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 14Allan 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 394Briginshaw 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 237APPEARANCES & 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…
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- Case
- [2022] QCAT 238
- Decision Date
CaseChat Overview and Summary
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.
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