O'Connell v Queensland Building and Construction Commission - [2025] QCAT 262

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

O’Connell v Queensland Building and Construction Commission [2025] QCAT 262

PARTIES:

RICKY JAMES O’CONNELL

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR570-23, GAR706-23, GAR095-24

MATTER TYPE:

General administrative review matters

DELIVERED ON:

26 June 2025

HEARING DATE:

On the papers hearing

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS

Proceedings GAR 570-23, GAR 706-23, and GAR 095-24 are dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where respondent applied to summarily dismiss proceedings under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where respondent contended the proceedings were frivolous – where the respondent contended the applicant would receive no practical benefit even if successful – where the Tribunal found the proceedings were frivolous, vexatious and an abuse of process – where the Tribunal determined it should not permit litigants to deplete its finite and valuable resources, or the resources of other parties, in the pursuit of pointless objectives

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Armstrong v McIntosh (No 2) [2019] WASC 379

Chaffers v Goldsmid [1894] 1 QB 186
Dawkins v Prince Edward of Saxe Weimar (1876) 1 QBD 499
Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

The Queensland Building and Construction Commission (‘QBCC’) applies to the Tribunal to summarily dismiss three proceedings (GAR570-23, GAR706-23, GAR095-24) (‘the proceedings’) initiated by Ricky O’Connell (‘applicant’), pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
Background
The applicant engaged PJ Burns Builder Pty Ltd (‘PJ Burns’) to build him a house in Palmview (‘house’).
On 2 July 2020, following a complaint by the applicant, QBCC issued PJ Burns with a Direction to Rectify (‘DTR 0106427’), to rectify defects in the house associated with water egress from a bathroom and shower. Then, on 16 July 2020, QBCC issued PJ Burns with DTR 0106512 concerning windows in the main bedroom and kitchen of the house.
PJ Burns subsequently applied to the Tribunal to review those DTRs in GAR352-22 (concerning DTR 0106512) and GAR503-20 (concerning DTR 0106427).
Following a request by the Tribunal under s 23 of the QCAT Act, for QBCC to reconsider its decision to the issue the DTRs, QBCC decided to:
(a)set aside DTR 0106512 and substituted it with a new decision to not give PJ Burns a DTR; and
(b)set aside DTR 0106427 and substituted it with a new decision to not give PJ Burns a DTR.
It is apposite to note that the defective building work that was the subject of the DTRs was rectified by QBCC under the statutory insurance scheme prior to…

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: [2025] QCAT 262
Decision Date: 26 June 2025

CaseChat Overview and Summary

The case of O'Connell v Queensland Building and Construction Commission involves the Queensland Building and Construction Commission (QBCC) applying to the Queensland Civil and Administrative Tribunal (QCAT) to summarily dismiss three proceedings initiated by Ricky O'Connell. The proceedings, GAR570-23, GAR706-23, and GAR095-24, concern QBCC's decisions to set aside certain Directions to Rectify (DTR) issued to building contractors. O'Connell contests these decisions, arguing that QBCC improperly invoked section 23 of the QCAT Act, which allowed for reconsideration of the DTRs. QBCC argues that the proceedings are frivolous and vexatious, and an abuse of process. The central legal issue before the QCAT was whether the proceedings should be summarily dismissed as frivolous, vexatious, or an abuse of process under section 47 of the QCAT Act.

The QCAT found that O'Connell's proceedings were indeed frivolous and vexatious. The Tribunal noted that O'Connell had sold his house and had already benefited from rectifications under the statutory insurance scheme, meaning that even if the proceedings were successful, he would gain no practical benefit. The Tribunal relied on the Full Court of the Federal Court of Australia's decision in Fearnley v Australian Fisheries Management Authority, which held that a proceeding becomes vexatious when no legitimate purpose can be achieved by continuing with it. Additionally, the Tribunal held that the proceedings amounted to an abuse of process because they were being used to pursue personal grievances against QBCC rather than seeking a substantive remedy. The Tribunal emphasised that its resources should not be used to enable O'Connell to contest perceived slights to his reputation.

In light of the above findings, the QCAT dismissed the proceedings GAR 570-23, GAR 706-23, and GAR 095-24 pursuant to section 47 of the QCAT Act. The Tribunal concluded that there was no legitimate purpose in continuing with the proceedings, and that they constituted an unjustifiable use of its resources. The dismissal effectively ended O'Connell's attempts to challenge QBCC's decisions regarding the DTRs.

Orders

Orders of the court

Proceedings GAR 570-23, GAR 706-23, and GAR 095-24 are dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Background

Background to the litigation

The Queensland Building and Construction Commission (‘QBCC’) applies to the Tribunal to summarily dismiss three proceedings (GAR570-23, GAR706-23, GAR095-24) (‘the proceedings’) initiated by Ricky O’Connell (‘applicant’), pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Background The applicant engaged PJ Burns Builder Pty Ltd (‘PJ Burns’) to build him a house in Palmview (‘house’). On 2 July 2020, following a complaint by the applicant, QBCC issued PJ Burns with a Direction to Rectify (‘DTR 0106427’), to rectify defects in the house associated with water egress from a bathroom and shower. Then, on 16 July 2020, QBCC issued PJ Burns with DTR 0106512 concerning windows in the main bedroom and kitchen of the house. PJ Burns subsequently applied to the Tribunal to review those DTRs in GAR352-22 (concerning DTR 0106512) and GAR503-20 (concerning DTR 0106427). Following a request by the Tribunal under s 23 of the QCAT Act, for QBCC to reconsider its decision to the issue the DTRs, QBCC decided to: (a)set aside DTR 0106512 and substituted it with a new decision to not give PJ Burns a DTR; and (b)set aside DTR 0106427 and substituted it with a new decision to not give PJ Burns a DTR. It is apposite to note that the defective building work that was the subject of the DTRs was rectified by QBCC under the statutory insurance scheme prior to QBCC setting the DTRs aside. On 30 September 2021, the applicant complained to QBCC about work undertaken by a building contractor named Metalla Pty Ltd (‘Metalla’). QBCC subsequently issued Metalla with DTR 109587 for five items of defective building work. Metalla promptly applied to the Tribunal to review that decision (GAR466-22). The Tribunal subsequently invited QBCC to review its decision to issue Metalla with a DTR. On 21 July 2023, QBCC set aside its decision to issue DTR 109587 and substituted it with a decision not to give Metalla a DTR. QBCC set aside DTR 109587 and the two preceding DTRs involving PJ Burns, because it considered that the applicant had refused those builders access to his house to rectify defective work. The applicant contests QBCC’s reconsidered decisions to not give PJ Burns and Metalla DTRs. He brings the following review proceedings in the Tribunal (‘applicant’s reviews’): (a)GAR570-23, which concerns QBCC’s decision to set aside DTR 109587. (b)GAR706-23, which concerns QBCC’s decision to set aside DTR 0106427. (c)GAR095-24, which concerns QBCC’s decision to set aside DTR 0106512. On 28 March 2023, the applicant sold his house. It is convenient to refer to GAR352-22, GAR503-20 and GAR466-22, as the ‘builders’ reviews’. Applicant’s contentions Essentially, the applicant contends that QBCC improperly and prematurely invoked s 23 of the QCAT Act in the builders’ reviews, which had the effect of denying him the opportunity to fulsomely present his case to the Tribunal. The applicant variously asserts that: (a)QBCC has “exploited s 23 to reassess their decision, with the intent of denying me the opportunity to mount a defence against the serious allegations levelled against me”. (b)He should be afforded the opportunity to refute allegations that that he denied access to the builders. (c)He “should have the right to defend himself”. (d)The QBCC has engaged in “character defamation”.(e)The language QBCC used in DTR 0106512 and DTR 0106427 closely resembles language it used in DTR 109587, which suggests QBCC is pursuing a “biased agenda”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 47 of the QCAT Act empowers the Tribunal to dismiss or strike out a proceeding if it considers a proceeding, or part of a proceeding is: (a)frivolous, vexatious or misconceived; or (b)lacking in substance; or (c)otherwise an abuse of process. Consideration I find that the applicant’s reviews are frivolous and vexatious. It is ‘frivolous’ if a party is trifling with the court,[1] or if it is wasting the court’s time.[2] In Fearnley v Australian Fisheries Management Authority[3] (‘Fearnley’), the Full Court of the Federal Court of Australia upheld a decision by the Administrative Appeals Tribunal to summarily dismiss a review application under cognate legislation. It held:Where an interest that gives an applicant standing to commence a proceeding in the Tribunal ceases to exist, that applicant has no interest in pursuing the proceedings further. Although such a proceeding might not be vexatious when instituted, it becomes vexatious when no legitimate purpose can be achieved by continuing with the proceeding (emphasis added).[1]Chaffers v Goldsmid [1894] 1 QB 186. [2]Dawkins v Prince Edward of Saxe Weimar (1876) 1 QBD 499, 503 (Mellor J). [3][2006] FCAFC 3, [97]. In Fearnley, the Full court also found that there was no error on the part of the Tribunal in concluding that it would be frivolous for the proceeding to remain on foot because the applicant was no longer a person whose interests were affected by the decision under review.[4][4]Ibid [100]. Here, the applicant is no longer a person whose interests are affected by the decisions under review. There is no legitimate purpose to his participation in the proceedings. The applicant has sold his house. Before doing so, the applicant received the full benefit of rectification under the statutory insurance scheme. As QBCC aptly submits, even if the applicant’s reviews are successful, he will receive no practical benefit from that success. It is true, as the applicant points out, that there is a need for proper oversight and accountability within the statutory insurance scheme. However, such an objective, whilst laudable, does not personally impact the applicant. Put bluntly, whether the statutory insurance scheme operates efficaciously or otherwise, is not a matter that concerns the applicant. Further, in my view, these proceedings amount to an abuse of process. The concept of abuse of process includes pursuing proceedings for which there is no real prospect of those proceedings resulting in a remedy of substance, or which involves unjustifiable expense or use of judicial resources,[5] or when a court’s procedures are invoked for an illegitimate purpose.[6][5]Armstrong v McIntosh (No 2) [2019] WASC 379, [116] (Le Miere J). [6]Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, [25] It is obvious, on any plain reading of the applicant’s submissions, that his primary motivation for bringing these proceedings is to refute and defend allegations that he denied PJ Burns and Metalla access to his property to effect rectification work. In my view, it is highly improper for the Tribunal’s finite resources to be depleted for the purpose of enabling the applicant to contest perceived slights to his reputation. The Tribunal is not a forum for the applicant to preserve his reputation or pursue personal grievances against the QBCC.