Matthew Mahoney Architect Pty Ltd v Board of Architects of Queensland
[2015] QCAT 137
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- Unreported Judgment
- Matthew Mahoney Architect Pty Ltd v Board of Architects of Queensland[2015] QCAT 137
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Matthew Mahoney Architect Pty Ltd v Board of Architects of Queensland[2015] QCAT 137
Matthew Mahoney Architect Pty Ltd v Board of Architects of Queensland[2015] QCAT 137
CITATION: | Matthew Mahoney Architect Pty Ltd v Board of Architects of Queensland [2015] QCAT 137 |
PARTIES: | Matthew Mahoney Architect Pty Ltd (Applicant) |
v | |
Board of Architects of Queensland (Respondent) |
APPLICATION NUMBER: | GAR020-15 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 20 April 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes, Member |
DELIVERED ON: | 30 April 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
| |
CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – Architects Act 2002 – where applicant seeks disciplinary action by Architects Board against a registered architect – where Architects Board declines to investigate – where applicant seeks review of Architect Board’s decision – whether Tribunal has jurisdiction to entertain that application – whether decision not to investigate distinguishable from decision, after investigation, to take no action – where jurisdiction lacking – where applicant maintains application after advice of error – where order to strike out application made - whether costs may be awarded to respondent Architects Act 2002 (Qld) ss 39,41,69,73, 121 Judicial Review Act 1991 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 6, 17-24, 32, 47 ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSC 76 Armstrong v Kawana Island Retirement Village [2014] QCAT 51 C & E Pty Ltd v The Board Of Architects of Queensland [2004] QCCTA 1 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 615 Gleeson, Re [1907] VLR 368 Ward v Williams (1955) 92 CLR 496 | |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]The applicant architect asks the Tribunal to review[1] the Board’s decision to take no action upon a complaint of unsatisfactory professional conduct by Peter Edwards and Archipelago Architects Pty Ltd, in that they:
... in the carrying out of architectural services falsely, dishonestly and unethically represented the director of Matthew Mahoney Architect as their employee within a successful tender for a Queensland Government contract, knowing the employees represented in the tender formed part of the basis for the awarding of the contract.[2]
- [2]The offending document is a tender by Archipelago Architects Pty Ltd to the Gold Coast Commonwealth Games Corporation lodged on or about 10 June 2014.[3]
- [3]On 25 November 2014 the Board replied that it had no jurisdiction to consider the complaint because the applicant was not the recipient of architectural services from Archipelago Architects Pty Ltd.[4]
- [4]That explanation is supplemented by several submissions of the Board’s solicitors:
The decision of the Board not to investigate a complaint is not a reviewable decision. You are not an `aggrieved’ person as required by the Architects Act 2002, and the conduct of [Archipelago] does not involve `architectural services’ as required by the Act.[5]
The decision you seek to review is a decision by the Board not to investigate a complaint. Section 121 of the Architects Act 2002 plainly sets out the decisions that are able to be reviewed by the Tribunal, and the decision not to investigate a complaint is not one of the decisions that can be reviewed.[6]
The review application concerns a decision of the Board ... not to investigate a complaint. Decisions of the Board that are reviewable are set out in section 121 of the Architects Act 2002. The decision of the Board not to investigate a complaint is not listed in section 121 ... as a reviewable decision. [Consequently] the Tribunal does not have jurisdiction to hear the review application as it does not concern a reviewable decision.[7]
- [5]The Tribunal does not have a general jurisdiction to review decisions of an administrative nature. The extent of its review jurisdiction depends upon the relevant enabling Act[8] which, in this instance, is the Architects Act 2002. Materially, section 121 of that Act provides that an application for review may be made by a person who makes a complaint if the Board decides, under section 73(e), to take no further action about the complaint. It is noteworthy that the introduction to section 121 limits that provision to particular decisions.[9]
- [6]A decision under section 73 (including one to take no further action) is necessarily preceded by an elaborate process described in section 73(1), including the preparation of a report under section 69, and reception and consideration of same under section 73(1).
- [7]Here there is no evidence of the Board’s embarking on that process. It follows that the impugned decision cannot be characterised as one made under section 73(2)(e), as picked up by section 121(2)(e).
- [8]Instead, the decision is one made under section 41, and a decision of that kind is simply not one of the particular decisions that QCAT may review, by virtue of its mandate in section 121.[10] A distinction must be drawn between a decision not to investigate (section 41) and a decision, after investigation, to take no further action.
- [9]If one accepts the argument[11] that Archipelago’s alleged conduct is not the carrying out [of] architectural services, a decision under section 41, not to investigate, is mandatory. There is no question of an investigation if the impugned conduct does not involve the performance of architectural services.[12] However, even if one construes the carrying out of architectural services as including an offer to provide the same, the decision to conduct (or not to conduct) an investigation is a discretionary one[13], which, for better or worse, is immune from review. The substantial onus of displacing the prima facie permissive meaning of “may” is upon the party who so contends[14], and there is no material before the Tribunal to warrant such a construction.
- [10]The position, then, is that inactivity by the Board under section 73 is open to review, while inactivity under section 41, perchance masterly, is immune from review – by QCAT at any rate.[15]
- [11]One may sympathise with the applicant’s view that the present position is anomalous or unfair, and argue that the libertine aspect of section 41 should be modified. After all, suitable means of dealing with frivolous, vexatious or trivial complaints exists elsewhere.[16] Clearly the Board did not rely on that provision in this case.[17] The need for any more extensive discretion to dismiss complaints without investigation is not apparent. However, amendment of the Architects Act is a matter for the legislature, not for this Tribunal. It is fair to add that the Board did give a reason in this case, albeit one that cannot be independently tested.
- [12]For the reasons given, the Tribunal lacks jurisdiction to entertain the applicant’s proceeding, and the respondent’s motion that it be struck out must succeed.
- [13]Consequently, it is unnecessary to deal with Mahoney’s application for extension of time.
- [14]The Board seeks costs of these proceedings. In principle, costs may be awarded although an action is struck out for want of jurisdiction or is misconceived.[18] However, if the Board wishes to press this claim, particulars of items and quantum should be filed and served. The applicant Mahoney must then have a reasonable opportunity to be heard in reply. There will be orders accordingly.
ORDERS
1. The substantive application of Andrew Mahoney Architect Pty Ltd is struck out for want of jurisdiction.
2. The issue of costs is reserved.
3. If the application for costs proceeds, the Board of Architects Queensland must file and serve an itemised particulars of its claim by 4 pm on 8 May 2015
4. If the application for costs proceeds, Andrew Mahoney Architect Pty Ltd must file and serve any response thereto by 4 pm on 22 May 2015.
5. The question on costs, if any, shall be decided on the papers, on or after 23 May 2015.
Footnotes
[1] QCAT Act ss 17-24.
[2] Letter Mahoney to QCAT 2 February 2015 Part B; Application to Review a Decision filed 2 February 2015.
[3] Letter Mahoney to Board 4 August 2014.
[4] Letter Board to Mahoney 25 November 2014.
[5] Letter Holding Redlich to Mahoney 26 February 2015.
[6] Letter Holding Redlich to Mahoney 9 March 2015.
[7] Application for Miscellaneous Matters filed 20 March 2015 Annexure A Items 1-4.
[8] For the meaning of this expression see QCAT Act s 6(2).
[9] Emphasis added.
[10] Compare C & E Pty Ltd v The Board Of Architects Of Queensland [2004] QCCTA 1.
[11] See paragraph [4], above (first quotation).
[12] Architects Act 2002 s 41(1)(a).
[13] “The Board may conduct an investigation” (emphasis added): s 41(2).
[14] Re Gleeson [1907] VLR 368 at 373; Ward v Williams (1955) 92 CLR 496 at 505; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 615 at 619; ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSC 76.
[15] I say nothing of possibilities under the Judicial Review Act 1991.
[16] Architects Act 2002 s 39.
[17] See the reason quoted in paragraph [3], above.
[18] QCAT Act s 47(2)(c); Armstrong v Kawana Island Retirement Village [2014] QCAT 51.