Goldfield Projects Pty Ltd v Queensland Building and Construction Commission
[2015] QCAT 503
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- Unreported Judgment
- Goldfield Projects Pty Ltd v Queensland Building and Construction Commission[2015] QCAT 503
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Goldfield Projects Pty Ltd v Queensland Building and Construction Commission[2015] QCAT 503
Goldfield Projects Pty Ltd v Queensland Building and Construction Commission[2015] QCAT 503
CITATION: | Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 503 |
PARTIES: | GOLDFIELD PROJECTS PTY LTD Applicant |
| v |
| QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (Respondent) |
APPLICATION NUMBER: | GAR213-15 |
MATTER TYPE: | Building matters |
HEARING DATE: | 11 December 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member R F King-Scott |
DELIVERED ON: | 16 December 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Strike out application - Internal review under Queensland Building and Construction Commission Act 1991 (Qld) ss.85A, 86, 86A, 86B, 86C and 86D - What is an “application”? | |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Ms C Ray solicitor of Mckays Solicitors for Goldfield Projects Pty Ltd |
RESPONDENT: | Ms Jagger, Solicitor for the Queensland Building and Construction Commission |
REASONS FOR DECISION
- [1]This is an application by the Queensland Building and Construction Commission (“the Commission” or “QBCC”) to strike out a review application brought by the Respondent, Goldfield Projects Pty Ltd (“Goldfield”).
- [2]Mr Ho Ming [Billy] Chan is the sole Director of Goldfield. A house at 31 Doulton Street, Calamvale constructed by Goldfield was the subject of a complaint to the Commission. The complaint was investigated and a Direction to Rectify issued. Goldfield sought a review of that decision. It is pending before the Tribunal.
- [3]In the meantime, the Commission gave Notice of Potential Debt to Goldfield by letter dated 17 March 2015 with an enclosed Scope of Works. Goldfield, under the hand of Mr Chan, responded by letter dated 25 March 2015 that the Direction to Rectify was under review; and that any damage was caused by the Inspector. If Goldfield was responsible, it wanted the opportunity to rectify the work itself. The letter unedited was as follows:
Referring to your letter dated 17th March 2015, we are strongly making our objection against it:
- 1).The subsequent owner Mr Kwok On Cheng did make a complaint to QBCC. A direction to rectify was issued by your Building Inspector. We viewed that the direction is unfair and incorrect. The direction is currently under review before QCAT;
- 2).The review of direction by QCAT may be in favour to us;
- 3).Even if the review of direction by QCAT is unfavor to us, we will still have an opportunity to carry out the rectification work ourselves.
- 4).We are not responsible for any damage that your inspectors have caused on site, including cutting the tile joint and smashing the tile.
- 5).Your action to call for a quotation is immature.
- 6).The scope of work listed by QBCC is also incorrect and is much overstated. QBCC should be aware of the tile injection rectification method which is cost effective and avoid further damage of work.
There is a contractor using the injection method in a very cost effective manner.
Below are examples of 2 common products for fixing de-bonded tile without removing the tile.
- [4]By letter dated 18 May 2015, the Commission gave a Notice of Debt to Goldfield. Goldfield responded on 20 May 2015, in identical terms to its letter of 25 March 2015.
- [5]The Commission then gave a further Notice of Potential Debt Variation dated 14 August 2015, followed up by a Notice of Debt, essentially, which increased the debt by about $748.
- [6]Goldfield have sought a review. Particularised in Part B of the application, it is in the following terms:
Details of decision to be reviewed
Notices of Debt QBCC Reference 3-3708-13
When was the decision made?
18 May 2015 & 14 Aug 2015
When did you receive the decision?
20 May 2015 & 18 Aug 2015
- [7]The Queensland Home Warranty Scheme is a statutory insurance scheme established under the Queensland Building and Construction Commission Act 1991 (Qld) (“the Act”). It provides insurance to the home owner in respect of defective or incomplete work in respect of a residential building contract. If a Direction to Rectify is not complied with and the Commission makes a payment on the claim under the scheme, it may recover the amount from the building contractor. It does so by issuing a Notice of Debt pursuant to s.71 of the Act.
- [8]The Commission made such a claim against Goldfield.
- [9]Pursuant to s.86F(1)(a), a decision to recover an amount under s.71 of the Act is not reviewable.
- [10]On that basis, the Commission seeks to strike out the review application.
- [11]Although the Notice of Debt is not a reviewable decision, the Scope of Works on which the Notice of Debt is based is a reviewable decision under s.86(1)(g) of the Act.
- [12]In its response to the strike-out application, Goldfield argues that the application for review should be considered an application to review the Scope of Works under the newly-introduced Internal Review Process.
- [13]The Internal Review Process was introduced by the Professional Engineers & Other Legislation Amendment Act 2014 which came into force on 10 November 2014. The amendments apply to the reviews in question. The Internal Review Process was a product of a detailed review and inquiry into the operation and performance of the Queensland Building Services Authority. From that inquiry, a 10-point Action Plan was introduced which formed the basis of the Professional Engineers & Other Legislation Amendment Bill 2014. Its purposes were to improve governance and risk management at no additional cost.
- [14]Under s 86B of the Act, an Internal Review Application must be made within 28 days after the decision and be lodged at the Commission. The term “application” is not defined in the Act. The legislation does not stipulate any particular form for an application; presumably it could be made orally or in writing. I note that the Commission now has a form on its website, although, I was advised it was not mandatory that an application had to be in that form.
- [15]Goldfield says that the letter of 25 March 2015 is an application to review. It says the Commission has not responded to that letter as an Internal Review Application, and, therefore, it is argued the Commission is taken to have made the same decision.[1]
- [16]Section 86D then requires the Commission to give written notice of the decision or the decision it has taken to have made and advise the Applicant of its rights for an external review. The requirement is mandatory. Time does not run for bringing an external application until the notification is given.
- [17]Goldfield argues that it is still within time to bring an external application.
- [18]The Commission responds to that argument by saying that the letter of 25 March 2015 is not an application. It makes no request of the Commission which it argues is an essential requirement for an application. References are made to various dictionary definitions. Ms Jagger, solicitor, who appeared for the Commission, referred to the decision of the Western Australian State Administrative Tribunal of Pickett v Chan [2010] WASAT 55. That was a discrimination case under the Equal Opportunity Act 2004 (WA). The Picketts claimed that, as Aboriginals, they were discriminated against by a landlord, Ms Chan, on the ground of race by refusing them accommodation in a rental property. It was determined that the Picketts had requested an inspection of the property but had not made ‘an application for accommodation’ which was the specific alleged breach of the Equal Opportunity Act 2004. I think the decision can be distinguished as the application there was of a very specific kind.
- [19]The Tribunal referred to the High Court decision of Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at paragraph [47] where Hayne, Haydon, Crennan and Kiefel JJ observed:
This court has stated on many occasions that the task of statutory construction must begin with the consideration of the text itself. Historical consideration of extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular mischief it is seeking to remedy. [Citations omitted]
- [20]The purpose and objective of the Internal Review Process was to enable a dissatisfied person to apply for an internal review of QBCC decisions that had the potential to go to the Queensland Civil and Administrative Tribunal; essentially, to reduce the number of applications for review being made to QCAT. Presumably also, its intent was to deal with them informally, quickly and to reduce the red tape and costs associated with such review applications.
- [21]The Commission argued that without a formal application for an Informal Review, those responsible for administering the Internal Review Process at the Commission would be unaware of the “application”. I was informed from the Bar Table that the Commission receives many hundreds of letters daily, and without some indication that an Internal Review was sought, it would be difficult to regulate the process.
- [22]It is clear from Mr Chan’s correspondence that, firstly, English is not his first language. That is conceded by the Respondent. The grammatical errors in the letters clearly indicate that. However, the meaning he intended to convey was clear, and that was that he not only disputed the Direction to Rectify and the decision to impose a debt on his company, but he also disputed the Scope of Works. The Commission, obviously, was aware that the letter of 25 March 2015 could not be considered an application to review the Notice of Debt as such a review was not permitted under the Act. Therefore, could it be interpreted as a request to review the Scope of Works?
- [23]The Commission submitted that Mr Chan and his company, Goldfield, were experienced litigants in this area. Mr Chan had made a number of applications for review, one of which is still pending before the Tribunal. Although he may have some difficulty expressing himself, he nevertheless is familiar with the review process.
- [24]The approach of the Tribunal is different to that of the Courts in that as past President Justice Alan Wilson said in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments[2]:
… The QCAT Act exhorts the tribunal to eschew formality and technicality and a failure, by a party which is not represented by lawyers, to plead its primary relief with precision ought not deny it a right to ancillary relief if, as here, what is actually sought is tolerably clear. I would not deny Ralacom relief merely because of a shortcoming in the application it filed.
- [25]Those remarks are very much relevant here.
- [26]I agree that when he wrote that letter he did not have in mind that it was to be an application to internally review the Scope of Works. However, he was disputing the scope of works and had he been asked whether that was what he wanted his letter to achieve, I expect his answer would have been a resounding “yes”. The Commission is responsible for regulating and administering the Internal Review Procedure and as such, should have given the Applicant the benefit of the doubt and considered the letter as seeking an internal review of the scope of woks.
- [27]In cases such as this one should always have in the forefront of one’s mind the words of Dixon J (as he then was) in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at p 91 where his Honour said ‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. ...once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’ In General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 at 130 Barwick CJ referred to the above passage and said, ‘in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.’
- [28]The Commission has not responded to the application for internal review. Time has expired for a response and the the decision being reviewed stands. Goldfield is entitled to bring an external application for review of the scope of works including the varied scope of works. Were it to do so the internal review application lapses.[3]
- [29]In all the circumstances, I am not prepared to strike out the review application. I dismiss the Commission’s application for strike out.
- [30]Both parties claimed costs in respect of this matter; both parties were legally represented. However, in my opinion, this is not an appropriate time to consider the issue of costs and I reserve the question of costs to the Tribunal that hears the Goldfield substantive application for review of the Scope of Works, hopefully, which will be heard together with the Direction to Rectify review.