Nazzari v Queensland Building and Construction Commission
[2022] QCAT 39
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- Unreported Judgment
- Nazzari v Queensland Building and Construction Commission[2022] QCAT 39
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Nazzari v Queensland Building and Construction Commission[2022] QCAT 39
Nazzari v Queensland Building and Construction Commission[2022] QCAT 39
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nazzari & Anor v Queensland Building and Construction Commission & Anor [2022] QCAT 39 |
PARTIES: | Graeme anthony nazzari Rachael cossens |
(applicants) | |
V | |
queensland building and construction commission john maxwell seaforth gray t/as john gray constructions | |
(respondents) | |
APPLICATION NO/S: | GAR050-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 1 February 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
ORDERS: | The Application to review a decision filed 6 February 2020 is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether Tribunal has jurisdiction to review a decision of the Queensland Building and Construction Commission that it cannot take any further action – whether decision a reviewable decision Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86, s 86E, s 86F, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 9, s 17, s 18, s 47 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Crossman v Department of Transport and Main Roads [2018] QCAT 60 Evans v Friemann (1981) 53 FLR 229 Sanders v Queensland Building Services Authority [2013] QCAT 732 Stevenson Group Investments Pty Ltd v Queensland Building Services Authority and Anor [2012] QCAT 548 |
APPEARANCES & REPRESENTATION: | |
Applicants: | Self-represented |
Respondents: | R Ensby, Gadens Lawyers No appearance for the Second Respondent |
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 Nazzari and Miss Cossens (the Homeowners) engaged Mr Gray (the Contractor) to perform renovation works at their home. The Homeowners complained to the Queensland Building and Construction Commission (QBCC) about the Contractor’s work. Following an inspection by a QBCC Inspector, the QBCC issued a direction to rectify (DTR) on 13 December 2019 requiring the Contractor to complete certain rectification work by 1 February 2020.[1] Issues in relation to the timing of performance of the rectification work and the conditions upon which access to the home would be provided arose between the Homeowners and the Contractor. The Homeowners say that insufficient notice was given to them and the Contractor failed to agree to meet the costs they claimed were necessary in respect of moving their furniture and alternate accommodation to allow the work to be performed.
- [2]On 30 January 2020 the Contractor sought an extension of time to perform the work the subject of the DTR from the QBCC. The Homeowners did not agree to an extension of time. The QBCC refused to extend the time under the DTR.
- [3]
The QBCC cannot take any further action in this matter.
This case has been finalised.
The QBCC’s ability to assist is subject to the contractor being given reasonable access, during work hours, to carry out the rectification work.
This access was not granted.
The Queensland Building and Construction Commission Act 1991 only allows the QBCC to direct a contractor if it is fair to do so.
It is not fair for the QBCC to take action against a contractor when access to the site to carry out the works has not been provided.
- [4]
- [5]The QBCC filed a Statement of Reasons for the Decision[4] and raised the issue of whether the Decision was a ‘reviewable decision’ under section 86 of the QBCC Act.
- [6]At a Compulsory Conference the parties were directed to file submissions addressing the Tribunal’s jurisdiction and for the preliminary issue of jurisdiction to be determined on the papers.[5] Submissions have been received.[6] I now proceed to decide the preliminary issue of jurisdiction. The delay in finalising this preliminary issue is extremely regrettable and relates to resourcing issues.
- [7]The Homeowners, who are self-represented, say that the Decision contained a section entitled “Your rights” which stated that they had the right to have the decision externally reviewed by the Tribunal.[7] They point to an email dated 3 February 2020 from a QBCC employee which stated that they had the right to have the Decision internally reviewed or externally reviewed by the Tribunal.[8] They also point to information on the Tribunal’s website that the Tribunal reviews various QBCC decisions included decisions related to rectification of work.
- [8]The Homeowners do not clearly identify the provision of the QBCC Act upon which they rely to submit that the Tribunal has jurisdiction to review the Decision.
- [9]The Tribunal is a creature of statute and must find its power to determine a proceeding either in the QCAT Act or an enabling Act.[9]
- [10]The Tribunal has previously noted:[10]
There is no general power in the tribunal to review administrative decisions other than as specifically provided for in legislation enlivening the tribunal’s review functions. The tribunal is a court of record but it is not a superior court of general jurisdiction. A superior court may be presumed to be able to act within jurisdiction, but there is no such presumption with an inferior court. As stated in Fraser Property Developments Pty Ltd v Sommerfeld (No 1):
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. (references omitted)
- [11]Section 17 of 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.
- [12]Section 18 of the QCAT Act provides:
- (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.
- [13]The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).[11] For the purposes of an external review, ‘reviewable decision’ means a reviewable decision as listed in section 86 of the QBCC Act other than a decision that was the subject of an internal review or an internal review decision.[12] There is no evidence that the Decision was the subject of an internal review.
- [14]A person affected by a reviewable decision of the QBCC may apply to the Tribunal for a review of the decision.[13]
- [15]Section 86 of the QBCC Act does not include a decision in the same terms as the Decision.
- [16]The QBCC contends that the Decision was to not take any further action in relation to the Homeowners’ complaint or not to take any further action in relation the DTR neither of which are listed in section 86 of the QBCC Act. I accept that such decisions are not listed in section 86 of the QBCC Act.
- [17]The QBCC submits, and I accept, that not every decision of the QBCC is reviewable by the Tribunal. In addition to a quite lengthy list of ‘reviewable decisions’ set out in section 86 of the QBCC Act, there are a number of decisions set out in section 86F of the QBCC Act, which are expressly provided not to be reviewable decisions. None of those decisions apply.
- [18]If the Decision is not a reviewable decision under section 86 of the QBCC Act, then the Tribunal has no power to review it. It is unfortunate if QBCC’s employees have made statements to the contrary, but such statements do not confer power where there is none. The information on the Tribunal’s website is general in nature and does not replace the words of the applicable legislation.
- [19]The QBCC draws the Tribunal’s attention to section 86 (1)(e) and (f) of the QBCC Act but says the Decision does not fall within the fair meaning of either of these reviewable decisions and that there is no basis to find that the QBCC actually made either of those decisions so as to permit the Tribunal to hear and determine the Homeowners’ Application.
- [20]If the Tribunal clearly has no power to hear the Homeowners’ Application then it should be dismissed as misconceived or lacking in substance.[14] The issue for determination is whether, and on what basis, it is arguable that the Tribunal has power to hear the Homeowners’ Application such that it ought not be dismissed but rather the Homeowners should have the opportunity to lead evidence so that the Tribunal may make the correct and preferable decision including as to whether it has jurisdiction based upon a consideration of all the evidence before it. The Homeowners have not sought to raise any issues of fact in relation to the jurisdiction point that requires further evidence.
- [21]The QBCC says, and I accept, that whilst it is appropriate, given the remedial nature of review proceedings, to not take a narrow view of the language in section 86(1) of the QBCC Act and apply ‘the fullest relief which the fair meaning of the language used’ allows, the Tribunal should not adopt an interpretation that is ‘strained or exceeded’.[15]
- [22]In Sanders[16] the Tribunal considered whether there had been a ‘decision’ where the then QBSA, the predecessor of the QBCC, informed the homeowner it would ‘close its file’ and found that in the circumstances it was a decision as it was a refusal to exercise a substantive power granted to the QBSA in relation to indemnity under the statutory insurance scheme (SIS) and was therefore a reviewable decision.[17] The Tribunal remitted the matter back for consideration under the SIS.
- [23]Although ‘decision’ is not relevantly defined in the QBCC Act or the QCAT Act the term has been judicially considered in similar contexts. Having regard to the principles identified in Australian Broadcasting Tribunal v Bond[18] and Evans v Friemann,[19] I am satisfied that a final or substantive determination had been made by the QBCC which could be identified as a “decision”.
- [24]In Stevenson Group Investments Pty Ltd v Queensland Building Services Authority and Anor the Tribunal stated:[20]
As referred to in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1 at 11, once seized of the jurisdiction to review, the obligation on this Tribunal is to address the same questions that were before the primary decisionmaker in order to attain a correct or preferable decision having regard to the whole of the evidence before the Tribunal.
- [25]The question that was before the original decisionmaker was essentially what to do about the Homeowners’ complaint in circumstances where the QBCC had made a decision to give a direction to rectify[21]and the time provided in the DTR had expired without the work being carried out because there were issues with access.
Was the Decision ‘a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard’?[22]
- [26]I am not satisfied that, on a fair construction of section 86(1)(f) of the QBCC Act, the Decision is arguably a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard.
- [27]The Homeowners essentially say that the QBCC ought to have made a decision that building work undertaken at the direction of the commission is not of a satisfactory standard because the Contractor failed to arrange to attend to the work within the DTR period but says that the QBCC failed to hold the Contractor accountable.
- [28]The evidence is that the Contractor did not attend to the work on site prior to the DTR time period expiring.
- [29]Where a Contractor does not comply with a direction to rectify and the QBCC decides to take further action the avenues available to it include:
- (a)deciding that the building work undertaken at the direction of the commission is not of a satisfactory standard;
- (b)noting on the public record of the Contractor’s license the failure to comply; issue a fine, prosecute in the courts or take disciplinary action; consider if a claim should be allowed against the statutory insurance scheme and seek recovery of the amount paid as a debt; or record demerit points on the Contractor’s licence. These possible actions were set out in the correspondence advising the extension of time was not granted.[23]
- (a)
- [30]The Decision was to not to take any further action. The QBCC decided to take none of the avenues available to it, including none described above.
- [31]I am not satisfied that it is arguable that the Decision on a fair construction of section 86(1)(f) of the QBCC Act could be regarded as a decision that the work is of a satisfactory standard. Unlike the decision in Sanders, I am not satisfied that the only interpretation that could be placed on the Decision is that it was a decision that the work is of a satisfactory standard. It was a decision not to make any further decisions.
Was the Decision ‘a decision to give a direction to rectify or remedy or not to give the direction’?[24]
- [32]I am not satisfied that on a fair construction of section 86(1)(e) the Decision is arguably a decision to not give a direction by withdrawing the DTR.
- [33]The Decision expressly refers to the discretion not to give a direction if the QBCC is satisfied that to do so would be unfair.[25] However, the Decision states:
It is not fair for the QBCC to take action against a contractor when access to the site to carry out the work has not been provided.
- [34]In the context of the DTR having already been given I am not satisfied that it is arguable that the Decision on a fair construction of section 86(1)(e) of the QBCC Act could be regarded as a decision to not give a direction to rectify by deciding to withdraw the DTR. Unlike the decision in Sanders, I am not satisfied that the only interpretation that could be placed on the Decision is that it was a decision not to give a direction to rectify. It was a decision not to make any further decisions.
Is the Decision otherwise a reviewable decision?
- [35]I have been unable to identify any other provision of the QBCC Act which could arguably found a basis to find that the Decision is a reviewable decision and therefore could arguably found a basis for the tribunal’s jurisdiction.
Summary
- [36]Regrettably, I conclude that the Decision is not a reviewable decision and the Tribunal has no jurisdiction to hear and determine the Homeowners’ Application and it must be dismissed.
Footnotes
[1] Statement of Reasons filed 30 March 2020, attachment SOR4.
[2] Ibid, attachment SOR8.
[3] Filed 6 February 2020.
[4] Filed 30 March 2020.
[5] 27 May 2020.
[6] QBCC’s submissions filed 15 June 2020. The Homeowners’ submissions filed 24 June 2020. No submissions were received from the Contractor.
[7] Statement of Reasons filed 30 March 2020, attachment SOR8, p129.
[8] Attachment 2 to Submissions filed 24 June 2020.
[9] QCAT Act, s 9.
[10]Crossman v Department of Transport and Main Roads [2018] QCAT 60, [12].
[11] QCAT Act, s 6.
[12] QBCC Act, s 86E.
[13] Ibid, s 87.
[14] QCAT Act, s 47.
[15]Sanders v Queensland Building Services Authority [2013] QCAT 732.
[16] Ibid.
[17] QBCC Act, s 86(1)(h).
[18] (1990) 170 CLR 321.
[19] (1981) 53 FLR 229.
[20] [2012] QCAT 548, [161].
[21] SOR4.
[22] QBCC Act, s 86(1)(f).
[23] SOR7, p 126.
[24] QBCC Act, s 86(1)(e).
[25] Ibid, s 72(5).