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  • Unreported Judgment

Murphy v Queensland Building and Construction Commission

 

[2020] QCAT 255

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Murphy v Queensland Building and Construction Commission [2020] QCAT 255

PARTIES:

brett leslie murphy

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR250-16
GAR009-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

23 June 2020

HEARING DATES:

13 September 2018

14 September 2018

14 May 2019

HEARD AT:

Rockhampton

DECISION OF:

Member Quinlivan

ORDERS:

  1. The decision of the Queensland Building and Construction Commission dated 13 December 2016 that “the contractor [Jie Wood had] attended to the items listed in [Direction to Rectify number 0101003]”, is confirmed.
  2. The decision of the Queensland Building and Construction Commission dated 19 September 2016, not to issue a direction to rectify to Ross Kevin Wood is confirmed.

CATCHWORDS:

BUILDING DISPUTE – DIRECTIONS TO RECTIFY – where applicant claimed Tribunal lacked jurisdiction to hear review application – whether decision to withdraw direction to rectify constituted a reviewable decision – where applicant has misconceived the role of the respondent to issue direction to rectify – where applicant has misconceived role of Tribunal to determine application – expert conclave

Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 72, s 72A, s 73, s 86(1)(e), s 86(1)(f), s 87

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

Body Corporate for Parkwood Villas Community Titles Sc heme 25893 v Queensland Building and Construction Commission [2015] QCAT 59

Dew v Queensland Building Services Authority [2010] QCAT 687

Laidlaw v Queensland Building Services Authority [2010] QCAT 70

Queensland Building and Construction Commission v Russell [2015] QCATA 57

Queensland Building and Construction Commission v Whalley [2018] QCATA 38

Murphy v Queensland Building and Construction Commission [2017] QCAT 164

Murphy v Queensland Building and Construction Commission [2017] QCAT 344

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Mr McNulty, Inhouse Lawyer, Queensland Building and Construction Commission and Mr Michael Stretton, Solicitor, Holding Redlich

REASONS FOR DECISION

  1. [1]
    These are the Reasons for decision in matters GAR 250-16 and GAR 009-17.
  2. [2]
    On 6 October 2016, Brett Leslie Murphy filed an Application to Review a Decision (GAR250-16) seeking the following:
    1. (a)
      A speedy hearing;
    2. (b)
      Reinstatement of Decision 1 – Direction to Rectify no. 0100883;
    3. (c)
      Immediate costs;
    4. (d)
      Damages – calculated when ascertainable.
  3. [3]
    On 10 January 2017 Mr. Murphy filed a further Application to Review a Decision (GAR009-17) seeking:

A direction for payment of an amount to rectify the work: Home Warranty Insurance Scheme.

  1. [4]
    On 13 March 2017 the QBCC made an interlocutory application to the Tribunal to have the application to review (GAR250-16) dismissed on the basis that the Tribunal does not have jurisdiction to review the application.
  2. [5]
    On 26 May 2017, the Tribunal ordered that:

The Queensland Building and Construction Commission’s Application to dismiss under section 47 of the Queensland Civil and Administrative Tribunal Act is dismissed.

  1. [6]
    The learned Member found that:

Mr. Murphy made a complaint about the building work of Ross Kevin Wood and ultimately the Commission has determined not to issue a direction to rectify to Mr. Wood. The Commission has done so by making the direction and then withdrawing it. I agree with Mr. Murphy that this constitutes a decision not to issue a Direction to Rectify. In which case it constitutes a reviewable decision in accordance with s 86 of the QBCC Act and should have been treated as such by the Commission.

The Tribunal therefore has jurisdiction to hear the application for review and the application for dismissal must be dismissed.

  1. [7]
    The Applicant then filed an Application for Miscellaneous Matters on 22 June 2017 seeking the following Directions:
    1. (a)
      Transfer of part of proceeding concerning jurisdiction error to Supreme Court – s 52 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) (or referral to the President, s 117 QCAT Act).
    2. (b)
      Section 62 QCAT Act – annulment of experts’ conclave and direction to parties to determine (between themselves) the questions of fact and law to be determined by the Tribunal; or
    3. (c)
      Section 62 QCAT Act – direction to parties to determine (between themselves) the questions of fact and law to be determined by the tribunal and extension of two weeks to submit expert evidence.
  2. [8]
    On 13 October 2017[1] the Acting Senior Member made the following findings:
    1. (a)
      No question of jurisdictional error therefore arises in this matter.[2]
    2. (b)
      The making of an initial decision as to a fact is an integral part of the usual process of review. No issue of fact has been raised that relates to the jurisdiction of the Tribunal to hear this proceeding. No question of an error as to jurisdictional fact therefore arises.[3]
    3. (c)
      There is no current question of complex law, or question of jurisdictional error, that cannot be dealt with in the normal process of review by the Tribunal, and which requires transfer to the President.[4]
    4. (d)
      There is similarly no part of the proceeding which cannot be dealt with satisfactorily by the Tribunal in the normal process of review, and which would be dealt with more appropriately by the Supreme Court.[5]
  3. [9]
    The Acting Senior Member further observed:

The holding of an expert’s conclave is a standard and mandatory step in the Tribunal, which is required in proceedings of this type. The holding of an expert’s conclave is provided for by QCAT Practice Direction 4 of 2009. Clause 5 of the practice direction provides as follows:

“All experts engaged for a hearing must attend a conclave convened by a member, adjudicator or the principal registrar. The purpose of the conclave is to identify and clarify areas of agreement and disagreement amongst the experts on any issue in dispute, and the reasons for any disagreement.”

The homeowner has not established any reason why, if he proposes to call expert evidence, the usual procedure of the Tribunal should not be followed.

There being no valid basis to refer the matter the matter [sic] to the President or the Supreme Court, or to deviate from the usual procedure as to the holding of an expert’s conclave…[6]

  1. [10]
    The Acting Senior Member ordered that the Application for miscellaneous matters filed 22 June 2017 by Brett Leslie Murphy be dismissed.
  2. [11]
    On 19 February 2018 an Expert Conclave took place involving Mr. Geoff Millar, the engineer for the Applicant and Mr. Donald Stanfield, the engineer for the QBCC. The engineers agreed that foundation remedial works in the form of a “stiffened raft slab and re-grading of the site to improve drainage” would be appropriate and should be implemented as a matter of priority.
  3. [12]
    On 3 May 2018, the Tribunal directed that applications GAR250-16 and GAR 009-17 be listed for a two-day hearing that was initially conducted 13 and 14 September 2018.
  4. [13]
    During the course of the proceedings the Applicant acknowledged that he is admitted as a solicitor but that he is not currently practising as a solicitor.

What materials do the parties rely on?

  1. [14]
    At the commencement of the hearing the Applicant chose not to rely on any written evidence and he did not give any oral evidence in relation to either matter GAR250-16 or GAR009-17. He did not call any witnesses.
  2. [15]
    The QBCC sought to rely on the following material:

Proceeding GAR250-16:

  1. (a)
    Statement of Reasons of Gene Spann dated 14 February 2017;

Proceeding GAR009-17:

  1. (b)
    Statement of Reasons of Gene Spann dated 16 March 2017;
  2. (c)
    Affidavit of Donald Robert Stanfield dated 9 June 2017;
  3. (d)
    Statement of Gene Spann dated 12 June 2017;
  4. (e)
    Affidavit of Donald Robert Stanfield dated 20 December 2017; and
  5. (f)
    Joint Experts’ Report regarding Conclave conducted on 19 February 2018

Oral Evidence in relation to GAR250-16 and GAR009-17

  1. (g)
    Mr. Gene Spann – decision maker for relevant decisions under review;
  2. (h)
    Mr. Kevin Ross Wood – licensed builder;
  3. (i)
    Mr. Jie Ross Wood – unlicensed contractor responsible for undertaking relevant work;
  4. (j)
    Mr. Donald Robert Stanfield – expert for the QBCC;
  5. (k)
    Bruce Gerard Krenske.

What is the relevant legislation and the jurisdiction of the Tribunal?

  1. [16]
    The relevant legislative provisions in force when the decision was made on 19 September 2016 are:
    1. (a)
      The Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) (current as at 24 March 2016); and
    2. (b)
      The Queensland Building and Construction Commission Regulation 2003 (Qld) (current as at 1 July 2016).
  2. [17]
    The legislation relevant is:
    1. (a)
      Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), sections 20, 24.
    2. (b)
      Queensland Building and Construction Commission Act 1991 (QBCC Act), sections 71, 72, 72A, 73, 86(1)(e), 86(1)(f), 87.
  3. [18]
    Generally, when conducting a Review, the Tribunal’s jurisdiction is the jurisdiction conferred by an enabling Act, which in this case is the Queensland Building and Construction Commission Act 1991.[7]
  4. [19]
    The Tribunal may exercise its review jurisdiction if a person has, under this Act, applied for a review of a reviewable decision.[8]
  5. [20]
    The Tribunal:
    1. (a)
      must decide the review in accordance with the QCAT Act and the enabling Act under which the reviewable decision was made; and
    2. (b)
      may perform the functions conferred by the QCAT Act or the enabling Act under which the reviewable decision was made; and
    3. (c)
      has all the functions of the decision-maker for the reviewable decision being reviewed.[9]
  6. [21]
    The purpose of the review is to produce the correct and preferable decision.[10] The Tribunal must hear and decide a review by way of a fresh hearing on the merits.[11]
  7. [22]
    In a review proceeding, the Tribunal may:
    1. (a)
      confirm or amend the decision; or
    2. (b)
      set aside the decision and substitute its own decision; or
    3. (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.[12]

Background

  1. [23]
    In December 2015, a company known as Woodsy’s Contracting Services (ABN 85 459 776) prepared a quote for the Applicant to remove and replace 13 stump posts at his property in Rockhampton.
  2. [24]
    On 29 January 2016, Woodsy’s provided a quote for an additional six stump posts at the property.
  3. [25]
    On 14 July 2016, the Applicant complained to the QBCC about the construction work undertaken by Ross Kevin Wood at the property between 14 January 2016 and 25 February 2016.
  4. [26]
    On 22 August 2016, following an investigation, the QBCC issued a Direction to Rectify number 0100883 to Ross Kevin Wood that required Ross Kevin Wood to rectify the following defective or incomplete building work within the time period for completion:
    1. (a)
      The installation of the posts downstairs does not comply with the BCA Part 1.2 Acceptance of Design and Construction, Part 3.2.4 Site Classification, Part 3.2.5 footings and Slab Construction and as 2870 Residential Slab and Footing Design and as a result insufficient consideration has been given to footing design, bracing and tie down which may adversely effected the structural performance of the dwelling in the future. (Pertains to Item 3 on the complaint form).
    2. (b)
      The installation of the steel posts downstairs does not comply with the BCA Part 3.4.4.4 Corrosions Protection and as a result corrosion is likely to be accelerated in the future. (Pertains to Item 4 on the complaint form).
  5. [27]
    On 19 September 2016, the QBCC withdrew the Direction to Rectify number 010883. Correspondence from the QBCC to the applicant advised that the Direction to Rectify number 100883 was withdrawn from Ross Wood as further information was supplied by Ross Wood and Jie Wood that Jie Wood was in fact the principal contractor on this job and not Ross Wood. Therefore, the QBCC withdrew the original direction and issued a new direction to Jie Wood.
  6. [28]
    The Tribunal has since determined that this was a decision not to give a Direction to Rectify and is the subject of GAR250-16.[13]
  7. [29]
    On 19 September 2016, the QBCC gave Direction to Rectify number 0101003 to Jie Wood. The Direction required Jie Wood to have the following defective or incomplete building work rectified by a licensed contractor(s) within the time period for Completion:
    1. (a)
      The installation of the posts downstairs does not comply with the BCA Part 1.2 Acceptance of Design and Construction, Part 3.2.4 Site Classification, Part 3.2.5 footings and Slab Construction and as 2870 Residential Slab and Footing Design and as a result insufficient consideration has been given to footing design, bracing and tie down which may adversely effected the structural performance of the dwelling in the future. (Pertains to Item 3 on the complaint form).
    2. (b)
      The installation of the steel posts downstairs does not comply with the BCA Part 3.4.4.4 Corrosions Protection and as a result corrosion is likely to be accelerated in the future. (Pertains to Item 4 on the complaint form).
  8. [30]
    Between 19 September 2016 and 12 December 2016, Jie Wood arranged for a licensed contractor, Ross Wood, to carry out work in relation to Direction to Rectify number 0101003.
  9. [31]
    On 12 December 2016, Gene Spann, a building inspector employed by QBCC attended the property and inspected the work.
  10. [32]
    On 13 December 2016 the QBCC advised the Applicant that it considered that “the contractor [Jie Wood] had attended to the items listed in Direction to Rectify 0101003”.

What is the Applicant seeking?

GAR250-16

  1. [33]
    In his Application filed on 6 October 2016, the Applicant stated why he thought the decision of the QBCC was wrong in the following terms:

After complaining to the QBCC about defective building work on 10 July 2016, the QBCC has made three decisions. These decisions in chronological order are:

  1. Direction to Rectify no. 0100883 – 22 August 2016;
  2. A unilateral decision to revoke Direction to Rectify no. 0100883 – 16 September 2016;
  3. Direction to Rectify no 0101003 – 19 September 2016.
  1. [34]
    He submitted that decisions 2 and 3 were jurisdictional errors and ultra vires both under the Queensland Building and Construction Commission Act 1991 (Qld) (Parts 6 and 7) and the Queensland Building and Construction Commission dispute resolution process.
  2. [35]
    The Applicant also outlined a series of “material facts” he stated were relevant to this Application:
    1. (a)
      On 10 July 2016 he lodged a complaint against a licensed builder with the QBCC in Rockhampton. He provided relevant documents which comprised quotes and invoices for the work that is the subject of the complaint. The quotes included a licence number and the bank account details where the payments were to be made.
    2. (b)
      Decision number 1 (Direction to Rectify no. 0100883) was made on 22 August 2016 after a site inspection by QBCC Building Inspector Gene Spann.
    3. (c)
      On 14 September 2016 a QBCC officer contacted him requesting proof of payment for the works that were the subject of the rectification order (no. 0100883).
    4. (d)
      On 15 September 2016 the Applicant provided the documents to the QBCC. On the same day he was contacted by Mr. Gene Spann who advised that he was going to revoke the rectification order (no. 0100883) and issue a new one.
    5. (e)
      On 16 September 2016, the Applicant advised the QBCC that he was dissatisfied with the decision. He claimed that he was advised that the Area Manager intended to confirm the Mr. Spann’s actions.
  3. [36]
    In a document received by the Tribunal on 19 June 2019 entitled “Applicant’s submission in reply pursuant to directions issued 14 May 2019”, the Applicant confirmed his previous submissions that “the Direction to Rectify that was given to the licensed builder was unlawful.”
  4. [37]
    He submitted that the decision remains unlawful regardless of whether or not the building work was subsequently rectified.

GAR009-17

  1. [38]
    In his Application filed on 10 January 2017, the Applicant stated that the engineering requirements for the work done on his property had not been complied with. He stated that the engineering report that he received specified footing depths of 900-950mm. He then stated that:

(t)his requirement has not been satisfied. The builder used previous depths which were less than 900mm… The depths specified in the engineering report are also not sufficient – the soil test at the front of the house indicates a depth of 1100mm is necessary. The installed footings do not satisfy the levels specified in the engineering report or the level that is necessary according to the soil report. At the time of the re-inspection the QBCC Inspector informed me that the work satisfied the engineering report and therefore he was going to deem the work to be satisfactory. I submit that the decision by the building inspector is a jurisdictional error – the inspector has acted on a mistaken assumption or opinion as to the existence of a certain event, occurrence or fact and has taken into account irrelevant considerations…[14]

  1. [39]
    In his final submissions in these proceedings, the Applicant maintained his position that the decision by the QBCC that the rectification work is of a satisfactory standard is attended by jurisdictional error. He states that the decision maker relied on an inspection certificate that was issued prior to the commencement of the rectification work and the decision maker relied on a mistaken assumption as to the bearing capacity of the footings.
  2. [40]
    In a separate document received by the Tribunal on the same date, but submitted to the Tribunal prior to the hearing in September 2018, the Applicant states that “the primary purpose of GAR250-16 is to review the legal merits of the decision to revoke the Direction to Rectify given to the licensed builder”.
  3. [41]
    The Applicant states that if the QBCC did not have jurisdiction to revoke the Direction to Rectify given to the licensed builder, the decision to revoke the direction is not the correct and preferable decision. He submits that:
    1. (a)
      GAR250-16 is not the appropriate forum for a merits review of the QBCC’s original discretion as to whether or not to give the licensed builder a direction to rectify.
    2. (b)
      The Tribunal has the jurisdiction to:
      1. Review and quash the decision to revoke the direction to rectify given to the licensed builder; and
      2. Restore the Applicant’s legal rights under the Statutory Insurance Scheme and his contract of insurance with the QBCC.
    3. (c)
      Section 24AA of the Acts Interpretation Act 1954 (Qld) has a narrower application to Queensland Acts than the broad application which the Respondent attributes to it.
    4. (d)
      If the Tribunal accepts the Respondent’s submissions regarding the broad interpretation of s 24AA, its operation is inimicable (sic) to the operation of s 72 of the QBCC and therefore a contrary intention appears.
    5. (e)
      A decision to give a direction to rectify to a builder is not a decision that gets exercised from time to time as the occasion requires.
    6. (f)
      The QBCC has misinterpreted the unfairness discretion contained in s 72(5) of the QBCC Act.[15]
  4. [42]
    The Applicant made submissions regarding the outcome of these proceedings in two documents dated 18 June 2019 titled “Applicant’s submission in reply pursuant to directions issued 14 May 2019” and “Applicant’s submission for the hearing”. Both documents were received on 19 June 2019.
  5. [43]
    The Applicant states that s 86(1)(f) of the QBCC Act requires the QBCC to decide whether the work directed by the QBCC is of a satisfactory standard.
  6. [44]
    He states that in order to be of a satisfactory standard it must comply with the National Construction Code (NCC) and relevant building standards.
  7. [45]
    He admits that no drainage work was carried out by the builders. He argues that the builder who installed the footings at his property is responsible for ensuring that the specific drainage requirements that apply to perimeter footings (C5 of AS 2870) are complied with.
  8. [46]
    He states that “drainage’ and the “deemed to satisfy solution” are very basic requirements for the footings. If they are not satisfied, then the work is defective because it does not comply with the NCC. He insists that the depths of the footings are a crucial issue in this review.
  9. [47]
    The Applicant states that the QBCC has misunderstood the relationship between the performance requirements in the Code and the deemed to satisfy solution. He asserts that, as a matter of statutory interpretation if building work does not satisfy a deemed to satisfy solution it cannot meet the performance requirements of the Code.
  10. [48]
    In summary, the Applicant appears to seek an outcome that confirms that:
    1. (a)
      The decision by the QBCC that the rectification work is of a satisfactory standard is attended by jurisdictional error; and
    2. (b)
      The Tribunal has the jurisdiction to:
      1. Review and quash the decision to revoke the direction to rectify given to the licensed builder; and
      2. Restore the Applicant’s legal rights under the Statutory Insurance Scheme and his contract of insurance with the QBCC.

What is the QBCC seeking?

  1. [49]
    The QBCC submits that there is considerable overlap in the relevant facts and circumstances between proceedings numbered GAR250-16 and GAR009-17.
  2. [50]
    It contends that the findings in GAR009-17 will be relevant to determining the correct and preferable decision in GAR250-16.

GAR009-17

  1. [51]
    The QBCC states that the Direction to Rectify number 0101003 was given to Jie Wood on 19 September 2016.
  2. [52]
    Therefore, the question for the Tribunal to determine is whether work carried out at the direction of the QBCC was of a satisfactory standard.
  3. [53]
    It argues that there are two elements to the question:
    1. (a)
      What work, if any, was “carried out at the direction of the Commission?”; and
    2. (b)
      Was the work identified as a result of the Direction to Rectify number 0101003 of a “satisfactory standard?”

GAR250 – 16

  1. [54]
    The QBCC submits that the exercise of the Tribunal’s review jurisdiction for a decision not to issue a Direction to Rectify requires the Tribunal to make a fresh decision as to whether a direction ought to be issued. Consequently, the QBCC argues that the Tribunal must consider afresh and determine whether the power to direct the rectification of defective work should be exercised in respect of Ross Wood.
  2. [55]
    The QBCC submits that the Tribunal must exercise the functions of the QBCC in accordance with the enabling Act. A decision to issue a direction to rectify must consider:
    1. (a)
      Whether the work is building work?[16]
    2. (b)
      Whether the building work is defective?[17]
    3. (c)
      Who carried out the building work?[18] and
    4. (d)
      In all the circumstances,[19] is it fair to direct the person to rectify the building work?[20]
  3. [56]
    The QBCC argues that the Tribunal’s findings in GAR009-17 will be relevant in determining the correct and preferable decision in GAR250-16.
  4. [57]
    According to the QBCC, the question for the Tribunal regarding GAR009-17 is whether work carried out at their direction was of a satisfactory standard.
  5. [58]
    The QBCC submits that the authorities[21] stand for the proposition that, in considering a decision purported to be under review pursuant to section 86(1)(f) of the QBCC Act, the Tribunal is called to make a preliminary finding as to whether the works were carried out “at the direction of the Commission.”[22]
  6. [59]
    The QBCC points out that the Tribunal may find that the work undertaken by the licenced contractor was not work “undertaken at the direction of the Commission”, but was work which was undertaken pursuant to a private contract between Jie Wood and a contractor who agreed to perform work on Jie Wood’s behalf. On that basis if the work by the licensed contractor was not of a satisfactory standard then the appropriate course would be for a fresh Direction to Rectify to be issued.
  7. [60]
    Further, section 86(1)(f) provides that a decision of the QBCC that building work undertaken at the direction of the QBCC is or is not of a satisfactory standard is a reviewable decision. The QBCC submits that this provision establishes the Tribunal’s review jurisdiction in GAR009-17.
  8. [61]
    With respect to the preliminary step, the QBCC says that two issues arise:
    1. (a)
      Was any work “undertaken at the direction of the Commission” in circumstances where the Direction to Rectify was given to an unlicensed person who subsequently engaged a licensed person to perform the work?
    2. (b)
      Does the footing depth issue fall within the scope of work “undertaken at the direction of the Commission?”
  9. [62]
    The QBCC points out that Jie Wood did not hold a licence and therefore consideration must be given to section 72A(3) of the QBCC Act which states: “If a direction to rectify or remedy is given to a person who is not currently licensed to carry out the required work, the person must have the work carried out by a licensed contractor.”
  10. [63]
    The QBCC emphasises that the Direction to Rectify no.0101003 specifies that “you are directed to have a licensed contractor carry out work at the property on your behalf …” and “You are directed to have the following defective or incomplete work rectified by a licensed contractor(s) within the time period for completion.”
  11. [64]
    The QBCC asserts that the only way that an unlicensed person could comply with the Direction is by engaging a licensed person. They maintain that the licensed person then performs the works at the direction of the unlicensed person who engaged them and not at the direction of the QBCC.
  12. [65]
    Alternatively, the QBCC submits that it is open to the Tribunal to decide that “work undertaken at the direction of the Commission” means work which the QBCC has directly instructed a licensed contractor to perform. They suggest that this interpretation would be consistent with the decisions of the Tribunal in the decision of Dew[23] and the Russell Appeal decision.[24]
  13. [66]
    Consequently, the QBCC submits that the application in GAR009-17 should be dismissed on the basis that the work was not undertaken at the direction of the QBCC and if the work is of an unsatisfactory standard then a fresh direction to rectify should be issued provided it is fair in all the circumstances to do so.
  14. [67]
    However, if the Tribunal finds that work undertaken by a licensed contractor engaged by an unlicensed person is “work undertaken at the direction of the QBCC” then it is necessary to consider two further issues: What work was “directed by the Commission?” and “what work was carried out under that direction?”
  15. [68]
    The QBCC submits that in all the circumstances, Direction to Rectify 0101003 required Jie Wood to engage a licensed contractor who had to obtain any necessary development approval, seek engineering advice to develop a plan which was certified by a qualified engineer, make the necessary adjustments to the “as constructed” work (primarily by adding bracing), attend to the corrosion treatment of the posts and finally obtain certification from a qualified person that the work had been completed in accordance with the relevant standards and approved plans.
  16. [69]
    In particular, the QBCC expert Mr Donald Stanfield, who is a Structural and Geo-Technical Engineer gave evidence that the inconsistent footing depths did not adversely affect the performance of the works and were satisfactory in the circumstances.
  17. [70]
    Section 86(1)(e) of the QBCC Act provides that a decision of the QBCC not to make a direction to rectify is a reviewable decision. The QBCC submits that this is the provision that establishes the Tribunal’s review jurisdiction in GAR250-16.
  18. [71]
    In relation to GAR250–16, the QBCC submits that “the exercise of the Tribunal’s review jurisdiction for a decision not to issue a Direction to Rectify requires the Tribunal to make a fresh decision as to whether a direction ought to be issued.”[25] In this case the QBCC contends that the Tribunal must consider afresh and determine whether the power to direct rectification of defective work should be exercised in respect of Ross Wood.[26]
  19. [72]
    The QBCC argues that unlike a judicial review which is concerned with the correctness of the legal principles and reasoning applied during a decision-making process, a merits review (as a hearing de novo) considers evidence afresh and is concerned with achieving the correct and preferable decision in the circumstances.[27]
  20. [73]
    The QBCC points out that the Tribunal must exercise its functions in accordance with section 72 of the QBCC Act. This requires a consideration of the matters previously identified:
    1. (a)
      Whether the work is building work?[28]
    2. (b)
      Whether the building work is defective?[29]
    3. (c)
      Who carried out the building work?[30] and
    4. (d)
      In all the circumstances,[31] is it fair to direct the person to rectify the building work?[32]

Discussion

  1. [74]
    The evidence is clear that the building work, the subject of this dispute, was initially performed by Woodsy’s Contracting Services and the rectification work was performed by Mr. Ross Wood after he was engaged by Jie Wood.
  2. [75]
    The QBCC submits that the Tribunal must make a preliminary finding as to whether the works undertaken by Ross Wood were work carried out “at the direction of the Commission”.[33]
  3. [76]
    Further, if the Tribunal determines that the work was carried out at the direction of the QBCC, then the next step is to determine if the work is of “a satisfactory standard”.[34]
  4. [77]
    In this instance, the QBCC argues that this raises two further issues as to whether the work, the subject of the Direction to Rectify 0101003, was given to an unlicensed person in which case the person must engage a licensed person to perform the work[35] and secondly does the issue of the footing depth fall within the scope of work undertaken at the direction of the QBCC.
  5. [78]
    The QBCC submits that in effect the only way that Jie Wood could comply with the Direction was to engage a licensed person. The QBCC then submits that the QBCC in this scenario has no recourse against or control over the way the licensed person performs the work.
  6. [79]
    Alternatively, the QBCC submits that the Tribunal might consider the work undertaken at the direction of the QBCC is to be understood as work that the QBCC has directly instructed the licensed person to perform. It contends that this would be consistent with the Tribunal’s decisions in Dew[36] and the Russell Appeal decision.[37]
  7. [80]
    The QBCC argues that if the Tribunal accepts these submissions then it follows that:
    1. (a)
      The Application in GAR009-17 should be dismissed because the work was not undertaken at the direction of the QBCC and therefore is not a reviewable decision pursuant to section 86(1)(f) of the QBCC Act.
    2. (b)
      Consequently, if the work carried out by the licensed contractor is of an unsatisfactory standard then a fresh Direction to Rectify should be issued as long as it fair in all the circumstances to do so.
  8. [81]
    In essence the QBCC contends that Direction no.0101003 to Jie Wood required him to engage a licensed person who had to obtain the necessary development approval, seek engineering advice to develop a plan which was certified by a qualified engineer, make the necessary adjustments to the work, attend to any corrosion treatment of the posts and obtain certification from a suitably qualified person that the work had been completed in accordance with the relevant standards and approved plans.
  9. [82]
    In their Statement of Reasons,[38] the QBCC sets out the details of the work undertaken to comply with the Direction to Rectify no.0101003. The QBCC points out that all the work had been certified and endorsed by appropriately qualified experts and was further confirmed by Mr Gene Spann in his oral evidence.[39]
  10. [83]
    The QBCC acknowledges that the Applicant claims in his review application that the footing depths do not comply with the engineering Report. It suggests that his claim appears to be based on his own investigations.
  11. [84]
    The QBCC submits that this issue has been dealt by various experts as follows:
    1. (a)
      Mr Bruce Krenske investigated the footing depths on 21 April 2017, after previously issuing a Form 21 Final Inspection Certificate some months earlier. He concluded that the “as constructed” additions pursuant to development approval 201600937 were compliant. Jie Woods gave evidence that the footings were as constructed prior to the issue of Direction to Rectify no.0101003 on 19 September 2016.
    2. (b)
      The QBCC emphasises that the Applicant chose not to give evidence regarding these matters.
    3. (c)
      The QBCC notes that Mr Stanfield gave evidence that there was no material difference between the depth of the footing system as constructed and the 900mm deep footing system as proposed by Mr McKee.
  12. [85]
    The QBCC argues that when the Tribunal is considering the issue regarding “work undertaken at the direction of the Commission” the better approach is to look at what was required to be done by the person to whom the direction was given or possibly the work that was required to be done by the licensed contractor under the direction of the unlicensed person.
  13. [86]
    The QBCC stresses that neither Jie Wood nor his licensed contractor were ever in a position to perform the building certification or design work and therefore these matters were not within the scope of work undertaken at the direction of the Commission.
  14. [87]
    With respect to the standard of the work performed pursuant to the Direction to Rectify no 0101003, the QBCC submits that if the Tribunal finds that the work performed was limited to obtaining the necessary approvals and completing the work to the satisfaction of a qualified building certifier then that has been done.
  15. [88]
    If the Tribunal determines that the work can only be considered satisfactory if it meets the broadly applied requirements of the codes and standards, this does not necessarily mean that the work is unsatisfactory.
  16. [89]
    The QBCC submits that the evidence of the experts[40] is that while the footings were not to the 900mmm depth specified in the design drawings, they were performing within the acceptable design limits of the Australian Standard (AS 2870-2011) and that the footing system was satisfactory and not defective.
  17. [90]
    With respect to compliance with the National Construction Code of Australia (NCC), the QBCC argues again that the expert evidence suggests that the non-compliance with the footing design does not necessarily render the work non-compliant with the NCC, because compliance is achieved by meeting the performance standards.
  18. [91]
    In summary, according to the QBCC, Mr Stanfield gave evidence that he found that the footings were performing adequately. Mr McKee raised concerns based on Clause G 5.3 of AS2870-2011.
  19. [92]
    The QBCC contends that the experts agree that the measured floor slopes do not provide any evidence that the footings are not performing as required.
  20. [93]
    Further, the experts agree that the site drainage should be remediated. Mr Stanfield expressed an opinion that the drainage issues caused by the lowering of the ground level under the house were of greater concern than the footing depths.
  21. [94]
    Mr Ross Wood gave evidence to the effect that the excavation works were carried out by some other person apparently under the direction of the Applicant.
  22. [95]
    In his re-inspection report, Mr Gene Spann indicated that the applicant informed him of future plans to install a concrete slab.
  23. [96]
    Mr Bruce Krenske also gave evidence of a discussion with the Applicant regarding an intention to install a slab “within six to twelve months”.
  24. [97]
    While there is evidence to confirm that the site drainage is unsatisfactory, there is no evidence that this is as a result of the work undertaken pursuant to the Direction to Rectify 0101003 or that Woodsy’s carried out any site drainage works.
  25. [98]
    Finally, the QBCC submits that the work undertaken pursuant to Direction to Rectify 0101003 was satisfactory because the footing system is performing to the standard required and is in compliance with the relevant codes and Australian Standards.

Has the Applicant met any evidentiary burden?

  1. [99]
    The QBCC maintains that the identification of defective building work is a threshold question to engage the power under section 72 of the QBCC Act.
  2. [100]
    The QBCC submits that the issue regarding any onus the Applicant might carry in Review proceedings has been considered by the Tribunal on a number of occasions.[41]
  3. [101]
    In Body Corporate for Parkwood Villas Community Titles Scheme 25893 v Queensland Building and Construction Commission [2015] QCAT 59, the Tribunal noted that: “A consideration for the Tribunal is whether a determination can be made that the Builder is responsible for the defective work. The onus of convincing the Tribunal of this falls with the Applicant.”
  1. [102]
    In Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [21] – [23] the Tribunal considered this issue and observed that:

It has been considered, in various cases decided by the CCT, that the applicant bears the onus of establishing that he has taken all reasonable steps to avoid the coming into existence of the circumstances resulting in the relevant event. The respondent has submitted that the applicant bears this onus.

The proceeding before the Tribunal is a merits review of an administrative decision of the executive government. The QCAT Act does not place an onus of proof on a party to establish facts or make out a case for review. Likewise, the CCT Act did not provide for an onus in relation to reviews.

Consideration has been given to the issue of onus in merits review proceedings in the federal arena before the Administrative Appeals Tribunal, where similarly the AAT Act does not deal with the issue of onus of proof. Generally, there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence, the Tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.

  1. [103]
    The QBCC submits that the Tribunal has made it clear that while there is no formal onus of proof in a merits review, there is still an onus on an applicant to adduce evidence and arguments in support of their case. In the absence of such evidence, the Tribunal will not be free to make the decision sought by the applicant.
  2. [104]
    The QBCC points out that the Applicant has only provided limited and in some instances no particulars or supporting evidence to establish that the items which are the subject of the review are defective building work. This matter was drawn to the attention of the Applicant a number of times throughout the hearing.
  3. [105]
    The QBCC points out that the Tribunal has made clear that the Tribunal’s role in exercising its review jurisdiction is not to conduct a review of the process by which the decision was arrived at, nor the reasons given for making the decision.[42] Therefore, the QBCC argues that “Any evidence sought to be relied upon by the Applicant in respect of the Commission’s decision-making process, or any alleged deficiencies in relation to same, are… irrelevant to the Tribunal in exercising its review jurisdiction.”[43]
  4. [106]
    The Tribunal accepts the submission of the QBCC that there is no evidence that:
    1. (a)
      The relevant works in these matters are defective or have caused damage to, or are not performing at, the property.
    2. (b)
      There has been a failure to comply with the requirements of the BCA, the NCC or other relevant Australian Standards; or
    3. (c)
      There has been a failure to meet the standards expected of a reasonable standard of construction or finish expected of a competent licensed builder.
  5. [107]
    The QBCC asserts that, in fact, the evidence supports a finding that the works are not defective and are performing within the requirements of all the relevant standards.
  6. [108]
    The QBCC submits that the Tribunal can be satisfied, on the material before it, that the works are not defective and the decisions under review are the correct and preferable decisions.
  7. [109]
    Therefore, the QBCC seeks the following orders:

In GAR009-17:

  1. The Application in case number GAR009-17 to review the decisions of the Commission of 13 December 2016 is dismissed; or
  2. The Commission’s decision dated 13 December 2016 that “the contractor [Jie Wood had] attended to the items listed in [Direction to Rectify number 0101003], is confirmed.

In GAR250-16:

  1. The Commission’s decision, on 19 September, not to issue a direction to rectify to Ross Kevin Wood is confirmed.

Outcome

  1. [110]
    In his original application GAR250-16 filed on 6 October 2016, the Applicant sought reinstatement of Direction to Rectify no. 0100883 as well as damages and costs. He also sought a “speedy hearing” of the matter concerning structural issues.
  2. [111]
    In his next application GAR009-17, filed on 10 January 2017 the Applicant sought a direction for payment of an amount to rectify the work: Home Warranty Insurance Scheme.
  3. [112]
    In the course of the proceedings the Tribunal considered two interlocutory matters. In the first application by the QBCC the Tribunal determined that the decision by the QBCC not to issue a direction to rectify was a reviewable decision in accordance with s 86 of the QBCC Act and therefore the Tribunal has jurisdiction to hear the application for review.
  4. [113]
    As noted previously in these Reasons on 13 October 2017, the Tribunal found that no question of jurisdictional error arises in this matter and it can be satisfactorily dealt with by the Tribunal. [44]
  5. [114]
    The application for review was dismissed.
  6. [115]
    In his final submissions, the Applicant sought confirmation that the decision by the QBCC that “the rectification work is of a satisfactory standard” is attended by jurisdictional error; and that the Tribunal has the jurisdiction to:
    1. (a)
      Review and quash the decision to revoke the direction to rectify given to the licensed builder; and
    2. (b)
      Restore the Applicant’s legal rights under the Statutory Insurance Scheme and his contract of insurance with the QBCC.
  7. [116]
    The building work, the subject of this dispute, was initially performed by Woodsy’s Contracting Services (an unlicensed contractor).
  8. [117]
    The rectification work was performed by Mr. Ross Kevin Wood (a licensed contractor) after he was engaged by Jie Wood.
  9. [118]
    The works undertaken by Ross Wood were not work carried out “at the direction of the Commission”.
  10. [119]
    The work undertaken at the direction of the QBCC is work that the QBCC has directly instructed a licensed person to perform.
  11. [120]
    Direction no.0101003 to Jie Wood required him to engage a licensed person who had to obtain the necessary development approval, seek engineering advice to develop a plan which was certified by a qualified engineer, make the necessary adjustments the work, attend to any corrosion treatment of the posts and obtain certification from a suitably qualified person that the work had been completed in accordance with the relevant standards and approved plans.
  12. [121]
    The work performed was limited to obtaining the necessary approvals and completing the work to the satisfaction of a qualified building certifier and that has been done.
  13. [122]
    The work can only be considered satisfactory if it meets the broadly applied requirements of the codes and standards, but this does not necessarily mean that the work is not of a satisfactory standard.
  14. [123]
    The work undertaken pursuant to Direction to Rectify 0101003 is satisfactory because the footing system is performing to the standard required and is in compliance with the relevant codes and Australian Standards.
  15. [124]
    There is no evidence that:
    1. (a)
      The relevant works in these matters are defective or have caused damage to or are not performing at the property.
    2. (b)
      There has been a failure to comply with the requirements of the BCA, the NCC or other relevant Australian Standards; or
    3. (c)
      There has been a failure to meet the standards expected of a reasonable standard of construction or finish expected of a competent licensed builder.
  16. [125]
    The works are not defective and are performing within the requirements of all the relevant standards.
  17. [126]
    There is an onus on an Applicant to adduce evidence and arguments in support of his case. In the absence of such evidence, the Tribunal is not free to make the decision sought by the Applicant.
  18. [127]
    There is no evidence to support a finding that the decision that the rectification work is of a satisfactory standard is attended by jurisdictional error or that the Tribunal has the jurisdiction to:
    1. (a)
      Review and quash the decision to revoke the direction to rectify given to the licensed builder; and
    2. (b)
      Restore the Applicant’s legal rights under the Statutory Insurance Scheme and his contract of insurance with the QBCC.
  19. [128]
    The Application in GAR009-17 should be dismissed because the work was not undertaken at the direction of the QBCC and therefore it is not a reviewable decision pursuant to section 86(1)(f) of the QBCC Act.
  20. [129]
    The works are not defective and the decisions under review are the correct and preferable decisions.
  21. [130]
    I have considered all of the evidence presented in these matters and I am satisfied that it would be unfair and unreasonable for a Direction to Rectify to be issued to the builder. I am satisfied that the correct and preferable decision is to confirm the decisions made by the QBCC and to order that:
  1. The Commission’s decision dated 13 December 2016 that “the contractor [Jie Wood had] attended to the items listed in [Direction to Rectify number 0101003], is confirmed.
  1. The Commission’s decision, on 19 September 2016, not to issue a direction to rectify to Ross Kevin Wood is confirmed.

Footnotes

[1]Murphy v Queensland Building and Construction Commission [2017] QCAT 344.

[2] Ibid para 30.

[3] Ibid para 33.

[4] Ibid para 36.

[5] Ibid para 37.

[6] Ibid paras 38-40.

[7] QCAT Act s 17.

[8] Ibid s 18.

[9] Ibid s 19(c).

[10] Ibid s 20(1).

[11] Ibid s 20(2).

[12] Ibid s 24.

[13]Murphy v Queensland Building and Construction Commission [2017] QCAT 164.

[14] Application to Review a decision by B.L. Murphy dated 10 January 2017, page 4.

[15] Applicant’s submissions received 19 June 2019, page 2.

[16] QBCC Act s 72(a) and Schedule 2 – definition of “building work”.

[17] Ibid and Schedule 2 – definition of “defective”.

[18] QBCC Act s 74(2).

[19] QBCC Act s 72(3).

[20] QBCC Act s 72(5).

[21] Dew v Queensland Building Services Authority [2010] QCAT 687 and Queensland Building and Construction Commission v Russell [2015] QCATA 57.

[22]Queensland Building and Construction Commission v Russell [2015] QCATA 57, [67].

[23] [2010] QCAT 687.

[24] QBCC v Russell [2015] QCATA 57.

[25] Respondent’s Statement of Reasons 11 June 2019 at para 4.3(a).

[26] Ibid para 4.3(b).

[27] QBCC v Whalley [2018] QCATA 38, 10.

[28] QBCC Act s 72(a) and Schedule 2 – definition of “building work”.

[29] Ibid and Schedule 2 – definition of “defective”.

[30] Ibid s 74(2).

[31] Ibid s 72(3).

[32] Ibid s 72(5).

[33]  Queensland Building and Construction Commission v Russell [2015] QCATA 57, [67].

[34] QBCC Act s 86(1)(f).

[35] Ibid s 72A(3).

[36] [2010] QCAT 687.

[37] QBCC v Russell [2015] QCATA 57.

[38] QBCC Statement of Reasons dated 16 March 2017 at para 54.

[39] Transcript of Proceedings GAR250-16 and GAR009-17, 3-47(42) - 3-48(1); 3-48(3); 3-48(6) – 3-48(9).

[40] Joint Expert’s Report.

[41] Body Corporate for Parkwood Villas Community Tiles Scheme 25893 v Queensland Building and Construction Commission [2015] QCAT 59, [67]; Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [22] – [25].

[42]See Kehl v Board of Professional Engineers of Queensland [2011] QCAT 064 and JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502.

[43]Respondent’s Submissions dated 11 June 2019, para 4.4(e).

[44] Murphy v Queensland Building and Construction Commission [2017] QCAT 344, para 30

 

Close

Editorial Notes

  • Published Case Name:

    Murphy v Queensland Building and Construction Commission

  • Shortened Case Name:

    Murphy v Queensland Building and Construction Commission

  • MNC:

    [2020] QCAT 255

  • Court:

    QCAT

  • Judge(s):

    Member Quinlivan

  • Date:

    23 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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