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Jorg v Queensland Building and Construction Commission[2021] QCATA 134

Jorg v Queensland Building and Construction Commission[2021] QCATA 134

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jorg & Anor v Queensland Building and Construction Commission [2021] QCATA 134

PARTIES:

fRANZ jORG

CHRISTINA JORG

(applicant/appellant)

v

QUEENSLAND building and construction commission

(respondent)

APPLICATION NO/S:

APL123-20 and APL124-20

ORIGINATING
APPLICATION NO/S:

GAR063-19 and GAR085-19

MATTER TYPE:

Appeals

DELIVERED ON:

20 October 2021

HEARING DATE:

8 December 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Howe

ORDERS:

In APL123-20 and APL124-20

  1. Leave to appeal refused
  2. Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where applicants asserted lack of procedural fairness – where grounds of appeal involved questions of law, questions of fact and questions of mixed law and fact – where leave to appeal required

ADMINISTRATIVE REVIEW – where applicants claimed building work was defective – where Queensland Building and Construction Commission declined to give direction to rectify to builder – where applicants sought internal review of decision not to give direction to rectify – where internal review decision confirmed original decision – where applicants applied to QCAT to review decisions by the QBCC – where applicants claimed building works had not been completed until builder had completed rectification work – where tribunal decided that building works had been completed more than 6 years and 6 months prior to applicants filing applications to review QBCC decisions – consideration of s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) – meaning of when building work ‘was completed’ – where no discretion to extend time to give direction to rectify in the absence of an application by the QBCC

Acts Interpretation Act 1954 (Qld), s 38.

Queensland Building and Construction Commission Act 1991 (Qld), s 47, s 72A(4), s 86(1)(e), s 86A(1), s 86E(a), s 86E(b).

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1), s 24(2)(b), 142(3)(a)(ii).

Barry v QBCC [2015] QSC 50.

Davis & Ors v Queensland Building and Construction Commission [2020] QCAT 189.

Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT.

Stephens v QBCC [2018] QCAT 281.

Stuart v Queensland Building and Construction Commission [2017] QCA 115.

APPEARANCES &
REPRESENTATION:

 

Applicant:

Self represented

Respondent:

Ms S Tabaiwalu (in house)

REASONS FOR DECISION

  1. [1]
    In 2011, the Jorgs contracted with a builder to complete the construction of a dwelling at Maleny. The building works reached practical completion in July 2012. In early 2013, the Jorgs complained to the Queensland Building and Construction Commission (‘QBCC’), about defective items of building work. There began the saga that has led to the present appeals.
  2. [2]
    The Jorgs complained to the QBCC about a number of defects including waterproofing and weatherproofing issues relating to windows installed in the living and dining rooms (the window issues). The Jorgs also complained to the QBCC about issues relating to a number of internal doors (the internal door issues).
  3. [3]
    On 11 December 2018, the QBCC made a decision not to issue the builder with a direction to rectify in respect of the window issues (the first decision). On 14 December 2018, the QBCC made a decision not to issue the builder with a direction to rectify in respect of the internal door issues (the second decision).
  4. [4]
    On 7 January 2019, the Jorgs applied to the QBCC for an internal review of the first decision. On 9 January 2019, the Jorgs applied to the QBCC for an internal review of the second decision.
  5. [5]
    On 17 January 2019, the QBCC made an internal review decision relating to the window issues (the first reviewable decision). The QBCC decided that a direction to rectify could not be issued as more than 6 years and 6 months had passed since the work was completed.
  6. [6]
    On 6 February 2019, the QBCC made an internal review decision relating to the internal door issues (the second reviewable decision). The QBCC decided that a direction to rectify could not be issued as more than 6 years and 6 months had passed since the work was completed.
  7. [7]
    The Jorgs applied to the tribunal to review the first and second reviewable decisions.
  8. [8]
    The QBCC applied to have the applications by the Jorgs dismissed. The tribunal dismissed the Jorgs’ applications.[1]
  9. [9]
    The Jorgs appeal the decisions of the tribunal.

Reviewing decisions made by the QBCC

  1. [10]
    A decision by the QBCC to give a direction to rectify or remedy or not to give the direction is a reviewable decision.[2]
  2. [11]
    A person who is given notice of a reviewable decision may elect to apply for an internal review of the decision[3] or may apply to QCAT for a review of the decision.[4]
  3. [12]
    If a person has applied to the tribunal for a review of a reviewable decision, they cannot then apply for an internal review of the decision.[5] If a person has applied for an internal review of a reviewable decision and then applies to QCAT to have the decision reviewed, the internal review application lapses.[6] In other words, there can only be one review process extant in respect of a reviewable decision.
  4. [13]
    Once a person applies for an internal review of a reviewable decision, and subject to the application not lapsing as referred to above, the internal review decision is the ‘reviewable decision’ otherwise the reviewable decision is the decision made pursuant to s 86 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).[7]
  5. [14]
    Relevantly for the purposes of the present appeals, s 72A(4) of the QBCC Act provides that:[8]
  1. (4)
    A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.
  1. [15]
    In a proceeding for a review of a reviewable decision, the tribunal may:
  1. (a)
    confirm or amend the decision; or
  1. (b)
    set aside the decision and substitute its own decision; or
  1. (c)
    set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.[9]
  1. [16]
    By s 24(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act), if the tribunal makes a decision under (a) or (b) above, subject to any contrary order of the tribunal, the decision has effect from when the reviewable decision takes or took effect.[10]

The decision at first instance

  1. [17]
    In dismissing the applications by the Jorgs, the Tribunal found:
    1. (a)
      The Jorgs had two options available to them to seek a review of the first and second decisions:
      1. Internal review;
      2. Application to the tribunal;
    2. (b)
      The Jorgs chose to apply for internal review of the first and second decisions;
    3. (c)
      The internal review decisions subsequently made by the QBCC (that is, the first and second reviewable decisions) were each a ‘reviewable decision’;
    4. (d)
      The first and second reviewable decisions were made more than 6 years and 6 months after the completion of the work;
    5. (e)
      The tribunal’s decisions in respect of the first and second reviewable decisions would impermissibly take effect after the expiry of the 6 year and 6 month period;
    6. (f)
      By choosing to pursue an internal review rather than an application to the tribunal to review the first and second reviewable decisions, the Jorgs were the ‘authors of their own difficulties in relation to s 72A(4)’ of the QBCC Act;
    7. (g)
      It was not appropriate to make ‘an order to the contrary’ pursuant to s 24(2)(b) of the QCAT Act.

What do the parties say?

  1. [18]
    The material filed by the Jorgs in these appeals is extensive and diffuse. Doing the best we can, we have identified the grounds of appeal as:
    1. (a)
      The tribunal determined the matter without the parties having been given the opportunity to file evidence;
    2. (b)
      The Jorgs were not given the opportunity to file submissions in reply to the QBCC’s submissions;
    3. (c)
      The Jorgs were not afforded the opportunity for an oral hearing of the application to dismiss and were not given notice that the application would be determined on the papers;
    4. (d)
      The failure by the QBCC to act promptly was the reason the relevant time limit expired;
    5. (e)
      The tribunal failed to consider relevant matters and material being:
      1. the failure by the QBCC to issue a direction to rectify to the builder since 2013 in respect of the windows issues and the internal doors issues;
      2. the failure by the QBCC to issue a direction to rectify to the builder in respect of the Jorgs’ complaint on 25 March 2018 regarding the windows issues;
      3. the failure by the QBCC to accept the defect assessment of the Australian Glass and Window Association and to reassess and correct their assumption;
      4. the contradictory actions of the QBCC relating to the same defects in the dwelling and under the same contractual arrangements;
    6. (f)
      The QBCC failed to comply with directions to provide a statement of reasons;
    7. (g)
      The discretion of the learned member miscarried in respect of the exercise of the power conferred by s 24(2)(b) of the QCAT Act;
    8. (h)
      The tribunal erred in failing to find that the limitation period for the purposes of s 72A(4) of the QBCC Act commenced to run on or about 20 August 2014 when the builder finished performing the rectification works.
  2. [19]
    Grounds (a), (b) and (c) assert error on the basis of a failure to afford procedural fairness. Grounds (d), (e), (f) and (g) assert error in the exercise of the discretion to dismiss the proceedings. Ground of appeal (h) raises a question of mixed law and fact.
  3. [20]
    The QBCC says:
    1. (a)
      The Jorgs were not denied procedural fairness;
    2. (b)
      The Jorgs had applied for leave to deliver further submissions which was denied. It is not now open to the Jorg’s to seek to attack that decision which they should have appealed at the time it was made;
    3. (c)
      The determination of the application to dismiss did not require the substantive hearing of the review proceedings;
    4. (d)
      There was no reasonable prospect that the Jorgs would have obtained substantive relief in circumstances where the tribunal was not influenced by irrelevant matters;
    5. (e)
      The Jorgs have suffered no substantial injustice that requires the granting of leave to appeal;
    6. (f)
      The Jorgs have not asserted that there is a question of general importance that would be to the public advantage requiring leave to appeal.

Consideration

  1. [21]
    The decision under appeal is a ‘final decision’ for the purposes of s 142(3)(a)(ii) of the QCAT Act.[11]

Section 72(4) of the QBCC Act

  1. [22]
    Section s 72(4) of the QBCC Act states:
  1. (4) A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.
  1. [23]
    The Jorgs say that, for the purposes of s 72A(4), the works were not completed until the builder finished performing the rectification works on or about 20 August 2014.
  2. [24]
    In Davis & Ors v Queensland Building and Construction Commission,[12] the tribunal considered whether building work was ‘completed’ for the purposes of s 72A(4) when the contracted works were completed (referred to by the tribunal as ‘the 2009 work’) or when subsequent rectification work in respect of the contracted works was completed (referred to by the tribunal as ‘the 2015 work’).
  3. [25]
    The tribunal held:

[30] Those words (‘was completed or left in an incomplete state’) must be given meaning. The trigger question to be answered in applying s 72A(4) is, when was the building work completed or left incomplete?

[31] The word completed is not defined in the Act however:

The term ‘completed’ must be read in the context of the phrase in which it appears. The word should be given its ordinary meaning of ‘finished’. The Act and Policy fix a point in time by reference to when the building work was either finished or left in an incomplete state.

[32] Building work is defined and it covers a range of things. It includes erection or construction of a building and site work and preparation of plans, and improvement and repair of a building.

[33] In Barry v QBCC the meaning of building work was considered in the context of s 72A(4) with Flanagan J noting contract administration was included in the definition. He said that expression, contract administration, was in turn defined under the Act to include arranging for certificates to be issued, including certificates from a local government.

[34] Flanagan J said that the time limit under s 72A(4) for defective building work runs from when the building work completes, building work includes contract administration and accordingly, in the matter before him, the time limit for QBCC to issue a direction to rectify started from the date of issue of the final inspection certificate. That was the date the building work completed for the purpose of s 72A(4).

[35] Here, after the building work was done in 2009, a certificate of classification issued on 10 July 2009. Applying Barry, the relevant period allowed QBCC to issue a direction to rectify under s 72A(4) commenced then and finished 6 years and 6 months later, on 10 January 2016. (footnotes omitted)

  1. [26]
    In Davis, the tribunal referred to the earlier decision of Stephens v QBCC.[13] In Stephens the contracted building works had reached practical completion in 2009. In 2015 the builder undertook rectification works relating to water leaks. The home owners lodged a complaint with the QBCC in May 2017. The QBCC decided that the application was out of time. The home owners applied to review the QBCC’s decision, inter alia on the ground that time for the purposes of s 72A(4) did not commence to run until the rectification works had been completed. No direction to rectify had been issued by the QBCC. The tribunal held in Stephens that the fact that the builder undertook rectification work in the absence of a direction to rectify did not result in time for the purposes of s 72A(4) commencing to run from when the rectification works were completed.
  2. [27]
    The tribunal in Davis expressly rejected the proposition that, in determining the date on which the building work to which the direction relates was completed or left in an incomplete state, it was necessary to determine the building work to which the direction relates.
  3. [28]
    The tribunal in Davis referred to Barry v QBCC[14] where Flanagan J stated:

24 To the extent that the applicant relies on the decision in Torea Pty Ltd v Queensland Building Services Authority, I am of the view that the case was wrongly decided. As I have already observed, the term “building work” is a defined term in the QBCC Act. Section 32A of the Acts Interpretation Act 1954 (Qld) provides that definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires. The words “the building work to which the direction relates” does not indicate that “building work” is to have other than its defined meaning. The defined meaning of “building work” includes not just the physical construction of the deck but also arranging for a certificate to be issued. The legislature, had it intended to limit “the building work to which the direction relates” to the defective building work identified in the direction, could have used other terms such as “the building work referred to in the direction” or “the building work the direction requires to be rectified” rather than the broader term “the building work to which the direction relates”.

25 The word “relates” in s 72(8) is a word of broad import. The use of the word “relates” does nothing more than simply identify the whole of the building work that is to be completed.

  1. [29]
    In Davis, the tribunal held that time, for the purposes of s 72A(4) of the QBCC Act, commenced to run from the date of completion of the building work as defined in the QBCC Act as a whole. That occurred when the certification of classification issued in July 2010. The tribunal held there that the performance of the rectification work did not operate to ‘reset’ the time for the purposes of s 72A(4).
  2. [30]
    We respectfully concur with the reasoning in Davis and Stephens. Here, the contracted building works were completed when the form 21 final certificate was issued on 12 July 2012. The period of 6 years and 6 months for the purposes of s 72A(4) began to run from 13 July 2012. As 13 January 2019 was an excluded day[15] the relevant limitation period for the purposes of s 72A(4) expired on 14 January 2019. It follows that the learned member was in error in finding that the period for the purposes of s 72A(4) expired on 11 January 2019, however for the reasons that follow, nothing turns on that.
  3. [31]
    The contention by the Jorgs that, for the purposes of s 72A(4), the works were not completed until the builder finished performing the rectification works on or about 20 August 2014 must be rejected.

Failure to afford procedural fairness

  1. [32]
    The Jorgs raise a number of grounds of appeal relating to what they say was a failure by the tribunal to afford them procedural fairness. These grounds are:
    1. (a)
      The tribunal determined the matter without the parties having been given the opportunity to file evidence;
    2. (b)
      The Jorgs were not given the opportunity to file submissions in reply to the QBCC’s submissions;
    3. (c)
      The Jorgs were not afforded the opportunity for an oral hearing of the application to dismiss and were not given notice that the application would be determined on the papers.
  2. [33]
    The application for summary dismissal of the proceedings was filed by the QBCC on 13 June 2019. On 27 June 2019 the tribunal gave directions for the Jorgs to file submissions in response to the application by 23 July 2019. Following a compulsory conference on 28 October 2019, the tribunal directed that the Jorgs file further statements of evidence and submissions in response to the application by 25 November 2019, and that the QBCC file any statements of evidence and submissions in reply by 23 December 2019. The tribunal again directed that the application would be determined on the papers, but not before 23 December 2019.
  3. [34]
    The Jorgs subsequently applied to the tribunal for leave to file submissions in reply to the QBCC’s reply submissions. They also applied to extend the time for the determination of the application on the papers, presumably to afford an opportunity for the further submissions to be filed. Both applications were refused by the tribunal on 2 March 2020. It is the refusal of the application for leave to file reply submissions that appears to be the basis for ground of appeal (b). The Jorgs had the opportunity to appeal the decision of the tribunal made 2 March 2020. They did not do so. It is not open to them to mount an attack upon that decision in these appeals.
  4. [35]
    As to ground of appeal (a) it is clear from the directions made by the tribunal, and the compliance by the Jorgs with those directions, that they were given the opportunity to file evidence and submissions in response to the application. The Jorgs filed submissions on 23 July 2019. They also filed further submissions and a joint statement of evidence on 25 November 2019. There is no substance in the contention by the Jorgs that they were not afforded the opportunity to file submissions and evidence in response to the application. 
  5. [36]
    Ground of appeal (c) relates to what the Jorgs say was the failure by the tribunal to afford them an oral hearing of the application. There is no substance in this ground of appeal. The tribunal made directions on numerous occasions that the application would be determined on the papers. It was open to the Jorgs to apply to the tribunal for an oral hearing. They did not do so.

Remaining grounds of appeal

  1. [37]
    The remaining grounds of appeal are:
    1. (a)
      The failure by the QBCC to act promptly was the reason the relevant time limit expired;
    2. (b)
      The tribunal failed to consider relevant matters and material being:
      1. the failure by the QBCC to issue a direction to rectify to the builder since 2013 relating to the windows issues and the internal doors issues;
      2. the failure by the QBCC to issue a direction to rectify to the builder in respect of the Jorgs’ complaint on 25 March 2018 regarding the windows issues;
      3. the failure by the QBCC to accept the defect assessment of the Australian Glass and Window Association and to reassess and correct their assumption;
      4. the contradictory actions of the QBCC relating to the same defects in the dwelling and under the same contractual arrangements;
    3. (c)
      The QBCC failed to comply with directions to provide a statement of reasons;
    4. (d)
      The discretion of the learned member miscarried in respect of the exercise of the power conferred by s 25(2)(b) of the QCAT Act;
  2. [38]
    The learned member observed that it had taken the QBCC 9 months and 24 days to make the second reviewable decision and 8 months and 15 days to make the first reviewable decision. The fact remains that both reviewable decisions were made within the 6 year 6 month period prescribed by s 72A(4) of the QBCC Act. Had the Jorgs promptly filed in the tribunal applications to review each of the decisions, they would not now face the outcome that has come to pass. It is unfortunate that the Jorgs sought internal review of the decisions, however the election to do so was theirs and theirs alone. That error cannot now be sheeted home to the QBCC.  
  3. [39]
    The Jorgs say that the QBCC failed to provide a statement of reasons in respect of the reviewable decisions. Underpinning this ground seems to be a contention by the Jorgs that the filing of the statement of reasons would have resulted in the Jorgs being given the opportunity to file their ‘documents and attachments’. For the reasons set out earlier, the Jorgs were not only given the opportunity to file evidence and submissions but in fact availed themselves of that opportunity. There is no substance in this ground of appeal.
  4. [40]
    The Jorgs say that the tribunal failed to take into consideration a number of relevant matters. The sole ground of the application to dismiss relied upon by the QBCC was that the applications to review the reviewable decisions had been filed more than 6 years and 6 months after the building works had been completed and that, absent an application by the commission, the applications must fail. The grounds of appeal relied upon by the Jorgs relating to the failure by the tribunal to take into account relevant considerations might arguably be relevant to the exercise of a discretion by the tribunal if there was, in fact, a discretion to be exercised. But there was not. As we have explained earlier in these reasons, the relevant period for the purposes of s 72A(4) of the QBCC had passed at the time the Jorgs filed in the tribunal the applications to review. There can be no extension of time under s 72A(4) unless the commission applies for such an extension and even then the tribunal must be satisfied that there is, in the circumstances of the case, sufficient reason for extending time. No such application was made by the commission in the present case. Once the learned member, correctly in our view, found that the applications had been filed outside the time limit imposed by s 72A(4), and in the absence of an application by the commission to extend the time limit, the Jorgs’ applications had no prospects of success. The matters referred to by the Jorgs in their grounds of appeal were not relevant to the determination of the application to dismiss.
  5. [41]
    The final ground of appeal relates to what the Jorgs say was the failure by the learned member to exercise the discretion conferred by s 24(2)(b) of the QCAT Act.
  6. [42]
    In a proceeding for a review of a reviewable decision the tribunal may, inter alia, confirm or amend the decision or set aside the decision and substitute its own decision. Subject to any contrary order of the tribunal, the decision takes effect from when the reviewable decision takes or took effect.
  7. [43]
    Section 24(1) of the QCAT Act begins with the words ‘In a proceeding for a review of a reviewable decision…’. The section assumes that the tribunal has jurisdiction in a particular review proceeding. The jurisdiction of a court, or in this case a tribunal, is not to be confused with its powers.[16] Where, as here, an application to review a decision not to issue a direction to rectify is not filed within 6 years and 6 months of the completion of the building work and where, as here, there is no application by the commission to extend the time limit, the tribunal has no jurisdiction to review the decision. Section 24(2)(b) cannot be relied upon to create a jurisdiction that does not exist.
  8. [44]
    However, even assuming that QCAT has jurisdiction to extend time, it would be absurd to extend time for a review that the Tribunal is prohibited from conducting.[17]
  9. [45]
    It follows from the foregoing that we disagree with the learned member that it would be open to the tribunal to order its decision take effect from a date within the 6 years and 6-month period. Our conclusion in this regard does not affect the disposition of the appeals.

Conclusion

  1. [46]
    The Jorgs have failed to make out any of the grounds of appeal. Insofar as leave to appeal is required, leave is refused. The appeals are otherwise dismissed.

Footnotes

[1] Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT.

[2] Queensland Building and Construction Commission Act 1991 (Qld), s 86(1)(e) (‘QBCC Act’).

[3] Ibid, s 86A(1).

[4] Ibid, s 87.

[5] Ibid, s 86A(2).

[6] Ibid, s 86A(3).

[7] Ibid, s 86E(a), s 86E(b).

[8] Ibid, s 72A.

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[10] Ibid, s 24(2)(b).

[11] Ibid, s 47. See also Stuart v Queensland Building and Construction Commission [2017] QCA 115 for a consideration of what is a ‘final decision’.

[12] [2020] QCAT 189.

[13] [2018] QCAT 281.

[14] [2015] QSC 50

[15] Acts Interpretation Act 1954 (Qld), s 38.

[16] Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129.

[17] Domestic Maintenance Pty Ltd v QBSA [2012] QCATA 106 [21]

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Editorial Notes

  • Published Case Name:

    Jorg & Anor v Queensland Building and Construction Commission

  • Shortened Case Name:

    Jorg v Queensland Building and Construction Commission

  • MNC:

    [2021] QCATA 134

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown,Member Howe

  • Date:

    20 Oct 2021

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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