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- Unreported Judgment
Fisher v Queensland Building and Construction Commission QCAT 323
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Fisher v Queensland Building and Construction Commission  QCAT 323
RONALD ERIC FISHER
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
General administrative review
30 October 2019
On the papers
Member Dr Collier
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – when a person is a ‘person affected’ by a decision of the QBCC – standing to appeal a QBCC decision – complaint by a member of the public – complaint against a QBCC licence-holder – complaint against a building certifier
Building Act 1975 (Qld), s 90, Schedule 2
Queensland Building and Construction Commission Act 1991 (Qld), s 74F, 86(1)(j), s 86C(3), s 86E(b), s 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
McCrystal v Queensland Building and Construction Commission  QCAT 207
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
- The Applicant, Mr Fisher, lives at 19 Excalibur Court, Paradise Point, Queensland.
- Mr Fisher made two complaints to the Respondent, the Queensland Building and Construction Commission (‘QBCC’) against a private building certifier, Mr Mark Leeves, who was the building certifier in respect of two properties at, respectively:
- (a)1388 Kingsford Smith Drive, Pinkenba, Queensland (‘the Pinkenba site’); and
- (b)21 Excalibur Court, Paradise Point, Queensland (the ‘Paradise Point site’).
- Mr Fisher has no financial or other interest in either property, although he lives adjacent to the Paradise Point site.
- On 20 July 2018 Mr Fisher filed a complaint against Mr Leeves with the QBCC in which he raised six instances that could give rise to allegations of unsatisfactory conduct or professional misconduct against Mr Leeves concerning his work at the Pinkenba site.
- The QBCC investigated Mr Fisher’s allegations and, in its decision dated 18 December 2018, decided that Mr Leeves had not engaged in unsatisfactory conduct or professional misconduct in respect of his work at the Pinkenba site.
- Mr Fisher requested that this decision of the QBCC be subject to an internal review. In its Decision Notice dated 18 February 2019 the QBCC deemed the original decision to continue to apply because a review decision had not been made within the 28 day time period allowed by law.
- On 20 July 2018 Mr Fisher also filed a further complaint against Mr Leeves with the QBCC, on this occasion listing twenty instances that could give rise to allegations of unsatisfactory conduct or professional misconduct against Mr Leeves concerning his work at the Paradise Point site.
- The QBCC again investigated Mr Fisher’s allegations and, in its decision dated 25 February 2019, upheld one instance only of the twenty listed by Mr Fisher, which it deemed to be unsatisfactory conduct. The breach by Mr Leeves constituting the unsatisfactory conduct was not of a serious nature.
- It is appropriate that both Applications be heard together because they involve the same parties and similar allegations of conduct, albeit at different locations and times.
- Before turning to the substance of Mr Fisher’s applications, the first issue that must be considered are two Applications for miscellaneous matters, both dated 12 Jun 2019, filed by the QBCC in which the QBCC seeks to strike out each of the Applications by Mr Fisher. If the Applications by the QBCC are successful that will conclude the matter.
The Applications by the Respondent to dismiss or strike out
- In respect of GAR097-19 the QBCC seeks the following orders:
- (a)The GAR097-19 Review Application is dismissed or struck out; and
- (b)There is no order as to costs.
- In respect of GAR184-19 the QBCC seeks the following orders:
- (a)The GAR184-19 Review Application is dismissed or struck out; and
- (b)There is no order as to costs.
- A person affected by a reviewable decision of the QBCC may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), to the tribunal for a review of that decision.
- A reviewable decision is one that invokes the power of this Tribunal. A reviewable decision includes a decision of the QBCC concerning the taking of disciplinary action against a person under section 74F of the QBCC Act.
- The Tribunal may also review an internal review decision of the QBCC.
- The QBCC says that both applications by Mr Fisher should be dismissed or struck out on two bases: a lack of standing on the part of Mr Fisher; and a lack of substance in the applications.
- The issue of lack of standing is considered first because, if Mr Fisher lacks standing, his applications must be dismissed.
Lack of standing
- An application for review by this Tribunal has to be made by a person affected by the reviewable decision. The QBCC says that Mr Fisher lacks standing because he does not have an identifiable interest in the matters the subject of the internal review decision because:
- (a)He does not own either of the properties involved in his complaint;
- (b)He does not have any relationship with Mr Leeves apart from the complaints he has made to the QBCC;
- (c)He has no definable personal, financial or direct interest in the matters the subject of his complaints; and, therefore,
- (d)He has no interest in the decision above any other member of the public.
- The QBCC also makes the following points relevant to both matters raised by Mr Fisher:
- (a)There is no decision the QBCC can make, or the Tribunal standing in the QBCC’s shoes can make, in respect of the conduct of Mr Leeves that is capable of ‘affecting’ Mr Fisher within the meaning of s 87 of the QBCC Act;
- (b)Mr Fisher is unqualified in building matters and lacks any proper authority or expertise in building certification; and
- (c)Mr Fisher was entitled to make the complaint he did and request an internal review but, after this, has no status apart from that of a ‘bystander’.
- Mr Fisher has not made any submissions in relation to these points. His submissions raise further issues that he believes demonstrate the validity of his concerns about Mr Leeves conduct. It is evident that Mr Fisher was aware that the QBCC had filed its Application to dismiss or strike out when he filed his last submissions on 16 September 2019 because he said in his covering letter:
The Respondent in this matter has filed a [sic] application to dismiss or strike out this proceeding…
- Thus, while Mr Fisher had the opportunity to address the issue of his standing, none of his submissions dealt with this point.
- A case similar to that here is that of McCrystal v Queensland Building and Construction Commission. In that decision the Tribunal considered whether a complainant with no financial or other connection to the actions of a building certifier was an affected person within the meaning of s 87 of the QBCC Act. The Tribunal made the observation (references omitted):
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.
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. 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.
- In McCrystal the Tribunal goes on to say (references omitted):
The issue is whether the applicant was affected by the decision itself, not potentially by the outcome of any review. In other words, was the applicant affected by the decision to take no disciplinary action against the certifier.
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.
- There is nothing in the evidence before this Tribunal to suggest that Mr Fisher has any interest in the QBCC’s decisions beyond that of a member of the public at large or that of a bystander.
- While Mr Fisher was entitled to make a complaint against Mr Leeves and to seek an internal review of his complaint as a member of the public at large, his standing to have the decisions of the QBCC reviewed by this Tribunal rest on him being a person affected.
- Within the meaning of the term ‘a person affected by a reviewable decision of the commission’, Mr Fisher is not a person affected by either (a) the decision of the QBCC made in respect of the Paradise Point site complaint, nor (b) the decision made by the QBCC in its internal review in respect of the Pinkenba site complaint.
- This conclusion is consistent with the decision of this Tribunal in McCrystal v Queensland Building and Construction Commission which correctly states the law in this regard.
- Because Mr Fisher does not have standing to seek the reviews sought, his applications must be dismissed. It is not necessary for the Tribunal to consider any further issues including that relating to the substance of Mr Fisher’s complaints.
- The Tribunal makes the following decision in this matter:
- (a)Applications GAR097-19 and GAR184-19 are dismissed.
- (b)No order is made in respect of costs.
Building Act 1975 (Qld), s 190.
Queensland Building and Construction Commission Act 1991 (Qld), s 86C(3).
Building Act 1975 (Qld), Sched 2, as to what constitutes unsatisfactory conduct.
 QBCC Act, s 87.
 Ibid s 86(1)(j).
 Ibid s 86E(b).
 Application to dismiss or strike out a proceeding Submissions on behalf of the Respondent, filed 5 June 2019, paras 31-33.
 Ibid paras 39-42.
 The Applicant’s Submissions and Evidence filed 27 August 2019 concerning GAR184-19; and Applicant’s Submissions filed 16 September 2019 concerning GAR097-19.
 QCAT 207.
 Paras 41-42.
 Paras 46-47.
- Published Case Name:
Ronald Eric Fisher v Queensland Building and Construction Commission
- Shortened Case Name:
Fisher v Queensland Building and Construction Commission
 QCAT 323
30 Oct 2019