Whalley v Queensland Building and Construction Commission

In the case of Whalley v Queensland Building and Construction Commission, the appellant, Mr. Whalley, contested the decision of the Queensland Building and Construction Commission (QBCC) that work under Direction to Rectify and/or Complete No 40913 had not been satisfactorily rectified. This decision was subsequently followed by the issuance of Direction to Rectify and/or Complete No 42267 on 5 April 2016. Mr. Whalley sought a judicial review of the QBCC's decision to conduct an internal review of the same issues, questioning whether a second internal review was permissible, whether the application for internal review could be made orally, whether it was appropriate for an officer involved in the first internal review to conduct the second review, and whether the internal review was conducted fairly.

The court was tasked with determining the legality and fairness of the QBCC's internal review process, particularly in light of the issues already considered in a prior review. The court had to assess whether a second internal review could lawfully address the same issues as a previous review, if an application for such a review could be made orally, and if the involvement of the same officer in both reviews affected the fairness of the process. The court also had to consider whether the internal review was conducted in a manner that adhered to principles of natural justice and procedural fairness.

The court found that the QBCC's decision to conduct a second internal review on the same issues as a previous review was not permissible under the applicable legislation. The court held that the application for internal review could not be made orally, as the legislation required written applications. Furthermore, the court determined that it was inappropriate for the same officer to conduct both reviews due to the potential for bias. Finally, the court concluded that the internal review was not conducted fairly due to these issues, and therefore set aside the QBCC's decisions.

The court's orders included setting aside the QBCC's decision that work under Direction to Rectify and/or Complete No 40913 had not been satisfactorily rectified, as well as the Direction to Rectify and/or Complete No 42267 issued on 5 April 2016. Additionally, the court allowed for the possibility of an application for costs consequent upon the decision, to be made by either party by filing a Miscellaneous Application with supporting submissions, if desired.