Murphy v Queensland Building and Construction Commission
[2017] QCAT 344
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- Unreported Judgment
- Murphy v Queensland Building and Construction Commission[2017] QCAT 344
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Murphy v Queensland Building and Construction Commission[2017] QCAT 344
Murphy v Queensland Building and Construction Commission[2017] QCAT 344
CITATION: | Murphy v Queensland Building and Construction Commission [2017] QCAT 344 |
PARTIES: | Brett Leslie Murphy (Applicant) v Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | GAR009-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 19 July 2017 |
HEARD AT: | On the papers |
DECISION OF: | Acting Senior Member Paratz |
DELIVERED ON: | 13 October 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – GENERALLY – Where an application was made to the Queensland Civil and Administrative Tribunal to review a decision – where an application was made to refer part of the proceeding as to jurisdictional error to the President or to the Supreme Court of Queensland – where an application to cancel an experts conclave was made – where the holding of an experts conclave was required by a Practice Direction Queensland Building and Construction Commission Act (Qld) 1991 s 72(4), 86(1)(f), 87 Queensland Civil and Administrative Tribunal Act (Qld) 2009, s 19(c), 20, 24, 52, 117 Kirk v Industrial Relations Commission of New South Wales & Anor [2010] HCA 1; (2010) 239 CLR 531 Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 QBSA v Mark Cullinan Consulting Pty Ltd [2013] QCATA 116 |
APPEARANCES: |
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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]These are the reasons for decision in an interlocutory application in these proceedings.
- [2]The Queensland Building and Construction Commission (QBCC) gave Directions to Rectify on 19 September 2016 to a builder in relation to a residential house owned by Brett Leslie Murphy (the homeowner) at 56 Wandal Road, Wandal in Queensland.
- [3]The QBCC then made a decision on 13 December 2016 as follows:
I refer to the site inspection of 12 December 2016, when it was confirmed that the contractor has attended to the items listed in the Direction dated 19 September 2016.
No further action will be taken by QBCC in relation to this matter.
- [4]The homeowner was dissatisfied with that decision of the QBCC made on 13 December 2016, and filed an Application to review a decision in the Tribunal on 10 January 2017, in relation to that decision.
- [5]Directions were made by the Tribunal on 15 June 2017 for the filing of expert evidence by the homeowner by 29 June 2017, and the holding of an experts conclave on 31 July 2017.
- [6]The homeowner filed an Application for Miscellaneous Matters on 22 June 2017 applying for the following Directions:
- Transfer of part of proceeding concerning jurisdictional error to Supreme Court – s 52 QCAT Act (or referral to president S117 QCAT Act).
- S 62 QCAT Act – annulment of expert’s conclave and direction to parties to determine (between themselves) the questions of fact and law to be determined by Tribunal; or
- S 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 2 weeks to submit expert evidence.
- [7]The application for miscellaneous matters filed by the homeowner was accompanied by a letter dated 19 June 2017 making submissions in support of the application.
- [8]Directions were given by the Tribunal on 26 June 2017 as follows:
- Brett Leslie Murphy will give one (1) copy to Queensland Building and Construction Commission the application for miscellaneous matters and written submissions in support of the application by 4pm on 30 June 2017.
- Queensland Building and Construction Commission will file in the Tribunal and give to Brett Leslie Murphy written submissions in response to the application for miscellaneous matters by 4pm on 7 July 2017.
- The application for miscellaneous matters will be determined on the papers by written submissions from the parties, and without an oral hearing, not before 4pm on 7 July 2017.
- [9]Submissions dated 7 July 2017 were filed by the QBCC and received in the Tribunal on 10 July 2017.
- [10]The matter was referred to me as Acting Senior Member on 19 July 2017 for a decision on the papers as to the miscellaneous application.
- [11]As the experts conclave was set for a date about one and half weeks later, I gave a decision and directions without reasons on 19 July 2017, in order to progress the matter, and to enable the experts conclave to proceed as scheduled. My decision and directions were as follows:
- The application for miscellaneous matters filed 22 June 2017 by Brett Leslie Murphy is dismissed.
- The experts conclave listed on 31 July 2017 is confirmed, provided that Brett Leslie Murphy files expert evidence in accordance with Direction 1 of the directions dated 15 June 2017 by 4pm on 28 July 2017.
- If Brett Leslie Murphy fails to file expert evidence as provided for in the direction above, the expert’s conclave will be vacated at 4pm on 28 July 2017.
- [12]The homeowner filed a Request for Reasons on 28 July 2017. These are the reasons for my decision of 19 July 2017.
Submissions of the homeowner
- [13]The homeowner referred to his application for review where he referred to the decision of the QBCC as being a ‘jurisdictional error of law’. The relevant part of the application said:[1]
The engineering requirements for the work have not been complied with. The engineering report that has been provided to me specified footing depths of 900-950mm. This requirement has not been satisfied. The builder used previous depths which are significantly less than 900mm (see attached photos). 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 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 - please refer to the following authorities: Commissioner of Taxation v Futuris Ltd (2008) 237 CLR 146; Kirk (2010) 239 CLR 531; Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24.
- [14]He submitted that the QCAT Act does not distinguish between factual merits review and legal merits review, and that ‘the course of the proceeding indicates that the tribunal is conducting an investigation into the factual merits of the decision’.
- [15]He requests that if the Tribunal’s position is that its jurisdiction does not allow it to make a determination with respect to the jurisdictional error submission, that that this part of the proceeding be referred to the Supreme Court for a judicial determination.
- [16]Alternatively, he requests that if the Tribunal’s position is that its jurisdiction does extend to making a determination with respect to the jurisdictional error of law submission, that the question be referred to the President for determination.
- [17]As to the need for an experts conclave, he raises an argument as to a ‘temporal element’ in s 72(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), that if defective building work is not rectified within 28 days the owner is entitled to payment for defective construction under the insurance policy. He submits that in order to reach the correct and preferable decision in a defective construction review, an experts conclave is not necessary.
Submissions of the QBCC
- [18]The QBCC filed a 14-page response with 162 pages of attachments.
- [19]The QBCC submits that the homeowner does not demonstrate that a jurisdictional error has occurred, or illuminate why the Tribunal lacks jurisdiction to determine whether the Contractor has satisfactorily rectified the works.[2]
- [20]The QBCC submits that there is no evidence that the subject matter of the proceeding would be more appropriately dealt with by the Supreme Court.[3]
- [21]The QBCC submits that the correct forum for the determination of the review of the decision is in a merits review proceeding conducted by the Tribunal at the hearing of the matter.[4]
- [22]In relation to the experts conclave, the QBCC submits that the homeowner has misinterpreted the effect of s 20 of the QCAT Act with respect to the Tribunal’s obligation to hear and decide a review of a reviewable decision by way of a fresh hearing on the merits, and says:[5]
Fresh evidence is admissible. For the purposes of a merits review both the information and documentation relied upon at the time of the decision plus any fresh evidence adduced since the date of the decision is the relevant evidence to be relied upon by the tribunal in making a determination. Mr Stanfield’s report is fresh evidence which addresses the interpretation of AS2870 and the BCA.
- [23]
Mr Abaza is mistaken in the view that the tribunal’s review proceeding is ‘fixed’ or limited by the decision maker’s initial decision. In deciding a review, the tribunal must hear and decide the issue by way of a fresh hearing on the merits. The tribunal may receive fresh evidence about the issues, the decision maker may change its position and the tribunal may make a different decision. None of those factors makes the review an abuse of process. Of course, the tribunal should not make a decision based on material that one party (or both parties) has not seen and on which there has been no opportunity to comment…
- [24]As to the homeowner’s contention that he was entitled to payment from the insurance scheme upon a failure to comply with direction to rectify within 28 days, the QBCC says:[8]
The applicant has misinterpreted the effect of section 72(4) of the QBCC Act. The Commission’s power with respect to the timeframe for which a direction must be complied with is discretionary not mandatory. There is no automatic entitlement to payment under the statutory insurance scheme if a direction is not complied with within twenty-eight (28) days or within any period of time.
Discussion
- [25]The role of the Tribunal in a review hearing is clear and well established. On review, the Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision; or set aside the decision and return the matter to the decision-maker.[9]
- [26]
- [27]The homeowner refers to ‘jurisdictional error’ in his miscellaneous application. That expression refers to questions as to whether a tribunal has power to hear the matter. Justice Leeming of the Supreme Court of New South Wales has described it as follows:[12]
The term ‘jurisdictional error’ defines the limits of legislative, executive and judicial power – for it is not possible for any Legislature to deny jurisdiction to the High Court or the state Supreme Courts to review for ‘jurisdictional error’. It specifies a limitation upon the exercise of executive power, whose validity will always be judicially reviewable if affected by ‘jurisdictional error’. At the judicial level, it delineates the constitutionally entrenched jurisdiction of the High Court and state Supreme Courts, which extends not only to exercises of executive power, but to jurisdictional errors made by other courts. That supervisory jurisdiction is a ‘defining characteristic’ of those courts, supplementing the (largely statutory) appellate structure.
- [28]There can be no question that the Tribunal has jurisdiction to review a decision of the QBCC as to a Direction to Rectify. That power is expressly given by s 86(1)(f) and s 87 of the QBCC Act, which provide:
86 Reviewable decisions
- (1)Each of the following decisions of the commission under this Act is a reviewable decision –
…
- (f)a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard;
…
87 Application for review
A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.
- [29]The homeowner has referred to several cases in relation to his submission as to jurisdictional error, but has not identified what in those cases is relevant. The decision in Kirk[13] which he cites, for example, reinforces the capacity of the Tribunal to determine a question of fact. The High Court said:[14]
The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between "on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ". The Court said that:
"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
- [30]No question of jurisdictional error therefore arises in this matter.
- [31]It is possible that the homeowner was intending to refer to an error in relation to a ‘jurisdictional fact’. The meaning of that expression was discussed in Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford.[15]
- [32]In that case the Appeal Tribunal noted:[16]
[44] One of the grounds of appeal relies on an error of mixed law and fact by the learned member in finding, as a jurisdictional fact, that the obstruction of the view caused by the tree was severe. A “severe obstruction” for the purposes of s 66 of the NDA is a jurisdictional fact. In BKE v Office of Children’s Guardian & Anor, Beech-Jones J identified three relevant standards concerning appeals regarding findings of fact:
a. Where the power or jurisdiction of the tribunal depended upon the objective determination of the facts being challenged;
b. Where the facts being challenged form part of the determination of a state of satisfaction or an opinion upon which the exercise of power or jurisdiction by the tribunal depended – a “jurisdictional fact”;
c. Where the challenged facts do not constitute part of the formation of the opinion or state of satisfaction ie they are not a jurisdictional fact.
[45] The meaning of a “jurisdictional fact” has been expressed thus:
The doctrine of jurisdictional fact can only have application where the statute in question requires the existence of a particular fact or facts as a condition of the exercise of jurisdiction. It is only where, in the words of Spigelman CJ in Timbarra at [39], “the statutory formulation...contains a factual reference” that the possibility arises that the factual reference in question may be a jurisdictional fact.
[46] The term “jurisdictional fact” is applied not only to facts, but also to a mixture of fact and opinion, and to a pure opinion.
- [33]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.
- [34]A question of law may be referred to the President of the Tribunal, under s 117 of the QCAT Act. The Tribunal may refer a part of a proceeding which it considers would be more appropriately dealt with by a court to that court, under s 52 of the QCAT Act.
- [35]The homeowner has applied for the transfer of ‘part of proceeding concerning jurisdictional error’ to the Supreme Court or the President.
- [36]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.
- [37]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.
- [38]The holding of an experts conclave is a standard and mandatory step in the Tribunal, which is required in proceedings of this type. The holding of an experts 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.
- [39]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.
- [40]There being no valid basis to refer the matter the matter to the President or the Supreme Court, or to deviate from the usual procedure as to the holding of an experts conclave, the Application for Miscellaneous matters is dismissed.
Footnotes
[1] Application to review a decision filed 10 January 2017, Part C.
[2] Submissions in response to an application for miscellaneous matters filed by the applicant on 22 June 2017, [35(b)].
[3] Ibid, [35(d)].
[4] Ibid, [35(h)].
[5] Ibid, [42] – [43].
[6] [2013] QCATA 116.
[7] Ibid, 8.
[8] Submissions in response to an application for miscellaneous matters filed by the applicant on 22 June 2017, [49(a)].
[9] QCAT Act, s 24.
[10] QCAT Act, s 19(c).
[11] QCAT Act, s 20.
[12] Mark Leeming, ‘The riddle of jurisdictional error’ (2014) 38 Australian Bar Review 139.
[13] Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
[14] Ibid, [67], quoting Craig (1995) 184 CLR 163, 176, 179.
[15] [2016] QCATA 203.
[16] Ibid, [44] – [46], quoting BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523, Australian Postal Corporation v D’Rozario (2014) 222 FCR 303, citing Timbarra Protection Coalition Inc v Ross Mining NL [1999] 46 NSWLR 55, Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.