O'Connell v Queensland Building and Construction Commission
[2025] QCAT 262
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- Unreported Judgment
- O'Connell v Queensland Building and Construction Commission[2025] QCAT 262
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O'Connell v Queensland Building and Construction Commission[2025] QCAT 262
O'Connell v Queensland Building and Construction Commission[2025] QCAT 262
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | O'Connell v Queensland Building and Construction Commission [2025] QCAT 262 |
PARTIES: | ricky james o’connell (applicant) v queensland building and construction commission (respondent) |
APPLICATION NO/S: | GAR570-23, GAR706-23, GAR095-24 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 26 June 2025 |
HEARING DATE: | On the papers hearing |
HEARD AT: | Brisbane |
DECISION OF: | Member Munasinghe |
ORDERS | Proceedings GAR 570-23, GAR 706-23, and GAR 095-24 are dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where respondent applied to summarily dismiss proceedings under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where respondent contended the proceedings were frivolous – where the respondent contended the applicant would receive no practical benefit even if successful – where the Tribunal found the proceedings were frivolous, vexatious and an abuse of process – where the Tribunal determined it should not permit litigants to deplete its finite and valuable resources, or the resources of other parties, in the pursuit of pointless objectives Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Armstrong v McIntosh (No 2) [2019] WASC 379 Chaffers v Goldsmid [1894] 1 QB 186 Dawkins v Prince Edward of Saxe Weimar (1876) 1 QBD 499 Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 |
APPEARANCES & REPRESENTATION: | 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]The Queensland Building and Construction Commission (‘QBCC’) applies to the Tribunal to summarily dismiss three proceedings (GAR570-23, GAR706-23, GAR095-24) (‘the proceedings’) initiated by Ricky O'Connell (‘applicant’), pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
Background
- [2]The applicant engaged PJ Burns Builder Pty Ltd (‘PJ Burns’) to build him a house in Palmview (‘house’).
- [3]On 2 July 2020, following a complaint by the applicant, QBCC issued PJ Burns with a Direction to Rectify (‘DTR 0106427’), to rectify defects in the house associated with water egress from a bathroom and shower. Then, on 16 July 2020, QBCC issued PJ Burns with DTR 0106512 concerning windows in the main bedroom and kitchen of the house.
- [4]PJ Burns subsequently applied to the Tribunal to review those DTRs in GAR352-22 (concerning DTR 0106512) and GAR503-20 (concerning DTR 0106427).
- [5]Following a request by the Tribunal under s 23 of the QCAT Act, for QBCC to reconsider its decision to the issue the DTRs, QBCC decided to:
- set aside DTR 0106512 and substituted it with a new decision to not give PJ Burns a DTR; and
- set aside DTR 0106427 and substituted it with a new decision to not give PJ Burns a DTR.
- [6]It is apposite to note that the defective building work that was the subject of the DTRs was rectified by QBCC under the statutory insurance scheme prior to QBCC setting the DTRs aside.
- [7]On 30 September 2021, the applicant complained to QBCC about work undertaken by a building contractor named Metalla Pty Ltd (‘Metalla’). QBCC subsequently issued Metalla with DTR 109587 for five items of defective building work. Metalla promptly applied to the Tribunal to review that decision (GAR466-22).
- [8]The Tribunal subsequently invited QBCC to review its decision to issue Metalla with a DTR. On 21 July 2023, QBCC set aside its decision to issue DTR 109587 and substituted it with a decision not to give Metalla a DTR.
- [9]QBCC set aside DTR 109587 and the two preceding DTRs involving PJ Burns, because it considered that the applicant had refused those builders access to his house to rectify defective work.
- [10]The applicant contests QBCC’s reconsidered decisions to not give PJ Burns and Metalla DTRs. He brings the following review proceedings in the Tribunal (‘applicant’s reviews’):
- GAR570-23, which concerns QBCC’s decision to set aside DTR 109587.
- GAR706-23, which concerns QBCC’s decision to set aside DTR 0106427.
- GAR095-24, which concerns QBCC’s decision to set aside DTR 0106512.
- [11]On 28 March 2023, the applicant sold his house.
- [12]It is convenient to refer to GAR352-22, GAR503-20 and GAR466-22, as the ‘builders’ reviews’.
Applicant’s contentions
- [13]Essentially, the applicant contends that QBCC improperly and prematurely invoked s 23 of the QCAT Act in the builders’ reviews, which had the effect of denying him the opportunity to fulsomely present his case to the Tribunal. The applicant variously asserts that:
- QBCC has “exploited s 23 to reassess their decision, with the intent of denying me the opportunity to mount a defence against the serious allegations levelled against me”.
- He should be afforded the opportunity to refute allegations that that he denied access to the builders.
- He “should have the right to defend himself”.
- The QBCC has engaged in “character defamation”.
- The language QBCC used in DTR 0106512 and DTR 0106427 closely resembles language it used in DTR 109587, which suggests QBCC is pursuing a “biased agenda”.
- [14]Concerning QBCC’s summary dismissal application, the applicant submits:
- The sale of the applicant’s property does not negate his right to challenge previous decision made by the QBCC.
- Dismissing his review would risk depriving the applicant of the opportunity to present his complete case.
- There is a need for proper oversight and accountability within the statutory insurance scheme.
QBCC’s contentions
- [15]In written submissions to the Tribunal, QBCC submits:
- Each of the applicant’s review applications are vexatious because even if they succeed, he receives no practical benefit. The only outcome that will arise upon a successful review is the recording of a direction to rectify on PJ Burns Builder’s licence, which is not an outcome that is personal to the applicant.
- PJ Burns’ purportedly defective work was rectified under the statutory insurance scheme.
- Any contractual claim the applicant has against PJ Burns is time barred.
- The applicant is seeking to use the proceedings to for the “collateral purpose” of protecting his reputation and refuting accusations and not the legitimate purpose of obtaining a remedy for defective building work.
- PJ Burns will be prejudiced because if joined to the proceedings it will be inconvenienced and incur legal costs.
- The respondent is not entitled to rectification in respect of GAR570-23 because he no longer owns his house.
Relevant Law
- [16]Section 47 of the QCAT Act empowers the Tribunal to dismiss or strike out a proceeding if it considers a proceeding, or part of a proceeding is:
- frivolous, vexatious or misconceived; or
- lacking in substance; or
- otherwise an abuse of process.
Consideration
- [17]I find that the applicant’s reviews are frivolous and vexatious. It is ‘frivolous’ if a party is trifling with the court,[1] or if it is wasting the court’s time.[2] In Fearnley v Australian Fisheries Management Authority[3] (‘Fearnley’), the Full Court of the Federal Court of Australia upheld a decision by the Administrative Appeals Tribunal to summarily dismiss a review application under cognate legislation. It held:
Where an interest that gives an applicant standing to commence a proceeding in the Tribunal ceases to exist, that applicant has no interest in pursuing the proceedings further. Although such a proceeding might not be vexatious when instituted, it becomes vexatious when no legitimate purpose can be achieved by continuing with the proceeding (emphasis added).
- [18]In Fearnley, the Full court also found that there was no error on the part of the Tribunal in concluding that it would be frivolous for the proceeding to remain on foot because the applicant was no longer a person whose interests were affected by the decision under review.[4]
- [19]Here, the applicant is no longer a person whose interests are affected by the decisions under review. There is no legitimate purpose to his participation in the proceedings. The applicant has sold his house. Before doing so, the applicant received the full benefit of rectification under the statutory insurance scheme. As QBCC aptly submits, even if the applicant’s reviews are successful, he will receive no practical benefit from that success.
- [20]It is true, as the applicant points out, that there is a need for proper oversight and accountability within the statutory insurance scheme. However, such an objective, whilst laudable, does not personally impact the applicant. Put bluntly, whether the statutory insurance scheme operates efficaciously or otherwise, is not a matter that concerns the applicant.
- [21]Further, in my view, these proceedings amount to an abuse of process. The concept of abuse of process includes pursuing proceedings for which there is no real prospect of those proceedings resulting in a remedy of substance, or which involves unjustifiable expense or use of judicial resources,[5] or when a court’s procedures are invoked for an illegitimate purpose.[6]
- [22]It is obvious, on any plain reading of the applicant’s submissions, that his primary motivation for bringing these proceedings is to refute and defend allegations that he denied PJ Burns and Metalla access to his property to effect rectification work. In my view, it is highly improper for the Tribunal’s finite resources to be depleted for the purpose of enabling the applicant to contest perceived slights to his reputation. The Tribunal is not a forum for the applicant to preserve his reputation or pursue personal grievances against the QBCC.
- [23]There are significant costs associated with progressing the applicant’s reviews to hearing. At least a day will be required for oral argument. A hearing room will need to be set aside. A Tribunal Member and Hearing Support Officer will be occupied for at least a day. They could instead be dealing with matters of greater import and consequence. The respondent will incur additional legal expenses. It likely that multiple witness will be required to attend the hearing, including third party witnesses form PJ Burns and Metalla. Those witnesses may require their own legal representation.
- [24]This Tribunal must not permit litigants to deplete its finite and valuable resources, or the resources of other parties, in the pursuit of pointless objectives. I propose to dismiss the proceedings.
Application of the Human Rights Act 2019 (Qld)
- [25]The Tribunal must apply the Human Rights Act 2019 (Qld) (‘HR Act’) when reviewing the decisions of a ‘public entity’.[7] QBCC is a public entity. Section 58 of the HR Act provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights[8] or in making a decision, to fail to give proper consideration to a human right relevant to the decision.[9] A decision is compatible with human rights if it does not limit a human right, or limits a human right only to the extent that is reasonably justifiable in accordance with s 13 of the HR Act.
- [26]I consider s 31(1) of the HR Act is potentially relevant to the decision the Tribunal must make in these proceedings. It provides that a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. In this instance, the applicant has been afforded a fair opportunity to participate in the proceedings through the provision of written submissions. The Tribunal’s decision does not therefore limit his human rights.
Footnotes
[1] Chaffers v Goldsmid [1894] 1 QB 186.
[2] Dawkins v Prince Edward of Saxe Weimar (1876) 1 QBD 499, 503 (Mellor J).
[3] [2006] FCAFC 3, [97].
[4] Ibid [100].
[5] Armstrong v McIntosh (No 2) [2019] WASC 379, [116] (Le Miere J).
[6] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, [25]
[7] PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188; Kracke v Mental Health Review Board [2009] VCAT 646, [291]; PJB v Melbourne Health [2011] VSC 327.
[8] HR Act s 58(1)(a).
[9] Ibid s 58(1)(b).