Stephenson v QBCC[2017] QCAT 212

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. [1]
   Mr Stephenson contracted with a builder for the construction of building works. In April 2015 he lodged a claim with the Queensland Building and Construction Commission (‘QBCC’) for defective and incomplete work under the contract. A Home Owners Warranty Assessment Report was completed on 18 August 2015 and a decision about the scope of works was made by Chris O'Shannessy of QBCC on 6 October 2015 (the ‘Scope of Works decision’). That decision included a notice advising Mr Stephenson of a right of review to this Tribunal.
2. [2]
   Following the Scope of Works decision there was ongoing discussion between Mr Stephenson and the QBCC. Mr Stephenson sent a letter dated 12 September 2016 advising that the original Scope of Works decision would not adequately address the extensive issues at the site, referring to both the issues that had been previously identified and to various defect areas not mentioned in the scope of works, some of which had only emerged recently.
3. [3]
   On 5 October 2016 Marie-France Wellington of the QBCC wrote back stating that the issues which had emerged recently would require a new claim and  then referred to the appeal rights under the original decision. Mr Stephenson responded on 17 October seeking an internal review of the 5 October 2016 ‘decision’ by Marie-France Wellington on the ground that it did not respond to the substantive issues raised in his previous letter.
4. [4]
   On 23 November Nancy Alexander of the QBCC Internal Review Unit responded,  referring to a request for an internal review of the original Scope of Works decision of 6 October 2015, as opposed to the letter of 5 October 2016, and refused the request for an internal review on the basis that the 2015 decision was out of time.
5. [5]
   On 19 December 2016 Mr Stephenson applied to the Tribunal for a review of the following decisions by:

   1. The decision dated 23 November 2016 to refuse to review previous decision of the QBCC (‘the IRU letter’);
   2. Further and in the alternative, a decision dated 5 October 2016 about a scope of work (‘the 5 October 2016 letter’);
   3. Further and in the alternative a decision dated 6 October 2015 about a scope of work (‘the Scope of Works Decision’).
6. [6]
   In addition to these reviews, Mr Stephenson applied to the Tribunal to extend the time to seek reviews of the Scope of Works decision and the 5 October 2016 letter.
7. [7]
   By Directions dated 6 April 2017, Senior Member O'Callaghan directed Mr Stephenson clarify and advise which decisions he is seeking to review  by his application. A further Direction indicated that the Tribunal would determine which, if any, of the decisions are reviewable, on the papers. This decision will address that question.
8. [8]
   By letter filed 19 April 2017 Mr Stephenson confirmed he is seeking to review the decisions as set out above.

The Scope of Works Decision

9. [9]
   It is accepted by both parties that the Scope of Works decision is capable of being reviewed because it is ‘a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work’.^[1] However, the QBCC says the Tribunal no longer has jurisdiction. It argues this outcome results from the time period contained in s 86F(1)(c) of the QBCC Act which imposes a substantive rule of law and a condition of jurisdiction, not merely a procedural rule. This provision states:

(1) The following decisions of the commission under this Act are not reviewable decisions under this subdivision—

…

(c) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision.

10. [10]
    The QBCC provides a number of authorities supporting its view.^[2] It concedes, however, that those cases refer to applications made by the building contractor not, as in this case, by the home owner. It ‘submits the only sensible interpretation of the section is that it refers to any person as the section is not concerned with the identification of the person affected by the reviewable decision but rather the identification of the decision.’^[3]
11. [11]
    Mr Stephenson submits that the construction proposed by the QBCC, which in effect substitutes the words ‘any person’ for the words ‘building contractor’, is not correcting an ambiguity but ‘imports reference to an additional party that was specifically excluded by the drafters.’^[4] This position is supported by a previous Tribunal decision.^[5]
12. [12]
    It is disappointing that the QBCC, in its role of assisting the Tribunal^[6] as a model litigant,^[7] did not include those cases that both supported and challenged its position.
13. [13]
    I accept that the interpretation promoted by the QBCC in fact rewrites the section and results in an outcome inconsistent with the actual words used when there is no need to do so. The section is clear, it imposes an obligation on the building contractor to bring an application within 28 days of service of the decision and, if that is not done, the decision becomes a non-reviewable decision. For the homeowner the normal procedural provisions apply.^[8] These provisions still require an application to be made within 28 days but allow for an extension of time to be granted in appropriate circumstances.
14. [14]
    Section 86F(1)(b)(i) does not operate to prevent Mr Stephenson from seeking a review of this decision.
15. [15]
    Mr Stephenson filed an interlocutory application dated 19 December 2016 to extend time to file an application to review this decision, among others. He submits the appropriate outcome for this application is for an extension of time to be granted. The QBCC, in its letter to QCAT dated 25 January 2017, states that it does not object to the extension of time being granted for the decision “dated 5 October 2015.” Because the letter accepts that this is a reviewable decision, and goes on to refer to the “purported decision… dated 6 October 2016”, it appears there has been a typing error and reference is really being made to the decision letter of 6 October 2015.
16. [16]
    The Tribunal may extend a time fixed for the start of a proceeding.^[9] In these circumstances I will grant an extension of time to allow the application for a review of the decision dated 6 October 2015 to be filed by 19 December 2016.

The 5 October 2016 letter

17. [17]
    Mr Stephenson submits the letter dated 5 October 2016 is a letter about the scope of works and is therefore reviewable because it can be characterised as a decision about the scope of works to be undertaken, namely a decision to not expand the scope of work. The QBCC says the letter was written in response to Mr Stephenson’s letter of 12 September 2016 to advise him that his file had been closed.
18. [18]
    Not every letter written by an Authority is a decision. To be a decision of the QBCC it must be made either in response to a claim or application by a person involved in a building dispute or, if initiated by the QBCC, under a defined and identified power. A decision had been made on Mr Stephenson’s original claim from April 2015 and therefore no further decision could be made on that claim. Mr Stephenson did not request an internal review of the decision within either the 28 day period or some other date agreed to by the QBCC. Because he did not do so there was no application upon which a decision could be made. I have therefore formed the view that this letter was not a decision but rather a statement of the existing position. This is consistent with the QBCC’s statement that he could bring a new application to claim those defects which had not been identified initially. There is no attempt made to determine the merits of what Mr Stephenson was saying, merely procedural advice that one file had been closed and that a further file could be opened by a new application.
19. [19]
    It is unfortunate the review notice was included in the way it was. It caused confusion. However having a notice for review on a letter cannot convert it into a reviewable decision if the content of the letter is not reviewable.
20. [20]
    I am satisfied the letter of 5 October 2016 was not a decision for the purpose of the QBCC Act and is not able to be reviewed.

The IRU letter

21. [21]
    The letter of 23 November 2016 fails to address the issue raised by Mr Stephenson in his request for a review of the ‘decision’ dated 5 October 2016 by Marie-France Wellington. The QBCC refused to deal with his request for a review of the letter dated 5 October 2016 because it confuses it with the letter dated 6 October 2015. Mr Stephenson carefully identified the decision maker by name to avoid confusion but the mistake was still made. He wanted a review of the letter which failed to deal with his ongoing concerns and new issues.
22. [22]
    The QBCC, after failing to correctly identify the ‘decision’ to be reviewed then refused the internal review by considering the delay of 381 days. It says because the IRU application was not correctly made within the requirement of section 86B (i.e. within 28 days) no decision could be made under section 86C^[10]. This is clearly wrong. If a review is requested it can be refused on the basis that there is no reviewable decision. This decision, if appropriate, can be reviewed. This is in fact what was done and notice of review rights were provided in that letter. At that point the IRU letter was a reviewable decision.
23. [23]
    However, I have now decided that the letter dated 5 October 2016 was not a reviewable decision, and therefore the application to review in the Tribunal the internal review of that letter must fail on its merits.
24. [24]
    The application to review the IRU decision dated 23 November 2016 is therefore dismissed.
25. [25]
    I therefore make orders as follows:

1. The Scope of Works decision dated 6 October 2015 is a reviewable decision.
2. The time for filing an application to review the decision dated 6 October 2015 is extended to 19 December 2016.
3. The letter dated 5 October 2015 is not a reviewable decision.
4. The application to review the IRU decision of 23 November 2016 is dismissed.