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Queensland Building and Construction Commission v Crocker[2018] QCATA 194

Queensland Building and Construction Commission v Crocker[2018] QCATA 194

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Building and Construction Commission v Crocker [2018] QCATA 194

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(applicant/appellant)

 

v

 

LEE ANTHONY CROCKER

(respondent)

APPLICATION NO/S:

APL329-17; APL330-17; APL331-17

ORIGINATING APPLICATION NO/S:

GAR232-16; GAR234-16; GAR235-16

MATTER TYPE:

Appeals

DELIVERED ON:

7 December 2018

HEARING DATE:

30 August 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member King-Scott

ORDERS:

  1. Leave to appeal is granted.
  2. Appeals allowed.
  3. Applications to extend time are dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where payment made on a claim under the insurance scheme – where recovery sought from former director of the company – whether director able to review decision to make payment – whether director able to review decisions anterior to the making of the payment – whether time for seeking review should be extended.

Judicial Review Act 1991 (Qld), s 20

Queensland Building and Construction Act 1991 (Qld), s 71, s 86F, s 87, s 111C

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)

Cardillo v Queensland Building Services Authority [2011] QCAT 574

Clarke v Japan Machines (Aust) Pty Ltd [1984] 1 Qd R 404

Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115

Crisp v Queensland Building Services Authority [2010] QCAT 263

Harrison & Anor v Meehan [2016] QCATA 197

Lange v Queensland Building Services Authority [2012] 2 Qd R 457

Mahony v Queensland Building Services Authority [2014] HCASL 93 (13 May 2014)

Mahony v Queensland Building Services Authority [2013] QCA 323

Namour v Queensland Building Services Authority [2015] 2 Qd R 1

Queensland Building and Construction Commission v Lifetime Securities (Australia) Pty Ltd [2014] QCA 161

Queensland Building and Construction Commission v Turcinovic [2018] 1 Qd R 156

Queensland Building and Construction Commission v Watkins [2014] QCA 172

Samimi v Queensland Building and Construction Commission [2015] QCA 106

Turner v Queensland Building Services Authority [1999] QBT 66

APPEARANCES & REPRESENTATION:

 

Applicant:

N Andreatidis QC, with R De Luchi, instructed by Queensland Building and Construction Commission

Respondent:

N M Cooke QC, instructed by Streten Masons Lawyers

REASONS FOR DECISION

Introduction

  1. [1]
    The Queensland Building and Construction Commission (‘Commission’) is the statutory regulator of the building industry pursuant to the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).  Part 5 of the QBCC Act establishes a statutory insurance scheme known as the Queensland Home Warranty Scheme which is regulated and administered by the Commission. Under the scheme a building contractor pays an insurance premium to the Commission before residential construction work commences.  The policy of insurance inures for the benefit of the consumer, in most cases the homeowner.  If the work is not completed or is defective, the homeowner may make a claim under the policy.  If the Commission makes a payment on the claim under the insurance scheme it then may recover the amount of that payment, as a debt, against the building contractor and, if the building contractor is a company, its directors.  This is such a case.
  2. [2]
    The Commission seeks leave to appeal against the decision of the Tribunal to extend time to the Respondent, Mr Lee Crocker, to file an application to review a decision by the Commission to make payments under the statutory insurance scheme in respect of work not completed under three separate construction contracts and to recover that amount from the Respondent.  The Respondent was a director of the builder, a company, now in liquidation.
  3. [3]
    The Commission opposed the application to extend time on the basis that the application to review was without merit. In essence, the Commission submitted that the Respondent was seeking to go behind the decision to make a payment under the statutory insurance scheme and to recover that amount from the Respondent, which decision was not reviewable,[1] and to have reviewed the anterior scope of works decisions of the Commission. It was submitted that once payments were made under the statutory scheme, there could be no review of any anterior decisions. It was further submitted that, in any event, any application to review the scope of works decisions was too late, as any such application had to be made within 28 days of the decisions, which time could not be extended.[2]

Leave to appeal

  1. [4]
    The Commission requires leave to appeal as the decision of the learned Member to extend time is not a final decision.[3] The Appeal Tribunal in Harrison and Anor v Meehan[4] set out the criteria in determining whether leave should be granted, the Tribunal said (citations omitted):

The relevant principles to be applied in determining whether to grant leave to appeal are well established: Is there a reasonably arguable case of error in the primary decision; Is there a reasonable prospect that the applicant will obtain substantive relief; Is leave necessary to correct a substantial injustice to the applicant caused by some error; Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage;...[5]

  1. [5]
    We consider that leave to appeal is warranted.

Preliminary objections

  1. [6]
    The Respondent filed an application to file and rely upon a further affidavit sworn on 22 June 2018. The affidavit adduces new evidence which it is argued was not available to the Respondent at the time of the initial hearing by the Tribunal. The Commission opposes the application.  With the acquiescence of both parties, we reserved our decision on whether the new evidence should be admitted.

Background

  1. [7]
    The Respondent was a director of Statewide Residential Building Inspections & Maintenance Services Pty Ltd (‘Statewide’). Statewide was formerly known as Build Restore Pty Ltd and Kitchen 2 Pty Ltd between 2004 and 18 January 2013.
  2. [8]
    Statewide was the builder in respect of the three domestic building contracts at three different locations, namely, Norman Park, Ashgrove and Toowong. It is conceded that the construction work at the three sites occurred whilst the Respondent was a director of Statewide.  Statewide went into liquidation on 12 December 2013.
  3. [9]
    A claim was made in respect of each of the three sites for non-completion of work under the statutory insurance scheme.
  4. [10]
    The Tribunal below found that the Commission took the following steps in relation to the three sites: –

Norman Park property

  1. (a)
    on 2 April 2014 the Commission issued a scope of works decision to the liquidator of Statewide.  However, whilst the scope of works decision was before the Tribunal below, it is unclear whether it was in fact served on the liquidator; and
  1. (b)
    on 8 June 2014, the Commission granted an indemnity concerning the Norman Park property in the sum of $123,267.83.

Toowong property

  1. (a)
    on 3 December 2014, the Commission issued a scope of works decision to the liquidator of Statewide; and
  1. (b)
    on 15 December 2014, the Commission granted an indemnity concerning the property in the sum of $200,000.

Ashgrove property

  1. (a)
    on 24 September 2014, the Commission issued a scope of works decision to the liquidator of Statewide; and
  1. (b)
    on 27 January 2015, the Commission granted of indemnity concerning the Ashgrove property in the sum of $200,000.
  1. [11]
    By letter dated 27 July 2016, the Commission made demand on the Respondent for payment of the sum of $528,267.83, being the total paid on the insurance claims, by reason of the fact that he was a director of Statewide at all relevant times: see s 111C(3) and (6) of QBCC Act, reproduced below.
  2. [12]
    The Respondent says he did not receive any notification of the insurance payments until receipt of the letter of 27 July 2016 and did not have prior notice of the scope of works decisions or of the decisions to grant an indemnity. It appears that all prior communications of the Commission's decisions were sent to Mr Dean Crocker, to Statewide and, after Statewide went into liquidation, to the liquidators.
  3. [13]
    On 9 September 2016 the Respondent filed applications to review with applications to extend time in each case.  On 8 March 2017 an amended application was filed to review not only the decision to grant the insurance claims but also each of the scope of works decisions.

Legislation

  1. [14]
    Part 5 of the QBCC Act sets out the provisions dealing with, inter alia, the establishment and administration of the statutory insurance scheme.

Section 71 (1) provides:

If the commission makes any payment on a claim under the statutory insurance scheme, the commission may recover the amount of the payment, as a debt, from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose.

Section 111C provides, relevantly:

LIABILITY OF DIRECTORS FOR AMOUNTS

(3)This section also applies if a company owes the commission an amount because of a payment made by the commission on a claim under the insurance scheme.

  1. (6)
    If this section applies because of subsection (3), the liability to pay the amount attaches to–
  1. (a)
    each individual who was a director of the company when building work the subject of the claim was, or was to have been, carried out; and
  1. (b)
    each individual who was a director of the company when the payment was made by the commission.

Section 87 provides:

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.

However, s 86F provides, relevantly:

  1. (1)
    The following decisions of the commission under this Act are not reviewable decisions under this subdivision–
  1. (a)
    a decision recover an amount under section 71;

  1. (c)
    a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision;...

The Tribunal's decision

  1. [15]
    In the decision below, it was noted that while it was accepted by the Commission that potentially the tribunal has jurisdiction to review scope of works decisions, it was submitted that the Respondent had no standing to do so under section 87 of the QBCC Act as he was not an "affected person”. However, by reference to the decisions of Namour v Queensland Building Services Authority,[6] Turner v Queensland Building Services Authority (‘Turner’),[7] and Crisp v Queensland Building Services Authority (‘Crisp’),[8] the learned Member determined that the Respondent did have standing as an "affected person”. On the other hand, it was found that there was no jurisdiction to review decisions made under s 71 of the QBCC Act.
  2. [16]
    In terms of notice of the scope of works to be undertaken pursuant to s 86F(1)(c) of the QBCC Act, it was also noted in the decision below that while there was evidence of notice to the company in liquidation and to the then director, Mr Dean Crocker, no evidence was provided to show that notice was given to the Respondent as a previous director of the company. The Respondent ceased to be a director of the company on 11 January 2013. In that context, it was argued that the 28 days within which review could be sought had not commenced to run. The learned Member declined to rely on any form of inferred knowledge on the part of the Respondent. However, as is noted below, there is a separate question of whether there was a requirement to give notice of a decision about the scope of works to be undertaken to a former director of the company.
  3. [17]
    The learned Member then went on to consider the application for an extension of time in accordance with the decision of Cardillo v Queensland Building Services Authority.[9]  She accepted that no satisfactory explanation had been given for the delay but, in granting the extension, took account of the complexity of the matter and the impact that the debt would have on the Respondent.

Grounds of Appeal

  1. [18]
    In essence, the Commission’s amended grounds of appeal were:
    1. (1)
      The Tribunal erred in finding it had jurisdiction to hear and determine applications to review the scope of works decisions in circumstances where those decisions were anterior to decisions made by the Commission to approve claims under the statutory insurance scheme, make payments and to seek recovery of those payments under s 71 of the QBCC Act. Reference was made to s 86F(1)(a) of the QBCC Act.
    2. (2)
      The Tribunal erred in finding that the Tribunal had jurisdiction to grant an extension of time to the Respondent to file applications to review scope of works decisions in the circumstances referred to in ground 1.

(2A) The Tribunal did not have power to extend time to review the scope of works decisions because of the expiry of the mandatory 28 day review period provided for in s 86F(1)(c) of the QBCC Act.[10]

  1. (3)
    Alternatively, if the Tribunal had power to review the scope of works decisions and to grant extensions of time, the Tribunal erred in law in the exercise of that discretion, including by not considering the merits of the Respondent’s case.
  2. (4)
    The Tribunal erred in finding that the Respondent was an “affected person” within the meaning of s 87 of the QBCC Act.
  3. (5)
    The Tribunal erred in failing to appreciate that the applications for review and extensions of time were an attempt to review decisions under s 71 of the QBCC Act.
  4. (6)
    The Tribunal erred in finding that the operative date for the purpose of review rights should be the date upon which the Commission informed the Respondent that he was personally liable for the amount of $528,267.83, namely, 27 July 2016.

The Commission’s case

  1. [19]
    The Commission relies upon the decisions of the Court of Appeal in Queensland Building and Construction Commission v Turcinovic (‘Turcinovic’),[11] and other authorities therein cited for the proposition that the Commission when exercising its rights under s 71(1) and s 111C to recover, as a debt, payments made under the statutory insurance scheme, is not dependent upon the Commission establishing the correctness of its determination to make the payment or any step taken by it that led to the payment being made. A builder cannot avoid liability by merely pointing to an error connected with the claim process.
  2. [20]
    Any challenge to such decisions should be made before the Commission pays under the policy. Where there is no challenge, liability under s 71 arises and a director caught by s 111C (6) is similarly unable to challenge the anterior decisions. It was submitted that the Tribunal was in error in finding it had jurisdiction to review the scope of works decisions when the insurance process was complete and the Commission had already paid the claims.
  3. [21]
    Although the Court of Appeal decisions noted above involved debt recovery proceedings and did not deal with a merits review in the Tribunal, the Commission submits that that did not alter the construction of the provisions of s 71(1) and s 111C of the QBCC Act. Allowing a merits review of the scope of works decisions was to impermissibly permit a backdoor review of those anterior decisions.
  4. [22]
    In relation to the time limit for review of scope of works decisions under s 86F(1)(c) of the QBCC Act, the Commission submitted that the Tribunal did not have jurisdiction to extend time. It relied upon Queensland Building and Construction Commission v Watkins,[12] where the Court of Appeal considered the proper construction of the former section 86(2) of the QBCC Act, which was in almost identical terms to s 86F of the current Act. The effect of s 86F(1)(c) of the QBCC Act as interpreted by the Court of Appeal is to prescribe a mandatory time limit and the general power to extend time in s 61 of the QCAT Act cannot be utilised to circumvent the mandatory language of s 86F(1)(c).
  5. [23]
    In the alternative, if there is power to extend time the Commission submits that the Tribunal erred in law in the exercise of its discretion. That is because the Commission can recover from the Respondent the debt subject only to the limited available defences. In the debt recovery process, he is not entitled to challenge the anterior decisions of the Commission, including the scope of works decisions. In other words, even if the Tribunal finds some error in the process it will not affect the Commission’s right to recover the debt. For those reasons, it was submitted that no useful purpose would be achieved by the review.
  6. [24]
    In relation to the finding by the Tribunal that as the Respondent had not been served with the scope of works decisions he was unable to provide evidence or submissions in relation to the merits of his application and that he should now have the opportunity to argue his case, it was submitted that the Tribunal erred in that:
    1. (1)
      There was no requirement to serve the decisions on the Respondent, as he was a director and not the builder;
    2. (2)
      It acted on a wrong principle. The Commission submitted that the complete lack of evidence was itself a basis to dismiss the applications for extension of time;
    3. (3)
      It mistook the facts, in that the Respondent was served with the scope of works decisions well before he was required to serve written submissions.
  7. [25]
    The Tribunal erred in its acceptance of the Respondent as an ‘affected person’ by the scope of works decisions because he received the letter from the Commission dated 27 July 2017. That letter did not notify him of the scope of works decisions but rather of a decision to recover a debt arising because of payments made under the insurance scheme.
  8. [26]
    The Tribunal erred in finding that the operative date for review rights was the date on which the Commission informed the Respondent by letter dated 27 July 2016 that he was personally liable for the $528,267.83 as that was not a decision that could be the subject of a review application.

The Respondent’s case

  1. [27]
    The Respondent was not served with any of the Commissions decisions until he received the letter of 27 July 2016. Prior to that correspondence, notice of all decisions of the Commission were sent to Statewide, his brother Dean Crocker and after Statewide went into liquidation, to the liquidator.
  2. [28]
    The Respondent submits that he lodged the application for review within the 28 days required under the QCAT Act, subject to an extension of 14 days granted by the QBCC Manager David Broomhall.
  3. [29]
    The actions that qualified the Respondent as an ‘affected person’ were the request for payment of $528,267.83 in the letter of 27 July 2016 and the threat of legal action if the sum was not paid.
  4. [30]
    The test to determine whether the Respondent is an affected person was substantially the same as the test under s 87 of the QBCC Act and the former Queensland Building Services Authority Act 1991 (Qld). The Respondent relied upon the decisions of Turner and Crisp for the proposition that a party who is subject to a decision demanding the payment of money has been ‘adversely affected’ within the meaning of the QBCC Act. Further, it was submitted that on the basis of Turner the onus is on the Commission to establish that the Respondent is not affected. It was submitted that the Commission has not satisfied that onus.
  5. [31]
    The Respondent submits that a denial of an extension of time would prejudice the Respondent’s opportunity to challenge the decisions and it is in the interests of justice to grant him an extension. It was submitted that the Respondent has been denied procedural fairness and the Commission has breached the rules of natural justice.
  6. [32]
    In relation to the Norman Park property, it was submitted that while the Tribunal found that the Commission issued a scope of works decision, it is unclear whether it was in fact served on the liquidator.

Authorities and Discussion

  1. [33]
    The starting point is the decision of the Court of Appeal in Mahony v Queensland Building Services Authority (‘Mahony’).[13]  There, the building contractor was directed to rectify building work.  He failed to do so. The Commission issued a scope of work document listing the work to be carried out under the scheme to rectify or complete the defective work.  The Commission then sought and obtained recovery in the District Court of the monies it had paid, as a debt. The builder appealed.  Gotterson JA (with whom the President and Douglas J agreed), at [31], said:

The appellant submits that in a recovery proceeding under s 71(1), it is open to a defendant to defend the claim by challenging the legal efficacy of any step taken by the authority in the assessment of the claim.  Taken to its full extent, that approach would allow the defendant to challenge matters such as an inspection report, a decision to direct rectification of work, a decision that rectification work had not been satisfactorily attended to, and a decision to accept a particular tender from those submitted for rectification work.

  1. [34]
    His Honour then referred to one of the steps challenged in that case being the competency of the expert to carry out the inspection and produce a report. His Honour continued, at [33] (citations omitted):

The submission invites consideration of whether such matters are justiciable in s 71(1) recovery proceedings. In my view, they are not for the following reasons.

… The statutory right to recover is not conditioned upon the legal quality of a determination by the authority to make the indemnity payment or of any anterior step taken by the authority that had led to the decision to pay.

… A decision by the authority to recover an amount under s 71(1) was not reviewable by the Tribunal.  However, it was a decision which was judicially reviewable in the Supreme Court of Queensland pursuant to the provisions of the Judicial Review Act 1991. So, too, for other anterior decisions of the authority.  The availability of review of those kinds and at those stages provides a sound rationale for a legislative intention that the types of decisions to which I have referred, not be justiciable in s 71(1) debt recovery proceedings.

  1. [35]
    His Honour found support for that construction of s 71(1) in the decision of Lange v Queensland Building Services Authority (‘Lange’),[14] where the Authority sought indemnity from a director of the building company.  In that case, Margaret Wilson AJA (with whom the other members of the court agreed) said, at [72] and [73]:

Sections 71 and 111C provide for recovery of the amount of a "payment on a claim under the insurance scheme" rather than the recovery of the amount of a "payment under the insurance scheme".  For this reason, I do not accept counsel for the appellant's submission that the triggering circumstance [payment by the authority of the claim] on which the respondent relies does not apply.

The administrative decision sought to be reviewed is one about entitlement to indemnity under the statutory policy.  The appellant is a person aggrieved by that decision because, in consequence of it, a payment was made to the owners and he was exposed to recovery proceedings pursuant to s 111C.  He is entitled to seek judicial review of that decision pursuant to s 20 of the Judicial Review Act 1991.

  1. [36]
    Namour v Queensland Building Services Authority[15] concerned a claim against a director of a building company which had its licence cancelled.  The company went into external administration and each property owner terminated their contract with the company. The director’s argument against a claim under s 111C was that the authority wrongfully cancelled the companies building licence and he should have been entitled to contest that in the debt recovery proceedings.  It is appropriate to refer in full to what Fraser JA said at [19], as the learned Member relied upon Fraser JA’s comments in the latter part of the passage as a basis for her finding that the Respondent was a ‘person affected’.

The scheme of the Act is that a building contractor or other interested person who wishes to challenge such decisions should make the challenge before the respondent pays under the policy.  A building contractor who does not make such a challenge is liable under s 71(1) whether or not one of those anterior decisions might have been the subject of a challenge.  In the case of a building contractor which is a company, a director caught by s 111C(6) is similarly unable to challenge one of those anterior decisions in a proceeding for recovery of a debt.  This is so because the director's liability is fixed by reference only to the liability of the building contractor.  (I would add that there is a strong argument that in circumstances such as occurred in this case, a director is also entitled to challenge a decision to cancel a company's building licence. A director may plausibly claim to be a person affected by such a decision because the readily foreseeable results of cancellation of a corporate building contractor’s licence during the course of a contract include termination of the contract, a claim upon the respondent by the owner under the statutory insurance policy, payment of the claim by the respondent, and a claim by the respondent against the company and its directors.)

Fraser JA referred to the decision of Lange as authority for the last proposition.

  1. [37]
    In Queensland Building and Construction Commission v Lifetime Securities (Australia) Pty Ltd (‘Lifetime Securities’),[16] Gotterson JA (with whom McMurdo P and Lyons J agreed) after referring to Mahony said at [28]:

I adhere to the principles expressed in those reasons. I am fortified in so doing by the reasons of Bell and Gageler JJ given in the course of refusing special leave to appeal from the decision.[17] Their Honours observed:

The applicant also submitted that in recovery proceedings under s 71(1) the steps anterior to payment and recovery are justiciable issues. Specifically, the applicant sought to put at issue the competency of the inspector who produced the relevant reports for the respondent. The Court of Appeal held that the availability of merits review of a range of decisions of the Authority provided a sound rationale for a legislative intention that such decisions not be justiciable.

I note also that this aspect of the decision in Mahony was recently applied by this Court in Namour v Queensland Building Services Authority. 

The decision in Mahony supports the view that the right to recover conferred by s 71(1) is not conditioned upon the legal quality of any step that QBCC may have taken antecedent to a decision to make payments under the scheme.[18]

(our emphasis)

  1. [38]
    Next in time is the decision of the Court of Appeal in Samimi v Queensland Building and Construction Commission,[19] which involved claims against directors under s 111C of the QBCC Act. Their defence was that the Commission had made an error in determining the extent of the indemnity the owner was entitled to and the payment made was outside the limit of the policy. Boddice J (with whom McMurdo P and Morrison JA agreed) considered that the Commission’s right of recovery was limited to payments made “on” claims under the insurance scheme. He explained the basis of that finding as follows at [31]-[32]:

However, it does not follow that no factual error can be the subject of a proper defence to a claim for recovery made pursuant to s 71(1) of the Act.  The inclusion of the words “on a claim under the insurance scheme”, in s 71(1) of the Act, indicate a legislative intention to require the right of recovery to pertain to payments made “on” claims under the insurance scheme.  The use of those words connotes a requirement the payment made be within the policy.  If that were not so, the legislature could simply have provided that the respondent could recover under s 71(1) of the Act any payment it had made pursuant to the insurance scheme.

This conclusion is consistent with the proper approach to statutory interpretation enunciated by the High Court in Lacey v Attorney-General for the State of Queensland, as “giving the words of a statutory provision the meaning which the legislator is taken to have intended them to have”.  The interpretation contended for by the respondent would render unnecessary the inclusion of the words “on a claim” in s 71(1) of the Act.

  1. [39]
    The Court of Appeal considered this further in the decision of Turcinovic. In that case there was a significant disparity between the price at which the rectification work was carried out and the price as submitted by an expert witness. North J (with whom the other members of the Court agreed) reviewed all of the authorities and said at [28] (citations omitted):

The review of the decisions in this court referred to by her Honour below, and the parties before us since the decision of Mahony v Queensland Building Services Authority, confirm that Mahony remains an authoritative statement of the law and of the liability of a building contractor to pay to the Commission the amount of any payment made “on a claim under the … scheme” under s 71(1). Neither party suggested to the contrary, and it should be noted that Mahony has been referred to and applied with express approval in other decisions of this court. Further, neither the judgment in Namour nor Samimi suggest, let alone establish, any qualification or modification to the interpretation or operation of s 71(1). The availability of both internal and external review of decisions made under the Act given by Div 3 of Pt 6 of the Act and of judicial review under the Judicial Review Act 1991 suggests that there is limited scope for complaint about the legal quality of the decision-making in making a payment or the decisions anterior to it. As much was expressly emphasised by Gotterson JA (with whom Margaret McMurdo P and Ann Lyons J agreed) in Queensland Building and Construction Authority v Lifetime Securities (Australia) Pty Ltd.­ In this case there is reason to infer that the respondent or his legal advisers were aware of his rights of review because he unsuccessfully sought a review in QCAT of the scope of the works decision in respect of the third Carina property.

  1. [40]
    In the same case, Philippides JA made the following comments, which summed up what the parties were essentially doing, in the cases reviewed, in attempting to circumvent s 71(1) (citations omitted) at [15]:

The respondent’s defence to the claim against him was no more than an attempt to seek a merits review of the payment made by the respondent under the insurance scheme. Section 71(1) Queensland Building and Construction Commission Act 1991 should not be construed so as to permit a backdoor judicial review or a merits review of the appellant’s decision to make a payment under the statutory insurance scheme set up under the Act. Such an approach would be contrary to the statutory framework of the Act as interpreted by the authorities referred to by North J, especially Samimi v Queensland Building and Construction Commission and would not be consonant with notions of finality of decision making.

  1. [41]
    With regard to the statutory limitation in s 86F(1)(c) of the QBCC Act on review of a scope of works decision, in Queensland Building and Construction Commission v Watkins,[20] Douglas J, in providing the reasons for the decision, said in relation to the then s 86(2) at [14]-[16] (citations omitted):

Dr Forbes, the member of QCAT who dealt with the case, decided that QCAT had no jurisdiction to extend time in the case because:

“The prohibition in section 86(2) defines and limits the jurisdiction of the Tribunal …  It is not merely a procedural rule that may be relaxed under section 61 of the QCAT Act.  It is a mandatory substantive rule of law, and a condition of jurisdiction.”

Apart from the authorities the learned member relied on, his conclusion is also supported by decisions such as McKain v RW Miller & Co (SA) Pty Ltd[21] where, among other things, Brennan, Dawson, Toohey and McHugh JJ referred to the type of statute which: “creates a right of limited duration so that, after the expiry of the time prescribed, the right ceases to exist for any purpose.  Such a statute is substantive in nature”.  A similar approach may be seen also in Hope v Brisbane City Council.[22]

The respondent did not challenge that decision of QCAT and made no submission in this case to the contrary of its effect.  The language of the section, in prescribing that QCAT must not review decisions of the nature described in the section if 28 days have elapsed since the relevant decision or direction, makes it correct to conclude that it is a mandatory provision having substantive rather than procedural effect.  The compelling inference from the structure of the Act is that applications for review of such matters should be made expeditiously to avoid further delay in the completion or execution of rectification work.

  1. [42]
    At the outset of the application it was conceded by the Commission that the finding by the learned Member at paragraph [7] of her reasons that the Commission had issued a scope of works decision to the company liquidator in relation to the Norman Park property was factually wrong. Neither the liquidator nor the builder was served with the decision. However, neither party has appealed that finding. It follows that an extension of time request in respect of the Norman Park property is unnecessary.
  2. [43]
    However, it remains that the statutory time bar for reviewing the scope of works decisions applies in relation to the Ashgrove and Toowong properties. The fact that in relation to those properties there was no service of the decision on the Respondent is not to the point. Under s 86F(1)(c) QBCC Act, the 28 day time period for review runs from when the decision is served on the building contractor, as defined in the Act.
  3. [44]
    In relation to the Norman Park property, it follows from the authorities outlined above that even if the Respondent has standing to seek review pursuant to s 87 QBCC Act, as noted in Lifetime Securities the right to recover under s 71(1) QBCC Act “is not conditioned upon the legal quality of any step that QBCC may have taken antecedent to a decision to make payments under the scheme”. In other words, decisions made in relation to the scope of works will not affect the right of recovery under s 71(1). It being accepted that the Respondent was a director of Statewide at the time the work was carried out, he is liable under s 111C(6) if Statewide owes the Commission for any payments made under the insurance scheme.
  4. [45]
    The learned Member correctly found that she did not have jurisdiction to review the decisions made under s 71(1) of the QBBC Act.[23] Indeed, a right to review those decisions was not pressed before us. In relation to the scope of works decisions, we are of the opinion that the learned Member erred in finding that such anterior decisions could be reviewed by the Tribunal. It is tolerably clear from the line of authorities that if the builder, or in this case a director of a builder, wishes to challenge such decisions it should do so before the decision to pay is made under the insurance scheme.
  5. [46]
    The effect of the learned Member’s decision is to permit what Philippides JA in Turcinovic termed a back door judicial review or a merits review of the Commission’s decision to make a payment under the statutory insurance scheme.
  6. [47]
    It follows that we would allow the appeal.
  7. [48]
    In view of the decision we have reached it is not necessary for us to consider whether the Respondent is an ‘affected person’ within the meaning of s 87 QBCC Act. 

Application to introduce new evidence

  1. [49]
    On the day of the hearing of the appeal, the Respondent filed by leave an application to introduce new evidence. The Commission opposed the introduction of the new material and reserved its rights but did not require an immediate ruling from the Tribunal. The Tribunal agreed to provide a ruling in due course.
  2. [50]
    The material sought to be introduced comprised contractual documents, claims and contemporary correspondence relating to the properties the subject of the uncompleted and defective work.  The Commission opposes its introduction on the basis that the material is irrelevant, no satisfactory explanation has been provided for why the material could not have been obtained at an earlier time and no explanation has been provided as to the lateness of the application. We are not satisfied that the material could not have been obtained at an earlier time with reasonable diligence and we do not consider the fresh material would have an important influence on the result of the case or this appeal.[24] Although the Tribunal must act with as little formality and technicality as the circumstances permit, nevertheless the discretion to admit additional evidence should be approached with caution.[25] We, therefore refuse the application.
  3. [51]
    We make the following orders:
    1. (1)
      The Applications for leave to appeal is granted.
    2. (2)
      The Appeals is allowed.
    3. (3)
      The Applications to extend time to review the decisions are dismissed.

Footnotes

[1]See ss 71 and 86F(1)(a) of the QBCC Act.

[2]See s 86F(1)(c) QBCC Act.

[3]See s 142(3)(a)(ii) Queensland Civil and Administrative Act 2009 (Qld).

[4][2016] QCATA 197.

[5]Harrison & Anor v Meehan [2016] QCATA 197 [8].

[6][2015] 2 Qd R 1; see, in particular, the comments of Fraser JA.

[7][1999] QBT 66.

[8][2010] QCAT 263.

[9][2011] QCAT 574.

[10]   It is evident that this ground was confined to the Toowong and Ashgrove properties, as it appeared that the builder and/or liquidator were not served with the scope of works decision in respect of the Norman Park property.

[11][2018] 1 Qd R 156.

[12][2014] QCA 172.

[13][2013] QCA 323.

[14][2012] 2 Qd R 457.

[15][2015] 2 Qd R 1.

[16][2014] QCA 161.

[17]Mahony v Queensland Building Services Authority [2014] HCASL 93 (13 May 2014) [4].

[18]See also Lifetime Securities [31]-[34].

[19][2015] QCA 106.

[20][2014] QCA 172. In Watkins the Court was concerned with the former s 86(2) of the QBBC Act which was replaced by s 86F(1)(c) and is materially the same.

[21](1991) 174 CLR 1, 42-43.

[22][2013] QCA 198 [11].

[23]Reasons [42].

[24]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

[25]Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115.

Close

Editorial Notes

  • Published Case Name:

    Queensland Building and Construction Commission v Lee Anthony Crocker

  • Shortened Case Name:

    Queensland Building and Construction Commission v Crocker

  • MNC:

    [2018] QCATA 194

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member King-Scott

  • Date:

    07 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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