Queensland Building and Construction Commission v McMain
[2022] QCATA 111
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- Queensland Building and Construction Commission v McMain[2022] QCATA 111
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Queensland Building and Construction Commission v McMain[2022] QCATA 111
Queensland Building and Construction Commission v McMain[2022] QCATA 111
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland Building and Construction Commission v McMain [2022] QCATA 111 |
PARTIES: | queensland building and construction commission (applicant/appellant) V terrence ronald mcmain (respondent) |
APPLICATION NO/S: | APL301-21 |
ORIGINATING APPLICATION NO/S: | OCR104-21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 11 August 2022 |
HEARING DATE: | 18 July 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
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CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review by Tribunal of decision of Queensland Building and Construction Commission – standing to apply for review – whether complainant has standing to apply for review of decision not to find misconduct by building certifier Building Act 1975 (Qld) s 204 Queensland Building and Construction Commission Act 1991 (Qld) s 86D, s 87 Allan v Transurban City Link Ltd (2001) 208 CLR 167 Harding v QBSA [2007] QCCTB 1 Lock the Gate Alliance Ltd v The Minister for Natural Resources and Mines [2018] QSC 21 Re McHattan and Collector of Customs (1977) 18 ALR 154 Murphy v Legal Services Commission [2013] QSC 70 Purcell v Venardos [1996] 1 Qd R 310 Quigley v QBSA [2009] QCCTB 26 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | M Black instructed by the appellant |
Respondent: | D Fahl instructed by the respondent |
REASONS FOR DECISION
- [1]This is an application for leave to appeal from the decision of the Tribunal on 28 September 2021, that the applicant (the respondent before me) had standing to apply to the Tribunal to review the decision of the appellant, on an internal review, that a building certifier had not engaged in unsatisfactory conduct or professional misconduct.[1] The appellant required an extension of time within which to apply for leave, but that has already been granted.
- [2]The appellant requires leave to appeal because the decision of the Tribunal was not the final decision in the proceeding.[2] The issue raised by the proposed appeal is the true construction of the provision of the Queensland Building and Construction Commission Act 1991 (Qld) (“the QBCC Act”) s 87 governing the jurisdiction of the Tribunal to hear and decide the review sought by the respondent of the decision of the appellant, in particular whether the respondent was a “person affected” by the decision on the internal review. The question is one on which there have been a number of decisions of the Tribunal already, which have not all reached the same conclusion, and the appellant seeks to have the issue settled. For that reason, and because the question concerns the jurisdiction of the Tribunal, it has general importance and it is appropriate to grant leave to appeal.
- [3]At one stage during the hearing of the appeal it seemed that the question of the true construction of “person affected” by the decision was academic, as the respondent appeared to satisfy any test of being a “person affected” by the decision.[3] The appellant sought however to draw a distinction between the question of whether the respondent was “affected” by the decision and whether the respondent would be “affected” by the outcome sought by the respondent from the review, and in any case said that the Tribunal had made no finding that the respondent was a “person affected” by the decision other than on the basis that the decision was to reject a complaint he had made to the appellant in its function as a regulator. The Tribunal held that that was sufficient, and the issue on the appeal was whether that was correct. I accept that in the circumstances the issue is not academic.
Background
- [4]The respondent lives next door to a parcel of land on which has been constructed a building, the certification of which under the Building Act 1975 (Qld) (“the Act”) was handled by a building certifier. The respondent complained to the appellant about the conduct of the certifier, who he alleged had allowed the builder to construct the building in a way which was inconsistent with the conditions of approval from the local authority. As a result the appellant investigated the certifier to see if there had been any misconduct,[4] and concluded that there had not. The respondent sought internal review of this decision by the appellant, but the internal reviewer came to the same conclusion. That is the decision the respondent seeks to challenge in the Tribunal.
Legislation
- [5]The Act provides for the registration and regulation of building certifiers. They are required to act in the public interest,[5] a matter of some significance since their work is ordinarily concerned with determining whether those seeking certification from them are doing the right thing. Their decisions do not generally involve disputes between parties. The appellant is responsible for regulating them, including by carrying out audits and by investigating written complaints: the Act s 133. Anyone may make a complaint to the appellant about a building certifier: the Act s 190(1). If the complaint is not resolved by mediation (the Act s 192) the appellant must investigate the complaint, unless it decides that it is frivolous or vexatious, or lacking substance: the Act s 190(4).
- [6]If the appellant decides that the certifier has engaged in unsatisfactory conduct, the appellant may act in any of the ways identified in s 204. This provides for a range of sanctions, and includes requiring the certifier to undertake enforcement action in respect of something certified: s 204(4)(f). In this way it is potentially possible for a person who is unhappy about the effect on the person of something the certifier has certified to obtain some relief from that effect. There are a range of other sanctions open; as well, the appellant may, subject to a condition, take no further action on the complaint: the Act s 204(4)(g).
- [7]By the Act s 204(2), the appellant must give the building certifier and the complainant (if any) an information notice about the decision taken. What is meant by an “information notice” is explained by the definition in the Dictionary in Schedule 2 of the Act, which, after dealing with situations where there is a right to appeal under the Planning Act 2016 (Qld), continues that if the decision is under a number of sections of the Act, including s 204, a notice stating the decision, the reasons for it, and that “the person to whom the notice is given” may, within a specified time, apply for internal review under the QBCC Act part 7 division 3, or apply to the Tribunal for external review of the decision under the QBCC Act part 7 division 3, and how to apply for review.
- [8]The QBCC Act s 3 provides that its objects are to ensure the maintenance of proper standards in the industry, and to achieve a reasonable balance between the interests of building contractors and consumers. Division 3 of Part 7 provides for reviews of decisions of the appellant, by either internal review under subdivision 1, or by external review by the Tribunal under subdivision 2. Reviewable decisions are identified in s 86, and include decisions under the Act s 204: the QBCC Act s 86(2)(a). The QBCC Act s 86A(1) provides that “A person who is given or is entitled to be given notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed.” This corresponds to the requirement in s 204(2) of the Act, to give a notice. The section goes on to provide that if there has been, or is, an external review, or one is applied for, there can be no internal review.
- [9]The internal review is to “make a new decision as if the reviewable decision … had not been made”: the QBCC Act s 86C(1). The QBCC Act s 86D provides:
- (1)As soon as practicable after an internal review decision is made, or is taken to have been made, under section 86C, the internal reviewer must give the applicant and any other person affected by the decision written notice (the review notice) of the decision.
- (2)The review notice must state—
- (a)the decision; and
- (b)the reasons for the decision; and
- (c)that the person may, if dissatisfied with the internal review decision, within 28 days after the person is given the notice apply to the tribunal for external review of the decision under subdivision 2; and
- (d)how to apply for review of the decision.
- [10]This wording matches the relevant part of the definition of “information notice in the Act Schedule 2. The QBCC Act s 86E makes it clear that, if there has been an internal review under subdivision 1, the reviewable decision is the decision on the internal review. The QBCC Act then provides in s 87: “A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the Tribunal for a review of that decision.”
- [11]This provision dates from 2003,[6] but when the QBCC Act was originally passed[7] s 99 provided “A person affected by a decision of the Authority that is subject to review may apply for a review of the decision.” This occurred in a context where the reviewable decisions were identified in s 98, by a list of decisions, followed by: “(f) another decision of the Authority that adversely affects any person.” So the provision is of long standing. The appellant in submissions focused on the distinction between the availability of internal review by reference to “a person given or entitled to be given notice of a reviewable decision” and the availability of external review only to “a person affected by a reviewable decision”.
Decision of the Tribunal
- [12]The Tribunal at first instance decided that a complainant was a “person affected” for the purposes of s 87 of the QBCC Act, or that s 86D, by requiring a notice to be given to a complainant of the outcome of an internal review, which said that there was a right to external review, gave a right to an external review to a complainant under s 86D(2)(c) of the QBCC Act. Earlier decisions of the Tribunal were referred to, but it was noted that they had not had regard to s 86D.
Argument for the appellant
- [13]The appellant did not submit that a person who had made a complaint to the appellant which had resulted in the decision under s 204 of the Act was never a “person affected” by a decision to reject the complaint, but that a complainant had to show more than the fact of having been the complainant, and had to show that there was some effect of the decision on him or her before there was a right of review to the Tribunal. The appellant referred to the history of the legislation, and that the requirement in s 87 was of long standing, whereas the provisions for internal review had been inserted by amendment in 2014. Reference was made to extraneous material showing that the purpose of introducing the mechanism for internal review was to reduce the number of applications for review being made to the Tribunal.[8]
- [14]The appellant referred to general principles of statutory construction, and the approach taken in other decisions of the Tribunal to the contrary. The appellant challenged the reasoning of the Tribunal in attributing such significance to s 86D, and particularly to the word “other” in s 86D(1), to the extent that the requirement that an applicant under s 87 be a “person affected” was disregarded. Section 86D did not in terms say that a complainant was just because of that a person affected by a decision. The requirement in s 87 must have been intended to have been more limited that just “any person” who could make a complaint under the Act s 190. If a person was in no way affected by the works that had been certified by the certifier, that person could not have been affected by a decision that such certification was not misconduct under the Act. Accordingly the complainant had to show the existence of some effect on him or her to qualify for a right to review by the Tribunal.
- [15]The QBCC Act s 86D falls within subdivision 1, concerning internal review, and hence cannot be said to deal with who has standing for external review. The legislature has adopted different tests for standing for internal and external review, and effect must be given to them both. If all persons who receive notice of the internal review decision under s 86D can apply for external review, the limiting words in s 87 have no work to do. There is no reason why a person who is no more than a busybody should be able to take the matter to an external review, particularly when the reduction in the number of external reviews was an object of the introduction of the internal review mechanism.
- [16]The appellant argued that strictly speaking the QBCC Act s 86D(2)(c) did not say that the person had a right to apply to the Tribunal, but only that a person may apply to the Tribunal under subdivision 2. Such wording would pick up the limitation in s 87, that the right to external review was confined to a person affected. It followed that s 87D could not give a wider right of review than did subdivision 2, in effect a right to review if the person seeking review qualified under s 87. The appellant also argued that the Tribunal failed to engage with s 87, but this submission was dependent on grounds one or two succeeding. In such circumstances, it was necessary to identify what was required by s 87 to be a person affected by the decision, and whether the respondent was such a person.
History of the legislation
- [17]Both parties made reference to the history of the legislation. The provisions for internal review were introduced into the QBCC Act by amendment in 2014,[9] in essentially their current form. Prior to then, the Act provided in s 190 that any person who believed that a building certifier had engaged in unsatisfactory conduct or professional misconduct could complain to the appellant about the certifier, provided the complaint was in writing, properly particularised and verified by statutory declaration. Subject to mediation, the appellant after investigating the complaint could made a decision on it, and was required to give the certifier and the complainant (if any) an information notice about the decision: the Act s 204(2).[10]
- [18]If the decision was that the certifier had engaged in unsatisfactory conduct, the Act s 204 then provided for the appellant to decide what followed, by way of sanction: s 204(4). The Act s 205 then provided that, if the building certifier or the complainant was dissatisfied with the appellant’s decision under s 204(1) or s 204(4), “the building certifier or complainant may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.” It is clear that at that time a complainant had a right to apply for a review just by being the complainant. This occurred without reference to the QBCC Act, and the jurisdiction of the Tribunal to review was conferred by the Act. No question arose of a person having to be “affected” to apply for a review by the Tribunal.
- [19]It was in the 2014 amendments that the provisions for review by the Tribunal of various decisions of the appellant under the Act, including decisions under s 204, were inserted into the QBCC Act. That meant that they came to be exposed to the “person affected” test in s 87 for a right to review by the Tribunal. The Act no longer provided separately for review by the Tribunal of decisions under s 204, and the QBCC Act was amended to provide a list of sections of the Act, including s 204, decisions under which were reviewable decisions under s 86(2). In all of these cases, the decision was one in which an “information notice” as defined in the Schedule to the Act was to be given. By that definition that notice was to state that the person receiving it may apply for an internal review or may apply for review by the Tribunal. The list of sections to which the definition applies matches the list in the QBCC Act s 86(2)(a).
Consideration
- [20]The general principles of statutory interpretation are well established. It is appropriate to interpret provisions in a statute so that they give effect to the purpose of the legislation, to interpret provisions in the context of the statute as a whole, and to give some operative effect to a provision rather than no effect. One guide to construction is that generally when the legislature uses different words it intends a different meaning. That last is central to the appellant’s argument, and there is some force in it, but its significance is diminished because the difference in wording arose by amendment, rather than in the one statute.
- [21]The term “person affected” has been used before, in other statutes, as a test for whether someone can do something. It has no settled legal meaning, and the cases indicate that its meaning in a particular statute must be determined by the context of that statute, in the light of its subject, scope and purpose, rather than by reference to decisions on other statutes: Allan v Transurban City Link Ltd (2001) 208 CLR 167 at [16]. In that case, the Court concluded that the appellant did not have standing on the basis of a careful analysis of the wording and operation of the particular statute. At [16] the majority quoted part of a statement of Brennan J as President of the AAT[11] that: “Across the pool of sundry interests, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affectation of interests by a decision should be regarded as too remote … .”
- [22]In that same decision, Brennan J noted that “the word ‘affected’ described a zone of connection. But it did not do so in terms of scientific precision.” It necessarily follows that the use of the term in the QBCC Act s 87 is ambiguous. The majority in Allen also regarded it as worthy of note that the statute under consideration provided for the giving of written notice to someone: [33].
- [23]Kirby J, who dissented in Allen (supra), said at [58] that the term “person affected” is wider than the term “persons whose interests are affected”, the term used in the Administrative Appeals Tribunal Act 1975 (Cth) s 27(1). I would respectfully agree, although the question of what qualifies as an “interest” can also give rise to ambiguity. In the Judicial Review Act (1991) (Qld) s 7 the expression used is “a person whose interests are adversely affected by the decision.”[12] There was a thorough and helpful discussion of authorities relevant to the interpretation of that term in Lock the Gate Alliance Ltd v The Minister for Natural Resources and Mines [2018] QSC 21 by Bowskill J (as her Honour then was). Her Honour cited High Court authority that the term was of very wide import [23].[13] What was required was an effect on the interests of the person beyond the effect on the public at large: [22]. I consider however that that test is more restrictive than that in issue here.
- [24]I have not been referred to any decision of the Court of Appeal or of the Appeal Tribunal as to the interpretation of “person affected” in the QBCC Act s 87. I know of none. There are some decisions of single members of the Commercial and Consumer Tribunal about the requirement in s 87 for a person to be affected. At least one decisions was made without hearing full submissions on the point.[14]
- [25]In Harding v QBSA [2007] QCCTB 1 the issue was whether the former owner of a house on which a builder had done work was a person affected by a decision not to issue a Direction to Rectify to the builder. The applicant based his interest on an intention to sue the builder for breach of contract, resulting in a lower selling price, and was concerned that the decision of the authority would harm his prospects in such action, but the tribunal considered that the decision of the Authority was of no relevance to such an action, and as a result he was not a person affected by the decision. There was some consideration of authority by the tribunal, which concluded that the term should be given a wide meaning where the party can show that some interest may be affected, either directly or indirectly, as a result of the decision, provided that the interest is not too remote; [13].
- [26]In Sierlis v QBSA [2008] QCCTB 158 it was held that a former owner who wanted to claim on the statutory insurance policy was a person affected by the decision of the respondent. In Quigley v QBSA [2009] QCCTB 26 it was held that such a former owner had a right to apply to the tribunal as a “person affected” specifically on the basis that the applicant had applied to the Authority and the Authority had denied the decision sought: [9].[15] It was also said that the term should be given a wide meaning: [8]. This was the last tribunal decision before the 2014 amendments were enacted, and this approach may have been of some guidance to the drafter.
- [27]I should mention one other decision that the appellant very fairly drew to my attention. In Murphy v Legal Services Commission [2013] QSC 70 an issue arose as to whether the applicant had standing under the Judicial Review Act 1991 (Qld) to challenge a decision of the Commission to take no further action on his complaint about the conduct of other legal practitioners. Daubney J referred to authority that the test in that Act was relatively generous, and held that the applicant had standing as he had an interest, as the person against whom the conduct complained about had been directed, in seeing such persons punished, and potentially allowing a claim for compensation by him: [65]. Reference was made by his Honour to Purcell v Venardos [1996] 1 Qd R 310 where it was held that a complainant had standing to challenge the decision of a magistrate not to commit for trial, on the basis that a victim of crime had an interest in the conviction and punishment of the offender, which also qualified the victim to receive statutory compensation.
- [28]These decisions may be seen as supporting the proposition that a disappointed complainant is affected by a decision to reject the complaint because such a person has an interest in seeing the offender punished, although in neither of those cases was the complainant unconnected with the conduct complained of. Neither provides direct support for that proposition in a context where any member of the public can make the complaint. They do support a generous approach to the issue of standing.
- [29]It does not appear that the 2014 amendments were enacted against a background of any established interpretation of the term “person affected” in the context of the QBCC Act. At that time the meaning was not settled, and was potentially very wide. In those circumstances, I consider that it is important to consider the context provided by the QBCC Act as a whole, the provisions relevant to building certifiers in the Act, the 2014 amendments as a whole and the history of the legislation.
- [30]To start with the history, prior to the 2014 amendments there is no doubt that a complainant in the position of the respondent had a right to apply to the Tribunal to review a decision of the appellant rejecting the complaint under the Act s 205. The Explanatory Note for the 2014 amendment Bill indicated a desire to reduce the number of applications for review to the Tribunal, but by creating a system of internal review. There is nothing to suggest that the intention was to restrict the right of disappointed complainants to apply for a review, and the provision for an information notice which told such a complainant that there was a right of review, inserted by the Amending Act into the definition of “information notice,” was inconsistent with that intention. The wording of that amendment assumed that everyone who received such a notice had a right to internal review or a right to external review by the Tribunal.
- [31]The other significant factor is that the 2014 amendments inserted a provision in the QBCC Act requiring a person to be given notice of the outcome of an internal review, and to be advised of the existence of a right of review by the Tribunal: s 86D. That provision did not exclude complainants who remained unsuccessful, and so is consistent with a legislative intention that such persons should still be able to apply for review to the Tribunal. Section 86D(1) assumes that the applicant for internal review (whether or not the complainant) will have a right to apply for external review, and the wording of s 86D(2) assumes that everyone given notice of the decision on the internal review has a right to apply for external review. It does not confine the obligation to advise of a right to external review to some recipients.
- [32]There are two possible explanations for such an approach. The first is that the legislature made a drafting error, and did not realise that the effect of the 2014 amendments was to impose a restriction on the right to apply to the Tribunal, by requiring the unsuccessful complainant to show that he or she was “affected” in some way by the decision. The other is that the legislature assumed that a person who had made a complaint which had been rejected (whether or not there had been an internal review) was to be regarded as a “person affected” by the decision. Sometimes courts are forced to conclude that there has been a drafting error in a statute, but in principle the approach that the legislature intended all of the provisions to work together is to be preferred.
- [33]Interpreting “person affected” as including an unsuccessful complainant in relation to a decision under s 204 enables the 2014 amendments, and the provisions of the Act and of the QBCC Act as amended by them, to operate harmoniously together. It enables both the notice provisions to be meaningful in all cases. It does no violence to the language of s 87, as the term “person affected” is potentially quite wide anyway, and confining the right to apply to the Tribunal to the person who made the complaint does mean that not everyone can bring an application for review. Even if anyone could have made a complaint, the fact that the particular complainant went to the trouble of doing so means that that person is affected in a way that the rest of the community is not.
- [34]I appreciate that the QBCC Act s 87 does not apply only to applications to review decisions under the Act s 204. But the appellant had not identified any other situation where a person who had sought some relief from the appellant and been unsuccessful should not be able to obtain a review by the Tribunal of a reviewable decision within the QBCC Act s 86, or where such an outcome would be inconsistent with the purpose of the legislation, or the context of the relevant provisions. I note that in s 86(1)(e) and (f) particular decisions are expressly made reviewable whichever way they went, whereas in s 86(1)(j) and (r) it is only a decision one way which is reviewable. Section 86(2) makes reviewable decisions under certain listed provisions, on the face of it whichever way they went.
- [35]Such an approach is consistent with the fact that the Act allows anyone to complain about a building certifier, and that a building certifier is expected to act in the public interest. The public interest is best served if anyone can enforce such an obligation, and can utilise all available mechanisms to do so. It would be unsatisfactory if the certifier could apply for a review of a decision upholding a complaint, but the complainant did not have a similar right if the complaint were rejected. This approach is also consistent with the object of the QBCC Act, of maintaining proper standards in the construction industry.
- [36]The decisions of the Tribunal to the contrary, that an unsuccessful complainant is not a “person affected” for the purposes of s 87, seem to me to have been decided without a proper consideration of how the provisions of the QBCC Act, and the relevant provisions of the Act, work as a whole. I should add that I do not consider that s 86D provides a right to apply to the Tribunal independently of s 87; rather the terms of s 86D show that the right to apply under s 87 extends to complainants whose complaints have been rejected by the appellant. Such a person is within the meaning of “person affected” in s 87.
- [37]It follows that I agree with the decision of the Tribunal under appeal. The respondent has a right to apply for the Tribunal to review the appellant’s decision, because he was the complainant, and the applicant for the internal review. The appeal is dismissed. If either party seeks an order for costs, the party is to serve submissions in writing on the other party and send them by email to the associate to the Deputy President within fourteen days. If such submissions are received, the other party may serve a response including any submissions on the first party and send them by email to the associate within fourteen days thereafter. Any submissions in reply are to be served and emailed to the associate within seen days of the submissions in response. The Appeal Tribunal will decide any costs on the papers after all submissions have been received.
Footnotes
[1]I shall refer to the Commission as the appellant and to Mr McMain as the respondent.
[2]Queensland Civil and Administrative Tribunal Act (Qld) 2009 (“the QCAT Act”) s 142(3)(a)(ii).
[3]Applying the Falkland Principle: “If it is not necessary to decide something, it is necessary not to decide it.”
[4]This covers unsatisfactory conduct, to be dealt with by the appellant under the Act s 204, or professional misconduct, which is to be the subject to proceedings in the Tribunal at the instance of the appellant.
[5]The Act s 127 (if not a private certifier), s 136 (if a private certifier).
[6]Between 2000 and 2003 decision of the Authority were reviewable by the Queensland Building Tribunal, and standing was regulated by the Queensland Building Tribunal Act 2000 (Qld) s 105, in similar terms to s 99.
[7]As the Queensland Building Services Authority Act 1991 (Qld). The title was changed by the Queensland Building Services Authority Amendment Act 2013 (Qld) which also replaced the Authority with the Commission, ie, the appellant.
[8]Explanatory Notes for the Bill for the 2014 Amending Act, saying that it reflected the government’s Ten Point Action Plan issued in response in 2012 to an enquiry into the operation of the appellant, one of which was to establish an internal review unit for that purpose. On p 3 it said the Act was amended “to enable a dissatisfied person to apply for internal review of QBCC decisions that have the potential to go to the … Tribunal.”
[9]By the Professional Engineers and Other Legislation Amendment Act 2014 (Qld) Chapter 3 Part 1.
[10]By a definition is Schedule 2 of the Act, this meant then a notice complying with the QCAT Act s 157(2) for the decision. The QCAT Act provides that such a notice is to be given in a case where there is such a right of review.
[11]Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157.
[12]I expect there is no practical difference. It is difficult to see why a person whose interests were affected favourably would want the decision reviewed.
[13]See also McCracken v Phoenix Constructions (Qld) Pty Ltd [2012] QCA 129 at [34], where Fraser JA, with whom the other members of the Court agreed, said that authority supports a broad construction of such expressions.
[14]Domingo v QBSA [2003] QCCTB 8.
[15]I interpret this as meaning that the decision affected the applicant because it denied the relief sought.