Jackson v Commissioner, Queensland Fire and Emergency Services
[2020] QCATA 171
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- Jackson v Commissioner, Queensland Fire and Emergency Services[2020] QCATA 171
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Jackson v Commissioner, Queensland Fire and Emergency Services[2020] QCATA 171
Jackson v Commissioner, Queensland Fire and Emergency Services[2020] QCATA 171
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Jackson & Anor v Commissioner, Queensland Fire and Emergency Services [2020] QCATA 171 |
PARTIES: | PETER WAYNE JACKSON (First Appellant) JASON EDWARD JACKSON (Second Appellant) v COMMISSIONER, QUEENSLAND FIRE AND EMERGENCY SERVICES (Respondent) |
APPLICATION NO: | APL 092-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 15 December 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Member Roney QC |
ORDERS: | The appeal is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – appeal from a review of decision to issue requisition for installation of a fire hydrant – whether power or jurisdiction to issue requisition – whether premises is within rural or urban fire zone APPEALS – APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – duty to provide reasons and deal with arguments advanced below – rule of finality in appeals. Fire and Emergency Services Act 1990 (Qld), s 69 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 Berthelsen & Anor v Queensland Building and Construction Commission [2017] QCATA 82 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2012] 2 Qd R 114 King & Ors v Australian Securities and Investments Commission [2018] QCA 352 Mango Boulevard Pty Ltd v Spencer & Ors [2010] QCA 207 |
REPRESENTATION: | |
Applicants: | Self-represented |
Respondent: | S Anderson, instructed by the Crown Solicitor |
APPEARANCES: | 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]This is an appeal from a decision of the Tribunal delivered on 4 March 2020 in which the Tribunal dismissed an application to review a decision of the Commissioner of the Queensland Fire and Emergency Services (QFES) to issue a requisition to the two applicants to the effect that they were to install a fire hydrant system at premises located near the town of Tully in North Queensland.
- [2]The matter had been the subject of an oral hearing on 15 November 2019 at which not only were there written statements before the Tribunal in relation to the issues to be raised, but there was also oral evidence, cross-examination and oral submissions made in the course of the hearing. The Appellants to this Appeal Tribunal were the Applicants below.
- [3]The Appellants are father and son. The First Appellant, Peter Jackson, is 71 years of age, and the Second Appellant, Jason Jackson, is his son, who is 45 years of age. The two of them purchased a cane farm at a property in Murrigal, which comprises some 73 hectares and which originally included a house and an implement shed. Jason Jackson lived on the property with his family.
- [4]It is common ground that the property had no town water service, and the only water on the property was via a bore on the site. This is relevant to the issues which arose on the appeal, that is as to whether and to what extent water was available on the site for use in the event there was a fire. The Applicants decided 11 years ago that Jason Jackson would construct a shed on the property and out of that shed he would conduct a business called Jackson Fabrication and Welding Pty Ltd. A building application was lodged with the Local Council to obtain approval for the construction of the shed. The shed was then constructed some 10 years ago, and in the course of the construction, some fire safety apparatus were provided, specifically a fire hose reel system and fire extinguishers. The shed was further extended some four years ago; that required a further application to the relevant Council and its approval which was obtained.
- [5]The Respondent Commissioner, Queensland Fire and Emergency Services, has power in certain circumstances to issue a requisition pursuant to s 69 of the Fire and Emergency Services Act 1990 (Qld) and by that means to require any occupier of premises to take measures for the purpose of reducing the risk of a fire occurring on the premises or reducing potential danger to persons, property or the environment in the event of a fire occurring on the premises.
- [6]By requisition issued purportedly under s 69 of that Act on 14 February 2017 the Commissioner gave notice for the stated statutory purpose that the Appellants were to take specific measures at the subject site set out in Annexure B to the relevant requisition. The requisition also identified in Annexure A to it, that Queensland Fire and Emergency Services, and implicitly the Commissioner, had identified specific hazards at the relevant site. The measures which were identified in Annexure B to the requisition were specified as being required to be completed within a specified time after the requisition was given. The requisition further gave notice that there was power under the Act to enter the subject premises and take any of the measures to rectify the hazard and any expense incurred in taking those measures could be recovered from the occupiers. It also gave notice that the failure to comply with the notice constituted an offence. Requisitions were issued to both Appellants.
- [7]The identified hazards were that:
- (a)A steel frame building had been erected on the premises and no certification of classification had been issued for the building;
- (b)The building was occupied and being used for industrial purposes without required fire safety installations, in particular supply of water at the premises is inadequate for fire fighting purposes; and
- (c)There was potential danger to persons, property or the environment in the event that a fire occurred.
- (a)
- [8]Annexure B required the Appellants to:
- (a)Engage the services of an appropriately qualified building certifier to conduct an audit of the building and provide a written report detailing each and every fire safety installation required in the building in relation to the building’s current use; and
- (b)Install and maintain, to a standard of safety and reliability in the event of a fire, each and every fire safety installation as per the building certifier’s report.
- (a)
- [9]There was a purported direction under s 69 of the Act to ensure that the water supply available for fire fighting purposes was adequate, and complied with the standards and legislation applicable to the type and current use of the building.
- [10]The Applicants applied to the Tribunal to review that decision to issue the requisition. Part C of the Review Application identified why it was claimed that the decision to issue the requisition was wrong or not properly made. In response the review application is in the following terms:
- 1. QFES does not have jurisdiction in this matter;
- 2. QFES does not have jurisdiction to issue the requisition notice; and/or in the alternative
- 3. The issue of the requisition notice by QFES was procedurally incorrect as it was issued without QFES attending at the property and conducting a physical inspection.
- [11]There was a recitation in the Review Application of what the facts were that are said to be important and they included the identification of works which establish the existence of a bore, which was the source of water for fire fighting purposes. Included was the fact that the Applicants had obtained information about the reliability of water supply from the bore. Reference was made to the controversial issue which ultimately was confronted by the Tribunal itself, as to whether there was “jurisdiction of QFES” in view of the fact that it was contended that an urban fire brigade was not in fact available to attend a building fire that might have occurred on that site within 30 minutes of notification of the fire.
The reasons of the Tribunal below
- [12]The Tribunal dismissed the Application to review the decision. The Reasons for decision by the Tribunal, less than two pages in length in total, focus solely upon that latter proposition, that is as to whether an urban fire brigade was not in fact available to attend a building fire that might have occurred on that site within 30 minutes of notification of the fire, and which I shall refer to in these reasons as the proximity issue. The Tribunal decided the application for review on the basis of what was described as the question of “whether the Respondent has jurisdiction to issue the requisition notice” in circumstances in which a requirement to install a fire hydrant system that complied with the relevant Australian Standard was only required in circumstances where an urban fire brigade was available to attend a building fire and could attend after notification within 30 minutes. The Tribunal essentially decided the proximity issue adversely to the Appellants on the evidence before it and held that the local urban fire brigade was able to attend the relevant property within a 30 minute notification period. In that regard it referred to certain of the evidence which was before it in preference to that of Mr Peter Jackson.
- [13]Otherwise, the Reasons of the Tribunal only obliquely make reference to any other issue which was raised in the Tribunal, specifically noting, in the context of discussion of the evidence about response time for the relevant fire brigade, that the evidence which had been given by a station officer from the Fire Emergency Services had “agreed that there was no physical inspection of the premises, but he blamed this on the action of the Applicants”. There was no context given to that issue of whether an inspection had been conducted and there was no determination on the merits as to whether there was any other general basis for substantiating the decision to issue the requisition. As is evident from what has been set out above as identifying why the Applicants contended that the decision was wrong, the grounds do not identify anything other than the absence of “jurisdiction” to issue the requisition notice. What specifically was meant by these references to jurisdiction in the two contexts and what the difference was between the two was not clarified at the hearing.
- [14]Clearly a second, or possibly third, issue that arose for determination by the Tribunal based on what was in Part C of the Review Application, was the question of whether the issuing of the notice was “procedurally incorrect” if issued without someone having conducted a physical inspection of the site.
- [15]A review of the transcript of the hearing, and the submissions made in the course of the hearing, as well as the statements which were filed on behalf of the Applicants shows that there was little or no disciplined identification of the basis upon which it might be said that a failure to conduct a physical inspection of property in respect of a requisition notice issued involved some procedural irregularity, or meant that the issuance of a requisition was unlawful.
The grounds on which the review was sought
- [16]As can be seen from what appears in Part C of the Review Application and at page four of the grounds on which the review was sought, the issue of the failure to conduct a physical inspection is raised specifically, and solely in the context of a complaint that in the absence of a physical inspection of the premises the conclusion reached about the response times was unjustified, or in some other way unreasonable.
- [17]At the conclusion of the statement of grounds for review, the Applicants identified that the orders they sought were:
- (a) a declaration that QFES does not have jurisdiction as a referral agency in the development application/s (on the basis that the property is outside the response time area); and
- (b) the withdrawal of (the QFES requisition) on the basis that it was issued without jurisdiction or alternatively its issuance was procedurally incorrect.
- [18]Noteworthy is that the reference in (b) is to a finding being sought that the requisition notice by QFES was procedurally incorrect because it was issued without QFES attending at the property and conducting a physical inspection.
- [19]Those last paragraphs make it patently clear that the findings that were sought focused upon the absence of so called jurisdiction, properly referenced as power or authority, to issue a requisition of that kind because the response time by a fire brigade was more than 30 minutes, and secondly that it was procedurally incorrect to issue a requisition where there had been no physical inspection of the premises, although that was not specifically identified in the grounds.
- [20]Otherwise, the Applicant’s grounds for review recited at length a considerable body of historical factual material, the specific relevance of which to the issues which were raised in the review application was not always apparent.
- [21]Statements were filed on behalf of each of the Applicants. At paragraph 21 of Peter Jackson’s statement he complained about the failure by QFES to have conducted a physical inspection, and a misleading statement about whether one had been conducted. It recited how in 2017 he installed a bigger pump at the shed for water supply and had the bore tested, but his statement then went on simply to discuss response times to the property by the fire brigade from the nearest town.
- [22]The statement of Jason Jackson was very short, dealt with formalities and asserted that the requisition notice was not needed because he had fulfilled all that was required under a development approval, and that the shed being fitted with fire hose reels and extinguishers to a planned design by an expert had been completed.
- [23]Self-evidently, neither of those statements specifically dealt with any legal or factual issues beyond the question of response time for a fire brigade to reach the subject property and the significance, if any, of the failure to have conducted a physical inspection of the premises.
The Grounds of Appeal
- [24]The Applicants applied for leave to appeal the decision of the Tribunal on the basis that the Tribunal:
- (a)Failed to decide the matter on the basis that the Applicants had sought to review the validity of the requisition notice on multiple grounds, and not merely on the basis of the jurisdiction of the QFES. As to the latter, it is apparent that the reference to the jurisdiction of the QFES is intended to be made to the proximity issue referenced above.
- (b)There is also a complaint of a failure to afford the Applicants procedural fairness by seeking submissions from them or otherwise allowing them to be heard on the “remainder” of the application.
- (a)
- [25]In relation to the latter issue on the need for procedural fairness by seeking submissions from them, the Appellants put forward no reasoned argument founded upon any referenced authority which identifies that there was a duty on a Tribunal to specifically seek submissions from a party on any particular issue, whether those parties are represented or otherwise.
- [26]The transcript of the hearing is before this Appeal Tribunal. A review of that transcript shows that the hearing was conducted in a somewhat undisciplined way in that specific reference to the grounds of review which had been filed, was not specifically made during the hearing of evidence nor during submissions. A short while into the hearing, at which the Applicants were self-represented, although assisted by a solicitor who played no active part in the hearing, and also assisted by a barrister’s opinion on some of the issues, and with the Commissioner being represented by Counsel, the presiding Member said as follows:
As far as we understand this is a review of the decision made by the Commissioner on the 14th of February 2017, to issue a requisition notice. And that is what the Tribunal is here to determine. Is that the situation as everyone understands it? Ok. And if I could just look at the actual appeal lodged. The issues which were outlined was (sic) the main issue is whether the Queensland Fire Emergency Services has jurisdiction in this case. That’s one point. And following on from that is therefore, do they have jurisdiction to issue the requisition notice? And I believe the other ground of appeal is that, the notice was procedurally incorrect due to no physical inspection of the premises.
- [27]The presiding Member then asked everyone if that was their understanding of the matters that day, to which the Applicants responded in the affirmative. There was no recorded response from Counsel for the Respondent Commissioner.
- [28]Reference was then made by the presiding Member to the fact that there were statements which had been filed, and that parties could otherwise call evidence if they wanted to “either clarify the issues in dispute or anything like that”.
- [29]Mr Peter Jackson then gave evidence which unfortunately at times, descended into raising issues, raising arguments and making submissions or contentions rather than giving evidence. Mr Jackson’s complaint about the failure to inspect seemed to be mostly if not entirely that they had been misled about whether such an inspection had been carried out by a mistaken reference in correspondence to the fact that an inspection had been carried out when one hadn’t.
- [30]At page eight of the transcript Mr Peter Jackson identified that the property had water drawn from the aquifer. After Mr Jackson had said what he had to say and was asked by the presiding Member at page 24 of the transcript if there was anything else, his response was to ask how they “look at the correctness of the QFES action as against statute”. He was told by the presiding Member that would be a matter for submissions and that they would hear submissions about the “correctness of the decision”. Mr Jackson asked if he would be able to make that submission. He was told that he could do so afterwards, after the Commissioner had led its evidence and was told that “both parties then addressed the Tribunal about why the Tribunal should find in their favour”. Mr Peter Jackson was then cross-examined, principally about the proximity or response time issue.
- [31]A witness was then called in the Respondent’s case who was a Fire and Emergency Services employee. At page 41 of the transcript he was asked in chief what information he had had regard to in deciding whether to issue the requisition notice. He described that evidence and conceded that he had not conducted a physical inspection and that they made their decisions on evidence they had gathered without physically visiting the site. He explained that there was no legislative requirement for them to physically visit the site.
- [32]He then gave further evidence-in-chief about the proximity or response time issue. It was that evidence that the Tribunal preferred over that of Mr Jackson.
- [33]The QFES employee, Mr Gilbard, was not cross-examined or otherwise challenged on his evidence in relation to the absence of any legislative requirement to inspect the site itself. At page 50 of the transcript it is recorded that Mr Jackson did cross-examine Mr Gilbard about the failure to inspect, the point of which seemed to be directed to how it could have been a reference to having inspected when there was no such inspection.
- [34]The QFES employee, Mr Gilbard, explained in detail in his evidence (at transcript pages 51 to 53) what were the inadequacies for firefighting purposes of the supply of water at the premises. He explained why that was the case. His evidence was essentially that they could not draw water and use a hydrant system to put out a fire, there was no infrastructure to ply the water from the storage, and specifically the local water tank on the site. He was cross-examined on his evidence about the adequacy of the water and the available means for using the water, and the requirements of the National Construction Code.
- [35]The entirety of the submissions made on behalf of the Applicants does appear in the appeal record. There was no specific invitation to Mr Peter Jackson to address these, and his engagement with the members of the Tribunal at or near the close of the evidence is confused and confusing because the transcript does not in each case record who it is that is making the statement that is being recorded. Some of it appears to be questions from Counsel, and some of it comments or submissions by Mr Jackson about what they felt and why they felt that way.
- [36]The things that Mr Peter Jackson said in what appear to have been intended as submissions were not focused upon the grounds set out in the review application, and the Tribunal did not bring him back to those grounds and ask him to address them. The issues that he did address involve the contentions that:
- (a)The requirement in the requisition to ensure the water supply available was adequate was not prescriptive and left in doubt what was required of it;
- (b)Under the National Construction Code, a fire hydrant system was only required to facilitate the needs of the fire brigade appropriate to the use of the particular building, and the reference in the requisition to doing things “to the degree necessary” indicated that not all buildings required the installation of a fire hydrant to comply with the Code;
- (c)The requisition to ensure that the water supply available was adequate and complied with the standards and legislation was not mandatory and did not require the installation of a fire hydrant but called for the exercise of technical expertise;
- (d)There was a requirement on the Commissioner in issuing a requisition to specify the measures required to be taken and there was a defect here in requiring the engagement of a third party to do an audit which was said to be some kind of abdication of the exercise of technical skill and judgment.
- (a)
- [37]None of these submissions addressed the jurisdictional issue or the proximity issue or the significance, if any, of the failure to conduct a relevant inspection.
- [38]In her response to those submissions, the first thing said by Counsel for the Commissioner was that those submissions go to an issue which had not been the focus of the review application. Her submissions went solely and specifically to the proximity issue and its relevance to the question of the “jurisdiction” of QFES to issue requisitions having regard to the proximity of this site to a fire brigade.
- [39]The appeal record does not include page 69 of the transcript. The previous page has recorded the introductory remarks of Counsel for the Commissioner set out above.
The Appellants’ submissions on Appeal
- [40]The nub of the Appellants’ submissions in this Tribunal are that the Tribunal below erred in law in failing to consider the application for review in its entirety, and failed to deal with substantial points said to have been raised in the Appellants’ submissions.
- [41]The Appellants seek to avoid their concurrence with the presiding Member’s identification of the issues for determination by suggesting that the Tribunal was obliged to hear and decide the review by way of a fresh hearing on the merits with a view to producing the correct and preferable decision.
- [42]As a corollary to this submission, the Appellants contend that the Tribunal was obliged in exercising its functions under s 19 and s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), to view the entire decision apparently without reference to the specific grounds of review and to produce the correct and preferable decision by a fresh hearing of the matter on the merits.
- [43]Reference is made in the submission for the Appellants to what is said to be authority for the proposition that not only was the Tribunal required to consider whether the Respondent Commissioner could issue the requisition, but also whether it should have been issued. In that regard it references the decision in Berthelsen & Anor v Queensland Building and Construction Commission [2017] QCATA 82 at [38]. Nothing in that decision, nor anything in that referenced paragraph, stands in support of the proposition for which it is relied.
- [44]In Berthelsen & Anor v Queensland Building and Construction Commission, the Queensland Building and Construction Commission (QBCC) cancelled the building industry license of a Mr Berthelsen and the industry licence for IDC Developments Pty Ltd (IDC) of which Mr Berthelsen was a director and influential person on the basis that it had decided Mr Berthelsen was not a fit and proper person to hold a licence. Mr Berthelsen reviewed the QBCC decisions in the Tribunal. A Member heard and determined the review proceedings. The Tribunal made orders confirming the decisions of the QBCC in each case.
- [45]On appeal this Tribunal held that the Tribunal appeared to have exercised the discretion without considering any further matters other than Mr Berthelsen’s fitness and propriety. However, section 48(a) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) provided a discretion to cancel (or suspend) if the licence was obtained on the basis of incorrect information, irrespective of fraud. Likewise, section 48(j) provided a discretion to cancel or suspend, in essence, if the licensee (or its office holders in the case of a company) is not a fit and proper person. On a fair reading of the reasons below the appeal Tribunal held that it was satisfied that the Tribunal determined that, having found Mr Berthelsen was not a ‘fit and proper person’, s 48 was invoked and it was therefore appropriate to cancel the licences, without turning its mind to whether the discretion to cancel ought to be exercised. This Tribunal held that what it was required to undertake in deciding the review of a decision made pursuant to s 48 of the QBCC Act was a two step process, and only one step was taken.
- [46]Patently, the issues which a Tribunal on a review application has to decide are those which the parties have identified as those for determination. To some degree it might be possible for there to be departure from stated grounds for review, however it would in any such case need to be abundantly clear what the redefined issues were. And where the Tribunal has specifically identified at the outset of the hearing what it perceives to be the issues and seeks clarification that their understanding of those issues is correct and are told by those seeking review that their understanding is correct, it would only be in exceptional circumstances, where there was further departure from that position, that additional, supplementary or expanded issues would arise for determination.
- [47]A matter which neither of the parties addressed in their submissions in this Tribunal is the significance of the so called rule of finality in appeals. These principles, which have been discussed on numerous occasions, emphasise the need in appellate proceedings to uphold the importance of finality which pervades the law: Mango Boulevard Pty Ltd v Spencer & Ors [2010] QCA 207 at [16], D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2012] 2 Qd R 114. Those decisions make clear that the finality principle applies to appeals so that except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been cited against them, to raise a new argument which, either deliberately or by inadvertence, they failed to put during the hearing when they had an opportunity to do so.
- [48]A review application of this kind, is not an inquiry at large into whether there were any grounds at all to challenge the decision and to make the decision anew based on all of the available evidence which was before the original decisionmaker.
- [49]Apart from the Applicants’ assurance to the Tribunal that the Tribunal members had correctly understood the issues as going to the question of jurisdiction, and the proximity issue associated with it, the only other identified issue concerned the failure to conduct an inspection.
- [50]The Appellants complain that the Reasons do not deal with the inspection issue in any way, and that submission is fairly made. It is abundantly clear, however, that despite there being a challenge to the Commissioner’s assertion that an inspection had been made, by the end of the hearing it was common ground that no inspection had occurred, and that the reference to the fact that there had been one was an error in the documentation. The Applicants did not contend that any consequence flowed from the failure to have conducted that inspection, and for the reasons I have identified above, even that issue seemed to have most to do with the proximity question. No submissions were made on behalf of the Applicants which contended on some basis or another, the failure to have conducted an inspection of the subject site invalidated or put into question the appropriateness of the issuance of the requisition.
- [51]The Applicants also contend that there was a failure to consider submissions made on behalf of the Appellants. In that regard the submission is made that due to the failure in the requisition to identify precisely what was required to be done to comply with it, there was a failure to consider submissions made. It is true that there was submission made generally on this topic, although it was not specifically about whether there was a failure to identify precisely what was required. Accepting that to be so, that issue did not go to a question of jurisdiction so called, or power to issue a requisition, and that issue had not been raised as a ground for review. Counsel for the Respondent pointed out that it was not an issue which had been raised, and the Appellants did not demur to that suggestion.
- [52]The second alleged failure was the failure by the Tribunal to consider submissions and give reasons.
- [53]In King & Ors v Australian Securities and Investments Commission [2018] QCA 352 Morrison JA and McMurdo JA and Applegarth J summarised the relevant principles.
- [54]The Court said:
- [39] As a general rule, reasons for judgment will:
- (a) refer to the evidence which was important to the determination of the matter;
- (b)set out material findings of fact and the reasons for those findings, including, where there are competing bodies of evidence, why the judge preferred one body over another; and
- (c)engage with the parties’ submissions by explaining why one case is preferred over the other.
Observance of these requirements ensures rights of appeal are not rendered meaningless and that a losing party is not left with a justified sense of grievance that the case has not been properly considered. These requirements are likely to produce a more soundly-based judgment and they further judicial accountability.
- [40]Reasons do not need to be lengthy and elaborate. There is no need to refer to all of the evidence led in the proceeding. Relevant evidence should be referred to, but not necessarily in detail. It is not incumbent upon a judge to deal with every argument and issue that might arise in the course of a case, but where an argument is substantial or an issue is significant, reasons for the rejection of the argument or the resolution of the issue should be given.
- [41]Inadequacy of reasons does not necessarily amount to an appellable error. An appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice. An appellable error arising from inadequate reasons does not necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (for example, where only one conclusion is reasonably open on the available evidence) it may itself decide the matter.
- [42]While it is possible to state general principles about the adequacy of reasons, they must be applied to the facts of a particular case.
- [55]The Appellants contend that there was a failure to decide whether the requisition should have been issued and if so in what form. This was said to involve the exercise of the Tribunal’s discretion. That issue was not raised in the grounds of review, nor addressed in any submission which could have been considered and determined.
- [56]In my view, there was no failure to provide reasons not considering, or alternatively not making findings upon, issues which were not squarely raised in the review application, and the Tribunal was not obliged to conduct its own investigation into what other bases there might have been to decide whether to affirm or set aside the decision to issue the requisition notice.
- [57]To the extent that there was a failure on the part of the Tribunal to decide the question of what, if any, significance the failure to conduct an inspection of the site carried, in my view there is no miscarriage of justice in the failure to have done so. That is because self-evidently, there was nothing thrown up either by the evidence, or the arguments put forward on that issue which suggested that the failure to have conducted an inspection could have led to setting aside the requisition notice. The Tribunal quite properly could have concluded that that issue was not a material one in deciding whether there was a basis to set aside the requisition.
- [58]Whatever merit there might be said to be in relation to the issues identified in the submissions for the Appellant here which are said not to have been considered, or been the subject of the giving of reasons, in my view no submissions were made in relation to such issues such that a consideration of them was required. The circumstances were that those issues were not squarely raised in the grounds for review, or developed in the course of the evidence heard by the Tribunal nor the subject of any coherent submission which provided a foundation for them to be considered and/or for reasons to be provided which dealt with them.
- [59]It follows that in my view the appeal is to be dismissed.