Sanders v Queensland Building Services Authority
[2013] QCAT 732
•14 February 2013
| CITATION: | Sanders v Queensland Building Services Authority [2013] QCAT 732 |
| PARTIES: | Fay Muriel Sanders (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR238-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michael Howe, Member |
| DELIVERED ON: | 14 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Respondent made on 31 May 2012 is set aside. 2. Return the matter to the Respondent for reconsideration with the following direction: a. The Respondent determine the Applicant’s claim for indemnity under the Statutory Insurance Scheme without further reference to the Applicant. |
| CATCHWORDS: | Meaning of the word decision – failure to make decision - jurisdiction of the Tribunal – QBSA Act as a remedial statute – final and effective determination of issues – closing the file – Statutory Insurance Scheme – exercise of a discretion – delegation of decision making power – taking into account irrelevant considerations – returning the matter to the decision maker for reconsideration Queensland Civil and Administrative Tribunal Act 2009 s 24(1)(c) Director-General of Social Services v Chaney (1980) 47 FLR 80; [1980] FCA 87 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mrs Sanders owns a home in Aspley. In 2000 she had a problem with encroaching tree roots. She engaged a builder. The builder placed her house on temporary steel supports. There were problems with the work.
It is unclear what the extent of the problems were. It is also unclear when the Queensland Building Services Authority (the Authority) became involved, but they did. The matter is unclear because Mrs Sanders has filed material, albeit confusing, but the Authority has filed very little.
It appears in 2007 remedial work was done to correct the earlier problems, but that further work was not to Mrs Sanders satisfaction either.
By letter of 6 August 2010 to Mrs Sanders the Authority agreed to do work to the rusting temporary steel posts under Mrs Sanders house and the work necessary to rectify an eccentrically loaded concrete stump at the rear of the garage. They made an ‘offer’ about that work on 29 November 2010 and a further ‘offer’ on 14 March 2011, neither of which was accepted by Mrs Sanders.
By letter of 12 April, 2011 those ‘offers’ were withdrawn. By e-mail dated 31 May, 2012 the Authority advised Mrs Sanders:
The scope of works is clear. The BSA letter to you dated 29 November, 2010 included two options for you to consider along with quotations from licensed builders. The first option was for underpinning your house the second was for remedial works. The basis of the offer was for BSA to either pay for the remedial works ought to contribute the cost of the remedial works to the complete underpinning of your house. Since that time you have expressed concern about the steel channel installed below the windows to the front eastern side of your house. The scope of work has been extended to include any work necessary to this steel channel so as to gain engineering approval.
The scope of work has been clarified to you on numerous occasions.
In the telephone conversation between you and I last Friday evening I confirmed BSA would close the file on this matter today, 31 May, 2012 if you had not made a decision in relation to the numerous opportunities afforded to you since the initial offer of 29 November, 2010.
It is regrettable that I have been left with no option but to close the file.
On 29 June 2012 Mrs Sanders applied to the Tribunal for a review of what she described as the decision of 31 May 2012 concerning the scope of works and the closing of her case. She identifies the relevant decision for review as the e-mail of 31 May, 2012.
Jurisdiction of the Tribunal
A person affected by a reviewable decision of the Authority may apply to the Tribunal for a review of the decision[1]. Reviewable decisions are limited to those specified in s 86(1) of the QBSA Act. They include a decision about the scope of works to be undertaken under the Statutory Insurance Scheme[2] and a decision to disallow a claim under the Statutory Insurance Scheme wholly or in part[3].
[1] QBSA Act s 87.
[2] Ibid s 86(1)(g).
[3] Ibid s 86(1)(h).
The Authority submits if the contents of the e-mail of 31 May, 2012 can be classified as a decision it was a decision not to renew previously made offers and to close the file, and that is not a decision identified in s 86(1). Therefore the Tribunal does not have jurisdiction to review anything.
Has There Been a Decision?
The word ‘decision’ is not defined in the QBSA Act. The dictionary to the Act says the word includes an order or direction[4].
[4] Ibid schedule 2.
The Macquarie Dictionary defines ‘decision’ as “The act of deciding; determination (of a question of doubt); … making up one’s mind; that which is decided….” The Oxford Dictionary defines the word as “a conclusion or resolution reached after consideration; the action or process of deciding something or of resolving a question.”
The usual and ordinary meaning of the term may therefore encompass both a final outcome and the process leading to that.
In the context of judicial review the meaning of the word was considered by Deane J in Director-General of Social Services v Chaney[5]:
The word “decision” is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word "decision" may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word “decision” has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate.
[5] (1980) 47 FLR 80 at 100; [1980] FCA 87.
Those words were cited with approval in Australian Broadcasting Tribunal v Bond[6] where the High Court considered the meaning of the word ‘decision’ in a review application brought pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). In Bond Mason CJ (with whom Brennan and Deane JJ concurred) said:
The answer is that a reviewable ‘decision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration…. Another essential quality of a reviewable decision is that it be a substantive determination.[7]
[6](1990) 170 CLR 321; [1990] HCA 33.
[7]at [32 – 33].
His Honour also noted:
The fact that the ADJR Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word ‘decision’.[8]
[8]at [29].
The review provisions of the QBSA Act leading to the present merits review[9] are also remedial in nature, providing aggrieved parties affected by a decision of the Authority an avenue of review. Accordingly, as with Bond, no narrow view should be taken of the meaning of the word ‘decision’ used in s 86(1) and the fullest possible relief should be allowed the affected party in the construction of the term within the fair meaning of the legislation[10].
[9]Queensland Racing Ltd v McMahon [2010] QCATA 73.
[10]as per Isaacs J in Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 – “In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially (per Lord Loreburn L.C. in Bist v. London and South Western Railway Co.[7]). This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.”; and see Australian Postal Corporation v Forgie [2003] FCAFC 223 “… The beneficial nature of merits review is such that when provisions are made for it within a legislative scheme, it is unlikely that the legislature would have intended that they should be construed in a narrow or technical way since to do so would be inconsistent with the generally beneficial nature of merits review.”
Bearing the aforementioned in mind, one might then consider what their Honours Toohey and Gaudron JJ had to say about the meaning of the word ‘decision’ in Bond:
Generally, the exercise of or the refusal to exercise a substantive power will constitute a decision which, in the terms used in Lamb v. Moss, has ‘an ultimate and operative effect’[11].
[11] at [19].
The underlining is mine. What their Honours made clear was that a refusal to decide a matter could be in itself a decision subject to the requirement that it had an ultimate and operative effect concluding the issue.
The context in which those remarks were made is enlightening. In Bond, the Australian Broadcasting Tribunal was investigating the circumstances of a defamation settlement between Alan Bond and a number of his media companies and the then premier of Queensland, Sir Joh Bjelke-Petersen. The Tribunal was invited by Mr Bond and his companies’ representatives to refrain from making findings about the suitability of Mr Bond and his companies to hold broadcasting licences. Rather the Tribunal was asked to accept certain undertakings and impose various conditions on the broadcasters in lieu. The Tribunal declined to do so and instead expressed a view that Mr Bond “would not be found to be a fit and proper person to hold a broadcasting licence”, and given his control over his companies, those companies were no longer fit and proper persons under the relevant legislation to hold such licences.
Mr Bond and his companies argued, amongst other things, that the refusal to impose conditions and accept undertakings constituted a reviewable decision.
Toohey and Gaudron JJ found:
The Tribunal clearly had power to impose conditions … and it is not in issue that it had power to accept undertakings…. Thus in so far as there was a refusal to exercise either of these powers, there is a decision to which s.5 of the ADJR Act applies.[12]
[12]at [18].
The reasoning of Mason CJ in Bond as to the meaning of the word ‘decision’ has been consistently adopted and applied by Queensland Courts[13], generally in the context of determining whether a decision is sufficiently final to qualify as a reviewable decision under the Judicial Review Act 1991 (JR Act). The Queensland legislation is based on the ADJR.
[13]Redland Shire Council v Bushcliff Pty Ltd [1997] 2 Qd R 97; Resort Management Services Ltd v Noosa Shire Council [1995] 1 Qd R 311; Wilson v Coordinator-General department of State development [2001] QCA 159.
Re Tooheys Limited v The Minister of Business and Consumer Affairs[14] was a decision of the Federal Court dealing with a failure to decide. There, if the Minister nominated certain goods under a by-law, not otherwise available in Australia, the amount of customs duty payable on import was significantly lessened or reduced to nil. Tooheys sought that benefit in respect of certain goods to be imported and supplied information to the department as requested. The Minister made a determination which purported to have the effect of exempting the goods concerned from duty. A date misstatement was made in the determination however rendering the determination useless. Tooheys sought a fresh or amended determination. The Minister’s department eventually replied by letter advising it appeared other suppliers had not originally been given the opportunity to quote for supply of the goods and the original situation was not sufficiently clear to allow the Minister to make a decision.
[14][1981] FCA 121.
Tooheys treated that letter as a refusal to grant its application for a fresh or amended determination and brought review proceedings of that decision. The Minister objected that there had not been any decision of an administrative character enlivening review jurisdiction.
Ellicott J determined that the letter from the department was evidence that a decision had been made on behalf of the Minister refusing on the evidence before him to make a determination under the Act. He found the decision was a final decision and therefore reviewable under the ADJR Act. On the material before the Minister he was making a final decision not to make a determination. Director-General of Social Services v Chaney was cited with approval.
Closing the File
In their e-mail of 31 May, 2012 the Authority informed Mrs Sanders that she had been told that if she did not make a decision in relation to the “numerous opportunities” afforded her by that date the Authority would close the file on the matter that day. She had not done so and accordingly the Authority had been left with no option but to close its file.
Exactly what closing the file meant is not made clear, but Mrs Sanders saw it as refusing her application for reimbursement under the Statutory Insurance Scheme. I think that was an entirely appropriate conclusion to draw. There is nothing in the QBSA Act or the policies applied by the Authority that uses or defines that expression and there is nothing to suggest any other interpretation is reasonably available from the use of the phrase “close the file”. There was nothing to suggest the file might be reopened.
Given the remedial benefit of the review process of s 86(1), it is not appropriate to take a narrow view of what the word ‘decision’ used there means. The fullest relief which the fair meaning of the word ‘decision’ allows in the context of the legislation should be applied.
Surely in any practical sense, the issue of fact falling for consideration by the Authority, namely Mrs Sanders claim under the Statutory Insurance Scheme, was finally determined with the closure of her file.
Applying Bond and in concurrence with the comments of their Honours Toohey and Gaudron JJ, I conclude the closing of their file amounted to a refusal by the Authority to exercise a substantive power granted them in relation to indemnity under the Statutory Insurance Scheme. Deciding to close their file was a decision under s 86(1)(h) and that decision is a reviewable decision by this Tribunal.
Mrs Sanders is a person affected by that decision.
The Authority made reference in its submissions to the decision in Stevenson Group Investments Pty Ltd v QBSA & Anor [2012] QCAT 548. That decision is not on point with respect to the matters before me for determination.
The Statutory Insurance Scheme
By Clause 4.1 of Edition 8 of the Authority’s Insurance Policy Conditions the Authority agrees to pay an insured the costs of rectifying defects in residential construction work the subject of complaint other than defects in subsidence or settlement. By clause 4.2 the amount of the payment is limited to the reasonable cost, as determined by the Authority, of undertaking those works necessary to rectify the defects.
The discretion thereby granted to the Authority is at large. In its basic sense, making a decision refers to the exercise of a discretion. Generally a discretion granted by legislation cannot be delegated without the power of delegation being awarded the decision maker in the legislation. There is no power allowing delegation of decision making in the QBSA Act.
A decision maker must act within the terms of its powers. There are no unfettered statutory discretionary powers. Amongst other things the decision maker must act in good faith and for a proper purpose, comply with any necessary legislative procedures and generally consider only relevant considerations and ignore irrelevant ones.
On the limited material before me I must conclude that by default the Authority inappropriately delegated its decision making power under the legislation to Mrs Sanders. The Authority required her to make a decision as to appropriate remediation pursuant to the Statutory Insurance Scheme.
Deciding to disallow her claim because she had made no decision was taking into account an irrelevant consideration as well as breaching the rules about non-delegation of a statutory discretion without specific legislative empowerment.
What had started as a commendable and reasonable course of action in asking Mrs Sanders for her opinion as to the appropriate and desirous remediation segued into the erroneous decision of 31 May 2012. If Mrs Sanders could not make up her mind, or did not agree with any of the Authority’s proposals, the Authority should have made the decision without her further input. It would then have been up to Mrs Sanders to seek review of that decision by the Authority if she disputed it.
Return the Matter to the Authority
As stated, the Authority filed very little material in this matter. They relied entirely on their argument that the decision to close their file was not reviewable by the Tribunal. This matter has an extensive history. On the limited material available it is impossible for me to determine whether the scope of works has been determined nor the correct and preferable decision about any necessary remediation work.
Accordingly it is appropriate that this matter be returned for reconsideration by the Authority pursuant to s 24(1)(c) of the QCAT Act with the following direction:
The Authority determine Mrs Sanders’ claim to indemnity under the Statutory Insurance Scheme without further reference to Mrs Sanders.
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