Crocker v Queensland Building and Construction Commission [2020] QSC 24

Queensland Building and Construction Commission for the respondent

Jackson J: This is the final hearing of an originating application for judicial review under chapter 14, part 4 of the UCPR and the Judicial Review Act 1991, which I will call the "JRA".

Paragraph 2 of the application applies for the declaration of non-liability under section 111C of the Queensland Building and Construction Commission Act 1991, which I will call the "QBCCA", because "the decision to issue the notices of potential debts" for liability under that section was invalid on the ground of judicial review that there was a failure to accord procedural fairness or the ground that the decision was unreasonable.

The Court has power to make a statutory order of review under part 3 of the JRA, but no order of that kind is sought under paragraph 2. However, the Court has power under section 43(3) of the JRA to make a declaration on an application made under section 43(2) where the Court considers it appropriate, having regard to the nature of the matters in relation to which relief may be sought on an application for a prerogative order or a prerogative injunction under section 43(1).

Whatever be the basis of the relief sought by paragraph 2 by way of judicial review, in this case such relief could only be available if there were a relevant decision on which the liability under section 111C of the QBCCA depended that was invalid because of either a failure to accord procedural fairness or statutory unreasonableness in making the decision to issue the notice or notices of potential debts.

In my view, there is no such decision made under section 111C of the QBCCA. The notices which the applicant seeks to have invalidated have no legal effect as such and were not preceded by a decision under section 111C imposing liability as such. The notices were nothing more or less than a demand for payment. Liability under section 111C of the Act does not depend on the making of a demand.

The applicant also submits in paragraph 44 of his written submissions that the respondent made a decision that the applicant was a director of Statewide Residential Building Inspection and Maintenance Services Pty Ltd, which I will call "Statewide", and that decision is also subject to review under section 20 of the JRA.

In my view, that was not an administrative decision made under an enactment because it is not a decision required or authorised by the QBCCA.

In both instances, see Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at paragraph 79.

In other words, the declaration of non-liability that is sought is nothing more or less than a claim for declaratory relief as to non-liability for a debt. Whether or not the applicant is liable for the debt depends on the application of the statute and whether the statutory conditions under section 111C(3) and subsection (6) that create that liability are met, but does not depend on any administrative decision reviewable on an application in this Court for judicial review of an administrative decision.

Accordingly, the application for relief in paragraph 2 must be refused.

Paragraph 3 of the application seeks a declaration, presumably on a similar basis as paragraph 2, that the decisions made by the Commission were invalid. Paragraph 3 does not identify any decisions but is not confined to the decision to issue the notices of potential debt as is paragraph 2. However, assistance may be sought in paragraph 5 of the application. It identifies relevant decisions as follows:

(a) the decisions to accept the claims (of relevant homeowners) in relation to the three relevant properties;

(b) the decisions to issue a notice to rectify any defects for the properties;

(c) the decisions to issue a scope of works; and

(d) the decisions to make payments on the claims.

I will treat that identification as applying to paragraphs 3 and 4 as well as paragraph 5.

For the purposes of deciding the relief claimed in paragraph 3 of the application, it is, however, necessary to identify the relevant decisions to accept and pay relevant claims under the QBCCA with more precision. For a reason that is not explained, the applicant has not done so. However, it is convenient to do so in the context of the applicant's submissions that those decisions should be reviewed under section 20 of the JRA.

By paragraph 4 of the application, the applicant seeks judicial review of one or more of the same decisions and, as a consequence, seeks to have the decision to issue the notices of potential debt quashed and/or sent back to the original decision-maker. I treat that paragraph as seeking relief under section 20 of the JRA, although that should have been done expressly in order to comply with the rules of Court.

There were three relevant insurance claims made by homeowners upon the insurance fund constituted under the QBCCA in respect of three different building contracts made between homeowners and Statewide for properties located at Norman Park, Ashgrove and Toowong. The claims were made as follows.

For the Norman Park property, on 14 November 2013, the respondent received an insurance claim from the homeowner. On 2 April 2014, the respondent served Statewide with a notice that it had decided that the homeowner had validly terminated the building contract. Also on 2 April 2014, the respondent served a scope of works decision for completion of works on Statewide. On 8 June 2014, after QCAT had dismissed a review of the decision brought by a director of Statewide, the respondent served on Statewide a notice that it had approved the homeowner's insurance claim in the amount of $123,267.83.

For the Ashgrove property, on 13 February 2014, the respondent received an insurance claim from the homeowner. On 24 September 2014, the respondent served Statewide with a notice that it had decided that the homeowner had validly terminated the building contract. On 24 September 2014, the respondent served a scope of works decision for completion of works and rectification of defective works on Statewide. On 27 January 2015, the respondent served on Statewide a notice of approval of the homeowner's insurance claim in the sum of $200,000.

For the Toowong property, on 14 January 2014, the respondent received an insurance claim from the homeowner. On 7 February 2014, the respondent notified Statewide that it had decided that the homeowner had validly terminated the building contract.

On 3 December 2014, the respondent served a scope of works decision for completion of works and rectification of defective works on Statewide. On 15 December 2014, the respondent served on Statewide a notice that it had approved the homeowner's insurance claim in the amount of $200,000.

Each of the claims was one made under the QBCC Regulation and the statutory insurance policy by a homeowner.

The first thing that follows from those facts is that there was no decision made by the respondent to issue a notice to rectify any defects for any of the properties under section 73(1) of the QBCCA. Accordingly, there is no basis for judicial review of any decision under paragraph (b) of the paragraphs (a) to (d) that I have identified above.

As to paragraphs (a), (c) and (d), section 70 of the QBCCA provides for a homeowner, as a person entitled to an indemnity under the scheme, to give notice in accordance with the Regulation. Nothing expressly provides that a decision to indemnify a homeowner under the insurance scheme is a reviewable decision under division 3 of part 7. However, first, section 86(1)(g) of the QBCCA provides that a decision of the respondent about the scope of works is reviewable in QCAT under part 7, division 3, and similarly, a decision to disallow a homeowner's insurance claim is a decision reviewable in QCAT under section 86(1)(h).

In my view, it follows that a decision as to the scope of works for the completion or rectification of building work made by the respondent in the circumstances of each of the insurance claims in the present case was an administrative decision made under an enactment. Accordingly, it is capable of judicial review for the purposes of section 20 of the JRA. It also follows that each of the respondent's decisions to approve the homeowner's claim under the statutory insurance scheme was an administrative decision made under an enactment. Accordingly, those decisions, too, are capable of review under section 20 of the JRA. Accordingly, the decisions identified in paragraphs (c) and (d) of paragraph 5 of the application are capable of judicial review under section 20 of the JRA.

That, however, does not apply to paragraph (a). The QBCCA does not require or authorise a separate decision to receive and accept an insurance claim from a homeowner by the respondent. Even if it did, there is no basis in this case for reviewing any decision whether any of the claims should be received and accepted for consideration on the ground of absence of procedural fairness or unreasonableness, and it is unnecessary to consider paragraph (a) of the claims for relief further.

Accordingly, in my view, the remaining claims to be considered are those decisions that fall within paragraphs (c) and (d) of the relief claimed in paragraph 5. In my

view, none of those decisions, with one exception, should be reviewed under section 20 of the JRA. The exception is the decision to make a payment on the claim in respect of the Toowong property, as identified in paragraph 8 of the applicant's submissions and further illustrated or supported in the evidence filed in support of the application by an email which was made internally within the respondent.

At the time of making that decision, the respondent was aware that there was a deed of settlement made between the building contractor and the homeowner in that matter under which the homeowner had released the building contractor from further liability. In argument before me, it is not challenged that those were the facts. Consequently, it is provided in clause 6.15 of the terms of the insurance policy under the statute that where the contractor has been released from any liability in relation to the insured works, the QBCC is thereby released from liability under the policy to the same extent. There is no explanation why, in those circumstances, the respondent saw fit to pay the claim in respect of the Toowong property.

Accordingly, in my view, there is a prima facie and, on the evidence before me, a basis to conclude, that the decision of the respondent to admit the claim of the homeowner in respect of the Toowong property and to pay under the statutory insurance policy the sum of $200,000 was one that was made as a result of unreasonableness, used in the sense of Wednesbury unreasonableness as explained by the High Court in Li v Minister for Immigration in 2013. To that extent, in my view, the application for review of that decision is one that is properly supported.

The only reasons, in the circumstances of the case, why that decision should not be set aside in the exercise of the Court's jurisdiction under section 20 of the JRA are discretionary, based on the delay between the making of the decision and the bringing of the present application by the applicant in January of 2019.

In part, that delay is explained by the circumstance that the applicant sought to challenge the liability alleged against him by challenging a number of the relevant decisions in QCAT. Those proceedings took place over the second part of 2016 and following, resulting eventually in a dismissal of the applications in QCAT in late 2018. Whilst on one view that is not a complete explanation of the delay for bringing an application in this Court based on invalidity due to the ground of statutory unreasonableness, in my view, in the circumstances, delay should not be accepted as a discretionary reason to refuse the application that is brought to that extent.

Otherwise, on the material before me, the essential plank in the applicant's case to set aside the other decisions was that he ought to have been given notice of the challenged decisions, which I have identified, in either paragraphs (c) or (d). It is not contended that, under the statute, there was any express requirement for him to be notified. The apparent difficulty that the implication of such a requirement would create is that failure to give notice to a director of a building contractor who may be affected under section 111C would have the consequence of invalidating every decision which is made by the respondent. That would be a startling conclusion. Nevertheless, if that is what is required on the proper construction of the statute, there is no reason to shrink from it.

However, in my view, apart from the fact of the incidence of the liability that is created under section 111C for a director who meets the requirements for that Section to apply, there is no reason to think that the statute should require that, for a valid decision of the kinds identified under paragraphs (c) or (d) to be made, notice must be given to the director of any company building contractor as well as to the company itself.

In my view, the fact of the operation of section 111C is not of itself a sufficient reason to imply that requirement into the statute. It follows that, in the result, none of the decisions that are challenged on the basis of the ground of absence of procedural fairness are reviewable under section 20 for the reason that the respondent was required to give the applicant notice of those decisions.

Jackson J: Both the parties apply for costs in different respects as a result of the orders that I have made on the hearing of the application. The applicant submits that it has had substantial success because of an order that sets aside a decision that required the respondent to pay $200,000 to the homeowners and thereby generated the exposure to liability of the building contractor and the applicant in that amount.

On the other hand, the respondent submits that so far as there were decisions and grounds in support of those decisions advanced in the application, the applicant has been successful only on one out of the three different amounts of money which were the subject of the decisions challenged by the applicant made by the respondent, and that therefore any order for costs that follow the event should divide the event into those separate subject matters so that the applicant receives an order for costs for the application so far as it concerned the Toowong property but not so far as it concerned the other properties and the payments that were made in respect of the claims under the insurance policies for those properties.

In my view, although there is something in the respondent's submission about this, the better solution is one that avoids the need to assess and pay assessed costs on either side. Accordingly, the appropriate way to deal with the relative successes on one side and the other, in my view, is by making no order as to costs.