Hall v Queensland Building and Construction Commission & Anor [2025] QCAT 379

(1) Non-compliance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). In particular: denying a reasonable opportunity to file evidence, call and examine witnesses and make submissions; not proceeding with an oral hearing; failure to supply requested evidence of appointment and authority to act under s 235 of the QCAT Act; improper delegation of judicial process to an associate.

(2) Failure of the Judicial Member to keep his word to the applicants.

(3) Failure to act fairly towards the applicants. In particular, failure to issue a disclosure decision properly and efficiently; refusing applications for adjournment; failure to make allowances in relation to fees; proceeding with a decision on the papers in circumstances where the applicants were unable to attend the oral hearing because of ill-health and could not reasonably comply with directions in relation to the filing of material and submissions; unfairness in related proceedings.

(4) The Judicial Member and the Senior Member lack the required expertise for the hearing.

• [6] It is also submitted that the recusal application should be set down for an oral hearing because, it is said, the Court of Appeal has urged the Tribunal to do fewer matters on the papers. In that regard reference is made to a paper written some years ago by a then Senior Member of the Tribunal, which includes reference to a decision of the Court of Appeal in Chandra v Queensland Building and Construction Commission,[1] in which there was some discussion of the practice of determining matters on the papers. In particular, Peter Lyons J stated that while one of the objects of the QCAT Act is to have the Tribunal deal with matters in way that is 'economical, informal and quick', the objects also include having the Tribunal deal with matters in a way that is 'fair' and 'just'. It was further stated, at [69], that the requirements of a fair hearing 'are not to be sacrificed to achieve economy, informality and speed'. In particular, reference was made, at [61], to the need for 'a fair opportunity to be heard' and, at [68], 'a fair opportunity to deal with matters which may be potentially of importance in coming to decisions adverse to (a party)'.
• [7] It is further submitted that previous decisions on the papers have failed to take account of all written submissions (the example given is discussed at [35], below) and that there has been limited time to prepare written submissions. The applicants have in fact filed detailed written submissions in relation to the recusal application and 351 pages of written submissions in relation to the review application, following the directions made on 9 June that the matter be determined on the papers and that the parties file submissions in relation to the review application.
• [8] Finally, it is submitted that a decision on the papers does not provide an opportunity to call and examine and cross-examine witnesses. The issue of the calling of witnesses in relation to the review application is discussed at [19]-[21] below.

• [9] In CNY17 v Minister for Immigration and Border Protection & Anor ('CNY17'),[2] with reference to the merits review of decisions of the Minister conducted by the Immigration Assessment Authority, which is established within the Migration and Refugee Division of the Administrative Appeals Tribunal, Kiefel CJ and Gageler J stated (footnotes omitted):[3]

[17] What the bias rule requires of the Authority is that its conduct and that of the Minister and the Secretary is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA provides might reasonably apprehend that the Authority might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review. ...

[18] The purpose of combining the "double might" with the construct of the hypothetical "fair-minded lay observer" is to stress that the bias rule is concerned as much to preserve the public appearance of "independence and impartiality" on the part of the Authority as it is to preserve the actuality. ...

[19] The purpose of combining the "fair-mindedness" of the hypothetical lay observer with the "reasonableness" of that observer's apprehension is to stress that the appearance or non-appearance of independence and impartiality on the part of the Authority falls to be determined from the perspective of a member of the public who is "neither complacent nor unduly sensitive or suspicious". Together they emphasise that "the confidence with which the [Authority] and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably - and not fancifully - entertained by responsible minds".

[20] The question whether conduct has resulted in a breach of the bias rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises. ...

[21] Establishment of an apprehension of bias on the part of the Authority then requires the taking of two essential steps: first, identification of the factor which it is postulated might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits; and, second, articulation of how that factor might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits. Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred. In taking that third step, "it is the court's view of the public's view, not the court's own view, which is determinative".

• [10] In that case, Nettle and Gordon JJ also stated (footnotes omitted):[4]

[56] ... A finding of apprehended bias is not to be reached lightly. The determination of whether an apprehension of bias is "reasonable" is not assisted by philosophical conceptions of the varieties of seriousness or materiality.

[58] ... The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair‑minded lay observer has "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]".

• [11] Also, as noted in Chief Executive, Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor the onus is on the person bringing the application for recusal to demonstrate the actual bias or apprehension of bias.[5] It was added, at [17] (footnotes omitted):

The fact that a party has their claim dismissed is not evidence of apprehended bias. The fact that errors may have occurred in reaching a decision is also not evidence of apprehended bias. As noted in Sayed v National Disability Insurance Agency (No 2):

Allegations of actual or apprehended bias are serious matters and must be assessed carefully by the Court. It is regrettable if a litigant in this Court forms the impression that the presiding judge prejudged the litigant's case so as to be unable or unwilling to decide it impartially. However, statements made or rulings given by a judge addressing matters of practice and procedure in the course of a case management hearing must be assessed in the context of ordinary judicial practice. That includes the necessity for active case management in order to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

• [12] Each of the allegations is addressed in turn. By way of context, the present substantive application is an application to review a decision of the first respondent refusing a claim under the Home Warranty Scheme. The claim was refused on the basis that the building contract in question had not been validly terminated, as required by s 4 of Schedule 6 of the Regulation. Accordingly, the question to be determined on review is whether the contract was validly terminated on default of the contractor.
• [13] The first respondent's reasons for decision states that the contract had not been validly terminated because the Notice to Remedy Breach failed to particularise the alleged substantial breaches of the contract to be remedied, as prescribed by clause 28.3 of the contract. Without those particulars, the contractor could not attempt to rectify the breaches. Accordingly, the Notice to Remedy Breach was invalid and, consequently, the Termination Notice could not have been validly issued.
• [14] In the reasons it is also stated that the purported termination on what was said to be the separate failure to receive relevant permissions, consents and approvals prior to the anticipated start date pursuant to clause 2.3 of the contract, did not amount to a substantial breach of the contract as it was capable of remedy prior to completion. It is further stated that based on the information provided and specifically Form 21, and contrary to the allegation of the applicants, practical completion had been reached. It is further noted that the contractor terminated the contract, treating the invalid Termination Notice as a repudiation of the contract.
• [15] Accordingly, the issue on review is whether the applicants validly terminated the contract. That will be determined primarily by reference to the relevant documentation.

Denying a reasonable opportunity to file evidence, call and examine witnesses and make submissions:

• [16] A total of 23 separate directions have been issued in relation to this matter, a number of which concern the filing of material and submissions. In addition, there have been six decisions in relation to applications for miscellaneous matters. A good deal of material has been filed by the applicants. Three separate written submissions have also been filed, prior to those filed on 8 September 2025, noted below.
• [17] In directions issued on 9 June 2025, directions were issued requiring the applicants to file, by 1 July 2025, any written submissions in relation to the review application and, in particular, as to whether the contract was validly terminated and the applicants are entitled to cover for any part of their claim under the Home Warranty Scheme. On 14 August 2025 the time for compliance with that direction was extended to 5 September 2025, with a right to reply to the response submissions of other parties extended to 6 October 2025.
• [18] On 8 September 2025, the applicants filed submissions of 351 pages and now seek to file further material of 2,654 pages, though a good deal of the latter appears to be material previously filed. On that basis, the time for the respondents to file submissions in response has been extended from 26 September 2025 to 10 October 2025 and the time for a reply by the applicants extended to 20 October 2025.
• [19] In relation to calling and examining witnesses, in the applicant's submissions it is stated that fairness requires that parties be given a reasonable opportunity to cross-examine the respondents in relation to their evidence. Applications by the applicants made on 22 April 2025 for a notice requiring witnesses to attend a hearing or produce a document/thing were dismissed on 10 July 2025, as a filing fee had not been paid. At the request of the applicants, separate reasons were provided for that decision. In those applications it was sought to issue notices to 19 individuals. They included a director of the second respondent, building and other experts, a licensed plumber, QBCC building inspectors, investigators and officers, including a previous QBCC Commissioner, and an 'unknown' person.
• [20] It is evident from the details provided in relation to the application of 22 April 2025 that the applicants wished to canvass in the present matter issues that might be relevant to several other matters they have before the Tribunal, particularly the application relating to the building dispute with the second respondent. In relation to various QBCC officers, it is evident that the applicants are concerned about process undertaken, including compliance with the legislation, policies and procedures, and also wish them to provide evidence in relation to building defects observed, as well as to highlight what are said to be failings on the part of the first respondent.
• [21] It is not said how any of the evidence that those individuals might give is relevant to the question of whether there had been a valid termination of the contract. By s 20(2) of the QCAT Act, the present review is a fresh hearing on the merits, so that in effect the Tribunal stands in the shoes of the original decision-maker and makes the decision afresh. Unlike some other review processes, including judicial review, it is not a question of whether the decision-maker has fallen into error, procedurally or otherwise. On the basis of the relevant material and evidence before the Tribunal, a determination will be made afresh as to whether the applicants have satisfied the requirements for a claim made under the Home Warranty Scheme.

• [22] There have been several directions issued in relation to the final determination of this matter. On 5 September 2024, the matter was listed for a two-week oral hearing, along with five other related review applications brought by the applicants, commencing on 24 February 2025. Subsequently, on 4 February 2025, those review matters and a related building dispute involving the second respondent were listed for a Tribunal hearing commencing in June 2025. On 7 April 2025, the present matter was listed separately for a Tribunal hearing commencing on 9 June 2025. On 6 June 2025, an application to adjourn the hearing filed on that day was dismissed. A medical certificate attached to the application simply stated that Mr Hall was unfit to attend work from 4 to 7 June 2025. The hearing was listed for 9 June 2025. However, leave was given for the applicants to attend the hearing by video conference. Further medical certificates were filed on 9 June 2025 stating that both applicants were 'unfit to attend work' on 8 to 11 June 2025. They did not appear at the hearing on 9 June 2025.
• [23] In directions made on 9 June 2025, it was directed that 'in the interests of progressing the case' the matter would be decided on the papers. Directions were issued in terms set out at [17], above. It is noted that s 32(2) of the QCAT Act allows the Tribunal, where appropriate, to conduct a proceeding on the papers. The decision to conduct the final hearing on the papers was made in the context of a review application that had been filed over five years earlier, where a good deal of material and submissions had been filed, where there had been numerous and lengthy directions hearings at which the applicants attended in person, and in circumstances where the issues to be determined, as set out at [12]-[14] above, are such that the matter is suitable for determination on the papers.

Failure to supply requested evidence of appointment:

• [24] The applicants submit that there was a failure to provide evidence of authority under the QCAT Act. At the directions hearing of 5 November 2024, the applicants asked for evidence pursuant to s 235 of the QCAT Act of Senior Member Aughterson having been constituted as the Tribunal in this matter. As appears from the Transcript, the Judicial Member noted that it was only a directions hearing and that, if sought, such evidence could be provided in relation to the final hearing of the matter.
• [25] That s 235 of the QCAT Act does not require proof of a member being constituted as the Tribunal for a directions hearing is evident from s 62(2) and s 62(7) of the QCAT Act. Section 62(2) provides that the Tribunal may hold a directions hearing, while s 62(7) provides that a power to act under s 62 is exercisable either by the Tribunal 'as constituted for the proceeding', or by 'a legally qualified member, an adjudicator or the principal registrar'.
• [26] With reference to some prior directions hearing conducted by the Senior Member in relation to related appeal proceedings, it was also submitted that s 166(1) of the QCAT Act requires that at least one judicial member must constitute an appeal. However, leaving to one side that the hearings in question were only directions hearings, this ignores s 166(2) of the QCAT Act, which provides that if the President 'considers it appropriate' a 'suitably qualified member' may constitute the Tribunal for an appeal or application for leave to appeal.

Improper delegation of judicial process to an associate:

• [27] The applicants refer to what was allegedly said by the Judicial Member at a directions hearing on 7 April 2025; that is, that he 'admitted' that he delegated 'part of the judicial process' to an associate and that 'part of the decision got lost'. In fact, the Judicial Member was apologising for the delay in delivering a decision, which in part was due to a change as to the associate responsible for proofing the reasons for the decision. It is standard practice for reasons for decisions to be proof read by an associate or other qualified person, in order, for example, to correct typographical errors, check citations and ensure adherence to formatting and style guides. Certainly, it does not involve a review of substantive issues or represent a delegation of any part of the judicial process.

Failure of the Judicial Member to keep his word:

• [28] The applicants submit that there was a 'promise' to provide evidence of constitution of the Tribunal before the final hearing and 'in due course'. This issue is discussed at [24]-[25], above. Submissions in this matter are pending and the timing of the final hearing on the papers has not yet been set.
• [29] It is also submitted that at the directions hearing on 30 April 2025, the Judicial Member 'promised' that the applicants could let the Tribunal know if they had trouble meeting the timeframe for the hearing, yet when they did so though an application to adjourn on 2 June 2025, the adjournment was refused. As indicated by the transcript of 30 April 2025, the relevant discussion centred on the timeframe for the filing of further documents ordered to be produced by the first respondent so as to provide adequate time for the applicants to review them. While it is not evident that any 'promise' was made, the applicants did express concern as to the time allowed (approximately two weeks) for them to review the documents before the hearing, then scheduled for 9 June 2025. In response to those concerns, the Judicial Member said that if anything arises 'which is going to cause issues', the applicants can 'raise those with the tribunal at the time'. It was also said: 'If you have trouble with that, you'll have to let me know'. In any event, the refusal of the adjournment was unrelated to any concerns over the time allowed for filing and review of documents. The rationale for the refusal of the adjournment is discussed at [23], above. Also, given the directions of 9 June 2025 allowing for the filing of submissions, the parties were given further time to review all relevant documents.
• [30] It is further submitted that during a directions hearing the Member agreed to receive certain documents from the QBCC to determine whether they were privileged and that this did not occur. The relevant discussion took place at the directions hearing of 30 April 2025. It is not evident from the transcript that any such undertaking was given. The applicants referred to a claim of privilege by the first respondent in relation to certain documents and then revealed that they were already in possession of at least one of those documents. The discussion then proceeded in relation to the documents that the first respondent was to provide to the applicants.

• [31] It is submitted that the Judicial Member and the Senior Member did not act fairly towards the applicants. Some of the given instances have already been addressed: the time allowed to review documents (see [29] above); the refusal to adjourn the Tribunal hearing (see [22]-[23], above); and the refusal to issue a notice requiring witnesses to attend: see [19]-[20], above.
• [32] It is also submitted that the directions of 9 June 2025 were unfair in requiring the applicants to file written submissions, as they were not well and also they were not given the opportunity to make submissions as to how long they needed. Initially, they were given three weeks, which was subsequently extended to a total of approximately 12 weeks. No further medical certificates have been filed and there have been no further requests for an extension of time. As noted at [18] above, the written submissions filed on 8 September 2025 constituted 351 pages.
• [33] It is also submitted that the unavailability of the respondents was taken into account and their 'unsupported' requests for extensions of time were acceded to, but not those of the applicants. Details are not provided. However, it is noted that in the course of the proceedings extensions of time were allowed to the applicants; specifically, in directions of 4 September 2020 and 25 November 2024, as well as that of 14 August 2025, noted at [17] above. The concern of the applicants seems to be directed at the time allowed the first respondent to file material, as discussed at [29], above.
• [34] It is further submitted that there was an initial refusal by the Senior Member to join Mrs Hall in related proceedings (GAR536-21), in circumstances where she was subsequently joined. Reasons for the refusal of the joinder application on 9 November 2023 were provided. As there noted, it was evident that the primary concern of Mrs Hall was that there be appropriate representation for her husband, given his health, and that when he was well he may become the primary speaker. In the reasons for the decision it was noted that the application had been made some two years after the commencement of the proceedings and any late joinder may have the effect of protracting the proceedings, as it would be open to her to file separate material, file separate submissions and make separate interlocutory applications, also noting that at that time there had already been a number of interlocutory applications filed. It was added that the potential representation of Mr Hall by Mrs Hall would go some way to addressing her concerns. There was no appeal from that decision.
• [35] Finally under this sub-heading, it is submitted that in related review proceedings (GAR536-21), and in relation to an application of the applicant for the Tribunal documents to be amended to record the actual decision maker rather than the QBCC as the proper respondent, the Tribunal record shows that the first respondent's submissions had been 'marked up' by the Senior Member with yellow highlighter and pencil comments, whilst the applicants' submissions 'hadn't even been creased at the corner'. This was said to indicate that they had not even been read. A review of the file indicates that there are no pencil comments on the submissions of the first respondent, though there is evidence of very faint highlighting of two words and parts of three sentences. However, the pages of the respective submissions are equally preserved, with no crease marks at the corners of either. In any event, reference is made to the submissions of the applicant in the reasons for the decision: see Hall v Queensland Building and Construction Commission [2023] QCAT 379, [4]-[6].

• [36] Four examples are given of what is said to show a lack of the required expertise on the part of the Judicial Member and Senior Member. The first relates to constitution of the tribunal, which is addressed at [24]-[26], above. Second, it is said that the Members have failed to understand 'the functions of review', with reference being made to s 24(3) of the QCAT Act, which provides:

The tribunal may make, to the chief executive of the entity in which the reviewable decision was made, written recommendations about the policies, practices and procedures applying to reviewable decisions of the same kind.

• [37] The applicants refer to 'the numerous examples' of why recommendations need to be made to the QBCC 'as a result of what has happened in our situation' and requesting QBCC's internal documents to support what should have occurred. Any such recommendation is at the discretion of the Tribunal and, even if the tribunal were minded to make a recommendation, there is a question of whether it would be appropriate to make any recommendation while a proceeding is progressing and has not yet been determined.
• [38] The third example is that 'shockingly, in a directions hearing the Senior Member asked the applicants if they 'even cared if QBCC followed the law'. Partial transcripts of 5 November 2024 and 30 April 2025 were attached to the submissions. As indicated by the transcript of 5 November 2024, the applicants referred to decisions made by the first respondent under s 71 (relating to claims under the statutory scheme) and s 72 (relating to rectification of building work) of the Queensland Building and Construction Commission Act 1991 (Qld), in relation to which it seems to be suggested that the first respondent did not have certain material at the time of the making of those decisions. It is then said that the first respondent was 'attempting to mislead the tribunal into believing that they had formed the opinion based on evidence they did not have at the times the decisions were made'. It was in response to that statement that the Senior Member asked: 'But does that matter?', before stating that the review proceeding before the Tribunal is a fresh hearing on the merits. As noted at [21], above, it is not to the point whether or not there has been some failing on the part of the original decision-maker, given that the Tribunal considers the matter afresh on the material now before the Tribunal.
• [39] The fourth given example, relating to the directions hearing of 30 April 2025 and the application of the applicants to call QBCC witnesses at the hearing (as to which see [19]-[21] above), is that the Judicial Member misunderstood the text of the first respondent's Claim Procedure Manual. It was the position of the applicants that the Manual indicated that QBCC officers regularly appeared as witnesses in QCAT proceedings and that they 'could be called as witnesses'. However, as noted by the Judicial Member, the Manual simply provides a process for when QBCC officers are called as witnesses at QCAT: see the Manual at 12.5 and 12.6. It does not regulate the circumstances in which they should be called as witnesses. It is noted that paragraph 12.5 is prefaced with the words: 'The QCAT has the power to direct QBCC officers to attend hearings and give evidence ...'.
• [40] The issues raised by the applicants rest on misinterpretations of relevant legislation, processes and policies and misconceptions as to what was said by Tribunal Members and as to decisions made. The applicants have had every opportunity to present their case, through frequent and lengthy directions hearing which they have personally attended and through the filing of voluminous material and submissions. It is appropriate that the matter be finally determined on the papers.
• [41] In the circumstances outlined, bias or apprehended bias has not been demonstrated. It is not evident, as stated in CNY17, that 'a fair-minded lay observer properly informed as to the nature of the procedure ... might reasonably apprehend that the (Tribunal) might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise'.

[1] [2014] QCA 335, [60].

[2] [2019] HCA 50; (2019) 268 CLR 76.

[4] [2019] HCA 50; (2019) 268 CLR 76 [56], [58].

[5] [2025] QCAT 222 [18].