QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission and De Luca Corporation Pty Ltd [2023] QCAT 139	
PARTIES:	Body Corporate for Parkside Bulimba CTS46539	

(applicant)	

	v	
	queensland Building and Construction commission
DE Luca Corporation Pty Ltd	

(respondent)	

APPLICATION NO/S:	GAR609-21	
MATTER TYPE:	General Administrative matters	
DELIVERED ON:	26 April 2023	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Member King-Scott	
ORDERS:	Application to Review is dismissed.	
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE
TRIBUNALS – QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL – whether direction to
rectify can be issued – where complaint made within 6 year and 6 month period - where time to seek external review expired - whether Tribunal can review the Commission’s decision not to extend time - whether application to review should be struck out. 

Building Act 1975 (Qld) ss.101, 102 & 105
Queensland Building and Construction Commission Act 1991 (Qld), s 72A, s 86A, s 86C, s 86E, s 87
Queensland Building Services Authority Act 1991(Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24

Barry v Queensland Building and Construction Commission [2015] QSC 50
Davis & Ors v Queensland Building and Construction Commission [2020] QCAT 189
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
Domestic Maintenance Pty Ltd v Queensland Building Services Authority [2012] QCATA 106
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125.
Jorg v Queensland Building and Construction Commission [2021] QCATA 134
Lawless v Queensland Building and Construction Commission [2019] QCAT 32
Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103
Schauer v K & S O’Brien Contractor Pty Ltd [2019] QCAT 37
Stephens v Queensland Building and Construction Commission [2018] QCAT 281
Tanna v Queensland Building and Construction Commission [2021] QCAT 170	
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)	

Applicant:	
King & Wood Mallesons	

Respondent:	
M Hudson for the Commission	

	
REASONS FOR DECISION
Background
[1]	The applicant Body Corporate for Parkside Bulimba CTS46539 (Parkside) is the body corporate for the residential unit complex situated in Bulimba, Brisbane.
[2]	De Luca Corporation Pty Ltd (the builder) constructed the unit complex at the property in two stages involving 22 residential units in the first stage and 23 residential units in the second stage. Construction was completed on Stage 1 on 23 October 2014 and on Stage 2 on 23 April 2015.
[3]	Cladding for the building was supplied by Auzmet Pty Ltd pursuant to a subcontract with the builder. There is a concern that there is significant fire risk to the building which could be spread via its façade which is constructed of combustible cladding.
[4]	On 11 September 2020, Parkside notified the builder of its concern with the cladding materials. 
[5]	On 29 January 2021, Parkside lodged a complaint with the Queensland Building and Construction Commission (the Commission) regarding the cladding used in common areas of the property.
[6]	Each complaint was stated to have been first noticed on 10 September 2020.
[7]	On 6 April 2021 the Commission carried out an initial inspection in response to Parkside's complaint.
[8]	The case was reviewed on 22 June 2021 by the Commission’s Technical Action Group sub-committee. On 27 June 2021 the Commission concluded that there was insufficient evidence to reveal any obvious defective construction practices by the builder. 
[9]	On 13 July 2021 the Commission decided not to give the builder a direction to rectify in response to the Parkside complaint.
[10]	Parkside requested an internal review of the decision on 9 August 2021.
[11]	On 12 August 2021, the Commission sought from Parkside an extension of time in which to decide the internal review application. That was agreed to and the effect of the extension was to change the statutory due date from 6 September 2021 to 8 October 2021.
[12]	On 20 August 2021 the Commission received documents from the builder and its solicitors provided submissions in response to the internal review application on 22 August 2021.
[13]	On 24 August 2021 the Commission conducted an inspection of the property for the purpose of the internal review.
[14]	On 26 August 2021, the builder provided further documentation to the Commission.
[15]	On 27 August 2021 Parkside’s solicitors provided its submissions to the Commission in response to the builder’s submissions.
[16]	On 7 October 2021 the Commission, by its Principal Review Officer, made the internal review decision not to give a direction to rectify or remedy to the builder.
[17]	Parkside has lodged an application in the Tribunal for an external review on 2 November 2021.
Legislation
[18]	The statutory framework for the Tribunal’s review jurisdiction is contained in the following provisions.
17 Generally
(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.

20	Review involves fresh hearing
(1) 	The purpose of the review of a reviewable decision is to produce the 	correct and preferable decision.
(2)	The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.

24	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.
		…
47	Dismissing, striking out or deciding if unjustified proceeding or part
(1)	This section applies if the tribunal considers a proceeding or a part of a proceeding is—
        (a)	frivolous, vexatious or misconceived; or
        (b)		lacking in substance; or
        (c)	otherwise an abuse of process.
	…

[19]	The powers and limitations of directions to rectify or remedy under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) includes:
72	Power to require rectification of building work and remediation of consequential damage
(1)	This section applies if the commission is of the opinion that—
        (a)	building work is defective or incomplete; or
        (b)	consequential damage has been caused by, or as a consequence of, carrying out building work.
(2)	The commission may direct the person who carried out the building work to do the following within the period stated in the direction—
        (a)	for building work that is defective or incomplete—rectify the building work;
	(b)	for consequential damage—remedy the damage.

72A Powers and limitations of directions to rectify or remedy
(1) 	… 
(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.

 86E defines for the purpose of sub-division 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.
[20]	Under s. 86 (1)(e) of the QBCC Act a decision, by the Commission, to give a direction to rectify or a decision not to give a direction to rectify is reviewable.
[21]	A person who is given notice of a reviewable decision may elect to apply for an internal review of the decision under s. 86A(1) or may apply to QCAT for a review of the decision under s. 87 of the QBCC Act.
Strike out application
[22]	The Commission has filed an Application for Miscellaneous Matters on 1 March 2022 to dismiss Parkside’s Review Application under s. 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) on the basis that the application is lacking in substance and is misconceived, in that the substantive relief sought by Parkside cannot be granted by the Tribunal. The Commission’s reasons are:
(a)	The time to give a direction to rectify to the builder has passed, as more than 6 years and 6 months has passed since the work was completed; 
(b)	The Tribunal cannot extend the time to give a direction to rectify unless an application is made by the Commission in the Tribunal’s original jurisdiction;
(c)	The Commission has elected not to make an application to extend the time to give a direction to rectify to the builder; and
(d)	The substantive relief sought by Parkside in the proceeding cannot be granted and the review application has no prospects of success.
[23]	The statutory time for directing any rectification work expired on 23 April 2021 for Stage 1 and 23 October 2021 for Stage 2.
[24]	Parkside in its response seeks the following relief
(a)	Set aside the review decision;
(b)	Issue a direction to rectify the cladding the subject of Stage 1 and Stage 2 complaints;
(c)	In event the statutory time limit has expired under s.72A of the QBCC Act, return the matter to the Commission for reconsideration with a direction to consider exercising its power under s.72A(4) of the QBCC Act to make an application to QCAT for an extension of time.
Issues to be determined
When was the building completed
[25]	A preliminary issue is how is the date of completion determined?
[26]	In Davis & Ors v Queensland Building and Construction Commission, the Tribunal considered whether building work was ‘completed’ for the purposes of s 72A(4) when the contracted works were completed (referred to by the Tribunal as ‘the 2009 work’) or when subsequent rectification work in respect of the contracted works was completed (referred to by the Tribunal as ‘the 2015 work’).
[27]	The Tribunal held:
[30] Those words (‘was completed or left in an incomplete state’) must be given
meaning. The trigger question to be answered in applying s 72A(4) is, when was the building work completed or left incomplete? 
[31] The word completed is not defined in the Act however: 
The term ‘completed’ must be read in the context of the phrase in which it appears. The word should be given its ordinary meaning of ‘finished’. The Act and Policy fix a point in time by reference to when the building work was either finished or left in an incomplete state. 
[32] Building work is defined and it covers a range of things. It includes erection
or construction of a building and site work and preparation of plans, and improvement and repair of a building.
[33] In Barry v QBCC the meaning of building work was considered in the context of s 72A(4) with Flanagan J noting contract administration was included
in the definition. He said that expression, contract administration, was in turn defined under the Act to include arranging for certificates to be issued, including
certificates from a local government.
[34] Flanagan J said that the time limit under s 72A(4) for defective building work runs from when the building work completes, building work includes contract administration and accordingly, in the matter before him, the time limit for QBCC to issue a direction to rectify started from the date of issue of the final inspection certificate. That was the date the building work completed for the purpose of s 72A(4).
[35] Here, after the building work was done in 2009, a certificate of classification issued on 10 July 2009. Applying Barry, the relevant period allowed QBCC to issue a direction to rectify under s 72A(4) commenced then and finished 6 years and 6 months later, on 10 January 2016. 
(footnotes omitted)

[28]	The above passage was quoted with approval by the Tribunal in Jorg v Queensland Building and Construction Commission [2021] QCATA 134.
[29]	It is helpful to refer to a passage from the decision of Flanagan J in Barry v Queensland Building and Construction Commission  . His Honour said at [24]:
[24] To the extent that the applicant relies on the decision in Torea Pty Ltd v Queensland Building Services Authority, I am of the view that the case was wrongly decided. As I have already observed, the term “building work” is a defined term in the QBCC Act. Section 32A of the Acts Interpretation Act 1954 (Qld) provides that definitions in or applicable to an Act apply except so far as  the context or subject matter otherwise indicates or requires. The words “the building work to which the direction relates” does not indicate that “building work” is to have other than its defined meaning. The defined meaning of “building work” includes not just the physical construction of the deck but also arranging for a certificate to be issued. The legislature, had it intended to limit “the building work to which the direction relates” to the defective building work identified in the direction, could have used other terms such as “the building work referred to in the direction” or “the building work the direction requires to be rectified” rather than the broader term “the building work to which the direction relates”.
[25] The word “relates” in s 72(8) is a word of broad import. The use of the word “relates” does nothing more than simply identify the whole of the building work that is to be completed.

[30]	In Jorg (supra) the Tribunal found, following the reasoning in Davis and Stephens v Queensland Building and Construction Commission, that the building works were completed when the Form 21 final certificate was issued on 12 July 2012, consequently, the period of 6 years and 6 months for the purposes of s 72A(4) began to run from 13 July 2012. 
[31]	The Commission says that construction was completed on Stage 1 on 23 October 2014 and on Stage 2 on 23 April 2015. It submits that the completion of Stage 1 and Stage 2 involve the construction of two separate three-level unit complexes. The extent of their separation is denoted by separate building development approvals, despite each building being situated on the same property. 
[32]	The Commission submits that the completion of the relevant building work occurred on the date of the Certificate of Classification for each stage. Such certification is given on the basis each building was substantially completed as that term is defined by section 101 of the Building Act 1975 (Qld). The issuing of a Certificate of Classification pursuant to sections 102 and 105 of the Building Act 1975 (Qld) is a clear and pragmatic method to signify the end of all of the aspects of building work that come together to make up the construction of a building.  This, it submits, is the case despite the building work forming staged parts of a development project.
[33]	Parkside submits that the date of the final certificate of classification for the building (being the Certificate of classification for stage 2) is a clear and pragmatic method to signify the completion of the whole of the building at Parkside Bulimba. 
[34]	Parkside submits there is no need to treat the installation of combustible cladding at Stage 1 and Stage 2 of Parkside Bulimba and the issuing of separates certificates of classification for Stage 1 and Stage 2 as separate building work for the purpose of applying the time period in section 72A(4) of the QBCC Act.
[35]	Parkside relied on the decisions of Barry (supra) and Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd. Both of these decisions consider whether building works have been divided into discrete components for the purpose of assessing when that work was completed. Parkside does not suggest what that date should be. In its Application to Review it submits that the completion date should be 1 March 2023 as the period should include the defects liability period. Interestingly, that submission is not carried over to its submissions on the application to dismiss.
[36]	In my opinion, the authorities are against a construction that would include the defects period. On my calculations, if the Certificates of Classifications are relied upon, then the completion date was 23 April 2015 and time had expired by 23 October 2021 at the latest.
[37]	However, for the reasons hereunder, I don’t think anything turns on the distinction.
Can the Tribunal grant substantive relief?
[38]	Parkside submits that the application concerns the need to urgently address a need to rectify combustible cladding affixed to the building. The only expert evidence filed in the proceeding is to the effect that the cladding presents an undue risk. It submits that there are factual issues to be determined, such as when construction was completed. These are sufficient reasons it says to dismiss the Commission’s application.
[39]	It submits the Tribunal has the jurisdiction to extend time. It says time has not expired  and even if it has the Tribunal should direct the Commission to make an application for an extension.
[40]	Parkside submits that implicit in its application for review was the decision of the Commission not to apply for an extension of time under s.72A(4) of the QBCC Act.
[41]	It submits that unlike many of the reviewable decisions listed in s.86 of the QBCC Act, s.86(1)(e) does not include a limiting reference to a specific section of QBCC Act and is not limited to just a decision under s.72. This, it submits, indicates that factors outside the ambit of s.72 of the QBCC Act are relevant considerations. Further, it submitted the decision as to whether to apply to the Tribunal for an extension is not expressly listed as a decision “that is not a reviewable decision” in s.86F of the QBCC Act. Parkside submits that as a matter of construction s.86(1)(e) of the QBCC Act would encompass the broader decisions described in Division 2 of Part 6 of the QBCC Act (the rectification provisions).
[42]	Further, reliance is placed, by Parkside, on a statement by the Commission that it has not considered whether it was fair and reasonable to issue a direction to rectify linked with its statement that it had not considered whether or not to apply to the Tribunal for an extension of time indicated that it was part and parcel of the broader reviewable decision.
[43]	Parkside says that the Commission has fundamentally misunderstood the legislative regime when it submitted that the time period assessed by the Tribunal is at the date the Review Application was filed as opposed to the date when the review decision is being reviewed. Parkside over looks the effect of the time limit which is not procedural but jurisdictional. That is, the Tribunal does not have jurisdiction unless the Application for Review is filed before the expiration of the time limit.
[44]	Section 24(1)(c) of the QCAT Act states that the Tribunal may “set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the tribunal considers appropriate”. Parkside submits there are no limits to the QCAT Act as to what the Tribunal can “direct” the decision maker to do in respect of a reviewable decision. It follows, that a direction in relation to the extension of the period in section 72 of the QBCC Act is relief that is perfectly permissible for the Tribunal to grant.
[45]	Parkside submits that despite the making of an application by the Commission pursuant to s. 72A(4) being a precondition to the Tribunal’s jurisdiction to grant an extension of time under s. 72A(4), the Tribunal has the power to remit the question of whether to seek an extension to the Commission for reconsideration
[46]	The Commission submits that whilst it is open to the Tribunal to set aside the decision and return the matter to the Commission for reconsideration, the Tribunal cannot make any orders as to what any such reconsideration decision would be.
[47]	In any case, the Commission submits that this would not be the correct and preferable decision as the time to give a direction to rectify to the builder has already expired prior to the filing of the Review Application (and in the case of Stage 1, also prior to making the Internal Review Decision).
[48]	It further submits that the Tribunal cannot permit an extension of time for the Commission to give a direction to rectify to the builder unless such an application is made by the Commission. Similarly, the Tribunal cannot order that the Commission makes such an application, and it is entirely within the discretion of the Commission as to whether to make such an application.
Dismissal under s.47 of the QCAT Act
[49]	The Commission has referred to a number of decisions of the Tribunal relating to the matters to be considered in an application to dismiss a proceeding. It is clear from those authorities that such action should only be taken in the clearest of cases. 
[50]	The decision of Dey v Victorian Railways Commissioners is authority for the proposition that in considering a strikeout application, the evidence should be weighed in order to reach a conclusion about whether or not a claimant has an arguable case. It does not require a determination on the merits. Striking out should be sparingly granted to prevent abuse of process when a claim is groundless or futile. But if there is a real question of law or fact to be determined, then summary dismissal is not appropriate. A lack of any cause of action must be very clear. The party seeking to strike out must demonstrate a high degree of certainty about the outcome if the proceeding is allowed to continue.
[51]	Barwick CJ in General Steel Industries Inc v Commissioner for Railways NSW:
The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
Resolution
[52]	The Commission decided not to give a direction to rectify on 13 July 2021. Parkside filed its Internal Review Application on 9 August 2021. In the internal review, the Commission, on 7 October 2021, decided not to give a direction to rectify or remedy to the builder.
[53]	Time for the making of a direction under s.72A(4) of the QBCC Act expired, at the latest, by 23 October 2021. 
[54]	Parkside filed it application for external review on 2 November 2021. 
[55]	Had it done so before 24 October 2021 it could have preserved its position. The reviewable decision would have been the 7 October 2021. Pursuant to s.24(2)(b) of the QBCC Act the Tribunal’s decision would have effect from within the six year and six-month period.
[56]	The Tribunal can extend time under s.72A(4) of the QBCC Act only on the application of the Commission. That is not a reviewable decision under s.86(1)(e) of the QBCC Act.
[57]	Parkside relies upon Section 24(1)(c) of the QCAT Act and submits that the Tribunal may “set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the Tribunal considers appropriate”. Parkside submits that there are no limits to the QCAT Act as to what the Tribunal can “direct” the decision maker to do in respect of a reviewable decision. It then submits that a direction in relation to the extension of the period in s. 72A(4) of the QBCC Act is relief that is perfectly permissible for the Tribunal to grant.
[58]	I refer to the decision of Jorg (supra) and respectfully agree with the observations of the Tribunal where they said:
Section 24(1) of the QCAT Act begins with the words ‘In a proceeding for a review of a reviewable decision...’. The section assumes that the tribunal has jurisdiction in a particular review proceeding. The jurisdiction of a court, or in this case a tribunal, is not to be confused with its powers. 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 
[59]	In Domestic Maintenance Pty Ltd v Queensland Building Services Authority Judicial Member Hon J B Thomas considered a similar application under the predecessor of the QBBC Act, the Queensland Building Services Authority Act 1991 (Qld), where a builder was out of time to apply for a review of a direction to rectify which had a time limitation of 28 days. Judicial Member Thomas held that the provision of the Act was mandatory and, if 28 days had elapsed from the date of the direction to rectify, there was simply no jurisdiction for the Tribunal to review the matter. In respect of an application to extend time he said that it was doubtful that such a power (under the QCAT Act) could be ancillary to a jurisdiction that did not exist but in any event it would be absurd to extend time for a view that the Tribunal was prohibited from conducting.
[60]	Whether there are special circumstances is irrelevant to the Tribunal as it has no jurisdiction to intervene unless the Commission makes an application for it to do so. Parkside referred to the decision of Lawless v Queensland Building and Construction Commission. There the Commission made an application to the Tribunal under s.72A(4) of the QBCC Act which the Tribunal granted. The decision does not assist in resolving the issue here.
[61]	It follows that I do not consider that there is any basis for the Tribunal to extend the time limit absent an application by the Commission, which the Commission has indicated it does not intend to make.
[62]	The Commission rightly recognises that the QBCC Act in this case has produced a counterintuitive and unfortunate result for Parkside. There have been a number of decisions in recent times, similar to this, where the Commission has taken an ordinate amount of time to reach a decision often with the consequence that the period of 6 years and 6 months has expired. Often, this has resulted in genuine and justified claims being defeated and exposes the Commission to allegations of incompetence and even bad faith. I believe it is more likely the result of insufficient resources and inefficiencies within. Despite this the Tribunal is powerless to assist. It is time that Parliament revisited this legislation to correct this anomaly.
[63]	I have considered the seriousness of a decision to dismiss the application for review on a summary basis, unfortunately, I do not see any way that the matter can proceed without an extension of time. Therefore, I dismiss the application to review under s. 47 of the QCAT Act.