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CITE

Unreported Judgment

Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd[2023] QCATA 71D J McGill SC S Traves
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Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd[2023] QCATA 71

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71
PARTIES:	QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (applicant/appellant) v B & L CONSTRUCTIONS QLD PTY LTD (respondent)
APPLICATION NO/S:	APL105-22
ORIGINATING APPLICATION NO/S:	GAR298-21
MATTER TYPE:	Appeals
DELIVERED ON:	27 June 2023
HEARING DATE:	19 May 2023
HEARD AT:	Brisbane
DECISION OF:	Judicial Member D J McGill SC Senior Member S Traves
ORDERS:	Leave to appeal from the decision of the Tribunal on 31 March 2022 granted. Appeal dismissed. If either party seeks an order for costs, that party must provide submissions in writing supporting such an order to the associate to the Deputy President and to the other party within fourteen days of this decision. If such submissions are provided, the other party may provide submissions in writing in response to the associate and to the party applying within fourteen days of receiving such submissions. Any submissions in writing in reply are to be provided within seven days of receiving the submissions in response. If submissions seeking costs are received, the Appeal Tribunal will decide the question of costs on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – WHETHER TERMS OF SECTION TO HAVE OTHER THAN ORDINARY MEANING TO AVOID ABSURDITY – where section defines ‘reviewable decision’ to be one listed in s 86(1) and an internal review decision – where s 86(1)(h) allows review of decision to disallow a claim under the insurance scheme – where original decision to allow claim not reviewable decision - where decision on internal review was to allow a claim under the insurance scheme – whether internal review decision to allow a claim was a ‘reviewable decision’ – whether tribunal has jurisdiction Queensland Building and Construction Commission Act 1991 (Qld) s 3, s 71, s 86, s 86C, s 86D, s 86E, s 87 Lange v QBSA [2012] 2 Qd R 457 Mahony v QBSA [2013] QCA 232 Minogue v Victoria (2018) 264 CLR 252 Queensland Building and Construction Commission v Turcinovic [2018] 1 Qd R 94 R v A2 (2019) 269 CLR 507 SZTAL v Minister for Immigration (2017) 262 CLR 362 Taylor v The Owners Strata Plan No 11564 (2014) 253 CLR 531
APPEARANCES & REPRESENTATION:
Applicant:	S Forrest, instructed by the Legal Services Unit of the appellant
Respondent:	T Bombek of Mills Oakley

REASONS FOR DECISION

[1]
This is an application for leave to appeal from the decision of a Member of the Tribunal on a preliminary point in a review brought by the respondent from a decision of the appellant.^[1] The matter at issue is whether the Tribunal has jurisdiction to decide a review brought by the respondent, an appropriate matter for determination as a preliminary point. This involves a question of interpretation of the Queensland Building and Construction Commission Act 1991 (Qld) (“the Act”) of general application, at least in similar circumstances. It is therefore an appropriate matter in which to grant leave to appeal. For the reasons which follow, we consider that the Tribunal has jurisdiction to decide the review. As a result, leave to appeal is granted, but the appeal is dismissed.

Background.

[2]
The respondent is a licenced contractor which constructed a house on certain land pursuant to a contract. In connection with that construction, a statutory insurance was arranged, under terms of the Act and Regulation, by the respondent. After the work was completed, the property was sold to a new owner who made a claim on the statutory insurance to the appellant. On 10 November 2020 the appellant disallowed the claim in total. The owner sought internal review of that decision under the Act, and on 21 December 2020 a decision was made on the internal review, allowing the claim. On 7 May 2021 the respondent filed an application in the Tribunal seeking to review the internal review decision. On 16 July 2021 a direction was made that the question of jurisdiction of the Tribunal to decide the review be determined as a preliminary question. On 31 March 2022 a Member decided that the Tribunal had jurisdiction. It is from that decision that the appellant seeks to appeal.
[3]
One matter of concern was the fact that the present question was being argued without hearing from the claimant under the insurance policy. It appears from directions given earlier in this matter that the question of whether the claimant should be a party to the review proceeding is yet to be decided. Without wishing to usurp that issue, it is sufficient to say that, if the claimant is a proper party to the review proceeding, the claimant would appear to be a proper party at the stage of the determination of the preliminary issue, which affects whether there is to be a review at all of the decision in the claimant’s favour. The appellant however was able to advise the Appeal Tribunal that the claimant had been given notice of the preliminary issue, and had been invited to consider whether to apply to be heard, but had not applied to do so.^[2] In those circumstances, the Appeal Tribunal was prepared to proceed with the present application and appeal.

The Legislation

[4]
The Act has been much amended since it was passed, but its objects in s 3 continue to include:

(a)
to regulate the building industry—

(i)
to ensure the maintenance of proper standards in the industry; and

(ii)
to achieve a reasonable balance between the interests of building contractors and consumers; and

(b)
to provide remedies for defective building work

[5]
The Act, at the time of the internal review decision, provided for both internal review and external review, in the latter case by the Tribunal. The scheme gives applicants for review a choice to proceed to internal review, or to go directly to external review, but if they proceed to internal review, the internal review decision can still be taken to external review. The Act had always provided for a list of reviewable decisions, that is, decisions which are reviewable under the review provisions. In its original form, the reviewable decisions included:

(e)
a decision to disallow a claim under the insurance scheme wholly or in part;

(f)
another decision of the Authority that adversely affects any person.^[3]

[6]
Paragraph (e) remains in the list of reviewable decisions, as paragraph (h); paragraph (f) is long gone. The Act in its original form also provided, in s 71(1):

If the Authority makes any payment on a claim under the insurance scheme, the Authority 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.

[7]
In its current form, the Act still provides in virtually the same terms in s 71(1). As well, s 71(3) provided, and still provides, a right of statutory subrogation in the appellant to the rights of the person to whom or for whose benefit a claim is paid in respect of the subject of the claim. Some time before 2014 the list of reviewable decisions also came to include:

(i)
A decision that a domestic building contract has been validly terminated having the consequence of allowing a claim for non-completion under the statutory insurance scheme.

[8]
There can be a claim under the insurance scheme for non-completion of the contract work. There can also be a claim for defective work. Clearly paragraph (h) (a decision to disallow a claim under the insurance scheme wholly or in part) applied to both types of claim, but was of benefit only to the claimant, ordinarily a home owner. Paragraph (i) applied only to a claim for incomplete work, and was of benefit to the building contractor. It is possible that someone other than a building contractor could be liable under s 71 in respect of a successful claim for incomplete work, but I expect that in the usual case, the building contractor would be the party seeking a review.^[4] It is immediately apparent, however, that, at least since the disappearance from the Act of s 98(f), a building contractor could not challenge a decision to allow a claim for defective work in this way.^[5]

The Current Act

[9]
In the Act in its current form internal review is provided by Subdivision 1 of Division 3 of Part 7. Section 86 lists the reviewable decisions, including (h) and (i), and s 86A provides the “A person who is given, or is entitled to be given, notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed.” The section goes on to exclude internal review by a person who has applied for external review, and provides that internal review lapses if the person applies for external review before the internal review decision. Section 86C provides that the internal reviewer must make a new decision “as if the reviewable decision the subject of the application had not been made.” Section 86D provides for notice of the internal review decision, and for its content; we shall return to this section.
[10]
Under the Act s 87, “a person affected by a reviewable decision of the [appellant] may apply … to the Tribunal for review of the decision.” For the purposes of s 87, a reviewable decision is defined in s 86E, thus:

“(a)
a reviewable decision within the meaning of subdivision 1, other than a decision that was the subject of an internal review under subdivision 1; or

(b)
an internal review decision within the meaning of subdivision 1.”

[11]
The original decision of the appellant to reject the claim was a reviewable decision within the meaning of subdivision 1, being within s 86(1)(h), a decision to disallow a claim under the statutory insurance scheme, but it was the subject of an internal review, so it does not satisfy paragraph (a). But as a result of the internal review, there was an “internal review decision within the meaning of subdivision 1”. The definition section for subdivision 1, s 85A, refers to s 86C(1) for the definition of internal review decision”. That subsection provides:

“If an internal review application is made under section 86B, the internal reviewer must, as soon as practicable but within the required period, make a new decision (the internal review decision) ….”

[12]
In the present case, the internal reviewer made a decision, so there was an internal review decision for the purposes of s 86(1) and hence within the meaning of subdivision 1. If one reads the words of s 86E(b) literally, there was also an internal review decision for the purposes of paragraph (b) of the definition of “reviewable decision” in s 86E. That decision affected the builder, because of the statutory indemnity in the Act s 71, so it was entitled to apply to the Tribunal for review of that decision under s 87. That was the effect of the decision of the Member. Unless the terms of s 86E(b) are read down in some way, it was correct, and the appeal must be dismissed.

The submissions of the appellant

[13]
The appellant submitted that the section should be read down, because otherwise there would be an anomaly in the operation of the review provisions: the builder could not apply to review an original decision accepting a claim for defective work, but if the claim was accepted on internal review, a builder could apply to review that decision. It was not disputed that the respondent, as the building contractor, was a “person affected” by the decision, and that if s 86E(b) were read literally, that was the outcome; but it was submitted that the circumstances surrounding the amendments in 2014, which introduced the idea of an internal review of reviewable decisions, did not show any legislative intention to widen the scope of external review in this way, and to produce such an anomaly.
[14]
The 2014 amendments were the result of the implementation of the government’s response to the report of a Parliamentary Committee following an Inquiry into the operation and performance of the QBSA. The Report, dated November 2012, made 41 recommendations, of which number seventeen was:

The Committee recommends that the Minister for Housing and Public Works re-examine the use of QCAT as the only mechanism for reviewing QBSA decisions, to ensure the review process is more streamlined and user friendly and that the Minister consider introducing legislated timeframes for reviewing decisions of the new building authority.

[15]
The response of the Government to the report, published in May 2013, put forward a ten point plan, including to replace the QBSA with the appellant. Point 3 included: “It is proposed that the Commission will establish an internal review unit and procedures for reviews of insurance decisions and homeowner complaints to reduce the number of applications for review being made to QCAT. … ” This was said to produce improved governance, improved risk management, reduced red tape and no additional cost to industry and homeowners.^[6]
[16]
The Explanatory Notes for the Bill for the Act which effected the amendments in 2014^[7] noted that the Bill would further implement the Government’s ten point plan. It was said that the effect of the amendment was “to enable a dissatisfied person to apply for internal review of QBCC decision that have the potential to go to the … Tribunal. This applies to insurance, homeowner complaints and licensing.” Sections 86A to 86F were inserted by s 63 of that Act, and the Explanatory Note for that section included the following:

New section 86D requires that as soon as is practicable or after an internal review decision is made or is taken to have been made under section 86C, the Commission must give the applicant and any other person affected by the decision written notice of the decision.

New section 86E provides the definition of reviewable decision for the sub-division.

New section 86F sets out the decisions of the Commissioner under the Act which are not reviewable decisions under the sub-division.

[17]
The appellant submitted that there was nothing in this which indicated an intention to confer a wider right to a merits review on a contractor than was previously, and still, available under s 86. Introducing a right to challenge the allowing of a claim by a contractor was novel, and it was anomalous and absurd for it to be available only if the claim was allowed only on an internal review. This would shift the balance between owners and contractors, but in an arbitrary way which could not have reflected a rational legislative intention. Reference was made to cases on statutory interpretation,^[8] which referred to the importance or context, in a wide sense, and legislative purpose in the interpretation process, which could extend, in effect, to reading words into the text so as to prevent an absurdity.^[9]

Consideration

[18]
Questions of interpretation in a statute usually arise where the issue is whether a word has been used in other than its ordinary meaning, resolved by considerations of context and purpose.^[10] Sometimes there is an example of a drafting error which, once identified, is usually cured readily enough by curial interpretation. But there is a difference between an error in drafting or expression, and what appears to be an error in the way in which the statute seeks to implement a particular policy. It is one thing for a court to overcome simple grammatical or drafting errors which would otherwise defeat the object of the provision. It is quite another where it appears, with the benefit of hindsight and in the light of the facts of a particular matter, that the objective of the legislation might have been better achieved by a scheme different from the one actually enacted. In that situation, any correction is a matter for the legislature.^[11]
[19]
That is the position with these provisions. They proceed on the basis that, once there has been an internal review, the constraints on what are reviewable decisions imposed by s 86 have been satisfied, so that any internal review decision becomes a reviewable decision. That is the scheme of s 86E, and is consistent with s 86D, which requires notice of the internal review decision to be given to the applicant (for the internal review) and any other person affected by the decision, by a written notice, which advises of the existence of a right of external review. The contractor is a person affected by the decision, as had been held before the amending act was passed.^[12]
[20]
The wording of s 86D is consistent with s 86E(b), if given its natural meaning. Limiting the scope of external review of internal review decisions would require a significant modification of the wording of s 86D, as well as the wording of s 86E. This is the sort of change which is too much at variance with the language in fact used by the legislature. Both of these provisions were inserted by the amending act in 2014. They provide a consistent indication that the legislative intention then was to confer a general right to external review of internal review decisions. The scheme thus created is by no means unworkable.
[21]
Contractors have always had the right to challenge a decision to allow a claim under the statutory insurance scheme for defective work, or a decision to allow a claim for incomplete work on a ground other than that the contract has been validly terminated, although such decisions had to be challenged under the Judicial Review Act 1991 (Qld), which did not allow a full merits review. The present position may be anomalous as the appellant submitted, but the anomaly may lie in the absence of a right in a contractor to a merits review of an original decision to allow a claim under the statutory scheme, in view of the interest of the contractor in the decision because of s 71.
[22]
It may be noted that a decision to recover an amount under s 71 is expressly made a decision not reviewable under external review, by s 86F(1)(a).^[13] In an action to recover the s 71 debt, anterior decisions are not justiciable.^[14] It is true that, in the case of a claim for defective work, there are other steps which normally precede a claim on the insurance scheme which can be the subject of external review, but the final step cannot. A move to allowing a more extensive review at the instance of the contractor can be seen as consistent with the object of the Act, in maintaining a balance between consumers and contractors.^[15] It might also be said that a claim which was initially rejected and then allowed on internal review is likely to be a more marginal case than one initially accepted, and therefore more appropriate for external review.
[23]
The relevant issues were carefully considered by the Member at first instance, and no error in her analysis has been identified. The appellant’s position is essentially that some implication must be made to prevent an operation that cannot have been intended by the legislature. We consider that in this case any adjustment to the wording of the legislation is properly a matter for the legislature, and not something which can be achieved by the Tribunal as an exercise in statutory interpretation. The appeal is dismissed. We will give directions for any application for costs.

Footnotes

[1] We shall refer to the Commission as “the appellant” and to B & L Constructions Qld Pty Ltd as the respondent. Leave is required under the Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(ii).

[2] Affidavit of Alexandra Hoare dated 19 May 2023.

[3] The Act s 98. The Act then referred to the Queensland Building Services Authority (“QBSA”).

[4] In Lange v Queensland Building Services Authority [2012] 2 Qd R 457 recovery was sought from a director of the corporate contractor, under the Act s 111C.

[5] A right to challenge under the Judicial Review Act 1991 (Qld) remained, and was used by contractors, on occasions with success: Kline Industries International Pty Ltd v Queensland Building and Construction Commission [2020] QSC 243.

[6] George Orwell would have been proud of this. These objectives have never been achieved by making a system more complicated.

[7] Professional Engineers and Other Legislation Amendment Bill 2014.

[8] SZTAL v Minister for Immigration (2017) 262 CLR 362 at [14]; Cooper Brookes (Woollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320; Taylor v The Owners Strata Plan No 11564 (2014) 253 CLR 531 at [38].

[9] Citing as an example Connor v Queensland Rail Ltd [2016] QSC 270. But see Stankovic v SS Family Pty Ltd [2018] QDC 54 at [147], appeal dismissed [2018] QCA 296 without mentioning Connor.

[10] R v A2 (2019) 269 CLR 507 at [32].

[11] Taylor (supra) at [38]. See also Minogue v Victoria (2018) 264 CLR 252 at [43].

[12] Lange v QBSA (supra) at [73].

[13] Prior to the 2014 amendments, this provision was in s 86(2)(a) of the Act. The decision is reviewable under the Judicial Review Act 1991 (Qld): Mahony (infra) at [35].

[14] Mahony v Queensland Building Services Authority [2013] QCA 232 at [35]; Queensland Building and Construction Commission v Turcinovic [2018] 1 Qd R 94 at [23], [28]. The position may be different if recovery is sought from a person other than the contractor or a director of a corporate contractor.

[15] The Act s 3(a)(ii).

Editorial Notes

Published Case Name:
Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd
Shortened Case Name:
Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd
MNC:
[2023] QCATA 71
Court:
QCATA
Judge(s):
D J McGill SC S Traves
Date:
27 Jun 2023

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Connor v Queensland Rail Ltd	[2016] QSC 270	1 citation Jump To Cite 1 - [2016] QSC 270
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation	View on:JADE(1981) 147 CLR 297	1 citation Jump To Cite 1 - (1981) 147 CLR 297
Kline Industries International Pty Ltd v Queensland Building and Construction Commission	[2020] QSC 243	1 citation Jump To Cite 1 - [2020] QSC 243
KMB v Legal Practitioners Admissions Board	[2018] 1 Qd R 94; [2017] QCA 76	2 citations Jump To Cite 1 - [2018] 1 Qd R 94 Cite 2 - [2018] 1 Qd R 94
Lange v Queensland Building Services Authority	[2012] 2 Qd R 457; [2011] QCA 58	3 citations Jump To Cite 1 - [2012] 2 Qd R 457 Cite 2 - [2012] 2 Qd R 457 Cite 3 - [2012] 2 Qd R 457
Minogue v Victoria	View on:JADE(2018) 264 CLR 252	2 citations Jump To Cite 1 - (2018) 264 CLR 252 Cite 2 - (2018) 264 CLR 252
Orsay Holdings Pty Ltd v Mecanovic	[2013] QCA 232	2 citations Jump To Cite 1 - [2013] QCA 232 Cite 2 - [2013] QCA 232
R v A2	View on:JADE(2019) 269 CLR 507	2 citations Jump To Cite 1 - (2019) 269 CLR 507 Cite 2 - (2019) 269 CLR 507
SS Family Pty Ltd v WorkCover Queensland	[2019] 3 Qd R 81; [2018] QCA 296	1 citation Jump To Cite 1 - [2018] QCA 296
Stankovic v SS Family Pty Ltd	[2018] QDC 54	1 citation Jump To Cite 1 - [2018] QDC 54
SZTAL v Minister for Immigration and Border Protection	View on:JADE(2017) 262 CLR 362	2 citations Jump To Cite 1 - (2017) 262 CLR 362 Cite 2 - (2017) 262 CLR 362
Taylor v Owners - Strata Plan No 11564	View on:JADE(2014) 253 CLR 531	3 citations Jump To Cite 1 - (2014) 253 CLR 531 Cite 2 - (2014) 253 CLR 531 Cite 3 - (2014) 253 CLR 531

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Queensland Building and Construction Commission & Benton v Egan (No 2)	[2023] QCATA 163	1 citation
Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2)	[2023] QCATA 107	1 citation
Sandhu v Commissioner of State Revenue	[2024] QCAT 511	2 citations
Vytla v Queensland Building and Construction Commission	[2024] QCAT 346	3 citations

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Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd[2023] QCATA 71