Marigliano v Queensland Building and Construction Commission
[2023] QCAT 393
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- Unreported Judgment
- Marigliano v Queensland Building and Construction Commission[2023] QCAT 393
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Marigliano v Queensland Building and Construction Commission[2023] QCAT 393
Marigliano v Queensland Building and Construction Commission[2023] QCAT 393
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Marigliano v Queensland Building and Construction Commission [2023] QCAT 393 |
PARTIES: | JOSEPH DAVID MARIGLIANO (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | OCR091-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 28 August 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER OCCUPATIONS – pool safety inspector – where application to remove respondent from the proceedings – where application for Member of Tribunal to conduct a view of the property – whether respondent should be removed – whether view should be conducted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 48, s 95, s 122 Queensland Building and Construction Commission Act 1991 (Qld), s 97 Uniform Civil Procedure Rules 1999 (Qld), r 478 Commissioner for Railways v Murphy (1967) 41 ALJR 77 Marigliano v Queensland Building and Construction Commission [2023] QCAT 225 |
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 28 August 2023, dismissing the applicant’s applications for miscellaneous matters filed on 12, 20 and 27 July 2023.
- [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 an investigation 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 for the internal review and the pool safety inspector was the ‘affected party’.
- [3]The applications of 12 July 2023 and 27 July 2023 sought the same order: that is, to have the respondent removed from the proceedings pursuant to s 48 of the QCAT Act, on the basis that it had ‘deliberately and vexatiously’ endeavoured to deny the applicant the right to external review.
- [4]This issue was at least indirectly dealt with in a separate decision made on 16 May 2023 in Marigliano v Queensland Building and Construction Commission.[1] It relates to the question of whether the applicant was a ‘person affected’ by the decision such that it entitled him to seek external review before the Tribunal. It was directed that the parties file submissions in relation to that question. In the decision of 16 May 2023 it was stated (footnotes omitted):
[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. 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.
- [5]As also noted in that decision, at [14], the QBCC was entitled to raise the question of the standing of the applicant to file the review application, particularly given that the decisions of the Tribunal on that issue were not consistent. In raising that question it cannot be said that the respondent acted in a way that necessarily disadvantaged the applicant in terms of s 48 of the QCAT Act. A party is entitled to seek a determination as to the scope of provisions relevant to the right of review before the Tribunal.
- [6]The application of 20 July 2023 sought an order from the Tribunal that there be an ‘onsite investigation’ of the pool fence in question, which would include the presence of a Member of the Tribunal, an independent pool safety inspector and ‘original Cairns Council officers’ whose findings were said to have been rejected by the respondent. It is said that the ‘principal evidence in this case is the physical evidence at my home’.
- [7]By s 28 of the QCAT Act, generally the procedure for a proceeding is at the discretion of the Tribunal. It is noted that by rule 478 of the Uniform Civil Procedure Rules 1999 (Qld) a court may conduct a view of a place. Also, s 97(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) provides:
- (1)A member of the tribunal may, if it is necessary to do so for the purposes of a proceeding before the tribunal—
- (a)enter and inspect a building[2] or land relevant to the proceeding accompanied by the parties to the proceeding; or
- (b)authorise a person in writing to take the following action and report to the tribunal on the action taken—
- (i)enter and inspect a building or land relevant to the proceeding;
- (ii)take photographs, video film or an image of the building or land or anything relevant to the proceeding;
- (iii)carry out tests approved by the tribunal.
Examples of building or land relevant to the proceeding—
- a display home mentioned in a contract as the model to be followed by a building contractor if the display home is occupied by a third party
- land adjoining other land on which is situated building work the subject of a proceeding to better inspect the building work from the adjoining land
- [8]In relation to a view, at least in the absence of a contrary agreement between the parties, a visit to a site is not part of the evidence in the proceedings, but merely serves to enable the Tribunal to better understand the evidence presented to it.[3] That also seems to be the effect of s 97(1)(a) of the QBCC Act, while s 97(1)(b) allows for the gathering of evidence from a site inspection.
- [9]On the other hand, it is evident that the applicant is seeking to have the ‘onsite investigation’ by the Tribunal Member serve as evidence in support of his claim.
- [10]By s 95 of the QCAT Act, the Tribunal must allow the parties to a proceeding a reasonable opportunity to call or give evidence. The applicant may call any witness who is able to give evidence relevant to the proceedings. If the Member conducting the Tribunal hearing considers it appropriate to conduct a view in order to better understand the evidence presented or to take any other action indicated by s 97 of the QBCC Act, then that is a matter for the Member to consider at that time.
- [11]For those reasons the applications filed on 12, 20 and 27 July are dismissed.