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[2018] QSC 58
General information, not legal advice.
Supreme Court of Queensland
2018-03-23
Martin J
Original judgment source is linked above.
2A. The Decision was not authorised under the enactment under which it was purported to be made.
(a) failed to take a relevant consideration into account in making the Decision, namely:
(i) sections 67WA to 68 of the Queensland Building and Construction Commission Act 1991 (Qld);
(ii) section 24 of the Queensland Building and Construction Commission Regulation 2003;
(iii) Schedule 2C of the Queensland Building and Construction Commission Regulation 2003, save for section 7 of that Schedule; and
(iv) the decision of June Blaney, Internal Review Officer of the first respondent, made on 13 September 2017.
(b) took an irrelevant consideration into account in making the decision, namely, whether it would be "too significant" or not "commercial" for the first respondent unless the first respondent made the Decision.
[9] The description of the decisions as "purported" is, it appears, based upon the contention that the decisions are nullities. I deal with that argument below.
[10] The relief sought by the applicant is as follows:
"1. An order setting aside the decision of the first respondent dated 23 October 2017.
2A. Further or alternatively, a prerogative order under section 43(1) of the Judicial Review Act in the nature of certiorari quashing the Decision.
2B. Further or alternatively, a declaration under section 43(2) of the Judicial Review Act that the Decision is of no effect.
2C. Further or alternatively, a prerogative order under section 43 of the Judicial Review Act in the nature of mandamus requiring the first respondent to decide the applicant's claim for assistance according to law.
2D. A prerogative order under section 43(1) of the Judicial Review Act in the nature of mandamus requiring the Queensland Civil and Administrative Tribunal to dismiss the application to review a decision in case number GAR346-l7 filed in the Brisbane Registry of the Queensland Civil and Administrative Tribunal on 20 November 2017.
2E. Further of [sic] alternatively, a prerogative order under section 43(1) of the Judicial Review Act in the nature of prohibition forbidding the Queensland Civil and Administrative Tribunal from making any decision in respect of the application to review a decision in case number GAR346-17 filed in the Brisbane Registry of the Queensland Civil and Administrative Tribunal on 20 November 2017.
[11] For an application for statutory order of review (the JR application) to be dismissed under s 13 the court must be satisfied:
- (a) That the JR application is under ss 20-22 or 43 and is in relation to a reviewable matter,
- (b) That there is a provision under another law which entitles the JR applicant to seek a review by another court, tribunal, authority or person, and
- (c) That, having regard to the interests of justice, it should dismiss the JR application.
Is the JR application under ss 20-22 or 43 and is it in relation to a reviewable matter?
[12] The grounds advanced by Ms Blundell incorporate grounds available under s 20:
- s 20(2)(a) Ground 2
- s 20(2)(d) Ground 2A
- s 20(2)(e) Ground 3
- s 20(2)(d) Ground 6
- s 20(2)(f) Grounds 1A and 4
- s 20(2)(h) Ground 1.
[13] Ms Blundell argues that s 13 does not apply because the decisions which she seeks to review are not "reviewable matters" as defined in s 3 of the JR Act. That immediately raises the question: if they are not reviewable matters, then how does her own application fall under the JR Act? All the grounds advanced in the JR application rely upon s 20 of the JR Act. A "reviewable matter" is, among other things, a decision. Section 20 contemplates the existence of a "decision" which is made by a person without the necessary authorisation or jurisdiction, or one which is made in breach of the rules of natural justice. The mere fact that a decision might be defective because of one of those matters does not make it any less a decision for the purposes of the JR Act.
[14] It was argued that QBCC did not afford Ms Blundell an opportunity to be heard or make submissions during the review under s 86C of the Queensland Building and Construction Commission Act 1991 (QBBC Act). That was the review which led to the second SOW decision. Whether that was done or whether it should have been done is a matter which is irrelevant if there is a review conducted by QCAT. Ms Blundell would have an opportunity to provide further evidence.
Is there a provision under another law which entitles the JR applicant to seek a review by another court, tribunal etc?
[15] Section 3 of the JR Act defines "review" as including:
(b) the grant of an injunction or of a prerogative or statutory writ or order; or
[16] Section 87 of the QBBC Act provides that: "A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision."
[17] A "reviewable decision" includes a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work - see s 86(1)(g) QBBC Act.
[18] Section 17 of the Queensland Civil and Administrative Act 2009 (QCAT Act) provides:
"(1) The tribunal's review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
(2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision."
[19] For the purposes of s 17 of the QCAT Act, the QBBC Act is an enabling Act. See s 6(2) of the QCAT Act.
[20] The review by QCAT is the usual type of review conducted by similar tribunals around Australia:
- (a) it is a merits review,
- (b) there is a fresh hearing on the merits,
- (c) the purpose of the review is to produce the correct and preferable decision,
- (d) the tribunal can receive fresh evidence,
- (e) it can:
- (i) confirm or amend the decision; or
- (ii) set aside the decision and substitute its own decision; or
- (iii) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
[21] Questions of law may be referred to the President who may also refer a question of law to the Court of Appeal.
[22] An appeal lies from QCAT's decision to the QCAT Appeals Tribunal or, depending upon the status of the member, to the Court of Appeal.
[23] The review process outlined above clearly falls within the notion of a "review" within the meaning of that term in s 13(b) of the JR Act.
[24] Ms Blundell argues that the interest of justice do not favour the dismissal of their application. She points to the additional relief sought in the JR application.
[25] First, she seeks an interlocutory order "suspending" the operation of the QBCC's decisions. Ms Blundell submits, correctly, that QCAT is prohibited from granting a stay of those decisions. (See s 87A QBCC Act.) But, a stay will not be ordered unless it is necessary. Ms Blundell seeks a stay because, as was submitted during the hearing, "she does not want the painter in her home, especially while it's under review"[1]. Following that submission, the QBCC gave an undertaking not to direct DPHD to engage in any work on Ms Blundell's house. There was no evidence that DPHD would trespass upon Ms Blundell's property in order to perform work which it says (in the QCAT matters) need not be done. There is no need for a stay of either decision in those circumstances.
[26] Ms Blundell also argues that, as she is seeking relief in the nature of a prerogative writ against both QBCC and QCAT, this matter should not be dismissed.
[27] The relief in the nature of prerogative orders sought by Ms Blundell is, essentially, otiose. The orders by way of prerogative relief which are sought in the amended JR Application seek orders against the QBCC or QCAT. The orders sought against QBCC are to quash the decisions made by it, or that it be declared that those decisions are of no effect, or that an order in the nature of mandamus issue requiring QBCC to decide the applicant's claim for assistance according to law. That is essentially the same relief as is sought under the ordinary provisions of the JR Act. No additional grounds are advanced to support the need for such orders.
[28] Orders in the nature of mandamus requiring QCAT to dismiss the application filed by DHPD or further, or in the alternative, prohibition forbidding QCAT from deciding that case are also sought. No basis was advanced for the making of these orders either together (in which case, they would be inconsistent) or in the alternative.
[29] It is also argued that there is a public interest aspect to this. That is, with respect, an overreaching submission. Ms Blundell argues that an important issue arises in this case with respect to the question of the extent of indemnity available under the statutory insurance scheme for the non-performance of insured work. That appears to be based on the misconception that the statutory scheme is there to provide for recompense equivalent to damages for breach of contract. It was argued that the statutory insurance scheme should be interpreted in such a way that a person in Ms Blundell's position would be entitled to receive money equivalent to that which would put her in the position that would have obtained had the contract been performed as she maintains it should have been. That is not the case. Ms Blundell's entitlement to claim assistance under the scheme is governed by Parts 2, 4 and 5 of Schedule 2C of the QBCC Regulation. Sub-clauses 7(1) and (5) of that schedule relevantly provide:
"The consumer is entitled to claim assistance for the reasonable cost of completing the residential construction work."
[30] Mr Lovel identified the error of law in this way:
"The error was [sic: of] law was that they did not include in their scope - the decision is a scope of works. They did not include in the scope of works any provision for priming, for applying the primer, in conformity with the contract. So that's the error of law." [2]
[31] These are the types of matters which are dealt with on a regular basis by QCAT. I note that the decision by the QBCC on this point was consistent with the expert evidence provided to the QBCC by Ms Blundell.
[32] It has long been accepted that "as a general rule judicial review should not be seen as a substitute for the appellate process in the civil court."[3] The same applies for review processes available through a tribunal such as QCAT.
[33] The "interests of justice" permits consideration of a wide range of factors which may include the public interest and will usually include the interests of the parties themselves.[4] Ms Blundell relied upon Nelson v Q-Comp. [5] In that case there was also a claim that there was a breach of the rules of natural justice. Mullins J, in addressing the issue, said:
"[45] ... There is a distinct public interest in ensuring that the decision making entrusted to the respondent fulfils its object. In the circumstances in which the respondent made the decision in this matter, weight should be given to the public interest in ascertaining whether the respondent did err in failing to provide procedural fairness to the applicant before making the decision. The appeal to the Industrial Magistrates Court would not be able to consider that matter."
[34] In this case, Ms Blundell was given an opportunity to put further evidence or submissions before the QBCC in its internal review process. She did not take advantage of that.
[35] On an application of this kind under the JR Act, the court is confined to issues of law. Even if Ms Blundell were to be successful on a JR application of this kind, it would be most unlikely that the court could decide the ultimate issue. The usual order would be to require the QBCC to reconsider the matter in the light of the court's reasons. In other words, a new decision on the merits would be made, with Ms Blundell able to provide new evidence and make further submissions. Which is what would happen in QCAT, but without the need for a hearing in this court.
[36] Another relevant matter is that the quantum of the amount that would be equivalent to the "reasonable cost of completing" the work is a matter better considered by a merits review tribunal. It is not in the interests of justice for the parties to this application to be engaged in the Supreme Court where the amount involved, on any view of the facts, is in the order of $20,000 and where there is a tribunal which has all the jurisdiction and power necessary to resolve the dispute.
[37] I am satisfied that it is in the interests of justice that this application should be dismissed.
[38] The JR application is dismissed.
[3] Stubberfield v Webster[1995] QSC 182; [1996] 2 Qd R 211 at 217;Turner v Valuer's Registration Committee of Queensland [2000] QSC 94; [2001] 2 Qd R 100.
[4] Fletcher & Ors v Fortress Credit Corporation (Australia II Pty Ltd) [2012] QSC 359 at [24]; BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [15].
Blundell
Queensland Building and Construction Commission [2018] QSC 58
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Fletcher & Ors v Fortress Credit Corporation (Australia II Pty Ltd) [2012] QSC 359
Nelson v Q-Comp [2004] QSC 167
Stubberfield v Webster [1995] QSC 182; [1996] 2 Qd R 211
Turner v Valuer's Registration Committee of Queensland [2000] QSC 94; [2001] 2 Qd R 100
(2004) 221 CLR 400