McMain v Queensland Building and Construction
[2023] QCAT 254
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- Unreported Judgment
- McMain v Queensland Building and Construction[2023] QCAT 254
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McMain v Queensland Building and Construction[2023] QCAT 254
McMain v Queensland Building and Construction[2023] QCAT 254
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | McMain v Queensland Building and Construction [2023] QCAT 254 |
PARTIES: | TERRANCE RONALD McMAIN (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | OCR104-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 5 July 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member D Brown |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – where an application for review of a decision that a private building certifier did not engage in unprofessional conduct or professional misconduct has been brought by an affected party – where the Queensland Building and Construction Commission has applied to join the Building Certifier as a respondent to the review – whether the Building Certifier should be joined Building Act 1975 (Qld), s 204 Queensland Building and Construction Commission Act 1991 (Qld), s 86D, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 20 s 24, s 42 A B Hill Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 46 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242 Darryl Hathway Painting and Decorating Pty Ltd v Queensland Building and Construction Commission & Anor [2019] QCAT 4 Mirvac Queensland pty LTD & Anor v Principal Body Corporation of the Ephraim Island CTS 339951 [2014] QCAT 649 |
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
Background
- [1]On 16 December 2020, the applicant, Mr McMain filed an application in the Tribunal to review an internal review decision of Queensland Building and Construction Commission (QBCC) made on 24 April 2020. In that decision, which stemmed from a complaint and, subsequently, an application for internal review it was found that Mr Andrew David Rowley (Mr Rowley), a private building certifier, had not engaged in unsatisfactory conduct or professional misconduct.
- [2]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.
- [3]This is an application made by the Respondent QBCC to join the building certifier, Mr Rowley as a respondent to the proceedings.
Legislation
- [4]Section 42(1) of the QCAT Act provide:
- (1)The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that—
- (a)the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
- (b)the person’s interests may be affected by the proceeding; or
- (c)for another reason, it is desirable that the person be joined as a party to the proceeding.
Consideration
- [5]The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) require the Tribunal to deal with a matter in a way that is accessible, fair, just, economical, informal and quick.[1] Joining parties has the potential to complicate issues and prolong hearings and this Tribunal must consider the objects of the QCAT Act when deciding on any joinder application.
- [6]In Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2)[2] the QCAT Appeal Tribunal held:
[11] There must be some utility or purpose in the joinder. It might be that the joinder would avoid duplication of the litigation or multiplicity of proceedings in other proceedings in the tribunal; there might be common question of fact or law involved in the proceeding; the joinder may enable all issues in dispute between affected parties to be finally determined; or it may be that the parties joined would be amenable to an order of the tribunal in the proceeding in the Tribunal. There are also questions of prejudice to the proposed parties in terms of costs, whether the process would be unnecessarily lengthened and, importantly, and whether the objects set out in s 3 of the QCAT would be achieved. These are some of the matters that might be taken into account in the exercise of discretion but are by no means exhaustive and each case would depend on its own particular circumstances.
- [7]The Appeal Tribunal in Coral Homes[3] also had this to say about joining a person as a party to a proceeding without the person’s consent:
To include parties in contentious litigation without their consent is a serious matter and will not be done lightly. That is why the section confers a discretionary power on the Tribunal. The applicant for an order to join another party must demonstrate not only that the party may be affected by the proceeding but also there is, within that proceeding, here a review of an administrative decision, some utility or purpose in the joinder. This is particularly so given the broad basis upon which a person might have standing to bring an application to either be joined as a party to a proceeding or, to apply to join another party. The threshold to establish that their interest, “may be affected” is easily crossed.
- [8]A Joinder application involves a two-step approach.[4] The first consideration is to consider whether the party should be bound by or have the benefit of a decision of the Tribunal, or whether the party’s interests may be affected, or for any other reason. This is not difficult to satisfy.
- [9]The substantive application is made in the review jurisdiction of the Tribunal. In the review jurisdiction, the Tribunal decides the review by way of fresh hearing on the merits,[5] and the purpose of the review is to produce the correct and preferable decision.[6] In conducting the review, the Tribunal may confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return the matter to the decision maker for reconsideration.[7]
- [10]At a hearing, one possible outcome is that the Tribunal may decide to set aside the decision of the QBCC and find that Mr Rowley did engage in misconduct. Accordingly, I am satisfied based on this that Mr Rowley’s interests may be adversely affected by the outcome of this review proceeding and as the review decision is about Mr Rowley’s conduct, he should be bound by any decision.
- [11]In addition to meeting the threshold test, the Tribunal has accepted that there must be utility and purpose in joining the proposed party and the discretion to join a party requires a ‘balancing exercises’ of the advantages and disadvantages.[8]
- [12]Factors to be considered when adding extra parties include whether the joinder will add to the complexity of the matter; whether it will lengthen the duration of the hearing potentially significantly; and will it delay the hearing date of the proceedings because of the number of parties involved. The QBCC’s application for joinder was filed on 27 October 2021, at a quite early stage of these proceedings, after a jurisdictional issue was resolved and the day after they became aware Mr Rowley was not seeking to join the proceedings of his own initiative.
- [13]No submissions were provided by Mr McMain or Mr Rowley in relation to the QBCC’s request to join Mr Rowley’s as the second respondent. The only information as to Mr Rowley’s position is an email dated 26 October 2021 attached as annexure A to the submission filed on behalf of QBCC to support joinder. This email advises that ‘after consultation with my Managing Director and legal team, I won’t be coming on as joinder.” Mr Rowley also offers to assist QBCC if they require information from him prior to the hearing.
- [14]While I am mindful that the Appeal Tribunal observed in Coral Homes to join parties to a proceeding against their consent is a serious step and one not to be taken lightly in administrative review proceedings such as these, in my view, it would be in the interest of both efficient disposal of the issues and procedural fairness and natural justice for Mr Rowley to be joined so that he is bound by findings on, and able to address the Tribunal on, the issues for determination, especially given the key issue is whether Mr Rowley engaged in “unsatisfactory conduct’ or misconduct’ as defined within Schedule 2 of the Building Act 1975 (Qld).
- [15]This is particularly so given that while the role of the QBCC is to use its best endeavours to assist the Tribunal to reach the correct and preferable decision, it is not the role of the QBCC to promote the position of other interested people, including Mr Rowley[9]. Joinder of Mr Rowley would enable him to properly advocate his position in respect of issues relevant to the allegations of unsatisfactory conduct or misconduct.
- [16]I accept that any additional party can add to the length of the proceeding and hearing, however given the issues in the review matter largely centre around the conduct of Mr Rowley I accept that joining Mr Rowley at this stage of the proceedings is unlikely to have any significant impact on delays or duration.
- [17]Any issues in terms of delay also needs to be balanced against the possibility, if Mr Rowley was not party to these proceedings, that separate proceedings may be required addressing substantially the same factual and legal questions in these proceedings. It seems to me important that Mr Rowley be a party to this proceeding and joinder in this matter is consistent with the objects of the QCAT Act to deal with matters in a way that is ‘fair, just, economical, informal and quick’ and to ‘promote the quality and consistency of tribunal decisions.
- [18]If Mr Rowley was not joined and unsatisfactory conduct or misconduct of Mr Rowley is found by the Tribunal, he may well seek to challenge such decision and, at that opportunity, seek to call evidence and make detailed submissions about the facts and the law, giving rise to the possibility of inconsistent findings and an extended timeframe for the resolution of all the issues. Those submissions and any such evidence should be given in this proceeding, so that one body on one occasion may make one decision as to all relevant facts and law.
- [19]For these reasons, I am satisfied that in line with the provisions of s 42 of the QCAT Act it is desirable and appropriate for Mr Rowley to be joined as a party to the proceeding.
- [20]I order accordingly. I further order the QBCC to provide all material filed to date in the proceedings, as well as this decision and reasons, to Mr Rowley.
Footnotes
[1]QCAT act s 3(b).
[2][2012] QCATA 242.
[3]Ibid 2 [14].
[4]Mirvac Queensland pty LTD & Anor v Principal Body Corporation of the Ephraim Island CTS339951 [2014] QCAT 649.
[5]QCAT Act s 20(2).
[6]QCAT Act s 20(1).
[7]QCAT Act s 24.
[8]A B Hill Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 46.
[9]Darryl Hathway Painting and Decorating Pty Ltd v Queensland Building and Construction Commission & Anor [2019] QCAT 4.