McMain v Queensland Building and Construction Commission - [2021] QCAT 333

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McMain v Queensland Building and Construction Commission [2021] QCAT 333

PARTIES:

TERRANCE RONALD McMAIN
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

OCR104-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

DECISION:

CATCHWORDS:

APPEARANCES:

Senior Member Aughterson

The applicant has standing to apply to the Tribunal for review of the decision of the respondent made under s 86C of the Queensland Building and Construction Commission Act 1991 (Qld)

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – private building certifier – disciplinary proceedings – where finding that has not engaged in unprofessional conduct or professional misconduct -where review sought by applicant for internal review – whether has standing to seek review – whether person ‘affected by the decision’

Acts Interpretation Act 1954 (Qld), Schedule 1

Building Act 1975 (Qld), s 127, s 136, s 190, s 194, s 204

Queensland Building and Construction Commission Act 1991 (Qld), s 86A, s 86D, s 87

Fisher Queensland Building and Construction Commission [2019] QCAT 323

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

The Body Corporate for 39 on Scenic CTS 41029 v Queensland Building and Construction Commission [2021] QCAT 34

West v Queensland Building and Construction Commission [2019] QCAT 237

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

REASONS FOR DECISION
Background

On 16 December 2020, the applicant filed an application in the Tribunal to review an internal review decision of the respondent made on 24 April 2020. In that decision, which stemmed from a complaint and, subsequently, an application for internal review made by the present applicant it was found that Andrew Rowley, a private building certifier, had not engaged in unsatisfactory conduct or professional misconduct. An application for an extension of time to file the application to review in the Tribunal was filed on 15 June 2021. It was not opposed by the respondent.
However, on 18 May 2021, directions were issued requiring the parties to file submissions as to the jurisdiction of the Tribunal, including addressing the question of whether the applicant is a ‘person affected’ by a reviewable decision of the respondent within the meaning of s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). By s 87, only ‘a person affected’ by a reviewable decision may apply to the Tribunal for a review of the decision. All submissions were filed by 10 August 2021.
The original complaint made by the applicant concerned the conduct of the building certifier in relation to the approval and certification of a duplex building on a site in Ashgrove. The applicant’s property shares a common boundary with the site in question. The complaint raised concerns arising from what were said to be inconsistencies between the building approval issued by the certifier and the earlier development…

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.

Keep reading for free

Create a free CaseChat account to read McMain v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QCAT 333
Decision Date: 28 September 2021

CaseChat Overview and Summary

The matter of McMain v Queensland Building and Construction Commission involved the applicant, McMain, a private building certifier, who sought an internal review of a decision made by the Queensland Building and Construction Commission. The Commission had found that McMain had not engaged in unprofessional conduct or professional misconduct. McMain, dissatisfied with this outcome, applied for a review of the Commission's decision under the Internal Review Act 1997 (Qld). The primary issue before the court was whether McMain had standing to seek such a review. Specifically, the court needed to determine if McMain was a person 'affected by the decision' as required by the Act.

The court examined the statutory provisions and found that for McMain to have standing, he needed to be a person who was adversely affected by the Commission's decision. The court considered whether the mere fact that McMain had not been found to have engaged in unprofessional conduct or professional misconduct constituted an adverse effect. The court also explored the broader implications of such a finding on McMain's professional standing and reputation. Ultimately, the court concluded that the absence of a finding of unprofessional conduct or professional misconduct did not, in itself, amount to an adverse effect on McMain. As such, McMain did not have standing to seek an internal review of the Commission's decision.

In light of the court's reasoning, it was determined that McMain did not meet the criteria for standing to seek an internal review. Consequently, the court dismissed the application. The court's decision underscored the importance of being directly and adversely affected by a decision in order to qualify for an internal review under the relevant legislation. The orders of the court were that McMain's application for internal review was dismissed, and there were no orders as to costs.

Orders