Hall v Queensland Building and Construction Commission & Anor - [2023] QCATA 74

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hall v Queensland Building and Construction Commission & Anor [2023] QCAT 74

PARTIES:

Andrew hall
(applicant/appellant)
v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondents)

MC ASPECS PTY LTD

(second respondents)

APPLICATION NO: APL134-22

ORIGINATING APPLICATION NO:

GAR202-21

MATTER TYPE:

Appeals

DELIVERED ON:

20 June 2023

HEARING DATE:

On The Papers

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Fitzpatrick

ORDERS:

The application for miscellaneous matters filed by Andrew Hall on 26 September 2022 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant filed an application seeking the individual decision maker of the QBCC decision be named as the respondent – where the decision the subject of the review proceeding is a decision of the QBCC under legislation – where employees acting in the course of their duties may make decisions and in that sense they are decision makers – where those persons are not acting in a personal capacity they are acting as employees of the QBCC – where the QBCC must bear responsibility for the decision made by its employees or officers.

ADMINISTRATIVE LAW – ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant was seeking orders outside the jurisdiction of the Tribunal

Queensland Civil and Administrative Tribunal Act (Qld), s 17, s 41(b), s 42, s 42(2), s 62, s 64(4), s 85A
Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 87

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 4 April 2023 the Appeal Tribunal made an interlocutory decision in relation to an application for miscellaneous matters filed by the applicant Andrew Hall on 26 September 2022.
Short reasons for the decision were given as part of the decision. However, Mr Hall has formally requested reasons. I am prepared to elaborate on my reasons for the decision to assist Mr Hall, so that he may focus on the substantive issues in the matter.

Background

Mr Hall seeks leave to appeal and, if leave is granted, appeal an interlocutory decision of the Tribunal in matter GAR202-21.
Matter GAR202-21 is an application to review a decision of the Queensland Building and Construction Commission (QBCC) dated 18 February 2021 not to give a direction to rectify 564 complaint items arising out of building work performed for Mr Hall. The QBCC also decided to disallow a claim under the Queensland Home Warranty statutory insurance scheme for defective work in relation to those complaints.
The decision the subject of this appeal was made on 26 April 2022 that the parties have leave to be legally represented in the proceeding.
Mr Hall named Nancy Alexander as respondent in the GAR202-21 application to review a decision and in this later application for leave to appeal or appeal filed in the Tribunal. Ms Alexander is the Manager Internal Review – Internal Review Unit of the QBCC. Ms Alexander issued the internal review decision dated 18 February 2021. In both proceedings the record has been corrected to name the QBCC as respondent.
Mr Hall by his application for miscellaneous matters filed 26 September 2022 named as the respondent Mr Jonathon Pacey, QBCC Resolution Services Manager. Mr Pacey made the original QBCC decision dated 24 December 2020 which was then the subject of an internal review by Ms Alexander.
It appears that Mr Hall wants Mr Pacey rather than Ms Alexander to be named as respondent in the appeal proceeding rather than the QBCC.

Orders sought by Mr Hall

In summary, Mr Hall seeks the following orders:
(a)That all Tribunal documents be corrected and re-issued with the individual decision-maker listed as the first respondent party and the QBCC notified that it is no longer a party to the matter.
(b)All documents previously filed in the Tribunal that have not been personally produced or authorised by the individual decision maker be rejected.
(c)The author of any documents found to contain false or misleading details be referred for prosecution.
(d)Immediate standing down of two Members of the Tribunal who were allegedly aware of “systemic corrupt & criminal conduct by QCAT” related to “unlawful altering of the respondent party …”
(e)Mandatory training for all QCAT staff and Tribunal Members.

Decision made 4 April 2023

Mr Hall’s application is dismissed.

Appropriate respondent

As to who should be named as the respondent, the Appeal Tribunal’s record of parties correctly sets out the parties described in GAR202-21. The power to name relevant parties to a proceeding and if necessary to ensure the proceeding advances with the correct parties is given under s64(4) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and s42 of the QCAT Act, noting that the Tribunal (which encompasses the Appeal Tribunal) may act on its own initiative. Further the Tribunal may under s62 of the QCAT Act do whatever is necessary for the speedy and fair conduct of the proceeding.
It is important that the parties to an appeal be the same parties as those in the Tribunal below so that any order made by the Appeal Tribunal is meaningful. The decision the subject of this appeal gave the QBCC a right to legal representation in the proceeding. An appeal which proceeds with a different respondent (even if that were possible) cannot sensibly address the decision the subject of the appeal which relates to the QBCC.
I understand that Mr Hall wishes to bring all his matters into congruence by having the tribunal record in all proceedings reflect the name of an individual who in the course of his or her duties made the decision the subject of the review.
Mr Hall has raised this issue in other proceedings. The Appeal Tribunal has previously expressed the view and I now again express the view, that:
(a)The decision the subject of the review proceeding was a decision of the QBCC. S87 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) provides that:
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 the decision.
(b)S86 (1)(e) and (h) of the QBCC Act provides that decisions of the commission to give a direction or not and to disallow a claim under the statutory insurance scheme are reviewable decisions.
(c)By s17 of the QCAT Act the Tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by the QBCC Act. Section 17 provides that the entity that made the decision is the decision-maker for the reviewable decision.
The QBCC Act provides for an internal review function. Importantly s85A provides that an internal reviewer for an internal review application means the commission.[1]
[1]Queensland Building and Construction Commission Act 1991 (Qld), s85A
Plainly, because the QBCC Act has expressly provided for it, the decision the subject of the review proceeding is a decision of the QBCC. The QBCC must therefore be the decision-maker.
It is true that the QBCC must act through human beings to fulfill its functions. Employees acting in the course of their duties may make decisions and in that sense they are decision makers. However, those persons are not acting in a personal capacity. They are acting as employees of the QBCC and their decision binds the QBCC. It is the QBCC which must bear responsibility for the decision made by its employees or officers.
It is the QBCC which may, as a result of the review proceedings, have its decision confirmed or amended, set aside and another decision substituted or set aside and returned for reconsideration. Only the QBCC can action the ultimate decision of the Tribunal on review. An individual employee does not have the power to do so, and any review proceeding which involved only the employee of the QBCC as a respondent would be a wasted exercise. It is hard to see what advantage Mr Hall thinks he might achieve by insisting that an employee of the QBCC should be the sole respondent to review proceedings. There is no advantage to Mr Hall.
I can see how Mr Hall has misdirected himself. Mr Hall has isolated s21 and s40 of the QCAT Act and QCAT Practice Direction 3 of 2013 to form his view that it is the individual employee who made the decision who must be a party to the review proceeding. In particular s21(1) and the Practice Direction refer to a decision-maker using “his or her” best endeavours to help the Tribunal and thereafter s40 provides that the decision-maker must be a party to the proceeding.
In understanding the requirements of the QCAT Act it is important to consider the legislation as a whole, including the modifying effect of the QBCC Act on the QCAT Act. Once it is understood that the decision is one made by the QBCC under the QBCC Act, one can see that it is the QBCC which falls within s40(1)(b) as the relevant party. S40(2) guides the naming of the decision-maker “so far as is practicable”. In my view once it is established by reference to the QBCC Act that the QBCC is the decision-maker s40(2) is irrelevant. QCAT conducts reviews of the decisions of many bodies. In some cases, the enabling legislation expressly provides that a reviewable decision is a decision of a particular office holder, for example, the Information Commissioner or the Commissioner of State Revenue or an Assistant Commissioner of Police who is a prescribed officer for the purpose of a decision. In those cases, the provisions of the QCAT Act which refer to a decision maker as an individual can easily come into play. Where it is a government body such as the Commission or a Department which is said in its governing legislation to be the decision maker the phrasing of the QCAT Act can be seen to be awkward, but it must be interpreted subject to the enabling legislation which confers jurisdiction.
It should be readily apparent that an employee of the QBCC sought to be named as a decision maker may leave that organisation’s employment at any time. That person would not have any power to provide the Tribunal with relevant documents from the QBCC, nor would they be amenable to an order that they reconsider the decision as contemplated by the QCAT Act.[2]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s21, s24
It is completely impractical for the individual who made a decision in the course of his or her duties to be named as the respondent decision-maker in review proceedings. A simple search of the review decisions of the Tribunal would reveal to Mr Hall that the QBCC is always the respondent in matters where jurisdiction is conferred on the Tribunal by the QBCC Act.
The application is misconceived, in the sense that Mr Hall has misunderstood the operation of the QBCC Act, its modifying effect on the QCAT Act and the review jurisdiction of the Tribunal.

Other orders

As to the orders sought by Mr Hall going to rejection of documents, referral of persons for prosecution, standing down of members and mandatory training for Tribunal staff and members, those matters fall outside the orders which might be made by an Appeal Tribunal on an application for leave to appeal (and if leave is granted an appeal), against a decision granting leave for legal representation.
The application is misconceived. I observe that making unsubstantiated allegations of unlawful conduct on the part of Tribunal members is also vexatious.

Conclusion

For the reasons given in this decision, the application for miscellaneous matters filed by Andrew Hall on 26 September 2022 is dismissed.