Carlson v Queensland Building and Construction Commission [2025] QCAT 557

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Carlson v Queensland Building and Construction Commission [2025] QCAT 557 PARTIES: RICHARD CARLSON (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR450-25 MATTER TYPE: General administrative review matters DECISION DELIVERED ON: 7 November 2025 REASONS DELIVERED ON: 7 January 2026 HEARD AT: Brisbane DECISION OF: Member Lee Benjamin ORDERS: The application for miscellaneous matters (strike- out/dismissal) filed 17 September 2025 is dismissed. The matter is listed for a Compulsory Conference on a date and time to be advised. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Respondent applies to strike out proceeding – whether Tribunal has jurisdiction – whether decision under review is ‘reviewable’ Queensland Building and Construction Commission Act 1991 (Qld) s 86, s 86E, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 18, s 19, s 47 JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502 Queensland Building and Construction Commission v Russell [2015] QCATA 57 Simons & Ors v Dowd Lawyers Pty Ltd [2020] QCAT 348 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 6 -- 2 Applicant: Self-represented Respondent: Queensland Building & Construction Commission, In- house legal REASONS FOR DECISION What is this decision about? [1] The Queensland Building and Construction Commission (Commission) wants to strike out Mr Richard Carlson’s application in the Tribunal. Mr Carlson seeks to review a Commission decision, contained in a letter about an early dispute resolution (EDR) process, not to issue a direction to rectify and/or complete certain building works, among other things. The Commission contends that the decision is not reviewable. The question for the Tribunal is whether its jurisdiction is enlivened. In my view, the answer to this question is yes. The Commission’s strike out application must be dismissed. What happened? [2] On 26 April 2025, Mr Carlson lodged a Residential and Commercial Construction Work complaint (Complaint) with the Commission in respect of rectification works (more than 30 complaint items) undertaken by Mr Paul (Publius) Borg, a contractor, at Mr Carlson’s property. [3] Over May 2025, Mr Rodney Turkington, the Commission’s representative, engaged in an EDR process with Mr Carlson and Mr Borg regarding Mr Borg’s work, in an attempt to resolve the parties’ concerns. [4] On 20 June 2025, the Commission issued an EDR letter which stated, among other things, that: (a) no agreement had been reached between Mr Carlson and Mr Borg about the works at the property; (b) the Commission would not be issuing a direction to rectify to Mr Borg in respect of the Complaint items; and (c) the Commission did not have the power to assist any further in the dispute regarding the agreement between the parties. [5] On 25 June 2025, Mr Carlson contacted the Commission and was advised an outcome had been reached and he would receive the EDR letter. The Commission advised Mr Carlson that he could proceed to the Tribunal if required. [6] On 11 July 2025, Mr Carlson filed an application in the Tribunal seeking to review the Commission’s decision. [7] On 17 September 2025, the Commission filed an application for miscellaneous matters seeking orders dismissing the proceeding pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The Commission’s submissions, included with their application, contend that the decision under review in the proceeding is not reviewable. -- 2 of 6 -- 3 [8] On 29 September 2025, I directed that Mr Carlson file submissions (by 21 October 2025) in response to the Commission’s strike out application. Mr Carlson did not file submissions. What question needs to be answered? [9] The question before me is whether there is a decision, that enlivens the Tribunal’s jurisdiction to review it. What is the answer to the question? [10] In my view (and I find), the Tribunal’s jurisdiction is enlivened. Why is this the answer to the question? Legal framework [11] As a starting point. it seems apt to address the necessary preconditions to establish the Tribunal’s jurisdiction in the review proceeding. [12] Section 17(1) of the QCAT Act provides: (1) The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act. [13] Section 18(1) of the QCAT Act states: (1) The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision. [14] Under s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act): (1) The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision. [15] For the purposes of s 87 of the QBCC Act, a reviewable decision means: (a) a reviewable decision within the meaning of subdivision 1, other than a decision that was the subject of an internal review under subdivision 1; or (b) an internal review decision within the meaning of subdivision 1.1 [16] Section 86 of the QBCC Act contains the list of reviewable decisions of the Commission. Relevantly, to s 86(1)(e) of the QBCC Act provides: (e) a decision to give a direction to rectify or remedy or not to give the direction; is a reviewable decision. [17] In exercising the review jurisdiction, s 19 of the QCAT Act states: In exercising its review jurisdiction, the tribunal - 1 QBCC Act, s 86E. -- 3 of 6 -- 4 (a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and (b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and (c) has all the functions of the decision-maker for the reviewable decision being reviewed. [18] Section 47 of the QCAT Act permits the Tribunal to dismiss or strike out an application if it is frivolous, vexatious or misconceived, lacking in substance, or otherwise an abuse of process.2 In Simons & Ors v Dowd Lawyers Pty Ltd,3 Judicial Member, the Hon Peter Lyons QC, discussed s 47 of the QCAT Act, stating that: …the expressions ‘frivolous, vexatious or misconceived’ suggest a high threshold must be crossed before the Tribunal can exercise its powers under this section. [19] The Hon Peter Lyons QC then drew comparisons between this provision and that of rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), in which it has been relevantly established that it is a: well established principle that issues raised in proceedings will be determined summarily only in the clearest of cases.4 What is the Commission’s position? [20] The Commission’s key submissions may be summarised as follows: (a) The decision under review in the proceeding is a part of their EDR process; (b) An EDR decision is not a reviewable decision for the purposes of the QBCC Act; and (c) Accordingly, the Tribunal does not have jurisdiction to hear the matter. [21] However, the Commission also concedes that the EDR letter states: (a) As part of the EDR process, the Commission would not be issuing a direction to rectify to the Contractor; and (b) Contained external review rights.5 [22] The Commission contends that references to external review rights in their EDR letter were included in error. Why is the Commission’s position legally incorrect in this case? [23] I disagree with the Commission’s key contention. In my view, the Tribunal’s jurisdiction is enlivened. As noted already, the necessary preconditions to establish 2 QCAT Act, s 47(1)(a)-(c). 3 [2020] QCAT 348. 4 Simons & Ors v Dowd Lawyers Pty Ltd [2020] QCAT 348 per Hon Peter Lyons QC referring to McMurdo P in Deputy Commissioner of Taxation v Salcedo [2005] QCA 227. 5 Application for miscellaneous matters filed 17 September 2025, Annexure A at paragraph 39. -- 4 of 6 -- 5 the Tribunal’s jurisdiction in this review proceeding are found in s 87 of the QBCC Act: (1) The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision. [24] As the Commission contends, the element not satisfied under this provision is the requirement for a “reviewable decision”. However, it is important that I note that s 86 of the QBCC Act specifies that the following is a reviewable decision: (e) a decision to give a direction to rectify or remedy or not to give the direction; … [25] Earlier in these reasons, I noted the Commission’s seeming concession that the decision: Identified that, as part of the EDR process, the Commission would not be issuing a direction to rectify to the Contractor…6 [26] Respectfully, the manner in which the Commission have paraphrased this excerpt distorts the truth. While they may have intended the aforementioned phrase to be in the EDR letter, the actual words are: The QBCC will not be issuing a Direction to Rectify and/or Complete for any of the complaint items.7 [27] I struggle to find any difference between the reviewable decision provided under s 86(1)(e) of the QBCC Act and the apparent decision included in the EDR letter. I do not consider that the form of communication (an EDR letter) affects the substance of what is being imparted in the same, which appears to be a decision. [28] As to whether any error in issuing the decision on the Commission’s part removes the Tribunal’s jurisdiction, I draw the parties’ attention to the decisions in JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority8 and Queensland Building and Construction Commission v Russell.9 [29] In JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority,10 former Deputy President of QCAT, Horneman-Wren J, stated: Where, in contrast, the Tribunal is exercising review jurisdiction, the only matter, the only jurisdictional fact, of which the Tribunal need satisfy itself is the existence of a decision of a kind the Tribunal has power to review. Whether there is such a decision which falls within the Tribunal‘s review jurisdiction is governed by the relevant statutes which confer the review jurisdiction on the Tribunal. It is a construction of those statutes which determines whether it is necessary that there be a valid decision made in a lawful exercise of the decision making power in order for the decision to be reviewable. 6 Application for miscellaneous matters filed 17 September 2025, Annexure A at paragraph 39. 7 Ibid, SUB-1. 8 [2013] QCAT 502. 9 [2015] QCATA 57. 10 [2013] QCAT 502. -- 5 of 6 -- 6 [30] In Queensland Building and Construction Commission v Russell,11 Senior Member O’Callaghan and Member Paratz stated, “The fact that the decision may have been wrongly made does not remove the jurisdiction of the Tribunal to review it.” [31] Accordingly, I find that the decision under review is a reviewable decision pursuant to s 86(1)(e) of the QBCC Act, and as such, the Tribunal has jurisdiction to hear the matter. Next steps [32] Notwithstanding my finding on jurisdiction, the Commission has highlighted relevant conduct on whether the application to review a decision is misconceived. This may be the case as Mr Carlson has explicitly expressed in his application to review a decision that he is “not disputing the Commission and is looking for [a] refund of money from [the] contractor.” Further, I note that Mr Carlson has a related building dispute against Mr Borg in the Tribunal (BDL313-25). However, Mr Carlson’s intentions with the proceeding are not sufficiently clear, and ought to be clarified in a Compulsory Conference. A Compulsory Conference should provide Mr Carlson with a comprehensive understanding of the dispute and chart a course to progress the matter, if that is appropriate. Orders [33] My orders are as follows: (a) The application for miscellaneous matters (strike-out/dismissal) filed 17 September 2025 is dismissed. (b) The matter is listed for a Compulsory Conference on a date and time to be advised. 11 [2015] QCATA 57. -- 6 of 6 --