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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Paul Wayne Townsend v Queensland Building and Construction Commission  QCAT 239
paul wayne townsend t/as mrt’s handymans & landscapes
queensland building and construction commission
Occupational regulation matters
19 August 2019
30 January 2019
31 July 2019
PROFESSION AND TRADES – BUILDERS, LICENCES AND REGISTRATION – WHERE unlicensed builder built defective block wall – WHERE direction to rectify issued – WHERE wall remediated by a third party – WHERE no defects for builder to rectify – WHERE builder reviews direction – WHERE question arose as to what point in time the review should be based - before or after remediation by third party – WHETHER review should proceed under QBCC Act or QCAT Act
Acts Interpretation Act 1954 (Qld): s14
Queensland Building and Construction Commission Act 1991 (Qld): s 72, s 86
Queensland Civil and Administrative Tribunal Act 2009 (Qld): s 20, s 24, s 28
Queensland Building and Construction Regulation 2018: Sched 1, Sched 2
Davis & Santelli v The Body Corporate Westminster House Clayfield  QCATA 132
Freeman v Secretary, Department of Social Security (1989) 87 ALR 506
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
APPEARANCES & REPRESENTATION:
N Glen, In house lawyer for the Queensland Building and Construction Commission
REASONS FOR DECISION
- On 26 April 2018, the Queensland Building and Construction Commission issued Mr Paul Wayne Townsend, an unlicensed building contractor, with a written direction to rectify certain building work under section 72(2)(a) of the Queensland Building and Construction Commission Act 1991 (the “QBCC Act"). The work was a block retaining wall on a house site.
- The defective work has been completely remediated by a third party who now has responsibility for the ongoing work under the QBCC Act, not Mr Townsend. There is no work to be remediated by Mr Townsend.
- On 16 May 2018, Mr Townsend filed a review of the decision to issue the direction to rectify.
- The purpose of the review is to produce the correct and preferable decision. The review is determined by way of a fresh hearing on the merits.
- At the first day of hearing of this review application on 30 January 2019, the Tribunal posed the following question and sought submissions from both parties as to the direction the Tribunal should take:
“In circumstances where a direction to rectify has been issued by the Queensland Building and Construction Commission (QBCC) and the alleged defective work has since been completely remediated by a third party, in a hearing under section 20 of the Queensland Civil and Administrative Tribunal Act 2009, is the Tribunal required to determine what was the correct or preferable decision when the QBCC made its decision, or is the Tribunal required to determine the correct or preferable decision as at the time of its own decision.”
- Only the Commission made submissions.
- The Commission submitted another way of stating the question, with a particular focus on the Tribunal's fact-finding function, is this - whether, in conducting the de novo merits review provided for by the legislation, the Tribunal:
- (a)is limited to considering the facts and circumstances existing at the time of the QBCC's decision to issue the direction to rectify; or
- (b)must have regard to the state of affairs existing at the time that the Tribunal makes its decision in the review proceedings.
- The Commission refers to the first approach as being "temporally fixed" or "temporally restricted", and the second approach as being "temporally fluid" or "temporally unrestricted".
- The Commission’s overall submission is that on balance, the preferable view is that the Tribunal is not obliged to take a temporally restricted approach in the review proceedings. It should have regard to any relevant facts and circumstances as they exist at the date of the Tribunal's decision in the review proceedings. The temporally fluid approach is the correct one.
- The contrary conclusion, put by the Commission as at least arguable in its role as model litigant, is that the Tribunal is obliged to take a temporally restricted approach to these review proceedings. For the assistance of the Tribunal, the Commission also considered this contrary conclusion in submissions.
- The wider submissions of the Commission are as follows.
- The modern approach to statutory interpretation necessitates consideration of context, purpose, policy, consistency and fairness. While the text is central to the task of interpretation, close textual analysis may not always be a reliable guide to meaning, particularly if it runs counter to the overall context and purpose of the provision. Section 14A(1) of the Acts Interpretation Act 1954 (Qld) mandates a purposive approach to statutory interpretation saying that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred.
- The objects of the QBCC Act include "the maintenance of proper standards" in the building industry, achievement of "a reasonable balance between the interests of building contractors and consumers", and the provision of "remedies for defective building work". This is suggestive of a "consumer protection" focus but with due regard to the interests of building contractors.
- The choice between temporally restricted and temporally fluid approaches to merits review proceedings was authoritatively analysed by the High Court in Shi v Migration Agents Registration Authority,a decision in the Administrative Appeals Tribunal where de novo merits review is conducted so as to produce the correct or preferable decision with powers on review similar to those in the QCAT Act.
- The central issue in Shi was whether the AAT was obliged to adopt a temporally restricted approach in reviewing a decision of the Migration Agents Registration Authority.
- The High Court concluded that a temporally fluid approach was appropriate, requiring attention to be given to the state of affairs existing at the time of the AAT's decision.
- Shi may be contrasted with other cases in which it has been held that a temporally restricted approach was necessary because of the difference in the particular nature of the decision in question.
- In Freeman v Secretary, Department of Social Security, Davies J took the view that a decision cancelling a widow's pension from a particular date was temporally limited, and that the AAT had no jurisdiction to consider changes in circumstances after that date. The Court contrasted the case of cancellation of a pension with a refusal of a fresh application for a pension; the latter case would likely justify a temporally fluid approach, as the fresh application could be tested at the date of ultimate consideration.
- In Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services the issue before the Full Federal Court was whether a change to the constitution of a hospital benefit fund imposed an unreasonable or inequitable condition. The Court held that the subject matter of the provision was "... change, a concept related to a time, whether precise or approximate", so that a temporally limited approach was required of the AAT.
Nature of merits review in QCAT
- The Commission submits that merits review in QCAT shares with the AAT the same features that led to the conclusion in Shi that a temporally fluid approach was generally warranted. One of the purposes of merits review in QCAT is to promote good decision-making by those who make reviewable decisions. Merits review in QCAT involves a fresh hearing directed to producing the correct or preferable decision and the reference to the "preferable" decision indicates an emphasis on discretionary considerations, balanced by the requirements of good government.
- The creation of statutory merits review of the type enacted by the QCAT Act indicates a legislative intention to promote decision-making that is not hampered by technicalities, such as those arising from the "prerogative" remedies used in judicial review.
Section 72 QBCC Act
- The discretionary power to give a direction to rectify defective or incomplete work is enlivened in sub-section 72(2)(a) upon the formation of the opinion provided for in sub-section 72(1)(a).
- Section 86(1)(e) of the QBCC Act relevantly allows review of "a decision to give a direction to rectify". Sub-section 72(2)(a) empowers the QBCC to act upon such a decision.
- The Commission may direct the person who carried out defective or incomplete building work to rectify the building work within a stated period.
- The Commission submits central aspects of section 72 are expressed in the present tense. Section 72(2)(a) allows a decision to direct rectification "for building work that is defective or incomplete". The provisions about formation of the requisite opinion in sub-section 72(1)(a) are also expressed in the present tense ("building work is defective or incomplete", "the commission is of the opinion ...").
- The expression of these concepts in the present tense is not necessarily indicative of temporal limitation in review proceeding but it is not illogical to construe provisions expressed in the present tense as being temporally fluid in which the Tribunal is empowered to exercise the discretion afresh.
- The circumstances described in sub-sections 72(1)(a) and 72(2)(a) can be altered by supervening events, a consideration emphasised in Shi. Even if the central provisions of section 72 do not of themselves indicate temporal fluidity, neither do they undoubtedly compel a conclusion of temporal restriction. They do not expressly impose such a limitation.
Artificiality of a temporally restricted approach
- The Commission further submits that if Tribunal reviews of decisions made for the purpose of section 72(2)(a) of the QBCC Act were temporally restricted, this would impose a degree of artificiality on the decision-making process. This artificiality remarked upon in Shi, stemmed from the requirement to ignore facts or events occurring after the date of the original decision. The quality of decision-making (particularly discretionary decision-making) may be enhanced if all relevant facts down to the date of hearing are available for consideration, for example, a defective property being entirely destroyed by fire in the period between the original decision and the hearing.
- Another example of artificiality under the temporally restricted approach raised by the Commission in submissions arises from the ability to take into account subsequent facts, but only as they directly bear on the facts as they existed at the time of the original decision. Thus, for example, in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services, the Court found that it was permissible to take account of predictable medical developments considered as at the date of the original decision, but not actual developments after that date.
- The decisions in Freeman and Hospital Benefit Fund of Western Australia Inc mentioned above are distinguishable from the present case. In each of those cases, the wording of the operative provision gave some relatively clear indication of temporal restriction.
Factors favouring temporal restriction
- Although the QBCC submits that on balance the temporally fluid approach is preferable, the submissions also go to the contrary conclusion as potentially arguable.
- In exercising its responsibilities as a model litigant, the Commission also canvasses this alternative under sub-sections 72(1)(a) and 72(2)(a) of the QBCC Act. These are:
- The use of the present tense in sub-sections 72(1)(a) (concerning the state of the works and the formation of the requisite opinion by the QBCC) and 72(2)(a) (concerning the direction itself); and
- The enactment in sub-sections 72(2)(a) and 72(4) of a time period for compliance with a direction to rectify, which is ordinarily to be no less than 28 days;
- it could be argued that a direction to rectify issued pursuant a decision which is reviewable under section 86(1)(e) is "anchored" to a specific point in time.
- Section 86(1)(f) of the QBCC Act allows review in the Tribunal of "a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard". The identification of a discrete and express source of power for such a decision in the QBCC Act is not clear-cut, but could to be implied from section 86(1)(f) itself.
- It could be argued that the ability to review a separate decision about whether directed work has been performed satisfactorily renders unnecessary a temporally fluid approach to the decision to issue the direction itself. That is, the ability to consider whether the rectification work has been done satisfactorily is a sufficient recognition of relevant facts arising after the original (and separate) decision to issue the direction. On this logic, it is unnecessary in a review of a decision to issue a direction to rectify, to take into account post-decision facts.
- Section 72(2)(b) of the QBCC Act confers a separate power, apart from the power to direct rectification of defective or incomplete work, to direct remediation of "consequential damage" as defined. To do so, the Commission must form the precursor opinion referred to in section 72(1)(b).
- The statute describes that precursor opinion in language that includes the use of the past tense: "is of the opinion that...consequential damage has been caused by, or as a consequence of, carrying out building work".
- It could be argued that the use of past tense in relation to directions to remedy consequential damage is indicative of temporal restriction or that if there is temporal restriction in relation to reviews of decisions to direct remediation of consequential damage (section 72(2)(b)), it would be illogical if such a restriction did not apply also to reviews of decisions to issue directions to rectify defective or incomplete work (section 72(2)(a)).
- Against this argument is a consideration that the provisions in relation to defective or incomplete work on the one hand and consequential damage on the other hand are expressed in different terms, and there is nothing in section 72 that expressly mandates the conclusion that the same approach should be applied in respect of both.
- On balance, The Commission submits the preferable view is that the Tribunal should adopt a temporally fluid approach in the review proceedings. It should have regard to any relevant facts and circumstances as they exist on the date of the Tribunal's decision in the review proceedings.
- At the hearing on the second day of these proceedings, Mr Townsend also submitted that the correct approach was a decision on the facts existing on the day of the hearing.
- The use of the word "may" in section 72(2) is indicative of discretion. In exercising this discretion the QBCC "may take into consideration all the circumstances it considers are reasonably "relevant." The Commission "is not required" to give a direction if it is satisfied "that, in the circumstances, it would be unfair" to the person the subject of the proposed direction to do so.
- This is indicative of a broad discretion concerning directions to rectify, conditioned by fairness. Arguably, the proper exercise of such a discretion is unlikely to be aided by a temporally restricted approach.
- The comprehensive submissions of the Commission as model litigant have greatly assisted the Tribunal.
- Mr Townsend seeks to have a direction to rectify overturned in circumstances where there is now nothing to rectify by him, as another contractor has completed the works.
- The purpose of this review is to produce the correct and preferable decision determined by way of a fresh hearing on the merits. This is a straightforward statement.
- However the question that arose was what facts should be taken into account by this Tribunal in exercising its discretion. Mr Townsend submitted the intervening remediation of the wall was not a matter to be considered as he wanted the original direction to be overturned.
- Therefore at what point should the facts be considered? Then or now?
- A simple question with (as is seen above) has a complicated answer.
- The couching of Section 72 in the present tense supports the present consideration of the facts and the de novo decision. In this hearing the Tribunal stands in the shoes of the Commission to make the decision again. Unlike some prescriptive legislative requirements of some Acts that require the making of the decision at the time of the original decision and on the information available to that decision maker, this legislation invokes no such injunction.
- The first rule of statutory interpretation is to simply read the words for their plain meaning. Using this approach and taking into account the submissions of the Commission and Mr Townsend’s own view, I am satisfied the correct time to consider the matter afresh is when the Tribunal makes the decision, based on all of the current circumstances in other words, the temporally fluid approach.
- I accept the temporally fluid approach as described by the Commission is correct. The circumstances and facts as at the date of hearing are the matters to be taken into account when the discretion under section 20 of the QCAT Act is exercised. This is the plain reading of the words of section 20. It is also the interpretation supported by the case law as submitted by the Commission.
- Proceeding otherwise would not take into account the objects of the QCAT Act as set out in section 3 of that Act.
- The question then remains is how Mr Townsend’s review application should be dealt with. At the time of the issue of the notice to Mr Townsend, the Commission was of the view that there were defects to be rectified.
- Both parties agree on the following facts which are also accepted by this Tribunal for the purposes of this matter:
- (a)The block wall the subject of the Direction to Rectify has been remediated by a third party;
- (b)The third party work has overtaken the need for Mr Townsend to comply with the Direction to Rectify.
- Mr Townsend told the Tribunal that the reason he applied for a review was that he was unhappy with the finding that his work was defective.
- Mr Townsend is an unlicensed builder. Apart from the publication of these reasons, the existence of this direction to rectify makes no difference to his public persona. He is not registered on the Commission’s website and he informed the Tribunal at the hearing that he does not need to be registered as he now only performs work the cost of which is under the amount that is the statutory limit, therefore he is excluded from the definition of building work under the QBCC Act.
- Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) sets out the function of this tribunal on review. The Tribunal may confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return the matter for reconsideration to the decision maker with directions if appropriate.
- The Tribunal may also dismiss an application where it is satisfied that it is misconceived or lacks substance in accordance with s 47 of the QCAT Act.
- The use of section 47 of the QCAT Act to dispose of a matter has precedent in this Tribunal. In Davis & Santelli v The Body Corporate Westminster House Clayfield the Appeal Tribunal dismissed an appeal as it was found to be vexatious or without substance after the applicant lot owners in a body corporate sold the lot and consequently lost standing in the appeal.
- Both parties were asked to give their view on either the application of the s 72 process of the QBCC Act or whether the Tribunal should dismiss his review application on the basis that it is misconceived or now lacks substance.
- The notice to rectify was issued against Mr Townsend at a time in the past when remediation was required. This has now been completed by another contractor and the responsibility for this remediation work does not fall upon Mr Townsend.
- If the matter is dismissed under the QCAT Act, the direction to rectify will stand. If the section 72 process is undertaken, there is a probability that the currently issued direction is not confirmed.
- Mr Townsend just wants the direction removed.
- The Commission submits that the s 72 process is the correct way forward but submits that the direction should not be vacated as it submits that the work was defective and should be recognized as such. Using the s 72 process may not produce this outcome. A dismissal under s 47 would.
Section 72 QBCC Act
- Prior to the Commission determining to issue a direction under section 72 of the QBCC Act, the Commission and therefore this Tribunal, must consider the following:
- Both parties agree and this Tribunal accepts that the block wall is building work as defined. The cost, Mr Townsend accepts, was over the statutory amount for building work and both parties agree, and this Tribunal accepts, that it otherwise satisfies the definition of building work being a “fixed structure”.
- Mr Townsend submits the block wall was not defective. He says that other party’s interventions (e.g. the home owners) contributed to its failure, not his workmanship. He points to another wall built exactly the same way that has not failed.
- Mr Townsend accepts he did not build the wall to the specifications of the manufacturer of the product when the wall exceeded 800 millimetres. He says he followed the advice of the supplier instead.
- The Commission submits that standing or fallen, the wall’s construction was defective. The height of the wall exceeded the height specified by the manufacturer of the blocks. The material used to infill the wall did not accord with the manufacturers specifications, and the wall was not reinforced or constructed using “no fines concrete” as required by the manufacturers specifications in circumstances where the height of the wall exceeded 800 millimetres.
- I accept this submission and am satisfied on the evidence that the block wall did not conform to the manufacturer’s specifications and that contributed to the failure of the wall in a material way. I am satisfied the building work was defective as originally built by Mr Townsend.
- Is it is appropriate, in all the circumstances, for this Tribunal to exercise the discretion to issue a direction to Mr Townsend?
- There may be no utility in remaking the decision. There is nothing for Mr Townsend to remedy. It is a direction that can never be complied with. Mr Townsend no longer has responsibility for the block wall.
- A decision to decline to exercise the discretion to confirm the direction would set aside the earlier decision under the s 72 process.
Section 47 QCAT Act
- For the same reasons explained above for not issuing a direction to rectify, I am satisfied Mr Townsend’s review application is also without substance and pursuant to s 47(1)(b) of the QCAT Act, I could dismiss the review application.
Which outcome then?
- Both sections present appropriate ways to finalize this review application. However each potentially produces a completely different outcome.
- That the work has been remediated does not inevitably compel the conclusion that the decision to issue the direction to rectify ought to be set aside. The discretion under section 72(2)(a) is exercised according to the facts of each case. It is open to the Tribunal to confirm a decision to issue a direction to rectify, notwithstanding that the work has since been rectified.
- At the hearing of this matter the Commission urged me to use the provisions of the QBCC Act, even though the outcome may not be as submitted by them.
- On balance, I accept that there is no real reason why the s 72 process should not be the applied law. The QBCC Act covers the issue. The QCAT Act, while also applicable is the Tribunal Act, is not the Industry Act and on general principles, the more specific Act should prevail.
- Should the outcome be that Mr Townsend’s reputation as a builder go forward without a recorded blemish, just because the remediation has occurred and responsibility is no longer his for defective workmanship?
- On balance, I do not believe this is a fair outcome. What is fair in the circumstances is to record that on this occasion, Mr Townsend’s work was defective, even though a direction to rectify is of no effect.
- I am satisfied it is appropriate to exercise my discretion in these circumstances to confirm the decision of the Commission made on 26 April 2018, to issue a direction to Paul Wayne Townsend to cause the rectification of building work.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381, paragraph  per McHugh, Gummow, Kirby and Hayne JJ
QBCC Act: s 3
(2008) 235 CLR 286
(1989) 87 ALR 506
Ibid at p509
(1992) 111 ALR 1
Ibid at pps 4 and 11
QCAT Act: s 3(d)
Shi at pps 296-297 per Kirby J.
QCAT Act: s 28(3)(e)
Ibid s 28(2).
Shi at 302, paragraph 
Shi at pps 299-300 paragraphs -
(1992) 111 ALR 1 at 11
See also McNab Constructions Australia Pty Ltd v Queensland Building Services Authority  QDC 131 at  a decision to issue a direction to rectify under section 72 as it then stood, the former Commercial and Consumer Tribunal considered the facts de novo.
Compare the differing approaches arising in relation to various sub-sections of section 303 of the Migration Act 1958 (Cth) in Shi at 329 paragraph 
See for example, Liquor Act 1992 (Qld): s33 and Gaming Machine Act 1991 (Qld): s 31
Queensland Building and Construction Regulation 2018: Sched 1 and Sched 2
 QCATA 132
Glen Williams Pty Ltd v QBSA  QCAT 127 at .
QBCC Act: shed 2
Statement of Reasons, Page 79.
- Published Case Name:
Paul Wayne Townsend v Queensland Building and Construction Commission
- Shortened Case Name:
Paul Wayne Townsend v Queensland Building and Construction Commission
 QCAT 239
19 Aug 2019