Queensland Building & Construction Commission v Whalley
[2018] QCATA 38
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- Unreported Judgment
- Queensland Building & Construction Commission v Whalley[2018] QCATA 38
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Queensland Building & Construction Commission v Whalley[2018] QCATA 38
Queensland Building & Construction Commission v Whalley[2018] QCATA 38
CITATION: | Queensland Building & Construction Commission v Whalley [2018] QCATA 38 |
PARTIES: | Queensland Building & Construction Commission (Appellant) |
| v |
| Peter Whalley (Respondent) |
APPLICATION NUMBER: | APL048-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | 12 October 2017 |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Browne, presiding Member Howe |
DELIVERED ON: | 27 March 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
THE APPEAL TRIBUNAL DIRECTS THAT:
4:00pm on 17 April 2018
4:00pm on 8 May 2018
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellant contended errors of law occurred in the conduct of the proceeding – where the jurisdiction of the tribunal limited to that given by enabling legislation ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellant made reviewable decisions – where the respondent sought review of reviewable decision – where agreed list of issues prepared at compulsory conference – where Tribunal conducted review on the papers – where Tribunal addressed the agreed list of issues in the determining the review – whether Tribunal proceeding amounted to a merits review – whether the tribunal misapprehended jurisdictional basis of review hearing Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86(1)(e), Queensland Civil and Administrative Act 2009 (Qld), s 6(2)(a), s 17(2), s 20(2), s 24(1), s 29, s 69, s 142, s 164(1) Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin (2014) 9 ACTLR 1 DMW v CGW (1982) 151 CLR 491 Ericson v Queensland Building Services Authority [2013] QCA 391 Flegg v Crime and Misconduct Commission & Anor [2013] QCA 376 Harrison & Anor v Meehan [2017] QCA 315 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Owen v Menzies [2013] 2 Qd R 327 Queensland Building and Construction Commission v Vadasz [2014] QCATA 1 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 Whalley v Queensland Building and Construction Commission [2017] QCAT 15 |
APPEARANCES: |
|
APPLICANT: | Queensland Building and Construction Commission represented by Russell Ensbey, Solicitor of Gadens Lawyers |
RESPONDENT: | Peter Whalley (no formal appearance) |
REASONS FOR DECISION
- [1]Peter Whalley built a kit home on a site located in Townsville in 2013. The owners of the site (and kit home) complained to the Queensland Building and Construction Commission (‘QBCC’) about some of the building work performed by Mr Whalley.
- [2]The QBCC inspected the building work and made a number of decisions (and internal review decisions) under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) about the work performed by Mr Whalley, including issuing a direction to rectify (‘DTR’).
- [3]
- [4]Mr Whalley and representatives from the QBCC attended a compulsory conference chaired by a member of the Tribunal. The member chairing that proceeding made directions about the future conduct of the application to review. That is, the Tribunal constituted for the review was directed to determine, on the papers (without an oral hearing), a list of seven issues captured in a document titled ‘list of issues and agreements’ (‘the list of issues’) prepared at the compulsory conference.[3]
- [5]The learned Member constituted for the review proceeding determined the application to review on the papers and made findings about the list of issues. The learned Member ordered that the QBCC’s decision of 5 April 2016 that work under DTR no. 40913 had not been satisfactorily rectified, be set aside. The learned Member also set aside another decision made by the QBCC on 5 April 2016 (also referred to as the decision made on 8 April 2015) concerning DTR no. 42267.[4]
- [6]
Ground 1 The Tribunal erred as a matter of law in failing to conduct its review of the decisions of the [QBCC] being reviewed by way of a fresh hearing on the merits as required by Section 20(2) of the QCAT Act 2009.
Ground 2 The Tribunal erred as a matter of law, and exceeded its jurisdiction in undertaking its review of the Applicant’s decisions by way of a judicial review;
Ground 3 The Tribunal erred in setting aside the decisions of the Applicant being reviewed;
Ground 4 The Tribunal erred as a matter of law in setting aside the [QBCC’s] Decisions being reviewed in circumstances where the [QBCC] had an alternate source of power for making its decisions, namely:
- (a)the power to decide whether to direct to rectify pursuant to Section 72 of the QBCC Act; and
- (b)the power to decide whether work the subject of a Direction to Rectify has been satisfactorily rectified or not, which is an implied power pursuant to the QBCC Act, in particular Section 86(1)(f) of the QBCC Act.
Ground 5 The Tribunal erred as a matter of law in making a decision setting aside in relation to Direction to Rectify and/or Complete No 42267 on the grounds that the Review Application filed by Mr Whalley initiating Case No GAR112–16 did not seek to review the decision of the [QBCC] to issue Direction to Rectify and/or Complete No 42267.
- [7]Although the QBCC has raised five separate grounds of appeal, the main issue or contention that arises in the appeal is whether the Tribunal failed to exercise its statutory power of review. In particular the QBCC contend that the Tribunal determined the application to review in a way that wrongly purported to exercise powers of judicial review by considering the validity and correctness of the internal review decisions made by the QBCC.[7] The QBCC’s further ground of appeal identified as ground 5 concerns the final orders made by the Tribunal in relation to setting aside DTR no. 42267. The QBCC says that the Tribunal had no jurisdiction to review DTR no. 42267.[8]
What is the tribunal’s power to review?
- [8]The tribunal has both original and review jurisdiction as conferred on it by an enabling Act.[9] In particular, the tribunal has the power to review certain administrative decisions (as conferred) made by a government department or other relevant regulatory body. In reviewing a decision where an application to review has been filed, the tribunal must arrive at the correct and preferable decision.
- [9]Relevantly, s 20 of the QCAT Act requires the tribunal to decide a review by way of a fresh hearing on the merits. There is no presumption that the decision being reviewed is correct and the tribunal does not have to find any error in the decision-maker’s process for making the decision or the reasons for making it.[10] As stated by the then Deputy President of the Tribunal, Kingham DCJ in Kehl v Board of Professional Engineers of Queensland:[11]
It is apparent from Mrs Kehl’s submissions on this application that she has misapprehended the function of the Tribunal on an application to review a decision. The Tribunal’s role in exercising review jurisdiction is to reconsider the original decision and to make the correct and preferable decision. The review is conducted on the merits, by way of a fresh hearing. Unlike judicial review, the Tribunal’s function is to review the decision – not the process by which it was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct.
- [10]The tribunal in a review proceeding effectively stands in the shoes of the decision-maker exercising the same powers (as the decision-maker) under the enabling Act to produce the correct and preferable decision.[12] As observed by the High Court in Shi v Migration Agents Registration Authority,[13] in relation to the Administrative Appeals Tribunal (‘AAT’) in exercising its power to review under the Administrative Appeals Tribunal Act 1975 (Cth), ‘the Tribunal’s task is “to do over again” what the original decision-maker did’.[14] The AAT, like QCAT, has the power to review certain administrative decisions made under an enactment, except that the AAT reviews decisions made under certain Commonwealth legislation and QCAT reviews decisions made under the relevant Queensland legislation.
- [11]The orders the tribunal may make in a review proceeding are set out in s 24 of the QCAT Act. Relevantly, s 24(1) provides that the tribunal may ‘confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate’.
- [12]The tribunal’s power to review a decision, as conferred by the relevant legislation, should not be mistaken for or in any way likened to a judicial review proceeding. Judicial review is concerned with the correctness of the decision made and is ‘… concerned with the process of decision-making or the limits of the decision-maker’s powers’.[15] In a judicial review proceeding, the Supreme Court of Queensland may grant remedies and make orders in respect of certain administrative decisions in exercising its inherent powers now enshrined in the Judicial Review Act 1991 (Qld)[16] only where there is an error on the legal merits.
- [13]Historically, the judicial review process was recognised as ‘both unwieldy and unnecessary’.[17] As observed in Shi’s case, it was for this reason that administrative review tribunals such as the AAT were established to review administrative decisions ‘on the merits’. In Shi’s case, the High Court also observed that the proposal to create such a tribunal (the AAT) was ‘a bold departure from the pre-existing law, with its focus on constitutional and statutory “prerogative” remedies of judicial review’.[18]
- [14]A tribunal conducting a merits review proceeding is also conducting a hearing de novo because the tribunal is required to consider all of the material afresh, including the material that was before the decision-maker and, subject to any modifying provisions, any material or new evidence filed by the applicant and the decision-maker. Unlike a judicial review proceeding that is concerned with the legal merits, a merits review is a proceeding concerned with the factual merits. More importantly, the tribunal in reviewing a decision may make any findings of fact and has the power to deal with all questions of law or legal issues relevant to the decision being reviewed.
- [15]The tribunal in exercising its review power under the QCAT Act, must only review the decision that has been identified by the applicant in the application to review. In reviewing a decision and exercising its powers under s 24, the tribunal would not, for example, ordinarily make final orders about other decisions made by the decision-maker and would only make final orders about the reviewable decision the subject of the review. This is because the tribunal only has the power as prescribed under s 17 and 18 of the QCAT Act to review certain decisions upon application being made to the tribunal to exercise its review jurisdiction for a ‘reviewable decision’.
What did the Tribunal find on review?
- [16]In this case, the reviewable decision before the Tribunal was the QBCC’s decision of 5 April 2016 that work under DTR no. 40913 ‘has not been satisfactorily rectified’. That decision was made by Stephen Ferguson of the QBCC following an internal review (of Bill Piper’s decision). The decision made on 5 April 2016 concerning DTR no. 40913 was to issue a new DTR no. 42267 which was in identical terms to the direction in DTR no. 40913.[19]
- [17]The Tribunal on review in arriving at the correct and preferable decision was required to consider whether Mr Whalley had satisfactorily rectified work identified in DTR no. 40913. In particular, the Tribunal was required to consider whether Mr Whalley as the licensee had provided compliant flashings to opening in external walls.[20]
- [18]The application to review proceeded to a compulsory conference before the final hearing. Directions were made by the member chairing the compulsory conference about the list of issues prepared (at the compulsory conference) and the future conduct of the application to review. The Tribunal (constituted for the review proceeding) was directed to determine the list of issues prepared at the compulsory conference on the papers. The list of issues contained a ‘preamble’ that identified the only decision to be reviewed as the decision of 5 April 2018. The list of issues prepared and attached to the Tribunal’s directions is set out below (footnotes omitted):
LIST OF ISSUES AND AGREEMENTS
Preamble
The only decision under review is that of 5 April 2016 and it is challenged solely on the grounds that in reaching that decision the QBCC failed to comply with the QBCC Act or follow its internal procedures.
In this application, the decision about unsatisfactory work as expressed in the decision of 5 April 2016 is not being challenged.
Agreements
The decision under review was made by Stephen Ferguson.
It is agreed that this was an "internal review decision" and the statutory provisions in sections 85A to 86D of the QBCC Act apply to that decision.
It is accepted by the QBCC that the decision of 5 April 2016 can be reviewed in QCAT as a reviewable decision because the decision was that building work undertaken at the direction of the commission under Direction to Rectify 40913 was not satisfactorily rectified [and therefore this comes under section 86(1)(f) of the QBCC Act].
Issues
- Whether the QBCC failed to comply with the requirement in paragraph (a) of section 86C(4) because Mr Ferguson also made the reviewable decision which was the subject of the internal review. Mr Whalley says that the reviewable decision concerned was the decision Mr Ferguson made when making his report on file SF00002870 which was relied on by the Internal Review Officer June Blaney in the decision made on internal review dated 4 February 2015.
- In the circumstances set out in issue 1 above, whether the QBCC failed to follow its own internal review policy item 5 that internal reviews will be undertaken by a person not involved in making the original decision.
- Whether the QBCC failed to comply with the requirement in paragraph (b) of section 86C(4) because Mr Ferguson was in a less senior office than the person who made the reviewable decision which was the subject of the internal review. Mr Whalley says that the reviewable decision concerned was that of Bill Piper made on 22 April 2015.
- Whether the decision of 5 April 2016 was an internal review of an earlier internal review. Mr Whalley says that the earlier internal review was the decision of Bill Piper made on 22 April 2015. If so, whether this was contrary to QBCC's policy on internal reviews not to have two internal reviews about the same thing, or otherwise not available under the QBCC Act.
- Whether the decision of 5 April 2016 was not made as soon as practicable as required by section 86C(1) of the QBCC Act.
- Whether without the house owner's agreement to a longer period, the decision of 5 April 2016 was made more than 28 days after the application for an internal review was made by the house owner. If so, whether section 86C(3) applies to deem that the QBCC made a decision the same as the reviewable decision.
- If the light of the answers to any of the issues above, whether the decision of 5 April 2016 ought to be set aside or some other order made.
- [19]The learned Member constituted for the review proceeding made a number of findings in answering the list of issues. The learned Member found, amongst other things, that the internal review conducted by the QBCC and the decisions made were not properly initiated, were flawed and that the applicant was not granted natural justice in respect of the process undertaken by the QBCC. The learned Member also considered whether the decision of 5 April 2016 ought to be set aside in addressing issue 7 of the list of issues.[21] The relevant extract from the learned Member’s reasons is as follows:
Determination of Issue 7
- [124]I have found that the second review process was not properly initiated; should not have been conducted by Mr Ferguson; was not fairly conducted; and failed to consider the issue of whether it was fair to issue a Direction to Rectify in the circumstances. The decision of Mr Ferguson therefore cannot stand.
- [125]The builder has requested in the Application filed in the Tribunal that the Tribunal set aside the decision of Mr Stephen Ferguson dated 5 April 2016, and affirm the decision of Mr Bill Piper dated 21 April 2015; or alternatively invite Mr Ferguson, the decision maker, to reconsider the decision.
- [126]I will set aside the decision of Mr Ferguson, and the Direction to Rectify issued by him.
- [127]The decision of Mr Piper has not been brought to the Tribunal to be reviewed. I therefore make no order as to the decision of Mr Piper, but note that the internal review decision which set it aside, having now itself been set aside, the decision of Mr Piper remains in force.
- [20]The learned Member made final orders in relation to the decision made by the QBCC on 5 April 2016 (DTR no. 40913), and the decision made by the QBCC on 8 April 2016 (also referred to in the Tribunal’s reasons and its final orders as being dated 5 April 2016) in relation to DTR no. 42267. The learned Member ordered as follows[22]:
- [131]I order that:
- (a)The decision of the Queensland Building and Construction Commission made on 5 April 2016, that work under Direction to Rectify and/or Complete No 40913 had not been satisfactorily rectified, is set aside.
- (b)The Direction to Rectify and/or Complete No 42267 issued by the Queensland Building and Construction Commission on 5 April 2016 is set aside…
What are the grounds of appeal?
- [21]In addressing grounds 1 to 4 of the appeal, the QBCC say that the learned Member was required to conduct a fresh hearing on the merits and this required him to review the evidence including make findings of fact and to draw from them conclusions necessary to make a decision on the review.[23]
- [22]The QBCC say that the learned Member has no jurisdiction to conduct a judicial review and the Tribunal purported to make a decision in the review as to whether there was jurisdictional error.[24] The QBCC say that in setting aside the internal review decisions, the learned Member ultimately decided that there had been jurisdictional error and the QBCC’s decisions were set aside on that basis.[25] The QBCC say that the Tribunal does not have power to exercise judicial review and the Tribunal is required to conduct its review by way of a fresh hearing on the merits. The QBCC say that the learned Member failed to do so and erred as a matter of law.[26]
- [23]The QBCC also contend that the Tribunal had power, irrespective of any jurisdictional error in conducting the proceeding, to review the Tribunal’s decisions.[27] The QBCC refer to relevant sections of the QBCC Act that give the QBCC and the Tribunal on review the power to decide whether to direct to rectify work and to decide whether work the subject of a DTR has been satisfactorily rectified.[28] What we understand the QBCC to argue on appeal is even if the decision had not been lawfully made due to jurisdictional error, the Tribunal erred in not proceeding to undertake a merits review of the decision.
- [24]In addressing ground 5 of the appeal, the QBCC raise a question of law as to whether the learned Member fell into error when he set aside DTR no. 42267 in circumstances where Mr Whalley did not initiate a review of that decision made by the QBCC.[29]
- [25]The QBCC seek final orders on appeal to set aside the Tribunal’s decision and return the matter to the learned Member for reconsideration.[30] In doing so, the QBCC also seek an order that the parties be given an opportunity to put before the Tribunal in reconsidering the matter any additional evidence relevant to the review proceeding and the issues the Tribunal is required to consider in making a proper determination.[31] The QBCC also seek directions in relation to costs after the determination of the appeal.
- [26]Mr Whalley, in written submissions filed in the appeal proceedings, says that he will abide by the Appeal Tribunal’s determination of the appeal.[32] Mr Whalley also says that the learned Member has dealt with the review proceedings at first instance (in GAR112-16) and that it was incumbent on the Tribunal below to set aside DTR no. 42267 because the basis for this decision is extinguished where DTR no. 40913 (referred to in his submissions as decision SF00005572) is set aside.
Error in the Tribunal’s decision
- [27]There is an error in the Tribunal’s decision made on 20 January 2017. The Tribunal has failed to exercise its review function and conduct a fresh hearing on the merits necessary to produce the correct and preferable decision.
- [28]The learned Member who determined the review on the papers was an experienced member of the Tribunal. The learned Member has, as directed by the Tribunal at the conclusion of the compulsory conference, made a number of findings in answering the list of issues settled in the compulsory conference. The findings made by the learned Member were universally concerned with the internal policies of the QBCC and adherence of breach of various statutory requirements imposed by the legislation (the QBCC Act), including whether the decision of 5 April 2016 was made within the time prescribed for internal reviews (conducted by the QBCC).
- [29]The learned Member did not make any findings about the work performed by Mr Whalley as identified in the DTR no. 40913. The significant absent element of the learned Member’s enquiry was whether the builder had provided compliant flashings to openings in the external wall pursuant to P2.2.2 of the Building Code of Australia and therefore work under DTR no. 40913 had not been satisfactorily rectified.
- [30]The learned Member here was answering the narrative of the list of issues for determination arising out of the earlier compulsory conference which representatives of both sides attended and agreed was the list of issues for determination. Regardless of that misleading step, the course adopted by the learned Member was wrong. The Tribunal constituted for the review proceeding was ultimately responsible for determining the matter. The QCAT Act mandates, amongst other things, that the Tribunal conduct a fresh hearing on the merits, and this may involve, in exercising its review function, identifying relevant issues and making findings of fact to determine the review proceeding. The learned Member failed to conduct a merit review required by the QCAT Act. There was in consequence an error of law and the decision of the learned Member cannot stand.
- [31]We find that there is an error in the Tribunal’s final decision by confining itself to only determine the settled list of issues. The learned Member has failed to exercise the Tribunal’s review jurisdiction and produce the correct and preferable decision. The appeal is allowed on grounds 1 and 2 as those grounds specifically raise an error of law in failing to conduct a statutory review on the merits.
- [32]We also find an error of law as articulated by the QBCC in grounds 3 and 4 of the appeal because those grounds concern the Tribunal’s failure to exercise its review power. By setting aside the decision of the QBCC the Tribunal, standing in the shoes of the decision-maker and exercising the same powers under the QBCC Act, failed to conduct a statutory review and set aside the decision and substitute its own decision. The Tribunal’s ultimate decision in terms of the orders made only set aside the QBCC’s decision and did not ‘substitute’ its own decision as required by s 24 of the QCAT Act. Grounds 3 and 4 of the appeal are allowed.
- [33]We also accept the QBCC’s submission that the Tribunal did not have any power to deal with the decision of 8 April 2016 (also referred to as the decision of 5 April 2016 in the Tribunal’s reasons) in relation to the DTR no. 42267.
- [34]Mr Whalley’s application clearly identified the decision of Stephen Ferguson dated 5 April 2016 as the reviewable decision and this was also identified by the learned Member in his reasons.[33] That was a decision made pursuant to s 86(1)(f) of the QBCC Act, namely that building work undertaken at the direction of the QBCC was not of a satisfactory standard.
- [35]There was no request to review the decision to issue DTR no. 42267 sought by Mr Whalley in his application. DTR no. 42267 was issued on 8 April 2016 and was not a decision about the satisfactory standard of work undertaken at the direction of the QBCC pursuant to s 86(1)(f) but a decision pursuant to s 86(1)(e) that building work be rectified.
- [36]The Tribunal’s review jurisdiction was only enlivened in respect of the decision of 5 April 2016 for DTR no. 40913. There was no inherent or other power of the Tribunal to make final orders about the decision made by the QBCC on 8 April 2018 even if that decision was, for the purposes of the QBCC Act, a reviewable decision.
- [37]The Tribunal is a court of record,[34] but an inferior court of record. The Tribunal has no jurisdiction other than as granted by the QCAT Act or other enabling legislation. It has no inherent power to make decisions appropriate to redress perceived or discovered wrongs in a matter before it as might be presumed to be the case in a matter before the Supreme Court. We take guidance from the High Court in DMW v CGW[35] that clearly said the presumption that a court has acted within jurisdiction is denied to inferior courts. In DMW v CGW,[36] the High Court considered whether the Family Court, created by Federal legislation, was a superior court such as the supreme courts of the states. The High Court said (footnotes emitted):
A superior court is a court of general jurisdiction, which is not to say that there cannot be jurisdictional limits but rather that it will be presumed to have acted within jurisdiction. This presumption is denied to inferior courts. It has been held that “nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged”…
- [38]Here, the Tribunal’s merit review jurisdiction in respect of DTR no. 42267 was never enlivened by Mr Whalley absent an application seeking review of the decision to issue it. Accordingly, the learned Member had no power to make orders about the decision to issue DTR no. 42267. In so far as that was done, it was an error of law because it was a misuse of the power under s 20 and s 24 of the QCAT Act. Ground 5 of the appeal is allowed.
Conclusion
- [39]We have found that the learned Member’s decision was flawed by failing to conduct a statutory review as required under the QCAT Act and in failing to exercise the powers under s 20 and 24, in respect of the final orders made by the Tribunal. We have allowed the appeal on grounds 1, 2, 3 and 4. We have also found an error as articulated in ground 5 in relation to the orders made about DTR no. 42267.
- [40]In this matter, the learned Member has confined himself in determining the review proceeding to a list of issues settled at the compulsory conference process. The list of issues was prepared with the consent of the parties and directions were made by the Tribunal as constituted for the compulsory conference about the future conduct of the review proceeding including directing that the Tribunal on review determine the list of issues on the papers.
- [41]The Tribunal, constituted for the compulsory conference process, has a statutory obligation as prescribed in s 69 of the QCAT Act to, amongst other things: identify and clarify the issues in dispute, promote a settlement of the dispute, identify the questions of fact and law to be decided by the Tribunal; and to make orders and give directions about the conduct of the proceeding. The Tribunal in all proceedings, (for example a compulsory conference and a hearing), also has a statutory obligation, as prescribed by s 28 and 29 of the QCAT Act. In particular, s 29 requires the Tribunal to, amongst other things, ensure that each party to a proceeding ‘understands- the practices and procedures of the tribunal; and the nature of assertions made in the proceeding and the legal implications of the assertions; and any decision of the tribunal relating to the proceeding’.
- [42]As observed by the Court of Appeal in Harrison & Anor v Meehan,[37] s 29 does not permit the Tribunal in a proceeding to assist the parties to prove their respective cases or to give advice to parties about how to conduct the proceedings. The Court of Appeal said:
Section 28(3)(d) of the Queensland Civil and Administrative Tribunal Act 2009 (“the Act”) provides that, in conducting a proceeding, the Tribunal must act with as little formality and technicality as the requirements of the Act and a proper consideration of the matters before the Tribunal permit. Section 29 of the Act obliges the Tribunal to take all reasonable steps to ensure that each party to a proceeding understands the nature of assertions made in the proceeding and the legal implications of those assertions. None of that permits the Tribunal to assist parties to prove their respective cases or to give advice to parties about how to conduct the proceedings. To do so would necessarily involve unfairness to one of the parties. Notwithstanding the desirability for informality in proceedings before the Tribunal, the need for impartiality remains paramount.[38]
- [43]In this case, the Tribunal in settling the list of issues at the compulsory conference was seeking to discharge its statutory obligations under the QCAT Act. The Tribunal, in settling the list of issues was not, as observed in Harrison’s case, assisting the parties to prove their respective cases, but was, by directing the Tribunal on review to determine the list of issues, effectively directing the learned Member to conduct a hearing that was not a merit review. The Tribunal constituted for the review was ultimately responsible for determining the issues relevant in the review proceeding and was required to conduct a fresh hearing on the merits. As observed above in Harrison’s case, s 29 does not permit the Tribunal to assist parties to prove their respective cases. We conclude that in this case s 29 does not also permit the Tribunal in a compulsory conference proceeding to direct the Tribunal on review to conduct the proceeding according to the issues identified by the parties. This matter is a cautionary tale about the perils of settling a list of issues at a compulsory conference that will ultimately bind the Tribunal in the final hearing and may require it to determine the matter in a certain way.
- [44]In this matter, we observe that it was, of course, open to the learned Member, prior to determining the review, to vacate the earlier directions made by the Tribunal at the compulsory conference and list the review proceeding for an oral hearing. At the oral hearing the learned Member could then have raised with the parties the mischief caused by the list of issues settled at the compulsory conference. The learned Member could have allowed the parties an opportunity to make any further submissions or present any further evidence relevant to the decision being reviewed. This would have enabled the learned Member to discharge his statutory obligations under the QCAT Act and proceed to conduct a review on the merits.
- [45]For the reasons we have given, the appeal must be allowed, the decision of 20 January 2017 set aside and the matter remitted to the Tribunal for reconsideration.[39] In the reconsideration of the application to review, it will of course be appropriate for the parties to be given an opportunity to present any fresh evidence relevant to the reviewable decision. The Tribunal reconsidering the application may make any directions necessary for the filing of any new evidence. We make orders accordingly.
- [46]There is a further issue to be considered by us that was raised by the QBCC in the appeal proceedings and that is the issue of costs. Both parties should be given an opportunity to file any written submissions in respect of costs in the appeal should the QBCC proceed to file an application seeking costs. We will make directions accordingly.
Footnotes
[1] Application to review a decision filed on 6 May 2016 in proceeding GAR112-16.
[2] See statement of reasons filed in GAR112-16, 232 and Part B of the Application to review a decision filed on 6 May 2016.
[3] Directions dated 19 August 2016 in proceeding GAR112-16.
[4] Tribunal’s reasons dated 20 January 2017, [29].
[5] Application for leave to appeal or appeal filed on 17 February 2017 and amended application for leave to appeal or appeal filed on 22 May 2017 to include a further ground of appeal (ground 5).
[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142.
[7] Submissions by the applicant/appellant (the QBCC) dated 4 May 2017.
[8] Supplementary submissions by the applicant/appellant (the QBCC) dated 8 September 2017.
[9] QCAT Act, s 6(2)(a).
[10] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [12].
[11] Ibid, [9].
[12] Queensland Building and Construction Commission v Vadasz [2014] QCATA, 1 [17].
[13] (2008) 235 CLR 286 (‘Shi’s case’).
[14] Ibid, 315 [100].
[15]Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin (2014) 9 ACTLR 1, 27 [98].
[16] Original jurisdiction (as preserved under Part V for prerogative remedies) may be exercised by the Supreme Court of Queensland, see the Judicial Review Act 1991 (Qld).
[17]Shi’s case, 296 [30].
[18] Ibid, 297 [32].
[19] Statement of Reasons filed in GAR112-16, p 239.
[20] Tribunal’s reasons, [27].
[21] Whalley v Queensland Building and Construction Commission [2017] QCAT 015.
[22] The Tribunal’s reasons dated 20 January 2017, [131].
[23] QBCC’s written submissions dated 4 May 2017, [12]. See Flegg v Crime and Misconduct Commission & Anor [2013] QCA 376, [15]–[16].
[24] QBCC’s written submissions dated 4 May 2017, [24].
[25] Ibid.
[26] QBCC’s written submissions dated 4 May 2017, [24].
[27] Ibid, 9.
[28] Ibid.
[29] Supplementary submissions filed by the QBCC dated 8 September 2017.
[30] QBCC’s written submissions dated 4 May 2017, p 10.
[31] Ibid.
[32] Submissions by the respondent (Mr Whalley) filed on 13 September 2017.
[33] Tribunal’s reasons dated 20 January 2017, [125].
[34] QCAT Act, s 164(1). See Owen v Menzies [2013] 2 Qd R 327.
[35] (1982) 151 CLR 491, 509.
[36] Ibid.
[37] [2017] QCA 315 (‘Harrison’s case’).
[38] Harrison’s case, [13].
[39] See Ericson v Queensland Building Services Authority [2013] QCA 391, [25].