the correct and preferable decision including as to whether it has jurisdiction based upon a consideration of all the evidence before it. The Homeowners have not sought to raise any issues of fact in relation to the jurisdiction point that requires further evidence. The QBCC says, and I accept, that whilst it is appropriate, given the remedial nature of review proceedings, to not take a narrow view of the language in section 86(1) of the QBCC Act and apply ‘the fullest relief which the fair meaning of the language used’ allows, the Tribunal should not adopt an interpretation that is ‘strained or exceeded’. In Sanders the Tribunal considered whether there had been a ‘decision’ where the then QBSA, the predecessor of the QBCC, informed the homeowner it would ‘close its file’ and found that in the circumstances it was a decision as it was a refusal to exercise a substantive power granted to the QBSA in relation to indemnity under the statutory insurance scheme (SIS)

Orders