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Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission[2019] QCAT 419

Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission[2019] QCAT 419

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 419

PARTIES:

ORACLE BUILDING CORPORATION PTY LTD

(applicant)

 

v

 

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR092-18 and GAR286-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 January 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. The application for miscellaneous matters filed on 2 August 2018 is dismissed.
  2. The application for miscellaneous matters filed on 14 December 2018 is dismissed.
  3. Proceedings GAR092-18 and GAR 286-18 are to be consolidated into a single proceeding pursuant to s 54 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for invitation to decision-maker to reconsider decision – where application to dismiss application to review – consolidation of proceedings

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 23, s 33, s 54

REPRESENTATION:

 

Applicant:

Kilmartin Knyvett Lawyers

Respondent:

S Monaghan

APPEARANCES:

 

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

REASONS FOR DECISION

  1. [1]
    On 19 February 2018, the Queensland Building and Construction Commission (QBCC) decided “to issue a DTR for complaint item number 1”. 
  2. [2]
    Oracle Building Corporation Pty Ltd (Oracle) filed an application to review this decision on 15 March 2018.  This application forms proceedings GAR092-18.
  3. [3]
    On 21 February 2018, the QBCC issued Direction to Rectify and/or Complete No. 0103082.
  4. [4]
    Oracle filed an application to review this decision on 23 August 2018.  This application forms proceedings GAR286-18.

First application for miscellaneous matters

  1. [5]
    On 2 August 2018, the QBCC filed an application for miscellaneous matters in proceedings GAR092-18 seeking that:

The Respondent be invited to reconsider the decision dated 19 February 2018 pursuant to section 23 of the QCAT Act 2009.

  1. [6]
    The sole reason given in support of the application for miscellaneous matters was:

[T]o provide procedural fairness to the Applicant where the Respondent made an administrative error in the service of documents under section 109A of the QBCC Act.

  1. [7]
    Under s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), the Tribunal may at any stage of a proceeding invite the decision-maker to reconsider the decision.  If it does so, subsection (2) provides:

If the decision-maker for a reviewable decision is invited to reconsider the decision under subsection (1), the decision-maker—

(a) has 28 days to reconsider the decision; and

(b) may—

(i) confirm the decision; or

(ii) amend the decision; or

(iii) set aside the decision and substitute a new decision.

  1. [8]
    The review conducted by the Tribunal is a merits review.  Section 20(2) of the QCAT Act requires the Tribunal to “hear and decide a review of a reviewable decision by way of a fresh hearing on the merits”.  Any failure by the QBCC to afford Oracle procedural fairness is a matter which can be “cured” upon a merits review by the Tribunal.
  2. [9]
    There is nothing in the paucity of reasons provided by the QBCC to suggest that there was any evidence which might lead it to amend or set aside its decision.  In these circumstances, I dismiss the application for miscellaneous matters filed on 2 August 2018.

Second application for miscellaneous matters

  1. [10]
    On 14 December 2018, the QBCC filed an application for miscellaneous matters in proceedings GAR286-18 seeking the dismissal of those proceedings.
  2. [11]
    Section 86(1)(e) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) provides that a reviewable decision includes “a decision to give a direction to rectify or remedy or not to give the direction”.
  3. [12]
    The QBCC submitted that “[t]here is no further decision capable of review by the Tribunal” in proceedings GAR286-18.  However, it seems to me that the decisions on 19 February 2018 and 21 February 2018 are both capable of falling within the scope of s 86(1)(e) of the QBCC Act. 
  4. [13]
    There was nothing preventing the QBCC from deciding to issue a direction to rectify and issuing a direction to rectify in a single step.  However, the QBCC has ipso facto made two separate decisions on two separate dates, and both are capable of review.
  5. [14]
    The QBCC has also submitted that the application for review was lodged outside of the 28 day period prescribed in s 33(2) of the QCAT Act.
  6. [15]
    Oracle has submitted that it did not receive Direction to Rectify and/or Complete No. 0103082 prior to 26 July 2018.  I note that on the same day the Tribunal directed that:

The Respondent to confirm if a direction to rectify has been issued with respect to the internal review decision …

  1. [16]
    The QBCC has not provided any evidence that the direction to rectify was served earlier.  In these circumstances, I accept that Oracle was not notified of the direction to rectify until 26 July 2018.  The application to review the decision was therefore filed within time on the 28th day.
  2. [17]
    I dismiss the application for miscellaneous matters filed on 14 December 2018.

Consolidation

  1. [18]
    It is apparent that the two proceedings relate to the same subject matter.  I am satisfied that it is appropriate to consolidate them into a single proceeding pursuant to s 54 of the QCAT Act.
Close

Editorial Notes

  • Published Case Name:

    Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2019] QCAT 419

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    17 Jan 2019

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
Agius v Queensland Building and Construction Commission & anor [2023] QCATA 1453 citations
Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission (No 1) [2022] QCAT 1902 citations
1

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