Clark v Queensland Building and Construction Commission & Anor [2024] QCAT 329

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 9, s 20, s 24, s 25, s 26, s 27, s 142, s 148, s 150, s 164, s 166

Agius v Queensland Building and Construction Commission & anor [2023] QCATA 145

Barry & Anor v Queensland Building and Construction Commission [2015] QSC 50

Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission and De Luca Corporation Pty Ltd [2023] QCAT 139

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250

Garlett v Western Australia (2022) 404 ALR 182, [2022] HCA 30

Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120

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

Jorg & Anor v Queensland Building and Construction Commission [2021] QCATA 134

McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 57

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

Powell & Anor v Queensland University of Technology & Anor [2017] QCA 200; [2018] 2 Qd R 234

Queensland Building and Construction Commission & Anor v Groupline Constructions Pty Ltd [2020] QCA 245

Rosecove Pty Ltd v Queensland Building and Construction Commission & Anor [2023] QCAT 101

TAJ (costs) [2023] QCAT 133

Tanna v Queensland Building and Construction Commission [2023] QCATA 81

Vunilagi v R (2023) 411 ALR 224, [2023] HCA 24

• [1] By an Application to review a decision filed on 18 November 2021 ('the Review Application'), the Applicant ('Mr Clark') applies to review a decision of the First Respondent ('the QBCC') made on (or shortly prior to) 25 October 2021 ('the Review Decision'), not to give a direction to rectify or remedy to the Second Respondent ('the Builder').
• [2] The Review Decision was made in consequence of an application by Mr Clark[1] for internal review of an earlier decision of the QBCC not to issue a direction to rectify to the Builder.[2] The original decision was made following a complaint lodged by Mr Clark with the QBCC in relation to eight items of alleged defective building work arising out of the construction by the Builder of a new residential dwelling for Mr Clark located at Roma in the State of Queensland. The building work was completed in April 2015 (the specific date in April 2015 being in issue).
• [3] Of the eight items of alleged defective building work, Mr Clark did not ultimately press three items (items 1, 3 and 7). The remaining items (items 2, 4, 5, 6 and 8) are in issue.
• [4] There is no dispute that, and I find that, the Review Decision is a 'reviewable decision' pursuant to s 86(1)(e) of the Queensland Building and Construction Commission Act 1991 (Qld) ('the QBCC Act').
• [5] However, the Respondents have raised a threshold jurisdictional issue that arises out of the operation of s 72A(4) of the QBCC Act.

Does the Tribunal have jurisdiction to review the Review Decision?

• [6] At the time of the Review Decision, s 72A(4) of the QBCC Act provided:[3]

A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.

• [7] The QBCC has not made an application under s 72A(4) for an extension of time for the giving of a direction to rectify. During final addresses, Ms Hedger for the QBCC confirmed that the QBCC would not be making such an application.
• [8] Mr Clark contends that the Tribunal has jurisdiction to decide the Review Application on the basis that, first, the date on which the building work was completed was 23 April 2015 and, second, the making of the Review Decision is the operative event for the purposes of s 72A(4), with the result that the Review Decision was made on the last day of the 6 years and 6 months period.
• [9] The Respondents contend that the Tribunal does not have jurisdiction to decide the Review Application on the basis that, first, the date on which the building work was completed was 1 April 2015 and, second (and in any event), the operative event for the purposes of s 72A(4) is the date of filing of the Review Application which occurred more than 6 years and 6 months after both 1 April 2015 and 23 April 2015. With respect to the filing of the Review Application being the operative event, the Respondents rely upon the Appeal Tribunal decision of Jorg & Anor v Queensland Building and Construction Commission ('Jorg').[4]
• [10] I will first address the factual question as to the date on which the building work was completed. I consider this to be a jurisdictional fact.[5]

• [11] The Respondents submit that the building work to which the direction relates was completed on 1 April 2015 having regard to the issue of a Form 1 certificate in relation to Mr Clark's house. There is no factual dispute that the certificate was issued on that date.
• [12] Mr Clark submits that the building work was not completed until 23 April 2015, being the date on which it is contended that practical completion was achieved.
• [13] At the date of the Review Decision, the term 'building work' was defined in Schedule 2 to the QBCC Act to mean:

(b) the renovation, alteration, extension, improvement or repair of a building; or

(c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or

(e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or

(f) the preparation of plans or specifications for the performance of building work; or

(fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or

(h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or

(i) carrying out a completed building inspection; or

(j) the inspection or investigation of a building, and the provision of advice or a report, for the following -

but does not include work of a kind excluded by regulation from the ambit of this definition.

• [14] Mr Clark relies on evidence of an email and a Progress Claim (including a 'PRACTICAL COMPLETION NOTICE') ('the Notice') sent to Mr Clark on 23 April 2015.[6]
• [15] The email was sent by Ms Hook on behalf of the Builder and the email stated, amongst other matters:

We have now completed your new dwelling at [Roma] - Turf is going down today - please see photo's [sic] attached.

• [16] The Progress Claim was dated 23 April 2015 and included a reference to 'Stage completed' with the word 'Practical' handwritten next to it.
• [17] The Notice stated, amongst other matters: 'The building contractor claims that the works reached practical completion on 23/4/15'.
• [18] The photographs depict various external areas of the property showing graded soil but no turf.
• [19] Mr Clark also points to the fact that no witnesses was called by the Builder to give evidence about the factual question of when the building work at site was completed, and Mr Clark seeks to draw a Jones v Dunkel inference on this basis.
• [20] In Barry & Anor v Queensland Building and Construction Commission ('Barry'),[7] Flanagan J (as his Honour then was) said the following in relation to the predecessor section to s 72A(4)[8]:

(a) the word 'relates' is a word 'of broad import' and the use of the word 'does nothing more than simply identify the whole of the building work that is to be completed';[9]

(b) 'the ordinary meaning of the word 'completed' involves an element of finality and an identifiable end point from which the time limit begins';[10]

(c) in applying the statutory definition of 'building work', the starting point should be the relevant building contract.[11]

• [21] In my view, whilst it would be uncommon for a Form 21 to precede a notice of practical completion, the ultimate question for the purpose of s 72A(4) is a factual one namely, when was the building work (as defined) under the contract completed.
• [22] Under the contract between the parties:

(a) the 'works' were described as:[12]

(b) 'Practical completion' was defined to mean the stage when the works:[13]

(a) have been completed in accordance with this contract and all relevant statutory requirements apart from minor defects or minor omissions; and

(b) are reasonably suitable for habitation.

• [23] For the following reasons, I find that the building work under the contract between the parties was completed on 23 April 2015:

(a) the definition of 'building work' in the QBCC Act includes 'the erection or construction of a building' and 'any site work (including the construction of retaining structures) related to work of a kind referred to above';[14]

(b) the 'works' under the contract constitute the relevant 'building work' for the purposes of s 72A(4) of the QBCC Act;

(c) as noted above, the definition of 'practical completion' refers to the stage when the 'works' (as defined in the contract) have been completed in accordance with the contract and all relevant statutory requirements (apart from minor defects for minor omissions);

(d) both the statement in the email that 'We have now completed your new dwelling ...' (underlining added) and the statement in the Notice that the works reached practical completion on 23 April 2015 comprise prima facie evidence that the 'works' reached practical completion on that date;

(e) in my view, the issue of the Form 21 does not, without more:

(i) establish that all of the building work under the contract was completed as at the date of issue;

(ii) counter the prima facie evidence that the 'works' reached practical completion on 23 April 2015;

(f) there is no evidence which contradicts the prima facie evidence that the 'works' reached practical completion on that date.[15]

• [24] The next issue concerns the calculation of 6 years and 6 months from 23 April 2015.

Calculation of 6 years and 6 months from the date on which the work was completed

• [25] Section 38 of the Acts Interpretation Act 1954 (Qld) ('the AIA') provides:

(1) If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and -

(a) if the period is expressed to be a specified number of clear days or at least a specified number of days - by excluding the day on which the purpose is to be fulfilled; and

(b) in any other case - by including the day on which the purpose is to be fulfilled.

(2) If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.

(3) If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.

(4) If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.

(a) for filing or registering a document - means a day on which the office is closed where the filing or registration must or may be done; or

(b) otherwise - means a day that is not a business day in the place in which the thing must or may be done.

• [26] A 'business day' is defined in Schedule 1 to the AIA to mean a day that is not - (a) a Saturday or Sunday; or (b) a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done.
• [27] Excluding 23 April 2015 and including the final day of the 6 years and 6 months period for the giving of the direction, I calculate that period to end on 23 October 2015. However, that day was a Saturday and, by virtue of the operation of s 38(2) and the definition of 'excluded day' in s 38(5), I consider that the final day for the giving of the direction pursuant to s 72A(4) was 25 October 2015.[16]
• [28] For the reasons set out above, I find that the Review Decision was made within the period of 6 years and 6 months after the date on which the building work the subject of the Review Decision was completed.
• [29] The next issue is whether this is sufficient to enliven the Tribunal's jurisdiction to review the Review Decision, or whether Mr Clark had to file the Review Application within that period in order to enliven the Tribunal's jurisdiction.

The operative event to enliven the Tribunal's jurisdiction

• [30] This issue squarely raises for consideration the decision in Jorg. In that case:

(a) the contracted building work was completed on 12 July 2012;[17]

(b) the relevant limitation period for the purposes of s 72A(4) expired on 14 January 2019 (factoring in an 'excluded day');[18]

(c) the two reviewable decisions in issue were made within the 6 years and 6 months period prescribed by s 72A(4) of the QBCC Act;[19]

(d) the two applications to review were filed outside the 6 years and 6 months period;[20]

(e) no application for an extension of time under s 72A(4) was made by the QBCC.[21]

• [31] The Appeal Tribunal refused the applicants leave to appeal the decision below by which the applications to review were dismissed. In refusing leave, the Appeal Tribunal said:

[40] The Jorgs say that the tribunal failed to take into consideration a number of relevant matters. The sole ground of the application to dismiss relied upon by the QBCC was that the applications to review the reviewable decisions had been filed more than 6 years and 6 months after the building works had been completed and that, absent an application by the commission, the applications must fail. The grounds of appeal relied upon by the Jorgs relating to the failure by the tribunal to take into account relevant considerations might arguably be relevant to the exercise of a discretion by the tribunal if there was, in fact, a discretion to be exercised. But there was not. As we have explained earlier in these reasons, the relevant period for the purposes of s 72A(4) of the QBCC had passed at the time the Jorgs filed in the tribunal the applications to review. There can be no extension of time under s 72A(4) unless the commission applies for such an extension and even then the tribunal must be satisfied that there is, in the circumstances of the case, sufficient reason for extending time. No such application was made by the commission in the present case. Once the learned member, correctly in our view, found that the applications had been filed outside the time limit imposed by s 72A(4), and in the absence of an application by the commission to extend the time limit, the Jorgs' applications had no prospects of success. The matters referred to by the Jorgs in their grounds of appeal were not relevant to the determination of the application to dismiss.

[41] The final ground of appeal relates to what the Jorgs say was the failure by the learned member to exercise the discretion conferred by s 24(2)(b) of the QCAT Act.

[42] In a proceeding for a review of a reviewable decision the tribunal may, inter alia, confirm or amend the decision or set aside the decision and substitute its own decision. Subject to any contrary order of the tribunal, the decision takes effect from when the reviewable decision takes or took effect.

[43] Section 24(1) of the QCAT Act begins with the words 'In a proceeding for a review of a reviewable decision...'. The section assumes that the tribunal has jurisdiction in a particular review proceeding. The jurisdiction of a court, or in this case a tribunal, is not to be confused with its powers. Where, as here, an application to review a decision not to issue a direction to rectify is not filed within 6 years and 6 months of the completion of the building work and where, as here, there is no application by the commission to extend the time limit, the tribunal has no jurisdiction to review the decision. Section 24(2)(b) cannot be relied upon to create a jurisdiction that does not exist.

• [32] I accept the Builder's submission that the present case is 'on all fours with' the position in Jorg.[22] In my view, the ratio decidendi of the decision in Jorg is that the Tribunal does not have jurisdiction to review a reviewable decision under the QBCC Act unless the application to review the decision is filed within 6 years and 6 months of the completion of the building work, in the absence of an application by the QBCC to extend the time limit.
• [33] The principle set out in _Jor_g at [43] was followed by the Appeal Tribunal in Tanna v Queensland Building and Construction Commission,[23] and by the Tribunal in Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission and De Luca Corporation Pty Ltd.[24]
• [34] However, Mr Clark submits[25] that the Tribunal is not bound by the decision in Tanna because Members of the Tribunal sitting at first instance are not bound by Appeal Tribunal decisions, at least those made below the level of Judicial Member, President or Deputy President (relying upon the Tribunal decision in TAJ (costs) ('TAJ')[26]). This submission would also encompass the Appeal Tribunal decision in Jorg. Mr Clark relies on a number of decisions of the Tribunal at first instance.[27]

• [35] In TAJ, Member Gordon said:[28]

[38] When the tribunal is acting in an administrative capacity it is probably unnecessary and inappropriate for the doctrine of precedent to apply. For example, in DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33, [76], when reviewing a child related employment decision, where the tribunal was to reach the correct and preferable decision applying the principle that the welfare and best interests of a child are paramount, Member Pennell found it to be inappropriate to be asked to follow an Appeal Tribunal decision about which charges or convictions could be considered as part of the criminal history of an applicant for a blue card.

[39] In many other types of cases heard by the tribunal, it will be acting in a judicial capacity and further, the tribunal is a court of a State within the purview of Chapter III of the Commonwealth Constitution. In such matters it may well be more appropriate for the doctrine of precedent to apply at least where the Appeal Tribunal decision is made by a judicial member, or by the deputy president or the president. However, having regard to the tribunal's internal appeal arrangements it is not obvious that the doctrine of precedent should apply where the Appeal Tribunal decision is made at a lower level.

[40] I believe that any consideration as to whether the doctrine of precedent applies to bind a member sitting at first instance in QCAT to follow an Appeal Tribunal decision would be informed by things which are not immediately obvious, but which may apply in other 'super tribunals' which have an internal appeal arrangement like QCATs.

[41] Close contact between tribunal's decision makers is encouraged by the QCAT Act which requires the tribunal to 'encourage members and adjudicators to act in a way that promotes the collegiate nature of the tribunal', and in practice the internal appeal arrangement provides a fluidity between sitting at first instance and on appeal. This helps to achieve efficiency and consistency, but it is arguable that it may weaken the authority of the Appeal Tribunal to bind members sitting at first instance.

[42] My overall conclusion is that, despite one of the objects of the tribunal being to promote and enhance the quality and consistency of tribunal decisions, until the Appeal Tribunal itself, or a higher court, expresses a view, members of the tribunal sitting at first instance are not bound by Appeal Tribunal decisions at least those made below the level of judicial member, deputy president or president.

• [36] For the reasons that follow, and subject to the qualifications discussed, I am of the view that a Tribunal Member sitting at first instance is bound by the ratio decidendi of an Appeal Tribunal decision applicable to the case under consideration.
• [37] By s 9(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('the QCAT Act'), the jurisdiction conferred on the Tribunal is (a) original jurisdiction;[29] (b) review jurisdiction;[30] and (c) appeal jurisdiction.[31] Thus, the appeal jurisdiction is discrete from the original and review jurisdictions of the Tribunal.
• [38] The Tribunal's appeal jurisdiction is:[32]

(a) the jurisdiction conferred on the Tribunal by s 26 of the QCAT Act; and

(b) the jurisdiction conferred on the Tribunal by an enabling Act to hear and decide an appeal against a decision of another entity under that Act.

• [39] By s 26 of the QCAT Act, the Tribunal has jurisdiction to hear and decide an appeal against a decision of the Tribunal in the circumstances mentioned in s 142 of the QCAT Act.[33] The Tribunal may exercise its appeal jurisdiction if a person has, under the QCAT Act or an enabling Act, appealed to the Tribunal against a decision for which it has appeal jurisdiction.[34] Thus, the Appeal Tribunal hears and determines applications for leave to appeal or appeals from, relevantly, decisions of the Tribunal sitting in both its original jurisdiction and its review jurisdiction (subject to any relevant provisions in an enabling Act).
• [40] The Tribunal is a court of record.[35] In Powell & Anor v Queensland University of Technology & Anor,[36] Sofronoff P said:[37]

[89] Section 164 of the QCAT Act establishes the Tribunal as a court of record. This is not a mere technicality. It connotes two things. First a court of record possesses an inherent power to punish for contempt. Indeed, s 219 of the Act confers upon the Tribunal "all the protection, powers, jurisdiction and authority [of] the Supreme Court ... in relation to contempt".

[90] For present purposes, it is the second characteristic of courts of record that is significant. It is that the record of a court is conclusive evidence of what is recorded therein.

A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony: which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself ...

• [41] By s 148 of the QCAT Act, the Appeal Tribunal must give its final decision in an appeal, and the reasons for the decision, in writing, to (at least) each party to the appeal. There is, on the Supreme Court Library Queensland website, a publicly available body of precedent comprising the Appeal Tribunal's reasons for decision.
• [42] Section 150 of the QCAT Act makes provision for appeals from the Appeal Tribunal to the Queensland Court of Appeal. That section provides:

(1) A person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.

(2) A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal -

(3) However, an appeal under subsection (1) or (2) may be made -

(b) only if the party has obtained the court's leave to appeal.

• [43] In my view, by reason of the operation of s 150:

(a) a hierarchy is established for appeals from the Appeal Tribunal to be heard and determined by the Court of Appeal; and

(b) the Appeal Tribunal will be, in the large majority of cases, the final appeal body from decisions of the Tribunal at first instance, given the constraints imposed by s 150(3).

• [44] With respect to the constitution of the Appeal Tribunal, s 166 of the QCAT Act provides:

(1) The tribunal is to be constituted for an appeal or an application for leave to appeal, under chapter 2, part 8, division 1, by 1, 2 or 3 judicial members.

(2) If the president considers it appropriate for a particular appeal or application for leave to appeal, the president may choose 1, 2 or 3 suitably qualified members to constitute the tribunal for the appeal or application, whether or not in combination with a judicial member.

(3) Subsection (2) does not apply in relation to an appeal or an application for leave to appeal if the appeal or application relates to a decision of the tribunal as constituted by a magistrate.

• [45] By operation of s 166, the Appeal Tribunal will be constituted by one or more Judicial Members or one or more 'suitably qualified members' (or a combination of same), other than an appeal or an application for leave to appeal from a decision of the Tribunal as constituted by a Magistrate. In my view, the terms of s 166 do not support a conclusion that a decision of a 'suitably qualified' Member (or of suitably qualified Members) comprising the Appeal Tribunal does not constitute a binding precedent, in contrast to a decision of a Judicial Member (which necessarily includes the President and Deputy President).
• [46] Finally, the objects of the QCAT Act include, relevantly in the present context, the promotion of the quality and consistency of Tribunal decisions;[38] and the enhancement of the quality and consistency of decisions made by decision-makers.[39] In my view, the notion that a Tribunal Member sitting at first instance is free to disregard the ratio decidendi of an Appeal Tribunal decision that has application to a case under consideration is contrary to each of the above objects. I consider that this is reinforced by s 4(d) of the QCAT Act which provides that, to achieve the objects of the Act, the Tribunal must, relevantly, 'ensure like cases are treated alike'.
• [47] Having regard to the above matters, I am of the view that, upon the proper construction of the QCAT Act as a whole, the doctrine of precedent does apply to bind a Member of the Tribunal sitting at first instance to follow an Appeal Tribunal decision,[40] subject to the following:

(a) the doctrine applies in respect of the ratio decidendi of the Appeal Tribunal decision (the ratio decidendi being 'the binding principle of law at an appropriate level of generality that can be identified from the reasons of a majority that is sufficient for the decision')[41];

(b) the principle of law must be applicable to the facts of the case at hand; and

(c) the Member at first instance is not bound to follow the decision if there is a contrary decision of the High Court or the Queensland Court of Appeal, or if the Appeal Tribunal has elsewhere expressed a contrary principle (and the reasoning in the other Appeal Tribunal decision is preferred by the Member at first instance).

• [48] I consider that the ratio decidendi of the decision in Jorg is as set out at paragraph [32] above, and that the principle applies to the facts of the present case. I am unaware of any contrary principle stated by the High Court or the Queensland Court of Appeal or a different Appeal Tribunal. Consequently, I consider that I am bound by the principle in Jorg, and I find that the Tribunal does not have jurisdiction to review the Review Decision because the Review Application was not filed within 6 years and 6 months of the completion of the building work, in circumstances where the QBCC has determined that it will not apply to extend the time limit under s 72A(4) of the QBCC Act. It follows that the Review Application must be dismissed.
• [49] For completeness, even if I have been satisfied that the Tribunal had jurisdiction to review the Review Decision, I would have concluded that, having regard to the operation of s 72A(4) of the QBCC Act, the only proper decision open to the Tribunal would be to confirm the Review Decision.[42]

A direction to rectify cannot now be validly given

• [50] The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[43]
• [51] The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[44]
• [52] Section 24 of the QCAT Act provides, relevantly:

(1) In a proceeding for a review of a reviewable decision, the tribunal may -

(a) confirm or amend the decision; or

(b) set aside the decision and substitute its own decision; or

(c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.

(2) The tribunal's decision under subsection (1)(a) or (b) for a reviewable decision -

(a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal's review jurisdiction or an appeal under part 8; and

(b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.

• [53] In the context of a merits review by the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 (Cth), the High Court made the following observations in Frugtniet v Australian Securities and Investments Commission:[45]

Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.

• [54] I consider that these observations provide guidance to the proper approach to be adopted in the present case. To paraphrase, the Tribunal must approach the case as if the QBCC were deciding the matter at the time it came before the Tribunal, and the Tribunal may take into account evidence which is relevant to the question which the QBCC was bound to decide, but the Tribunal cannot take into account matters not before the QBCC if to do so would change the nature of the decision (or, in other words, the question before the QBCC).
• [55] As at the date of the Review Decision,[46] s 72 of the QBCC Act provided, relevantly:

(1) This section applies if the commission is of the opinion that -

(a) building work is defective or incomplete; or

(b) consequential damage has been caused by, or as a consequence of, carrying out building work.

(2) The commission may direct the person who carried out the building work to do the following within the period stated in the direction -

(a) for building work that is defective or incomplete - rectify the building work;

(2A) The commission must make the direction no later than the end of the period prescribed by regulation.

(3) In deciding whether to give the direction, the commission may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work (including the terms of any warranties included in the contract).

(4) The period stated in the direction must be the period prescribed by regulation unless the commission is satisfied that, if the direction is not required to be complied with within a shorter period -

(a) a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective or incomplete building work or consequential damage; or

(b) the defective or incomplete building work, or consequential damage, will cause a significant hazard to public safety or the environment generally.

(5) The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.

The commission might decide not to give a direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner's home or because an owner's failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home.

• [56] In Interlink Developments Pty Ltd v Queensland Building and Construction Commission,[47] Member Traves (as Senior Member Traves then was) held that, in the context of a decision by the QBCC to issue a direction to rectify, the relevant evidence to be considered did not include evidence of work done after the direction to rectify, because that would change the nature of decision.[48] That is not the case here.
• [57] In my view, in approaching the case as if the QBCC were deciding the matter at the time it came before the Tribunal, the expiry of the limitation period in s 72A(4) of the QBCC Act[49] (in circumstances where the QBCC has determined that it will not seek an extension of time), is a matter relevant to the question which the QBCC, as original decision-maker, is bound to decide under s 72 of the QBCC Act. It is relevant to the general discretion under s 72(2) and the question of fairness to the Builder under s 72(5).
• [58] Further, I am of the view that taking into account that matter would not change the nature of the decision as to whether to give a direction to rectify or not to give a direction to rectify.
• [59] 'The decision to direct rectification is necessarily anterior to the giving of a direction for rectification'[50] and '... the reviewable decision is the decision to give the direction, as opposed to the direction itself'.[51] In my view, s 72A(4) of the QBCC Act operates independently of s 72 of the QBCC Act and precludes the giving of a direction to rectify out of time (in the absence of an extension of time upon application by the QBCC).
• [60] The giving of a direction out of time would 'constitute a breach of a mandatory condition regulating the exercise of the [QBCC's] statutory power to give a direction' and would be 'void and of no effect'.[52] The Queensland Court of Appeal has confirmed that a direction cannot be given more than 6 years and 6 months after the work to which it relates has ended, without the QBCC obtaining an extension.[53]
• [61] Subsection 24(2)(b) of the QCAT Act provides that the Tribunal's decision under s 24(1)(a) or s 24(1)(b) has effect from when the reviewable decision takes or took effect, subject to any contrary order of the Tribunal. Subsection 24(2)(b) does not, in terms, purport to affect the operation of s 72A(4) of the QBCC Act and, in my view, s 24(2)(b) has no retroactive effect on the expiry of the limitation period under s 72A(4) for the giving of a direction to rectify.
• [62] In my view, even if the merits of the case otherwise warranted the setting aside of the Review Decision, there would be no proper basis for substituting a decision to give a direction to rectify because the direction cannot now be validly given by the QBCC.[54] In such circumstances, I consider that it would be an unreasonable exercise of the discretion under s 72(2) of the QBCC Act (and also unfair to the Builder having regard to s 72(5) of that Act) to substitute a decision that a direction to rectify be given to the Builder. Had it been necessary to decide, I would have concluded that, having regard to the operation of s 72A(4) of the QBCC Act, the correct and preferable decision would be to confirm the Review Decision.

• [63] For the reasons set out at paragraphs [1] to [48] above, the Application to review a decision filed on 18 November 2021 is dismissed. The formal orders, including orders for the making of submissions as to costs, are as follows:
  1. The Application to review a decision filed on 18 November 2021 is dismissed.
     1. Any party seeking an order for costs must file with the Tribunal two (2) copies of, and give to the other parties one copy of, written submissions, no longer than eight (8) pages, within 14 days of the date of the Decision.
     2. If written submissions as to costs are filed pursuant to order number 2, the party or parties against whom an order for costs is sought must file with the Tribunal two (2) copies of, and give to the other party or parties one copy of, written submissions in response, no longer than eight (8) pages for each response, within 14 days of receipt of the written submissions.
     3. Each party that receives written submissions pursuant to order number 3 may file with the Tribunal two (2) copies of, and give to the other party or parties one copy of, written submissions in reply, no longer than four (4) pages for each reply, within 14 days of receipt of the written submissions.
     4. If no written submissions are filed pursuant to order number 2, there shall be no order as to costs of the proceeding.
     5. If written submissions as to costs are filed, the application for costs will be determined on the papers without an oral hearing.

[4] [2021] QCATA 134 (Senior Member Brown, Member Howe).

[5] Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120, [43].

[7] [2015] QSC 50.

[8] Namely 72(8), which was in materially the same terms as s 72A(4) save that the limitation period was then 6 years and 3 months.

[14] I reject Mr Clark's submission (Mr Clark's written submissions, [29]) that the issue of the Notice and a progress payment claim fell within the definition of 'contract administration' for the purposes of the definition of 'building work' because, as Mr Marckwald accepted in closing submissions, the Builder did not design the house. In those circumstances, subsection (fa) of the definition is not applicable.

[15] I do not consider it necessary to have regard to a Jones v Dunkel inference.

[22] The Builder's submissions, [28].

[23] [2023] QCATA 81, [99]-[102] (Member King-Scott).

[24] [2023] QCAT 139, [58] (Member King-Scott).

[25] Mr Clark's written submissions, [51](d).

[26] [2023] QCAT 133, [42].

[27] Mr Clark's written submissions, [49], [51](b).

[29] Which is governed by Division 2 of Part 1 of Chapter 2 of the QCAT Act.

[30] Which is governed by Division 3 of Part 1 of Chapter 2 of the QCAT Act.

[31] Which is governed by Division 4 of Part 1 of Chapter 2 of the QCAT Act.

[33] Section 142 appears in Division 1 of Part 8 of Chapter 2 of the QCAT Act which governs appeals to the Appeal Tribunal.

[36] [2017] QCA 200; [2018] 2 Qd R 234.

[40] Regardless of whether the Appeal Tribunal is composed of a Judicial Member or otherwise a 'suitable qualified member'.

[41] Garlett v Western Australia (2022) 404 ALR 182, [2022] HCA 30, [239] (Edelman J). See also Vunilagi v R (2023) 411 ALR 224, [2023] HCA 24, [155] (Edelman J).

[42] The observations below include addressing the decision in Interlink (see below) which was raised by Mr Marckwald in oral submissions in relation to s 72A(4).

[45] [2019] HCA 16; (2019) 266 CLR 250, [15]. See also Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480, [36]-[39].

[46] See Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250, [14].

[47] [2020] QCAT 480.

[48] See [45]-[47]. A similar conclusion was reached by the Appeal Tribunal in the context of a decision by the QBCC not to give a direction to rectify: Murphy v Queensland Building and Construction Commission [2024] QCATA 27, [19] (Senior Member Brown).

[49] At, or immediately after, midnight on 25 October 2021.

[50] McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 57, [18] (Dalton J, as her Honour then was). See also Rosecove Pty Ltd v Queensland Building and Construction Commission & Anor [2023] QCAT 101, [16] (Senior Member Browne).

[51] Agius v Queensland Building and Construction Commission & anor [2023] QCATA 145, [25] (Senior Member Traves).

[52] Barry & Anor v Queensland Building and Construction Commission [2015] QSC 50, [18].

[53] Queensland Building and Construction Commission & Anor v Groupline Constructions Pty Ltd [2020] QCA 245, [80].

[54] And, for completeness, I note that a direction to rectify could not have been validly given at the date of filing of the Review Application.