Hart v Queensland Building and Construction Commission - [2022] QCAT 238

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:
Hart v Queensland Building and Construction Commission [2022] QCAT 238

PARTIES: DEBORAH ELIZABETH HART

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR219-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 January 2022

HEARING DATE:

On-papers Hearing

HEARD AT:

Brisbane

DECISION OF:

A/Member Lember

ORDERS:

1.   The application for review of a decision filed on 24 June 2020 is dismissed.

2.   Each party is to bear its own costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – administrative review – Queensland Building and Construction Commission -complaint against certifier by owner of adjoining property – whether applicant has standing – whether application lacks substance

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – whether owner of adjoining property where building work was certified is a person affected by a decision made about a misconduct decision under section 204 of the Building Act 1975 (Qld) – whether Tribunal has jurisdiction to hear the matter – whether the application for review should be struck out

Acts Interpretation Act 1954 (Qld), s 14
Building Act 1975 (Qld), s 10, s 47, s 48, s 136, s 190, s 204
Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 9(1), s 17(1), s 47
Sustainable Planning Act 2009 (Qld), s 10
Sustainable Planning Regulation 2009 (Qld), sch 14

Allan v Transurban City Link Ltd (2001) 183 ALR 380
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394

Briginshaw v Briginshaw (1938) 60 CLR 336

Brown v Queensland Building and Construction Commission (No 2) [2016] QCAT 7
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Dey v Victorian Railways Commissioners [1949] 78 CLR 62
Drew v Queensland Building and Construction Commission [2015] QCAT 11
Fisher v Queensland Building and Construction Commission [2019] QCAT 323
Maltby v Queensland Building and Construction Commission [2019] QCAT 66
McCrystal v Queensland Building and Construction Commission [2018] QCAT 207
Medical Board of Queensland v Whittaker [2010] QCAT 312
Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191
Ogle v Moreton Bay Regional Council, QBSA [2009] QCCTB 71
Psychology Board of Australia v McEvoy [2017] QCAT 473
Re McHattan and Collector of Customs (NSW) (1977) 18 ALR 154
Schwede v QBSA, Kennedy [2009] QCCTB 157
West v Queensland Building and Construction Commission [2019] QCAT 237

Yeo v Brisbane Polo Club Inc [2013] QCAT 261

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

Ms Hart co-owns (with three others, including Mr Richard Koerner) properties described as Lots 93 and 94 on an identified registered plan (“the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCAT 238
Decision Date

CaseChat Overview and Summary

The case of Hart v Queensland Building and Construction Commission involved Ms Hart who sought to have the decision of the Queensland Building and Construction Commission reviewed. Ms Hart was one of the original complainants against Mr Neller, who was an authorised building certifier. The central issue was whether Ms Hart had standing to seek a review of the Commission’s decision not to refer Mr Neller’s conduct to the Queensland Civil and Administrative Tribunal. The court had to determine if Ms Hart was an affected party under the Queensland Building and Construction Commission Act 2004.

The court examined the statutory language of the Act to determine if Ms Hart was a person affected by the Commission’s decision. The court noted the use of the phrase "any other person affected" in the Act, which implied that the applicant for internal review was also considered an affected party. The court found that excluding Ms Hart from applying for external review despite being an original complainant would be inconsistent with the statutory language. The court also referenced the Briginshaw principle, which sets out the standard of proof required in such matters, emphasizing the need for a higher threshold when the consequences are more severe.

Based on the statutory interpretation and the Briginshaw principle, the court concluded that Ms Hart, beyond her capacity as a member of the public, was a person affected by the Commission’s decision. This finding granted her standing to seek a review of the Commission’s decision by the Tribunal. The court held that the Tribunal’s role in such proceedings is to review the circumstances afresh and to produce the correct and preferable decision, adhering to the balance of probabilities standard of proof.

In summary, the court granted Ms Hart the standing to seek a review of the Commission’s decision, finding her to be an affected party under the Act. The court ordered that the matter be remitted back to the Commission for reconsideration in light of the new findings regarding Ms Hart’s standing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, the language of Part 7 Division 3 of the QBCC Act is also informative. For example, (my emphasis added): 86D Notice of internal review decision (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. The use of the words “any other person affected” strongly infers that the applicant for internal review is a person affected by the decision under review. If the word “other” had been omitted, it would be a different matter and would suggest that the applicant may not necessarily also be a person affected by a decision. Additionally, the review notice must inform “the person” (being the recipient of a review notice) that they can apply to the Tribunal for external review. In my view, it makes no sense for section 87 to exclude certain recipients of the review notice under section 86D from then applying because they are not “affected by” the decision. On that basis, I prefer the approach taken in West and I find that – beyond her capacity as a member of the public[24] - Ms Hart as one of the original complainants is a person affected by the decision of the QBCC with standing to review the decision to the Tribunal. [24]McCrystal v Queensland Building and Construction Commission [2018] QCAT 207 at [47], citing Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394. The role of the Tribunal in review proceedings is to review the circumstances afresh and to produce the correct and preferable decision.[25] [25]Section 20 of the QCAT Act. The requisite standard of proof is the balance of probabilities, albeit to a sliding scale whereby the more serious the consequences, to Mr Neller in this case, the higher the standard of “reasonable satisfaction” is needed for an application to succeed. This principle was espoused by Justice Dixon in Briginshaw v Briginshaw:[26]The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references. [26](1938) 60 CLR 336 at 362. The grounds of Ms Hart’s complaint are that in issuing the approval and certifying the works, Mr Neller, breached required standards of conduct and professionalism because Mr Neller: (a)failed to lodge a form 21; (b)failed to account for operational works requirements; (c)failed to comply with the Vegetation Management Plan; (d)failed to perform building certifying functions in the public interest in breach of section 136 of the Building Act because he failed to advance the purposes of the Sustainable Planning Act 2009 (Qld) (“SPA”) and the Maroochy Town Plan (2000); (e)failed to correct an error in the IDAS Form 1 development application which stated that the relevant property did not “involve a state resource”, and, therefore, the Department of Environment and Science was not included as a concurrence agency on the application when it should have been; (f)“construction drawings lodged on 10 July 2012 are not those approved by Council on 6 July 2012”;(g)“improper decision notice dated 24/11/2004 is purported to fulfil final inspection required”;(h)certified building work at the relevant property inconsistent with an appropriate pre-cleared natural vegetation footprint permit requirements for self-assessable development under the SPA and the Maroochy Town Plan (2000); and(i)breaching the terms of the building development approval.

Ratio Decidendi

Legal Principle Established

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CITATION:	*Hart v Queensland Building and Construction Commission* [2022] QCAT 238
PARTIES:	DEBORAH ELIZABETH HART
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)
APPLICATION NO/S:	GAR219-20
MATTER TYPE:	General administrative review matters
DELIVERED ON:	25 January 2022
HEARING DATE:	On-papers Hearing
HEARD AT:	Brisbane
DECISION OF:	A/Member Lember
ORDERS:	1. The application for review of a decision filed on 24 June 2020 is dismissed. 2. Each party is to bear its own costs.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – administrative review – Queensland Building and Construction Commission -complaint against certifier by owner of adjoining property – whether applicant has standing – whether application lacks substance PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – whether owner of adjoining property where building work was certified is a person affected by a decision made about a misconduct decision under section 204 of the Building Act 1975 (Qld) – whether Tribunal has jurisdiction to hear the matter – whether the application for review should be struck out Acts Interpretation Act 1954 (Qld), s 14 Building Act 1975 (Qld), s 10, s 47, s 48, s 136, s 190, s 204 Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 9(1), s 17(1), s 47 Sustainable Planning Act 2009 (Qld), s 10 Sustainable Planning Regulation 2009 (Qld), sch 14 Allan v Transurban City Link Ltd (2001) 183 ALR 380 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Queensland Building and Construction Commission (No 2) [2016] QCAT 7 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Dey v Victorian Railways Commissioners [1949] 78 CLR 62 Drew v Queensland Building and Construction Commission [2015] QCAT 11 Fisher v Queensland Building and Construction Commission [2019] QCAT 323 Maltby v Queensland Building and Construction Commission [2019] QCAT 66 McCrystal v Queensland Building and Construction Commission [2018] QCAT 207 Medical Board of Queensland v Whittaker [2010] QCAT 312 Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191 Ogle v Moreton Bay Regional Council, QBSA [2009] QCCTB 71 Psychology Board of Australia v McEvoy [2017] QCAT 473 Re McHattan and Collector of Customs (NSW) (1977) 18 ALR 154 Schwede v QBSA, Kennedy [2009] QCCTB 157 West v Queensland Building and Construction Commission [2019] QCAT 237 Yeo v Brisbane Polo Club Inc [2013] QCAT 261
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).