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- Unreported Judgment
Vanden Hoven v Queensland Building and Construction Commission QCAT 456
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Vanden Hoven & Anor v Queensland Building and Construction Commission  QCAT 456
RACHEL VANDEN HOVEN
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
General administrative review matters
21 December 2018
30 October 2018
Application GAR114-18 is dismissed.
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where owners and builder purported to terminate the building contract following each other’s alleged default – where complaint made to QBCC about incomplete and defective building work – where owners commenced building dispute proceedings against the builder in the Tribunal – where QBCC determined to await the outcome of the building dispute proceedings before determining the claim by the owners under the statutory home warranty insurance scheme – where QBCC similarly determined to wait before deciding whether to issue directions to rectify defective building work to the builder – where owners sought review of those advices as decisions by application for administrative review filed in the Tribunal – where subsequently QBCC decided to refuse the owners claim under the statutory home warranty scheme and to issue directions to rectify to the builder – where the parties sought and obtained a consent order that the review application would determine the refusal to issue some specific directions to rectify in lieu of the original decisions sought to be reviewed – whether it was beyond the power of the Tribunal to make the consent order or substitute the later decisions in substitution of for the earlier decision founding the review application – where the QBCC refusals to issue specific directions to rectify considered but no order made concerning them
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – CAUSES OF ACTION – where consent order made substituting causes of action in application for review of administrative decision – where substituted causes of action accrued after filing the application for review – where the decisions now sought to be reviewed different and distinct to the original decision for review – whether power of amendment in QCAT Act permits addition of different causes of action accruing after the application for review filed
Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 17, s 18, s 20, s 22, s 64
Uniform Civil Procedure Rules 1999 (Qld), r 375(2)
Azam v Medical Board of Australia  QCAT 611
Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241  QCAT 277
Cobine Pty Ltd v Queensland Building and Construction Commission  QCAT 59
Eshelby v Federate European Bank Ltd  1 KB 423
Insurance Commission Of Western Australia v Antony Leslie John Woodings As Liquidator Of The Bell Group Ltd (In Liq) [No 3]  WASC 44
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16]  WASC 340
NH v Director of Public Prosecutions  HCA 33
Ord v Nursing and Midwifery Board of Australia  QCAT 688
Owen v Menzies  2 Qd R 327
Peterson Management Services Pty Ltd v Body Corporate for the Rocks Resort Community Titles Scheme 9435 (No. 1)  QCAT 541
QBCC v Whalley  QCATA 38
Stone v ACE-I.R.M Insurance Broking Pty Ltd  1 QdR 173
The Sands Gold Coast Pty Ltd v Body Corporate for the Sands  QCAT 69
Sanders v QBSA  QCAT 732
Wigan v Edwards (1973) 1 ALR 497
APPEARANCES & REPRESENTATION:
L Coman of Holding Redlich Solicitors
REASONS FOR DECISION
- The applicants engaged a builder, McFyfe Constructions Pty Ltd, to perform renovation work on a property they owned at Stafford Heights.
- The building work commenced on 10 April 2017. Disagreements arose between them and the builder suspended work on the project in October 2017. Subsequently and variously both parties claimed the other had failed to perform their obligations under the contract and purported to terminate the building contract.
- On 10 October 2017 the applicants filed an application for domestic building dispute against the builder in the Tribunal (BDL241 – 17) seeking orders for rectification of defective building work and completion of incomplete work.
- On about 16 January 2018 the applicants lodged a complaint with the Queensland Building and Construction Commission (QBCC) about the builder performing defective building work. There were 61 items of complaint. The QBCC assessed the complaint as a non-completion claim under the statutory insurance scheme in respect of that part of the work which was incomplete and otherwise a complaint about defective building work.
- On 28 February 2018 an officer of the QBCC sent an email to the applicants saying:
I have considered the submission of both parties and I cannot determine whether the contract has been validly terminated at the fault of the contractor as the reasons which are relied upon in submissions from both parties extend to contractual issues that are currently before QCAT.
Therefore, in circumstances such as those observed here, a court of law (including QCAT) may determine the objective intention of the parties from all of the circumstances in regard to the contract termination.
…therefore, the QBCC at this stage is unable to progress your matter in respect to the non-completion and defective work case.
- Subsequently by letter dated 14 March 2018 QBCC also advised the applicants:
QBCC have made the decision to reserve the right not to issue a direction to rectify to McFyfe Constructions Pty Ltd pursuant to section 83 of the QBCC Act 1991 until the building dispute has been resolved by the tribunal.
- The decision (so-called) of 28 February 2018 was therefore associated with a claim under the statutory insurance scheme and the decision (similarly so-called) of 14 March 2018 about the issuing of a direction to rectify to the builder.
- After receiving that email and that letter, on 28 March 2018 the applicants filed the within application in the Tribunal (GAR114-18) to review those two decisions of the QBCC.
- On 9 April 2018 the QBCC decided that there was insufficient evidence to show that the contract had been validly terminated at the fault of the builder and therefore the applicants’ non-completion claim (the insurance claim) was declined in full.
- The applicants then filed an application in the Tribunal (GAR154–18) seeking review of that decision of 9 April 2018.
- Apparently about this time there were discussions between the applicants and Mr Bassett of the Commission and in result on 11 May 2018 Mr Bassett decided the contract between the applicants and the builder had been properly terminated at the fault of the builder. It is not clear on what basis and pursuant to what power that decision was made.
- Also at or about this time the applicants and the builder independently agreed that the builder should return to the property and perform some rectification work which it did over the period 26 March 2018 to 1 June 2018.
- Mr Smallwood, an inspector with the QBCC, had conducted an initial site inspection in February 2017 and prepared a report about defective or incomplete work observed dated 9 March 2018. He reinspected on 17 May 2018 and prepared a reinspection report dated 31 May 2018. He commented in the reinspection report that the reinspection was to determine whether the builder had carried out remedial work and whether that was finished to a reasonable standard. He declined to issue a direction to rectify under s 83 QBCC Act.
- Also on 31 May 2018 the builder made an application for internal review of the decision of Mr Bassett made 11 May 2018 that the contract had been properly terminated by the owners because of the default of the builder.
- In consequence on 29 June 2018 an internal review of Mr Bassett’s decision resulted in a finding that the owners purported termination of the contract was invalid because there had been insufficient evidence that the builder was in breach of the terms of the contract. In those circumstances it was decided the owners claim under the statutory insurance scheme should be declined.
- On 26 July 2018 the applicants filed yet another application in the Tribunal (GAR251-18) seeking review of the internal review decision of 29 June 2018.
- To further complicate matters, on 4 June 2018, the applicants had made a second written complaint about other defective work to the QBCC. On 26 July 2018 Mr Hulme, another building inspector with the QBCC, conducted an inspection at the property to investigate the matters listed in the second complaint. He completed a report on 31 July 2018 and on 1 August 2018 decided that some items involved non-structural defective building work and some structural defective building work. In respect of the latter he decided to issue a direction to rectify to the builder. In respect of the balance items, he decided no direction to rectify should be given.
- Perhaps, given the confusion from the multiple complaints and applications on foot, the applicants and QBCC then tried to simplify things between themselves and agreed that the original application GAR114-18 should be used as an application to review the decisions of the building inspectors not to issue directions to rectify.
- An order by consent was made in GAR114–18 on 23 August 2018 that the application would be treated as an application to review the decisions of the QBCC inspectors dated ‘21 May 2018 and 1 August 2018’. The reference to 21 May 2018 was a typographical error and it should have been the decision of Mr Smallwood made 31 May 2018.
- The decision of 1 August 2018 was the decision of Mr Hulme, the other building inspector, not to issue a direction to rectify to the builder about certain items in the second set of complaints.
The Tribunal’s Jurisdiction to Amend
- At the hearing of the matter I questioned whether the Tribunal had power to review decisions made after the relevant application to review was filed. Both parties, the applicants and QBCC, maintained the Tribunal had such jurisdiction.
- At the conclusion of the hearing I required the parties to make written submissions about whether the Tribunal had jurisdiction to review in GAR114-18 filed 28 March 2018 decisions of the QBCC made 31 May 2018 and 1 August 2018 respectively.
- QBCC submits the power to amend given the Tribunal under s 64 of the QCAT Act permits the Tribunal to amend the application document in GAR114-18 so as to delete and substitute the existing references to decisions made on 28 February 2018 and 14 March 2018 and substitute instead the decisions made on 31 May 2018 and 1 August 2018.
- QBCC say the amendment power afforded the Tribunal by s 64 is a broad one and should be exercised in accordance with the objects of the QCAT Act. To that end the Tribunal must ensure that proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.
- Further the Tribunal must act with as little formality and technicality as required to properly consider the matters before it.
- QBCC say both parties were agreed that the defective works decisions of 31 May 2018 and 1 August 2018 should form the basis of the review and that was the basis the applicant and QBCC prepared and proceeded at the hearing.
- QBCC said neither party would suffer prejudice by such an order amending the original application pursuant to s 64 and any decision of the Tribunal not to exercise that power and decide that it does not have jurisdiction to review the defective works decisions would have negative consequences for both parties in the form of significant costs thrown away and time lost. Such an outcome would not be in the interests of achieving justice and would be inconsistent with the Tribunal’s objectives.
- A number of decisions of the Tribunal were cited in support of this proposition that the power of amendment under s 64 has and should be given a broad scope.
QCAT Decisions on Amendment
- The Sands Gold Coast Pty Ltd v Body Corporate for the Sands is referred to where Senior Member Brown said:
The Tribunal may, at any time in a proceeding, make an order requiring that a relevant document be amended. This power may be exercised on application or on the Tribunal’s own initiative. A relevant document includes a response. The Tribunal may give a direction at any time in a proceeding (upon application or on its own initiative) and do whatever is necessary for the speedy and fair conduct of the proceeding.
- Senior Member Brown then proceeded, however, to make mention not only of the objects of the Tribunal but also to note that the Tribunal is a creature of statute and as such has no inherent jurisdiction and all its jurisdiction and powers must come from the QCAT Act, the QCAT Rules and the various enabling Acts. I see nothing in the comments of the learned Senior Member to support the contention that the power to amend documents under s 64 extends to power to substitute a decision made after the application to review is filed for the decision made before and founding the application.
- Peterson Management Services Pty Ltd v Body Corporate for the Rocks Resort Community Titles Scheme 9435 (No. 1) is also referred to. The power to amend under s 64 was considered there, but in that matter there was no attempt to add a new cause of action arising after institution of proceedings in the Tribunal. The amendments were said to simply clarify the existing confusing pleadings.
- Another matter referred to is Ord v Nursing and Midwifery Board of Australia where the applicant had action taken against her by the Midwifery Board of Australia in the form of imposition of conditions limiting the performance and conduct of the work she could do. The Board’s decision was made on 8 October 2012.
- The applicant sought review of that decision in the Tribunal. The matter bears a 2012 filing date and therefore the application was made in that calendar year. Before the review was heard by the Tribunal the Board made a further decision changing the conditions imposed on Ms Ord. That later decision was made on 21 August 2013.
- In the reasons for decision the only mention of amendment by Judge Alexander Horneman-Wren SC was made in the following paragraph:
Ms Ord had sought a review of that immediate action decision of the Board in the Tribunal. After the Board made its further decision in August 2013, the Tribunal ordered, pursuant to s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), that the application for review be amended so that the decision to be reviewed was the Board’s decision of 21 August 2013.
- I note it was also said before that, however:
As is apparent from those reasons, the Board had previously imposed conditions on Ms Ord’s registration on 8 October 2012. Those conditions were more onerous and restrictive. They included a prohibition upon Ms Ord from undertaking any roles requiring direct or indirect clinical patient contact until approved to do so by the Board. She was also prohibited from working in a sole charge or supervisory capacity.
- The specific issue about the permissibility to amend to change the decision being reviewed to one made post filing of the application for review was not canvassed and the basis of amendment left unexplained. It appears to be the case however that the later decision was a reiteration of the earlier decision, but remade in terms more favourable to the applicant. It does not appear to be an introduction of a fresh cause of action based on different facts and circumstances occurring after the application was filed in the Tribunal.
- Azam v Medical Board of Australia is referred to, also a decision of Judge Horneman-Wren SC. There, the Medical Board of Australia imposed ‘chaperone’ conditions on Dr Azam’s registration. On 23 May 2013 Dr Azam applied to the Board to have the chaperone conditions amended. Before the Board informed him of its decision about that, on 19 July 2013 Dr Azam applied to the Tribunal to review ‘the failure to decide within a reasonable time an application to remove conditions on the applicant’s registration’.
- The day before his application to the Tribunal, on 18 July 2013, the Board had in fact decided to refuse Dr Azam’s application. His Honour said this about amendment:
On 20 August 2013, the Tribunal ordered, by consent, that pursuant to s 64(1) of the Queensland Civil and Administrative Tribunal Act 2009, the application to review a decision be amended to refer to the decision of the Board to refuse Dr Azam’s application pursuant to s 125 of the National Law, and that the application proceed as a review of that decision.
- Clearly in this matter the amended decision was made in point of time prior to the making of the application to the Tribunal for review of the earlier decision and indeed the later decision was effectively the same as the earlier decision at least as far as the effect on Dr Azam was concerned.
- In Cobine Pty Ltd v Queensland Building and Construction Commission, a matter not referred to by QBCC, the Commission issued a direction to rectify building work to a builder on 12 October 2011. The builder filed an application to review that decision in the Tribunal on 4 November 2011.
- There was a further inspection by the Commission and an amended decision was made on 11 July 2012. On 12 July 2012 the Tribunal ordered the later decision be substituted as the decision for review in the proceeding.
- The Commission reissued its last direction to rectify on 27 May 2013 to correct a problem about granting adequate time to perform the work. The Tribunal made another order that the decision of 27 May 2013 be the decision under review. The wording of the last two directions to rectify was identical.
- There is no exploration in the decision about amendment or the basis upon which the directions to rectify made after the filing of the application for review were substituted as the decisions for review in the matter.
- The QCAT Act provides:
(1) The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
(2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.
18 When review jurisdiction exercised
(1) The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.
- In Stone v ACE-I.R.M Insurance Broking Pty Ltd, McMurdo J, with whom McPherson JA and Holmes J (as she then was) agreed, said:
These days, rules of court commonly permit plaintiffs to sue upon causes of action arising after the issue of proceedings: see, eg, r 375(2) of the Uniform Civil Procedure Rules. But absent such a rule, it had long been held that a plaintiff could not sue upon a cause accruing after the issue of proceedings. In Wigan v Edwards (1973) 47 ALJR 586, Mason J at p 596 explained why:
"To succeed a plaintiff must establish his cause of action at the date of the plaint, for that is the origin of the action. An amendment dates back to the original filing of the plaintiff (see Sneade v Wotherton Baryts and Lead Mining Co Ltd  1 KB 295, at p 297, per Collins MR). It is for this reason that a plaintiff cannot, in the absence of statutory authority, amend the proceedings without the consent of the defendant by adding a cause of action which has accrued to him since the commencement of the action (Eshelby v Federate European Bank Ltd  1 KB 254). And in the absence of such authority an amendment, if allowed, must be regarded as asserting a cause of action existing at the date of the writ."
- It is because an amendment dates back to the date of original filing that there must be express statutory provision to allow an amendment that introduces a new cause of action into the proceedings which had not accrued at the date of initial filing.
- Samuels J.A. explained the problem clearly in Baldry v Jackson:
It seems to me, therefore, impossible to permit an amendment to this statement of claim which would have the effect of introducing into it a cause of action based upon facts which had not arisen when the statement of claim was filed. The situation becomes even more curious when one considers that these new facts would be wholly in substitution for the facts already pleaded which do not, of course, disclose any cause of action. I cannot see how a plaintiff can commence proceedings by a statement of claim dated 5th November, 1975 (and that date would remain after amendment) which pleads facts which did not occur until the 1st December, 1975…
- In that matter his Honour noted the original facts disclosed no cause of action. I note the solicitors for QBCC also initially questioned whether either of the decisions sought to be reviewed in GAR114-18 were reviewable decisions under s 86 of the QBCC Act.
- Leaving the issue of the possible invalidity of the original cause of action pursued in GAR114-18 aside however, I note Gibbs J in Wigan v Edwards commented:
In Eshelby v Federated European Bank  1 KB 254, where it was held that the power of amendment conferred by the Rules of the Supreme Court (Eng) did not extend to permit the amendment of a writ so as to include a cause of action which was not in existence at the time when the writ was issued, Swift J said (at 260): “To bring in such a cause of action does not seem to me to be amending the proceedings at all; it admits a new cause of action, and one which could not have been sued upon at the time the writ was issued.” However the Rules of the Supreme Court there considered did not contain any provisions similar to r 104(b). That provision appears to be novel: it had no counterpart in the Rules of the Supreme Court, either of England or of Queensland, or in the earlier District Courts Rules made in Queensland in 1959… The principle that an amendment cannot be made which will introduce a new cause of action which arose after the commencement of proceedings is purely one of procedure and can be varied or abolished by statute.
- Gibbs J raises two issues that should be noted there. First that Eshelby was a decision made in the context of proceedings in the Supreme Court of England, and second that the rule against amending to add a new cause of action which arises after the commencement of proceedings can be abolished by statute.
- Dealing with the abolition by statute issue first, that has been done in some jurisdictions in Australia but not all.
- The Western Australian Supreme Court discussed the different jurisdictional provisions in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16]  WASC 340, a matter concerning cross-vesting laws and whether the procedural rules of the Supreme Court of New South Wales should apply rather than the rules of the Western Australian Court. In concluding that the procedural rules of the Supreme Court of New South Wales should apply, Kenneth Martin J said about adding causes of action accruing after the commencement of proceedings:
 The inability to pursue causes of action for debt and damages that only accrued after a commencement of an action emerges from Samuel JA's determinations in Baldry v Jackson  2 NSWLR 415, 417. His Honour's observations in turn refer back even further to the legal principle that was established and exemplified by Eshelby v Federated European Bank Ltd  1 KB 423. The so-called Eshelby principle was later confirmed in the High Court of Australia in Wigan v Edwards (1973) 1 ALR 497; (1973) 47 ALJR 586 - as regards a problematic pursuit of causes of action grounded upon events arising only after the commencement of litigation.
 Here the Eshelby constraint would not have inhibited the Supreme Court of New South Wales from dealing with the substantive merits of the causes of action raised under Mineralogy's amended trial pleadings. Procedural constraints of this temporal nature arising by the Eshelby principle would also appear to have been reformed and corrected elsewhere across the nation, as in Queensland, in Victoria and, as now seen, in New South Wales: see the Supreme Court (General Civil Procedure) Rules 2015 (Vic), O 36.01(3) and the Uniform Civil Procedure Rules 1999 (Qld), r 375(2).
- In another Western Australian case, Insurance Commission Of Western Australia v Antony Leslie John Woodings As Liquidator Of The Bell Group Ltd (In Liq) [No 3] Pritchard J said with respect to the Eshelby principle:
… It is not open to a plaintiff, in the absence of statutory authority, to amend proceedings without the consent of a defendant by adding a cause of action which has accrued since the commencement of the action. That principle continues to apply in actions pursued in courts in this State because there has been no statutory reform to alter that position.
- In Queensland the Uniform Civil Procedure Rules 1999 (‘UCPR’) provides by rule 375:
375 Power to amend
(1) At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.
(2) The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
- The amendment provision in the QCAT Act by comparison and contrast simply provides:
64 Amending particular documents
- (1)The tribunal may, at any time in a proceeding, make an order requiring that a relevant document be amended.
- (2)The tribunal may make the order on the application of the party who filed the document or on its own initiative.
- (3)The tribunal’s power to make an order under subsection (1) is exercisable only by—
- (a)the tribunal as constituted for the proceeding; or
- (b)if the tribunal has not been constituted for the proceeding—a legally qualified member, an adjudicator or the principal registrar.
- (4)In this section—
relevant document means—
(a) an application or referral; or
(b) a document responding to an application or referral.
- The power to amend to allow causes of action which accrues after commencement of a proceeding to be decided in the proceeding has also been the subject of further specific legislative enactment in addition to the UCPR provision. The Civil Proceedings Act 2011 (Qld) (‘CPA’) s 16 provides:
16 Amendment for new cause of action or party
- (1)This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding.
- (2)The court may order an amendment to be made, or grant leave to a party to make an amendment, even though—
- (a)the amendment will include or substitute a cause of action or add a new party; or
- (b)the cause of action included or substituted arose after the proceeding was started…
- However in that Act, court is limited to:
5 Meaning of court
In this Act—
court means, if otherwise appropriate—
- (a)in the context of the Supreme Court—the Supreme Court; or
- (b)in the context of the District Court—the District Court; or
- (c)in the context of Magistrates Courts—a Magistrates Court.
- The CPA provisions did not extend to the Tribunal though the CPA did make mention of the Tribunal in so far as it amended the QCAT Act but in respect of an entirely unrelated matter.
- Concerning the other issue raised by Gibbs J in Wigan v Edwards deserving comment, that Eshelby was a decision made in the context of proceedings in the Supreme Court of England, what is significant is that that court was a superior court with unlimited jurisdiction.
- In Wigan v Edwards Mason J said:
… a plaintiff cannot, in the absence of statutory authority, amend the proceedings without the consent of the defendant by adding a cause of action which has accrued to him since the commencement of the action (Eshelby v Federated European Bank Ltd  1 KB 254).
- How the consent of the other party changes the rule is not made clear. Samuels J in Baldry v Jackson said it was:
…impossible to permit an amendment to this statement of claim which would have the effect of introducing into it a cause of action based upon facts which had not arisen when the statement of claim was filed.
- The answer perhaps is the inherent jurisdiction of superior courts of record. Inherent jurisdiction is not an additional head of jurisdiction but a collection of powers in aid of jurisdiction. These powers, amongst other things, allow a superior court to do what is necessary for the administration of justice in matters before it. All Supreme Courts of the states possess it. QCAT and inferior courts do not.
- As stated in QBCC v Whalley:
The Tribunal is a court of record [QCAT Act, s 164(1). See Owen v Menzies  2 Qd R 327], but an inferior court of record. The Tribunal has no jurisdiction other than as granted by the QCAT Act or other enabling legislation. It has no inherent power to make decisions appropriate to redress perceived or discovered wrongs in a matter before it as might be presumed to be the case in a matter before the Supreme Court. We take guidance from the High Court in DMW v CGW [(1982) 151 CLR 491, 509] that clearly said the presumption that a court has acted within jurisdiction is denied to inferior courts. In DMW v CGW [Ibid], the High Court considered whether the Family Court, created by Federal legislation, was a superior court such as the supreme courts of the states. The High Court said:
A superior court is a court of general jurisdiction, which is not to say that there cannot be jurisdictional limits but rather that it will be presumed to have acted within jurisdiction. This presumption is denied to inferior courts. It has been held that “nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged”…
- And as explained in Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241:
… for an inferior tribunal to exercise an implied or ‘necessary’ power, that power must be clearly evident in the statute said to confer it.
- The QCAT Act, and specifically s 64, is, adopting the words of McMurdo J in Stone v ACE-I.R.M, absent the necessary rule permitting an applicant to sue upon causes of action arising after the issue of proceedings. I conclude there is no implied power discernible from the QCAT Act, either in s 64 or elsewhere, altering that very clear limitation simply because parties consent to such.
The Different Causes of Action
- A cause of action is all the material facts giving rise to a claim enforceable in a court (or tribunal). Here the causes of action were pursuant to the right of review of administrative decisions identified in s 86 and s 87 of the QBCC Act.
- In GAR114-18 filed 28 March 2018 the applicants sought review of two decisions of the QBCC made respectively on 28 February 2018 and 14 March 2018. The first was a decision not to make a decision about the applicant’s entitlement to claim under the statutory home warranty insurance scheme and the other reserving (after the Tribunal decided who validly terminated the building contract between them) the decision whether to issue a direction to rectify defective building work to the builder.
- The decisions now sought to be substituted concern entirely different matters. They are about decisions of building inspectors about the specific items of defective building work and whether directions to rectify should be issued to the builder. Those issues are entirely different from the original issues sought to be reviewed, namely the refusal of the QBCC to decide whether the building contract had been validly terminated under the contract by the applicants on the default of the builder, and the refusal of the QBCC to issue a direction to rectify defective building work to the builder until that question was determined.
- The only connection between the original decisions of 28 February 2018 and 14 March 2018 and the decisions of the building inspectors made respectively on 31 May 2018 and 1 August 2018 is the very broadest substratum of facts and commonality of the identity of the parties.
- The Tribunal, having regard to the wording of s 64 of the QCAT Act (as too the Supreme Court of Western Australia by its amendment provision), is not free from the Eshelby constraint. This means the Tribunal could not amend application GAR114-18 to substitute the entirely different decisions made by QBCC after the filing of application with the decisions pre-dating the application and upon which the review jurisdiction of the Tribunal was enlivened.
- That the parties consented to the substitution is irrelevant. There is no implied power to alter that limitation in the QCAT Act and the consent of the parties cannot expand the jurisdiction of the Tribunal where jurisdiction is otherwise lacking by its empowering statute.
- Accordingly, I conclude s 64 of the QCAT Act does not permit the Tribunal to amend the application in GAR114-18 filed on 28 March 2018 so as to substitute for review the decisions of 31 May 2018 and 1 August 2018 for the decisions made on 28 February 2018 and 14 March 2018.
- Given that, the application must be dismissed.
The Final Complaints
- In case I am wrong on that point however, I shall consider the items in the inspection reports of Mr Smallwood and Mr Hulme that the applicants justify a direction to rectify being issued to the builder. There are not many. Concerning Mr Smallwood’s first inspection report of 9 March 2018 (and in part commented on in his second reinspection report of 31 May 2018) there are 4 items. In respect of Mr Hulme’s report of 31 July 2018, there are 2 items.
Complaint 13 Smallwood – Bedroom 2 Floor
- The initial complaint recorded in Mr Smallwood’s first report of 9 March 2018 was as follows:
Bedroom 2 – sloping of newly added floor to the east side of the room, floor does not meet the wall, is not sealed and internal room is visible from the exterior of the building right along the east side.
- In his first report Mr Smallwood noted that the installation of a 600 mm extension of the sub floor frame and tongue and groove flooring (‘T & G flooring’) was faulty and unsatisfactory because the floor joist had not been installed level with the existing floor joist. That had caused the T & G flooring to fall 11 mm over 600 mm to the rear of the room. That was outside the allowable tolerance of the QBCC Standards and Tolerances Guide 2016 and required rectification.
- In Mr Smallwood’s second report he noted the builder had fixed the problem. He had levelled the floor by fish-plating timber to the existing floor joists and then nailing the floorboards to the fish-plating. That brought the floor to within the allowable tolerance of deviation of no greater than 4 mm over 2,000 mm.
- The applicants refer to the QBCC Standards and Tolerances Guide concerning floors at item 14.2:
Flooring, including tongue and groove strip flooring; structural plywood and particleboard sheet flooring, is defective if it is not installed to joists in according (sic) to A.S. 1684 – Residential timber framed construction and the manufacturer’s installation instructions.
- The applicants’ complaint is that the floor boards are secured to the fish-tail plating and not the joists which they say is required by 14.2.
- There is nothing in this complaint. The fish-tail plating corrected the level of the floor and the fish-tail plating timber is bolted (or otherwise securely fixed) to the joist. I conclude this method of rectification is reasonable in the circumstances and the defective floor has been rectified by the builder.
Complaint 19 Smallwood – Marble Tiles
- The initial complaint was:
Marble tiles – paid additional for laying of full body stone, tiles have not been sealed and are now stained and large quantities missing.
- Mr Smallwood concluded in his first report that the property had not had its final builders clean at the time of his inspection and he found the staining complained about easily removed with a damp cloth.
- The applicants again refer to the QBCC Standards and Tolerances Guide, this time item 11.4:
Cracked, pitted, chipped, scratched, or loose tiles
Within 12 months of completion of the work tiles are defective if they are cracked, pitted, chipped, scratched, or loose unless such cracking, pitting, chipping or scratching has been caused by actions or inactions of the owner or others outside of the contractor’s control.
Within 6 years and 3 months from the completion of the work, cracked, pitted, chipped, scratched or loose tiles are defective if they allow water penetration into the building, or compromises the health and safety of those who use the building.
- The applicants say natural stone and in particular marble tiles are porous without a sealant and the marble tiles will allow water to penetrate into the building.
- At the hearing, Mr Smallwood said the Guide was referring to the passage of water through tiles, not the staining of tiles by water. I agree. Part 11 should be read as a whole to facilitate comprehension, not particular expressions or phrases selected in isolation outside context.
- There is no evidence to suggest that water can penetrate unsealed marble tiles with the result that water will penetrate the building. I do not find that to be the case on the limited evidence before me. It is not appropriate to issue any direction to rectify to the builder in respect of the tiles. There is no evidence that water leaks through them.
Complaint 44 Smallwood - Gate
- The initial complaint was:
Damage to site wooden gate and slide bolt is missing.
- I permitted the parties to file submissions after the hearing but limited to the issue of amendment under s 64. The applicants went further however and addressed this item of complaint as follows:
The applicants have evidence that the builder was aware of the damage, which occurred during the building process (annexure A, item 1). The QBCC Standard And Tolerance Guide, section 1.00 – introduction 0.5 states contractors will be liable to repair any consequential damage caused by, or as a consequence of carrying out building work on a residential building site…
- They also attached additional evidential material to their submissions. That additional material was not put to Mr Smallwood for comment at the hearing. It is unclear whether it has previously been filed with the applicants’ statements of evidence because the applicants have filed many hundreds of pages of overlapping material which is unfortunately very confusing and hard to follow. It appears not.
- Given it was not put to Mr Smallwood and the leave granted to file further submissions was limited to submissions about s 64, I am not prepared to consider it now.
- In respect of the missing latch pin of the gate, Mr Smallwood’s evidence was that it was impossible to know who had lost the pin or when it was done. Certainly the builder was not a party to the hearing to make comment about it.
- Generally, Mr Smallwood says that the item falls outside the ambit of building work as defined in the QBCC Act and QBCC Regulation and as such QBCC has no involvement in the matter.
- The applicants again point to the QBCC Standards and Tolerances Guide. In the introduction at page 11 under the heading Responsibility to Rectify there are a number of examples where it says contractors will be required to carry out building work and repair damage they cause in the course of doing building work. One example given is:
A contractor will have to repair an existing window in a house that the contractor accidentally damaged when constructing another part of the house.
- I see no great difference between the broken window in the example and the missing gate pin other than the cause of the window damage (i.e. the builder) would be fairly obvious. It is not so obvious however who was responsible for the missing gate pin or any damage to the gate.
- The only evidence presented about the builder being responsible is an assertion to that effect by the applicants. As mentioned above, the builder has not had an opportunity to comment.
- In Laidlaw v QBSA, Member Howard explained the onus of proof in Tribunal proceedings, including review proceedings:
 The proceeding before the Tribunal is a merits review of an administrative decision of the executive government. The QCAT Act does not place an onus of proof on a party to establish facts or make out a case for review…
 Consideration has been given to the issue of onus in merits review proceedings in the federal arena before the Administrative Appeals Tribunal, where similarly the AAT Act does not deal with the issue of onus of proof. Generally there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.
 To my mind, for similar reasons there will generally be no onus in matters in the review jurisdiction considered by QCAT.
- In Dunmoor Pty Ltd v QBCC it was further commented:
Although some of the evidence allowed in QCAT may not be admissible in a court, much of it will be, and a claimant must nevertheless present evidence which establishes its claim. Otherwise, the claim will fail. Once the case is established against a respondent, the respondent must establish its defence.
- In QBCC review proceedings concerning directions to rectify one must also consider s 72(5) of the QBCC Act:
The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
- In the absence of anything more concrete than the mere suspicion and assertion by the applicants that the builder is responsible for the missing gate pin and damage, I am not prepared to conclude that it was the builder that was responsible. In such circumstances I determine it would be unfair to direct the builder to replace the gate pin or gate latch or repair the gate.
Complaint 46 Smallwood – Damaged Concrete Slab
- The initial complaint was:
Damage to concrete slab at top of drive (cracked and caved in).
- Mr Smallwood says concrete in front of the side gate was cracked and damaged. He said the concrete did not appear to be constructed to the appropriate standard because the thickness of the concrete varied and no mesh was used in its construction. Further, he noted the concrete had a large quantity of grass and vine roots growing through it that compromised its structural integrity. He said the builder should not be held solely responsible for damage to the slab.
- The photographs taken by Mr Smallwood appearing in his report support his assertions that the slab was poorly made. If the builder did damage to the slab, I conclude the damage was most likely equally attributable to the slab being in poor condition and its structural ineffectiveness. There does appear to be some age to the slab as well. As with the previous item, I conclude it would be unfair to direct the builder to replace the slab in such circumstances.
Complaint 5 Hulme – Roof Sheets Damaged
- The initial complaint was as follows:
Roof sheets – some still exhibit damage.
- The applicants point to photographs which show damage to roofing sheets. I accept that some of the photographs show some damage, but the photographs are small and the dents depicted are small. Mr Hulme said in his report that he was unable to access the roof area because of safety issues but he relied on an inspection by BT Plumbing Service on 17 July 2018. Those roofing plumbers reported that there were several areas showing signs of damage but they could not determine the cause of the damage or when the damage occurred.
- At hearing Mr Hulme remained of the view regardless of the photographs relied on by the applicants (which had date stamps) that he could not be satisfied that somebody engaged by the applicants to inspect the roof or somebody involved with rectifying a fairly substantial issue that existed at the time with box guttering could not have caused the problems.
- Further Mr Hulme referred to the QBCC Standards and Tolerances Guide and pointed out that the Guide provided:
Within 12 months from date of completion of the works, staining, folds, splits, dents, open joints between panels, cracking and other distortions in roof cladding, are defects if they are visible from a normal viewing position at ground level or an upper floor level, unless these imperfections were caused by actions or inactions of the owner, or other persons outside of the contractor’s control.
- None of the photographs relied upon by the applicants establish that the dents complained about are visible from a normal viewing position at ground level or from an upper floor level. Mr Hulme made that statement at the hearing and his assertion that the dents could not be seen from a normal viewing position at ground level or from an upper floor level was not challenged. Accordingly I conclude they are not so visible.
- Given that, I conclude that even if the builder was responsible for the dents, which is not established to my satisfaction, the builder should not be directed to rectify the dents concerned as matters amounting to defective building work.
Complaint 37 Hulme – Damage to Lower Rear Stacker Doorframe
- The initial complaint was:
External frame damage where security doors stack into northern side of the frame.
- Mr Hulme took a photograph at the time of his inspection on 31 July 2018 which showed damage to the stacker door. The photograph appeared in his report. At hearing, the applicants suggested there was another part of the door that was also damaged by the builder and referred him to a photograph of the doorframe appearing in their material. According to the date on the photograph, the applicants’ photograph was taken before Mr Hulme’s visit.
- Mr Hulme had concluded in his report that he was not satisfied that the builder was responsible for damage to the stacker door. During cross examination he was asked if the photograph in the applicants’ material changed that conclusion given it pre-dated the date of his inspection.
- Mr Hulme answered that it did not change his mind because he could not see the damage suggested in the stacker doorframe said to be shown by the photograph. I concur. I cannot see damage depicted in the photograph. I am not persuaded by this additional photographic evidence, nor simply by the assertions of the applicants, that the builder should be held responsible for the damage to the door. In such circumstances I find it would be unfair to issue a direction to rectify to the builder.
Complaints 27 and 28 Smallwood – Box Gutter
- At hearing the QBCC conceded that there had been defective work performed with respect to box guttering. That was agreed between the parties. The parties asked the Tribunal to make a decision directing issue of a Direction to Rectify to the builder in respect of this item.
- In light of my conclusion that I have no jurisdiction to amend the application and substitute as the decisions for review in GAR114-18 the decisions of Mr Smallwood and Mr Hulme made 31 May 2018 and 1 August 2018, I have no power to make the order agreed upon. That must now be left up to the QBCC.
QCAT Act, s 3.
Ibid s 4.
 QCAT 69.
Similarly Chivers v State of Queensland  QCAT 166, .
 QCAT 541, .
 QCAT 688.
 QCAT 611.
 QCAT 59.
 1 QdR 173.
Ibid  (citations omitted).
 2 NSWLR 415.
In a letter dated 31 May 2018 to the Tribunal Registry, the solicitors stated, in explaining why they were not in a position to comply with directions of the Tribunal to file a statement of reasons in the proceeding at the time: ‘The decisions the subject of the application to review a decision are arguably not decisions capable of review pursuant to section 86(1) of the Queensland Building and Construction Commission Act 1991 (Qld) in circumstances where they lack the requisite conclusiveness or finality.’ In that regard and in so far as relevant see Sanders v QBSA  QCAT 732.
(1973) 1 ALR 497, 508.
 WASC 44, .
 2 NSWLR 415, 419.
NH v Director of Public Prosecutions  HCA 33, , .
 QCATA 38.
 QCAT 277.
As mentioned above, the solicitors for QBCC initially questioned whether either of these decisions were in fact reviewable decisions under s 86 of the QBCC Act given they lacked the requisite conclusiveness or finality.
 QCAT 70.
 QCATA 39.
Exhibit 3, A128 - A130.
Exhibit 4, page 129.
Exhibit 3, page A136, photo 12.
- Published Case Name:
Rachel Vanden Hoven and Robert Campbell v Queensland Building and Construction Commission
- Shortened Case Name:
Vanden Hoven v Queensland Building and Construction Commission
 QCAT 456
21 Dec 2018