Under the Queensland Building and Construction Commission Act 1991 (Act) the Queensland Building and Construction Commission (QBCC) is empowered to make a variety of decisions including, but not limited to:
- issuing to a builder a notice to rectify defective domestic building work;
- disallowing a claim under the statutory insurance scheme wholly or in part; and
- determining that a person is an excluded individual for licensing purposes.
Being human, the officers of the QBCC when making a decision do not always get it right.
For this reason, the Act sets out processes that enable an aggrieved stakeholder to have a decision reviewed internally by QBCC, and if deemed appropriate, externally by the Queensland Civil and Administrative Tribunal (QCAT).
However, in both instances strict time limits for seeking a review apply.
Internal Review by QCAT
Section 86 of the Act contains a long list of decisions capable of internal review, the most common review applications dealing with directions to rectify alleged defective domestic building work and claims made upon the statutory insurance scheme. Under section 86A of the Act, a person who is given notice of a reviewable decision may apply for internal review of the decision by QBCC.
Significantly, the application for review may relate not just to a decision or direction to do something, but also to a decision or determination not to do something. For example, a decision not to issue a direction to rectify alleged defective domestic building work or to disallow a claim upon the statutory insurance scheme, is amenable to an internal review application.
Under section 86B of the Act, an internal review application must be made within 28 days after the applicant is given notice of the reviewable decision, or a longer period allowed by the internal reviewer, whether before or after the end of the 28 day period.
Interestingly, a decision by QBCC not to extend time / accept an application for internal review lodged outside of the section 86B 28 day period is also a decision amenable to external review by QCAT as illustrated in the decision of Pantha Homes QLD Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 456.
Under section 86C of the Act, the internal reviewer must, as soon as practicable but within the ‘required period’, make an internal review decision. ‘Required period’ is defined under section 86C(2) of the Act as being 28 days after the internal review application is made, unless a longer period is agreed to by the applicant for the internal review.
It is to be noted that under section 86C(3) of the Act, 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. In other words, the original decision stands.
The internal QBCC reviewer however must not be the person who made the original decision or be a person in a less senior office than the person who made the original decision.
Finally, under section 86D of the Act, as soon as practicable after an internal review decision is made or is taken to have been made, the applicant and any other person affected by the decision must be given written notice stating among other things:
- the internal review decision;
- reasons for the internal review decision;
- notice about external review by QCAT of the QBCC internal review decision; and
- how to apply for external review by QCAT of the QBCC internal review decision.
Takeaways
The issue confronted by an applicant for a QBCC internal review is assembling and presenting within the 28 day application period the evidence to support the overturning of the decision made at first instance. Given this strict time limit and the cost and inconvenience that can be occasioned by having to make a QCAT external review application, parties aggrieved by a QBCC decision need to take prompt legal advice to protect their position.
Further references
Cases
Pantha Homes QLD Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 456
Legislation
Queensland Building and Construction Commission Act 1991 (Qld)
Related articles by Dundas Lawyers
Review of QBCC decisions – part 2
Review of QBCC decisions – part 3
Review of QBCC decisions – part 4
Directions to rectify defective domestic building work – part 1
Further information
If you need assistance regarding an internal review of decisions made by QBCC, please telephone me for an obligation free and confidential discussion.
Mitch Brown Dip.T.,BA.,LL.B.,MQLS.
Legal Practice Director
Telephone: (07) 5646 9174
Mobile: 0420 205 105
e: mbrown@dundaslawyersgc.com.au
Disclaimer
This article contains general commentary only. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.
