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  4. Bloomer Constructions (Qld) Pty. Ltd. v Queensland Building and Construction Commission - [2016] QCAT 374

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Bloomer Constructions (Qld) Pty. Ltd. v Queensland Building and Construction Commission[2016] QCAT 374

Bloomer Constructions (Qld) Pty. Ltd. v Queensland Building and Construction Commission[2016] QCAT 374

CITATION:

Bloomer Constructions (Qld) Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 374

PARTIES:

Bloomer Constructions (Qld) Pty Ltd (Applicant)

 

v

 

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR203-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

20 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1.   The Application is dismissed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – JURISDICTION - whether notice contains a reviewable decision – whether application should be dismissed for want of jurisdiction

 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 47

Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 86E

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REPRESENTATIVES:

 

APPLICANT:

represented by Romans and Romans Lawyers

RESPONDENT:

represented by HWL Ebsworth Lawyers

REASONS FOR DECISION

  1. [1]
    By notice addressed to Bloomer Constructions (Qld) Pty Ltd ‘Attn: Mr Wayne Bloomer’ with a salutation ‘Dear Directors’ dated 13 July 2016 (the Notice) the Queensland Building and Construction Commission advised:

the Commission considers have (sic) carried out ‘Tier 1 defective work’ as defined by section 67AB of the Queensland Building and Construction Commission Act 1991.

  1. [2]
    Bloomer Constructions filed an application to review a decision stating that the details of the decision to be reviewed were:

Tier 1 Defective Work, Reference No. 3-3195-15[1]

  1. [3]
    The reason why the decision was stated to be wrong or not properly made was:

The purported defects do not amount to Tier 1 Defective Work. 

  1. [4]
    Pursuant to directions dated 15 September 2016, the issue for determination is whether the Notice contains a reviewable decision or whether the application ought to be dismissed for want of jurisdiction.
  2. [5]
    The Tribunal is a creature of statute and has no inherent jurisdiction.  The Tribunal’s review jurisdiction is the jurisdiction conferred by an enabling Act to review a decision made by another entity under the enabling Act.[2]
  3. [6]
    The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).  Bloomer Constructions contends that the Notice contains a reviewable decision pursuant to s 86(1)(e) and/or s 86(1)(n) of the QBCC Act.

Section 86(1)(e)

  1. [7]
    Bloomer Constructions contends that in issuing the Notice the QBCC decided, at that time, not to issue a direction to rectify pursuant to s 72 of the QBCC Act such that the decision constitutes a decision not to issue a direction to rectify, which is a reviewable decision under s 86(1)(e).  Bloomer Constructions acknowledges that the QBCC subsequently made a decision to issue a direction to rectify and contends that the QBCC ought to withdraw its original decision.[3]
  2. [8]
    I find that the Notice does not contain a reviewable decision under s 86(1)(e) of the QBCC Act.
  3. [9]
    The scheme of the QBCC Act is to define specific decisions as reviewable decisions. Sections 86 and 86E of the QBCC Act sets out the decisions, which are reviewable decisions.  The evident purpose of listing specific decisions, which are reviewable, is to limit the decisions able to be reviewed and to clearly identify those decisions, which are reviewable. 
  4. [10]
    I accept the QBCC’s submission that the logical result of accepting Bloomer Constructions’ interpretation is that every decision made or thing done or not done by the QBCC, which was not a decision to issue a direction to rectify would be implicitly a decision not to give a direction to rectify. 
  5. [11]
    Bloomer Constructions does not give any authority for the proposition it advances.
  6. [12]
    I am not satisfied that the QBCC Act is to be interpreted in such a broad way.  Such an interpretation would be contrary to the scheme of specifying particular decisions that are reviewable.

Section 86(1)(n)

  1. [13]
    Bloomer Constructions contends that the Notice is a reviewable decision under s 86(1)(n) because it is ‘incidental’ to the director, secretary, influential person and/or nominee of Bloomer Constructions receiving notice under s 67AL of the QBCC Act.
  2. [14]
    I find that the Notice does not contain a reviewable decision under s 86(1)(n) of the QBCC Act.
  3. [15]
    Section 86(1)(n) provides:

a decision under section 67AH, 67AI, 67AL or 67AM that an individual is a banned individual for a stated term.

  1. [16]
    There is no evidence before me that any notice under s 67AL has been given.  Section 67 AL of the QBCC Act relates to notification of a decision to cancel the  licence of the director, secretary, influential person and/or nominee and  that the person is taken to not be a fit and proper person under the QBCC Act.
  2. [17]
    Bloomer Constructions contends that it is a person affected by the decision as:
    1. it was the entity that was engaged to carry out the works;
    2. the individuals to which a s 67AL notice is issued have a direct affect on Bloomer Constructions’ licence because its licence must be cancelled if an individual is banned under s 67AL and continues to be a director, secretary, influential person or nominee of Bloomer Constructions.
  3. [18]
    The QBCC contends that the Notice was a notice under s 67AJ of the QBCC Act, which is a necessary step, i.e. the seeking of submissions prior to the QBCC making a decision whether or not the individual is a banned individual under s 67AL of the QBCC Act.  It is unfortunate that the QBCC did not specifically refer to s 67AJ in the Notice. 
  4. [19]
    Bloomer Constructions contends that the Notice should not be regarded as a notice under s 67AJ as it is defective in a number of respects and that another notice under s 67AJ, a copy of which is not before me, was issued on 30 August 2016. 
  5. [20]
    On the face of the Notice, it appears likely that it was intended to be a notice under s 67AJ of the QBCC Act.  It is not necessary for me to determine whether or not it was defective. 
  6. [21]
    As stated earlier in these reasons, the scheme of the QBCC Act is to define specific decisions as reviewable decisions. Sections 86 and 86E of the QBCC Act sets out the decisions, which are reviewable decisions.  The evident purpose of listing specific decisions, which are reviewable, is to limit the decisions able to be reviewed and to clearly identify those decisions, which are reviewable. 
  7. [22]
    Bloomer Constructions does not give any authority for the proposition it advances that s 86(1)(n) should be construed as to include not only the decisions specifically set out but also any ‘incidental decisions’.
  8. [23]
    I am not satisfied that the QBCC Act is to be interpreted in such a broad way.  Such an interpretation would be contrary to the scheme of specifying particular decisions that are reviewable.

Conclusion

  1. [24]
    I find that the Tribunal must dismiss this application, as it does not have jurisdiction to entertain it.[4]

Footnotes

[1] Reference appears on the Notice.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 17.

[3] Whether the Notice ought to be withdrawn by the QBCC is not a matter relevant to my determination of whether the Notice contains a reviewable decision or whether the application ought to be dismissed for want of jurisdiction.

[4] QCAT Act s 47.

Close

Editorial Notes

  • Published Case Name:

    Bloomer Constructions (Qld) Pty. Ltd. v Queensland Building and Construction Commission

  • Shortened Case Name:

    Bloomer Constructions (Qld) Pty. Ltd. v Queensland Building and Construction Commission

  • MNC:

    [2016] QCAT 374

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    20 Oct 2016

Appeal Status

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

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Haidar v Queensland Building and Construction Commission [2024] QCAT 2932 citations
1

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