Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

McMain v Queensland Building and Construction Commission[2021] QCAT 333

McMain v Queensland Building and Construction Commission[2021] QCAT 333

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McMain v Queensland Building and Construction Commission [2021] QCAT 333

PARTIES:

TERRANCE RONALD McMAIN

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

OCR104-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

DECISION:

The applicant has standing to apply to the Tribunal for review of the decision of the respondent made under s 86C of the Queensland Building and Construction Commission Act 1991 (Qld)

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – private building certifier – disciplinary proceedings  – where finding that has not engaged in unprofessional conduct or professional misconduct – where review sought by applicant for internal review – whether has standing to seek review – whether person ‘affected by the decision’

Acts Interpretation Act 1954 (Qld), Schedule 1

Building Act 1975 (Qld), s 127, s 136, s 190, s 194, s 204

Queensland Building and Construction Commission Act 1991 (Qld), s 86A, s 86D, s 87

Fisher Queensland Building and Construction Commission [2019] QCAT 323

McCrystal v Queensland Building and Construction Commission [2018] QCAT 207

The Body Corporate for 39 on Scenic CTS 41029 v Queensland Building and Construction Commission [2021] QCAT 34

West v Queensland Building and Construction Commission [2019] QCAT 237

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Background

  1. [1]
    On 16 December 2020, the applicant filed an application in the Tribunal to review an internal review decision of the respondent made on 24 April 2020. In that decision, which stemmed from a complaint and, subsequently, an application for internal review made by the present applicant it was found that Andrew Rowley, a private building certifier, had not engaged in unsatisfactory conduct or professional misconduct. An application for an extension of time to file the application to review in the Tribunal was filed on 15 June 2021. It was not opposed by the respondent.
  2. [2]
    However, on 18 May 2021, directions were issued requiring the parties to file submissions as to the jurisdiction of the Tribunal, including addressing the question of whether the applicant is a ‘person affected’ by a reviewable decision of the respondent within the meaning of s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). By s 87, only ‘a person affected’ by a reviewable decision may apply to the Tribunal for a review of the decision. All submissions were filed by 10 August 2021.
  3. [3]
    The original complaint made by the applicant concerned the conduct of the building certifier in relation to the approval and certification of a duplex building on a site in Ashgrove. The applicant’s property shares a common boundary with the site in question. The complaint raised concerns arising from what were said to be inconsistencies between the building approval issued by the certifier and the earlier development approval issued by the Brisbane City Council.[1]
  4. [4]
    In essence, in finding that the certifier had not engaged in unsatisfactory conduct or professional misconduct, the decision maker was not satisfied that the certifier, in his capacity as private building certifier, held any responsibility for the matters the subject of the complaint in relation to the building development in question.
  5. [5]
    For the reasons outlined below, there is no question that the applicant was entitled to bring the complaint and to seek internal review of the initial decision of the respondent.  However, the question is whether he has standing to bring the application for external review before the Tribunal.

The legislation

  1. [6]
    Section 190(1) of the Building Act 1975 (Qld) (‘Building Act’) provides:

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.

The term ‘person’ is not defined in the Building Act, so that the broad definition of that term as set out in Schedule 1 of the Acts Interpretation Act 1954 (Qld) should apply. That the right to make a complaint should extend to ‘a person’ is consistent with s 127 and s 136 of the Building Act, which require a building certifier to act in the public interest. The circumstances in which a building certifier is not acting in the public interest include where the certifier acts in a way that is ‘grossly negligent or grossly incompetent’.[2]

  1. [7]
    Subject to s 194(1) of the Building Act, where a complaint is made s 194(2) requires the QBCC to conduct an investigation into the complaint. Following that investigation, by s 204(1) of the Building Act, the QBCC must decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct. Further, s 204(2) provides:

QBCC must give the building certifier and the complainant (if any) an information notice about the decision taken under subsection (1).

Note

For reviews of the decision, see the QBCC Act, part 7, division 3.

  1. [8]
    Part 7, division 3 of the QBCC Act, deals with proceedings for review. Subdivision 1 deals with internal review by QBCC, while subdivision 2 deals with external review by the Tribunal. In relation to internal reviews, s 86A of the QBCC Act provides:
  1. (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.
  1. (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.
  1. (3)
    Also, if—
  1. (a)
    the person applies for an internal review of the reviewable decision; and
  1. (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.

  1. [9]
    Accordingly, the applicant, as the complainant, was entitled to receive an information notice pursuant to s 204(2) of the Building Act and, having been given that notice, was entitled to seek internal review under s 86A(1) of the QBCC Act. Subsection 86A(2) anticipates that the person may, alternatively, go directly to external review. By s 86E of the QBCC Act, for the purposes of external review a ‘reviewable decision’ is either an internal review decision or the decision of the Commission under s 86 of the Act. However, it would seem that the capacity to go directly to external review would depend on whether the person has standing to seek external review, as provided for in s 86D and s 87 of the QCAT Act. In any event, that did not occur here. The applicant first sought internal review of the decision.
  2. [10]
    Following internal review, s 86D of the Act provides:
  1. (1)
    As soon as practicable after an internal review decision is made, or is taken to have been made, under section 86C, the internal reviewer must give the applicant and any other person affected by the decision written notice (the review notice) of the decision.
  1. (2)
    The review notice must state—
  1. (a)
    the decision; and
  1. (b)
    the reasons for the decision; and
  1. (c)
    that the person may, if dissatisfied with the internal review decision, within 28 days after the person is given the notice apply to the tribunal for external review of the decision under subdivision 2; and
  1. (d)
    how to apply for review of the decision.
  1. [11]
    Next, s 87 of the QBCC Act specifies who may seek external review before the Tribunal. 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.

A ‘reviewable decision’ includes an internal review decision within the meaning of subdivision 1.[3]

Submissions and discussion

  1. [12]
    In support of a submission that the applicant does not have standing to bring the present external review application before QCAT, the respondent referred to the decisions in McCrystal v Queensland Building and Construction Commission,[4] West v Queensland Building and Construction Commission,[5] and Fisher v Queensland Building and Construction Commission.[6] However, those decisions, as well as the more recent decision in The Body Corporate for 39 on Scenic CTS 41029 v Queensland Building and Construction Commission,[7] focused more generally on the meaning of the term ‘a person affected’ by a decision and whether, in the circumstances of those cases, the applicant for external review was ‘a person affected’. The term ‘person affected’ is not defined in the QBCC Act and the discussion focused on the case law.
  2. [13]
    On the other hand, there was no reference in those cases to s 86D of the QBCC Act, which is relevant to the circumstances of the present case. Section 86D is set out above. Subsection 86D(1) provides that after an internal review decision has been made, the internal reviewer must give ‘the applicant and any other person affected by the decision’ written notice of the decision (the ‘review notice’).
  3. [14]
    Section 86D falls within Part 7, Division 3, Subdivision 1 of the QBCC Act, which is headed ‘internal review’. Section 86D refers to s 86C, which deals with the internal review decision, so that where it refers to the ‘applicant’ clearly it is referring to the applicant in relation to the internal review. In the present case, the applicant for the internal review is also the applicant for the present external review.
  4. [15]
    Subsection 86D(2) then provides that the ‘review notice’ must state certain things, including at s 86D(2)(c):

that the person may, if dissatisfied with the internal review decision, within 28 days after the person is given the notice apply to the tribunal for external review of the decision under subdivision 2;

  1. [16]
    It is evident from the terms of s 86D of the Act that a ‘person affected’ by the decision includes the applicant for internal review. Section 86D provides that after an internal review decision has been made, the internal reviewer ‘must give the applicant and any other person affected by the decision’ written notice of the decision. The inclusion of the word ‘other’, rather than simply ‘the applicant and any person affected by the decision’, seems to indicate an intention to include the applicant within the concept of ‘a person affected’ by the decision.
  2. [17]
    In any event, even if that is not the case, by s 86D(1) the applicant (for internal review), whether an ‘affected person’ or not, is entitled to receive a ‘review notice’ of the decision and, as such, has the external review rights referred to at s 86D(2)(c).
  3. [18]
    Accordingly, given that the present applicant for external review before the Tribunal was also the applicant for the internal review, he has standing to bring the present application.

Footnotes

[1]QBCC internal review Decision Notice, [6]; Submissions of the applicant, [11].

[2]Building Act, ss 127(2)(f), 136(2)(f)

[3]See definition of ‘reviewable decision’ in QBCC Act, Sch 1.

[4] [2018] QCAT 207.

[5] [2019] QCAT 237.

[6] [2019] QCAT 323.

[7] [2021] QCAT 34.

Close

Editorial Notes

  • Published Case Name:

    McMain v Queensland Building and Construction Commission

  • Shortened Case Name:

    McMain v Queensland Building and Construction Commission

  • MNC:

    [2021] QCAT 333

  • Court:

    QCAT

  • Judge(s):

    Senior Member Aughterson

  • Date:

    28 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.