Murphy v Queensland Building and Construction Commission
[2017] QCAT 164
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- Unreported Judgment
- Murphy v Queensland Building and Construction Commission[2017] QCAT 164
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Murphy v Queensland Building and Construction Commission[2017] QCAT 164
Murphy v Queensland Building and Construction Commission[2017] QCAT 164
CITATION: | Murphy v Queensland Building and Construction Commission [2017] QCAT 164 |
PARTIES: | Brett Leslie Murphy (Applicant) v Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | GAR250-16 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Allen |
DELIVERED ON: | 26 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where respondent claimed the Tribunal lacked jurisdiction to hear review application – whether decision to withdraw direction to rectify constituted a reviewable decision. Queensland Building and Construction Commission Act 1991 (Qld) s 86, s 87 Queensland Civil and administrative Tribunal Act 2009 (Qld) s 17 s 47 Aigner v State of Queensland and Anor [2012] QCAT 397 Cowie v Commissioner of State Revenue [2012] QCAT 612 |
APPEARANCES:
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).
REASONS FOR DECISION
- [1]Mr Murphy engaged Woodsy’s Contracting Services to perform building work being the restumping of the house at his mother’s residence in Rockhampton. He was not satisfied with the work and made a complaint to the Commission. The Commission inspected the building work and issued a direction to rectify to Mr Ross Kevin Wood (the original direction to rectify). The Commission was provided with new information and advised Mr Murphy by letter of 19 September 2016 that the direction to rectify was withdrawn and issued a new direction to rectify to Mr Jie Wood.
- [2]Mr Murphy made an application to the Tribunal to review the decision to withdraw the original direction to rectify. The Commission has made an interlocutory application to the Tribunal to have the application to review dismissed on the basis that the Tribunal does not have jurisdiction to review the application.
- [3]The Tribunal may dismiss an application where it is either frivolous, vexatious or misconceived or lacking in substance or otherwise an abuse of process[1]. The Tribunal only uses this power sparingly where for example the Tribunal does not have jurisdiction to hear a matter and determined that the application lacks substance[2]. The Tribunal has previously considered the relevant cases and noted
“The High Court of Australia has taken a cautious approach in such cases to ensure that the interests of justice are met.
The authorities suggest that there must be a plain and obvious case that the substantive case will not succeed before a decision is made to prevent a claimant submitting a case for determination. If it appears that there is a case to be determined as to fact or law then that case should not be summarily dismissed as frivolous or as an abuse of process.”[3]
- [4]The Commission submits that:
- The Tribunal’s review jurisdiction arises is the jurisdiction conferred on the Tribunal by an enabling Act[4];
- Statutes creating specialist tribunal usually define their jurisdiction with some particularity if only because they only have such jurisdiction as is expressly conferred on them[5].
- Section 87 of the QBCC Act empowers the Tribunal to review “reviewable decisions” of the Commission upon application by a person affected by the reviewable decision. The Tribunal’s jurisdiction is thus confined to reviewing decisions of the Commission which are described as reviewable decisions by s 86(1) of the QBCC Act.
- The Commissions decision is designated as a “reviewable decision” in s 86(1) of the QBCC Act.
- While the Commission accepts that “a decision to give a direction to rectify or remedy or not to give the direction” is designated as a “reviewable decision” in section 86(1) of the QBCC Act, the Commissions submits s 86(1)(e) does not extend to a decision to withdraw a direction to rectify.
- As a result, the Commissioner submits that the withdrawal decision referred to in the review application is not a “reviewable decision”, and therefore, the review application is misconceived and incorrectly made.
- [5]Amongst other submissions, Mr Murphy submitted that “the respondent has submitted that a decision to revoke a direction to rectify is not a decision not to give a direction to rectify. That normal usage of the English language determines that a decision to revoke a direction is a decision not to give a direction.”
- [6]Mr Murphy notes that the Commission in an email to him had asserted that it had the power to change to change the decision at any time pursuant to s 24AA of the Acts interpretation Act 1954 (Qld). Mr Murphy submits that s 24AA does not give the decision maker the jurisdiction to revoke decisions without observing natural justice nor to revoke valid adjudicative decisions when the review process has not been complied with.
- [7]The Commission has provided a Statement of Reasons (SOR) in regard to the decisions subject to review. The documents attached to the SOR include:
- Direction to Rectify No 0100883 dated 22 august 2016 issued to Ross Kevin Wood[6];
- Letter to Brett Murphy dated 22 August 2016 enclosing the Direction to Rectify[7]
- letter to Ross Wood dated 19[8] September 2016 advising that Direction to Rectify No 0100883 had been withdrawn[9];
- Direction to Rectify No 0101003 dated 19 September 2016 to Jie Wood[10]; and
- Letter to Thelma Murphy dated 19 September 2016 enclosing the Direction to Rectify[11].
- [8]Each of the documents apart from the letter to Ross Wood advising of the withdrawal of the original direction to rectify had a notice about the party’s rights including the right to review the decision. The Commission has thereby asserted that the withdrawal decision is not one subject to review by the Tribunal. Clearly, in sending the letter to Mr Ross Wood the Commission has made a decision.
- [9]I accept the submissions of the Commission that the Tribunal’s jurisdiction concerning the review of Commissions decisions requires that the decision subject to the review must be one of those set out in s 86 of the QBCC Act.
- [10]The decision which Mr Murphy seeks to review is characterised by the QBCC as a decision to withdraw a direction to rectify which the QBCC submits is not a decision subject to s 86 as the decision is not one to give or not to give a direction. Mr Murphy submits that the decision to withdraw the direction should be treated in the same way as a decision not to give a direction.
- [11]Mr Murphy made a complaint about the building work of Ross Kevin Wood[12] and ultimately the Commission has determined not to issue a direction to rectify against 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(e) of the QBCC Act and should have been treated as such by the Commission.
- [12]The Tribunal therefore has jurisdiction to hear the application for review and the application for dismissal must be dismissed.
Order
- [13]The Commissions application to dismiss under s 47 of the QCAT Act is dismissed.
Footnotes
[1]QCAT Act, s 47.
[2]Cowie v Commissioner of State Revenue [2012] QCAT 612.
[3]Aigner v State of Queensland and Anor [2012] QCAT 397.
[4]QCAT Act, s 17.
[5]Fraser Property Developments Pty ltd v Sommerfield (No 1) [2005] QCA 134 at [26].
[6]SOR-14.
[7]SOR-14.
[8]Amended due to typographical error on 5 July 2017.
[9]SOR-18.
[10]SOR-19.
[11]SOR-19.
[12]SOR-4.