Spectrum Homes Qld Pty Ltd v Queensland Building and Construction Commission

[2023] QCAT 505

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Spectrum Homes QLD Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 505

PARTIES:

SPECTRUM HOMES QLD PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR389-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 December 2023

HEARING DATE:

Heard on the papers

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDERS:

1.     The respondent’s decision that Spectrum Homes Qld Pty Ltd had not satisfactorily completed the rectification work identified in direction to rectify 0109364 by 18 July 2022 is set aside.

2.     The tribunal’s decision that Spectrum Homes Qld Pty Ltd did not fail to rectify because there were no works to be rectified, is substituted for respondent’s decision.

CATCHWORDS:

ADMINISTRATIVE LAW – Queensland Civil and Administrative Tribunal – whether decision of the Queensland Building and Construction Commission should be set aside

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 20, s 24

APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
Applicant:	Self-represented
Respondent:	Norton Rose Fulbright

REASONS FOR DECISION

Background to this application

1. The Queensland Building and Construction Commission (Commission) decided that Spectrum Homes Qld Pty Ltd (builder) had not satisfactorily completed the rectification work identified in direction to rectify 0109364 by 18 July 2022.

2. By an application filed on 27 September 2022 the builder seeks the following orders:

   (a)that the direction to rectify be overturned;

   (b)that the direction to rectify be withdrawn;

   (c)that the infringement notice be quashed; and

   (d)damages as costs.

3. The builder had already filed an application to review direction to rectify 0109364 on 13 June 2022.  It is the subject of separate proceedings in this tribunal – GAR273-22. 

4. A direction was made that these proceedings be heard after GAR273-22.[1]  A further direction was made that these proceedings be listed for a hearing on the papers.[2] 

   [1]Order of Adjudicator Stroud 1 December 2022.

   [2]Order of Member Howe 2 March 2023.

5. Quite properly, in its submissions made 7 November 2023, the Commission conceded that if the tribunal was to find that the decision to issue direction to rectify 0109364 was not the correct decision, it followed that the decision under review should be set aside and a decision made that the builder did not fail to rectify because there were no works to be rectified. 

Role of this tribunal

1. The tribunal stands in the shoes of the original decisionmaker to review the decision the subject of the application.  The tribunal must deal with matters in a way that is fair and just.[3] 

   [3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3.

2. The purpose of the review is to produce the correct and preferable decision based on a fresh hearing on the merits.[4] The only order that that the tribunal can make is to either:

   (a)confirm or amend the decision; or

   (b)set aside the decision and substitute its own decision; or

   (c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with appropriate directions.[5]

   [4]Ibid, s 20.

   [5]Ibid, s 24(1).

Scope of these proceedings

1. The builder was not legally represented.  The builder relies on:

   (a)the application filed on 27 September 2022;[6]

   (b)a statement of Anthony Reeves made 16 November 2022;[7]

   (c)a statement of Anthony Reeves made 16 December 2022;[8]

   (d)a statement in reply made 27 February 2023;[9]

   (e)submissions made 27 October 2023;[10]

   (f)objections to the Commission’s submissions dated 13 November 2023.

   [6]Hearing book p 1 - 49.

   [7]Ibid p 686 – 896.

   [8]Ibid p 897 – 1011.

2. Much of the material was not relevant to this review.  It related to the application to address direction to rectify 0109364.  These proceedings are not the appropriate forum to address direction to rectify 0109364.  For reasons given in GAR273-22 the Commission’s decision to issue direction to rectify 0109364 dated 13 June 2022 was set aside. 

3. Other portions of the builder’s material made allegations about the conduct of officers of the Commission, in particular Mr Williams, the officer of the Commission who originally investigated the complaint, refused a request for an extension of time and subsequently decided that the builder had failed to rectify.  The builder alleged that Mr Williams was resentful, showed blatant disrespect, was aggressive and did not act independently, ethically or honestly.  These proceedings are not the appropriate forum to address those allegations.  It is for the Commission to ensure that its officers comply with internal guidelines and procedures regarding the manner with which they deal with builders.

4. Likewise, the builder’s allegations about damage to its reputation as a result of the public record of the issue of an infringement notice are matters for the Commission.  If the Commission failed to follow its procedures for issuing, and if necessary, withdrawing infringement notices, that is not something that can be addressed in these review proceedings. 

Orders

1. The Commission’s decision that Spectrum Homes Qld Pty Ltd had not satisfactorily completed the rectification work identified in direction to rectify 0109364 by 18 July 2022 will be set aside.  The tribunal’s decision that the builder did not fail to rectify because there were no works to be rectified will be substituted.