ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where
the second respondent entered into a contract with the
applicant for the
installation of a fibreglass pool – where the second respondent made a
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – wherethe second respondent entered into a contract with theapplicant for theinstallation of a fibreglass pool – where the second respondent made acomplaint to the Queensland Buildingand Construction Commission (QBCC) aboutdefective work in relation to the construction of the pool – where theQBCC issueda direction that the applicant rectify the work – where theapplicant applied to QCAT for review of that decision, and soughtan order thatthe decision be set aside on the basis that the work was not defective –where that proceeding has not yet progressedto a hearing – where the
QBCC’s complaint was referred for assessment as a claim under the
Queensland Home Warranty Scheme,
and that claim was initially disallowed on the
basis that the second respondent lodged the claim outside the relevant time
limit
– where the second respondent sought internal review of the decision
under s 86B of the Queensland Building and Construction Commission Act 1991
(Qld) – where the internal reviewer made a new decision to disallow
the insurance claim – where the second respondent
applied to QCAT for a
review of the internal review decision – where the QBCC made a request
that QCAT act under s 23 of the Queensland Civil and Administrative Tribunal
Act 2009 (Qld) to invite QBCC to reconsider its internal review decision,
QCAT made a direction to that effect and the QBCC informed the applicant
of that
direction – where the QBCC reconsidered the internal review decision and
made a new decision to allow the claim under
the insurance scheme – where
the QBCC notified the applicant that the second respondent’s claim had
been accepted, and
provided him with a “scope of works” which had
been prepared for the second respondent’s claim – where the
applicant made an application to QCAT for review of the QBCC’s decision to
issue him with a scope of works – where the
applicant then filed an
application in this Court for a statutory order of review, seeking judicial
review of the QBCC’s reconsidered
decision – where the QBCC filed an
application seeking the summary dismissal of the judicial review application
under ss 12 and/or 13 and 48 of the Judicial Review Act 1991 (Qld),
and/or r 658 of the Uniform Civil Procedure Rules 1999 (Qld) and/or the
inherent jurisdiction of the Court to seek the dismissal of the proceeding
– whether the judicial review application
should be dismissed
Civil
Proceedings Act 2011 (Qld), s 10
Judicial Review Act 1991 (Qld), s
12, s 13, s 20, s 29, s 30(1)(a), s 30(1)(c), s 43(2), s 48
Uniform Civil
Procedure Rules 1999 (Qld), r 658
Queensland Civil and Administrative
Tribunal Act 2009 (Qld), s 23, s 33
Queensland Building and
Construction Commission Act 1991 (Qld), s 86
Blundell v Queensland
Building and Construction Commission [2018] QSC 58, cited
Hunt v
Gerrard
Ishiyama v Aitken [2025] QCA 126, distinguished
Lange v
Queensland Building Services Authority [2012] 2 Qd R 457
[2011] QCA
58, cited
Leach v The Queen (2007) 230 CLR 1
[2007] HCA 3,
cited
Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty
Ltd [2007] QSC 333, cited
Nagana Yarrbayn Wangan and Jagalingou
Cultural Custodians Ltd v Chief Executive, Department of Environment, Science
and Innovation
[2025] QSC 132, distinguished
Owens v Menzies
[2013] 2 Qd R 327
[2012] QCA 170, cited
Queensland Building and
Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA
71, cited
Walters v Drummond [2019] QSC 97, cited
Judgment (82 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY - where the second respondent entered into a contract with the applicant for the installation of a fibreglass pool - where the second respondent made a complaint to the Queensland Building and Construction Commission (QBCC) about defective work in relation to the construction of the pool - where the QBCC issued a direction that the applicant rectify the work - where the applicant applied to QCAT for review of that decision, and sought an order that the decision be set aside on the basis that the work was not defective - where that proceeding has not yet progressed to a hearing - where the QBCC's complaint was referred for assessment as a claim under the Queensland Home Warranty Scheme, and that claim was initially disallowed on the basis that the second respondent lodged the claim outside the relevant time limit - where the second respondent sought internal review of the decision under s 86B of the Queensland Building and Construction Commission Act 1991 (Qld) - where the internal reviewer made a new decision to disallow the insurance claim - where the second respondent applied to QCAT for a review of the internal review decision - where the QBCC made a request that QCAT act under s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to invite QBCC to reconsider its internal review decision, QCAT made a direction to that effect and the QBCC informed the applicant of that direction - where the QBCC reconsidered the internal review decision and made a new decision to allow the claim under the insurance scheme - where the QBCC notified the applicant that the second respondent's claim had been accepted, and provided him with a "scope of works" which had been prepared for the second respondent's claim - where the applicant made an application to QCAT for review of the QBCC's decision to issue him with a scope of works - where the applicant then filed an application in this Court for a statutory order of review, seeking judicial review of the QBCC's reconsidered decision - where the QBCC filed an application seeking the summary dismissal of the judicial review application under ss 12 and/or 13 and 48 of the Judicial Review Act 1991 (Qld), and/or r 658 of the Uniform Civil Procedure Rules 1999 (Qld) and/or the inherent jurisdiction of the Court to seek the dismissal of the proceeding - whether the judicial review application should be dismissed
Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd[2007] QSC 333, cited
[12]
Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd v Chief Executive, Department of Environment, Science and Innovation[2025] QSC 132, distinguished
Queensland Building and Construction Commission for the first respondent
[17]
[1] In October 2020, Ms Whitby entered into a contract with Mr Oliver for the installation of a fibreglass pool for just over $15,000.[1] Ms Whitby says the work was defective in some respects. Five years later, the dispute about this pool and its repair continues. On the back of multiple ongoing proceedings in the Queensland Civil and Administrative Tribunal (QCAT), the latest step in the dispute is this judicial review proceeding, commenced by Mr Oliver in July 2025.
[2] The Queensland Building and Construction Commission (QBCC) applies for an order summarily dismissing the proceeding, because it says that the proper place for the determination of these matters is QCAT. I agree. In order to explain why, it is first necessary to understand the procedural history leading up to the judicial review application.
[18]
[3] In November 2022, Ms Whitby made a complaint to the QBCC about what she considers to be defective work in relation to the construction of her pool. After an inspection report was prepared, the QBCC issued a direction to Mr Oliver, in July 2023, to rectify part of the work.[2]
[4] In August 2023, Mr Oliver applied to QCAT for review of that decision (proceeding GAR 556-23).[3] Mr Oliver sought an order that the decision be set aside on the basis that the work was not defective; and, even if it was, any defects were caused by a subsequent flooding event, not by him. A joint expert report, by structural engineers Mr Stanfield and Mr Wheeler,[4] and a report prepared by a building inspector employed by the QBCC (Mr Hiron), have been filed in this proceeding.[5] The proceeding has not yet progressed to a hearing.
[5] Subsequently, in about September 2024, Ms Whitby's complaint was "referred for assessment" as a claim under the Queensland Home Warranty Scheme.[6] Initially, the claim was disallowed, on the basis that Ms Whitby's claim was lodged outside the relevant time limit under the statutory insurance scheme terms of cover (the disallowance decision).[7]
[6] Ms Whitby sought internal review of that decision under s 86B of the Queensland Building and Construction Commission Act 1991 (Qld).[8] On 14 January 2025, the internal reviewer made a new decision to disallow the insurance claim (the internal review decision).[9] The internal review decision was made under s 86C(1) of the QBCC Act, which requires that the internal reviewer "make a new decision ... as if the reviewable decision the subject of the application [for internal review] had not been made".
[7] Ms Whitby then applied, on 31 January 2025, to QCAT for review of the internal review decision (proceeding ).
[19]
[15] The QBCC accepts that the reconsidered decision is a "decision to which the [Judicial Review Act] applies", for the purposes of s 20(1) of that Act.[16]
[16] The grounds identified in Mr Oliver's judicial review application are lengthy, but it is necessary to set them out. They are as follows:
[20]
"1. That pursuant to sections 20(2)(d) & (f) of the Judicial Review Act1991 (QLD) ('JRA'), the Decision erred in law as the Statutory Insurance Scheme does not respond to the claim made by the Second Respondent, as:
[21]
(a) the claim was not made within the time required by section 16(3)(a) of the terms of cover for the statutory insurance scheme contained in schedule 6 of the Queensland Building and Construction Commission Regulation 2018 (QLD) ('the Terms') as it was not made within 3 months after the day that the consumer became aware of the defect; and
(b) the alleged defect is not a 'structural defect', within the wording of the Terms, because it relates to a pool but it is not a defect that adversely affects the health or safety of persons who occupy or use the residence, building or swimming pool;
(c) in construing section 16 of the Terms finding that the complaint was made within time because the aspects of the building works that allegedly mean that they do adversely affect the health or safety of persons who occupy or use the residence, building or swimming pool were or ought reasonably to have been evident, more than 3 months before the Statutory Insurance Claim was made; and
(d) in determining whether the scheme applied the First Respondent did not account for the operation of or make a relevant finding in relation to section 18(b) of the Terms in the context of the review proceeding GAR556-23 filed on 17 August 2023 by the Applicant in the Queensland Civil and Administrative Tribunal being proceedings to review the direction to rectify No 0111037 issued on 20 July 2023 in relation to the same building works.
[22]
That pursuant to section 20(2)(f) of the JRA, the Decision erred in law as the items found (which is not admitted) to adversely affect the health or safety of persons who occupy or use the residence, building or swimming pool were not part of any construction that the Applicant did or was required by contract to do and not caused by any defective building work done by the Applicant.
That pursuant to section 20(2)(a) of the JRA, the Applicant was denied natural justice in relation to the making of the Decision in that:-
[23]
(a) the Applicant was not provided with, and was not afforded the opportunity to address the contents of the of any submissions or 'representations' that the Second Respondent's made to the First respondent as part of the internal review mentioned in paragraph 3(i) of the Decision, nor the emails that EBIS and the First Respondent exchanged on 2 April 2025 as recorded in paragraph 3(1) of the Decision, before the Decision was made;
(b) the Applicant was not provided with, and was not afforded the opportunity to address the 'written representations' that the Second Respondent made to the First Respondent as recorded in paragraph 3(n) of the Decision, before the Decision was made;
(c) the Applicant has not been given a fair opportunity to make submissions on the alleged 'health and safety issues posed by the complaint item 1'; or
(d) in the circumstances set out in paragraph 3(k) to 3(o) of the Decision the QBCC made the decision to apply to QCAT to be issued an invitation to reconsider its decision, having already determined to reconsider the original decision and replace it with the Decision, and all of that occurred without the Applicant having the opportunity to be heard.
[24]
That pursuant to section 20(2)(a) of the JRA, the Applicant was denied natural justice in relation to the making of the Decision in that there has been inordinate delay by the First Respondent in dealing with the Complaint referred to in paragraph 3(c) of the Decision which was made on 15 November 2022, and a determination about whether the works that were the subject of the complaint were was made only in April 2025 or on 12 June 2025, on the basis of the state of the works some 4 years after construction work was completed.
That pursuant to section 20(2)(h) of the JRA, there was no evidence or other material to justify the making of the Decision including the determination at paragraph [26] of it that:-
[25]
(a) the alleged defect is a 'structural defect', within the wording of the Terms, in relation to a pool, because it adversely affects the health or safety of persons who occupy or use the residence, building or swimming pool; and or
(b) the EBIS email that appears at ROD-03 of the Decision does not support a finding that Complaint Item 1 adversely affects the health or safety of persons who occupy or use the residence, building or swimming pool.
[26]
That pursuant to sections 20(2)(e) and 23(a) of the JRA, to the extent that the Decision took account of the Applicant's noncompliance with the Direction to Rectify mentioned in paragraph 3(e) of the Decision it took account of an irrelevant consideration as the Applicant exercised its statutory power of review of the decision to issue that direction to rectify in Queensland Civil and Administrative Tribunal proceeding GAR556-23 filed on 17 August 2023 which proceeding has not yet progressed to a hearing, subject to the outcome of which the Applicant may continue to have an obligation to complete the work.
That pursuant to sections 20(2)(e) and 23(b) of the JRA, to the extent that the Decision took account of the reasoning of the Queensland Civil and Administrative Tribunal in construing the operation of the Statutory Insurance Scheme it failed to take account of a relevant consideration namely the interpretation of the statutory insurance scheme provisions in Jackson v Queensland Building and Construction Commission[2018] QCAT 290.
That pursuant to sections 20(2)(e) and 23(b) of the JRA the Decision failed to take account of a relevant consideration being the passage of time between the original Complaint in paragraph 3(c) of the Decision which was made on 15 November 2022 and the date of the Decision being 12 June 2025 and the impact of the passage of time and other intervening acts and or omissions on the state of the works and whether or not they are attended by any structural defect;
[27]
[17] The relief sought in the judicial review application is an order quashing or setting aside the reconsidered decision (under s 30(1)(a) of the Judicial Review Act 1991 (Qld)), an order suspending the operation of the decision pending the determination of the proceeding (under s 29 of that Act) and declarations as to the substance of the dispute (namely, that Ms Whitby's claim was not made within time and the works are not defective works, within the meaning of the relevant defined terms) (relying on s 30(1)(c) of the Act).
[28]
Mr Oliver's amended application for judicial review
[29]
[18] On 25 August 2025, the QBCC filed its application seeking the summary dismissal of the judicial review application, under s 12 and/or s 13 of the Judicial Review Act.
[19] In response to that application, and shortly before the hearing of it, Mr Oliver sought leave to amend his judicial review application. That was not opposed, and leave was granted at the commencement of the hearing before me.
[20] In the amended application:
[30]
(a) Grounds 4 and 8 are struck out.
(b) The remaining grounds are retained, with some minor amendments. In the case of each remaining ground, in addition to the reliance on various provisions of s 20 of the Judicial Review Act, words to the following effect are added (using ground 1 as an example):
[31]
"... and for those reasons the Decision is also attended by jurisdictional error being an absence of a jurisdictional fact, and or an error of law on the face of the record, and in either case [is] void or is liable to be set aside or declared void including pursuant to the inherent jurisdiction of the Court or section 10 of the Civil Proceedings Act 2011".
[32]
(c) The relief claimed remains the same, save for adding reference to s 43(2) of the Judicial Review Act, the inherent jurisdiction of the Court and s 10 of the Civil Proceedings Act as the source of the power to make the declarations sought, and adding two further declarations:
(i) first, that Ms Whitby is not entitled to cover under the statutory insurance scheme; and
(ii) second, that the reconsidered decision is void and of no effect.
[33]
[21] In response to that, the QBCC sought and was granted leave to amend its application, to rely also on s 48 of the Judicial Review Act, and/or r 658 of the Uniform Civil Procedure Rules 1999 (Qld) and/or the inherent jurisdiction of the Court to seek the dismissal of the proceeding.
[34]
Dismissal of judicial review application - relevant provisions
[35]
[22] Section 12 of the Judicial Review Act confers a discretion on the Court to dismiss a judicial review application:
[36]
"12 When application for statutory order of review may be dismissed
(a) the applicant has sought a review of the matter by the court or another court, otherwise than under this Act; or
(b) adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the court or another court."[17]
[39]
[23] Section 13 is couched in more imperative terms:
[40]
"13 When application for statutory order of review must be dismissed
(a) an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter; and
(b) provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person;
[43]
the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so."[18]
[44]
[24] Both sections operate "despite section 10". That section provides that "the rights conferred by this Act on a person to make an application to the court in relation to a reviewable matter are in addition to any other rights that the person has to seek a review of the matter (whether by the court, another court or a tribunal, authority or person)".
[25] Both sections expressly do not limit s 48, which confers a general power on the Court to stay or dismiss an application for judicial review on various bases, including if the Court considers that "it would be inappropriate... for proceedings in relation to the application or claim to be continued".
[26] Both sections refer to the availability of a review of the matter by another court (s 12) or another court or a tribunal (s 13). "Review" is defined in s 3 of the Judicial Review Act. The kind of review undertaken by QCAT satisfies the meaning of "review" in this section.[19]
[27] There is a question whether s 12 applies, where the entitlement to another avenue of review is review by a tribunal, QCAT. The QBCC submits that s 12 does apply, because QCAT has been held to be a "court of the State", for the purposes of Chapter III of the Commonwealth . Mr Oliver did not address this point. I have not found it necessary to finally decide this question, because clearly applies and is the appropriate provision under which to determine the QBCC's application.
[45]
An application under s 20 made to the Court in relation to a reviewable matter
[46]
[28] Section 13(a) is satisfied because Mr Oliver has made an application under s 20 of the Judicial Review Act in relation to a reviewable matter (namely, the reconsidered decision). Each of the remaining seven grounds in the amended application relies on one or more of the provisions of s 20 to challenge the reconsidered decision.
[29] By his amended application, Mr Oliver purports to also raise the same grounds for review by relying on the inherent jurisdiction of the Court or section 10 of the Civil Proceedings Act. Section 10(2) provides that the Supreme Court "may hear an application for a declaratory order only and may make a declaratory order without granting any relief as a result of making the order".
[30] Although the amended application refers to the inherent jurisdiction of the Court, and s 10 of the Civil Proceedings Act, having regard to the written submissions of counsel for Mr Oliver (at [22]-[23] and [64]-[68]) what Mr Oliver actually purports to do, by the amendments, is to seek relief in the nature of certiorari. That calls in aid of the -, prerogative orders and injunctions), not the "inherent jurisdiction of the Court" or of the .
[47]
Mr Oliver is entitled to seek review of the reconsidered decision in QCAT
[48]
[35] For the purposes of s 13(b) of the Judicial Review Act, provision is made by another law - namely, s 23 of the QCAT Act - under which Mr Oliver is entitled to seek review of the reconsidered decision.
[36] Section 23 of the QCAT Act provides:
[49]
"23 Inviting decision-maker to reconsider decision
[50]
(1) At any stage of a proceeding for the review of a reviewable decision, the tribunal may invite the decision-maker for the decision to reconsider the decision.
[51]
(2) If the decision-maker for a reviewable decision is invited to reconsider the decision under subsection (1), the decision-maker -
[52]
(a) has 28 days to reconsider the decision; and
(b) may -
(i) confirm the decision; or
(ii) amend the decision; or
(iii) set aside the decision and substitute a new decision.
[53]
(3) If, under subsection (2), the decision-maker for a reviewable decision confirms the decision, the proceeding for the review of the decision must continue.
[54]
(4) If, under subsection (2), the decision-maker for a reviewable decision (first decision) amends the decision or sets the decision aside and substitutes another decision for it -
[55]
(a) the first decision as amended or the decision substituted for the first decision is taken to be the reviewable decision for this Act and the enabling Act; and
(b) the review must continue for the reviewable decision unless the applicant for the review withdraws the application for review; and
(c) if a person other than the applicant applies to the tribunal to review the reviewable decision - the tribunal may hear and decide each application for the review of the reviewable decision."[23]
[56]
[37] As already noted, after being invited to reconsider the disallowance decision, the QBCC set that decision aside and made another decision to allow the claim (the reconsidered decision). For the purposes of s 23(4)(a), the reconsidered decision "is taken to be the reviewable decision".
[38] Ms Whitby withdrew her application for review (s 23(4)(b)). However, s 23(4)(c) expressly contemplates that "a person other than the applicant" [Mr Oliver] may apply to the tribunal to review the reviewable decision [the reconsidered decision].
[39] There is somewhat of an anomaly in the legislation, because a decision to allow a claim under the statutory insurance scheme is not a "reviewable decision" within the meaning of s 86 of the QBCC Act (cf s 86(1)(h), which provides that a decision to disallow such a claim is a reviewable decision). Section 86 is within part 7, division 3, subdivision 1 (internal review) of the QBCC Act. Following an internal review, however, the "internal review decision" (whether it was a decision to allow or disallow the claim) is a "reviewable decision" for the purposes of external review (subdivision 2, s 86E).[24] And it is clear from s 23 of the QCAT Act that a decision made following an invitation from QCAT to reconsider the decision under review is "taken to be the reviewable decision" for the QCAT Act. Accordingly, under this provision, a decision to allow a claim is reviewable by QCAT.
[40] Mr Oliver submits that it is wrong to say that he could have applied for review of the reconsidered decision by QCAT because:
[57]
(a) he was "always out of time to be able to do so";
(b) he cannot now apply to be joined to Ms Whitby's review proceeding (because she has withdrawn it); and
(c) the reconsidered decision was made under the QCAT Act.
[58]
[41] Mr Oliver's arguments in this respect are misconceived.
[42] Mr Oliver's argument that "he was always out of time" is based upon a misunderstanding of the meaning of s 23(4)(a). Mr Oliver submits the effect of that section is that the reconsidered decision is taken to have been made on 14 January 2025 (the date of the internal review decision). That is why he says he was "always out of time". That is not what the section says. Section 23(4)(a) provides that the reconsidered decision "is taken to be" the reviewable decision; not that it is taken to have been made at the time of the earlier decision.
[43] The reconsidered decision was made on 12 June 2025. Mr Oliver received it the following day, on 13 June 2025. Under s 33 of the QCAT Act, Mr Oliver had 28 days from that date to file an application for review.
[44] That time has now expired, because of Mr Oliver's election to proceed to bring an application in this Court. However, QCAT may extend the time within which to make the application (s 61 of the QCAT Act). The QBCC says it would not oppose such an application (and also says that Mr Oliver would have a good explanation for why he did not make the application within time - because he commenced this proceeding - and that there is no prejudice because the delay has not been long).
[45] There is no need for Mr Oliver to "join" the previous proceeding (since withdrawn by Ms Whitby). What s 23(4) contemplates is an additional, or new application for review (by "a person other than the [original] applicant").
[46] There is no merit to the further argument by Mr Oliver that the reconsidered decision was a decision made under the QCAT Act, rather than the QBCC Act, and for that reason QCAT does not have jurisdiction to review the decision (referring to s 17(1) of the QCAT Act). The reconsidered decision was not made under the QCAT Act. It was made under the QBCC Act,[25] following a direction by QCAT given under s 23 inviting it to do so.
[47] Mr Oliver also submits that s 23(4)(c) of the QCAT Act only provides that QCAT "may" hear and decide an application; suggesting that means he does not have any entitlement to a review. This argument is also rejected. The word "may" in this context is to be read as obligatory (or empowering), rather than discretionary. The word "may" is not used in s 23(4)(c) to give a discretion, but to confer a power on QCAT; a power which "must be exercised if the circumstances are such as to call for its exercise".
[59]
[49] Mr Oliver submits it is not in the interests of justice to dismiss his application because:
[60]
(a) his application is not limited to an application under s 20 of the Judicial Review Act, and (s 12 and) s 13 does not empower the Court to dismiss his application in so far as it seeks relief in the inherent jurisdiction of the Court or under s 10 of the Civil Proceedings Act;
(b) there would, therefore, be no utility in dismissing the application, because the substance of the matter will proceed in this Court in any event (in terms of the "non-JRA relief");
(c) separately, in terms of the broader power to dismiss under s 48 of the Judicial Review Act, the "putative availability of QCAT as an alternative forum is not a sufficient basis to dismiss" his application;
(d) the review available in QCAT is inadequate (because Mr Oliver was always out of time, and the reconsidered decision was made under the QCAT Act - arguments which have been rejected);
(e) there are substantial delays in QCAT proceedings, and it is preferable for the matter to be dealt with in the Supreme Court; and
(f) the QBCC's summary dismissal application was not brought promptly.
[61]
[50] To the extent Mr Oliver's application is an application under s 20 of the Judicial Review Act, I am satisfied it is in the interests of justice to dismiss the application. Mr Oliver has an entitlement to seek review of the reconsidered decision by QCAT, and that is the appropriate forum in which the issues he seeks to ventilate should be dealt with, preferably in conjunction with the other proceedings which are ongoing in QCAT in relation to this ill-fated pool construction dispute.
[51] Despite the protestations by counsel for Mr Oliver that what is involved in the proceeding before this Court is a narrow legal point (the absence of a "jurisdictional fact"), as can be seen from paragraph [16] above, the grounds sought to be relied upon are broad and in my respectful view mistakenly raise the merits of the reconsidered decision, a matter which would be outside the scope of an application under s 20 or s 43 of the Judicial Review Act. The "jurisdictional fact" which Mr Oliver says "does not exist" concerns the time at which the claimant (Ms Whitby) became aware, or ought reasonably to have become aware, of the structural defect within the pool constr[28]tion work,28 and the characterisation of the defective work as a "structural defect" as defined in s 2 of the terms of cover for the statutory insurance scheme (in particular, a defect in the work that adversely affects the health or safety of persons who occupy or us[29]the pool).29 Those issues involve factual matters.
[52] Further, it would be most unlikely that the outcome of the proceeding if it were allowed to remain in this Court would be declarations as to the substantive rights of Mr Oliver or Ms Whitby. It is far more likely that, if successful, the Court would set aside the reconsidered decision and remit the matter to the QBCC for further consideration. The scope of the (merits) review available in QCAT is better suited to properly resolving this issue once and for all.
[62]
[56] For those reasons, I will order that the amended originating application, and therefore this proceeding, be dismissed. I will hear from the parties in relation to costs.
[63]
[1] A copy of the contract is an exhibit to the affidavit of Oliver (CFI 2), at p 130 and following.
[64]
[2] Affidavit of Mackness (CFI 10), part of SM12, pp 84-86.
[65]
[4] Oliver, from p 178 and from p 410 (report dated 9 August 2024).
[66]
[5] Oliver, from p 240 (report dated 14 July 2023).
[21]Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd[2007] QSC 333 at [37]- [38].
[73]
[22] See Blundell v Queensland Building and Construction Commission[2018] QSC 58 at [27].
[74]
[24] See Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd[2023] QCATA 71 at [19].
[75]
[25] See s 20J(1)(g) of the QBCC Act (which provides that the Commissioner is responsible for assessing and approving payment of insurance claims) and s 115A of the QBCC Act, which provides for the Commissioner to delegate their functions to an officer of the Commission.
[8] In April 2025, the QBCC, as the respondent to that QCAT proceeding, made a request for QCAT to act under s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), and invite the QBCC, as the decision-maker, to reconsider its internal review decision.[11] QCAT proceeded to do that, by direction made on 20 May 2025.[12]
[9] Mr Oliver was not a party to proceeding GAR 111-25, as it was a matter between Ms Whitby and the QBCC. However, he was informed, on 20 May 2025, by the QBCC Legal Branch, of the fact that the direction to reconsider had been made, and was invited to make submissions if he wished to.[13] Mr Oliver did not provide any submissions.
[10] The QBCC reconsidered the internal review decision and, on 12 June 2025 made a (new) decision to set that decision aside, and make a decision to allow the claim under the insurance scheme (the reconsidered decision).[14]
[11] That addressed Ms Whitby's concerns; and so she applied, on 1 July 2025, to QCAT for leave to withdraw her application for review (GAR 111-25).
[12] In the meantime, on 16 June 2025, the QBCC notified Mr Oliver that Ms Whitby's claim had been accepted, and provided him with the "scope of works" which had been prepared for her claim. This notice informed Mr Oliver that the QBCC would obtain quotes from licensed contractors to carry out this work, and that the QBCC may then recover the amount it ultimately paid for the work from Mr Oliver.[15]
[13] On 25 June 2025, Mr Oliver made an application to QCAT for review of the QBCC's decision "to issue [him] with a Scope of Works" (proceeding GAR 388-25).
[14] On 11 July 2025, Mr Oliver filed an application for a statutory order of review which commenced the current proceeding in this Court, seeking judicial review of the QBCC's reconsidered decision.
That pursuant to section 20(2)(f) of the JRA the Decision was otherwise contrary to law because the Decision misconstrues and or misapplies the Terms and to the extent the Decision relied on the reasoning in King and McDonald v Queensland Building and Construction Commission[2024] QCAT 138, it misconstrued or misapplied that reasoning; and or in the alternative because the construction of the Statutory Insurance Scheme in King was wrong."
[31] There is no scope for, or need for, any exercise of inherent power in this context - the inherent supervisory jurisdiction of the Court is regulated by parts 3 and 5 of the Judicial Review Act.[21]
[32] The amendments do not add anything to the relief which has been sought, and, in any event, would more properly be couched in terms of an application for review under s 43 of the Judicial Review Act.
[33] The only apparent reason for relying on this so-called "non-JRA" relief, and (it would seem) for expressing it by reference to inherent power and s 10 of the Civil Proceedings Act (rather than s 43 of the Judicial Review Act) is to avoid the operation of s 13 of the Judicial Review Act. It otherwise is of no practical purpose.[22]
[34] This is not a case like Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd v Chief Executive, Department of Environment, Science and Innovation[2025] QSC 132, or Hunt v Gerrard[2025] QCA 126, in which there was an argument (ultimately accepted) that part 3 did not apply, because, there was no "decision to which this Act applies" for the purposes of s 20. That is not the point taken against Mr Oliver. The point taken against Mr Oliver, underpinning this summary dismissal application, is that he has an entitlement to seek review of the reconsidered decision in QCAT, QCAT is the tribunal in which disputes of this kind ought to be determined, and it is appropriate, in the interests of justice, for Mr Oliver to seek review of the decision, on its merits, in QCAT, rather than invoking this Court's jurisdiction.
[48] Mr Oliver is entitled to seek review of the reconsidered decision by QCAT. He would need to apply for an extension of time to file that application, but as noted the QBCC will not oppose that application. Accordingly, s 13(b) of the Judicial Review Act is satisfied.
[53] In so far as the "non-JRA" relief is concerned, I am also satisfied it is appropriate to dismiss the application under s 13 (to the extent the amendments in substance add an application under s 43 of the Judicial Review Act), or alternatively s 48 of the Judicial Review Act.[31] The amendments purporting to add "non-JRA" relief are, in my respectful view, of no practical purpose and are an abuse of the process of this Court, for they can only be said to have been added in order to avoid the operation of s 13 of the Judicial Review Act. That point is underscored by Mr Oliver's submission that there would be no utility to dismissing the application under s 20 of the Judicial Review Act, because the non-JRA relief would remain, requiring determination of the same issues based on the same facts, leading to a "multiplicity of actions".
[54] That there have been, and are renowned to be, delays affecting proceedings in QCAT, does not provide an adequate reason not to dismiss this application, when there are overwhelming reasons why it is in the interests of justice for the subject matter of this application to be dealt with in QCAT.
[55] Lastly, I do not accept that there has been any improper delay on the part of the QBCC in bringing this application.[32] The proceeding was commenced on 11 July 2025. The first directions hearing was on 5 August 2025. Shortly prior to that, the QBCC had flagged an application for dismissal. Orders were made on 5 August 2025 providing for that to be done by 25 August 2025, which was complied with.