Blundell v Queensland Building and Construction Commission [2018] QSC 58

SUPREME COURT OF QUEENSLAND CITATION: Blundell v Queensland Building and Construction Commission and others [2018] QSC 58 PARTIES: JASMIN MAREE BLUNDELL (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) DARRYL HATHWAY PAINTING & DECORATING PTY LTD (second respondent) QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL (third respondent) FILE NO/S: BS No 12203 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 23 March 2018 DELIVERED AT: Brisbane HEARING DATE: 19 January 2018 JUDGE: Martin J ORDER: 1. The Application for a statutory order of review is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – EXISTENCE OF OTHER REVIEW OR APPEAL RIGHTS – where applicant engaged second respondent to do work – where applicant, dissatisfied with said work, purported to terminate contract on basis of second respondent’s default – where applicant also made non-completion claim to first respondent – where decisions were subsequently made by the first respondent in relation to the claim about scope of works – where the applicant sought statutory order of review of those decisions – where the first respondent brought cross- application for an order dismissing the application under s 13 of Judicial Review Act 1991 – whether the application for statutory order of review should be dismissed – whether the application for statutory order of review is under ss 20-22 or 43 of Judicial Review Act 1991 – whether the application for statutory order of review is in relation to a reviewable matter – whether there is provision under another law which entitles -- 1 of 11 -- 2 the applicant to seek review by another court, tribunal, authority or person – whether it is in the interests of justice to dismiss the application – whether, in determining if it is in the interests of justice to dismiss the application, there exists a public interest – whether, in determining if it is in the interests of justice to dismiss the application, the quantum involved requires another jurisdiction to resolve the dispute Judicial Review Act 1991 Queensland Civil and Administrative Act 2009 Queensland Building and Construction Commission Act 1991 BHP Billiton Ltd v Schultz (2004) 221 CLR 400 Fletcher & Ors v Fortress Credit Corporation (Australia II Pty Ltd) [2012] QSC 359 Nelson v Q-Comp [2004] QSC 167 Stubberfield v Webster [1996] 2 Qd R 211 Turner v Valuer’s Registration Committee of Queensland [2001] 2 Qd R 100 COUNSEL: J A Lovel (Solicitor) for the applicant S Moody for the first respondent B Long (Solicitor) for the second respondent SOLICITORS: Byrne & Lovel Lawyers for the applicant Queensland Building and Construction Commission for the first respondent Celtic Legal for the second respondent [1] In March 2017 the applicant engaged Darryl Hathway Painting & Decorating Pty Ltd (DHPD) to paint her house at Bulimba. Her dissatisfaction with the work which was performed led to a decision by the first respondent (QBCC). The applicant seeks to review that decision under the Judicial Review Act 1991 (JR Act). QBCC has brought a cross- application for an order under s 13 of the JR Act dismissing the application. [2] The second respondent was given leave to withdraw from the hearing of this application. [3] Section 13 of the JR Act provides: “13. When application for statutory order of review must be dismissed Despite section 10, but without limiting section 48, if— (a) an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter; and (b) provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person; the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so.” -- 2 of 11 -- 3 The background [4] Ms Blundell was disappointed with the work done by DHPD in painting the exterior of her house. She alleged that the job had not been completed and was, in any event, defective. On 19 June 2017 she purported to terminate the contract on the basis of DHPD’s default. On the same day she submitted a “Non-completion Claim Form - Residential Construction Work” to the QBCC with respect to the work carried out. [5] In that claim she alleged that paint had been applied in some areas without the surface having been primed, and then, with only one layer of top coat. This claim served as notice by her of her intention to make a claim on the scheme pursuant to s 71C of the QBCC Act. [6] Ms Blundell attached a “paint inspection report” from Integrity Coatings Inspections and Project Management. That report contained a detailed inspection of the matters of complaint and, so far as relevant, the following conclusion: “The broad walls to both sides and rear of the property have not been primed as quoted and there are multiple locations in each area where the topcoat is grinning and showing the underlying ochre. These walls have not been primed as quoted and have in most cases had a single application of topcoat. A commercial outcome needs to be negotiated as it would be far too significant to strip all unprimed walls at this stage. We would be recommending a full and liberal extra coat to all broad walls, downpipes and other painted surfaces to the sides and rear of the property with a negotiated credit for the primer that has not been applied.” [7] Correspondence then took place between the applicant and QBCC and certain actions were taken. A summary of those matters follows: (a) QBCC told the applicant that in order for her to be entitled to make a claim for non-completion she must be found to have properly terminated the contract with DHPD. (b) Ms Blundell’s lawyer wrote to the QBCC advising that the claim was not for defective works and that “under no circumstances will the contractor be permitted on the property”. (c) On 28 July 2017 QBCC made a decision that the contract had been validly terminated by the applicant, that her claim under the statutory insurance scheme should be accepted, and that QBCC would proceed to determine the scope of works required to complete the paintwork under the contract. (d) DHPD applied for an internal review of the decision concerning the termination of the contract. (e) QBCC sent an email to Ms Blundell telling her that DHPD had filed that application and invited her to make submissions on the application. (f) Ms Blundell did not make submissions in relation to DHPD’s internal review application. -- 3 of 11 -- 4 (g) On 6 September 2017 a senior claims officer at QBCC made a decision about the scope of works required to complete the paintwork. (“first SOW decision”) (h) That decision incorporated a statement that Ms Blundell could seek an internal or external review of that decision and attached a “scope of works” which included items specified with respect to incomplete or defective works. (i) The scope of works stated that the affected walls were to be sanded with additional top coats applied. (j) Ms Blundell alleges that she was not afforded any opportunity to make submissions before the decision about the scope of works was made. (k) On 13 September 2017 an internal review officer affirmed the decision made concerning the termination of the contract. (l) On the same day a copy of that decision was sent to Ms Blundell. (m) On 22 September 2017 Ms Blundell applied for an internal review of the decision concerning scope of works. (n) In setting out why she said the original decision was wrong, the following was included: “The scope of works does not put the owner in the position she would be in had the contract been properly performed in that: (a) there is no provision for stripping and properly preparing the substrate, in particular, the boards; and (b) there is no allowance to prime the boards.” (o) On 11 October 2017 DHPD filed an “application to review a decision” with the Queensland Civil and Administrative Tribunal seeking an external review of the decision relating to the termination of the contract. (p) On 23 October 2017 a senior internal review officer at QBCC affirmed the decision concerning the scope of works (“second SOW decision”). That decision referred to the report originally provided by Ms Blundell and said: “… It appears that it would not be reasonable to pay the cost of stripping, preparing the substrate and priming the external walls. In my view, the reasonable cost of completing the work will extend only to sanding and applying additional top coats to the external wall surface and attach fixtures. I therefore approve the scope as originally drafted.” (q) On 20 November 2017 DHPD filed an application to review the decision concerning the scope of works with QCAT – that proceeding is matter GAR 346-17 in QCAT. [8] On 20 November 2017 Ms Blundell filed an application for a statutory order of review of the first and second SOW decisions. About a month later the application was amended to refer to those decisions as “purported” decisions. The grounds of the application were amended to read: “1. Acted on no evidence in finding that: -- 4 of 11 -- 5 (a) “it appears that it would not be reasonable to pay the cost of stripping, preparing the substrate and priming the external walls”; and (b) “the reasonable cost of completing the work will extend only to sanding and applying additional top coats to the external wall surface and attached fixtures”. 1A. The first respondent failed to provide proper reasons for the Decision. 2. A breach of natural justice happened in relation to the making of the Decision. Particulars A. The making of the Decision clearly would have an effect upon the applicant as the person who: (i) had claimed assistance under the Statutory Insurance Policy; and (ii) sought internal review pursuant to 86C of the Queensland Building and Construction Commission Act 1991 (Qld). B. The applicant was not afforded an opportunity to be heard or make submissions before the first respondent made the Decision. 2A. The Decision was not authorised under the enactment under which it was purported to be made. 3. The Decision was an improper exercise of power conferred by the Queensland Building and Construction Commission Act 1991 (Qld) in that the first respondent: (a) failed to take a relevant consideration into account in making the Decision, namely: (i) sections 67WA to 68 of the Queensland Building and Construction Commission Act 1991 (Qld); (ii) section 24 of the Queensland Building and Construction Commission Regulation 2003; (iii) Schedule 2C of the Queensland Building and Construction Commission Regulation 2003, save for section 7 of that Schedule; and (iv) the decision of June Blaney, Internal Review Officer of the first respondent, made on 13 September 2017. (b) took an irrelevant consideration into account in making the decision, namely, whether it would be “too significant” or not “commercial” for the first respondent unless the first respondent made the Decision. 4. The decision involved an error of law. -- 5 of 11 -- 6 Particulars A. the applicant repeats and relies upon Grounds 1 to 3 above; B. the Statutory Insurance Policy requires the first respondent to indemnify the applicant up to a maximum value of $200,000 for the painter’s failure to properly perform the written agreement; C. section 7 of Schedule 2C of the Queensland Building and Construction Commission Regulation 2003 on its proper construction contemplates that the quantum of assistance the first respondent must provide the applicant is “the reasonable cost of completing the residential construction work” according to the terms of the applicant’s written agreement with the painter (emphasis added); and D. section 7 of Schedule 2C of the Queensland Building and Construction Commission Regulation 2003 does not entitle the first respondent to decline to provide the applicant with assistance or indemnification to complete the Incomplete Painting Work merely because the first respondent expects that it could be 'too significant' or not “commercial”. 5. The Decision was attended by manifest irrationality and illogicality. 6. The Decision was made in excess of jurisdiction and is infected with jurisdictional error.” [9] The description of the decisions as “purported” is, it appears, based upon the contention that the decisions are nullities. I deal with that argument below. [10] The relief sought by the applicant is as follows: “1. An order setting aside the decision of the first respondent dated 23 October 2017. 2. An order directing the first respondent to consider the applicant’s claim according to law. 2A. Further or alternatively, a prerogative order under section 43(1) of the Judicial Review Act in the nature of certiorari quashing the Decision. 2B. Further or alternatively, a declaration under section 43(2) of the Judicial Review Act that the Decision is of no effect. 2C. Further or alternatively, a prerogative order under section 43 of the Judicial Review Act in the nature of mandamus requiring the first respondent to decide the applicant’s claim for assistance according to law. 2D. A prerogative order under section 43(1) of the Judicial Review Act in the nature of mandamus requiring the Queensland Civil and Administrative Tribunal to dismiss the application to review a decision in case number GAR346-l7 filed in the Brisbane Registry of -- 6 of 11 -- 7 the Queensland Civil and Administrative Tribunal on 20 November 2017. 2E. Further of [sic] alternatively, a prerogative order under section 43(1) of the Judicial Review Act in the nature of prohibition forbidding the Queensland Civil and Administrative Tribunal from making any decision in respect of the application to review a decision in case number GAR346-17 filed in the Brisbane Registry of the Queensland Civil and Administrative Tribunal on 20 November 2017. 3. Costs. 4. Such further or other orders as the Court deems appropriate.” Is section 13 of the JR Act satisfied? [11] For an application for statutory order of review (the JR application) to be dismissed under s 13 the court must be satisfied: (a) That the JR application is under ss 20-22 or 43 and is in relation to a reviewable matter, (b) That there is a provision under another law which entitles the JR applicant to seek a review by another court, tribunal, authority or person, and (c) That, having regard to the interests of justice, it should dismiss the JR application. Is the JR application under ss 20-22 or 43 and is it in relation to a reviewable matter? [12] The grounds advanced by Ms Blundell incorporate grounds available under s 20:  s 20(2)(a) Ground 2  s 20(2)(d) Ground 2A  s 20(2)(e) Ground 3  s 20(2)(d) Ground 6  s 20(2)(f) Grounds 1A and 4  s 20(2)(h) Ground 1. [13] Ms Blundell argues that s 13 does not apply because the decisions which she seeks to review are not “reviewable matters” as defined in s 3 of the JR Act. That immediately raises the question: if they are not reviewable matters, then how does her own application fall under the JR Act? All the grounds advanced in the JR application rely upon s 20 of the JR Act. A “reviewable matter” is, among other things, a decision. Section 20 contemplates the existence of a “decision” which is made by a person without the necessary authorisation or jurisdiction, or one which is made in breach of the rules of natural justice. The mere fact that a decision might be defective because of one of those matters does not make it any less a decision for the purposes of the JR Act. -- 7 of 11 -- 8 [14] It was argued that QBCC did not afford Ms Blundell an opportunity to be heard or make submissions during the review under s 86C of the Queensland Building and Construction Commission Act 1991 (QBBC Act). That was the review which led to the second SOW decision. Whether that was done or whether it should have been done is a matter which is irrelevant if there is a review conducted by QCAT. Ms Blundell would have an opportunity to provide further evidence. Is there a provision under another law which entitles the JR applicant to seek a review by another court, tribunal etc? [15] Section 3 of the JR Act defines “review” as including: “… a review by way of— (a) reconsideration, rehearing or appeal; or (b) the grant of an injunction or of a prerogative or statutory writ or order; or (c) the making of a declaratory or other order.” [16] Section 87 of the QBBC Act provides that: “A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.” [17] A “reviewable decision” includes a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work – see s 86(1)(g) QBBC Act. [18] Section 17 of the Queensland Civil and Administrative Act 2009 (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. (2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.” [19] For the purposes of s 17 of the QCAT Act, the QBBC Act is an enabling Act. See s 6(2) of the QCAT Act. [20] The review by QCAT is the usual type of review conducted by similar tribunals around Australia: (a) it is a merits review, (b) there is a fresh hearing on the merits, (c) the purpose of the review is to produce the correct and preferable decision, (d) the tribunal can receive fresh evidence, (e) it can: (i) confirm or amend the decision; or -- 8 of 11 -- 9 (ii) set aside the decision and substitute its own decision; or (iii) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the tribunal considers appropriate. [21] Questions of law may be referred to the President who may also refer a question of law to the Court of Appeal. [22] An appeal lies from QCAT’s decision to the QCAT Appeals Tribunal or, depending upon the status of the member, to the Court of Appeal. [23] The review process outlined above clearly falls within the notion of a “review” within the meaning of that term in s 13(b) of the JR Act. The interests of justice [24] Ms Blundell argues that the interest of justice do not favour the dismissal of their application. She points to the additional relief sought in the JR application. [25] First, she seeks an interlocutory order “suspending” the operation of the QBCC’s decisions. Ms Blundell submits, correctly, that QCAT is prohibited from granting a stay of those decisions. (See s 87A QBCC Act.) But, a stay will not be ordered unless it is necessary. Ms Blundell seeks a stay because, as was submitted during the hearing, “she does not want the painter in her home, especially while it’s under review”1. Following that submission, the QBCC gave an undertaking not to direct DPHD to engage in any work on Ms Blundell’s house. There was no evidence that DPHD would trespass upon Ms Blundell’s property in order to perform work which it says (in the QCAT matters) need not be done. There is no need for a stay of either decision in those circumstances. [26] Ms Blundell also argues that, as she is seeking relief in the nature of a prerogative writ against both QBCC and QCAT, this matter should not be dismissed. [27] The relief in the nature of prerogative orders sought by Ms Blundell is, essentially, otiose. The orders by way of prerogative relief which are sought in the amended JR Application seek orders against the QBCC or QCAT. The orders sought against QBCC are to quash the decisions made by it, or that it be declared that those decisions are of no effect, or that an order in the nature of mandamus issue requiring QBCC to decide the applicant’s claim for assistance according to law. That is essentially the same relief as is sought under the ordinary provisions of the JR Act. No additional grounds are advanced to support the need for such orders. [28] Orders in the nature of mandamus requiring QCAT to dismiss the application filed by DHPD or further, or in the alternative, prohibition forbidding QCAT from deciding that case are also sought. No basis was advanced for the making of these orders either together (in which case, they would be inconsistent) or in the alternative. 1 T1-26, line 10 – 15. -- 9 of 11 -- 10 [29] It is also argued that there is a public interest aspect to this. That is, with respect, an overreaching submission. Ms Blundell argues that an important issue arises in this case with respect to the question of the extent of indemnity available under the statutory insurance scheme for the non-performance of insured work. That appears to be based on the misconception that the statutory scheme is there to provide for recompense equivalent to damages for breach of contract. It was argued that the statutory insurance scheme should be interpreted in such a way that a person in Ms Blundell’s position would be entitled to receive money equivalent to that which would put her in the position that would have obtained had the contract been performed as she maintains it should have been. That is not the case. Ms Blundell’s entitlement to claim assistance under the scheme is governed by Parts 2, 4 and 5 of Schedule 2C of the QBCC Regulation. Sub-clauses 7(1) and (5) of that schedule relevantly provide: “The consumer is entitled to claim assistance for the reasonable cost of completing the residential construction work.” [30] Mr Lovel identified the error of law in this way: “The error was [sic: of] law was that they did not include in their scope – the decision is a scope of works. They did not include in the scope of works any provision for priming, for applying the primer, in conformity with the contract. So that’s the error of law.” 2 [31] These are the types of matters which are dealt with on a regular basis by QCAT. I note that the decision by the QBCC on this point was consistent with the expert evidence provided to the QBCC by Ms Blundell. [32] It has long been accepted that “as a general rule judicial review should not be seen as a substitute for the appellate process in the civil court.”3 The same applies for review processes available through a tribunal such as QCAT. [33] The “interests of justice” permits consideration of a wide range of factors which may include the public interest and will usually include the interests of the parties themselves.4 Ms Blundell relied upon Nelson v Q-Comp. 5 In that case there was also a claim that there was a breach of the rules of natural justice. Mullins J, in addressing the issue, said: “[45] … There is a distinct public interest in ensuring that the decision making entrusted to the respondent fulfils its object. In the circumstances in which the respondent made the decision in this matter, weight should be given to the public interest in ascertaining whether the respondent did err in failing to provide procedural fairness to the applicant before making the decision. The appeal to the Industrial Magistrates Court would not be able to consider that matter.” 2 T1-27, line 32. 3 Stubberfield v Webster[1996] 2 Qd R 211 at 217;Turner v Valuer’s Registration Committee of Queensland [2001] 2 Qd R 100. 4 Fletcher & Ors v Fortress Credit Corporation (Australia II Pty Ltd) [2012] QSC 359 at [24]; BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [15]. 5 [2004] QSC 167. -- 10 of 11 -- 11 [34] In this case, Ms Blundell was given an opportunity to put further evidence or submissions before the QBCC in its internal review process. She did not take advantage of that. [35] On an application of this kind under the JR Act, the court is confined to issues of law. Even if Ms Blundell were to be successful on a JR application of this kind, it would be most unlikely that the court could decide the ultimate issue. The usual order would be to require the QBCC to reconsider the matter in the light of the court’s reasons. In other words, a new decision on the merits would be made, with Ms Blundell able to provide new evidence and make further submissions. Which is what would happen in QCAT, but without the need for a hearing in this court. [36] Another relevant matter is that the quantum of the amount that would be equivalent to the “reasonable cost of completing” the work is a matter better considered by a merits review tribunal. It is not in the interests of justice for the parties to this application to be engaged in the Supreme Court where the amount involved, on any view of the facts, is in the order of $20,000 and where there is a tribunal which has all the jurisdiction and power necessary to resolve the dispute. [37] I am satisfied that it is in the interests of justice that this application should be dismissed. [38] The JR application is dismissed. -- 11 of 11 --