McCrystal v Queensland Building and Construction Commission - [2018] QCAT 207

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McCrystal v Queensland Building and Construction Commission [2018] QCAT 207

PARTIES:

SHUAN McCRYSTAL
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR268-17; GAR171-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 July 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

In GAR268-17:

1. The application for an extension of time under s 61 of the Queensland Civil and Administrative Act 2009 (Qld) is refused.

2.   The application for review of 14 September 2017 is dismissed.

In GAR171-17:

3.   The application to consolidate the proceedings in GAR171-17 with the proceedings in GAR268-17 is refused.

4.   The application to dismiss a party to the proceedings is refused.

5.   The application to strike out the proceedings is allowed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – whether extension of time to file application for review should be granted under s 61 of the QCAT Act – whether extension of time in enabling Act can be granted – effect of s 86F(1)(b) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether applicant is entitled to apply for external review of a decision to take no disciplinary action against a certifier – whether applicant is a “person affected by the decision” within the meaning of s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) – where applicant is owner of property adjacent to one property relevant to review proceedings in GAR268-17 – where applicant is owner of property two properties removed from the property relevant to review proceedings in GAR171-17

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – whether the applicant is a person affected by the decision – whether the applicant lacks standing – whether review application in GAR171-17 should be dismissed – whether QBCC should be removed as a party to the review proceedings – whether review proceedings in GAR268-17 and GAR171-17 should be consolidated

Building Act 1975 (Qld), s 204
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48, s 61
Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 86D, s 86E, s 87

Allan v Transurban City Link Ltd (2001) 183 ALR 380
Argos Pty Ltd v Corbell (2014) 254 CLR 394
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Holding Redlich Lawyers

APPEARANCES:

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

Introduction

This matter involves a number of related interlocutory applications brought in respect of two separate review proceedings concerning the same…

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: [2018] QCAT 207
Decision Date: 6 July 2018

CaseChat Overview and Summary

In the matter of McCrystal v Queensland Building and Construction Commission, the applicant, Mr. McCrystal, sought an extension of time to file an application for review against the Queensland Building and Construction Commission (QBCC). The dispute arose from the QBCC's decision not to take disciplinary action against a certifier, a decision that Mr. McCrystal believed was flawed. The court had to determine whether the application for an extension of time to file a review application should be granted and if Mr. McCrystal had standing to bring the review application in the first place.

The court considered whether the enabling Act, the Queensland Building and Construction Commission Act 1991 (Qld), allowed for an extension of time under section 61 of the Queensland Civil and Administrative Act 2009 (Qld). It was also necessary to determine if Mr. McCrystal qualified as a "person affected" by the QBCC's decision, as defined by section 87 of the Queensland Building and Construction Commission Act 1991 (Qld). This was crucial because the applicant's ownership of adjacent properties to those relevant to the proceedings in GAR268-17 and GAR171-17 played a part in assessing his standing. The court examined if Mr. McCrystal's proximity to the properties in question was sufficient to grant him standing to apply for review.

The court ruled that the application for an extension of time was refused, and the application for review dated 14 September 2017 was dismissed. It held that the enabling Act did not provide for an extension of time under the relevant section, and therefore, the application for an extension was not permissible. Additionally, the court found that Mr. McCrystal did not have standing to bring the review application as he was not a "person affected" by the QBCC's decision. The court concluded that his ownership of properties adjacent to, but not directly involved in, the proceedings did not entitle him to challenge the QBCC's decision. The court also dismissed the application to consolidate the proceedings and to remove QBCC as a party but allowed the application to strike out the proceedings.

The final orders were that the application for an extension of time was refused, the application for review was dismissed, the application to consolidate the proceedings was refused, the application to dismiss a party was refused, and the application to strike out the proceedings was allowed.

Orders

Orders of the court

In GAR268-17:

1. The application for an extension of time under s 61 of the Queensland Civil and Administrative Act 2009 (Qld) is refused.

2. The application for review of 14 September 2017 is dismissed.

In GAR171-17:

3. The application to consolidate the proceedings in GAR171-17 with the proceedings in GAR268-17 is refused.

4. The application to dismiss a party to the proceedings is refused.

5. The application to strike out the proceedings is allowed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McCrystal v Queensland Building and Construction Commission [2018] QCAT 207
PARTIES:	SHUAN McCRYSTAL (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR268-17; GAR171-17
MATTER TYPE:	General administrative review matters
DELIVERED ON:	6 July 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Traves
ORDERS:	In GAR268-17: 1. The application for an extension of time under s 61 of the *Queensland Civil and Administrative Act* 2009 (Qld) is refused. 2. The application for review of 14 September 2017 is dismissed. In GAR171-17: 3. The application to consolidate the proceedings in GAR171-17 with the proceedings in GAR268-17 is refused. 4. The application to dismiss a party to the proceedings is refused. 5. The application to strike out the proceedings is allowed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – whether extension of time to file application for review should be granted under s 61 of the QCAT Act – whether extension of time in enabling Act can be granted – effect of s 86F(1)(b) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether applicant is entitled to apply for external review of a decision to take no disciplinary action against a certifier – whether applicant is a “person affected by the decision” within the meaning of s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) – where applicant is owner of property adjacent to one property relevant to review proceedings in GAR268-17 – where applicant is owner of property two properties removed from the property relevant to review proceedings in GAR171-17 PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – whether the applicant is a person affected by the decision – whether the applicant lacks standing – whether review application in GAR171-17 should be dismissed – whether QBCC should be removed as a party to the review proceedings – whether review proceedings in GAR268-17 and GAR171-17 should be consolidated Building Act 1975 (Qld), s 204 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48, s 61 Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 86D, s 86E, s 87 Allan v Transurban City Link Ltd (2001) 183 ALR 380 Argos Pty Ltd v Corbell (2014) 254 CLR 394 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410
REPRESENTATION:
Applicant:	Self-represented
Respondent:	Holding Redlich Lawyers
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).