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Murphy v Queensland Building and Construction Commission[2024] QCATA 27

Murphy v Queensland Building and Construction Commission[2024] QCATA 27

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Murphy v Queensland Building and Construction Commission [2024] QCATA 27

PARTIES:

Brett Lesliie Murphy

(appellant)

v

Queensland Building and Construction Commission

(respondent)

APPLICATION NO/S:

APL233-20

ORIGINATING APPLICATION NO/S:

GAR250-16 and GAR009-17

MATTER TYPE:

Appeals

DELIVERED ON:

5 March 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. The appeal against the decision dated 23 June 2020 in GAR250-16 and GAR009-17 is allowed.
  2. The decision dated 23 June 2023 in GAR250-16 and GAR009-17 is set aside and the matter is remitted to the Tribunal for reconsideration according to law and in accordance with these reasons.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – identifying the nature of the decision under review – where a direction to rectify is issued against licensed contractor – where the direction to rectify is withdrawn and reissued to an unlicensed person – where the tribunal makes an interlocutory decision that the withdrawal of the direction to rectify is a decision not to give a direction to rectify – where the applicant brings an application to review the decision – whether the decision-maker was functus officio after giving the original direction to rectify – whether the tribunal erred in considering matters irrelevant to the decision not to issue a direction to rectify against the licensed contractor

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – identifying the nature of the decision under review – where direction to rectify given to unlicensed person – whether rectification work undertaken by licensed contractor by arrangement with the unlicensed person is work undertaken at the direction of the QBCC – whether decision by QBCC that work has been rectified is a reviewable decision – whether tribunal erred in deciding matter in the absence of  jurisdiction

Acts Interpretation Act 1954 (Qld) s 24AA

Queensland Building and Construction Commission Act 1991 (Qld) ss 42, 68H, 71I, 71J, 72, 72A, 73, 74B, 86

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 23

Dew v Queensland Building Services Authority [2010] QCAT 687

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480

Kline Industries International Pty Ltd v Queensland Building and Construction Commission [2020] QSC 243

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211

Murphy v Queensland Building and Construction Commission [2017] QCAT 164

Murphy v Queensland Building and Construction Commission [2017] QCAT 344

Queensland Building and Construction Commission v Russell [2015] QCATA 57

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an appeal from a decision of the Tribunal in two related proceedings. The hearing below was conducted over three days. The Tribunal confirmed decisions made by the Queensland Building and Construction Commission (‘QBCC’) and dismissed Mr Murphy’s review applications.

Background

  1. [2]
    Mr Murphy had building work undertaken at a domestic residence. Mr Murphy accepted two quotes from Woodsy’s Contracting Services to undertake restumping works. The building work was performed by Jie Wood and his father Ross Wood. 
  2. [3]
    After the work was completed, Mr Murphy complained to the QBCC that the work was defective. In the complaint Mr Murphy named Ross Wood as the building contractor. Ross Wood was a licensed building contractor. After investigating the complaint, the QBCC gave Ross Wood a direction to rectify defective building work. The QBCC withdrew the direction to rectify when it was discovered that Jie Wood was both the individual trading as Woodsy’s Contracting Services and the building contractor who had entered into the agreement with Mr Murphy to undertake the building work.  Jie Wood was not a licensed building contractor. A direction to rectify was then given to Jie Wood. As Jie Wood was not licensed, he arranged for Ross Wood (who was licensed) to undertake the rectification work. The QBCC subsequently advised Mr Murphy that ‘the contractor has attended to the items listed in the (direction to rectify)’ (the second decision).
  3. [4]
    In separate applications, Mr Murphy applied to review the first decision and the second decision.

The decision at first instance

  1. [5]
    Before detailing the reasons for the decision below, it is useful to consider in more detail each of the reviewable decisions and what the parties had to say.

The first decision – review proceeding GAR250-16

  1. [6]
    After Mr Murphy complained to the QBCC about the building work, the QBCC issued a direction to rectify to Ray Wood who, the QBCC understood, was the building contractor Mr Murphy had engaged to undertake the building work. When the QBCC discovered that Jie Wood, and not Ray Wood, was the contracting party, the QBCC  withdrew the direction to rectify to Ray Wood and gave a direction to rectify to Jie Wood. The letter from the QBCC to Ray Wood in relation to the withdrawal of the direction was brief and stated: ‘Please be advised, as discussed last week, the Direction to Rectify Number 100883, for the above address, has now been withdrawn. The Direction has been re-issued to the correct responsible party.’
  2. [7]
    Mr Murphy sought to review the decision. The QBCC argued that the decision, which was one to withdraw the direction to rectify, was not a reviewable decision for the purposes of s 86 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). The QBCC brought an application to strike out the review proceeding on the basis that the decision was not reviewable by the Tribunal. Opposing the application, Mr Murphy argued that the decision was a decision not to give a direction to rectify to Ray Wood pursuant to s 86(e) of the QBCC Act. The Tribunal dismissed the application, finding that the first decision was a decision not to give a direction to rectify.[1] That decision was not appealed.
  3. [8]
    Following the determination by the Tribunal that the first decision was a decision not to give a direction to rectify, Mr Murphy applied to have the proceeding, the subject of the second decision, transferred to the Supreme Court to determine whether there had been jurisdictional error in the making of the decision. The error was said to relate to the opinion of the QBCC inspector about whether the defective building work had been satisfactorily remedied. Mr Murphy said that the inspector had ‘acted on a mistaken assumption or opinion as to the existence of a certain event occurrence or fact and has taken into account irrelevant considerations.’ The Tribunal determined that no question of jurisdictional error or jurisdictional fact arose in the proceeding and dismissed Mr Murphy’s application.[2] That decision was not appealed.
  4. [9]
    When the matter proceeded to hearing below, Mr Murphy argued that the QBCC did not have the power to make the first decision. Much of Mr Murphy’s argument was focussed upon the distinction between a decision to give a direction to rectify and a decision to withdraw a direction to rectify. Mr Murphy argued that the review proceeding should be treated as a merits review of the original decision to give a direction to rectify to Ross Wood.  Mr Murphy also submitted that having made the decision to give a direction to rectify to Ross Wood, the QBCC’s decision making power was spent. The appropriate way forward, said Mr Murphy, was for the external review process to be undertaken in respect of the decision to give the direction to rectify to Ross Wood.
  5. [10]
    In respect of both the first and second decisions, in the proceedings below the QBCC advanced two arguments. Firstly, the exercise by the Tribunal of the power to review the decision not to give a direction to rectify to Ross Wood required first a determination by the Tribunal as to whether a direction to rectify ought to be issued. As to this issue, said the QBCC, there was no evidence that the work remained defective and there was therefore no basis for a direction to rectify to be issued. The QBCC’s second argument was that it would not be fair in the circumstances for a direction to rectify to be issued to Ross Wood. The QBCC relied upon a number of factors in this regard: Mr Murphy had played a significant role in directing the work undertaken on site; Ross Wood was not responsible for drainage works or excavation works which were very significant issues; and rectification work had already been undertaken by Ross Wood which was well beyond the scope of works under the original building contract.

The second decision – review proceeding GAR009-17

  1. [11]
    Having given the direction to rectify to Jie Wood, and following the completion of the rectification work by Ross Wood, the QBCC decided that the works had been satisfactorily rectified.
  2. [12]
    Mr Murphy argued that the works remained defective. He said that the builder was responsible for obtaining the foundations data for the site and if necessary obtaining engineering design for the work. As the works did not comply with the National Construction Code (‘NCC’) or the applicable Australian Standard, the works were defective within the scope of the Rectification of Building Work Policy issued by the QBCC.
  3. [13]
    The QBCC said that the rectification work undertaken by Ross Wood was not work undertaken at the direction of the QBCC. The direction to rectify, argued the QBCC, had been given to Jie Wood and the manner in which Jie Wood arranged to have the work undertaken was a matter for him. If an issue was raised about the rectification work, it was a matter for Mr Murphy to make a further complaint to the QBCC about the licensed contractor who undertook the work. The alternative argument by the QBCC, if the Tribunal determined that the rectification work had been performed at the direction of the Commission, was that the works had been undertaken satisfactorily.

The decision at first instance

  1. [14]
    The Tribunal heard and determined the proceedings in respect of the first and second decisions together. The Tribunal found:
    1. The building work was originally undertaken by an unlicensed contractor, Jie Wood;
    2. The rectification work was undertaken by Ross Wood, a licensed contractor;
    3. The rectification work performed by Ross Wood was not work undertaken at the direction of the QBCC;
    4. Work undertaken at the direction of the QBCC is work that the QBCC has directly instructed a licensed person to perform;
    5. The direction to rectify given to Jie Wood required him to engage a licensed contractor to:
      1. Obtain the necessary development approval;
      2. Seek engineering advice to develop a plan which was certified by a qualified engineer;
      3. Make the necessary adjustments to the work;
      4. Attend to any corrosion treatment of the posts and obtain certification from a suitably qualified person that the work had been completed in accordance with the relevant standards and approved plans;
    6. The work performed by Ross Wood was limited to obtaining the necessary approvals and completing the work to the satisfaction of a qualified building certifier which had been done;
    7. There was no evidence that the building works were defective or had caused damage to, or were not performing at, the property;
    8. In respect of the building works, there was no evidence that there had been a failure to comply with the requirements of the Building Code of Australia (‘BCA’), the NCC or other relevant Australian Standards;
    9. There was no evidence that there had been a failure to meet the standards expected of a reasonable standard of construction or finish expected of a competent or licensed builder;
    10. The work undertaken pursuant to the direction to rectify was satisfactory because the footing system was performing to the standard required and was in compliance with the relevant codes and Australian Standards;
    11. The works were not defective and were performing within the requirements of all relevant standards;
    12. There is an onus upon an applicant to adduce evidence and arguments in support of his case. In the absence of such evidence the Tribunal was not free to make the decision sought by Mr Murphy;
    13. The second decision was not attended by jurisdictional error;
    14. The Tribunal did not have the power to:
      1. Review and quash the first decision; or
      2. Restore Mr Murphy’s legal rights under the statutory insurance scheme and the relevant contract of insurance;
    15. The second decision was not a reviewable decision;
    16. It would be unfair and unreasonable to give Mr Ross Wood a direction to rectify.
  2. [15]
    The Tribunal confirmed both the first and second decisions.

The grounds of appeal

  1. [16]
    Mr Murphy relies upon the following grounds of appeal:
    1. The Tribunal erred in finding that the rectification work undertaken by Mr Ross Wood was not work undertaken at the direction of the QBCC;
    2. The Tribunal erred in finding that the rectification work was subject to the building approval process in the Building Act 1975 (Qld);
    3. The Tribunal erred in finding that:
      1. There was no evidence that the rectification work did not comply with the BCA or Australian Standard (ARB(2)-28);
      2. the rectification work was not defective;
    4. The Tribunal erred in failing to find that the first decision and the second decision were attended by jurisdictional error.

Consideration

The first decision – is a temporal connection required?

  1. [17]
    The QBCC said below, and repeats the submission in this appeal, that the subsequent rectification of the work is relevant to considering whether the first decision was correct. In other words, says the QBCC, the decision not to give a direction to rectify to Ross Wood is the correct and preferable decision as the works have since been rectified. The QBCC says therefore that the second decision regarding the rectification of the works should be first considered. For the reasons that follow, this submission must be rejected.
  2. [18]
    In Interlink Developments Pty Ltd v Queensland Building and Construction Commission[3] Senior Member Traves considered whether the decision under review should be considered at the time of the decision or at the time of the review. In Interlink the builder had rectified building work after the direction had issued. Senior Member Traves stated:

[40] On the proper application of the authorities it is necessary, therefore, to consider the same question as the original decision maker.  Although the Tribunal will be entitled to consider evidence which has arisen after the decision under review, the admissible evidence will be confined to the question which the original decision maker was bound to decide, as if the original decision maker was making the decision at the time it is being reviewed by the Tribunal.  The Tribunal cannot take into account matters not before the original decision maker where to do so would change the nature of the decision or, to put it another way, the question to be answered.

[41] In this case, the nature and incidents of the decision under review, in my view, support the position that the review is limited to the question of whether, at the time of the decision the subject of review, here the internal review decision, a direction to rectify should have been issued. This follows from the intrinsic nature of a decision to issue a direction to rectify, which involves an assessment of whether work is defective at a particular point in time, particularly in the context of the objects of the QBCC Act and of the role the direction to rectify decision has in the broader statutory scheme applicable to the rectification of defective or incomplete work.

  1. [19]
    I agree with the reasoning of Senior Member Traves in Interlink Developments. To approach the first decision by reference to events that had not occurred when it was first decided by the QBCC would be to change the nature of the question to be determined.  Accordingly, whether the works were subsequently rectified is not relevant to the determination of whether the decision not to give a direction to rectify to Ross Wood was the correct and preferable decision.
  2. [20]
    Section 71I(1) of the QBCC Act sets out who is taken to carry out building work and includes:
    1. a building contractor whose licence number is stated on the contract for carrying out the building work (s 71I(1)(e)); and
    2. a building contractor by whom the building work was carried out (s 71I(1)(h)); and
    3. a person who, for profit or reward, carried out the building work s 71I(1)(i).
  3. [21]
    In the proceeding below the QBCC submitted that the Commission had formed the view that Jie Wood was responsible for the initial work complained of by Mr Murphy. The QBCC conceded that Ross Wood may also have been a person who could have been taken to have performed the work and that s 72A(1) of the QBCC Act permits a direction to rectify to be given to more than one person for the same work.
  4. [22]
    The task of the learned member was to make the correct and preferable decision as to whether the direction to rectify should or should not have been given to Ross Wood. This required the learned member to exercise a discretion which in turn required him to engage with those provisions of the Act to which I have referred. As I have observed, the QBCC conceded below that Ross Wood was a person to whom a direction to rectify could have been given. The decision by the QBCC not to give a direction to rectify to Ross Wood was made when it was ascertained that Ross Wood was not the person who Mr Murphy had contracted with to undertake the building work.
  5. [23]
    The guiding principles relevant to an appellate tribunal interfering with the exercise of a discretion at first instance are well established. Judicial Member Thomas AM QC said in AB v Queensland Building Services Authority:

[16] The principles upon which an appellate tribunal will review the exercise of such a discretion are of long standing. An appellate tribunal does not simply substitute the view that it would have taken if it had been in the place of the primary tribunal. It will not interfere unless it reaches a clear conclusion that there has been some error of fact or law, and that the discretion has not been properly exercised. It is usually necessary to show that the primary tribunal has acted on a wrong principle, or has been guided by extraneous or (ir)relevant (sic) matters; or mistaken the facts, or failed to take into account some material consideration, or that some error must be inferred because the result is plainly unjust or unreasonable. It has been further observed that an appeal court exercises even greater restraint in reviewing decisions involving the exercise of a discretion affecting procedural rights than it does when it reviews a discretionary decision affecting substantive legal rights.[4] (footnotes omitted)

  1. [24]
    Applying these principles, it is apparent that, in exercising his discretion, the learned member took into consideration matters which were irrelevant, namely the subsequent rectification work, in deciding whether a direction to rectify should or should not have been given to Ross Wood. By confining himself to a consideration of whether the work was defective, the learned member erred. The subsequent rectification work was not part of the relevant factual matrix to be considered when making that decision. As was observed in Interlink the learned member was not permitted to take into account matters not before the original decision maker in circumstances where this changed the nature of the decision. The learned member thereby erred in law.

The decision not to give a direction to rectify to Ross Wood

  1. [25]
    Mr Murphy says that having made the decision to give a direction to rectify to Ross Wood, the QBCC’s decision making power was spent.
  2. [26]
    Section 71J(1) of the Queensland Building and Construction Commission Act 1991 (Qld) provides that a consumer[5] may ask the commission to give a direction to rectify building work the consumer considers is defective or incomplete. By s 72(2)(a) of the QBCC Act the commission may direct a person who carries out defective or incomplete building work to rectify the building work. Conversely, the QBCC may decide not to give a direction to rectify.[6] Section 72A(3) provides that if a direction to rectify or remedy is given to a person who is not currently licensed to carry out the required work, the person must have the work carried out by a licensed contractor.
  3. [27]
    In light of Mr Murphy’s submissions, it is necessary to further consider whether, in circumstances where a direction to rectify is given, that decision may be revoked and decision made not to give a direction to rectify.
  4. [28]
    The power to give a direction to rectify conferred by s 72 of the QBCC Act is discretionary. Section 72(3) sets out what the commission may take into consideration in deciding whether to give a direction. The discretion is a broad one, permitting the commission to consider all the circumstances it considers are reasonably relevant. Specifically, the commission is not limited to a consideration of the terms of the contract for carrying out the building work. The commission may decide to give a direction to rectify or not give a direction to rectify. Each are reviewable decisions.
  5. [29]
    Section 24AA of the Acts Interpretation Act 1954 (Qld) (‘AI Act’) provides:

24AA Power to make instrument or decision includes power to amend or repeal

If an Act authorises or requires the making of an instrument or decision—

  1.  the power includes power to amend or repeal the instrument or decision; and
  1.  the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.
  1. [30]
    The provisions of the AI Act apply to all Queensland Acts[7] unless displaced, wholly or partly, by a contrary intention appearing in any Act.[8]
  2. [31]
    In Minister for Immigration and Ethnic Affairs v Kurtovic[9], Gummow J stated:

“ . . .there was “an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise”: . . . however, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed “from time to time as occasion requires”. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of a estoppel or, but because his power to do so is spent and the proposed second decision would be ultra vires.  The matter is one of interpretation of the statute conferring the particular power in issue.”

  1. [32]
    Gummow J also stated:

As I see it, if the decision maker were estopped from resiling from a single exercise of his discretion, then the nature of the discretionary power (being exercisable from time to time) would be stifled.

  1. [33]
    The power to give a direction to rectify, or to not give a direction to rectify, is quite different in nature to the power under consideration in Kurtovic. As Gummow J stated, whether a statutory decision making power is spent is a determination requiring interpretation of the statute. Mr Murphy points to no express provision in the QBCC Act preventing a decision to give a direction to rectify, or not to give a direction to rectify, from being withdrawn or, to use the language found in s 24AA of the AI Act, repealed. As previously noted, a decision to give a direction to rectify or not to give a direction to rectify are each reviewable decisions. By s 23(1) of the QCAT Act, at any stage of a proceeding for the review of a reviewable decision, the tribunal may invite the decision maker for the decision to reconsider the decision. The decision maker may confirm the decision, amend the decision or set aside the decision and substitute a new decision.[10] Section 23(2)(b)(iii) clearly contemplates that a decision maker may, in appropriate circumstances, set aside a decision. The term ‘set aside’ may be equated with the term ‘repeal’ in s 24AA of the AI Act. The potential for the application of s 23(1) in such a case as the present circumstances is readily apparent. Where a decision has been made to issue a direction to rectify and it is later ascertained that the person to whom the direction was given was not the person who carried out the work, it would, to adopt the words used by Gummow J in Kurtovic, stifle the nature of the discretionary power conferred upon the QBCC if the QBCC was prevented from giving the direction to the person who actually carried out the work. In such circumstances it would be entirely appropriate for the tribunal to invite the decision maker to reconsider the decision.
  2. [34]
    The corollary of this is that where a review proceeding has not been commenced, and the decision maker forms the view that a direction to rectify has been given to an incorrect person, it is open to the decision maker to set aside the decision, or repeal the decision using the language of s 24AA, and to give a direction to rectify to the person who carried out the building work.
  3. [35]
    In Kline Industries International Pty Ltd v Queensland Building and Construction Commission[11] Flanagan J appeared to accept that a decision by the QBCC to withdraw a direction to rectify (the action taken by the QBCC in the present case), was an exercise of the power conferred by s 24AA of the AI Act.
  4. [36]
    It is clear from the evidence below that no written contract was entered into for the subject work, however two quotes for the work were provided to Mr Murphy naming the building contractor as Woodsy’s Contracting Services. The quote contained both a QBCC licence number and an Australian Business Number. The QBCC licence was held by Ross Wood. The ABN was held by Jie Wood. Jie Wood did not hold a QBCC licence. The evidence was that, having been given the direction to rectify, Ross Wood informed the QBCC that he was not the contracting party. The evidence of Jie Wood was that he was the owner of Woodsy’s Contracting Services, that the agreement for the performance of the building work was between himself and Mr Murphy and that payment for the building work was made by Mr Murphy to a bank account in his name. Jie Wood’s evidence was that the actual building work was undertaken by both he and his father, Ross Wood. The evidence of Ross Wood was that he agreed to assist Jie Wood with the subject building work. Ross Wood gave evidence that he was aware ‘certain things’ could only be undertaken by a licensed contractor and that he had allowed Jie Wood to use his QBCC licence number. 
  5. [37]
    In circumstances where, on a proper construction, the QBCC Act did not prohibit the repeal of a decision to give a direction to rectify, and in light of the foregoing factual circumstances, the QBCC acted within power in deciding not to give a direction to Ross Wood.[12]
  6. [38]
    Before leaving the issue of the power of the QBCC to withdraw the direction to rectify given to Ross Wood, it is necessary to address Mr Murphy’s submissions regarding the application of s 69 and s 71I of the QBCC Act.
  7. [39]
    As set out earlier in these reasons, s 71I sets out who is taken to have carried out building work for the purposes of Part 6 of the Act. Section 69(2) (now s 68H(1)) provided:
  1.  A policy of insurance comes into force in the terms stated in the board’s policies for the purpose—
  1.  if a consumer enters into a contract for the performance of residential construction work, and—
  1.  the contract bears the licence number of a licensed contractor and, under the licensed contractor’s licence, the licensed contractor may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme; or
  1.  the contract is with a licensed contractor and, under the licensed contractor’s licence, the licensed contractor may enter into contracts with consumers to carry out residential construction work covered Mr Murphy says that s 69 and s 71I are deeming provisions and that the Tribunal’s construction of s 72A(3) and s 86(1)(f) was erroneous as it resulted in conflict between the various provisions. Mr Murphy submits that the effect of s 69 and s 71I is that Ross Wood, whose licence number appeared on the original building contract, is taken to be the person who carried out the building work and that a contract of insurance under the statutory insurance scheme came into effect when the contract was provided to Mr Murphy.  
  1. [40]
    Mr Murphy’s submissions as to the application of these provisions in the present circumstances are misconceived. Whether cover under the statutory scheme came into force or not was irrelevant in respect of the determination of either the first decision or the second decision. No part of the determination below required a consideration of the provisions of the QBCC Act dealing with the statutory insurance scheme.

Was the rectification work carried out by Ross Wood undertaken at the direction of the QBCC?

  1. [41]
    Section 86 of the QBCC Act sets out the decisions by the commission that are reviewable decisions. Section 86(1)(f) provides that the following is a reviewable decision:

A decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard.

  1. [42]
    Mr Murphy says that the learned member erred in finding that the rectification work carried out by Ross Wood was not work undertaken at the direction of the QBCC. Mr Murphy says that the work undertaken by Ross Wood was work undertaken at the direction of the commission. The QBCC says that it was not.
  2. [43]
    Both below and in this appeal the QBCC says that the work undertaken by Ross Wood was not undertaken at the direction of the commission for the purposes of s 86(1)(f) of the QBCC Act. At first instance the learned member accepted this submission. The QBCC says that the learned member’s determination was consistent with previous decisions of the Tribunal in Dew v Queensland Building Services Authority[13] and Queensland Building and Construction Commission v Russell[14].
  3. [44]
    In Dew the building contractor was directed to rectify certain items of building work. One of the items of work was rectified by the homeowner. The Tribunal found that the work undertaken by the homeowner was not work undertaken at the direction of the QBSA. In Russell a building contractor undertook rectification work in accordance with a compromise agreement entered into between the building contractor and the QBCC following a compulsory conference in the tribunal. At first instance the tribunal held that the rectification work was not undertaken at the direction of the commission. On appeal this finding was upheld. The Appeal Tribunal found that the direction to rectify had been stayed and the compromise agreement reached was that the work was undertaken by the building contractor independently of the direction to rectify.
  4. [45]
    In Russell the Appeal Tribunal was not required to consider whether work undertaken by a licensed contractor after a direction to rectify had been given to an unlicensed contractor was work undertaken at the direction of the commission. Nor did the tribunal in Dew directly address the issue raised in the present case. To that extent neither decision is of any great assistance in construing s 86(1)(f).
  5. [46]
    To ascertain the meaning of s 86(f) it is necessary to examine the text of the provision and the context in which the text appears within the QBCC Act including the objects of the Act.
  6. [47]
    The words of s 86(1)(f) are plain on their face. The meaning of the words ‘building work undertaken at the direction of the commission’ is a clear statement of legislative intent that the building work the subject of a decision pursuant to s 86(1)(f) must be work undertaken by a licensed building contractor who has received a direction to rectify. The provision should be given a confined rather than an expansive meaning that best accords with the other relevant provisions of the Act.
  7. [48]
    This conclusion is supported by an examination of the statutory process that unfolds when it is alleged that building work is defective.
  8. [49]
    Part 6 of the QBCC Act is concerned with the rectification of building work and the remediation of consequential damage. By s 71J(1) a consumer may ask the commission to give a direction to rectify building work the consumer considers is defective or incomplete. By s 72(2)(a) if the QBCC considers building work is defective or incomplete it may direct the person who carried out the building work to rectify the work within a stated period. By s 72(3) the QBCC may, in deciding whether to give a direction, take into consideration all the circumstances it considers are reasonably relevant. By s 72A(1) a direction to rectify may be given to more than 1 person for the same building work.
  9. [50]
    Of particular relevance for present purposes is s 72A(3) which provides:
  1.  If a direction to rectify or remedy is given to a person who is not currently licensed to carry out the required work, the person must have the work carried out by a licensed contractor.
  1. [51]
    Section 72A(3) operates to ensure that an unlicensed contractor does not undertake building work in breach of s 42(1) of the Act.
  2. [52]
    By s 72C(1) a person must not, without reasonable excuse, delay rectifying building work that is defective or incomplete as required by a direction given to the person pursuant to s 72(2).
  3. [53]
    Where a direction to rectify is given to a person who is the holder of a building licence, it is the person who must rectify the work. Where a direction to rectify is given to a person who is not the holder of a building licence, the person must arrange for a licensed contractor to undertake the work.
  4. [54]
    There are a number of possible outcomes consequent upon the QBCC giving a person a direction to rectify:
    1. The direction is fully complied with;
    2. The direction is partially complied with;
    3. The direction is not complied with at all.
  5. [55]
    Within the scope of (b) and (c) there are also a number of possible outcomes. For example, some, but not all, items of work may be rectified, or attempts to rectify work are unsatisfactory, or in undertaking the rectification work further defective work is apparent. What is clear is that where the circumstances in either (b) or (c) apply, there has been a failure to rectify defective or incomplete building work.
  6. [56]
    In each of the circumstances referred to in (a) and (b), the rectification work will have been undertaken by a licensed contractor, whether the contractor is the recipient of the direction or is a contractor engaged by an unlicensed person who has received a direction.
  7. [57]
    The failure by a person to comply with a direction to rectify is a serious matter. However, the consequences for non-compliance are very different for licensed persons and unlicensed persons.
  8. [58]
    By s 73 of the QBCC Act a maximum penalty of 250 penalty units may be imposed on a person who fails to rectify defective or incomplete building work. By s 74B(1)(j)(i) failure to comply with a direction to rectify is proper grounds for taking disciplinary action against a licensee. Failure to comply with a direction to rectify is a demerit offence and results in the imposition of demerit points on a licensee.[15] The commission may also impose conditions on a licence.[16]
  9. [59]
    As may be seen, where the contractor is unlicensed, the consequences for failing to comply with a direction to rectify are significantly less serious than for a licensed contractor and are confined to the imposition of a monetary penalty.
  10. [60]
    In circumstances where a direction to rectify is issued to an unlicensed person and a licensed contractor undertakes the required rectification work, if the work remains defective or, in undertaking the work, further defective work is apparent the licensed contractor is not liable for any of the consequences previously set out that would otherwise flow from failing to comply with a direction to rectify. This is because the work the licensed contractor undertakes is not pursuant to a direction to rectify. In other words, the work carried out by the licensed contractor is not undertaken at the direction of the commission but pursuant to an agreement between the unlicensed contractor and the licensed contractor. It follows that for the purposes of s 86(1)(f) work undertaken by a licensed contractor by arrangement with an unlicensed person who has received a direction to rectify is not building work undertaken at the direction of the commission.
  11. [61]
    The construction I prefer is consistent with the overall framework of the Act including the objects of the Act. The serious consequences flowing from failing to comply with a direction to rectify achieves the objects of the QBCC Act.[17] That those consequences only accrue to a licensed contractor who fails to comply with a direction to rectify given to the contractor is consistent with the object of the Act to regulate the building industry to ensure the maintenance of proper standards in the industry.  On the other hand, the consequences for an unlicensed person if a direction to rectify is not complied with are, as has been observed, limited to the imposition of a monetary penalty. The unlicensed person must arrange for a licensed contractor to undertake the rectification work. If, in carrying out the rectification work defective work is apparent, the process to which I have referred may result in the QBCC issuing a direction to rectify to the licensed contractor who will face those consequences flowing from a failure to comply with the direction.
  12. [62]
    In circumstances where work has been undertaken, not at the direction of the commission but, as here, pursuant to an agreement between an unlicensed person and a licensed contractor, s 86(1)(f) is not engaged.
  13. [63]
    The learned member found that the second decision was not a reviewable decision. Despite making this finding the learned member proceeded to confirm the second decision. In so doing the learned member erred. The jurisdiction of the Tribunal not having been enlivened in respect of the second decision, the appropriate order was to dismiss the proceeding.
  14. [64]
    I turn now to the specific grounds of appeal.

Ground 1 - the Tribunal erred in finding that the rectification work undertaken by Mr Ross Wood was not work undertaken at the direction of the QBCC

  1. [65]
    For the reasons set out, the work undertaken by Ross Wood was not work undertaken at the direction of the QBCC. This ground of appeal is without substance.

Grounds 2 and 3 - The Tribunal erred in finding that the rectification work was subject to the building approval process in the Building Act

The Tribunal erred in finding that there was no evidence that the rectification work did not comply with the BCA or Australian Standard (ARB(2)-28) and in finding that the rectification work was not defective;

  1. [66]
    Having concluded that the work undertaken by Ross Wood was not work undertaken at the direction of the commission, these grounds of appeal are without substance.

Ground 4 - The Tribunal erred in failing to find that the first decision and the second decision were attended by jurisdictional error.

  1. [67]
    It is difficult to identify with any precision just what Mr Murphy asserts to be the jurisdictional errors made by the learned member. As best as may be understood one of those errors was that there was no power in the commission to revoke the decision to give a direction to rectify to Ross Wood. For the reasons set out, the commission did indeed have such power. There was however error by the learned member in his approach to the review of the first decision.
  2. [68]
    In relation to the second decision, Mr Murphy says that he ‘repeats the submissions that were made in APL134-19.’ This is not a particularly satisfactory submission noting that proceeding APL134-19 had been dismissed by the Appeal Tribunal before Mr Murphy filed his submissions in this proceeding. In any event, and for the reasons set out, the second decision was not a reviewable decision.

Conclusion and orders

  1. [69]
    There was error by the Tribunal in relation to the first decision. This was an error of law. There was error by the Tribunal in the final orders made in relation to the second decision. This was also an error of law.
  2. [70]
    Where an appeal is allowed on a question of law, the appeal tribunal may only set aside the decision under appeal and substitute its own decision if the determination of the question of law resolves the appeal entirely in the appellant’s favour. Otherwise, the matter must be remitted for reconsideration.
  3. [71]
    In allowing the appeal in proceeding GAR250-16, the matter must be remitted for reconsideration according to law.
  4. [72]
    In respect of the appeal in proceeding GAR009-17, the identified error is limited to the order made by the learned member. It is apparent from the reasons that the learned member correctly concluded that the second decision was not a reviewable decision and that the application to review the decision should be dismissed.[18] Nevertheless, the determination of the question of law does not resolve the appeal entirely in Mr Murphy’s favour and therefore the matter must be remitted for reconsideration.
  5. [73]
    The appropriate orders are:
    1. The appeal against the decision dated 23 June 2020 in GAR250-16 and GAR009-17 is allowed.
    2. The decision dated 23 June 2023 in GAR250-16 and GAR009-17 is set aside and the matter is remitted to the Tribunal for reconsideration according to law and in accordance with these reasons.

Footnotes

[1] Murphy v Queensland Building and Construction Commission [2017] QCAT 164.

[2] Murphy v Queensland Building and Construction Commission [2017] QCAT 344.

[3]  [2020] QCAT 480.

[4]  [2013] QCATA 187.

[5]  QBCC Act – schedule 2 – ‘consumer’ is defined as a person for whom building work is carried out, but does not include a building contractor for whom building work is carried out by a subcontractor.

[6]  Ibid, s 72(5).

[7]  AI Act, s 2.

[8]  Ibid, s 4.

[9]  (1990) 21 FCR 193 at 211.

[10]  QCAT Act, s 23(2)(b).

[11]  [2020] QSC 243.

[12]  Applying the decision of the tribunal in Murphy v Queensland Building and Construction Commission [2017] QCAT 164.

[13]  [2010] QCAT 687.

[14]  [2015] QCATA 57.

[15]  QBCC regulation ss 23, 24.

[16]  QBCC Act, s 36.

[17]  Ibid, s 3(a)(i), s 3 (b).

[18]  Reasons for decision at [128].

Close

Editorial Notes

  • Published Case Name:

    Murphy v Queensland Building and Construction Commission

  • Shortened Case Name:

    Murphy v Queensland Building and Construction Commission

  • MNC:

    [2024] QCATA 27

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown

  • Date:

    05 Mar 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
AB v Queensland Building Services Authority [2013] QCATA 187
1 citation
Jump To
Cite 1 - [2013] QCATA 187
Dew v Queensland Building Services Authority [2010] QCAT 687
2 citations
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Cite 1 - [2010] QCAT 687
Cite 2 - [2010] QCAT 687
Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480
2 citations
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Cite 1 - [2020] QCAT 480
Cite 2 - [2020] QCAT 480
Kline Industries International Pty Ltd v Queensland Building and Construction Commission [2020] QSC 243
2 citations
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Cite 1 - [2020] QSC 243
Cite 2 - [2020] QSC 243
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
2 citations
Jump To
Cite 1 - (1990) 21 FCR 193
Cite 2 - (1990) 21 FCR 193
Murphy v Queensland Building and Construction Commission [2017] QCAT 164
3 citations
Jump To
Cite 1 - [2017] QCAT 164
Cite 2 - [2017] QCAT 164
Cite 3 - [2017] QCAT 164
Murphy v Queensland Building and Construction Commission [2017] QCAT 344
2 citations
Jump To
Cite 1 - [2017] QCAT 344
Cite 2 - [2017] QCAT 344
Queensland Building and Construction Commission v Russell [2015] QCATA 57
2 citations
Jump To
Cite 1 - [2015] QCATA 57
Cite 2 - [2015] QCATA 57

Cases Citing

Case NameFull CitationFrequency
Bridge v Queensland Building and Construction Commission [2025] QCAT 2192 citations
Clark v Queensland Building and Construction Commission [2024] QCAT 3292 citations
1

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