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The Court of Appeal panel comprised Mullins P, Boddice JA and Bradley JA. Bradley JA delivered the reasons. Mullins P and Boddice JA agreed, and Mullins P later stated the Court’s order: leave to appeal was refused, with costs ([1], [9]-[12]).

The judgment focused on the boundary of the Court’s appellate jurisdiction, rather than deciding the underlying building dispute. Bradley JA said that the Court’s jurisdiction was confined to appeals on a question of fact or questions of law, and that it had no jurisdiction to hear an appeal on questions of fact or mixed questions of law and fact ([2]). The judgment cites Allen v Queensland Building and Construction Commission [2024] QCA 24, [16]-[20] in a footnote to that statement ([2] n 1). The reasons do not reproduce the reasoning in Allen; the proposition relevant here is the jurisdictional boundary as stated by Bradley JA.

The four proposed grounds concerned: the QBCC’s statutory power to issue a direction to rectify in particular circumstances; whether the builder had first been given an opportunity to rectify; whether it was unfair to issue the direction; and the tribunal member’s assessment of evidence about how a shower-base test was performed. The Court concluded that the grounds were beyond its jurisdiction or would serve no purpose ([3]-[7]). It refused leave, with costs ([9], [12]).

The judgment therefore does not determine whether the direction was legally correct, whether the waterproofing was defective, or what water depth was used in the test. Its decision is procedural: the proposed appeal could not proceed on the grounds as characterised by the Court.

Why the court decided this way

The Court assessed each proposed ground against its stated jurisdictional limit. It did not treat a party’s description of a ground as a question of law as conclusive. Instead, it examined whether determining the ground would require the Court to decide facts or a mixed question of law and fact.

The first ground concerned the QBCC’s power under s 72 of the Queensland Building and Construction Commission Act 1991 (Qld) to issue a direction to rectify in particular circumstances. The existence of those circumstances was disputed. Bradley JA said the dispute depended on findings of fact made by the original tribunal member and accepted by the Appeal Tribunal. The Court could not determine those facts “even as an element or incident of deciding the proper construction of the Act” ([4]). In other words, framing the dispute around statutory construction did not remove the factual component that the proposed ground required the Court to resolve.

The second ground concerned the QBCC’s decision to issue a direction without first giving Dixonbuild an opportunity to rectify the defect. The Court did not decide whether that was required or whether the QBCC’s original decision was correct. It explained that the QBCC’s decision had been overtaken by the tribunal member’s decision after a merits review. On that basis, an appeal about the original decision would “serve no purpose” ([5]). The point is confined to the procedural history described in this judgment.

The third ground challenged the tribunal member’s conclusion that it was not unfair for the QBCC to issue a direction to rectify. Bradley JA characterised that conclusion as a question of mixed law and fact. Deciding it would require the Court to determine relevant facts, which the Court said was outside its jurisdiction ([6]). The judgment does not set out a general test for unfairness or explain the substantive elements of this issue.

The fourth ground concerned the tribunal member’s preference for the QBCC inspector’s evidence about the test of the shower base, particularly the water depth. Dixonbuild argued that its witness’s evidence had been rejected because the witness was not present during testing. The tribunal member had considered the witness’s use of a tape measure superimposed over a photograph, but did not accept the assumptions about water depth or the virtual “recreation” of the inspector’s test. The member accepted the inspector’s evidence about the test performed and how high the shower base was filled, and accepted that the test followed industry standards and was appropriate for testing waterproofing ([7]). Bradley JA concluded that the proposed question was not purely a question of law and appeared for the most part to involve questions of fact ([7]).

The Court’s reasoning is thus tied to the character of these particular grounds and the record as described in the short judgment. It did not undertake a fresh evaluation of the witnesses or decide the merits of the waterproofing dispute.

Before and after state of the law

The judgment does not describe a change in the law or compare the position before and after a legislative amendment or earlier decision. It states the jurisdictional position the Court applied in this application: appeals were confined to questions of fact or questions of law, while the Court had no jurisdiction to hear appeals on questions of fact or mixed questions of law and fact ([2]). The judgment cites Allen [2024] QCA 24, [16]-[20] for that statement ([2] n 1), but does not detail the earlier case’s reasoning.

The decision illustrates how that stated limit operated in this dispute. A ground involving statutory power was still outside the Court’s reach where resolving it required the Court to determine disputed facts ([4]). A challenge to a finding labelled as unfairness was outside the stated jurisdiction because the Court regarded it as mixed law and fact ([6]). And a challenge to credibility, assumptions drawn from a photograph, and the inspector’s testing evidence was characterised as substantially factual ([7]).

The judgment also addresses a separate procedural point: the challenge to the QBCC’s original decision would serve no purpose because the tribunal member had decided the matter following a merits review ([5]). The Court does not describe this as a broad rule governing every merits-review appeal. It is the reason given for rejecting the second proposed ground in the procedural circumstances before it.

Accordingly, the “after” position established by the disposition is limited: leave was refused in this proceeding, with costs. The judgment does not state that the statutory power in s 72 has been altered, nor does it decide the substantive requirements for issuing a direction to rectify. It should not be read as resolving the underlying construction or waterproofing issues.

Key passages with plain-English translation

At [2], Bradley JA stated: “The Court has no jurisdiction to hear an appeal on questions of fact or on a mixed question of law and fact.” In plain English, the Court identified a boundary on the kinds of appeal it could hear. The judgment uses that boundary to assess the substance of each proposed ground.

At [4], Bradley JA explained that the Court could not determine the disputed facts “even as an element or incident of deciding the proper construction of the Act.” The practical significance is that a ground does not become a purely legal question simply because it refers to statutory interpretation. If deciding it requires resolving disputed facts, the Court treated that factual task as outside its jurisdiction.

At [5], the Court said that an appeal about the QBCC’s original decision “would therefore serve no purpose.” This refers specifically to the fact that the original decision had been overtaken by the tribunal member’s decision following a merits review. The judgment does not decide whether an opportunity to rectify was required; it explains why a proposed appeal directed at the original decision was not useful in the procedural circumstances described.

At [6], Bradley JA described the finding that it was not unfair to issue the direction as “a question of mixed law and fact.” In plain English, the Court considered that evaluating the fairness issue required applying legal considerations to facts. Because the Court said it could not determine the relevant facts, it treated that ground as outside its jurisdiction.

At [7], the Court noted that the tribunal member had not accepted the “validity” of the assumptions about water depth made by Dixonbuild’s witness, nor the virtual “recreation” of the inspector’s test. The member accepted the inspector’s evidence about the test and its suitability. Bradley JA concluded that the proposed question was not purely legal. This passage records the tribunal member’s evidentiary assessment as described by the Court; it is not a new assessment of the evidence by the Court of Appeal.

Finally, at [9] and [12], the Court ordered that leave to appeal be refused, with costs. The operative result was therefore a refusal of permission to appeal, rather than a substantive ruling on whether the direction to rectify was justified.

What fact patterns trigger this precedent

The judgment is most directly relevant where a proposed appeal is said to raise a legal issue, but resolving it would require the appellate court to determine disputed facts. Paragraph [4] is particularly specific: the proposed statutory-construction issue still fell outside the Court’s jurisdiction because the existence of the relevant circumstances was disputed and depended on factual findings.

It may also be relevant where the proposed ground challenges a conclusion that the Court characterises as mixed law and fact. Here, the challenged conclusion was that issuing the direction to rectify was not unfair. The Court’s stated reason for excluding the ground was that it could not determine the facts necessary to decide that mixed question ([6]). The judgment does not provide a general catalogue of mixed questions; its application is confined to the unfairness finding before it.

A further fact pattern is a proposed appeal aimed at an original administrative decision after that decision has been reconsidered on its merits by a tribunal. In this case, the Court said a challenge to the QBCC’s original decision would serve no purpose because the tribunal member’s merits-review decision had overtaken it ([5]). Whether that reasoning applies elsewhere would depend on the procedural history and the decision actually under challenge.

Finally, the judgment is relevant to grounds that, in substance, challenge the tribunal’s evaluation of evidence. The fourth proposed ground concerned competing evidence about how a waterproofing test was conducted and the depth of water in a shower base. The Court treated the dispute over assumptions, a photograph-based reconstruction, and witness evidence as principally factual ([7]). It did not decide whether the tribunal member’s factual assessment was correct.

These are descriptions of the kinds of issues considered in this judgment, not a test for every appeal. The reasons do not set out the full statutory framework for leave, nor do they explain any other jurisdictional routes or exceptions.

How later courts have treated it

The supplied judgment contains no decisions later than Dixonbuild and gives no account of subsequent treatment. It would therefore not be grounded in the text to say that later courts have followed, distinguished, approved, or limited this decision.

The judgment itself cites Allen v Queensland Building and Construction Commission [2024] QCA 24, [16]-[20] for the jurisdictional proposition stated at [2]. That is an earlier authority, not later treatment of Dixonbuild. Bradley JA’s reasons do not set out the passages from Allen or discuss any competing authority.

On the material provided, the identifiable relationship is therefore that Dixonbuild cites Allen in support of its statement about the Court’s jurisdiction. Any account of how later courts have treated Dixonbuild would require later sources not included in the judgment supplied here.

Still-open questions

The reasons leave the substantive building dispute unresolved. They do not decide whether the shower-base waterproofing was defective, whether the inspector’s test complied with the relevant technical requirements, or whether the QBCC’s direction to rectify was correct. The tribunal member’s acceptance of the inspector’s evidence is reported as part of the procedural analysis, not adopted as a fresh factual finding by the Court of Appeal ([7]).

The judgment also does not determine the proper construction of s 72 of the Queensland Building and Construction Commission Act 1991 (Qld). It records that the first proposed ground concerned the QBCC’s power under that provision, but rejects the ground because resolving it required findings about disputed circumstances ([4]). The statutory question itself is therefore not answered in these reasons.

Nor does the judgment determine whether a builder must be given an opportunity to rectify before the QBCC issues a direction. The Court explains that the proposed challenge to the QBCC’s original decision had been overtaken by the tribunal member’s merits-review decision ([5]). It does not decide the substantive issue raised by the ground.

Other questions not answered include the legal content of the fairness issue in this setting, the technical standards applicable to the test, and whether a different formulation of a proposed ground might fall within the Court’s jurisdiction. The judgment does not state a general test for distinguishing a question of law from a mixed question of law and fact beyond its treatment of these four grounds.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.