Allen & Anor v Queensland Building and Construction Commission

This case concerned an appeal from the Queensland Civil and Administrative Tribunal (Appeals). The applicants were the principals under a construction contract. They sought to terminate the contract for breach by the contractor. They made a claim under the Home Warranty Insurance Scheme established under the Queensland Building Construction Commission Act 1991. The claim was refused, and the applicants unsuccessfully sought a review of the decision in QCAT, and subsequently in QCATA. In dismissing the application, the Court considered the principles applicable to appeals from QCATA.

Mullins P and Bond JA and Williams J

5 February 2024

The applicants engaged a contractor to design and construct their home in Brisbane. [1]. When the work was around 70% complete, the applicant sought to terminate the contract, alleging various breaches by the contractor. [1], [38]. The contractor disputed the applicants’ right to terminate the contract, treated the applicants’ purported termination as repudiatory, and sought to accept that repudiation. [1]. The applicants brought an insurance claim under the Home Warranty Insurance Scheme under Part 5 of the Queensland Building and Construction Commission Act 1991. [3]. The Scheme would only permit recovery if the applicants had “properly terminated” the contract. [3]. The respondent rejected the claim on the basis that the applicants had not shown a proper basis for terminating the contract. [5]. That refusal was upheld in QCAT and on appeal to the QCAT Appeal Tribunal. [7].

Under s 150 of the Queensland Civil and Administrative Tribunal Act 2009, a person may appeal from the Appeal Tribunal to the Court of Appeal (by way of application under s 151). However, appeals may be made “only on a question of law” and only with leave. [10]. As to the former, in Pivovarova v Michelsen (2019) 2 QR 508 [2]–[10], the Court held that s 150 limits the jurisdiction of the Court to pure questions of law, such that the Court cannot review mixed questions of fact and law. [16]. Although the applicants contended that Pivovarova should be overruled, the Court declined the invitation to do so. [17]–[18].

As to the latter, the Court set out the factors applicable to a grant of leave to appeal. [23]. In particular, the discretion to grant leave is unfettered and exercisable according to the nature of the case, but will not be granted lightly given that an applicant will have already had the benefit of two hearings in QCAT. [23]. It will usually be necessary, but not sufficient, to persuade the Court that there is a reasonable argument that there is an error of law to correct. [23]. Beyond showing a reasonable argument, the Court will consider whether leave is necessary to correct a substantial injustice and whether the appeal raises a question of general or public importance. [23].

The applicants raised various grounds of appeal, each of which the Court dismissed on the basis that they did not raise only questions of law. Insofar as the applicants’ grounds of appeal did relate to pure questions of law, the Court held that they were without merit. [48]–[115]. One ground is, however, notable. The applicants contended that the Appeal Tribunal fell into error by denying them natural justice in failing to give genuine consideration to the material before it and failing to act fairly in accordance with the merits of the case. [116]. The Court held that this appeal ground did not raise only questions of law. [117]. The applicants were inviting the Court to analyse the facts of the proceeding and the entirety of the procedural record, then to apply a legal standard in order to reach a conclusion different to that reached by the Appeal Tribunal. [117]. This would involve at least a mixed question of fact and law. [117]. On that basis the appeal ground was refused. [118]. In obiter the Court noted that a party denied procedural fairness by the Appeal Tribunal might not be without a remedy. They could avail themselves of an administrative law remedy under the Judicial Review Act 1991 or seek the exercise of the Supreme Court’s supervisory jurisdiction as discussed in Kirk v Industrial Court of NSW (2010) 239 CLR 531. [120].

L Inglis