Stevenson Group Investments Pty Ltd v Queensland Building Services Authority
[2012] QCAT 548
•6 November 2012
| CITATION: | Stevenson Group Investments Pty Ltd v Queensland Building Services Authority and Anor [2012] QCAT 548 |
| PARTIES: | Stevenson Group Investments Pty Ltd ACN 101112127, ABN 39101112127 (Applicant) v |
| Queensland Building Services Authority (First Respondent) Brian George Osborne (Second Respondent) |
| APPLICATION NUMBER: | QR028-07 / GAR036-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 25 July and 31 August 2012 |
| DECISION OF: | S M Burke, Member |
| HEARD AT: | Brisbane |
| DELIVERED ON: | 6 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the application to strike out application QR028-07 in its entirety is dismissed. 2. That items in the joint issues list: (a) marked “new item” except items 16.6 and 26.1 be struck out; (b) which relate to work which is not tribunal work as defined in s 75 of the QBSA Act be struck out; (c) which relate to defects not the subject of complaint as at 9 October 2006 be struck out. 3. That the Applicant in application QR028-07 be granted leave to amend its application to include particulars which will be an amended joint issues list identifying items which are properly the subject of the review proceedings being defect items identified as at 9 October 2006. 4. That the application to strike out application GAR036-12 is allowed. 5. Order as to costs to be determined. |
| CATCHWORDS: | Application to strike out application for review of decision of the Authority – meaning of “decision” in s 86(1)(e) of the QBSA Act – reviewable decision Queensland Building Services Authority Act 1991, ss 71A, 72, 75, 86(1)(e), 87 Secretary, Department of Social Security v Hodgson (1992) ALR 322 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr G I Thomson, Counsel instructed by Moray & Agnew Lawyers |
| RESPONDENT: | Mr Cole on behalf of the Queensland Building Services Authority for First Respondent |
| Mr D Kelly SC with Mr M Johnston, Counsel instructed by Hopgood Ganim Lawyers for Second Respondent |
REASONS FOR DECISION
This application arises from review proceedings which have been commenced in the Tribunal in relation to a building known as Deep Blue Apartments at the Tangalooma Wild Dolphin Resort at Moreton Island (“Deep Blue Apartments”). The building is a five-storey complex comprising commercial and retail space at the ground level with the upper 4 storeys being 16 residential apartments.
The Applicant/Second Respondent in the review proceedings, Mr Osborne (“Osborne”), is the licensed builder engaged for the construction of the Deep Blue Apartments.
The Respondent to the present application/Applicant in the review proceedings, the Stevenson Group Investments Pty Ltd (“Stevenson”), is the lessee of 6 of the 16 apartments, holding a 140 year sublease over Lot 8 on SL 8209 Survey Plan 165192 together with any building or buildings erected thereon.[1]
[1]The subleases commenced on 8 November 2005 for units 11 to 14 incl, 2 December 2005 for unit 10 and 2 June 2006 for unit 9. Subsequently, Stevenson purchased unit 9.
The Queensland Building Services Authority (“the Authority”) is the First Respondent in the review proceedings.
The Application and Related Proceedings
There are 3 proceedings before the Tribunal relating to the Deep Blue Apartments, all of which are applications to review a decision of the Authority to direct or not to direct rectification or completion of tribunal work pursuant to s 86(1)(e) of the Queensland Building Services Authority Act 1991 (“QBSA Act”):
(a)Application number QR143-06 is a review proceeding commenced by Osborne on 6 November 2006 (“the Osborne review application”) to review a decision of the Authority purported to be made on 9 October 2006 (“the October 2006 decision”). In that application, Osborne seeks to review items 1, 2, 3 and 5 of the Direction to Rectify and/or Complete Number 29429 dated 9 October 2006 (“the 2006 Direction to Rectify”) on the basis primarily that the works the subject of the direction were not defective and the direction was not clear and did not sufficiently inform Osborne the way in which the works were allegedly defective or incomplete and what was required to be rectified;
(b)Application number QR028-07 is a review proceeding commenced by Stevenson on 9 March 2007 (“Stevenson’s first review application”) to also review the October 2006 decision. Stevenson’s application is in essence a review of the October 2006 Decision on the basis that the 2006 Direction to Rectify did not direct rectification of further tribunal work which was part of the complaint;
(c)Application number GAR036-12 is a review proceeding commenced by Stevenson on 31 January 2012 (“Stevenson’s second review application”) to review a decision of the Authority purported to be made on 23 January 2012 (“the 23 January 2012 decision”).
Pursuant to an order of the Tribunal, Stevenson was joined as a respondent to the Osborne review application and the two applications, QR143-06 and QR028-07 were to be heard together.
On 30 April 2012, Osborne filed an application to strike out in whole or in part Stevenson’s first review application, being proceeding number QR028-07, and to strike out in its entirety Stevenson’s second review application, being proceeding number GAR036-12, to which he is the Second Respondent in both.[2]
[2]In Annexure “A” to the strike-out application, Osborne based his application in relation to QR02807 on the basis that the joint issues list should be struck out in its entirety as it raises matters which the Tribunal does not have jurisdiction to consider as such issues were not the subject of the October 2006 decision. In relation to GAR036-12, Osborne sought to strike out those proceedings on the basis that (a) Stevenson seeks to review a decision of the Authority not to issue a direction concerning the joint issues list that was made in late 2009 for which the application was out of time; (b) alternatively Stevenson seeks to review a decision of the Authority dated 19 November 2011 not to issue a direction to rectify concerning the joint issues list which application is out of time; (c) alternatively Stevenson seeks to review a decision of the Authority not to issue a direction to rectify concerning the joint issues list that was made 23 January 2012.
The basis for the striking out of Stevenson’s first review application is that it agitates issues beyond the Tribunal’s review jurisdiction, being matters which were not the subject of the Authority’s October 2006 decision.
The basis for striking out Stevenson’s second review application is that it agitates issues beyond the Tribunal’s review jurisdiction, being matters which were not the subject of any operative decision made by the Authority.
The strike out application is therefore confined to a challenge of the Tribunal’s jurisdiction in relation to two decisions of the Authority:
(a) the October 2006 decision; and
(b) the 23 January 2012 decision.
The Tribunal’s Jurisdiction and the Statutory Framework
The Tribunal has jurisdiction to deal with matters under the Queensland Civil and Administrative Tribunal Act2009 (“the QCAT Act”) or an enabling Act pursuant to s 9(1) of the QCAT Act.
Section 9(2) of the QCAT Act specifically confers on the Tribunal original jurisdiction, review jurisdiction and appeal jurisdiction.
The QBSA Act is an enabling Act within the meaning of s 6(2) of the QCAT Act in that it confers upon the Tribunal original, review or appeal jurisdiction. For present purposes, it is the Tribunal’s jurisdiction on a review which is in issue, being that conferred upon application under Part 7 of the QBSA Act, relevantly ss 86 and 87 of the QBSA Act.[3]
[3]Divisions 2 and 4 of Part 7 of the QBSA Act relate to the original jurisdiction of the Tribunal to deal with building disputes and disciplinary proceedings.
Section 17 of the QCAT Act states that the Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that enabling Act. The decision made or taken to have been made under the enabling Act is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker.
Section 86(1) sets out those decisions which the Tribunal may review thus those decisions are reviewable decisions within the Tribunal’s review jurisdiction conferred by the QBSA Act and s 17 of the QCAT Act.
Section 86(2) identifies specific decisions of the Authority which are not reviewable by the Tribunal.
Relevantly to these proceedings, s 86(1)(e) specifically states:
“Reviewable Decisions
(1)The tribunal may review the following decisions of the authority –
......................................
(e) a decision to direct or not to direct rectification or completion of tribunal work.”[4]
[4]Section 75 of the QBSA Act defines “tribunal work”. It is noted that the power under s 72 of the QBSA Act conferred on the Authority relates to “building work”. The jurisdiction conferred on the Tribunal pursuant to s 86(1)(e) relates to “tribunal work”. “Building work” is defined in Schedule 2 of the QBSA Act.
For present purposes, s 71A of the QBSA Act is the starting point for enlivening the process leading to a possible application for review of a reviewable decision before the Tribunal.
Section 71A provides:
“Dispute Resolution before rectification of building work ordered
(1)This section applies to a consumer who wants the authority to consider whether to direct rectification of building work under section 72.
(2)The consumer must apply in writing to the authority stating –
(a) the name of the person who carried out the building work; and
(b)details of the building work the consumer considers is defective or incomplete; and
(c)other details the authority reasonably requires to consider the matter
......................
(4)Before it considers whether building work is defective or incomplete, the authority may require the consumer to comply with a process established by the authority to attempt to resolve the matter with the person who carried out the building work.”
Sections 72(1) and (2) of the QBSA Act provide:
“Power to Require Rectification of Building Work
(1)If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.
(2)In deciding whether to give a direction under subsection (1), the authority may take into consideration all the circumstances it consider are reasonably relevant, and in particular, is not limited to a consideration of the terms of, including the terms of any warranties included in, the contract for carrying out the building work.”
Once the Authority has considered whether to direct or not to direct rectification or completion of the building work and made a decision to direct or not to direct rectification or completion of the building work, a person affected by such a decision, which is a reviewable decision, may make an application pursuant to s 87 of the QBSA Act to have that decision reviewed by the Tribunal.
Upon application by an affected person for a review of a reviewable decision, s 19 of the QCAT Act provides that, in exercising its review jurisdiction, the Tribunal:
“(a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made;
(b)may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c) has all the functions of the decision-maker for the reviewable decision being reviewed.[5]
[5] Section 19 of the QCAT Act.
Section 20 of the QCAT Act identifies what is involved in a review proceeding as follows:
“Review involves fresh hearing
(1)The purpose of the review of a reviewable decision is to produce a correct and preferable decision.
(2)The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits."
The Tribunal’s functions in a proceeding for the review of a reviewable decision are set out in s 24 of the QCAT Act as follows:
”Functions for review jurisdiction
(1)In a proceedings for a review of a reviewable decision, the tribunal may-
(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 the directions the tribunal considers appropriate.”
Once an application for review of a reviewable decision has been made, it is incumbent upon the decision-maker of the reviewable decision to assist the Tribunal so that it can make its decision on the review. Section 21 and ss 157 to 160 of Chapter 3 of the QCAT Act set out the relevant steps for the provision of written reasons for the decision (“Statement of Reasons”) by the decision-maker. The purpose of the provision of a Statement of Reasons is to help the Tribunal and to inform the applicant of the reasons for the Authority’s decision.
Osborne’s Position
The original position taken by Osborne in its application to strike out Stevenson’s first review application was that the Tribunal’s jurisdiction in hearing proceeding number QR028-07 does not include a consideration or review of the following matters:
(a)any matters which were not the subject of the operative decision as at 9 October 2006;
(b)any decision or considerations of the Authority after 9 October 2006 as to alleged defects with the Deep Blue Apartments or with respect to rectification;
(c)any subsequent complaints or issues raised by Stevenson which were not before the Authority as at 9 October 2006;
(d)the standard or quality of the rectification work that has been undertaken; or
(e)whether rectification has in fact been undertaken as required by the 2006 Direction to Rectify.
A result of this submission, it was contended that any matters marked “new” in the joint issues list and the further items numbered 1.1-27.19 and 39.1-42.6 in the joint issues list[6]:
(a)were not matters for which the Authority had made any relevant and operative reviewable decision which could be the subject of a review by the Tribunal; and
(b)were not live issues before the Authority when it made its decision on 9 October 2006 and are thus not reviewable by the Tribunal.
[6]The joint issues list is a consolidated document produced by the parties in an attempt to identify the issues in dispute.
The conclusion from this submission is that those parts of the joint issues list should be struck out.
It was further submitted that the items numbered 28.1-38.1 in the joint issues list are not matters which could be regarded as “tribunal work” as defined in s 75 of the QBSA Act and thus cannot be the subject of a Direction to Rectify under s 72 of the QBSA Act and thus cannot be the subject of a reviewable decision.
Osborne contends that those items in the joint issues list which relate to work which is not tribunal work should be struck out and Stevenson should be ordered to put in a points of claim which properly pleads its contentions in relation to the relevant Direction to Rectify with a limitation to the items stated in the Direction to Rectify.
After evidence was provided by Mr Brain, on behalf of the Authority, Mr Kelly SC, Counsel on behalf of Osborne, submitted that the Tribunal should strike out Stevenson’s first review application in its entirety as it does not seek to review the October 2006 decision but rather it seeks to review matters which were not the subject of that decision and thus the application does not relate to a reviewable decision at all. The basis of this submission was that the only matters which could be reviewed were those expressly contained in the October 2006 decision.
In relation to Stevenson’s second review application, it is Osborne’s position that the entire proceedings numbered GAR036-12 should be struck out on the basis that the Tribunal has no jurisdiction to review the decision alleged to have been made on 23 January 2012 as there was no relevant and operative decision made by the Authority which could be the subject of a review.
Stevenson’s Position
Stevenson contends that the October 2006 decision, which was a Direction to Rectify specific items, was preceded by complaints, reports and correspondence which fairly raised concerns about fire protection and Code compliance in the Deep Blue apartments generally and those matters were live issues as at 9 October 2006.
The October 2006 decision was a decision by the Authority both to direct rectification of specific defective items and not to direct rectification of items about which there had been complaint both specifically and generally.
Stevenson further contends that the date of 9 October 2006 is not a “cut-off” date in any meaningful sense in that it is open to the Tribunal to consider subsequent correspondence and dealings up to 9 March 2007 in making a determination on the review application. As part of Stevenson’s first review application, it is open to the Tribunal to consider the subsequent correspondence which is said to have been confirmatory of the October 2006 decision. In particular this includes the matters of complaint which arose after 9 October 2006 such as those contained in reports and correspondence after 9 October 2006.[7]
[7]A report of Mr Duck from Fyreguard dated 12 October 2006; letters from Stevenson group’s solicitors to the Authority dated 6 November 2006 and 10 November 2006 and later correspondence up to March 2007.
It is Stevenson’s position that the striking out of the joint issues list would not result in the striking out of the whole proceedings.
Stevenson contends that the Tribunal has jurisdiction, at the very least, to consider all defects which were relevant at the date of the 9 October 2006 decision and it is open to the Tribunal in its discretion to consider defects subsequently detected.
In relation to Stevenson’s second review application, it is Stevenson’s position that in the context of the history of the conduct of the parties and the voluminous correspondence between Stevenson and the Authority from October 2006 to January 2012, the letter of 23 January 2012 from the Authority to Stevenson must be construed as a decision not to issue a Direction to Rectify.
Alternatively, Stevenson submits that if the application for review is out of time, there is compelling reason to extend any time limitation taking into account the long and delayed history of the matter and the reasons for such delay.
Stevenson contends that despite repeated requests for a Direction to Rectify to be issued by the Authority, no such direction was issued and that against that background, the Authority’s letter dated 23 January 2012, in the context of previous correspondence and conduct of the parties, must be construed as a decision not to issue a Direction to Rectify.
Mr Thomson, Counsel on behalf of Stevenson, submitted that Stevenson should not be prevented from agitating the defects in question which are the subject of the joint issues list and the complaint dated 20 October 2011 as many of the defects relate to safety issues and the Tribunal should take into account that it has been seized of the relevant review proceedings concerning such defects for a period extending over five years.
Chronology – Factual Background
Stevenson’s first review application resulted from a complaint made by Stevenson to the Authority by a complaint form dated 19 May 2006. That complaint form referred to complaints about defects in the Deep Blue Apartments outlined in a report dated 18 April 2006 prepared by Mr Walton of Access Dispute Resolutions. The complaint form stated that a further report would be provided. Two further reports dated 31 May 2006 were provided to the Authority on 1 June 2006 relating to units 9, 10, 13 and 14 and a further list of defective items prepared by Stevenson regarding units 9 to 14 was provided to the Authority on 7 June 2006.
Between 31 May 2006 and 5 October 2006, there was significant correspondence between the solicitors for Stevenson and the Authority regarding the items of complaint and the rectification work to be undertaken. Reports were prepared by the Authority and inspections undertaken on 6 July 2006 and 28 September 2006 and some rectification work was carried out by Osborne at various times including between 26 and 28 July 2006.
An internal memorandum dated 3 October 2006 prepared by a senior investigations officer, Mr Mamszur, on behalf of the Authority, addressed to Mr Townsend and Mr Brain, refers to the defects addressed at the inspection on 28 September 2006 and relevantly states:
“Ten units were inspected and the basement area and a number of issues have been identified. Not all units have been inspected a number of reoccurring issues have emerged and will be common throughout the complex.”
A further report dated 4 October 2006 prepared by a fire safety expert, Mr Catchpole, of Catchpole Building Services, was provided to the Authority and discussed at a meeting on 5 October 2006 attended by Mr Brain on behalf of the Authority, Stevenson, Osborne, Mr Catchpole and another fire safety expert, Mr Duck of Fyreguard.
Subsequently to the meeting on 5 October 2006, on 9 October 2006 the Authority issued a Direction to Rectify and/or Complete, being the 2006 Direction to Rectify, which states that Osborne is required to undertake rectification work necessary to address the issues listed in the direction which related to units 2, 3, 4, 6, 7, 10, 11, 13, 14, 15 and 16. The 2006 Direction to Rectify set out eleven items of defects in relation to those units and was signed by Mr Brain on behalf of the Authority.
The covering letter to the 2006 Direction to Rectify, also dated 9 October 2006, relevantly provides:
“After consideration of the nature and number of items requiring remedial works BSA is of the opinion the defective construction has compromised the integrity of the fire separation and compartmentation of the complex to a degree where a Direction to Rectify is our only option to progress this matter to a satisfactory conclusion.
You will note the enclosed Direction to Rectify is specific to the units inspected and contains reference to specific items, the Direction is also restricted to readily identifiable defects in the areas accessed in the roof area via inspection openings in bathrooms and common areas.
Whilst the Direction relates to specific units the number of units inspected and common nature of defects in construction is taken as a reasonable representation of defects throughout all units and ground floor component of the complex.
It is expected further invasive inspection assessment will take place to enable a complete and thorough investigation of all units and common area. BSA can be present at a number of these inspections to facilitate common opinion between the experts engaged by both licensee and unit owners.”
The 2006 Direction to Rectify related to specific units 2, 3, 4, 6, 7, 10, 11, 13, 14, 15 and 16 and did not include defects in units 9 and 12 which were the subject of Mr Catchpole’s report. Further, there was no reference to any defects in units 1, 5 and 8 and the ground floor and basement areas.
On 6 November 2006, Osborne commenced the Osborne review application in the Tribunal regarding items 1, 2, 3 and 5 of the 2006 Direction to Rectify which formed part of the October 2006 decision. The primary basis for the review was that it was alleged that items 1, 2, 3 and 5 were not defective.
In November and December 2006, further reports prepared by Mr Catchpole, on behalf of Stevenson, were provided to the Authority by Stevenson. These reports tabled further defects in the Deep Blue Apartments.
On 10 November 2006, Stevenson, through its solicitors, requested the Authority to enlarge the 2006 Direction to Rectify and to issue a further direction to rectify with regard to numerous additional defects raised since October 2006.
Further meetings took place attended by Mr Jennings, on behalf of the Authority, Stevenson and Osborne and there was significant correspondence regarding Osborne’s attention to rectification of the building works. Extensive and substantial works were being carried out by Osborne and the Authority was heavily involved in monitoring the rectification works.
By 8 February 2007, Stevenson was concerned about the rectification works being undertaken by Osborne particularly in relation to items 4, 5 and 6 of the 2006 Direction to Rectify and confirmed this in a letter to the Authority enclosing further reports by Mr Catchpole.
By letter dated 14 February 2007, the Authority advised Stevenson’s solicitors of its position in relation to the rectification work being carried out by Osborne pursuant to the 2006 Direction to Rectify and in relation to item 6 stated that there was insufficient change in circumstances to justify a change in the current direction or to issue a new direction.
On 21 February 2007, the Authority produced its Statement of Reasons in relation to the October 2006 decision.[8] The Statement of Reasons set out the policies and procedures of the Authority in relation to the assessment of defective works and listed the correspondence between the parties between May 2006 and 9 October 2006. No further explanation for the decision was provided. The Statement of Reasons referred only to the decision expressed in the 2006 Direction to Rectify.
[8]There is evidence the Statement of Reasons was not provided to the solicitors for Stevenson until 25 June 2007.
A further site inspection was attended by the Authority on 21 February 2007 and by 22 February 2007, a list of rectification works was issued by Osborne regarding proposed rectification work to be carried out by Osborne between 26 February 2007 and 2 March 2007.
In response to the letter dated 10 November 2006 from Stevenson’s solicitors to the Authority, on 1 March 2007, the Authority replied:
“There is also no necessity for a further Direction to be issued while remedial work is being carried out on all units.”
By letter dated 5 March 2007, Stevenson’s solicitors responded that it disagreed with the Authority and confirmed Stevenson’s view that a further direction should be issued dealing with the additional defects listed in its letter dated 10 November 2006 and further additional defects identified since that date.
On 9 March 2007, Stevenson commenced its first review application in relation to the October 2006 decision not to issue a direction to rectify to Osborne on the basis that it failed to refer to, amongst other things:
(a) the whole of the building;
(b) units 9 and 12, the ground floor and the basement;
(c) all the defects in the 4 October report prepared by Mr Catchpole;
(d) all the defects in the November 2006 report; and
(e)the additional defects listed in the letter dated 10 November 2006 from Stevenson’s solicitors to Ian Jennings at the Authority.
Between February 2007 and September 2008, Osborne carried out further substantial rectification works including engaging Fyreguard, a licensed passive fire protection installation contractor, to carry out fire protection works up to 17 September 2008.
During this time, there were numerous inspections by the Authority, numerous extensions of time granted to Osborne in which to comply with the 2006 Direction to Rectify, significant remedial works undertaken by Osborne and numerous reports prepared as directed by the Tribunal.[9]
[9]Stevenson’s first review application was commenced in the Commercial and Consumer Tribunal the predecessor of this Tribunal.
The Authority continued to inspect the rectification works carried out by Osborne and provided reports to the Tribunal, at the direction of the Tribunal, regarding the progress of those works and whether works had or had not been rectified.[10]
[10]See reports of the Authority titled “Report to the Commercial and Consumer Tribunal” authored by Mr Brain and dated 25 May and 29 May 2007.
It is noted that the report dated 29 May 2007 prepared by Mr Brain clarified the scope of the 2006 Direction to Rectify by reference to the covering letter which accompanied the direction:
“In addition to the Direction items, the letter outlined below accompanies the Direction posted to Mr Osborne and it to be taken as a BSA request for Mr Osborne to ensure all the building is brought into conformity with Building Code requirements.”
A report dated 16 November 2007 was prepared by Mr Catchpole, on behalf of Stevenson, with “Particulars of Defects which still remain outstanding and not rectified and inspections and rectification works which still have not been carried out” which referred to defects in the 2006 Direction to Rectify and many other items which were still in contention.
From about November 2007 until April/May 2008, a number of inspections were undertaken by the Authority and correspondence between the Authority and Osborne and Stevenson and the Authority continued including the provision of further reports regarding outstanding defective building works. A document dated 13 December 2007 prepared by the Authority titled “Amended Inspection of Building ‘Deep Blue’ Tangalooma Moreton Bay” addressed outstanding defects in the complex, including both defects prior to 9 October 2006 and many defects discussed subsequently.
In April/May 2008, the experts for all parties conferred to explore the proposal of developing a joint issues list. This resulted from a directions hearing before the Tribunal on 12 March 2008. After two reports dated 14 August 2008 prepared by the Authority were provided to the parties, on 29 August 2008 the solicitors for Stevenson produced the first draft joint issues list with respect to the most recent report by the Authority. On 21 October 2008, an alternative draft of the joint issues list was provided by Stevenson and underwent amendment. This document was finally attached to the October 2011 complaint. Subsequently to this in October 2008, the question of the Tribunal’s jurisdiction in relation to all the matters in dispute became an issue.
From September 2008 to August 2009, further inspections, monitoring of rectification work, correspondence about defects and rectification continued. It is noted that in a letter dated 9 June 2009 to the Solicitors for Stevenson, the Authority referred to possible defective work about which Stevenson had advised the Authority verbally. The items listed were in the joint issues list Common Area items and therefore a complaint should have been made by the Body Corporate. The Authority urged Stevenson to encourage the Body Corporate to lodge a complaint.
By letter dated 1 September 2009 to the Commercial and Consumer Tribunal (this Tribunal’s predecessor), the Authority raised that the joint issues list contained items which it said were not within the Tribunal’s jurisdiction and stated as follows:
“Currently, it is the Authority’s view that there are a number of items that the Tribunal does not have jurisdiction to consider that have been included and considered by the parties’ experts. The Authority notes Stevenson Group Investments Pty Ltd has advised they do not share this view. Nevertheless, to encourage expeditious resolution of these matters, the Authority proposes to consider the outstanding items, make the relevant decisions and if those decisions are reviewed, apply to have the review joined to the current review proceedings so that all matters may be dealt with together in the one final hearing.”
By letter dated 3 November 2009, the solicitors for Osborne outlined categories in the joint issues list which were beyond the jurisdiction of the Tribunal.
From this point onwards, there was significant debate regarding the joint issues list and the matter before the Tribunal was adjourned for significant periods, mostly by consent, while Osborne lodged a building application with the Brisbane City Council seeking a development permit for carrying out building works at the site. This building application was approved by the Planning and Environment Court in October 2011.[11] It appears these works were not subsequently carried out.
[11]The history of Osborne’s building application is set out in paras 104 to 126 of the affidavit of Berren O’Sullivan Hamilton sworn 5 June 2012.
During this period, rectification works continued, inspections continued and there were multiple directions hearings before the Tribunal.
By letter dated 20 October 2011, the solicitors for Stevenson wrote to the Authority lodging a formal complaint stating relevantly as follows:
“Nonetheless, out of an abundance of caution, and to avoid time and money being wasted on arid technical arguments about whether certain matters are within or outside the jurisdiction of the Tribunal and the scope of the present proceedings, our client hereby makes formal complaint in respect of each and every defect set out in the complaint documents referred to above.”
The documents attached to the formal complaint included:
(a)the draft joint issues list;
(b)particulars provided by the Authority dated 2 November 2009;
(c)letter dated 3 November 2009 from Osborne’s solicitors to the solicitors for Stevenson and the Authority relating to the joint issues list;
(d)letter 27 February 2009 from the solicitors for Stevenson to the Authority regarding the joint issues list;
(e)letter 9 June 2009 from the Authority to the solicitors for Stevenson regarding “Items of complaint at Deep Blue Resort Tangalooma Island";
(f)document entitled “Items of Concern – Deep Blue Apartments – BSA File 3-2141-06 – defect description list 9-6-06 referred to as the 2006 Defects List";
(g)Queensland Fire and Rescue Services Requisition by Commissioner Section 69 Notice Number ER0776 issued to Tangalooma Island Resort Pty Ltd dated 4 February 2011; and
(h)document titled “BBQ Areas” relating to the defects regarding the BBQ areas referred to in the joint issues list.
By letter dated 18 November 2011, the Authority responded as follows about the new complaint and the review proceedings already before the Tribunal:
“Reference is made to your letter dated 20 October 2011 and the complaint form enclosed by it (the “new complaint”).
The review particulars filed on 9 March 2007 with your client’s application for review of direction to rectify and/or complete number 29429 dated 9 October 2006 record at paragraph 13, under the heading ‘Particulars of defective and/or incomplete tribunal work’ that –
‘There are other items of defective and/or incomplete tribunal work in the Apartment Building which ought to be the subject of a direction or which are currently the subject of the Direction but require more extensive rectification than is apparent from the Direction. Particulars of these will be provided in statements to be delivered.’
Since 9 March 2007, your client has delivered particulars of other items of allegedly defective/or incomplete tribunal work in the Deep Blue Apartments.
At paragraph 10, your letter informs that the new complaint has been made to avoid argument about whether certain matters are within the jurisdiction of the Tribunal and the scope of the proceedings.
That being the case, the Authority proposes to place the new complaint in abeyance, to be progressed in the event there are matters to be considered after the hearing or earlier determination of the above cases.
By letter dated 19 December 2011, the solicitors for Stevenson stated that they did not agree that the complaint dated 20 October 2011 should be put in abeyance and expressed Stevenson’s concerns regarding such action, including the possibility of the expiry of time for which a Direction to Rectify may be given under s 72(8) of the QBSA Act. It was submitted that, if the Authority did not issue a Direction to Rectify, review proceedings would be commenced on the basis that the Authority’s conduct “conveys a reviewable decision not to direct rectification or completion of tribunal work pursuant to section 86(1)(e).”
On 10 January 2012, the solicitors for Stevenson requested that the Authority respond to its letter dated 19 December 2011.
On 23 January 2012, the Authority forwarded the following letter to Stevenson’s solicitors:
“Reference is made to your letter dated 10 January 2012.
The Authority has carefully considered the submissions contained in your letter dated 19 December 2011.
For the reasons provided by its letter dated 18 November 2011, the Authority remains of the view that your client’s complaints can be dealt with in the above cases.”
On 31 January 2012, Stevenson filed Stevenson’s second review application for a review of the Authority’s decision dated 23 January 2012.
Evidence of the QBSA Inspector Mr Brain
Mr Brain was, at the relevant time, a resolution services manager engaged by the Authority primarily involved with the complaints made in relation to the Deep Blue Apartments.
In this role, Mr Brain was the relevant person with the delegated authority to:
(a)direct the person who carried out the building work to rectify the building work within a certain period;
(b)make a decision on behalf of the Authority whether to direct or not to direct rectification or completion of tribunal work.
Mr Brain first became involved in the issue of defects at the Deep Blue Apartments when the complaint form from Stevenson was first issued on 19 May 2006.
Being heavily involved in the various inspections, meetings, correspondence and dealings between the parties between May 2006 and October 2006, Mr Brain was the author of the correspondence now described as the October 2006 decision, including the 2006 Direction to Rectify.
In support of his evidence that he was the author of only one decision during his involvement with Deep Blue Apartments, Mr Brain produced an affidavit dated 11 May 2012 which relevantly stated:
“4. I made no decision to direct or not to direct rectification of the items described at paragraphs 1.1-27.19 and 39.1-42.6 of the joint issues list.”
In relation to the October 2006 decision, Mr Brain gave evidence that, based on his opinion regarding the units he had inspected, he produced a decision which directed rectification work of specific units as a result of those inspections and that opinion formed. He gave evidence that his decision was limited to the items included in the bullets points in the 2006 Direction to Rectify.[12]
[12] T: P18 L35; see also T: P77 L30 and P81 L5-15.
Mr Brain conceded that the documents in support of his Statement of Reasons for his decision which was delivered on 20 February 2007, relate to both specific complaints and generic issues regarding defects throughout the whole complex.[13]
[13] T: P70-71.
When questioned by Mr Johnston, Counsel on behalf of Osborne, Mr Brain gave evidence that in light of the fact that further reports and further inspections were required in relation to the numerous defects at the Deep Blue Apartments, Mr Brain confined his decision to the units he had inspected even though it was known that the defects were generic throughout the building.[14] He further stated that he had formed an opinion in relation to the specific defects inspected and for that reason a direction was issued in relation to those specific defects only.[15]
[14] T: P17 L1-10; T: P17 L25-40; T: P23 L20-25.
[15] T: P77 L40-48; T: P78 L1-45.
Mr Brain’s primary evidence seemed to be that no decision was made about the building works not included in the 2006 Direction to Rectify for the reason that he had not determined whether such building works were defective or not.
When questioned by Mr Johnston in relation to the October 2006 decision, Mr Brain conceded however that one of the reasons he did not issue a direction to rectify some of the building works was because of the ongoing involvement of the licensee Osborne in the rectification works.[16]
[16] T: P72 L24-P73 L25; P74 L24-45.
In cross-examination by Mr Thomson, on behalf of Stevenson, Mr Brain made the following concessions regarding his reasoning for not including certain items in the October 2006 direction:
“Thomson: You decided as at the date 9 October 2006 not to issue a direction to rectify in relation to units 9 and 12 didn’t you?
Brain: That’s correct, yes.
Thomson:But you made that decision against a background, which is in fact expressed in your letter, that you felt – sorry – that you had the view or opinion that the defects already identified would be taken quote “as a reasonable representation of defects throughout all units"?
Brain:Yes[17]
[17] T: P18 L1-10.
Thomson:And you had that belief and you also had Mr Catchpole’s report?
Brain:Yes.”
And further in evidence:
Thomson:Did that mean that you were directing, on your view of it, the licensee to rectify all problems with fire collars in or about the identified units, even if they weren’t in the bullet point:
Brain:If it’s not in the bullet points it’s not included in the direction.
..............
When we issued a direction back in 2006, whenever it was, the directions were more in general terms to bring it to the attention of the licensee that there’s a problem with the whole complex. If we had have listed out every single defect with fire collars, the direction may have ended up a 20-page document, for instance. Whereas at the time it was our practice – we don’t say generic, but inform the builders that there’s a problem with fire collars. Here are some of the points that we have found with the one’s we’ve inspected. There may be others, but it was to bring to the attention of the builder that there was a definite problem.
......................
Thomson:So as at 9 October 2006 when you issued this direction?.....You decided not to direct rectification of matters which didn’t specifically appear in these bullet points?
Brain:Yes.[18]
And further:
Thomson:This direction doesn’t address, does it – to take another example – the slots in the eaves which Mr Catchpole had complained about. Correct?
Brain:No, it doesn’t.
Thomson:And the reason for it doesn’t contain that issue is because you had decided, as at 9 October 2006, not to direct rectification in relation to the eaves slots because you didn’t agree with Mr Catchpole’s opinion?
Brain:That’s correct. Yes.
Thomson:And the very reason that that item is excluded from the direction is because you had made that decision. Fair?
Brain:That’s right.[19]
And by way of one further example:
[18] T: P18 L40-P19 L13.
[19] T: P20 L45-P21 L2.
Thomson:So therefore as at the date of this direction you decided not to direct rectification of voids in Ritek walls generally throughout the building. You limited it to the one that you had seen?
Brain:That’s correct.
Thomson:You made that decision for the simple reason that although you thought there were probably more, and that was based on the general standard of finish and the general standard of defects, you were concerned about being in a situation like this where you were questioned about your basis for a decision so you decided not to generally direct rectification of all voids in Ritek walls. Fair?
Brain:At that point I had an undertaking from Mr Osborne, who is the builder, that he would inspect all units
Thomson:Yes?
Brain:and carry out work as necessary.
Thomson:And that undertaking influenced your decision not to direct rectification of voids generally but rather to limit it to that one hole, the first hole that was found. Fair?
Brain:That’s correct.
Thomson:The reader of this direction to rectify, to take item 8 as an example, would consider, wouldn’t they – take yourself as a reasonable person reading this document, the reader would consider, on looking at item 8 and knowing what you knew?
Brain:Yes
Thomson:......that you had decided not to direct rectification of the voids generally throughout the building?
Brain:That’s correct, yes.[20]
[20] T: P23 L21-45.
Mr Brain gave evidence that only one Statement of Reasons has been given and that relates to the October 2006 decision and is dated 20 February 2007.[21] It is noted the Statement of Reasons provided no assistance regarding the reasoning for the decision as it merely referred to the decision having been made in the Direction to Rectify.
[21] T: P69 L45; T: P70 L2-7.
Further evidence regarding the development of the joint issues list and the Authority’s particulars dated November 2009 was provided by Mr Brain as he instructed the solicitors for the Authority in relation to their content. Mr Brain conceded that errors had been made in the compilation of the documents in that items such as 16.16 and 26.2, for example, were not new items as identified in the joint issues list. Other inconsistencies were identified in the joint issues list including, but not limited, to those items marked “DTR” which in some instances indicated that the item had been covered by the 2006 Direction to Rectify whereas they were items which surfaced for consideration after the 2006 Direction to Rectify.[22]
[22] T: P53-61; P63-65; P 79-83.
In addition to his evidence regarding whether a decision had been made on 9 October 2006 and what that entailed, Mr Brain also gave evidence in relation to the alleged 23 January 2012 decision. By this stage, Mr Brain’s involvement at the Authority was limited and he was not able to give evidence of his personal involvement in the provision of any further decision. He gave evidence that Mr Stick, a colleague holding the same position as Mr Brain, had taken over to some extent the carriage of the matter.
Mr Brain’s evidence was that he was not aware of any decision having been made in relation to issuing a direction to rectify or not issuing a direction to rectify after the complaint was lodged on 20 October 2011. Further, Mr Brain agreed that the position taken by the Authority, at that stage, was that it would make no decisions whether to direct or not to direct rectification work while a matter was before the Tribunal.
Limitation of the Tribunal’s Jurisdiction
It is necessary to approach the issue of the Tribunal’s jurisdiction bearing in mind the words of Williams JA in Fraser Property Developments Pty Ltd v Sommerfeld (No.1) [2005] QCA 134 at [26]:
“[26] Statutes creating specialist tribunals usually define their jurisdiction with some particularity if only because they only have such jurisdiction as is expressly conferred on them.”
The statutory framework set out above makes it clear that the jurisdiction of the Tribunal in a review application is limited in that it is only enlivened once a decision is made or taken to have been made.[23] This necessarily infers that there must be the identification of an operative decision which may be the subject of a review.
[23] Section 17 of the QCAT Act.
In Secretary Department of Social Security v Hodgson (1992) ALR 322 at 328 it was considered by Hill J in the Federal Court that it must be at the heart of any consideration of the Tribunal’s jurisdiction in review proceedings that it is dependant upon a decision having been made by a decision-maker which the tribunal is authorised to review. Hill J relied upon the statement of Brennan J, then president of the Administrative Appeals Tribunal, in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175:
“The tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment.”
The jurisdiction of the Tribunal is only engaged where there is a decision which will invoke a review. In this respect, it must be borne in mind that not every decision of the Authority necessarily invokes a review.
The first issue to determine therefore is whether there has been a decision. The second issue is whether that decision is one which invokes the review jurisdiction of the Tribunal.
There is no definition in the QBSA Act or the QCAT Act to assist in determining what is a “decision” under s 86(1)(e) of the QBSA Act.
The determination as to whether a decision is made is a question of fact however it is necessary to consider the meaning of the word “decision” in its ordinary context and in the context of the statutory framework of the QBSA Act.
The Macquarie Dictionary defines the word “decision” as:
“1. The act of deciding; determination (of a question of doubt). 2. A judgement, as one formally pronounced by a court. 3. Making up of one’s mind. 4. That which is decided; a resolution...”
The issue of the identification of a relevant decision has been considered by the courts particularly in review proceedings before the Administrative Appeals Tribunal.
In Comcare v Burton (1998) 157 ALR 522 at 527, Finn J considered the issue of a decision under review before the Administrative Appeals Tribunal pursuant to the Administrative Appeal Tribunal Act 1975 (Cth):
“Before s43(1) can be applied it is necessary to determine what was the decision under review. Section 43 does not empower the tribunal “to review a totally different decision”. Secretary, Department of Social Security v Riley (1987) 17 FCR 99 at 105; 76 ALR 393.”
His Honour stated that for the purposes of consideration of whether a decision to be reviewed has been made consideration has to be given to whether the process of determination and reconsideration must have been engaged in pursuant to those sections of the relevant statute that can give rise to a determination.
In Evans v Friemann (1981) 53 FLR 229 at 233, Fox ACJ considered he meaning of the word “decision”:
“The meaning of ‘decision’ has been considered in Director General of Social Services v Chaney (1980) 47 FLR 80, Hamblin v Duffy and Riordan v Connor, but it seems desirable that, having in mind the facts of the present case, I express my understanding of relevant terms in my own language.
The making of a decision by a person is a mental process, which may be communicated orally or in writing, or be apparent from action taken or not taken. .........In ordinary usage, the special feature of a decision is its conclusiveness, or finality for the time being, and this is to be contrasted with the thought of consideration which precedes it. On the other hand a decision is not the same as a conclusion; the former normally has an objective, while the latter is more commonly associated with the end result of a process of thinking without the formation of an intention concerning future conduct. It would not be possible, even if the attempt were wise, to substitute a judicial exegesis for the word the legislature has used. For present purposes at least it seems to me to amount to something of significance which is reasonably definite, which is final and conclusive for immediate purposes at least, which is manifested in some way, which emanates from an authoritative or responsible source, and which materially affects another person or persons.”
The decision of Evans v Friemann has been often quoted with approval in a number of cases including Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and Nona and Anor v Barnes [2012] QSC 35.
In the Australian Broadcasting v Bond case, in considering the meaning of the word “decision” as used in the Administrative Decisions (Judicial Review) Act1977 (Cth), Mason J said at 335:
“The word has a variety of potential meanings. As Deane J noted in Director General of Social Services v Chaney, in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand: see Chaney at 100.”
And further at 337:
“To interpret “decision” in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.
.........A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination.”
In the recent decision of Nona v Barnes[24] McMurdo J referred to the decisions of the High Court in Griffith University v Tang (2005) 221 CLR 99 and the Federal Court in Salerno v National Crime Authority (1997) 75 FCR 133 at 138 and Attorney-General (Cth) v Queensland (1990) 25 FER 125 in assessing the identification of a relevant reviewable decision under the Judicial Review Act 1991. His Honour concluded at [21]:
“The conclusion of the coroner’s consideration of the question (the possibility that an offence had been committed) might be characterised in ordinary speech as a decision. However, a reviewable decision must at least be “a decision of an administrative character” and it has long been held that this involves not only the mental process undertaken by a decision maker, but some outward expression of his or her conclusion as an administrative act.”
[24] [2012] QSC 35.
Mr Kelly SC, on behalf of Osborne, emphasized that in determining whether a decision was made or taken to have been made pursuant to s 17 of the QCAT Act so that the Tribunal’s jurisdiction was triggered, it was important to take into account that the QBSA Act unlike many other Acts did not have a deeming provision so that there was no opportunity to determine that a decision was made by some means other than it was actually made. Mr Kelly SC referred me to a number of enabling Acts which contained deeming provisions. The consequence of those enabling Acts is that in various circumstances where there was a failure to give a decision such was deemed to be a decision to refuse an application.[25] The refusal is what becomes the subject of a review in the sample legislation referred to the Tribunal by Mr Kelly SC. Those circumstances are catered for in the expression “taken to have been made”.
[25]For example – Dental Technicians Registration Act 2001; Fisheries Act 1994; Plumbing and Drainage Act 2001; Architects Act 2002; Fire and Rescue Service Act 1990.
I accept the submissions of Mr Kelly SC that the QBSA Act does not import the same considerations which are relevant to legislation which contains “deeming provisions”. Despite the thorough exercise obviously carried out to explain this point, I do not think for present purposes I need to address each piece of legislation identified by way of example except to acknowledge that the QBSA Act does not contain such deeming provisions.
As the QBSA Act does not contain a provision whereby a decision can be deemed to have been made and, therefore, taken to have been made, a relevant decision must have been actually made under the QBSA Act in order to engage the Tribunal’s jurisdiction.
In both written submissions and in oral argument, Mr Kelly SC submitted that the only decision which is reviewable is the October 2006 decision which is a decision to direct rectification of specific items. It is submitted that a decision not to direct rectification of tribunal work could not have been made unless an opinion not to direct rectification work had been formed by the Authority. The source of this opinion is s 72 of the QBSA Act and this, it is submitted, is the trigger for the determination of whether a reviewable decision has been made.
Mr Thomson, on behalf of Stevenson, stated that too much emphasis was placed on an “opinion” having been formed and that the starting point in considering whether there was a reviewable decision was the “decision” itself. It was submitted that the review jurisdiction is not limited to a decision properly or lawfully made under s 72 of the QBSA Act and that the concentration of attention on whether an opinion had been formed diverts attention away from the central test which is whether a decision has in fact been made. It was submitted that the test is whether a decision exists not whether it was flawed in the making, for example in the present circumstances because an opinion had not been formed.
Relying upon the reasoning of the Full Court of the Federal Court in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219, Mr Thomson submitted that it would be wrong to limit the Tribunal’s jurisdiction to a decision which was properly made under the QBSA Act in circumstances where, as in the Alvaro case, the word “decision” is not qualified in any way such as by the use of the phrase “made in the exercise of powers conferred by the enactment.”
The Authority’s power to direct rectification is specifically conferred by s 72 of the QBSA Act. It is submitted on behalf of Osborne that, arising from that power, there are 3 factual possibilities from the exercise of that power:
(a)an opinion is formed that the works are defective such that the Authority’s discretion may be exercised to direct rectification and a decision is made to direct rectification;
(b)an opinion is formed that the works are not defective such that in the exercise of the discretion a decision is made by the Authority not to issue a direction to rectify;
(c)a situation arises in consideration of the complaint where no opinion is formed whether to direct or not to direct rectification for any number of reasons such as ongoing investigations, assessments and considerations are continuing with the result that no decision is made.
It would seem that there is a further possibility in circumstances where an opinion could be formed that the works were defective but in the exercise of its discretion, for whatever reason, the Authority may make a decision not to direct rectification of the tribunal work.
Whilst it is accepted that s 72 of the QBSA Act is the starting point for a decision to direct rectification or completion, it is necessary to go back one step further to identify what is involved in reaching a “decision” for the purpose of s 86(1)(e) of the QBSA Act particularly in circumstances where there is no positive direction to rectify.
The reason is that s 72 of the QBSA Act obviously is the trigger for a positive decision being a direction to rectify or complete building work. An opinion is required to be formed in order to direct rectification of defective building work. Without an opinion being formed that the building work is defective, there would be no basis for directing that the alleged defective building work be rectified. Thus the power to direct rectification is premised upon an opinion having been formed that the building works are defective. To this extent, there is a limitation placed upon a decision to direct rectification being made, namely that it be preceded by an opinion that the works are defective.
A decision not to direct rectification is not necessarily dependant upon an opinion being formed as to whether the building works are not defective. One of the reasons for the decision may be based on an opinion being formed that the building work is not defective. Other reasons may include, by way of example, the following:
(a)the work is defective but not so serious as to require rectification as it would be unreasonable to require rectification because of the extent of works required to be undertaken in the circumstances;
(b) the builder has agreed to carry out the rectification works;
(c)the builder is no longer licensed and is unable to carry out the rectification works;
(d)the work requires rectification but the builder is bankrupt and it would be futile to pursue him; or
(e)the Authority is satisfied that it would be unfair to the builder to give a direction, eg under s 72(14) of the QBSA Act in circumstances such as where it would be unfair because of the amount payable but unpaid under the contract for carrying out the building work.
A decision not to direct rectification of building works is not premised on the formation of an opinion that the work is not defective. There is nothing in the legislation which limits the Authority’s discretion in making a decision not to direct rectification of the building works. There is nothing which limits the Authority’s decision to circumstances where an opinion has been formed that the building works are not defective.
The wording of s 86(1)(e) of the QBSA Act supports the conclusion that a decision not to direct rectification is not dependant upon an opinion being formed that the building works were not defective. Section 86(1)(e) refers to “a decision not to direct” and does not limit that decision to works which are not defective. Section 86(1)(e) refers to the “direction”, that is one “to direct” or “not to direct”. It is not limited to a decision “to direct no rectification be carried out” or “to direct there is no necessity to rectify” which would involve an assessment of whether the works were defective. Section 86(1)(e) focuses on the “direction” ie to direct or not to direct.
For the purpose of determining whether a decision has been made, the starting point is s 71A of the QBSA Act.
An application is made by a person wanting the Authority to consider whether to direct rectification of building work pursuant to its power under s 72 of the QBSA Act.
At the time of consideration of the application under s 71A, the Authority is entrusted with a discretion to assess the complaints. A decision may be made to direct rectification. A decision may be made for various reasons not to direct rectification. There is of course the possibility that no decision is made or a decision is made but one which is not reviewable under s 86(1)(e) of the QBSA Act.
Whether a “decision” has been made is therefore a question of fact to be assessed taking into account the criteria and principles to be applied in assessing whether a final and conclusive determination has been made. For this purpose, it is necessary to take into account the principles and criteria supporting the conclusion that a “decision” has been made as opposed to only a consideration or thought process undertaken.
Once it is determined that a decision has been made, it is then necessary to determine whether there is a decision which is reviewable. For this purpose, one turns to s 86 of the QBSA Act.
For present purposes, the decision to be considered must be one which falls within one of the categories in s 86(1)(e) of the QBSA Act being :
(a) a decision to direct rectification or completion of tribunal work; or
(b) a decision not to direct rectification or completion of tribunal work.
In exercising its review jurisdiction of such a reviewable decision, the Tribunal is conferred with the following obligations pursuant to s 19 of the QCAT Act:
(a)it must decide the review in accordance with the enabling Act under which the reviewable decision was made;
(b)it may perform the functions conferred on the Tribunal by the QCAT Act or the enabling Act; and
(c)it has all the functions of the decision-maker for the reviewable decision.
Section 19(c) necessarily confirms that once seized of the jurisdiction to review a reviewable decision, it is open to the Tribunal to look at and consider all the live issues which were before the original decision-maker.
In Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1, Wilcox, Burchett and French JJ considered the obligations of a tribunal once seized of the jurisdiction to review, in particular the obligation to address the same question that was before the primary decision-maker:
“It is, of course, well established that the tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision-maker. The tribunal is, however, obliged to address the same question as was before the primary decision-maker. This distinction was spelled out by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; 87 CLR 506.”[26]
[26](1992) 111 ALR 1 at 11; See also Comcare v Burton (1998) 157 ALR 522 at 527 at [5] and 528.
Further in Comcare v Burton,[27] Finn J stated that whilst the tribunal is limited to reviewing what can only be considered a reviewable decision, such that the process of determination and reconsideration (in that case) must have been engaged in, the process of reviewing that decision is to occur in the setting of the questions that gave rise to the decision. In that context, the tribunal is obliged to answer the same questions as were before the reconsideration decision-maker.
[27] (1998) 157 ALR 522 at 528.
The language of s 19 of the QCAT Act is clear and unambiguous in that it empowers the Tribunal with all the functions of the original decision-maker for the purpose of reviewing the decision. The power of the Tribunal is not otherwise limited.
In Secretary, Department of Social Security v Hodgson,[28] Hill J concluded that it is a question of whether the original decision-maker could have legitimately considered the issue to be reviewed then:
“where the tribunal’s jurisdiction is enlivened by an application to review an administrative decision it exists to do again, within the limits of the review, that which the decision-maker was entrusted to do.”
[28] (1992) ALR 322 at 330.
Was there a Reviewable Decision made on 9 October 2006?
The scope of the Tribunal’s review jurisdiction must be considered within the context of the obligations and powers of the original decision-maker, namely the Authority. For this purpose, it is necessary to bear in mind that once a complaint is made to the Authority under s 71A of the QBSA Act, the Authority has a discretion whether to order rectification of defective building works. There is no guideline for the boundaries of that discretion, no regime or time limit on the exercise of that discretion nor is there a mandatory obligation that in the exercise of that discretion a direction or decision be given.
There seems little contention that there was a decision made on 9 October 2006. It also seems that there is little contention that the decision, that is in the context of it being a decision to direct rectification, is a reviewable decision.
The parties’ views diverge when considering what is the ambit of the reviewable decision.
Mr Kelly SC contends that the only decision made which is a reviewable decision is that reflected in the express terms which direct rectification of the eleven items the subject of the 2006 Direction to Rectify. Those eleven items are limited to the units expressly specified. In support of this submission, Mr Kelly SC contends that it is the only decision in relation to which a Statement of Reasons has been given on 20 February 2007 and it is the only decision in relation to which the Authority would be capable of providing a Statement of Reasons. On this submission, it was contended that the Authority would not be able to give a Statement of Reasons in relation to a decision not to require rectification of tribunal work (that is the alleged defective items not included in the 2006 Direction to Rectify) if, as it has been conceded by Mr Brain, an opinion in relation to certain defects had not been made because there were on-going investigations in relation to those defects.
Further, Mr Kelly SC submitted that the only final or operative and determinative decision in relation to the issues of fact falling for consideration by the Authority was the 2006 Direction to Rectify. Any course of reasoning or course of consideration undertaken by Mr Brain in assessing the complaints would not amount to a reviewable decision. Further, in the absence of an opinion whether the works were defective or not, no operative decision could be made about the issues to be considered. Thus the only reviewable decision is that which is published and it did not include a decision not to direct rectification.
It is Stevenson’s contention that the October 2006 decision was a direction to rectify the eleven items contained in that direction and additionally a decision not to direct rectification of a number of other items which it contends should have been included in the decision.
Mr Thomson, on behalf of Stevenson, submitted that it is implicit in the October 2006 decision that it is a decision not to direct rectification of the building works not specifically included in the 2006 Direction to Rectify but included in the complaint to the Authority. Further, the evidence of Mr Brain supports the submission that the Authority had made a decision not to direct rectification work and this is reflected in those items not being included in the 2006 Direction to Rectify.
Before addressing the Osborne submission that the Tribunal’s jurisdiction is limited to the October 2006 decision and the specific items contained in that decision, it is necessary to assess whether there has been a decision by the Authority not to direct rectification.
When questioned by Mr Johnston, Counsel on behalf of Osborne, Mr Brain confirmed that at the time of issuing the 2006 Direction to Rectify, having not formed an opinion on a number of specific defects and generic defects (those not the subject of the 2006 Direction to Rectify) he had not made a decision whether to issue a direction to rectify or not to issue a direction to rectify. The reasoning proffered by Mr Johnston, and with which Mr Brain agreed, was that no opinion in relation to those defects had been formed because further inspections and investigations were to be performed and material gathered.
Set out above are a number of examples where Mr Brain gave evidence that he had confined his decision to direct rectification to those items which he himself had inspected as at 9 October 2006.
The evidence of Mr Brain is not so clear cut. During cross-examination by Mr Thomson, on behalf of Stevenson, Mr Brain conceded that in considering whether to issue a direction to rectify defects in the building, he had made a decision not to issue a direction to rectify in relation to certain units because he had not inspected those units himself. This related in particular to units 9 and 12 which formed part of the complaint and supporting reports but which were not part of the 2006 Direction to Rectify.
In further cross-examination, Mr Brain conceded that there were other reasons why the 2006 Direction to Rectify did not address all of the issues in the complaint submitted by Stevenson including the following reasons:
(a)there were copious defects and the purpose of the direction was to bring the type of defect to the attention of the builder;
(b) rectification work was being carried out by the builder;
(c)the Authority did not agree with some of the defects raised in the report relied upon by Stevenson (namely the report prepared by Mr Catchpole in relation to eaves slots in the complex);
(d)the Authority had an undertaking from the builder that he would inspect all the units and undertake work which was necessary;
(e)despite knowledge of the Authority that defects (such as voids in Ritek walls) were widespread, the direction was limited to those inspected.
The threshold question to be determined is whether there has been a determinative decision not to direct rectification in relation to some of the complaints which had been made by Stevenson and which were omitted from the 2006 Direction to Rectify. This involves a consideration as to whether there has been a decision falling into one of the following categories:
(a) a decision not to direct rectification of the omitted items; or
(b)a decision which on a proper interpretation is a “decision” but could not be considered to be one not to direct rectification of the omitted items; or
(c) no decision at all has been made.
The first category is the only one which would bring the decision within the ambit of s 86(1)(e) as a reviewable decision.
As part of this question, one is to consider whether the decision which positively directed rectification of certain items necessarily by exclusion of the remaining items was a decision not to direct rectification of those excluded items.
I accept the evidence of Mr Brain that in the thought process leading to the October 2006 decision, he considered which items of Stevenson’s complaint were to be included in the decision. The process of this consideration was that he would address and include only those items which he had inspected himself. In this process, he determined which items were to form part of the October 2006 decision and which items were to be excluded. He turned his mind to their inclusion or exclusion. He turned his mind to those which would be included in the direction to rectify and those he would not direct to be rectified.
It is interesting to note that in the internal memorandum dated 3 October 2006 there is a specific reference to a defect concerning travel distances from some units not being Code complaint and reference is made to unit 9 as an example. One would have thought that consideration had been given to this defect and its omission from the direction would imply that a decision had been made that the Authority had determined not to direct its rectification for whatever reason.
The special features of a decision, however, being its conclusiveness or finality have to be taken into account rather than the thought or consideration which precedes it.[29]
[29] See Evans v Friemann (1981) 53 FLR 229.
Whilst it is accepted that the decision of the Authority was not determinative of the substance of the complaints made by Stevenson, in that it did not address whether all of the building works the subject of the complaint were defective or not, it is my view that a determination was made by the Authority not to direct rectification of the items which were part of the complaint and which were not included in the 2006 Direction to Rectify. The many reasons for their omission were varied but finalised by the Authority’s representative, Mr Brain, and such a determination was in a final and determinative manner.
Despite there being no determination which states to the effect that the Authority has decided not to direct rectification or words to the effect that the Authority has decided that no rectification work is required, there is a decision which manifested itself from a procedure of thought, consideration and conclusion announced in the 2006 Direction to Rectify.
I have therefore formed the view that the October 2006 decision was a decision not to direct rectification of building works about which there were complaints prior to 9 October 2006 and which were not included in the 2006 Direction to Rectify with the result being that there is a reviewable decision under s 86(1)(e) of the QBSA Act.
If it were the case, however, that there was not a decision not to direct rectification, contrary to my view, the Tribunal still has jurisdiction to review the October 2006 decision and I do not agree that such jurisdiction is limited to a consideration of only the eleven items and specific units contained in the decision.
First, it is open to the Tribunal to consider the October 2006 decision of the Authority in the context of the covering letter attached to the 2006 Direction to Rectify.
Secondly, once a reviewable decision is identified, taking into account what were the live issues at the time of the making of the reviewable decision, the Tribunal is then empowered to consider the same issues and make its own decision on the review.[30]
[30]Secretary, Department of Social Security v Hodgson supra, at 330; Comcare v Burton supra at 527, 528.
Stevenson’s application is an application to review a decision of the Authority. The decision was a decision to direct rectification of certain building works. For that reason alone, it falls within s 86(1)(e) of the QBSA Act. For that reason, it is a reviewable decision for which this Tribunal has jurisdiction.
Whilst it is Stevenson’s contention that the direction was inadequate because it did not refer to other defects, such issues go to the merits of Stevenson’s case rather than to the jurisdiction of this Tribunal.
The jurisdiction of the Tribunal has been triggered by the existence of a decision which is reviewable under the QBSA Act and that jurisdiction is not taken away merely by any assertion that Stevenson may be incorrect in its view that the decision should have included other items. That is the question which is to be determined by the Tribunal in considering the merits of the application and in determining what would have been a correct and preferable decision in relation to the items the subject of the complaint.
The Tribunal’s jurisdiction is not limited to addressing only the items which have been included in the Authority’s decision. If this were the case, it would deprive a person affected by the decision from raising issues which it would be submitted should have been included in the decision-making process in assessing the complaint. This was the original function undertaken by the decision-maker and it is that function which is to be performed by the Tribunal as part of the review process.
As referred to in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1 at 11, once seized of the jurisdiction to review, the obligation on this Tribunal is to address the same questions that were before the primary decision-maker in order to attain a correct or preferable decision having regard to the whole of the evidence before the Tribunal.
Once the Tribunal’s jurisdiction is enlivened, which it is by an application to review a reviewable decision, the Tribunal is empowered to do what the Authority was entrusted to do and consider.
The Authority was entrusted to consider the complaints made by Stevenson prior to the October 2006 decision. In its review jurisdiction, pursuant to s 19 of the QBSA Act, the Tribunal is conferred with all the functions of the Authority and is required to produce a correct and preferable decision.
Such an exercise is not one where the Tribunal is embarking on an exercise of original jurisdiction, for example in determining matters which were not before the original decision-maker, but rather it is attending to a review of the same issues and questions placed before the original decision-maker. It is within the limits of the original matters put before the original decision-maker that the Tribunal’s review jurisdiction is to be exercised.
Was there a Reviewable Decision made on 23 January 2012?
For the purpose of determining whether the alleged decision dated 23 January 2012 is a reviewable decision it is necessary to refer back to the complaint made by Stevenson on 20 October 2011 (“the 20 October 2011 complaint”).
The 20 October 2011 complaint is the starting point for the application process under s 71A of the QBSA Act for a consumer who wants the Authority to consider whether to direct rectification of building work under s 72 of the QBSA Act. The 20 October 2011 complaint relates to each and every defect in the complaint documents which I have set out in paragraph [73].
After the long and protracted history of this matter as evidenced in the chronology and after the issue had arisen regarding the jurisdiction of this Tribunal to consider defects which had become the subject of a joint issues list and which it was alleged were not within the Tribunal’s jurisdiction, Stevenson made a formal complaint to the Authority. The purpose of the complaint was to ensure that each and every defect listed in the documents attached to the 20 October 2011 complaint was considered by the Authority, particularly defects which were alleged to be not part of the October 2006 decision.
The decision which is the subject of the review is specifically said to have manifested by the letter dated 23 January 2012. That letter cannot be read in isolation as it encompasses the reasoning provided by the Authority in its letter dated 18 November 2011. The letter dated 23 January 2012 purports to confirm the proposal of the Authority in its letter dated 18 November 2011 stating that the Authority remained of the view that Stevenson’s complaints could be dealt with in the review proceeding before the Tribunal.[31]
[31]Paras [74] and [77] above set out full content of the relevant parts of the letters dated 18 November 2011 and 23 January 2012.
The thrust of the response of the Authority to the 20 October 2011 complaint was a proposal by the Authority to place the new complaint in abeyance. Whilst the Authority acknowledged that there had been particulars of further items of alleged defective work or incomplete tribunal work delivered by Stevenson since March 2009, there was no attempt to address the issues which formed part of the complaint.
Osborne contends that there is no operative decision evidenced by the letter dated 23 January 2012 which could be the subject of a review proceeding. In this respect, there is no reviewable decision.
Mr Kelly SC submitted that the Authority has never turned its mind to the issues in the complaint and made any decision whether to direct or not to direct rectification of tribunal work. Further, it is submitted that if there is an implied decision not to direct rectification such implication could only manifest itself, if at all, by the Authority’s letter dated 1 September 2009 and therefore any application to review a reviewable decision is well out of time.
Mr Thomson, on behalf of Stevenson, submitted that the letters of the 18 November 2011 and 23 January 2012 must be considered in the context of the background of dealings between the parties, including the following:
(a)5 or 6 years of delay caused in part by the approach taken to the proceedings before the Tribunal by Osborne;
(b)repeated complaints on behalf of Stevenson that a further direction be issued;
(c)express notification by Stevenson to the Authority that on one view the statutory time for the making of a direction was arguably about to expire.
Mr Brain was actively involved after 9 October 2006 in assessing, inspecting, considering and addressing the many additional defects identified by Stevenson to the Authority. Numerous inspections and reports were compiled on behalf of Stevenson and the Authority. Mr Brain attended many meetings and monitored the rectification work being carried out by Osborne.
In relation to the 20 October 2011 complaint, however, Mr Brain’s evidence was that after 20 October 2011 he had not considered the matters the subject of that complaint because he was only working 3 days a week by that stage. Whilst Mr Gary Stick had taken over Mr Brain’s position at the Authority, Mr Brain was not of the opinion that Mr Stick was actively involved as the Authority’s decision-maker.
Mr Brain was not aware of the Authority’s letter dated 23 January 2012 and could add very little assistance in assessing the context in which the letter was sent.
On the evidence before the Tribunal, it seems that the following situation had arisen as at 23 January 2012:
(a)there had been no consideration by the Authority of the complaint submitted by Stevenson on 20 October 2011;
(b)a proposal had been made by the Authority that the 20 October 2011 complaint be put in abeyance;
(c)no direction to rectify building works had been given by the Authority in relation to any of the matters the subject of the 20 October 2011 complaint, other than the 2006 Direction to Rectify;
(d)it was open to interpretation that a decision had not been made not to direct rectification of the matters the subject of the 20 October 2011 complaint, other than those the subject of the October 2006 Decision.
The Authority’s determination was that the 20 October 2011 complaint be put in abeyance. Was this a decision or was there no decision in relation to the 20 October 2011 complaint? If there was no decision, that is the end of the matter. There is nothing to review. If there was a decision, the question is whether it was a reviewable decision.
A view was formed by the Authority that the matters of complaint should be put in abeyance to be dealt with after the Tribunal had determined the matters before it. Whether that view or thought process is regarded as a decision or not need not necessarily be determined by me as on any view it is neither a decision to direct rectification nor is it a decision not to direct rectification.
Having regard to the principles identified in Australian Broadcasting Tribunal v Bond and Evans v Friemann,[32] it is difficult to conclude that a final or substantive determination had been made by the Authority which could be identified as a “decision”. The proposal was a step in the process of consideration of the 20 October 2011 complaint, namely the postponement of a determination. It was no more than the manifestation of a thought process that the complaints could be dealt with, rightly or wrongly, by this Tribunal.
[32] (1990) 170 CLR 321.
The proposal expressed by the Authority’s letter dated 23 January 2011, which was based on the reasoning contained in the Authority’s letter dated 18 November 2011, could not be regarded as either a decision to rectify or a decision not to direct rectification. For that reason, the Authority’s proposal does not fall within the criteria for a reviewable decision under s 86(1)(e) of the QBSA Act.
If, contrary to my interpretation of the letter of the 23 January 2012, a “decision” was made by the Authority, it was not a reviewable decision as contemplated by s 86(1)(e) of the QBSA Act. The view expressed by the Authority in response to the October 2012 complaint did not fall into the category of the type of “decision” identified in s 86(1)(e), namely a decision which was a direction to rectify or a decision which was one not to direct rectification. If it could be classified as a “decision” at all, it was a decision that the complaints be put in abeyance.
The long and complex history of this matter is somewhat disturbing. Whilst it is appreciated that numerous inspections and monitoring of defects and rectification work plays a big part in assessing the alleged defects in a building complex, the Authority is armed with the expertise and resources to inspect, assess, consider and report on the state of building works at the request of a person affected.
The complaints regarding the building work at Deep Blue Apartments concerned category 1 defects which the Authority considers require attention. The correspondence in the matter highlights the ongoing concerns by Stevenson regarding serious defects and multiple examples of those defects.
Both the path taken by the parties and the course taken by the Tribunal have not been confined to the issues the subject of the review proceedings. It would seem that issues other than those specifically the subject of the October 2006 decision, which is the reviewable decision, have entered the forum of the Tribunal. The reason for this may have been to attempt to resolve the matters in issue between the parties but such issues were outside the scope of the review proceedings.
The Authority’s reluctance to respond to requests from Stevenson to issue a direction to rectify defects which became apparent after October 2006 or to decide that it would not direct rectification has been the cause of concern for both parties, particularly Stevenson. In order to resolve any uncertainties and obviate the likelihood of further applications regarding past possible reviewable decisions, consideration should be given to addressing the 20 October 2011 complaint, particularly in relation to matters which have become relevant since 9 October 2006, so that a decision in relation to all the defects in Deep Blue Apartments is reached. This may necessarily also involve a consideration by the Authority whether an application under s 72(8) of the QBSA Act is required.
The Joint Issues List
Taking into account my determination that Stevenson’s first review application is within the jurisdiction of the Tribunal it is necessary to consider the present state of the joint issues list.
The suggestion that a joint issues list be produced as a consolidated document identifying works which had been rectified and completed and works outstanding seems to have occurred at a directions hearing on 12 March 2008, if not before. As set out in the chronology above, in the eighteen months beforehand there had been extensive correspondence, reports, inspections and debate about the defective building work.
The joint issues list was not a document upon which Stevenson relied initially in its first review application. It transpired in the context of the review proceeding and seems to have evolved as a result of the on-going meetings and discussions between the parties and directions hearings before the Tribunal.
For this reason, the document is not ideally relevant to Stevenson’s first review application but is helpful in assessing the stage of rectification works for the entire building and the issues which remain in dispute.
Having concluded that the October 2006 decision is a reviewable decision, it is necessary to address whether all of the items in the joint issues list are proper particulars in support of the application to review that decision.
Mr Brain’s evidence in his affidavit dated 11 May 2012 was that he had made no decision to direct or not to direct rectification of the items described at paragraphs 1.1-27.19 and 39.1-42.6 of the joint issues list.
It was conceded by Mr Brain in cross-examination that there were some anomalies in the document regarding whether items were “new” items and thus were capable of being the subject of the 2006 Direction to Rectify. In this respect, Mr Brain conceded that the items in paragraphs 16.16 and 26.2 were items raised before the October 2006 decision and were therefore not “new” items. No evidence was provided of any other items which fell into this category.
The only items in the joint issues list which Osborne has conceded were matters to be dealt with by the builder and were thus possibly relevant to the 2006 Direction to Rectify, at least in part, were contained in some items in paragraphs 28.1 to 38.1.
Other errors in the joint issues list were identified regarding the identification of defects which were marked in the column “BSA’s Position” as items which have been dealt with in items in the Direction to Rectify. Examples of these errors were identified in particular in items in paragraphs 1.1 to 27.5 of the joint issues list.
Throughout the entire document there are items which the Authority alleges fall within the following categories:
(a) “new” items which could not form part of a reviewable decision;
(b)items marked “DTR” which were not relevant at the time of the October 2006 Decision and therefore could not form part of a reviewable decision;
(c)items which cannot be classified as building work and therefore could not form part of a reviewable decision.
I have not been asked to carry out the exercise of assessing each and every item in the joint issues list. It is accepted however that there are a number of items falling into the categories above which, if the assertions are correct, should not be included in the joint issues list as they are not items which could fall within the scope of a reviewable decision pursuant to s 86(1)(e) of the QBSA Act.
Given the errors in the joint issues list, it is necessary that the joint issues list be revisited and that Stevenson submit an amended document which addresses only those defects which were live issues before the Authority prior to 9 October 2006 which were capable of consideration by the Authority in making the October 2006 decision.
Leave will be granted to Stevenson to submit amended particulars which identify the works which it asserts should have been included in the October 2006 decision arising from the complaints submitted to the Authority on 26 May 2006.
Further Decisions
The review proceedings before the Tribunal relate specifically to two alleged decisions of the Authority:
(a) the October 2006 decision; and
(b) the 23 January 2012 decision.
The application to strike out the review proceedings before the Tribunal is therefore confined to those two decisions. There is no application to strike out any other review proceedings. There are no other review proceedings commenced by Stevenson.
In this strike out application, the Tribunal has not been asked to consider or determine whether any reviewable decisions other than those on 9 October 2006 and 23 January 2012 have been made and are properly the subject of review proceedings and thus capable of being the subject of any strike out application. The jurisdiction of the Tribunal is confined to the review proceedings commenced by way of application under ss 86 and 87 of the QBSA Act. That being the case, it is not for the Tribunal to review other decisions or to determine whether other decisions, not presently the subject of a review proceeding, have been made.
Submissions were made by Mr Thomson, on behalf of Stevenson, that it was open to the Tribunal to review other decisions of the Authority, such as the alleged decision not to issue a direction to rectify in the Authority’s letter dated 1 March 2007. It was submitted that the letter of 1 March 2007 was not only confirmatory of the October 2006 decision not to direct rectification but may also be determined as being a decision to that effect on its own. Other possible decisions were raised in submissions such as the letters from the Authority to Stevenson’s solicitors after 9 October 2006 including the letter dated 14 February 2007.
The reasoning behind this submission is the relief sought by Stevenson in the affidavit of Mr Peter Stevenson sworn 7 March 2007 in support of Stevenson’s first review application:
“64. In the Review Application, Stevenson Group seeks that the Tribunal review the Direction and decisions conveyed by the Authority is (sic) issuing the Direction including:
(a)The decision not to issue a direction to Brian Osborne:
i)Referring to the entire Apartment Building (i.e. all of the units and other areas of the Apartment Building);
ii)Referring to the defects in units 9 and 12, the ground floor area and the basement of the Apartment Building;
iii)Addressing the distinction between “deemed to satisfy’ solutions and potential “alternative’ building solutions, as contemplated by the fire protection provisions of the Building Code of Australia and the Standard Building Regulation and the manner in which proper approval for such “alternative’ solutions is to be obtained;
iv)Addressing all of the defects identified by Mark Catchpole in his report dated 4 October 2006 (Exhibit PGS10);
v)Addressing all of the defects identified and detailed by Mark Catchpole in his report dated November 2006 titled “alleged Defective Building Works Compliance Assessment Report, Revision 2.2 (a copy of which is exhibited to this affidavit as Exhibit PGS15);
(b)The decision not to enlarge the Direction; and
(c)The decision not to issue a further direction to Brian Osborne regarding the additional defects listed in the letter sent by Moray & Agnew Solicitors to Ian Jennings of the Authority dated 10 November 2006 (Exhibit PGS22).”
Whilst the relief sought appears to be directed to other decisions,[33] that is a review of decisions other than the October 2006 decision, those “decisions” are not identified in Stevenson’s first review application. Further, there is an inconsistency in the relief sought in that it refers to a “review of the Direction and decisions conveyed by the Authority in issuing the Direction” and yet it purports to encompass decisions made after the issue of the 2006 Direction to Rectify. The only direction issued at the time of Stevenson’s first review application was that dated 9 October 2006. Without amendment to Stevenson’s first review application, the only decision which is the subject of the first review application is the October 2006 decision.
[33]This submission is made by virtue of the relief sought in para 64(b) and (c) of the affidavit of Peter Stevenson dated 7 March 2007.
The existence of other possible reviewable decisions which form part of Stevenson’s first review application has been raised on behalf of Stevenson in submissions and in evidence provided by Mr Brain to that effect.[34] Those decisions are not presently the subject of review proceedings nor the subject of the present strike out application.
[34] T: P45 L18-P48 L10.
In appropriate circumstances, an application may be made by either party to review another reviewable decision of the Authority and, if necessary, seek an extension of time for the commencement of that review proceeding. Further, upon application by either party, it is open to the Tribunal to consider an application to amend an existing review application to include alternative decisions taking into the account the same considerations regarding time limitations and other relevant matters. The Tribunal does not have jurisdiction however, to unilaterally review a reviewable decision without proceedings having been commenced for that purpose or without amendment of present proceedings being sought and granted.
Conclusion
Based on the matters considered above, the following conclusions should form the basis of formal orders:
(a) the application to strike out review proceedings QR028-07 in its entirety is dismissed on the basis that it seeks to review the October 2006 decision which is a reviewable decision;
(b) the items in the joint issues list which are not relevant to the matters raised by Stevenson for consideration by the Authority prior to 9 October 2006 should be struck out and Stevenson be granted leave to deliver an amended points of claim which addresses the matters which should be the subject of the review proceedings;
(c) the application to strike out review proceedings GAR036-12 should be allowed on the basis that it does not seek the review of a reviewable decision.
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