Agius v Queensland Building and Construction Commission & anor [2023] QCATA 144

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Agius v Queensland Building and Construction Commission & anor [2023] QCATA 144 PARTIES: MARK ELLIOT AGIUS (Applicant/appellant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (First respondent) GEDOUN CONSTRUCTIONS PTY LTD (Second respondent) APPLICATION NO/S: APL183-22 ORIGINATING APPLICATION NO/S: GAR373-20 MATTER TYPE: Appeals DELIVERED ON: 22 November 2023 HEARING DATE: 16 November 2023 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: 1. The application for leave to appeal is allowed. 2. The appeal is dismissed. CATCHWORDS: APPEAL – INTERLOCUTORY DECISION – GENERAL ADMINISTRATIVE REVIEW – where internal review decision made on the application by the homeowner – where contractor made application for internal review – where contractor made application to QCAT for external review prior to internal review decision being made – where contractor’s application for internal review lapsed – where decision at first instance refused application to strike out the proceedings - whether Member erred in finding there is a ‘reviewable decision’ within the meaning of s 86E – whether contractor sought to review a decision that ‘was the subject of an internal review’ within the meaning of s 86E(a) -- 1 of 11 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(ii) Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 86A, s 86C, s 86D, s 86E Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 R v Young [1999] 46 NSWLR 681 Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9 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) REASONS FOR DECISION [1] Appeals APL183-22 and APL184-22 were directed to be heard and determined together. The appeals raise issues under the review provisions in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). [2] APL184-22 raised the question of whether a decision to issue a direction to rectify and the issuing of a notice to rectify is one decision or two decisions, and if two, whether both or which is a reviewable decision under the QBCC Act. That appeal is the subject of separate reasons. [3] This appeal, APL183-22, raises the question of what happens if two persons entitled to review a reviewable decision, both exercise their entitlements, but one applies for internal review and the other for external review. That appeal is the subject of these reasons. [4] Both appeal decisions were decisions made on interlocutory applications, so that, under s 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), leave is required to appeal. [5] This appeal raises an important issue of statutory construction of general application in reviews of decisions made by the Queensland Building and Construction Commission. In circumstances where the appellant’s preferred construction is arguable, it is appropriate to give leave to appeal. [6] I disagree with the Commission’s submissions that, because the grounds of appeal raise questions of law (the construction of s 86A of the QBCC Act and failure to provide procedural fairness) that leave to appeal is not required. Relevant Background -- 2 of 11 -- 3 [7] On 28 August 2020 the Commission made scope of works decision SW- 54463.1 [8] The following review proceedings were instituted in respect of that decision: (a) on 3 September 2020 the second respondent applied for internal review; (b) on 25 September 2020 the appellant applied for internal review;2 (c) after that, but still on 25 September 2020 the second respondent3 applied to the tribunal for external review (GAR373-20). [9] On 22 October 2020 the Commission made an internal review decision in respect of both internal review applications. Neither party sought review of that decision. [10] On 13 September 2021, the appellant filed an application to strike out the external review proceeding GAR373-20 on the basis the review sought review of a decision that no longer existed. [11] On 19 May 2021 the application to strike out the proceedings was dismissed. The decision at first instance [12] The primary contention in the appellant’s strike out application was that the tribunal lacked the jurisdiction to determine the external review proceeding because, at the time the respondent applied for external review, there was no longer a “reviewable decision” within the meaning of s 86E(a) of the QBCC Act. [13] In summary, the appellant contended that his internal review proceeding commenced on 25 September 2020 caused the scope of works decision to cease being a ‘reviewable decision’ in respect of which external review could be sought because the definition of ‘reviewable decision’ in s 86E expressly excludes a decision ‘that was the subject of an internal review…’. The appellant contended that once an internal review decision was made, it was the only reviewable decision, and the contractor did not apply to review it within 28 days of it being made. Further, the appellant contended, the contractor’s application for external review only caused the contractor’s application for internal review to lapse, not the appellant’s. [14] It is not clear whether the appellant’s contention in the original hearing was that the exclusion in s 86E(a) applied at the time the application for external review was filed or whether, if jurisdiction existed at that time, it was later revoked on 22 October 2020 by the making of the internal review decision. [15] The learned Member placed emphasis on the reference in s 86E(a) to internal review in the past tense, that is, that a reviewable decision is one other than a decision that was the subject of an internal review. In his view, s 86E(a) did not preclude an application for external review being made before an internal review decision is made. If s 86E(a) were to extend to the position where the internal review application had yet to be decided, the learned Member reasoned, the provision would have to read ‘is the subject of an internal review’.4 1 For convenience I will refer to Mr Agius as the appellant, the contractor Gedoun Constructions Pty Ltd as the respondent, and the Queensland Building and Construction Commission as the Commission. 2 Application for internal review accepted by the QBCC at 11:00am. 3 Referred to hereafter as the respondent. 4 Reasons at [15]. -- 3 of 11 -- 4 [16] The learned Member concluded that s 86E(a) did not preclude the respondent from applying for external review on 25 September 2020, as at that date, no internal review decision had been made. [17] Further, the learned Member held, there was nothing in s 86A that detracted from that view. Section 86A, in effect, provides that a person may apply for internal review unless “the person” has applied to the tribunal for external review. Also, that if the person applies for internal review and before a decision is made, applies for external review, the application for internal review lapses. In construing s 86A the learned Member held that where s 86A(3) refers to ‘the person’ in circumstances where there may be more than one person, it is capable of referring to either the [appellant] or the [respondent]. It followed that, in the event the appellant’s internal review application was filed before the respondent’s external review application, the appellant’s internal review application lapsed. Alternatively, if the appellant’s internal review application was filed after the respondent’s external review application, it was incompetent pursuant to s 86A(2). In either event, the learned Member concluded, the Commission acted beyond its power in making a decision on the internal review application. Grounds of appeal [18] The appeal application seeks leave to appeal the strike out decision on the basis that the tribunal: (1) has failed to consider procedural fairness owed to the appellant; (2) erred in substituting the Acts Interpretation Act 1954 (Qld) in place of language used in the QBCC Act; (3) incorrectly interpreted and applied s 86A(1) of the QBCC Act. Appellant’s submissions [19] The appellant submitted that the appeal should be allowed because, among other things: (a) the internal review decision has been made, therefore, the original decision the subject of the current review proceedings no longer exists; (b) the reference to ‘a person’ in s 86A(1) of the QBCC Act is a reference to a singular person, therefore, it extinguishes the review rights of one person, not multiple people (that is, a person applying for external review cannot extinguish the internal review rights that another person has). [20] It followed, the appellant submitted, that the respondent’s application for external review did not cause the appellant’s application for internal review to lapse. [21] Further, the learned Member was in error in ‘putting to one side’ the appellant’s application for internal review. The fact a new decision was made on internal review was ‘the centre piece of the strike-out application’, presumably because (as stated later in the submissions) once the internal review decision was made, the original decision ceased to exist. As the respondent only seeks to review the original review decision, which has now been superseded on internal review, the application does not seek review of a ‘reviewable decision’ and the tribunal lacks jurisdiction to hear the review. The appellant’s internal review decision is final and not the subject of -- 4 of 11 -- 5 review. Accordingly, the appeal should be allowed and the application for strike out allowed. Commission’s submissions [22] The Commission neither opposed nor consented to the appeal application because it was open to the tribunal to either make: (a) a finding that it did, which means that all internal review applications lapse on the filing of an external review application. Such an interpretation is open on a plain reading of ss 86A and 86E(a); or (b) a finding that is consistent with interpreting s 86A(3) in a way that would mean only the respondent’s internal review application lapsed, and the appellant’s remained on foot, when the respondent filed the review application. Such an interpretation may be warranted because there are further issues which may need to be considered which the tribunal did not consider when making the strike out decision. [23] The countervailing considerations of a finding as per (b) above include: (i) the emphasis of the use of ‘was’ in s 86E(a) by the learned Member. It may be more important to consider the meaning of ‘internal review’ which is not defined in the QBCC Act. In order to give effect to the provision, it may be necessary to interpret ‘internal review’ as a reference to ‘internal review decision’ which is defined in s 85A. Such an interpretation would still render s 86E(a) useful and pertinent, without straining the meaning of the provision and in a way consistent with the objects of the QBCC Act. (ii) The interpretation of s 86E(1) in the context of Part 7, Division 3. Part 7, Div 3 sets out the proceedings for review. At [15] of the strike out decision the tribunal observed that s 86E(a) does not preclude an external application from being made before an internal review decision is made. While the Commission agrees with that observation it submitted that it did not consider circumstances where an external review application is made, then an internal review decision is made which replaces the original decision and renders the external review application incompetent, for example, where there is only one internal review application. (iii) The operation of s 86A of the QBCC Act. At [20] of the strike out decision, the tribunal observed that the ‘evident purpose’ of s 86A is to prevent internal and external review occurring simultaneously and to give priority to the external review. The Commission submitted that the purpose of s 86A is to confer a right to internal review on persons given, or entitled to be given, a notice of a reviewable decision. The implication of the strike out decision is that one person has the power to defeat another person’s internal review right which appears inconsistent with the objects of the QBCC Act which include to achieve a reasonable balance between the interests of a consumer and a contractor. Such an interpretation might be disharmonious to the purposes of s 86A. Section 86A(3) may be more harmoniously interpreted to mean a person’s internal review rights can only be lapsed by that person applying for external review. Such an interpretation would still render s 86A(3) useful -- 5 of 11 -- 6 and pertinent, without straining the meaning of the provision and in a way consistent with the objects of the QBCC Act. [24] The appellant was afforded procedural fairness in being given the opportunity to file submissions and reply submissions. Respondent’s submissions [25] The respondent submitted that the appellant, despite contending for an interpretation of s 86A(3) which permits concurrent internal and external reviews to proceed if commenced by different parties, contends that that interpretation ceases to apply where a decision is made on one of the concurrent reviews. [26] The respondent submitted that the appellant’s interpretation, that the respondent’s review rights, once enlivened, could be revoked by a later internal review decision, contends for a conclusion that is not express from the text of the legislation. Clear words, the respondent submitted, are required before the tribunal could summarily deprive a party of jurisdiction to continue a proceeding commenced in jurisdiction. [27] Further, the impact of the internal review decision of 22 October 2020 on the external review proceeding in GAR373-20 was a matter the tribunal was unable to determine on an interlocutory application and on the evidence before it and the proceedings should only be summarily determined in the clearest of cases. Consideration [28] Section 86A provides: 86A WHO MAY APPLY FOR INTERNAL REVIEW (1) A person who is given, or is entitled to be given, notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed. (2) However, subsection (1) does not apply if the person has applied to the tribunal for a review of the reviewable decision under subdivision 2. (3) Also, if— (a) the person applies for an internal review of the reviewable decision; and (b) before the application is decided, the [a] person applies to the tribunal for review of the reviewable decision under subdivision 2; the application for internal review of the decision lapses. [29] Section 86C provides: 86C INTERNAL REVIEW DECISION (1) If an internal review application is made under section 86B, the internal reviewer must, as soon as practicable but within the required period, make a new decision (the "internal review decision") as if the reviewable decision the subject of the application had not been made. (2) For subsection (1), the "required period" is— (a) 28 days after the internal review application is made; or (b) a longer period agreed to by the applicant. -- 6 of 11 -- 7 (3) 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 at the end of the required period that is the same as the reviewable decision. [30] Section 86D sets out who is entitled to notice of an internal review decision. The section provides: 86D NOTICE OF INTERNAL REVIEW DECISION (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. (emphasis added) [31] Section 86E is the definition section for subdivision 2 dealing with external review. [32] Section 86E provides: 86E DEFINITION FOR SDIV 2 In this subdivision— "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. [33] What effect, if any, did the owner’s application for internal review and subsequent decision have on the contractor’s external review application? The owner contends that the internal review decision renders nugatory the contractor’s external review application. [34] The prospects of the owner’s strike out application depends on whether the internal review decision has the consequence that the decision, the subject of external review by the contractor, no longer exists. [35] For that consequence, the owner looks to s 86E. Section 86E(b) is not relevant – the contractor is not seeking external review of the internal review decision. It is s 86E(a) upon which the owner relies. The owner submits that the original decision is “a decision that was the subject of an internal review under subdivision 1” and, hence, that it cannot continue to be the subject of external review. [36] The definition of ‘reviewable decision” should not be read on its own. Its principal function is to inform s 87. The definition of “reviewable decision” in s 86E has the purpose of identifying what decisions may be the subject of an external review -- 7 of 11 -- 8 application. One such decision is a reviewable decision within the meaning of subdivision 1, “other than a decision that was the subject of an internal review under subdivision 1.” [37] The better view, in my view, is that “a decision that was the subject of an internal review under subdivision 1” means a decision upon which there had been an internal review decision. Thus, an external review against a reviewable decision can be brought at any time before the internal review decision on the reviewable decision has been made. That outcome is plainly contemplated by s 86A(3), and as the Member at first instance suggested, is consistent with the expression being in the past tense. [38] The difficulty that the appellant’s argument confronts is finding a statutory basis for the proposition that an external review validly commenced can be rendered nugatory by the internal review decision on another (the owner’s) internal review application. Reading the relevant aspects of the definition of “reviewable decision” into s 87, as one must do, s 87 reads: A person affected by a reviewable decision within the meaning of subdivision 1, other than a decision that was the subject of an internal review under subdivision 1 may apply, as provided for under the QCAT Act, to the tribunal for a review of the decision. [39] That seems clear enough. The statutory scheme does not render ineffective an application for external review already validly commenced, by reason of a decision on an internal review application brought by another party. It only prevents an application for external review of the original decision if an internal review decision has, by then, been made. [40] What then is the status of the internal review application by the owner, and of the internal review decision once the contractor filed its application for external review? [41] One possibility is that both the application for internal review by the owner and the application for external review by the contractor remain extant, a conclusion that would lead to two competing and potentially conflicting decisions. That is an unattractive proposition. The construction I prefer, for the reasons below, is that ss 86A(2) and (3) properly construed, have the effect that, once an application for external review is made, the internal review process either: (a) does not commence (s 86A(2); or (b) if it has already commenced, it ends (s 86A(3)). [42] That has the consequence that the external review application becomes the only extant application, and the decision on the external review application the only effective decision. [43] When considering the relevant provisions there is a constructional choice to be made. On one view, the literal meaning of s 86A(3) is to confine ‘the person’ in limb (a) and (b) so that they must be the same person. However, I would not, in this -- 8 of 11 -- 9 statutory context, prefer such a literal approach where it conflicted with the purpose of the provision and produced absurd results.5 [44] I refer in this context to the decision of Spigelman CJ in R v Young6 where his Honour said: If a court can construe the words actually used by the Parliament to carry into effect the Parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the Court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction. The construction reached in this way will often be more clearly expressed by way of the addition of words to the words actually used in the legislation. The references in the authorities to the court ‘supplying omitted words’ should be understood as a means of expressing the court’s conclusion with clarity, rather than as a description of the actual reasoning process which the court has conducted. In all cases, what the court has done is to construe the words actually used in their total context.7 [45] Further, as the High Court held in Taylor v The Owners – Strata Plan No 11564:8 Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect.9 [46] The objects of the QBCC Act in s 3 do not touch upon the relevant provisions, except perhaps in the most general way. It is reasonable, however, to proceed on the basis that the legislation would not, except in the clearest of terms, intend multiple and potentially conflicting avenues of review. The legislative intent would, however, extend to the provision of an efficient and effective framework for review which appropriately provides for the rights and interests of all affected parties. [47] In my opinion, applying the principles above, ‘the person’ where it appears in s 86A(3)(a) and (b) extends, consistently with s 86A and 86D, to any affected person. Further, the reference to ‘the person’ in s 86A(3)(b) is not to be confined to the same person that applied for internal review. For the sake of clarity, and noting the authorities above, the effect of the proper construction of the section is to construe “the person” in s 86A(2) and (3) as “any such person”, that is, any such person as referred to in s 86A(1). [48] The following is my reasoning. 5 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297. 6 [1999] 46 NSWLR 681 at [11]-[16]. 7 Ibid at [15]-[16]. 8 [2014] HCA 9. 9 Ibid at [37]. -- 9 of 11 -- 10 [49] It is clear that ‘the person’ where it appears in s 86D(2) refers to the class of persons in s 86D(1) who are entitled to notice of the decision, that is ‘the applicant and any person affected by the decision’. ‘The person’ in s 86D(2)(c) is not limited to the applicant but extends to any other person affected by the decision. This reflects the practicalities of a QBCC review which often involves a contractor, owner and the Commission. [50] Similarly, it causes no undue offence to the language of the provision that ‘the person’, where it appears in s 86A, refers to ‘a person who is given, or is entitled to be given, notice of a reviewable decision’. This is evident from s 86A(1) which sets out to whom the provision applies. Section 86A contemplates each person who receives, or is entitled to receive, notice of a reviewable decision being entitled to apply for internal review. That is, under s 86A(1) any person affected by the decision may apply for internal review. [51] Section 86A(2) then provides that subsection (1) does not apply if ‘the person’ has applied for external review. The preferable view, in my opinion, is that ‘the person’ in subsection (2) extends to ‘a (any) person who is given or is entitled to be given notice of a reviewable decision’. If such a person applies for external review then by reason of ss (2), ss (1) no longer applies. This means that if any person affected by the decision applies for external review, no affected person may apply for internal review. [52] Section 86A(3) deals with a slightly different scenario. It applies to the situation when an application for internal review has been made, again by ‘the person’ (meaning any person given or entitled to be given notice of the reviewable decision), but before it is decided ‘the person’ (meaning any such person) applies for external review. [53] To summarise s 86A, properly construed, provides: (a) if a person applies for external review, a person entitled to receive notice of a reviewable decision (ie an affected person) is not entitled to apply for internal review (ss 86A(1) and (2)); and (b) if a person applies for internal review and a person applies for external review before an internal review decision is made, the application for internal review lapses (s 86A(3)). [54] This construction ensures that there is only one review process in operation at one time, a result clearly intended by the QBCC Act. The internal review process certainly contemplates a single process that binds all affected parties. This is reflected in s 86D which provides that the reviewer is to give written notice of the decision to the applicant and any other person affected by the decision. Importantly, s 86D(2)(c) provides that the person may, if dissatisfied with the internal review decision, apply to the tribunal for external review. The person in this context refers to not only the applicant but to any other person affected by the decision. It is not only the applicant that has review rights. Similarly, it is not only the applicant for external review that has their application for internal review affected by an application for external review. [55] The approach avoids the prospect of two, potentially conflicting, decisions on the one reviewable decision. Consistently with the statutory framework, it also makes -- 10 of 11 -- 11 paramount the external review decision, which is consistent with the statutory framework, which also permits the external review of internal review decisions. [56] It follows that the decision on the owner’s internal review application, made after the builder’s duly made application for external review is beyond power, because the internal review application has lapsed. [57] It follows, that I agree with the outcome at first instance, albeit for different reasons. [58] The learned Member relied on s 32C of the Acts Interpretation Act 1954 (Qld), which relevantly provides that words in the singular include the plural. In my respectful opinion, it was unnecessary to do so and, arguably, beyond the ambit of the section. It is unnecessary for me to consider the approach further given I have agreed with the learned Member’s determination. [59] The application to dismiss the external review proceedings was rightly dismissed by the learned Member. Accordingly, the appeal is refused. -- 11 of 11 --