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- Unreported Judgment
Marigliano v Queensland Building and Construction Commission QCATA 75
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Marigliano v Queensland Building and Construction Commission  QCATA 075
Joseph David Marigliano
Queensland building and construction commission
ORIGINATING APPLICATION NO/S:
30 May 2022
On the Papers
Senior Member Howard
APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL – APPEAL OF AN INTERLOCUTORY DECISION – GENERAL PRINCIPLES – where the Tribunal directed the applicant to file submissions in reply concerning whether a person was an affected party – where the directions were appealed – whether leave to appeal should be granted
Queensland Building and Construction Commission Act 1991 (Qld) s 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9, s 17, s 28, s 62, s 142
Pickering v McArthur  QCA 294
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
- Mr Marigliano purchased a property with a swimming pool. A Pool Safety Certificate had been issued by a pool safety inspector prior to settlement. Mr Marigliano lodged a complaint with the Queensland Building and Construction Commission (‘QBCC’) about alleged deficiencies with the pool safety barrier.
- The pool barrier was found to be non-compliant. Among other things, QBCC pursued disciplinary action against the pool safety inspector. Mr Marigliano filed an application to review a decision of the QBCC relating to these events.
- On 25 May 2021, the Tribunal directed that Mr Marigliano file submissions in relation to whether he is a person affected by the reviewable decision within meaning of s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) Act (‘QBCC Act’), an application for extension of time for filing the application for review, and submissions in support of the application for extension of time. QBCC was directed to file submissions in response, and a directions hearing was listed after the time had expired for those steps to be taken by the parties.
- A directions hearing then proceeded on 24 August 2021. The Tribunal made the following further directions:
- IJoseph Davis Marigliano must file two (2) copies in the Tribunal and give the Queensland Building and Construction Commission one (1) copy of any further submissions in relation to whether he is a person affected by a reviewable decision of the commission under s 87 of the Queensland Building and Construction Commission Act 1991 (Qld), by: 4:00pm on 21 September 2021.
- IIThe issue of whether Joseph David Marigliano’s is a person affected by a reviewable decision of the commission will be determined by a Member of the Tribunal on the papers, by written submissions filed and without an oral hearing, on a date not before 22 September 2021.
- The Tribunal did not provide, and nor did Mr Marigliano request, reasons for its decision made on 24 August 2021. The Tribunal had not (and has not yet) made a decision about whether Mr Marigliano is an affected person for the purposes of s 87 of the QBCC Act, when, on 15 September 2021, Mr Marigliano filed an application for leave to appeal or appeal the Tribunal’s decisions dated 25 May 2021 and dated 24 August 2021.
The decision sought to be appealed by Mr Marigliano
- At a directions hearing in the appeal proceeding, Mr Marigliano subsequently clarified that he sought to appeal only the Tribunal’s decision dated 24 August 2021. I made directions for the filing of the transcript of the directions hearing on 24 August 2021 and submissions by both parties in respect of the application for leave to appeal and appeal. Mr Marigliano did not file a copy of the transcript, but a copy is available to me. He provided various emails which I understand to be his submission in support of his application for leave to appeal or appeal. The QBCC has filed submissions.
- Mr Marigliano’s proposed grounds of appeal as stated in his application for leave to appeal or appeal appear to be primarily that he is being ‘forced’ to explain ‘over and over’ that he is an affected party ‘when it is blatantly obvious & self-evident that’ he is an affected party. That said, he also states that the QBCC ‘made a fake Decision based on a fake investigation’ and related matters. To the extent the latter allegations are raised, I observe that whereas Mr Marigliano may intend to make those allegations in the review proceeding, if he is entitled to proceed with it, they are not relevant to the appeal proceeding and so they are not further considered here.
- For the reasons that follow, leave to appeal should be refused.
Should leave to appeal the decision dated 24 August 2021 be granted to Mr Marigliano?
- The decision sought to be appealed is not the Tribunal’s final decision in a proceeding. Accordingly, leave to appeal must be obtained if the appeal is to proceed. Leave to appeal will usually be granted only where there is an arguable case of error by the tribunal in making the decision sought to be appealed and an appeal is necessary to correct a substantial injustice.
- The decision made on 24 August 2021 sets out procedural directions made by the Tribunal. The tribunal may give a direction at any time in a proceeding for the speedy and fair conduct of the proceeding. Further, the tribunal must act fairly and according to the substantial merits in all proceedings.  The tribunal must observe the rules of natural justice in all proceedings. Just what steps are required to observe natural justice in a proceeding will vary according to the circumstances.  One of the more certain rules of natural justice is the hearing rule. The hearing rule requires in essence that a party must have an opportunity to make their case, as well as, know the case against them and have the opportunity to respond to it.
- The Tribunal’s jurisdiction to decide matters is not at large. It may hear and decide only those matters the Parliament has given it jurisdiction to decide as provided for in the QCAT Act or an enabling Act. In respect of the decision of the QBCC that Mr Marigliano seeks to review in the tribunal’s review jurisdiction, the QBCC Act is the relevant enabling Act. It provides for the persons who may apply to QCAT for review of a reviewable decision.
- At the heart of Mr Marigliano’s appeal proceeding is his belief expressed in his grounds of appeal that by the Tribunal’s directions of 24 August 2021, he was being required on multiple occasions to make the same submissions over and over. On a proper analysis that argument is without merit.
- The Tribunal here made directions on 25 May 2021 for the parties to file submissions about whether Mr Marigliano was a person entitled to apply for review of the decision the subject of his application for review. The parties were entitled to natural justice, and in particular, to make their respective arguments about this issue so the Tribunal could consider them in making its decision whether Mr Marigliano has standing for the review proceeding. Mr Marigliano filed his submissions to the effect that he was a person affected and able to apply for the review. The QBCC then filed submissions to the effect that Mr Marigliano is not a person entitled to bring the review.
- Although he had filed submissions, Mr Marigliano was entitled as a matter of natural justice to reply to the QBCC’s arguments to the effect that he was not a person entitled to bring the review proceeding. Those submissions addressed issues that Mr Marigliano had not considered in his earlier submissions to the Tribunal. In my view, it was the proper course for the Tribunal in fulfilling its obligation to observe natural justice, to afford him an opportunity to reply to QBCC’s submissions.
- This is not to say that Mr Marigliano had to add to his submissions already made. He could have simply filed submissions to the effect that he had nothing further to add. Mr Marigliano must of course act in his own interests in the proceeding as he sees fit. However, the potential consequences of the determination about whether he is an affected person are serious for Mr Marigliano – if the QBCC’s submission is ultimately accepted by the Tribunal, then the review proceeding will be at an end. Given the serious ramifications for his application for review if the issue is decided against him, it might be expected that a person acting in their own interests would avail themself of the opportunity to provide further submissions responding to issues raised in the QBCC submissions that they had not already addressed.
- I reiterate that the Tribunal has not at this stage decided the issue of Mr Marigliano’s standing to bring the review. It appears it has delayed doing so in light of this appeal proceeding. To the extent that it may be that Mr Marigliano may mistakenly believe that the Appeal Tribunal would or could make the decision about his standing for the review application, this misunderstands the appeal process. A decision has not been made by the Tribunal about that issue which is or can yet be the subject of appeal. The decision he has sought leave to appeal is the Tribunal’s decision which provides for directions in the terms discussed above.
- No error of the Tribunal has been identified in the making of those directions. I observe that indeed, in making them, the Tribunal appears to have acted to afford natural justice to Mr Marigliano in the circumstances.
- Conclusions and orders
- For the reasons explained, the application for leave to appeal must fail. There is no arguable case of error by the Tribunal in making the directions it did on 24 August 2021
- Accordingly, orders are made dismissing the application for leave to appeal.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3) (‘QCAT Act’)
 Pickering v McArthur  QCA 294.
 QCAT Act s 62(1). See, for example, discussion in Frost v State of Queensland  QCATA 144.
 QCAT Act s 28(2).
 QCAT Act s 28(3)(a).
 Kioa v West  159 CLR 550; Shi v Migration Agents Registration Authority (2008) 235 CLR 286; McClintock v Queensland Building Services Authority  QCATA 310.
 QCAT Act s 9.
 QCAT Act s 17.
- Published Case Name:
Marigliano v Queensland Building and Construction Commission
- Shortened Case Name:
Marigliano v Queensland Building and Construction Commission
 QCATA 75
30 May 2022