Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission & Anor [2024] QCATA 109

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission & Anor [2024] QCATA 109 PARTIES: BODY CORPORATE FOR PARKSIDE BULIMBA CTS46539 (applicant/appellant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) DE LUCA CORPORATION PTY LTD (respondent) APPLICATION NO/S: APL144-23 ORIGINATING APPLICATION NO/S: GAR609-21 MATTER TYPE: Appeals DELIVERED ON: 9 October 2024 HEARING DATE: 23 July 2024 HEARD AT: Brisbane DECISION OF: Senior Member Fitzpatrick ORDERS: The decision made on 26 April 2023 is set aside. The proceeding is remitted to a Member constituted to hear the substantive application for review of the decision made on 7 October 2021. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – PURPOSIVE APPROACH – GENERAL PRINCIPLES -- 1 of 15 -- 2 LIMITATION OF ACTIONS – GENERAL MATTERS – STATUTES OF LIMITATIONS GENERALLY – GENERALLY – where Queensland Building and Construction Commission is barred by statute from issuing a direction to rectify after six years and six months from date of practical completion without an extension of time – where a decision and internal review decision were both made within the six years and six months – where an external review application was made outside of the six years and six months but within the prescribed twenty-eight days from decision – whether there is a conflict of laws – whether there is an anterior decision not subject to the time limitation – whether the tribunal has jurisdiction to hear a matter outside of the time limit Queensland Building and Construction Commission Act 1991 (Qld) s 86D s 86C s 86 s 72A Queensland Building and Construction Commission Regulation 2018 (Qld) s 53A Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24 s 47 s 146 Body Corporate for Parkside Bulimba CTS 46539 v Queensland Building and Construction Commission and De Luca Corporation Pty Ltd [2023] QCAT 139 Clark v Queensland Building and Construction Commission & Anor [2024] QCAT 329 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Domestic Maintenance Pty Ltd v Queensland Building Services Authority [2012] QCATA 106 Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT 528 Jorg & Anor v Queensland Building and Construction Commission [2021] QCATA 134 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 057 Queensland Building and Construction Commission v Groupline Constructions Pty Ltd (2020) 6 QR 390 Tanna v Queensland Building and Construction Commission [2021] QCATA 134 -- 2 of 15 -- 3 APPEARANCES & REPRESENTATION: Applicant: S Watson, solicitor of King and Wood Mallesons First Respondent: M Black instructed by Queensland Building and Construction Commission Second Respondent: No appearance REASONS FOR DECISION [1] This is an application for leave to appeal or appeal a decision summarily dismissing an application by Body Corporate for Parkside Bulimba CTS46539 (‘Parkside’) to review a decision of the Queensland Building and Construction Commission (‘QBCC’) not to issue a direction to rectify to De Luca Corporation Pty Ltd (the ‘builder’). [2] If the appeal succeeds Parkside asks that the decision summarily dismissing its external review application be set aside and the matter be remitted for determination. Parkside would not seek its costs in that event. [3] If the appeal succeeds, the QBCC agrees that is the appropriate relief. However, the QBCC submits that the application for leave to appeal or appeal should be dismissed. [4] Throughout this decision I have bolded the words decision and direction to emphasise the different actions to be read in their context. Background [5] The builder constructed a unit complex with completion of stage 1 on 23 October 2014 and stage 2 on 23 April 2015. [6] Parkside became concerned as to combustibility of the cladding used in common areas of the property on 10 September 2020. The builder was notified on 11 September 2020. [7] On 29 January 2021 Parkside lodged a complaint with the QBCC. The complaint was investigated by the QBCC’s Technical Action Group which concluded there was insufficient evidence to reveal any obvious defective construction practices by the builder. [8] On 13 July 2021 the QBCC decided not to give the builder a direction to rectify in response to the Parkside complaint. [9] On 9 August 2021 Parkside requested an internal review of the decision. [10] Following an inspection and submissions to the QBCC a further decision was made by the QBCC on 7 October 2021 not to give a direction to rectify or remedy to the builder.1 1 Respondent’s appeal book page 32. -- 3 of 15 -- 4 [11] The final date for giving a direction to rectify in relation to stage 1 work expired on 23 April 2021. The final date for giving a direction to rectify in relation to stage 2 work expired on 23 October 2021. [12] The decision made on 7 October 2021 includes the following statements: The statutory period for stage 1 of the residential development expired on 23 April 2021 and a DTR may only be given outside of the six years and six month timeframe in circumstances where, the Queensland Civil and Administrative Tribunal (QCAT) is satisfied, on application by the QBCC, that there are sufficient reasons for extending the time for giving the direction. A decision not to apply to QCAT for giving a direction to rectify outside of the prescribed time frame is not a reviewable decision. In relation to stage 2 of the residential development, the statutory period has not yet expired to issue a DTR for defective building work. … I have accepted Mr Hayman’s expert findings that complaint items numbers 1,2 and 3 are not defective building work. It follows therefore, that as the complaint items have been determined to not be building defects caused by the affected party, I have not considered whether or not it is fair or reasonable to issue a DTR or whether the QBCC should apply to the QCAT for an extension of time to issue a DTR. You have the right to have this decision externally reviewed in the Queensland Civil and Administrative Tribunal (QCAT). An external review application must be lodged with QCAT within 28 days of receiving this decision. [13] Parkside lodged an application in the Tribunal for an external review of the 7 October 2021 decision on 2 November 2021, within the prescribed 28-day period under s 86D(c) of the Queensland Building and Construction Commission Act (‘QBCC Act’).2 [14] Reasons for the 7 October 2021 decision were given on 3 February 2022.3 The reasons deal with time limits on the QBCC’s powers, including the following statement: 61. At the time of making the Internal Review Decision on 7 October 2021, the statutory period for giving a direction had expired in relation to Stage 1. … 63. In other words, QBCC had no statutory power to give the direction to rectify Stage 1 building work after 23 April 2021. 64. Furthermore, QBCC no longer has the statutory power to give a direction to rectify Stage 2 building work, as it is now after 23 October 2021. Legislation [15] Section 86 of the QBCC Act provides:4 (1) Each of the following decisions of the commission under this Act is a reviewable decision- 2 Queensland Building and Construction Commission Act 1991 (Qld) s 86D(c) (‘QBCC Act’). 3 Respondent’s appeal book, page 14. 4 QBCC Act (n 2) s 86. -- 4 of 15 -- 5 … (e) a decision to give a direction to rectify or remedy or not to give the direction [16] Section 86D of the QBCC Act provides:5 (1) As soon as practicable after an internal review decision is made, or is taken to have been made, under section 86C, the internal reviewer must give the applicant and any other person affected by the decision written notice (the review notice) of the decision. (2) The review notice must state – (a) the decision; and (b) the reasons for the decision; and (c) that the person may, if dissatisfied with the internal review decision, within 28 days after the person is given the notice apply to the tribunal for external review of the decision under subdivision 2; and (d) how to apply for review of the decision. [17] Section 72A of the QBCC Act provides:6 Powers and limitations of directions to rectify or remedy … (4) A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly. [18] Section 24 of the Queensland Civil and Administrative Tribunal Act (‘QCAT Act’) provides:7 Functions for review jurisdiction (1) In a proceeding for a review of a reviewable decision, the tribunal may – (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the tribunal considers appropriate. (2) The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision – (a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and (b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect. 5 Ibid s 86D. 6 Ibid s 72A. 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24 (‘QCAT Act’). -- 5 of 15 -- 6 … Decision of the Tribunal made 26 April 2023 [19] The Member below dismissed the application for review on the basis that the Tribunal does not have jurisdiction because the application for external review fell outside the statutory time frame within which a direction to rectify might be given under s 72A(4) of the QBCC Act.8 [20] It was found that the building work was completed on 23 April 2015 and the last date on which a direction to rectify could be given under s 72A(4) of the QBCC Act was 23 October 2021. [21] The Member found that the effect of the time limit in s 72A(4) of the QBCC Act is not procedural but is jurisdictional, and that the Tribunal does not have jurisdiction unless the application for review of a decision not to direct rectification, is filed before the expiration of the time limit.9 [22] Absent an application by the QBCC, which the QBCC indicated it would not make, the Member found that there was no basis on which the Tribunal might extend the time limit. [23] The Member observed that had Parkside filed its application for external review before 24 October 2021 it could have preserved its position. It was said that pursuant to s 24(2)(b) of the QCAT Act,10 the Tribunal’s decision would then have effect from within the six year and six-month period of the reviewable decision made on 7 October 2021.11 [24] The Member followed Jorg & Anor v Queensland Building and Construction Commission,12 which held, on the facts before it, that where an application to review a decision not to issue a direction to rectify is not filed within 6-years and 6-months of the completion of the building work and where there is no application by the Commission to extend the time limit, the tribunal has no jurisdiction to review the decision. The Members there held that s 24(2)(b) cannot be relied upon to create a jurisdiction that does not exist.13 The Member below also relied upon Domestic Maintenance Pty Ltd v Queensland Building Services Authority,14 to similar effect. [25] As a result, an order was made to dismiss the application to review under s 47 of the QCAT Act,15 because there was no way the matter could proceed without an extension of time.16 Leave to appeal [26] The QBCC did not oppose the granting of leave to appeal. 8 QBCC Act (n 2) s 72A(4). 9 Body Corporate for Parkside Bulimba CTS 46539 v Queensland Building and Construction Commission and De Luca Corporation Pty Ltd [2023] QCAT 139, [43] ('Parkside Bulimba’). 10 QCAT Act (n 7) s 24(2)(b). 11 Parkside Bulimba (n 9) [55]. 12 [2021] QCATA 134, [43] ('Jorg’). 13 Parkside Bulimba (n 9) [58]. 14 [2012] QCATA 106 ('Domestic Maintenance'). 15 QCAT Act (n 7) s 47. 16 Domestic Maintenance (n 14) [63]. -- 6 of 15 -- 7 [27] Although a question arises as to whether dismissal of a proceeding under s 47 of the QCAT Act is a final decision, with implications as to whether leave to appeal is required, I consider that insofar as it is necessary, leave should be granted. That is because construction of the relevant provisions of the QBCC Act is a matter of general importance upon which further argument and a decision of the appeal tribunal would be to the public advantage.17 Leave to appeal is granted. Parkside’s grounds of appeal [28] Parkside submit that the Member erred in summarily dismissing the application for external review. The Member is said to have erred in concluding that the Tribunal lacked jurisdiction to set aside the review decision and substitute its own decision, on the basis of his understanding of the meaning and effect of Jorg’s case and his construction of s 72A(4) of the QBCC Act and s 24(2)(b) of the QCAT Act. Those are asserted errors of law. [29] The appeal tribunal will proceed under s 146 of the QCAT Act.18 Submissions [30] The parties addressed in detail what they say is the proper construction of the legislation. [31] Parkside’s primary position is: (a) Section 72A(4) of the QBCC Act is not a limit on the jurisdiction of the Tribunal to review a decision of the QBCC to not issue a direction to rectify; (b) Section 72A(4) of the QBCC Act simply prevents the QBCC from sending a direction to rectify after expiry of the period in s 72A(4), unless the QBCC applies to the tribunal for an extension and that extension is granted. If the QBCC decides not to seek an extension from the tribunal, the remedy available may be an application for judicial review. (c) The tribunal had the power to review the QBCC’s decision made on 7 October 2021, to not issue a direction to rectify, and substitute that decision with a decision that a direction to rectify should be issued, which was the remedy sought by Parkside in the review application; and (d) The tribunal erred in summarily dismissing the review application pursuant to s 47 of the QCAT Act. [32] Parkside rely on the analysis in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority ('McNab’),19 where a distinction is drawn between the anterior decision to issue a direction to rectify and the actual direction to rectify. The point in the preceding paragraph at subparagraph (c) is that a substitute decision to issue a direction to rectify could be made even if the direction to rectify could not be sent to the builder without an application for extension of time made to QCAT. 17 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580. 18 QCAT Act (n 7) s 146. 19 [2013] QSC 057 ('McNab’). -- 7 of 15 -- 8 [33] Parkside’s alternative position is that s 24(2)(b) of the QCAT Act operates to deem a direction to have been given by the Tribunal as at the date of the original decision being reviewed. [34] Further to the alternative position Parkside submit that on a correct interpretation of s 72(4) of the QBCC Act and s 24(2)(b) of the QCAT Act, if the original decision or internal review decision being reviewed was made within the 6-year 6-month period, the Tribunal has jurisdiction to make a direction to rectify, because the Tribunal’s decision will take effect from the date of the reviewed decision. It is only if the decision being externally reviewed was made after the expiry of the period that the Tribunal would have no jurisdiction to make a direction to rectify. [35] Relevant to both positions, Jorg’s case is distinguished because it concerned an external review of two internal review decisions each made after the expiry of the 6- year 6-month period where no application was made for an extension of time. That is, the original decision maker did not have jurisdiction to make a direction to rectify in the first place and the operation of s 24(2)(b) could not give jurisdiction where none existed. [36] As to the other decision relied upon by the Member, Domestic Maintenance Pty Ltd v Queensland Building Services Authority,20 it too is distinguished on the basis that it related to a different express provision of a predecessor QBCC Act which provided that the tribunal must not review a decision to direct rectification if 28 days have passed from the date the direction to rectify or complete was served. [37] Parkside say that in contrast, there is no language in the QBCC Act that ties the filing of an application for review within the time period in s 72A(4) to the jurisdiction of the Tribunal. If Parliament had intended that result it could have said so. [38] In relation to the observation by the Member that if the application for external review had been filed within the 6-year 6-month time frame, Parkside could have preserved its position, it is submitted that such a conclusion relies on the Member reading into the text of s 72A(4) of the QBCC Act words to the effect that once the period in s 72A(4) has expired, a decision of the QBCC made within that period is no longer a reviewable decision. Parkside say that no such words are present within the QBCC Act. [39] Parkside submits that the Tribunal should not constrain its jurisdiction by reading into the text of the QBCC Act words that are not present, and which are not necessary to give effect to the terms of that legislation. It is said this is especially so in circumstances where that strained interpretation is likely to produce an absurd and unjust result that would deprive complainants seeking a direction to rectify the right to seek external review of the QBCC’s decisions. [40] It is said that if the reasoning of the Tribunal in dismissing the application were accepted, it would allow for the extinction of the Tribunal’s review jurisdiction through delays by the QBCC that are entirely outside the control of a complainant seeking a direction to rectify. For example, if a complaint was made well within the 6-year 6-month period but the QBCC delayed in making its decision not to issue a direction to rectify until the last day of the period, then, applying the Tribunal’s reasoning, the complainant would have no ability to seek a review of that decision by 20 Domestic Maintenance (n 14). -- 8 of 15 -- 9 the Tribunal. Likewise, on the Member’s reasoning, if an application for external review was filed within the 6-year 6-month time period, QCAT would have to make its final decision prior to the expiry of that period, because there is no language in the QBCC act that supports the conclusion that filing within that period “preserves” the position of the applicant. [41] Parkside say that reading s 72A(4) of the QBCC Act and s 24(2)(b) of the QCAT Act together gives effect to both texts in circumstances where the decision being reviewed was made with the 6-year 6-month period in s 72A(4). The result is that there is no creation of a jurisdiction that does not exist. [42] To recap, the alternative position on Parkside’s submissions is that by operation of s 24(2)(b) a direction to rectify could be deemed to have been given on the date of the substituted decision to direct rectification. QBCC’s submissions and Parkside’s reply submissions [43] As to Parkside’s primary submission, QBCC submits that s 24(2)(b) does not enable QCAT to substitute a decision giving a direction to rectify, which retrospectively takes effect within the time limit imposed by s 72A(4). It argues that to do so would upset the balance Parliament has struck between rights of consumers and builders through placing limitations on the power of the QBCC.21 [44] As to the alternative position, the QBCC says that in exercising its review jurisdiction, the Tribunal stood in the shoes of the QBCC and was bound by the same limitations as the QBCC. QCAT had no power to give a direction to rectify and so no power to grant the substantive relief sought by Parkside, and no power absent an application by the QBCC to extend the applicable time limit which expired on 23 October 2021 at the latest.22 The QBCC argues that s 24(2)(b) of the QCAT Act is a general provision available to QCAT in the exercise of its review jurisdiction, but just like the QBCC it is bound by the constraint imposed by s 72A(4) of the QBCC Act. [45] The QBCC says that if a direction to rectify forms part of a substituted decision by QCAT and takes effect from the date of the review decision, the direction to rectify will be deemed to have issued on the date of the review decision. The result will be that because of Regulation 53A of the QBCC Regulations,23 the 35 days for compliance by the builder will have long expired. The builder will be in immediate non-compliance and the builder will be out of time to apply for an extension. [46] On this reasoning the effect of Regulation 53A is that the period for commencement of rectification work would have started on 7 October 2021. [47] Parkside say that Regulation 53A was not in force at the time of the review decision. It came into force on 10 November 2021, so it should not be applied on the basis of Frugtniet v Australian Securities and Investments Commission.24 21 Queensland Building and Construction Commission v Groupline Constructions Pty Ltd (2020) 6 QR 390, 419 [100]. 22 Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, 256 [14], 271 [51] ('Frugtniet’). 23 Queensland Building and Construction Commission Regulation 2018 (Qld) s 53A, as at 10 November 2021. 24 Frugtniet (n 22) 256 [14]. -- 9 of 15 -- 10 [48] I accept this submission and will not further consider Regulation 53A. [49] Returning to Parkside’s primary submission, QBCC uses the analysis in McNab that a decision to direct rectification is anterior to the direction itself and submits that although s 24(2)(b) might operate to provide a deemed date of effect for the decision, it would not deem the direction to have been given at an earlier time. As such the giving of the direction would remain prohibited by s 72A(4) of the QBCC Act and the anterior decision that there should be a direction would be futile. [50] Parkside says the better view is that, applying the distinction in McNab, s 72A(4) is not a limit on the jurisdiction of the Tribunal to determine whether a decision by the QBCC not to issue a direction to rectify should be set aside. Rather, s 72A(4) is a limitation on when a direction can be sent to a builder. If the date on which the direction is to be sent is after the expiry of the period in s 72A(4), the QBCC can only send such a direction if it applies to the Tribunal for an extension of time and the Tribunal grants that extension. It is said that this is consistent with the text of the section which refers to the direction to rectify actually sent and not the anterior decision made by the QBCC that a direction to rectify should be issued. Parkside say that s 72A(4) does not provide for an extension of time with respect to the anterior decision to make a direction to rectify, only to the direction. [51] Parkside say that the QBCC’s decision as to whether an application for an extension should be made will necessarily be informed by the Tribunal’s substantive decision on the merits of the review application and the tribunal’s assessment of the extent of the safety risk presented by the cladding installed at Parkside Bulimba. It is thus premature for conclusions to be drawn by the QBCC as to whether an extension should be sought, and one cannot say that the review application would be futile. Parkside say that was not a proper basis on which to summarily dismiss the review application under s 47 of the QCAT Act. Continuation of the review application is said not to be futile. [52] The QBCC relies on Jorg’s case. It acknowledges that a different factual scenario was involved, but submits the conclusion was correct that s 24(2)(b) cannot be used to retroactively give a valid direction. It also notes Tanna v Queensland Building and Construction Commission,25 which involved a decision not to issue a direction to rectify which was made outside the 6-year 6-month time frame. Although s 24(2)(b) was not considered in detail in that case, the appeal tribunal concluded that any decision by the QBCC about whether to apply for an extension of the time limit was not reviewable by QCAT. [53] Parkside say that both cases involved decisions of the QBCC made after expiry of the period in s 72A(4) and so the question at issue in this appeal did not arise. [54] In acknowledging the prospect of unfairness which might result from its interpretation of the legislation, the QBCC submits that it is a matter for Parliament to address. For the time being Parliament has deliberately chosen to promote certainty for builders. [55] Parkside say that its interpretation avoids an absurd result whereby the external review jurisdiction is undermined; there is an inconsistency with McNab; and also with the text of s 72A(4). It says that the tribunal has jurisdiction to set aside a decision of the QBCC not to give a direction to rectify if that decision was made before expiry of the 25 [2021] QCATA 134. -- 10 of 15 -- 11 6-year 6-month period, even if the application for external review is made after the 6- year 6-month period has expired. However, in order for a direction to rectify to then be sent by the QBCC, the QBCC must apply to the tribunal for an extension of time and that extension must be granted. [56] Finally, the QBCC says that in view of its submissions it considers the Member below to be wrong in his observation that if the application for external review had been lodged before the 6-year 6-month time frame expired Parkside could have preserved its position. That is also Parkside’s contention. Consideration [57] The key basis for the Member’s decision to dismiss the application under s 47 of the QCAT Act, is that the Tribunal does not have jurisdiction to review a QBCC decision unless the application for review is filed before the expiration of the time limit in s 72A(4). That is reflected in the observation that had Parkside filed its application for review by 24 October 2021 (within the 6-year 6-month time), it would have preserved its position because pursuant to s 24(2)(b) of the QCAT Act the Tribunal’s decision would have effect from within the 6-year and 6-month period. [58] Although not clearly said I take it that the Member’s reasoning is that any decision made in substitution for the QBCC’s reviewable decision would be a decision which includes a direction to rectify, and that the direction could still be taken to have been given within the 6-year 6-month period. [59] With respect, if that is the effect of s 24(2)(b) of the QCAT Act, that outcome could still result by operation of the section, whether or not the application for external review is filed before the expiration of the time limit in s 72A(4). Obviously, the application for review must have been filed within the prescribed 28-day time frame for bringing an application for review. [60] The Member notes the QBCC position that it is open to the Tribunal to set aside the decision and return the matter to the Commission for reconsideration, but with no power to order what any reconsidered decision should be. The Member does not explore that submission. The Member did not refer to the decision of McNab and its analysis of the two-stage nature of a decision to give a direction to rectify. [61] The Member proceeds to rely on the statement of the Tribunal in Jorg’s case that: …Where, as here, an application to review a decision not to issue a direction to rectify is not filed within 6 years and 6 months of the completion of the building work and where, as here, there is no application by the commission to extend the time limit, the tribunal has no jurisdiction to review the decision. Section 24(2)(b) cannot be relied upon to create a jurisdiction that does not exist. [62] That analysis has been followed by the Member in his finding that the Tribunal does not have jurisdiction unless the application for review is filed before the expiration of the time limit. [63] After considering the parties submissions, I am of the view that the Member has misconstrued s 72A(4) and has misdirected himself by following the statement in Jorg’s case when the circumstances before him were different in a material respect to those in Jorg’s case. The Member below has also misunderstood what the Members meant when they referred to the application to review not being filed within the 6- year 6-month period. -- 11 of 15 -- 12 [64] The decisions the subject of the external review application in Jorg’s case were made outside the 6-year 6-month period, so that the operation of s 24(2)(b) could never result in a substituted decision having effect from a time within the 6-year 6-month period. That is not the case for Parkside. [65] It is important at this point to note a discussion by the Members in Jorg’s case which has the potential to mislead those relying on the case, including Members in other decisions.26 [66] In this regard I note the comments of the Member below that the Tribunal does not have jurisdiction unless the Application for Review is filed before the expiration of the time limit27 and that had it done so before expiry of the time limit, Parkside could have preserved its position because by s 24(2)(b) the Tribunal’s decision would have effect from within the 6-year and 6-month period.28 [67] The Members found in Jorg’s case that the 6-year 6-month period expired on 14 January 2019.29 The Members also noted the uncontentious fact that the two internal decisions the subject of review were made on 17 January 2019 and 6 February 2019 respectively. In each case the QBCC decided that a direction to rectify could not be issued as more than 6-years and 6-months had passed since the work was completed.30 [68] Clearly the internal review decisions the subject of the external review were made outside the 6-year 6-month mark. At paragraph [38] the Members pick up a point made at first instance that the Jorgs could have sought an external review of the original decisions which had been made well within the 6-year 6-month time frame.31 The Members said that had the Jorgs done so they would not now face the outcome that the Tribunal has no jurisdiction to decide that a direction to rectify should issue, in the absence of an application by the commission to extend the time limit. I am interpolating here, but the reason why the Jorgs would not face that outcome is because s 24(2)(b) could be relied upon to make a decision to direct rectification effective from the date of the original decision within the 6-year 6-month time frame. [69] The Appeal Tribunal in Jorg’s case did not decide that the internal review decisions were made within the 6-year 6-month time frame and that to preserve their position the Jorgs must file an external review application within that time frame. The Appeal Tribunal was instead observing that the Jorgs could have sought external review of the original decisions well within the 6-year 6-month time frame. Instead, they sought internal review of the original decisions which resulted in the internal review decisions being made outside the 6-year 6-month time frame, with the outcome that s 24(2)(b) could not be relied upon to create a jurisdiction that does not exist. The Members commented that the election to seek internal review was the Jorgs’ alone and that their error cannot now be sheeted home to the QBCC.32 [70] The Appeal Tribunal addressed a suggestion by the Member below that it might be possible within the terms of s 24(2)(b) to make an order ‘to the contrary’ of the position that an external review decision takes effect from the date of the decision 26 Clark v Queensland Building and Construction Commission & Anor [2024] QCAT 329, [30]. 27 Parkside Bulimba (n 9) [43]. 28 Ibid [55]. 29 Jorg (n 12) [30]. 30 Ibid [5]-[6]. 31 Ibid [38]. 32 Ibid. -- 12 of 15 -- 13 being reviewed, so that the decision might take effect within the 6-year 6-month time frame.33 The Appeal Tribunal disagreed with the Member below that it would be open to the Tribunal to do so.34 [71] In my view, the point being made by the appeal tribunal in Jorg’s case is that on the facts before it, the Jorgs could have sought external review earlier giving them potentially a different outcome. I do not think the Appeal Tribunal was mandating a broad imperative that all applications for external review must be filed within the 6- year and 6-month period. The Members were noting that a party could have, but did not, seek external review within the 6-year 6-month period with the result that the QBCC made its internal review decisions outside the 6-year 6-month time frame so that s 24(2)(b) of the QCAT Act could not operate to give any jurisdiction to the Tribunal. [72] I consider that the Member below misunderstood the appeal tribunal’s decision and that he was in error to find that the application for external review must be filed within the 6-year 6-month time frame for the Tribunal to have jurisdiction. [73] Once it is clear that the appeal tribunal did not mandate filing of an external review application within the 6-year 6-month time frame it is apparent Jorg’s decision is not an impediment to the findings sought by Parkside. On the contrary the observations at paragraph [38] of Jorg’s case35 are consistent with Parkside’s argument that where a decision the subject of external review has been made within the 6-year 6-month time frame, s 24(2)(b) can operate to substitute the Tribunal’s decision for the decision of the QBCC. [74] I accept the submissions of Parkside that there are no words in s 72A(4) of the QBCC Act which require the filing of an application for review within the 6-year 6-month time frame as anticipated by the Member below. I accept that such a construction of the Act would undermine statutory rights to external review of QBCC decisions. [75] I accept that an absurd and prejudicial result may occur where no decision is made until close to the 6-year 6-month mark and a right of review is denied. [76] Parliament has given a 28-day period to seek review which may plainly run from the date of a decision made near the 6-year 6-month mark. Parliament has anticipated that any direction to rectify may fall outside that time frame and has given the QBCC a power to make an application for extension of time. Parliament has not, as suggested by the QBCC, drawn an immoveable red line at the 6-year 6-month mark which has the effect of denying a right to review. I do not accept that any such red line has been drawn to give certainty to builders over consumers. To make that finding would be to give no meaning or effect to the entitlement to external review and the availability of an extension of time with respect to any direction to rectify which should properly be given. [77] I conclude that an error of law has occurred as a result of the Member’s construction of s 72A(4). 33 Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT 528, [21]. 34 Jorg (n 9) [43]-[44]. 35 Ibid [38]. -- 13 of 15 -- 14 [78] I also consider that as a result of his construction of the section and finding that a direction to rectify could not be given, that the Member has wrongly formed the view that the application for review is groundless or futile. [79] I accept the force of what is argued by Parkside in relation to the possibility of the QBCC deciding in the future to seek an extension of time to give a direction to rectify. I conclude that a decision to give a direction to rectify may not be futile, if evidence is accepted as to the safety risk presented by the cladding used on the Parkside buildings. That evidence might convince the QBCC to seek the relevant extension. Alternatively, as flagged, a judicial review may be available to Parkside if the QBCC’s discretion is not lawfully exercised. [80] The Member below relied on the established principles that before an application is struck out the party seeking to strike out must demonstrate to a high degree of certainty that the matter is obviously untenable or futile. He noted that if there is a real question of law or fact to be determined then summary dismissal is not appropriate.36 [81] I accept Parkside’s submission that there are real questions of fact to determine in relation to the safety of the cladding used at Parkside. The issue is an important one and should be properly explored, given that Parkside has expert evidence available to it. [82] In those circumstances I find that this matter was not one in which a summary dismissal was justified on the basis of lack of jurisdiction or futility of the application. [83] Having said that, I accept QBCC’s submission that s 24(2)(b) will not enable the giving of a direction to rectify. Even if a direction to rectify were deemed to have been given within the 6-year 6-month time frame, by the operation of s 24(2)(b), it would have to be sent out in real time, which would be well outside the 6-year 6- month time frame. I consider that would be contrary to the terms of s 72A(4) and highly artificial. [84] However, I accept the submissions of Parkside that on the authority of McNab’s case it is possible to detach the decision to give a direction to rectify from the direction itself. The QBCC does not appear to take a different view. [85] I agree with Parkside that s 72A(4) is not a limit on the jurisdiction of the Tribunal to review a decision of the QBCC not to issue a direction to rectify. The section simply prevents the QBCC from sending a direction to rectify after expiry of the period in s 72A(4) unless an extension of time is sought by the QBCC and granted by the Tribunal. Once the decision to issue a direction to rectify is viewed as separate to the direction itself, s 24(2)(b) of the QCAT Act can properly come into play to deem any substituted decision to have been made on the date of decision under review which is in this case within the 6-year 6-month time frame. [86] Error of law on the part of the Member below has been established. The appeal succeeds. Orders The decision made on 26 April 2023 is set aside. 36 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125. -- 14 of 15 -- 15 The proceeding is remitted to a Member constituted to hear the substantive application for review of the decision made on 7 October 2021. -- 15 of 15 --