Hall v Queensland Building and Construction Commission - [2023] QCAT 379

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

HALL V QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION [2023] QCAT 379

PARTIES:

ANDREW HALL

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR536-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 August 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

1. The application for miscellaneous matters filed on 26 September 2022 is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER OCCUPATIONS – building certifiers – where finding by the Queensland Building and Construction Commission of unsatisfactory conduct and professional misconduct by building certifier – where application to Tribunal for review – where application by applicant to change respondent to individual decision-maker – whether QBCC the proper respondent

Acts Interpretation Act 1954 (Qld), s 27A, Schedule 1
Building Act 1975 (Qld), s 204
Queensland Building and Construction Commission Act 1991 (Qld), s 6, s 20J, s 85A, s 86, s 85A, s 86B. s 86C,
s 115A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 21, s 40

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 15 August 2023 the Tribunal dismissed the application for miscellaneous matters filed by the applicant on 26 September 2022. On 25 August 2023, the applicant filed a request for reasons for that decision. The reasons are now provided.
On 15 September 2021, the applicant filed an application to review a decision that a building certifier had engaged in unsatisfactory conduct and professional misconduct as defined under the Building Act 1975 (Qld). In the relevant ‘Decision Notice’, the applicant in the present review application was noted as an ‘affected party’. In the application to the Tribunal for review, the respondent’s details were given as Mr Adrian Tan and the Business Name as Queensland Building and Construction Commission (‘the QBCC’). Mr Tan was the Acting Manager – Internal Review Unit of the QBCC and signed the Decision Notice.
The initial Tribunal directions of 20 October 2021 and all subsequent directions have listed the QBCC as the respondent. It is the position of the applicant that Mr Tan was the decision-maker and is the proper respondent in the Tribunal proceedings, not the QBCC.
In the application for miscellaneous matters filed on 26 September 2022, the applicant sought to have the record altered with Mr Tan, ‘the individual decision-maker’, shown as the respondent. The applicant also sought a number of consequential orders, which go to what is said to be the need for all Tribunal documents to be corrected and reissued, all material to be refiled in the name of the correct respondent, action to be taken where the material filed contains false or misleading details, and for the management and training of Tribunal members and staff. If the applicant’s submission that the QBCC is not the proper respondent is without merit, it is unnecessary to discuss those consequential matters.
In submissions in support of the application, the applicant refers to s 40 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), which is headed ‘Parties to review jurisdiction’ and provides (emphasis added):
(1) A person is a party to a proceeding in the tribunal’s review jurisdiction if the person is—
(a) the applicant; or
(b) the decision-maker for the reviewable decision the subject matter of the proceeding; or
(c) intervening in the proceeding under section 41; or
(d) joined as a party to the proceeding under section 42; or
(e) someone else an enabling Act states is a party to the proceeding.
(2) In a proceeding in the tribunal’s review jurisdiction, so far as is practicable, the official description of the decision-maker must be used as the party’s name instead of the decision-maker’s name.
Reference is also made to s 21(1) of the QCAT Act, which provides that the decision-maker for the reviewable decision must use his or her best endeavours to help the Tribunal so that it can make its decision on the review, and to QCAT Practice Direction 3 of 2013, which reflects s 21(1) of the QCAT Act.
However, the question is who is the ‘decision-maker for the reviewable decision’. Section 17 of the QCAT Act provides:
(1) The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
(2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity[1] that made or is taken to have made the decision is the decision-maker for the reviewable decision.
[1]Under Schedule 1 of the Acts Interpretation Act 1954 (Qld), the term ‘entity’ ‘includes a person and an unincorporated body’.
As to the ‘entity’ that made the decision in the present matter, s 204(1) of the Building Act provides (emphasis added):
After investigating a complaint or conducting an audit, QBCC must decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct.
Following the making of that decision, the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) provides for review, again by reference to the decision of the QBCC. Section 86 of the QBCC Act lists the reviewable decisions ‘of the commission’, including, at s 86(2), a decision under s 204 of the Building Act.
The Commission carries out its powers and functions through natural persons. By s 6 of the QBCC Act, the Commission consists of the Board, the Commissioner and the Service Trades Council. By s 20J(1)(f), the role of the Commissioner includes ‘taking disciplinary and other proceedings under this Act’, while by s 115A(1) of the QBCC Act the ‘board or commissioner may delegate their functions or powers under an Act to an appropriately qualified relevant officer of the commission’.
Section 27A of the Acts Interpretation Act 1954 (Qld) provides for the delegation of functions or powers. Where an Act authorises delegation of a function or power, section 27A provides, in part:
(3C) Laws apply to the delegate, and to other persons in relationship to the delegate, in the performance of the delegated function or in the exercise of a delegated power as if the delegate were the delegator.
(3D) Anything done by or in relation to the delegate in relation to the delegation is taken to have been done by or in relation to the delegator.
…
(7) A delegated function or power that is properly performed or exercised by the delegate is taken to have been performed or exercised by the delegator.
In any event,[2] the decision in the present matter was a decision made on internal review. In those circumstances the QBCC Act makes specific provision as to who is the decision-maker. Part 7, Division 3, Subdivision 1 of the QBCC Act provides for internal review. Section 86 lists the reviewable decisions, while s 86B sets out the requirements for making an internal review application. Section 86C(1) then provides:
If an internal review application is made under section 86B, the internal reviewer must, as soon as practicable but within the required period, make a new decision (the internal review decision) as if the reviewable decision the subject of the application had not been made.
[2]By s 4 of the Acts Interpretation Act, the application of that Act ‘may be displaced, wholly or partly, by a contrary intention appearing in any Act’.
As to who is the ‘internal reviewer’ for the purposes of s 86C(1) of the QBCC Act, s 85A provides:
internal reviewer, for an internal review application, means –
(a) if the application is for a decision of the commissioner under the Plumbing and Drainage Act 2018, section 51 – the Service Trades Council; or
(b) if the application is for a reviewable decision not mentioned in paragraph (a) – the commission.
By the terms of the QCAT Act, the Building Act, the QBCC Act and the Acts Interpretation Act the proper respondent is the QBCC.
Accordingly, the application for miscellaneous matters filed on 26 September 2022 is dismissed.