McCrystal v Queensland Building and Construction Commission
[2018] QCAT 207
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- Unreported Judgment
- McCrystal v Queensland Building and Construction Commission[2018] QCAT 207
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McCrystal v Queensland Building and Construction Commission[2018] QCAT 207
McCrystal v Queensland Building and Construction Commission[2018] QCAT 207
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | McCrystal v Queensland Building and Construction Commission [2018] QCAT 207 |
PARTIES: | SHUAN McCRYSTAL (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | GAR268-17; GAR171-17 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 6 July 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Traves |
ORDERS: | In GAR268-17:
In GAR171-17:
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – whether extension of time to file application for review should be granted under s 61 of the QCAT Act – whether extension of time in enabling Act can be granted – effect of s 86F(1)(b) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether applicant is entitled to apply for external review of a decision to take no disciplinary action against a certifier – whether applicant is a “person affected by the decision” within the meaning of s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) – where applicant is owner of property adjacent to one property relevant to review proceedings in GAR268-17 – where applicant is owner of property two properties removed from the property relevant to review proceedings in GAR171-17 PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – whether the applicant is a person affected by the decision – whether the applicant lacks standing – whether review application in GAR171-17 should be dismissed – whether QBCC should be removed as a party to the review proceedings – whether review proceedings in GAR268-17 and GAR171-17 should be consolidated Building Act 1975 (Qld), s 204 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48, s 61 Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 86D, s 86E, s 87 Allan v Transurban City Link Ltd (2001) 183 ALR 380 Argos Pty Ltd v Corbell (2014) 254 CLR 394 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 |
REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Holding Redlich Lawyers |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
Introduction
- [1]This matter involves a number of related interlocutory applications brought in respect of two separate review proceedings concerning the same certifier. Those proceedings are GAR171-17 and GAR268-17. The certifier performed certifying functions in relation to two neighbouring developments on Manson Parade, Yeronga, namely at 19 Manson Parade (the subject of GAR268-17) and at 21-23 Manson Parade (the subject of GAR171-17). The complainant in each review proceeding is the applicant, the owner of 15 Manson Parade, the property next door to the building the subject of the proceedings in GAR268-17 and two removed from the building the subject of the review proceeding in GAR171-17.
- [2]The applicant and respondent have brought a number of applications relating to each of the separate review proceedings. Because the outcome in one application may necessarily affect the outcome in other applications it is sensible to deal with all the applications together.
- [3]The relevant applications are as follows:
GAR268-17
- (a)Application for an extension of time filed by the applicant.
GAR171-17
- (b)Application to strike out the proceeding filed by the respondent.
- (c)Application to dismiss a party to both review proceedings filed by the applicant.
- (d)Application to consolidate the proceedings in GAR268-17 with the proceedings in GAR171-17.
- [4]It is appropriate that I first consider the application for an extension of time in GAR268-17.
GAR268-17: application for an extension of time
- [5]The application for review was filed on 12 September 2017 seeking review of a decision made by the QBCC on 21 April 2016 and received by the applicant on 26 April 2016. The decision was an internal review decision by the QBCC that Mr Stephen Bartley (the certifier) had not engaged in unsatisfactory conduct or professional misconduct in relation to the matters the subject of the complaint.
- [6]The background to the matter is as follows. On 11 August 2015 the QBCC received a complaint from the applicant concerning the certification functions performed by the certifier at 19 Manson Parade, Yeronga. The complaint identified concerns with respect to the conduct of the certifier including his classification of the building at the site and his reliance on a fire engineering report prepared by Defire Pty Ltd in conducting certification of the relevant building.
- [7]On 25 November 2015 Shaun Stuart, Senior Audit and Investigations Officer for the QBCC, determined the certifier had not engaged in unsatisfactory conduct or professional misconduct with respect to the matters the subject of the complaint.
- [8]On 21 December 2015 the QBCC received an application for internal review from the applicant in respect of that decision.
- [9]On 21 April 2016 the decision was confirmed by Jonathan Pacey, Senior Internal Review Officer for the QBCC, on internal review.
- [10]On 12 September 2017 the applicant filed an application for review to the Tribunal.
Overview
- [11]Under the QCAT Act, an application for review must be brought within 28 days of the reviewable decision.[1] “Reviewable decision” is defined to include an internal review decision.[2] The applicant has sought to apply for review more than 16 months after the decision. The applicant therefore seeks an extension of time pursuant to s 61 of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act).
- [12]If successful, the applicant seeks to have this matter consolidated with a separate review application the applicant has made in relation to a development involving the same certifier at 21-13 Manson Parade, Yeronga. The review application made in respect of 21-23 Manson Parade, Yeronga was made within time.
- [13]The QBCC opposes the application for an extension of time and submits that the application for review should be dismissed on the basis it was made out of time.[3]
Should an extension of time be granted?
- [14]Section 61 of the QCAT Act generally enables an extension of time to be granted or procedural requirements to be waived where they are imposed by the QCAT Act or by the enabling Act. An extension can be sought under s 61 even where the time for compliance has passed. Section 61 will not apply where the enabling Act provides otherwise, for example, by providing that an application must be brought within 28 days failing which the Tribunal shall not decide the application.[4] Although this applies to time limits in respect of some reviewable decisions under the Queensland Building and Construction Commission Act 1991 (QBCC Act), this decision is not one of them. Section 61 can, therefore, be applied to the 28-day time limit for applying for a review of an internal review decision confirming a decision made pursuant to s 204 of the Building Act 1975 (Qld) (Building Act).
- [15]Section 61 of the QCAT Act provides, relevantly:
61 Relief from procedural requirements
(1) The tribunal may, by order—
- (a)extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
- (b)extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
- (c)waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
- (2)An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
- (3)The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
- (4)…
Relevant principles
- [16]Section 61 of the QCAT Act confers a discretion on the Tribunal to extend time. It is a discretion to grant, not to refuse, and on well-settled principles an applicant must satisfy the Tribunal that grounds exist for exercising the discretion in his or her favour.[5] There is an evidentiary onus on the prospective respondent to raise any matter against the exercise of the discretion but the ultimate onus remains on the applicant.[6]
- [17]In Brisbane South Regional Health Authority v Taylor[7] the High Court held that a statutory discretion to extend time should be exercised in the context of the rationales for the existence of limitation periods.[8] Those rationales were:
- (a)as time goes by, relevant evidence is likely to be lost;
- (b)it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed;
- (c)people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them; and
- (d)
- (a)
- [18]McHugh J held:
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced”. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.[10]
- [19]Although s 61 is in different terms to the provision there under consideration, the rationales for the existence of a time limit and the approach of the High Court generally, to the application of a discretion to extend, is relevant.
- [20]By s 61(3), the Tribunal must not extend a time limit if that would cause prejudice or detriment to a party to a proceeding which was not able to be remedied by an appropriate order for costs or damages.[11]
- [21]In the absence of prejudice or detriment of the type in s 61(3), the Tribunal can proceed to consider whether to exercise its discretion. Factors relevant to the exercise of the discretion under s 61 were summarised in Jensen v Queensland Building and Construction Commission:[12]
In the case of Crime and Misconduct Commission v Chapman Judicial Member, Mr James Thomas AM QC outlined the following factors as being relevant:
- Whether a satisfactory explanation (or “good reason”) is shown to account for the delay.
- The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).
- Prejudice to adverse parties.
- Length of the delay, noting a short delay is usually easier to excuse than a lengthy one.
- Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.
The factors in Chapman were applied by the President of the Tribunal, Justice Thomas, in Coppens v Water Wise Design Pty Ltd. There Thomas J held:
[13] As was noted by Judicial Member Thomas, the legislature must have had a good reason for fixing a time limitation period. Clear definition of time limits assists in achieving the object outlined in section 3(b) of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
[14] Each party is aware of the required time limits and the fair approach is to require that limits be complied with unless there is a compelling reason (such as those listed above) to the contrary. This is fair for all parties. Compliance with time limits also will lead to disposition of matters in the most efficient and quick way. Compliance with time limits is also consistent with the public interest in finality of litigation [R v Twindale [2009] QCA 200].
[15] For these reasons, the underlying premise is that, in the absence of compelling circumstances, time limits must be complied with and should be enforced by the Tribunal. It is a matter for the applicant to establish any circumstances which would, in the interests of justice, require a departure from this position.
- [22]I turn now to consider the application of s 61.
Would an extension cause prejudice or detriment to a party or potential party not able to be remedied by an order for costs or damages?
- [23]The QBCC is, of course, a party which may be caused prejudice or detriment by an extension. The QBCC, as the decision-maker, is entitled to expect that the time limit for external review will ordinarily be complied with. In Jensen v Queensland Building and Construction Commission it was observed:[13]
The 28 day time period is there for a reason. In administrative review proceedings it is important that time limits are observed so that the processes and procedures followed by the administrative decision-maker are not hampered or detrimentally affected and so that the statute, more broadly, operates effectively.[14]
- [24]The QBCC in these circumstances was also, in my view, entitled to believe that the matter was finally concluded.[15]
- [25]However, the person to whom prejudice or detriment may most obviously be caused is the certifier. Although the certifier is not a party to the proceeding he is a “potential party to the proceeding”. His rights or liabilities would be directly affected by the outcome of the review and, were the matter to proceed, he would, in the ordinary course, be joined as a party.[16]
- [26]The internal review decision of 21 April 2016 found the certifier had not engaged in unprofessional conduct in a number of respects, in particular concerning the certification of the Alternative Solution proposed by the Defire Fire Engineers Report (the fire report) which, the complainant argued, did not comply with C1.5 of the Building Code of Australia (BCA).
- [27]The issues raised by the complainant were considered on internal review to be unfounded. It would, in my view, be prejudicial to the certifier to permit an application for external review of that decision to be made on 12 September 2017 approximately 18 months after the internal decision and in circumstances where the certifier is entitled to assume the matters have been concluded.[17]
- [28]The issue of prejudice caused by non-adherence to time limits in the context of judicial review was put strongly by Lord Diplock in O'Reilly v Mackman:[18]
The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.[19]
- [29]The nature of such prejudice caused to the QBCC, as the relevant public authority and to the certifier is, in my view, not prejudice capable of remedy by an award of costs or damages.
- [30]If I am wrong about that, I will proceed to consider whether I would exercise the discretion in any event.
- [31]I turn now to consider factors relevant to the exercise of the discretion under s 61.
Explanation for delay
- [32]The applicant makes the following submission regarding delay:
There exists an acceptable explanation for the delay. The Applicant relied upon the QBCC as an agency of the State and the Regulator, and therefore the expert for such matters, in the State of Queensland. Unbeknownst to the Applicant, the QBCC should have, or meant to, decide in accordance with the submissions of the Applicant. The QBCC then sought to deny the Applicant access to documents and information about its decisions, and it was only through ongoing correspondence with the QBCC and a protracted RTI process that these were obtained, and the extraordinary circumstances in which the QBCC made its decisions were realised.[20]
- [33]The QBCC submits that this is not a satisfactory explanation for the delay. It submits that the applicant could have made the review application concurrently with any right to information requests and refute that there was any connection between the information made available as a result of the requests and the review made in September 2017. The QBCC submits that information made available as a result of the requests was received by the applicant in 2016, with additional information received in August 2016.
- [34]It is not clear on the material whether the information requests related to the review application under consideration or to the neighbouring site. I find, even assuming the requests for information related to the relevant review application and was the reason for delay, it does not explain the delay from receipt of that information to the making of the application more than one year later.
- [35]I find, accordingly, that there is no satisfactory explanation for the delay.
Strength of case if allowed to proceed
- [36]The QBCC has raised the threshold issue of whether the applicant has standing to bring the review proceeding.
- [37]Resolution of this issue should not begin with an analysis of cases concerning the general law of standing but with an examination of the legislation in question.[21] The QBCC Act imposes two limitations on the range of people who may be involved in the review process, namely that:
- [38]The QBCC submits the applicant does not have standing because he is not someone “affected by” the reviewable decision within s 87 of the QBCC Act.
- [39]Section 87 provides:
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.
- [40]Here I am concerned with whether the applicant had standing to seek external review of the decision to take no disciplinary action against the certifier. This decision is reviewable under s 86(2)(a), being a decision made under s 204 of the Building Act and, once confirmed on review, as an internal review decision under s 86E of the QBCC Act.
- [41]Whether s 87 is satisfied therefore turns on whether the applicant was, at the time he applied for review, a person affected by the reviewable decision.[24]
- [42]It has been held that the approach should be to construe the words of the standing provision under consideration in preference to the application of common law principles relevant to standing.[25] In this case that leads to an enquiry which requires:
- (a)identifying the legal effect and operation of the reviewable decision; and
- (b)determining whether the applicant is affected by that decision.[26]
- (a)
- [43]Use of the word “affected” has been said to describe a “zone of connection”. In Allan v Transurban City Link Ltd[27] the High Court held:
In Re McHattan and Collector of Customs (NSW),[28] Brennan J stated that “[a]cross the pool of sundry interests, the ripples of affection may widely extend”. However, as Davies J pointed out in Alphapharm Pty Ltd v SmithKline Beecham (Aust) Pty Ltd,[29] Brennan J “did not propose that any ripple of affection would be sufficient to support an interest”. A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute.[30] The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court,[31] is the construction of the Authority Act with regard to its subject, scope and purpose.
Transurban correctly submitted that the phrase in s 119(1) of the Authority Act “who is affected by a reviewable decision” has an ambulatory operation. What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself.[32]
- [44]More recently, the High Court has held in Argos Pty Ltd v Corbell, Minister for Environment and Sustainable Development that the text of the standing provision in the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act), on its face, did not allow for its expansion or contraction according to the scope and purpose of the enactment under which the decision is made.[33] However, the High Court qualified this where statute specific review processes, as opposed to the general review processes in the ADJR Act, were being considered. In such a case it may be possible to say that the purposes or ends which the Parliament sought to advance by enacting the statute were not those with which the applicant was concerned and seeking to advance by the review.[34]
- [45]Sometimes it will be clear that a person is affected by a decision. That effect might be direct or indirect. If the nature of the decision is such that it could not have affected the applicant directly, it will be necessary for the applicant to establish by evidence that his or her interests are in truth affected.[35]
- [46]The issue is whether the applicant was affected by the decision itself, not potentially by the outcome of any review.[36] In other words, was the applicant affected by the decision to take no disciplinary action against the certifier.
- [47]There is no requirement in s 87 that the applicant be affected in a particular way, for instance that his legal interests be affected. However, the applicant must be able to demonstrate that he is affected by the decision beyond that of a member of the public at large.[37]
- [48]The applicant submits that he is a person affected by the decision. He submits, relevantly:
The Applicant is a person affected by the latent defects occasioned by the QBCC’s Decisions, because the noncompliance of the subject development compromises other property such as the Applicants.[38]
- [49]The applicant also submits that “in the event of fire, the noncompliance is likely to result in the death of, or grievous bodily harm to, a person, and affect other property”.[39]
- [50]The QBCC submits the applicant is not affected by the decision to take no disciplinary action against the certifier. In support, the QBCC refers to the following principles developed relating to the expression “interests affected” in the context of standing to review under s 27 of the Administrative Appeals Tribunal Act 1975 (Cth):
- (a)There must exist an interest other than as a member of the public;
- (b)The interest cannot be a mere belief that particular conduct should be prevented, or a mere belief that particular laws should be observed;
- (c)The relevant interest does not need to be of a pecuniary nature, however an applicant must be able to identify a definable relevant interest, or a genuine affection of an interest which attaches specifically to them; and
- (d)The effect on their interests must not be hypothetical.
- (a)
- [51]In one sense the applicant was affected by the decision because it meant that none of the potential orders in s 204(4) of the Building Act, which may have led to remediation work being undertaken at 19 Manson Parade, would be made. However, this assumes that, had the decision been made to take disciplinary action, such an order would have been made. It also assumes that any remediation work would affect the applicant.
- [52]In my view, this analysis shows that the effect on the applicant’s interests was hypothetical and too remote. It is possible, for instance, that even had the decision been made to take disciplinary action, an order personal to the certifier would have been made.[40] There is also no evidence as to how any such work would affect the applicant’s property, if at all.
- [53]Accordingly, I find that the issue of the applicant’s standing detracts from the strength of the applicant’s case. Having said that, I will assume for the purposes of my consideration of the extension of time application that the applicant has standing.
Other aspects relevant to the strength of case
- [54]The main issues the complainant argues were not adequately dealt with by the internal review decision relate to the fire report and whether it complied with the requirements of the BCA, in particular with C1.5.
- [55]The QBCC submits that the arguments raised by the complainant in relation to the fire report reveal a misunderstanding of the status of C1.5. The QBCC explains that the only mandatory requirements in the BCA are Performance Requirements and that these can be achieved either by complying with the Deemed-to-Satisfy provisions or by Alternative Solutions or by a combination of both. C1.5 is a Deemed to Satisfy provision, not a Performance Requirement.
- [56]The QBCC submits that the fire report relied upon by the certifier demonstrated compliance with the relevant performance requirements appearing in the BCA applicable to the Alternative Solution. Further, that the certifier had evidenced compliance with the provisions of the Building Act which apply to Developments where an Alternative Solution is used and had evidenced that the approved building solution satisfied the relevant performance requirements of the BCA.
- [57]The performance requirement with which the building work purports to comply is CP2. The certifier determined that the building work complied with CP2 by adopting BCA clause A0.5(b)(ii) in that the Alternative Solution was shown to be at least equivalent to the Deemed to Satisfy provisions.
- [58]It is not possible on the present material for me to form a concluded view on the prospects of success of the proceeding for review. The matter is one of some complexity and would likely require further evidence, some in the nature of expert evidence. I am prepared to assume, for the purposes of this application that the proceedings are arguable and would have some prospect of success.
Prejudice to adverse parties
- [59]The QBCC submits that, due to the length of the delay in making the application for review, there would be prejudice to the certifier were an extension of time allowed. The certifier would, if the extension was allowed, be forced to reopen a matter he rightfully believed had been finally concluded some 16 months earlier.
- [60]I find, given the delay, that there would be prejudice to the certifier if leave was granted. The certifier is entitled to believe that the matter is now behind him.
Length of delay
- [61]The application is brought 16 months after the decision. The applicant explains some five months of that delay by reference to the time taken to make and have processed an application for freedom of information. However, there is no adequate explanation for the delay of sixteen months.
Interests of justice
- [62]The applicant was made aware, by receipt of the letter from the QBCC notifying of the decision, that he had 28 days within which to exercise his right to review the decision in the Tribunal.
- [63]The interests of justice in this case lie with the refusal of the application for extension. The interests of justice generally favour adherence to statutory time limits. There is no adequate explanation for the delay in making the application. The certifier is in my opinion entitled to believe that the particular proceedings are at an end and he will in my opinion, be prejudiced by the issues being raised again so long after the twenty-eight day limit.
Conclusion regarding extension of time
- [64]In my opinion, an extension of time to bring the application should not be granted. As stated above, in arriving at this conclusion I have assumed that the applicant was entitled to make a review application.
- [65]There has been very substantial delay in bringing the application and that delay has not been adequately explained. That is not, of course, determinative of the matter. I find also, however, that the certifier will suffer prejudice should the application be granted. The certifier was and is entitled to believe that the disciplinary proceedings are behind him. Moreover, delay inevitably carries with it some prejudice in the conduct of proceedings. Finally, in my opinion, the interests of justice in all of the circumstances are served best by adherence to the statutory time limit.
- [66]It follows that it is unnecessary for me to consider the application for consolidation of the proceedings and the application to have the QBCC removed as a party from the review proceeding in GAR268-17.
- [67]It must also follow that the application for review in GAR268-17 is dismissed.
- [68]I turn now to consider the outstanding applications with respect to GAR171-17.
GAR171-17: application by respondent to strike out proceeding; application by applicant to dismiss a party to the proceeding
- [69]I will deal first with the application by the respondent to strike out the proceeding.
- [70]The QBCC has brought an application to have the review proceeding dismissed or struck out pursuant to s 47 of the QCAT Act, on the basis the applicant lacks standing.
- [71]I have concluded in relation to review proceeding GAR268-17 that the issue of whether the applicant was affected by the decision in that review proceeding was a matter which detracted from the strength of the applicant’s case.
- [72]In this case, the degree of connection between the applicant and the work of the certifier at 21-23 Manson Parade, the property the subject of the review proceedings in GAR171-17 is more remote. This is because there is less physical proximity between the applicant’s property at 15 Manson Parade and the property relevant to these review proceedings.
- [73]On the basis of the reasoning above in relation to GAR268-17 I have concluded in relation to GAR171-17, that the applicant is not a person affected by a reviewable decision. Accordingly, the review proceeding in GAR171-17 is dismissed.
- [74]It follows that the application to dismiss the QBCC as a party is also dismissed. I would add that, were it necessary for me to decide it, I would have dismissed the application for the following reasons. The QBCC, as the decision-maker, is a party to the review proceedings[41] and performs an important role in assisting the Tribunal to make its decision on review.[42] Further, I was not persuaded by the arguments put forward by the applicant that the QBCC had acted in a way that had unnecessarily disadvantaged the applicant within the meaning of s 48(1) of the QCAT Act.
Footnotes
[1] QCAT Act, s 33.
[2] QCAT Act, s 86E(b).
[3] Application to Extend Time: Submissions in Response on behalf of the Respondent, 18 October 2017, [4].
[4] Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37, [48]-[49].
[5] Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1, 5.
[6] Ibid.
[7] Ibid.
[8] Ibid, 8.
[9] Ibid, 9.
[10] Ibid, 9-10.
[11] QCAT Act, s 61(3).
[12] [2017] QCAT 232, [68].
[13] [2017] QCAT 232.
[14] Ibid, [94].
[15] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305, 311.
[16] News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410, 524-525.
[17] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
[18] [1983] 2 AC 237.
[19] Ibid, 280-1.
[20] Submissions by Applicant regarding relief from procedural requirement, 5 October 2017, [15].
[21] Allan v Transurban City Link Ltd (2001) 183 ALR 380, [54].
[22] QBCC Act, s 86A(1).
[23] QBCC Act, s 87.
[24] Allan v Transurban City Link Ltd (2001) 183 ALR 380, [58].
[25] Ibid, [15].
[26] Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50, [43].
[27] (2001) 183 ALR 380.
[28] (1977) 18 ALR 154.
[29] (1994) 49 FCR 250, 259.
[30] Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, [48].
[31] Alphapharm Pty Ltd v SmithKline Beecham (Aust) Pty Ltd (1994) 49 FCR 250, 261, 272; 121 ALR 373, 384–5, 395; Edwards v Australian Securities Commission (1997) 72 FCR 350, 367–9; 142 ALR 455, 471–2; Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1, 4–5, 34–7; 148 ALR 46, 48–9, 76–9 .
[32] (2001) 183 ALR 380, [16]-[17].
[33] [2014] HCA 50, [42].
[34] Ibid, [44] referring to Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250.
[35] Re McHattan and Collector of Customs (NSW) (1977) 18 ALR 154, 157.
[36] Allan v Transurban City Link Ltd (2001) 183 ALR 380, [61] citing Re McHattan and Collector of Customs (1977) 18 ALR 154, 157.
[37] Argos Pty Ltd v Corbell (2014) 254 CLR 394, [61].
[38] Submissions of the Applicant, 14 September 2017, 1.
[39] Ibid, 2.
[40] For example, under s 204(4)(a), s 204(4)(b), s 204(4)(c) and s 204(4)(d) of the Building Act.
[41] QCAT Act, s 40(1)(b).
[42] QCAT Act, s 21(1).