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- Unreported Judgment
West v Queensland Building and Construction Commission QCAT 237
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
West v Queensland Building and Construction Commission  QCAT 237
Queensland Building and Construction Commission
General administrative review matters
22 August 2019
On the papers
Matter GAR284-18 is dismissed.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant complained about a private certifier – where the respondent investigated the complaint – where the applicant sought external review of the decision of the respondent that the certifier had not engaged in unsatisfactory conduct or professional misconduct in the Tribunal – where the respondent applied to strike out the proceedings on the basis of lack of standing to bring an application for review in the Tribunal – where alternatively the respondent claimed the application should be struck out on the basis that the complaints lacked substance
Acts Interpretation Act 1954 (Qld), s 14(4)
Building Act 1975 (Qld), s 136(1), s 179(3)(d), s 180(a),
Queensland Building and Construction Commission Act 1991 (Qld), s 86A, s 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47
Building Regulation 2006 (Qld), s 30(2)(a), s 31(1), s 31(2)
Allan v Transurban City Link Limited  HCA 58
Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd  FCA 996
Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development  HCA 50
Control Investments Pty Ltd & Ors v Australian Broadcasting Tribunal  AATA 78
McCrystal v QBCC  QCAT 207
Self-represented by D McNulty, Solicitor
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
- On 9 March 2017 a development approval was issued by a building certifier, Mr Dunn, authorising construction of an in-ground fibreglass swimming pool and pool fence at a property at Coolum Beach.
- On 17 July 2017 another certifier, Mr Wibrow, was engaged to conduct a final inspection of the pool and fence. Mr Wibrow issued a form 17 final inspection certificate approving the pool and fence.
- Ms West owns land next door. On 10 November 2017 she complained to the respondent (‘QBCC’) about the pool and fence and both certifiers.
- QBCC dismissed the complaint against Mr Dunn.
- In relation to Mr Wibrow, QBCC investigators determined that the certifier had not engaged in unsatisfactory conduct or professional misconduct.
- Ms West sought internal review of that decision by review officers of QBCC. On 25 July 2018 QBCC made an internal review decision again concluding that the building certifier had not engaged in either unsatisfactory conduct or professional misconduct.
- Ms West filed an application in the Tribunal seeking review of the QBCC internal review decision. QBCC has now brought an application asking that Ms West’s application to the Tribunal be dismissed or struck out pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- The bases upon which QBCC makes the application to dismiss are twofold. First, that Ms West is not an affected person entitled to bring the application in the Tribunal. Secondly, if she is entitled to bring the application, her claim in any case lacks merit.
- Complaints about building certifiers arise out of chapter 6, part 4 of the Building Act 1975 (Qld) (‘BA’).
- By s 190(1) BA :
Making a complaint against a building certifier
(1) A person may make a complaint to QBCC about a building certifier if the person believes the building certifier has engaged in unsatisfactory conduct or professional misconduct.
- By s 194:
Investigation of complaint
(1) This section applies if—
(a) QBCC does not recommend the complainant and the building certifier enter into mediation; or
(b) QBCC recommends the complainant and the building certifier enter into mediation and the complaint is not resolved when the mediation ends.
(2) QBCC must conduct an investigation into the complaint as soon as practicable.
- Section 204:
Decision after investigation or audit completed
(1) After investigating a complaint or conducting an audit, QBCC must decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct.
(2) QBCC must give the building certifier and the complainant (if any) an information notice about the decision taken under subsection (1).
For reviews of the decision, see the QBCC Act, part 7, division 3.
- Part 7 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) deals with the jurisdiction of the Tribunal. Division 3 concerns proceedings for review. Subdivision 1 deals with internal reviews by QBCC and subdivision 2 external reviews in the Tribunal.
- Section 86A of the QBCC Act, which falls within Subdivision 1, provides:
Who may apply for internal review
(1) A person who is given, or is entitled to be given, notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed.
(2) However, subsection (1) does not apply if the person has applied to the tribunal for a review of the reviewable decision under subdivision 2.
(3) Also, if—
(a) the person applies for an internal review of the reviewable decision; and
(b) before the application is decided, the person applies to the tribunal for review of the reviewable decision under subdivision 2;
the application for internal review of the decision lapses.
- Section 87 of the QBCC Act, which falls within Subdivision 2, 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.
- The QBCC submits as follows.
- Ms West is not a person affected by the internal review decision and therefore she has no standing to bring the application in the Tribunal regardless that she had standing to ask for internal review of the original QBCC decision.
- She has no interest in the internal review decision above any other member of the public. Mere physical proximity to the relevant development does not confer the requisite standing on her to review the QBCC’s conclusion about the professional conduct of a certifier.
- Whilst the threshold qualification entitling a person to seek internal review of a QBCC decision is that the person be given or be entitled to be given notice of a reviewable decision, the threshold qualification for external review in the Tribunal is different. For external review, a person must be affected by a reviewable decision.
- In Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd, Davies J pointed out and explained the distinction between cases concerning a person’s standing to challenge an administrative decision through judicial review, and standing (or as more appropriately expressed, entitlement) to bring proceedings in the course of administrative review:
In US Tobacco at 529 the Court said:
‘The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review.’
This must be so with respect to the phrase "interests are affected", when used in a statute which provides for the administrative review of an administrative decision. In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. The term "aggrieved", when used in the context of judicial review, may have a different connotation, for the object of judicial review is to ensure that the law is observed.
- In Allan the High Court was dealing with a member of the general public who sought a review of a decision of Transurban to issue certain certificates which had the effect of progressing work widening Tullamarine Freeway. Mr Allan initially lived adjacent to the area to be widened, but left before the matter of his review application was determined. He continued to pursue his application however on environmental impact grounds with respect to the project as a whole.
- Mr Allan claimed he was a person affected by the making of the decision by Transurban. The High Court said this about standing (entitlement in administrative review) and a person being affected by a decision:
 The expression "affected by" and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as "standing". "Standing" is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies [Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 624-632 -.]
 In Re McHattan and Collector of Customs (New South Wales) [(1977) 1 ALD 67 at 70], Brennan J stated that "[a]cross the pool of sundry interest, the ripples of affection may widely extend". However, as Davies J pointed out in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd [ FCA 996; (1994) 49 FCR 250 at 259], 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 [Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd  HCA 49; (1998) 194 CLR 247 at 266 ]. The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court [Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd  FCA 996; (1994) 49 FCR 250 at 261, 272; Edwards v Australian Securities Commission (1997) 72 FCR 350 at 367-369; Byron Environment Centre Inc v Arakwal People  FCA 797; (1997) 78 FCR 1 at 4-5, 34-37], 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. There is a range of such decisions by the Authority. For example, Ch 2 has as its object, with the development allowance provisions of the Tax Act, the provision of tax incentives for investment in large Australian projects which cost $50 million or more (s 3). Chapter 2 provides for the giving by the Authority of written directions (s 11) and for certain consequences to follow if the Authority is "satisfied" that a particular state of affairs exists (ss 11, 17, 19), and for the determination of applications for registration (ss 26-34). Chapter 2 also provides for the grant, upon application, of what in Pt 4 of Ch 2 (ss 35-41) are identified as "pre-qualifying certificates relating to plant expenditure". Various sections in Ch 2 provide for the giving by the Authority of written notice of its decision to the applicant in question (ss 39, 45, 52, 62, 72, 81, 82).
- One must therefore start with a consideration of the subject, scope and purpose of the legislation concerned, which means the BA.
- By s 136(1) of the BA a private certifier must, in performing a private certifying function, always act in the public interest. Acting outside the scope of the certifier’s powers, or contravening the code of conduct of certifiers or being grossly negligent or grossly incompetent is not acting in the public interest.
- By s 179(3)(d), if the QBCC decides the building certifier has engaged in unsatisfactory conduct, the QBCC must note in a register of building certifiers the details of the decision and if the decision was that the building certifier has engaged in unsatisfactory conduct, details of the further decision required under s 204(4).
- By s 180(a) the QBCC must make the register available for inspection by anyone.
- By s 190 (1) a person may make a complaint to QBCC about a building certifier if the person believes a building certifier has engaged in unsatisfactory conduct or professional misconduct.
- By s 194 if, potentially after mediation between the complainant and certifier, QBCC must conduct an investigation into the complaint.
- By s 204(1) after investigating a complaint QBCC must decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct. QBCC must give the building certifier and the complainant (if any) an information notice about the decision. The inclusion in s 204(2) of a note stating ‘For reviews of the decision, see the QBCC Act, part 7, division 3’ cannot be ignored. It is part of the legislation and must be given meaning and effect.
- Section 14 of the Acts Interpretation Act 1954 (Qld) provides:
(4) A note in an Act to the Act or to a provision of the Act, as opposed to a footnote, an editor’s note or an endnote mentioned in subsection (7), is part of the Act.
Example of a note—
See the note to section 2.
Example of a footnote—
See the footnote to schedule 1, definition Acting Governor.
- Part 7 division 3 of the QBCC Act covers both internal and external review procedures. Subdivision 1 of division 3 concerns internal review by QBCC and subdivision 2 external review in the Tribunal.
- Had it been intended to restrict the right of a complainant to internal review only, the legislation could very simply have said as much. It does not. Instead by addition of the note the legislation specifically directs one to both rights of internal and external review of decisions by QBCC which involve investigations and decisions about the conduct of private certifiers following complaints by members of the public.
- Given certifiers are specifically required to act in the public interest, making both avenues of review available to a complainant dissatisfied with an initial determination of the complaint seems a logical machinery to enhance the requirement that private certifiers act in the public interest by allowing vigilance of such by concerned members of the public.
- I note that s 87 of the QBCC Act contains no requirement that a person’s interests be affected by a decision before a person is entitled to seek administrative review under that provision.
- In Control Investments Pty Ltd & Ors v Australian Broadcasting Tribunal, Davies J said this about a provision in the Administrative Appeals Tribunal Act allowing a person ‘whose interests are affected by the decision’ to be joined as a party to review proceedings:
In their context in ss 27 and 30, the words ‘interests are affected’ denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed.
- Hence the ripples of affection referred to by Brennan J in Re McHattan and Collector of Customs (New South Wales) and repeated in Allan can be viewed as extending in the case at hand more widely than would otherwise have been the case had the person’s interests also been required to be affected to entitle the person to take a matter forward in external review.
- Generally, whether a person is affected by a decision as provided for in s 87 will only be able to be determined in particular matters after considering the nature of the decision sought to be reviewed which in turn requires examination of the legislation concerned. Hence the reference to the ambulatory effect of review decisions in Allan.
- QBCC relied on the decision of McCrystal v QBCC as expressing a different view about these matters. That decision involved an application for an extension of time to file an application for administrative review in the Tribunal and all that was required there of the learned Member was a preliminary examination of the merits of the applicant’s case. No detailed examination of the law associated with the BA complaint regime and its relationship to s 87 of the QBCC Act, I suggest, was undertaken or required.
- I conclude Ms West is, as initial complainant under the provisions of the BA pursuant to the review regime intended by that Act, a person affected by the decision of QBCC within the meaning of s 87 of the QBCC Act and entitled to bring the within application in the Tribunal.
Lack of substance
- QBCC say, even if Ms West is entitled to seek the within review in the Tribunal, the application should be struck out because it lacks substance and is misconceived.
- From Ms West’s submissions responding to the application to strike out her matter the following appear to form her contentions.
- She says Mr Wibrow failed to ensure her health and safety was not compromised contrary to the obligation on the certifier to perform his certifying functions in the public interest.
- Mr Wibrow acted as agent for or employee of the certifier
- She says the certifier failed to attend the site to physically inspect the pool fence before issuing his Form 17.
- Further the certifier should have ensured the noise of the pool pump met ‘noise ceiling limits’.
- A pool gate does not open outward and therefore the pool should not have been certified because it did not meet appropriate safety standards.
- I conclude none of the complaints made by Ms West have merit.
- Ms West’s complaint about failing to take into account her health and safety is about the intrusive existence of the pool at the adjacent property in her life. She says she suffers from the nuisance of noise from the pool pump. That is nothing to do with Mr Wibrow or his function as certifier.
- Mr Wibrow was engaged to certify a stage of assessable development, which was the construction of the pool. He was not responsible for approving the development nor responsible for attaching conditions to the approval. His responsibility was to ensure the pool and pool fence complied with the development approval and was safe to use. It is not alleged he failed to do that.
- By s 30(2)(a) of the Building Regulation 2006 (Qld) Mr Dunn the certifier who issued the development approval for the pool and fence was entitled to engage another certifier to carry out inspections. It is nothing more than unsubstantiated conjecture on the part of Ms West that such may lead to a potential conflict of interest. There is no evidence that Mr Wibrow failed to perform his duty as certifier of the pool and pool fence as required.
- There is a claim that the pool was certified safe despite it having an inwardly opening gate which breached the requirements of the development approval for the pool.
- The certifier maintains when he inspected the fence on 17 July 2017 the gate was fixed shut and no longer permitted access as a gate. There was confirmation of that state of affairs from an officer of the local government who inspected the gate some 5 days before the inspection by the certifier. According to that officer, the gate was then fixed shut. Subsequently, some 6 months later, the fence was found to be freed, though there was evidence that metal angles and screws had been used to fix the gate in place but they had been removed by some unknown party. Subsequently after issue of a compliance notice to the pool owner the gate was returned to compliance (fixed) as at 8 February 2018.
- There is no evidence to suggest, and it is not in fact specifically contended by Ms West, that as at date of inspection by the certifier on 17 July 2017 the gate was free to move inward in breach of the development conditions for the pool.
- Finally Ms West claims the Form 17 Final Inspection Certificate was not lodged by Mr Wibrow with the local government. Mr Wibrow was engaged as a competent person by the certifier Mr Dunn to carry out the final inspection. Accordingly Mr Wibrow was only required to give a certificate of inspection to Mr Dunn as the certifier for the pool construction and to the builder, not be responsible for lodging the Form 17 with the Council.
- Ms West raised an issue concerning QBCC’s use of privileged material from a compulsory conference. Given the material concerned was filed in the Tribunal by her in response to directions made 13 September 2018 by the Tribunal to do that and provide a copy to QBCC, this complaint is ill-founded. The compulsory conference occurred subsequently on 10 December 2018.
- As stated, none of the complaints made by Ms West have merit.
- By s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), if the Tribunal considers a proceeding or a part of a proceeding is frivolous, vexatious, misconceived, lacks substance or is otherwise an abuse of process, the Tribunal may order the proceeding be dismissed or struck out.
- I find that whilst Ms West was entitled to bring the review application before the Tribunal, her application lacks substance and it should be dismissed.
- There are no cost orders sought by QBCC and accordingly each party will bear their own costs.
 FCA 996.
 HCA 58.
Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development  HCA 50, .
BA, s 136(2)(d), (e), (f).
Ibid s 204(2).
 AATA 78.
Ibid 79; which remarks were supported by Kirby J who gave a dissenting judgment in Allan.
 QCAT 207.
Building Regulation 2006 (Qld), s 31(1), (2).
Statement of Reasons (‘SOR’) filed 7 November 2018, page 73.
Ibid page 103.
SOR, page 152.
- Published Case Name:
West v Queensland Building and Construction Commission
- Shortened Case Name:
West v Queensland Building and Construction Commission
 QCAT 237
22 Aug 2019