Challenging Decisions of the QBCC

Tuesday April 3rd, 2018

In December we published an article regarding the Queensland Building and Construction Commission’s (“QBCC”) dispute resolution functions. In that article we mentioned that a consumer or builder who is unsatisfied with a decision made by the QBCC is entitled to apply to administratively review the decision.

In Australia, persons who are “affected” by an administrative decision of a government department or the like are entitled to have the decision reviewed. Decisions made by the QBCC regarding the rectification of building work or a person’s entitlement to claim upon the QBCC’s statutory insurance scheme directly affect both the builder and the consumer, and therefore, they can apply for a review of the decision.

The purpose of an administrative review is to have an independent arbiter (“Reviewer”) review the decision itself and the reasons given by the original decision maker for making the decision with a view to determining whether the decision made was the correct and preferable decision.

An affected person (“Applicant”) can choose to an internal or external administrative review. Internal reviews are a relatively informal review conducted by a QBCC employee who was not involved in making the initial decision. While there is no set process for internal reviews, the Reviewer will usually consider the initial decision and any new evidence provided by the Applicant so that the Reviewer can decide if he or she agrees or disagrees with the original decision. Any decision made by an internal Reviewer is then a decision that can be externally administratively reviewed in the Queensland Civil and Administrative Tribunal (“Tribunal”) upon the application of an affected person.

Where an external administrative review to the Tribunal is chosen (whether after an internal review or not), once the application is made, the review proceedings will follow the standard process adopted by the Tribunal. The first requirement is for the QBCC to provide a statement of reasons for the decision under review. A statement of reasons is a detailed document that must set out exactly why the QBCC reached the decision it did. It is required to refer to all facts, matters and circumstances (including documents) relied upon by the original decision maker in reaching the decision as well as legal basis for the decision.

Once the statement of reasons is provided by the QBCC, the Applicant will have an opportunity to file any statements of evidence it relies on to support its position that the initial decision was not the correct and preferable decision. Once the Applicant has filed its evidence with the Tribunal, the parties will be required to attend what is called a compulsory conference which is essentially a mediation. Compulsory conferences are conducted by a member of Tribunal who is usually an expert construction lawyer with the aim of assisting the parties to resolve the dispute. Most review proceedings are resolved at the compulsory conference. If they don’t, the parties will be given an opportunity to file any further evidence they wish to rely on and the matter will then be listed for hearing (sometimes after a second compulsory conference).

While the Tribunal process is designed to be relatively informal so that litigants do not need to be legally represented, it can still be difficult for non-lawyers to represent themselves effectively because, despite efforts to make the process as less ‘legal’, there are still often complex questions of law and fact that need to be resolved.

The questions that are regularly asked by persons unsatisfied with decisions of the QBCC are:

  1. Is an internal or external review preferable?

Both avenues have advantages and disadvantages but, on balance, Applicants are generally better off skipping the internal review process and going straight to the Tribunal because:

  • The QBCC’s internal review team is overwhelmed by the sheer number of review applications it receives. It can take 6 to 12 months for a decision to be made in respect of an internal review application;
  • While external reviews may not actually be quicker, once an application is filed, the QBCC will be required to provide its statement of reasons within a reasonably short period of time (usually 4 to 6 weeks). The whole purpose of a statement of reasons is to provide the Applicant (and the Tribunal) with a detailed understanding of the decision made which means that after receiving it, you should have a better understanding of why the QBCC made the decision it did;
  • All external reviews to the Tribunal are handled by the QBCC’s in-house or external lawyers. That is often beneficial for an Applicant because the QBCC’s role in review proceedings is not to advocate for the QBCC’s interests, but rather it is to assist the Tribunal make the correct and preferable decision. Having a legal mind turn their attention to the decision and evidence filed by an Applicant may assist to inject some sense into the proceeding and may (in cases where the decision was not correct and preferable) result in early concessions by the QBCC and/or early resolution to the dispute.
  • The Tribunal’s compulsory conference process is essentially a mediation which is conducted by an expert construction lawyer who is experienced in QBCC review matters. The Tribunal’s members are very knowledgeable and many members will tell the parties exactly what he or she thinks of the decision and each party’s prospects of succeeding if the matter proceeds to a hearing. This keeps the QBCC honest and assists Applicants to assess the merits of proceeding with their application.
  1. Should you engage a lawyer to represent you?

In review proceedings many Applicants make the mistake of focusing on extraneous concerns about what the QBCC said or did during its decision making process and why they are unhappy with the QBCC’s conduct. What must be kept in mind is that the focus of the Tribunal will be whether the decision was the correct and preferable decision as a matter of law. Involving a lawyer early in the process can help to focus your evidence and material on the key problems with the QBCC’s decision. If the basis for your application is flawed and/or you have limited prospects of succeeding, early legal advice will assist you identify these issues and prevent you from wasting significant time and energy in pursuing an application that might be unlikely to succeed.

That said, you can engage representation at any time during the process. If you decide not to engage a lawyer initially, you may wish to do so prior to hearing. The majority of cases before the Tribunal relate to decisions about whether building work is defective and if so, whether the QBCC made the right decision to direct (or not direct) the builder to rectify the building work. In those circumstances, the most important evidence that an Applicant can provide is expert evidence from a builder or engineer which explains why the building work is defective (or not defective) as the case may be. Therefore, so long as you have the evidence you need to support your position, having legal representation up to and including the compulsory conference stage is less important. However, if the matter does not resolve at the compulsory conference (and if you have not already done so) it may be beneficial to engage a lawyer for the hearing so that you have the best chance of succeeding on your application.

The Tribunal is what is called a “no-costs jurisdiction” which means that, except in exceptional circumstances, all parties involved in proceedings before the Tribunal are required to bear their own legal costs. While there are exceptions, those exceptions are not common within review proceedings. This can be a double edged sword in that there is less risk of you having a costs order made against you if you are unsuccessful, but equally, you are likely to have to bear your own legal costs even if you are successful.

Ultimately, whether and when you decide to engage a lawyer is a matter for you. However, if you do engage a lawyer, make sure it is a lawyer who specialises in building and construction litigation against the QBCC so that you can get the best possible advice from lawyers who regularly practice in the jurisdiction.

In summary, if you are unsatisfied with a decision made by the QBCC and that decision directly affects you, it is worthwhile considering administratively reviewing the decision. It is important to keep in mind that not all decisions of the QBCC are reviewable and there may be good reasons why the QBCC made the decision it did, but equally, the QBCC sometimes just does get it wrong.

Sometimes it can be hard to decide if it is worthwhile applying for a review of a decision even if you engage a lawyer to assist you. If that is the case, it is worthwhile asking the QBCC to provide a formal statement of reasons for the decision. Section 158 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) requires persons who makes administrative decisions (such as the QBCC) to provide a statement of reasons where one is requested (even if an application for an administrative review has not yet been made). Obtaining a formal statement of reasons and discussing it with your lawyer will put you in the best possible position to make a fully informed decision as to whether you should apply for an administrative review.

If you decide to request a statement of reasons, you must do so within 14 days of the day you received the decision. Once the request is received, the person who made the decision is required to comply with the request within 28 days.

If you do decide to administratively review a decision, you are required to make the application within 28 days of the day you were notified of the decision or the day you received the statement of reasons (if you requested one pursuant to section 158 of the QCAT Act). The QBCC and Tribunal do have the power to grant an extension of time to Applicants who make their applications late. However, there are various circumstances in which an extension cannot be given. Therefore, prompt action can be critical.

This article was contributed by Nerida Whelan of Clarke Kann Lawyers.