Marigliano v Queensland Building and Construction Commission
[2023] QCAT 225
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- Unreported Judgment
- Marigliano v Queensland Building and Construction Commission[2023] QCAT 225
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Marigliano v Queensland Building and Construction Commission[2023] QCAT 225
Marigliano v Queensland Building and Construction Commission[2023] QCAT 225
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Marigliano v Queensland Building and Construction Commission [2023] QCAT 225 |
PARTIES: | JOSEPH DAVID MARIGLIANO (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | OCR091-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 16 May 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – natural justice – reasonable apprehension of bias – where application for recusal dismissed – where directions issued requiring submissions in relation to standing – where allegation that directions unnecessary and caused delay – whether properly informed lay-observer might apprehend bias Queensland Building and Construction Commission Act 1991 (Qld), s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 122 CNY17 v Minister for Immigration and Border Protection & Anor (2019) 268 CLR 76 Fisher v Queensland Building and Construction Commission [2019] QCAT 323 Marigliano v Queensland Building and Construction Commission [2022] QCATA 75 McCrystal v Queensland Building and Construction Commission [2018] QCAT 207 McMain v Queensland Building and Construction Commission [2021] QCAT 333 Queensland Building and Construction Commission v McMain [2022] QCATA 111 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 & REPRESENTATION: | 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
- [1]These reasons are issued following a request made pursuant to s 122 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) for reasons for a decision. The relevant decision was made on 16 May 2023, dismissing the applicant’s application that I recuse myself from proceedings in this matter.
- [2]The substantive matter involves a pool safety certificate that was issued by a pool safety inspector in relation to a pool on the applicant’s property, in circumstances where the applicant said that the pool was non-compliant with relevant legislation. Following disciplinary action taken by the respondent, it was found that a ground for disciplinary action had been established in relation to one alleged non-conformity, but not in relation to another. The present applicant was the applicant in that proceeding, including on the internal review, and the pool safety inspector was the ‘affected party’.
- [3]On 7 April 2021, the applicant filed an application to review that decision of the respondent. On 25 May 2021, I issued directions requiring the parties to file any submissions on the question of whether the applicant is a ‘a person affected by a reviewable decision’, such that that would entitle him to file an application for review in the Tribunal pursuant to s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’).
- [4]Underlying those directions were decisions of the Tribunal that arguably indicated that in the circumstances of the present case the applicant was not a ‘person affected’ and hence did not have standing to bring the review application.[1] In an email communication of 2 June 2021, the applicant simply stated that he was a person affected by the decision because of the alleged failure to conduct a proper investigation and his responsibility to bring to light the failings of the respondent and the pool safety inspector.
- [5]On the other hand, in submissions filed on 17 June 2021 the respondent submitted that the applicant was not ‘a person affected by a reviewable decision’ within the meaning of the QBCC Act and that the review application should be dismissed pursuant to
s 47 of the QCAT Act. Reference was made to the decision in McCrystal v Queensland Building and Construction Commission.[2] - [6]To enable a reply to those submissions, on 24 August 2021 I issued further directions requiring the applicant to file any further submissions by 21 September 2021.[3]
- [7]
[7] Mr Marigliano’s proposed grounds of appeal as stated in his application for leave to appeal or appeal appear to be primarily that he is being ‘forced’ to explain ‘over and over’ that he is an affected party ‘when it is blatantly obvious & self-evident that’ he is an affected party. That said, he also states that the QBCC ‘made a fake Decision based on a fake investigation’ and related matters…
- [8]In dismissing the application for leave to appeal, the Appeal Tribunal further stated:[6]
[12] At the heart of Mr Marigliano’s appeal proceeding is his belief expressed in his grounds of appeal that by the Tribunal’s directions of 24 August 2021, he was being required on multiple occasions to make the same submissions over and over. On a proper analysis that argument is without merit.
[13] The Tribunal here made directions on 25 May 2021 for the parties to file submissions about whether Mr Marigliano was a person entitled to apply for review of the decision the subject of his application for review. The parties were entitled to natural justice, and in particular, to make their respective arguments about this issue so the Tribunal could consider them in making its decision whether Mr Marigliano has standing for the review proceeding. Mr Marigliano filed his submissions to the effect that he was a person affected and able to apply for the review. The QBCC then filed submissions to the effect that Mr Marigliano is not a person entitled to bring the review.
[14] Although he had filed submissions, Mr Marigliano was entitled as a matter of natural justice to reply to the QBCC’s arguments to the effect that he was not a person entitled to bring the review proceeding. Those submissions addressed issues that Mr Marigliano had not considered in his earlier submissions to the Tribunal. In my view, it was the proper course for the Tribunal in fulfilling its obligation to observe natural justice, to afford him an opportunity to reply to QBCC’s submissions.
- [9]On 25 August 2022, the applicant filed the application that I recuse myself from the present matter. In making that application, the applicant again refers to the directions issued on 25 May 2021 and 24 August 2021 and states that ‘more than sufficient evidence of my status as a person affected by a reviewable decision under s 87 was given on March 30, 2021’. He further states that his request that I recuse myself was:
Due to these unwarranted directions which has brought on a 16 month unnecessary delay and the very obvious threat of objection of my request for external review for no logical reason …
- [10]The applicant concluded that if I did not recuse myself it would ‘be impossible for myself to believe that I would be granted fair, unbiased, and objective proceedings established under the QCAT philosophy and rules of natural justice’.
- [11]In CNY17 v Minister for Immigration and Border Protection & Anor,[7] with reference to the merits review of decisions of the Minister conducted by the Immigration Assessment Authority, which is established within the Migration and Refugee Division of the Administrative Appeals Tribunal, Kiefel CJ and Gageler J stated (footnotes omitted):[8]
[17] What the bias rule requires of the Authority is that its conduct and that of the Minister and the Secretary is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA provides might reasonably apprehend that the Authority might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review. …
[18] The purpose of combining the "double might" with the construct of the hypothetical "fair-minded lay observer" is to stress that the bias rule is concerned as much to preserve the public appearance of "independence and impartiality" on the part of the Authority as it is to preserve the actuality. …
[19] The purpose of combining the "fair-mindedness" of the hypothetical lay observer with the "reasonableness" of that observer's apprehension is to stress that the appearance or non-appearance of independence and impartiality on the part of the Authority falls to be determined from the perspective of a member of the public who is "neither complacent nor unduly sensitive or suspicious". Together they emphasise that "the confidence with which the [Authority] and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably – and not fancifully – entertained by responsible minds".
[20] The question whether conduct has resulted in a breach of the bias rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises. …
[21] Establishment of an apprehension of bias on the part of the Authority then requires the taking of two essential steps: first, identification of the factor which it is postulated might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits; and, second, articulation of how that factor might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits. Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred. In taking that third step, "it is the court's view of the public's view, not the court's own view, which is determinative".
- [12]In that case, Nettle and Gordon JJ also stated (footnotes omitted):[9]
[56] … A finding of apprehended bias is not to be reached lightly. The determination of whether an apprehension of bias is "reasonable" is not assisted by philosophical conceptions of the varieties of seriousness or materiality.
…
[58] … The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair‑minded lay observer has "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]".
- [13]As noted, the reason for seeking recusal is due to the ‘unwarranted directions’, which are said to have caused ‘unnecessary delay and the very obvious threat of objection of my request for external review for no logical reason’. While it is understood that that is the perception of the applicant, as noted in CNY17 the test for apprehended bias, which is the basis of the application for recusal, is an objective one; that is, whether a ‘fair-minded lay observer properly informed as to the nature of the procedure’ might reasonably apprehend that an impartial and unprejudiced mind might not be brought to the resolution of the matter. As also noted in CNY17, a finding of apprehended bias is not reached lightly and the fair-minded lay observer ‘knows the nature of the decision, the circumstances that led to the decision and the context in which it was made’.
- [14]In the present case, the nature, circumstances and context of the decision were set out by the Appeal Tribunal, noted at [7]-[8] above. In particular, the respondent was entitled to raise the question of the standing of the applicant to file the review application and to make submissions in that regard. Also, as a matter of procedural fairness, the applicant was entitled to reply to the submissions of the respondent. The directions afforded him that opportunity. In relation to the suggested delay, much of that arose as a result of the appeal process undertaken by the applicant.
- [15]For those reasons, the application for miscellaneous matters filed on 25 August 2022 is dismissed.
Footnotes
[1] See McCrystal v Queensland Building and Construction Commission [2018] QCAT 207; West v Queensland Building and Construction Commission [2019] QCAT 237; Fisher v Queensland Building and Construction Commission [2019] QCAT 323; The Body Corporate for 39 on Scenic CTS 41029 v Queensland Building and Construction Commission [2021] QCAT 34.
[2] [2018] QCAT 207.
[3] It is noted that in a separate decision in McMain v Queensland Building and Construction Commission [2021] QCAT 333, handed down on 28 September 2021, it was held that an applicant in circumstances equivalent to the applicant in the present case was ‘a person affected by a reviewable decision’ and hence had standing to bring the review application. That decision was upheld on appeal on 11 August 2022: Queensland Building and Construction Commission v McMain [2022] QCATA 111.
[4] Marigliano v Queensland Building and Construction Commission [2022] QCATA 75.
[5] Ibid, [7].
[6] Ibid, [12]-[14].
[7] (2019) 268 CLR 76.
[8] Ibid, [17]-[21].
[9] (2019) 268 CLR 76, [56], [58].