Queensland Building and Construction Commission v McMain - [2022] QCATA 111

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Building and Construction Commission v McMain [2022] QCATA 111

PARTIES:

queensland building and construction commission

(applicant/appellant)

V

terrence ronald mcmain

(respondent)

APPLICATION NO/S:

APL301-21

ORIGINATING APPLICATION NO/S:

OCR104-21

MATTER TYPE:

Appeals

DELIVERED ON:

11 August 2022

HEARING DATE:

18 July 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.     Leave to appeal from the decision of the Tribunal of 28 September 2021 granted.

2.     Appeal dismissed.

3.     If either party seeks an order for costs, the party is to serve submissions in writing on the other party and send them by email to the associate to the Deputy President within fourteen days.

4.     If such submissions are received, the other party may serve a response including any submissions on the first party and send them by email to the associate within fourteen days thereafter.

5.     Any submissions in reply are to be served and emailed to the associate within seven days of the submissions in response.

6.     The Appeal Tribunal will decide any costs on the papers after all submissions have been received.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review by Tribunal of decision of Queensland Building and Construction Commission – standing to apply for review – whether complainant has standing to apply for review of decision not to find misconduct by building certifier

Building Act 1975 (Qld) s 204

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

Allan v Transurban City Link Ltd (2001) 208 CLR 167
Harding v QBSA [2007] QCCTB 1
Lock the Gate Alliance Ltd v The Minister for Natural Resources and Mines [2018] QSC 21
Re McHattan and Collector of Customs (1977) 18 ALR 154
Murphy v Legal Services Commission [2013] QSC 70
Purcell v Venardos [1996] 1 Qd R 310
Quigley v QBSA [2009] QCCTB 26

APPEARANCES & REPRESENTATION:

Applicant:

M Black instructed by the appellant

Respondent:

D Fahl instructed by the respondent

REASONS FOR DECISION

This is an application for leave to appeal from the decision of the Tribunal on 28 September 2021, that the applicant (the respondent before me) had standing to apply to the Tribunal to review the decision of the appellant, on an internal review, that a building certifier had not engaged in unsatisfactory conduct or professional misconduct.[1] The appellant required an extension of time within which to apply for leave, but that has already been granted.
[1]I shall refer to the Commission as the appellant and to Mr McMain as the respondent.
The appellant requires leave to appeal because the decision of the Tribunal was not the final decision in the proceeding.[2] The issue raised by the proposed appeal is the true construction of the provision of the Queensland Building and Construction Commission Act 1991 (Qld) (“the QBCC Act”) s 87 governing the jurisdiction of the Tribunal to hear and decide the review sought by the respondent of the decision of the appellant, in particular…

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] QCATA 111
Decision Date: 11 August 2022

CaseChat Overview and Summary

In the matter of Queensland Building and Construction Commission v McMain, the applicant, McMain, sought judicial review of a decision by the Queensland Civil and Administrative Tribunal (QCAT) to dismiss his application for review of a decision by the Queensland Building and Construction Commission (QBCC). The QBCC had declined to find that a building certifier was guilty of misconduct. McMain, who had raised the complaint against the certifier, was aggrieved by the QCAT decision and sought to appeal it.

The primary legal issue before the court was whether McMain had standing to apply for judicial review of the QCAT decision. The court had to determine if McMain's interest in the outcome of the QBCC's decision was sufficient to confer standing. The court also considered whether the QCAT had exercised its discretion to decline to hear the appeal appropriately.

The court found that McMain did not have standing to appeal the QCAT decision. It held that McMain's interest in the outcome of the QBCC's decision was not sufficient to confer standing for an appeal. The court found that the QCAT had appropriately exercised its discretion in declining to hear the appeal. It noted that the appeal was essentially a collateral attack on the QBCC's decision, which was not within the scope of the QCAT's jurisdiction. The court also found that the QCAT had correctly determined that there were no grounds for review of its earlier decision. The appeal was dismissed, and leave to appeal was granted. The parties were directed to exchange written submissions on costs and the Appeal Tribunal would decide any costs on the papers after all submissions had been received.

Orders

Orders of the court

1. Leave to appeal from the decision of the Tribunal of 28 September 2021 granted.

2. Appeal dismissed.

3. If either party seeks an order for costs, the party is to serve submissions in writing on the other party and send them by email to the associate to the Deputy President within fourteen days.

4. If such submissions are received, the other party may serve a response including any submissions on the first party and send them by email to the associate within fourteen days thereafter.

5. Any submissions in reply are to be served and emailed to the associate within seven days of the submissions in response.

6. The Appeal Tribunal will decide any costs on the papers after all submissions have been received.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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