The Body Corporate for Jade Apartments CTS 40720 v Queensland Building and Construction Commission

[2016] QCAT 445

CITATION:

The Body Corporate for Jade Apartments CTS 40720 v Queensland Building and Construction Commission [2016] QCAT 445

PARTIES:

The Body Corporate for Jade Apartments CTS 40720
(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR200-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Olding

DELIVERED ON:

14 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application for Review is dismissed.
2. Each party is to bear its own costs.

CATCHWORDS:

ADMINISTRATIVE REVIEW – Queensland Building and Construction Commission Act 1991 (Qld) – where applicant lodged second complaint restating first complaint – whether refusal to investigate second complaint a reviewable decision – whether refusal to undertake internal review of refusal to investigate second complaint a reviewable decision

Queensland Building and Construction Commission Act 1991 (Qld), ss86, 87

REPRESENTATIVES:

APPLICANT:

represented by Ian Conrad of Conrad Law

RESPONDENT:

represented by Jessie Jagger of Queensland Building and Construction Commission

APPEARANCES:

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

REASONS FOR DECISION

1. This matter concerns whether the Tribunal has jurisdiction to decide the Applicant’s Application for Review.

Background

1. I understand that the following facts are not in contention:

   a)The Applicant is the Body Corporate for Jade Apartments CTS 40720.

   b)On 20 June 2014, the Applicant lodged a complaint (“the first complaint”) with the Respondent, Queensland Building and Construction Commission (“QBCC”), against Landsborough Street Constructions Pty Ltd.

   c)The first complaint related to alleged construction defects.

   d)Where it is of the opinion that building work is defective, QBCC has power to direct “the person who carried out the building work” to rectify the building work.

   e)QBCC considered that Hedley Constructions Pty Ltd was the responsible builder, rather than Landsborough Street Constructions Pty Ltd. As the former was in liquidation and its QBCC licence had been cancelled, QBCC decided not issue a Notice to Rectify.

   f)QBCC also assessed the first complaint as a claim under the QBCC Home Warranty Insurance Policy. However, it determined that the claim would not be eligible because cover is limited to “residential construction work” which, under the relevant regulation, does not include work on a building that is part of a multiple dwelling of more than three storeys.

   g)On 4 May 2016, the Applicant lodged another complaint (“the second complaint”) against Landsborough Street Constructions Pty Ltd, which was accompanied by a covering letter from the Applicant’s solicitors.

   h)The letter advised that: “In essence, this complaint restates the [first complaint]” which was lodged by the Applicant’s former solicitors. It went on to argue why it said QBCC’s conclusions in respect of the first complaint were incorrect. It asserted, with reasons and copies of documentation not lodged with the first complaint, why it said that Landsborough Street Constructions Pty Ltd, and not Hedley Constructions Pty Ltd, was the relevant builder and why it said the building work was not excluded from being “residential construction work”; in particular, advising that there are two separate buildings in the complex that are not of three storeys.

   i)A QBCC officer reviewed the second complaint and by letter dated 17 May 2016 advised the Applicant that a review had determined that the original decision on the first complaint would stand.

   j)By letter dated 14 June 2016, the Applicant’s solicitors lodged an “Application for Internal Review of the decision notified in” the letter of 17 May 2016.

   k)By letter dated 16 June 2016, a QBCC officer advised that QBCC had not made a reviewable decision in relation to the second complaint, but had upheld the decision on the first complaint. The letter went on to assert that the Applicant was unable to lodge an application for internal review in respect of the second complaint because there was no reviewable decision in respect of the second complaint.

   l)The Applicant applied to the Tribunal on 2 August 2016 for a review of two decisions it says that QBCC made; namely, refusal to investigate the second complaint and refusal to consider the internal review application. In doing so, it says that the second complaint was “a fresh complaint introducing new materials and ventilating new issues”.

Consideration

1. The Tribunal does not have jurisdiction to review administrative decisions generally.  Its review jurisdiction is the jurisdiction to review conferred by an enabling Act to review a decision made or taken to be made by another entity under that Act.[1]

   [1]QCAT Act, s 17.

2. Section 87 of the Queensland Building and Construction Commission Act 1991 confers jurisdiction on the Tribunal to review “reviewable decisions”. There is no decision in the list of reviewable decisions in section 86 which would extend to a decision to refuse to investigate a complaint or refuse to consider an internal review application.

3. A decision to give a direction to rectify or remedy or not to give the direction is a reviewable decision under s86(1)(e). The decision on the first complaint not to give a direction to rectify may be a decision of this character. A decision to refuse to investigate a second complaint about the same subject matter which, if investigated, may have lead to such a decision, is not.

4. A decision to disallow a claim under the statutory insurance scheme is also a reviewable decision under s86(1)(h). Again, the decision on the first complaint not to allow an insurance claim may have this character, but a decision to refuse to investigate a complaint, which upon investigation may have lead to such a decision, does not.

5. A decision on an internal review of a reviewable decision is also a reviewable decision: s86E. Again, a decision to refuse to undertake an internal review of a decision not to investigate the second complaint is not a decision on an internal review of a reviewable decision. There is no reviewable decision that could be the subject of an internal review.

6. If the internal reviewer for an internal review does not decide the application for an internal review within a specified period, the internal reviewer is taken to have made an internal review decision that is the same as the original reviewable decision.[2] But this does not assist the Applicant either, as there can only be an internal review of a reviewable decision. QBCC expressly declined to make a decision on the second complaint, other than the decision not to investigate further.

   [2]Queensland Building and Construction Commission Act 1991 (Qld), s 86C(3).

7. Accordingly, there is no reviewable decision for the Tribunal to review.

8. It is not surprising that this should be the outcome.  The decision on the first complaint gave rise to external review rights,[3] subject to an application for review being made within a time specified by Parliament.[4]  That time limit would be defeated if applicants who fail to exercise their review rights, and who do not apply for an extension of time in which to do so, could simply call upon the decision-maker to make a new decision on the same subject matter and thereby re-enliven their review rights.

   [3]Ibid, s 87.

   [4]QCAT Act, s33(3).

Finalisation of the matter

1. It follows that the Tribunal has no jurisdiction in relation to the Application for Review.

2. The Applicant and the Respondent submitted that, if the Tribunal were to come to this view, the appropriate orders would be that the Applicant be given leave to withdraw its Application for Review and that each party bear its own costs.

3. The Applicant is entitled to withdraw the Application for Review without leave[5] and, unless the Tribunal orders otherwise, each party bears their own costs for a proceeding.[6] 

   [5]Ibid, s 46.

   [6]Ibid, s 77.

4. As the Tribunal has no jurisdiction to consider the Application for Review, the appropriate course is to dismiss the Application and order that each party is to bear its own costs.