Vytla v Queensland Building and Construction Commission [2024] QCAT 346

• [4] The applicant made a complaint to the QBCC, listing 185 allegedly defective items in the course of the construction of the applicant's new home. The QBCC made a decision on 24 November 2021 to give a Direction to Rectify (DTR) for 20 items but not for the others. The applicant applied for internal review of the decision not to give a DTR for the other items.
• [5] On 17 February 2022 the QBCC gave an internal review decision to issue a DTR in respect of some of those items.
• [6] On 8 March 2022 the QBCC issued the builder with a DTR to give effect to that internal review decision, which also encompassed defective work the subject of the original decision on 24 November 2021.
• [7] From 11 March 2022 to 16 June 2022 the QBCC exchanged numerous emails with the applicant and the builder regarding access to the property to enable the builder to comply with the DTR.
• [8] On 20 June 2022 the QBCC notified the applicant by letter that it intended to finalise and close its file as the builder had been denied access to the property (file closure letter).
• [9] On 19 July 2022 the applicant applied for internal review of the 'decision' of 20 June 2022, which the applicant regarded as, in effect, a decision not to issue a DTR. Discussions followed between the applicant and the QBCC which sought to clarify the subject of the internal review.
• [10] On 17 August 2022 the QBCC notified the applicant and the builder that:

(a) on 20 June 2022, the QBCC had decided that building work undertaken at the direction of the QBCC was of a satisfactory standard;

(b) on 20 July 2022, the applicant had applied for an internal review 'decision';

(c) the internal review was required to be completed within 28 days or a longer period agreed to by the applicant and that, if no decision is made in that time, a decision is deemed to have been made that is the same as the original decision;

(d) as no decision was made by 17 August 2022, the QBCC's decision was taken to be the same as the original 'decision' and the internal review case was finalised.

• [11] On 9 September 2022, the applicant filed an application to review the internal review decision of 17 August 2022.

• [12] The QBCC have applied to strike out the review proceeding pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
• [13] The QBCC submitted:

(a) The internal review decision is a reviewable decision, irrespective of whether it was validly made: Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71;

(b) Standing in the shoes of the original decision-maker, the Tribunal still needs to satisfy itself that the decision the subject of the internal review application was a 'reviewable decision', particularly where the IR decision was deemed to be the same as the original decision;

(c) The applicant sought to review the QBCC's 'decision' of 20 June 2022 which was a file closure letter.

(d) The file closure letter was not, as the applicant alleges, a decision not to direct a contractor to rectify defective building work (noting the QBCC had already issued the original DTR and the internal review DTR to the builder).

(e) Similarly, the file closure letter did not state that works undertaken by the contractor at the direction of the QBCC were of a satisfactory standard. The QBCC's IR decision mistakenly said that the QBCC made such a decision on 20 June 2022.

(f) Accordingly, the file closure letter was not a reviewable decision within the meaning of subdivision 1 as it did not give notice of one of the decisions identified in s 86(1) of the QBCC Act. Consequently, the applicant was not entitled to lodge the IR application and seek to have the file closure letter internally reviewed under s 86A.

(g) Further or alternatively, to the extent the Tribunal considers the file closure letter can be taken to be a decision that building work undertaken at the direction of the QBCC was or was not of a satisfactory standard, in circumstances where no physical works were undertaken by the builder during the rectification period stipulated in the IR DTR, there can still be no 'reviewable decision' for the purposes of s 86(1)(f) of the QBCC Act: Dew v Queensland Building Services Authority [2010] QCAT 687 cf CTP Plumbing and Maintenance Pty Ltd v QBCC [2020] QCAT 307.

(h) The review application should be dismissed or struck out on the basis it is misconceived and/or lacking in substance, there being no underlying 'reviewable decision' to be reconsidered.

(a) The case should not be dismissed.

(b) Their matter was unjustly closed by the QBCC.

(c) Their decision to 'deny access' was not a blanket refusal to co-operate with the builder but based on the builder's intrusive actions, discourteous behaviour and inappropriate comments to the applicant's wife.

(d) The QBCC be directed to address and rectify all defects.

• [15] This review is a review of the internal review decision of 17 August 2022 confirming the original 'decision' on 20 June 2022 that building work undertaken at the direction of the QBCC is of a satisfactory standard.
• [16] It is clear that there was confusion regarding the status of various steps taken by the QBCC in progressing or not progressing this matter.
• [17] On 20 June 2022 the QBCC sent a letter to the applicant in the following terms:

Dear Mr Vytla

I understand access has not been provided for the required work to be carried out at ...

OUTCOME: The QBCC cannot take any further action in this matter.

This case has been finalised.

WHY: The QBCC's ability to assist is subject to the contractor being given reasonable access, during work hours, to carry out the rectification work.

This access was not granted.

The Queensland Building and Construction Commission Act 1991 only allows the QBCC to direct a contractor if it is fair to do so.

It is not fair for the QBCC to take action against a contractor when access to the site to carry out the work has not been provided.

• [18] On 15 July 2022 the applicant (by his legal representative) applied for internal review of the 'decision' of 20 June 2022, selecting the following decisions as those he wished to internally review:
  • Decision to issue a direction to rectify defective building work;
  • Decision not to issue a direction to rectify.
• [19] On 29 July 2022 the QBCC wrote to the applicant seeking clarity as to the decision sought to be reviewed. The letter stated that the QBCC had made a decision to issue a DTR and on 22 February 2022 an internal review decision was made to issue a DTR which 'remains'. Further, that the only decision that can be reviewed is "a decision that building work undertaken at the direction of the Commission is or is not of a satisfactory standard". Further, that that decision is only relevant if building works were undertaken and, if no works have been undertaken then "unfortunately it's not reviewable".
• [20] On 9 August 2022 the QBCC again wrote to the applicant stating that as the timeframe of the DTR had passed, the QBCC could not go 'back in time' and re-issue a DTR. As no work was undertaken, the QBCC would be unable to conclude that rectification work is satisfactory. If the applicant wished for a reviewable decision to be made in respect of whether the works were satisfactorily rectified or not, this could be facilitated however it would not provide the outcome sought, which was to have the builder rectify the defects.
• [21] On 17 August 2022 a deemed internal review decision was made that building work undertaken at the direction of the QBCC was of a satisfactory standard. The original decision was stated to be the decision made by Mr Colin Rendall on 20 June 2022 that building work undertaken at the direction of the QBCC is of a satisfactory standard.
• [22] Although it is doubtful that an original decision of that nature was made, the internal review decision, whether rightly or wrongly, confirmed that decision. The internal review decision that work is of a satisfactory standard is now the subject of external review in the Tribunal.
• [23] An internal review decision is a 'reviewable decision' irrespective of whether the original decision was 'reviewable': Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71.
• [24] The Tribunal, on review, is not concerned with the legality or correctness of the decision under review. The Tribunal approaches the matter afresh on the evidence before the Tribunal, with a view to arriving at the 'correct and preferable' decision.
• [25] The QBCC submitted that the Tribunal needs to be satisfied that the original decision was a "reviewable decision", particularly where the internal reviewer did not decide the application within the required period.
• [26] Section 86C(3) provides that if the internal review is not decided within the required period the internal review is taken to have made an internal review decision that is the same as the "reviewable decision". "Reviewable decision" is defined by reference to s 86: s 85A.
• [27] The QBCC accepted the application for internal review and categorised the decision under review as a decision that building work undertaken at the direction of the commission was of a satisfactory standard which is a reviewable decision under s 86(1)(f).
• [28] I do not accept the submissions of the QBCC to the effect that the Tribunal on review needs to be satisfied that the original decision was a 'reviewable decision'. I agree that this would be relevant if the Tribunal was reviewing the original decision, but it is not. The Tribunal is reviewing the internal review decision. The internal review decision is itself a "reviewable decision" within the meaning of s 86E(b).
• [29] Section 86E defines "reviewable decision" for the purposes of subdivision 2 (external review) to include an internal review decision within the meaning of subdivision 1. Subdivision 1 (internal review) defines internal review decision by reference to s 86C(1): s 85A.
• [30] It is clear from s 86C that an internal review decision is made as if the reviewable decision the subject of the application had not been made. However, if the internal reviewer does not decide the application within the required period, the internal reviewer is taken to have made an internal review decision that is the same as the reviewable decision. By s 86E(a), once a decision is the subject of an internal review, it is no longer externally reviewable in the Tribunal. The relevant decision is the internal review decision.
• [31] It follows, in my view, that whether the original decision was or was not properly categorised as a reviewable decision is not relevant. The decision was categorised as a reviewable decision and was the subject of an internal review. The internal review decision is a reviewable decision and the Tribunal has jurisdiction to review it. It follows that the application to strike out should not be allowed on the basis the Tribunal lacks jurisdiction. That, however, is not the end of the matter.
• [32] The issue before the Tribunal on external review is whether the decision that work was satisfactorily rectified is the correct and preferable decision in circumstances where no work the subject of the direction was undertaken. The Tribunal, in determining that question can make the orders set out in s 24(1) of the QCAT Act.
• [33] In this case, the options open to the Tribunal are to make a decision that the work was or was not of a satisfactory standard; to set aside the decision and return the matter for reconsideration to the decision-maker; or to make a substituted decision that the issue of whether or not work was satisfactory does not arise.
• [34] The parties do not dispute that no rectification work was undertaken. It is settled that, in circumstances where no rectification work was ever commenced that the question of whether work undertaken at the direction of the Commission is or is not satisfactory, simply does not arise.[1] I agree with that position.
• [35] In considering whether to strike out a proceeding pursuant to s 47 of the QCAT Act, I am satisfied I have the requisite material and have received the necessary assistance from the parties to make a definite and certain conclusion.[2]
• [36] The principles in considering whether to exercise the discretion to strike out a proceeding were considered by Chief Justice Barwick in General Industries Inc v Commissioner for Railways.[3] His Honour said:

Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. (at p130)

• [37] The Tribunal is limited in a review of this decision to asking whether that decision was the correct and preferable one. It is not an opportunity for the Tribunal to make a completely different type of decision unrelated to the one under review, for example, that a decision to issue a direction to rectify be made instead.
• [38] In this matter, the correct and preferable decision is simply to set aside the decision. No other more favourable decision, in my view, is open in this review to the applicants.
• [39] It follows that the review proceeding is misconceived and lacking in substance and the application to strike out should succeed. I order accordingly.

[1] Dew v Queensland Building Services Authority [2010] QCAT 687.

[2] General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 128-129.

[3] [1964] HCA 69; (1964) 112 CLR 125 at [10].