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Hall v Queensland Building and Construction Commission[2024] QCAT 582

Hall v Queensland Building and Construction Commission[2024] QCAT 582

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

hall v Queensland Building and Construction Commission [2024] QCAT 582

PARTIES:

ANDREW HALL

(applicant)

LESLEY HALL

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR139-24

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 December 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

  1. 1. The Application for miscellaneous matters filed on 21 February 2024 is dismissed.
  2. 2. The Application for miscellaneous matters filed on 20 March 2024 is dismissed.
  3. 3. The Application for miscellaneous matters filed on 17 June 2024 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants filed application to review a decision – where applicants did not pay prescribed fee – whether the tribunal has jurisdiction to review decision of principal registrar to reject a fee waiver application – whether the tribunal can determine the application 

Acts Interpretation Act 1954 (Qld)

Education (Queensland of Teachers) Act 2005 (Qld)

Information Privacy Act 2009 (Qld) 

Legislative Standards Act 1992 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Civil and Administrative Tribunal Regulation 2019 (Qld)

Valuers Registration Act 1992 (Qld)

McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1

Stanton v Electrics Downunder [2020] QCATA 142

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

Introduction

  1. [1]
    The Applicants have several review matters pending before the Tribunal. One of those matters filed on 21 February 2024 was an application to review a decision made by the Queensland Building and Construction Commission (the review application). However, the Respondent named was not the Commission but a delegate of the Commissioner.
  2. [2]
    The review application was refused by the Registry.
  3. [3]
    On the same day, 21 February 2024,[1] the Applicants filed a Form 49 Application for fee waiver (waiver application) on the basis of financial hardship. The Application seeking waiver of the filing fee was again filed on 12 March 2024 to correct an error in the first application that stated that the Applicants were in receipt of legal aid. They were not, and that was corrected in the second application.
  4. [4]
    The Application for a fee waiver was rejected by the Registry and the Applicants have filed an Application for miscellaneous matters dated 20 March 2024 in the review application (first filed on 21 February 2024 with the review application). The purpose of the application is not clearly stated but it contains the following statement:[2]

We have supplied the necessary evidence to confirm that we are experiencing financial hardship some of which has been caused directly by Registry Officer Rhiannon Phillips’s refusal to refund in excess of $3000 in Application Fees that was required to be refunded in accordance with the QCAT Form 49 Application for Fee Waiver version 2.

  1. [5]
    The legislative basis for granting a fee waiver is found in section 12 of the Queensland Civil and Administrative Tribunal Regulation 2019 (Qld) which states:
  1. A person may apply, in the approved form, to the principal registrar for a fee payable under the Act to be waived.
  1. [6]
    The eligibility criteria to allow a fee waiver is published on the QCAT website as follows:

QCAT is satisfied the payment of fee would cause, or would be likely to cause financial hardship if you are:

  • In receipt of a full pension or benefit (maximum rate) from Centrelink or Veterans’ Affairs;
  • Under 18 years of age;
  • A protected person under a current domestic violence order;
  • In receipt of a grant of legal aid.
  1. [7]
    The approved form is Form 49. Instructions for completing the form relevantly provide:

Supporting documents

To apply for a fee waiver or appeal fee reduction you must provide QCAT with supporting documents regarding your financial circumstances. Please do not send original supporting documents to QCAT, as copies are acceptable.

If you receive a pension or benefit (maximum rate) from either Centrelink or Veterans Affairs’ service pension you must provide:

  • A copy of your current pension card (both sides); or
  • A copy of your current Centrelink income statement; or
  • A copy of your current Veterans’ Affairs service pension card (both sides).

Note: A Centrelink Health Care Card is not considered a pension card.

  1. [8]
    I note that the Form 49 also contains the following note:

Review of decisions

Fee waiver or appeal fee reduction decisions are administrative decisions and are not reviewable.

  1. [9]
    On the application for miscellaneous matters filed 21 February 2024 and again on 20 March 2024, the Applicants have ticked the box in Part B of the Form 40 which states ‘Application to refer rejection or conditional acceptance of application or referral to tribunal for review’. Clearly, the Applicants are seeking a review of the Registry’s decision.
  2. [10]
    The Applicants, on 17 June 2024, have since filed a further application for miscellaneous matters seeking a non-publication order on the grounds that:[3]

If the evidence of our financial hardship circumstances is made available to the respondent party (including QBCC and NRF) we expect that they will attempt to take advantage of our circumstances as they have already done regarding our medical circumstances.

If the evidence is also provided to MC Aspects (Applicant in BDL027-20) we expect that they will also try [to] take advantage of the information to delay the proceedings and speed [up] our potential bankruptcy.

Referral provisions

  1. [11]
    I note that sections 33 to 38 are contained in Chapter 2 Part 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the Act) which relates to Starting proceeding.  
  2. [12]
    Section 34 of the Act provides for referring matters to the tribunal:
  1. This section applies if an enabling Act provides for the referral of a matter to the tribunal.
  2. The referral must be made—
  1. (a)
    within the period provided for under the enabling Act; and
  2. (b)
    in a way complying with the rules.
  1. [13]
    The section only provides for referrals under an enabling Act not the Act.
  2. [14]
    Section 35 of the Act deals with the situation where an application or referral is rejected by the principal registrar or as in this case the registry staff delegated to consider the matter. Section 35(3) provides:

The principal registrar may reject an application or referral on any of the following grounds–

  1. (a)
    the application or referral is made by a person who is not authorised to make it;
  2. (b)
    the application or referral is made after the expiry of the period within which it is required to be made under this Act;
  3. (c)
    the application or referral does not otherwise comply with this Act, an enabling Act or the rules.
  1. [15]
    Section 210 of the Act permits the principal registrar to delegate a function conferred on the principal registrar under the Act or an enabling Act to a registry staff member.[4]
  2. [16]
    Section 35(4) of the Act provides:

If the principal registrar rejects an application or referral, or accepts an application or referral on conditions—

  1. (a)
    the principal registrar must notify the applicant that the applicant may request the principal registrar to refer the decision to the tribunal for review; and
  2. (b)
    if the applicant makes the request, the principal registrar must refer the decision to the tribunal for review.
  1. [17]
    Application and referral are defined in Schedule 3 as follows:

application means an application to the tribunal under this Act or an enabling Act.

referral means a referral of a matter to the tribunal under this Act or an enabling Act.

  1. [18]
    For completeness it is instructive to look at the definition of applicant.

applicant means—

  1. (a)
    for an application or a proceeding to be started on application—the person who makes the application; or
  2. (b)
    for a referral or a proceeding to be started on referral—
  1. (i)
    the person who makes the referral; or
  2. (ii)
    if the enabling Act under which the referral is made states another person is the applicant for the referral or proceeding—the person stated in the enabling Act.
  1. [19]
    Section 242 of the Act provides the regulation-making power. Inter alia, it provides that a regulation made under the Act may prescribe fees payable under the Act.[5]
  2. [20]
    Section 38 of the Act provides for the prescribed fees to be paid depending on the nature of the application or referral:
  1. 38
    Prescribed fees
  1. (1)
    An applicant for an application or referral must pay the prescribed fee, if any, for the application or referral.
  2. (2)
    The tribunal must not take any action on an application or referral until the fee is paid.
  3. (3)
    Subsection (2) does not prevent the tribunal directing the principal registrar to accept or reject an application or referral under section 35.

The decision not to waive payment of the fee

  1. [21]
    The application for fee waiver was determined by Deputy Principal Registrar Meldrum and notified to the Applicants by the letter dated 8 March 2024. Ms Meldrum had earlier determined in a telephone conversation with the Applicants on 4 March 2024 that they were not in receipt of legal aid. Her response to the application was as follows:

Reason for rejection

In accordance with s 35(c) of the Act, your application has been rejected for the following reason/s.

  • Your application for waiver or an appeal fee reduction for reasons of financial hardship is not approved.

QCAT has previously confirmed that to be eligible for a fee waiver or an appeal fee reduction, you must meet the following criteria and provide the relevant supporting documentation.

  • In receipt of a pension or benefit from Centrelink or Veterans’ Affairs;
  • Under 18 years of age;
  • A protected person under a current domestic violence order;
  • In receipt of a grant of legal aid.

As discussed, your application for a fee waiver cannot be approved on the basis of the photocopy of your Australian Government Health Care Card attached to your application.

You are therefore required to pay the filing fee of $379.50, and you have not done so.

  1. [22]
    The Applicants were advised that if the wished to progress their application, they would have to provide the required information or pay the fee. They were advised of their rights to have the decisions reviewed. For reasons, that appear later I do not consider that there was any right to review Deputy Principal Registrar Meldrum’s decision.
  2. [23]
    The Applicants filed the further Form 49 application on 12 March 2024 to correct the legal aid statement, but did not add any additional information.

Does the Tribunal have jurisdiction to review the principal registrar’s decision to reject the application for fee waiver?

  1. [24]
    In extensive submissions the Applicants submit that the deputy registrar’s decision to reject a fee waiver:[6]
  1. (a)
    affects the persons’ access to justice (as the substantial proceeding cannot progress to a hearing without a fee being paid or a waiver approved); and
  2. (b)
    is a power which makes a person’s human right (ie. their access to justice and to right to have their proceeding heard) dependent on the administrative power of the Principal Registrar to reject the fee waiver, it therefore must be “subject to appropriate review”.
  1. [25]
    Section 35(4)(a) of the Act requires the principal registrar to notify the applicant of his/her rights to review the rejection of an application or referral decision but that relates to a rejection of a referral of a matter under an enabling Act.
  2. [26]
    However, referral appears to have different meanings in the Act. This is apparent from other provisions of the Act.
  3. [27]
    Section 143A(2) of the Act allows for an appeal tribunal to refer a matter to the tribunal for reopening.[7] This differs from section 147(3)(c) of the Act which empowers the tribunal on deciding an appeal to, inter alia, return (not refer) the matter to the tribunal for reconsideration.
  4. [28]
    The principal registrar may refer parties to a proceeding to attend a conciliation (see section 66A of the Act) and a matter or part of a matter for mediation (see section 75 of the Act).
  5. [29]
    The Tribunal has jurisdiction to hear referrals from different organisations. An example of this is a referral by the information commissioner under the Information Privacy Act 2009 (Qld) section 176 as well as from some professional bodies in relation to disciplinary proceedings. Examples include Valuers Registration Act 1992 (Qld) section 50 and Education (Queensland College of Teachers) Act 2005 (Qld) section 97. There are many other examples.
  6. [30]
    None of the above references relate to a referral to which Chapter 2 Part 3 of the Act applies. It is apparent that the term is used in different contexts in the Act. It is not unusual, albeit unintentional, that a word may have different meanings in the same Act.[8] The Acts Interpretation Act 1954 (Qld) recognises this by section 32A which provides:

Definitions to be read in context

Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires.

  1. [31]
    The following passages that appear in Statutory Interpretation in Australia are apposite:[9]

4.8

The first part of this approach is well stated in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 by Hodges J:

I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.

Mason J in Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; 7 ALR 383 at 387 put it directly: ‘It is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise.’ This was endorsed by the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; (2021) 273 CLR 21; 391 ALR 270 at [25] and R v Jacobs Group (Australia) Pty Ltd [2023] HCA 23 at [25]…

…

4.10

The counsel of perfection that is contemplated by the approach described above is not always attained. As a result the courts have been ready to depart from that approach with very little compunction. In Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; (1921) 29 CLR 579 at 590 Higgins J said:

There is sound sense in the statements contained in Maxwell’s Interpretation of Statutes, 6th ed, pp 557, 564, to the effect that although it is always well to use the same word for the same thing and not to change the language unless a change in meaning is intended, the presumption that arises from variations in language is of very slight force if the words in themselves are sufficiently clear.

See also Gibbs ACJ in McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1979) 144 CLR 633 at 643; 24 ALR 175 at 178 for an expression of a similar view…

  1. [32]
    The Tribunal is a creature of statute and relies upon either the Act or various enabling Acts for its jurisdiction. Unlike some courts the Tribunal has no inherent jurisdiction.
  2. [33]
    It follows that there is no jurisdiction for a tribunal to review a decision of the principal registrar or his/her delegate to refuse an application for a fee waiver.

Is the denial of the right to review substantial or procedural

  1. [34]
    The Applicants rely upon section 4 of the Legislative Standards Act 1992 (Qld) which provides:
  1. (3)
    Whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation—
  1. (a)
    makes rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review…
  1. [35]
    In my opinion, the above provision relates to the substantive rights of a party. The requirement to pay a filing fee and the waiver of that requirement are not substantive matters going to the rights of a party but are procedural in nature. This can be demonstrated by the fact that under section 36 of the Act a proceeding starts when the principal registrar accepts an application even though a fee has not been paid. However, under section 38 of the Act the proceeding cannot progress unless the fee is paid. An analogous situation is the effect of a limitation period which when pleaded is in effect a bar to the proceeding but does not affect the party’s right to bring the claim.
  2. [36]
    The ‘distinction’ between procedural and substantive issues, albeit in the context of private international law though analogous to the present situation, are explained by Mason CJ in McKain v RW Miller & Co (South Australia) Pty Ltd:[10]

For the purposes of private international law, an appropriate criterion may be formulated by reference to the principal reason why it is necessary to draw a distinction between matters of substance and procedure. This reason, as has been seen, is associated with the efficiency of litigation. That efficiency is achieved by the adoption and application of the rules of practice and procedure and by the judges' practical familiarity with those rules. With this in mind, the essence of what is procedural may be found in those rules which are directed to governing or regulating the mode or conduct of court proceedings.

  1. [37]
    QCAT has set out its requirements in the notes in the instructions to completing the Form 49 Application.
  2. [38]
    It follows that in my opinion that there is no right to review a refusal of an application for a fee waiver.
  3. [39]
    If I am wrong, it is clear that the Applicants have not provided evidence of financial hardship. The only evidence the Applicants put forward was an Australian Government Health Care Card. The Applicants previously had been advised that an Australian Government Health Care Card was not considered a pension card which was noted on the Form 49. 
  4. [40]
    Despite extensive submissions filed 17 June 2024, the Applicants have not provided any other evidence that satisfies any of the eligibility criteria, and the reference in an earlier application to the Applicants being in receipt of legal aid has now been denied.

Non-publication order

  1. [41]
    In a separate application the Applicants sought a non-publication order. Section 66 of the Act provides for the making of a non-publication order, however, only if the tribunal considers it is necessary.
  2. [42]
    Other than the mere allegation that other parties may take advantage of the knowledge of the Applicant’s financial circumstances there was no evidence provided to justify the making of such an application.
  3. [43]
    I am of the opinion that it would be inappropriate to make such an order on the evidence submitted.

Orders

  1. [44]
    I make the following orders:
    1. The Application for miscellaneous matters filed on 21 February 2024 is dismissed.
    2. The Application for miscellaneous matters filed on 20 March 2024 is dismissed.
    3. The Application for miscellaneous matters filed on 17 June 2024 is dismissed.

Footnotes

[1] The Tribunal date stamp records 22 February 2024 but has been manually corrected to 21 February. 2024. I have assumed that 21 February 2024 is the correct date.

[2] Application for miscellaneous matters filed 21 February 2024 by the Applicants, 4.

[3] Application for miscellaneous matters filed 17 June 2024 by the Applicants, 4.

[4] The Act s 210(2)(b).

[5] The Act s 242(2)(a).

[6] Written Submissions filed 17 June 2024 by the Applicants, 12 (citations omitted).

[7] Stanton v Electrics Downunder [2020] QCATA 142.

[8] See William Feilden Craies and Samuel G Edgar, Craies on Statute Law (London: Sweet & Maxwell, 7th Ed, 1971), 168.

[9] Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 10th ed, 2024), 161-4 (citations omitted) (‘Statutory Interpretation in Australia’).

[10] (1991) 174 CLR 1, 26-7.

Close

Editorial Notes

  • Published Case Name:

    Hall v Queensland Building and Construction Commission

  • Shortened Case Name:

    Hall v Queensland Building and Construction Commission

  • MNC:

    [2024] QCAT 582

  • Court:

    QCAT

  • Judge(s):

    Member King-Scott

  • Date:

    11 Dec 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Craig Williamson Pty Ltd v Barrowcliff (1915) VLR 450
1 citation
Jump To
Cite 1 - (1915) VLR 450
McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633
1 citation
Jump To
Cite 1 - (1979) 144 CLR 633
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
2 citations
Jump To
Cite 1 - (1991) 174 CLR 1
Cite 2 - (1991) 174 CLR 1
Registrar of Titles (W.A.) v Franzon (1975) 132 CLR 611
1 citation
Jump To
Cite 1 - (1975) 132 CLR 611
Stanton v Electrics Downunder [2020] QCATA 142
2 citations
Jump To
Cite 1 - [2020] QCATA 142
Cite 2 - [2020] QCATA 142

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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