Queensland Building and Construction Commission v Meads

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Building and Construction Commission v Meads [2023] QCATA 122

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(applicant/appellant)

v

PHILLIP DANIEL MEADS

(respondent)

APPLICATION NO/S:

APL069-21

ORIGINATING APPLICATION NO/S:

OCR047-20

MATTER TYPE:

Appeals

DELIVERED ON:

3 October 2023

HEARING DATE:

8 August 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.     Leave to appeal granted.

2.     Appeal allowed. 

3.     Decision of the Tribunal of 18 December 2020 set aside.

4.     In lieu thereof, the decision of the appellant on internal review be confirmed, so far as it found the respondent had engaged in unsatisfactory conduct, and reprimanded him.

5.     Decision on internal review otherwise set aside.

6.     There be no order as to costs. 

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES RIGHT OF APPEAL WHEN APPEAL LIES – ERROR OF LAW – appeal and application for leave to appeal from decision of Tribunal – review of decision of Commission – respondent building certifier – whether allowable encroachments properly approved - errors of law in interpretation of the Building Code of Australia – whether respondent engaged in unsatisfactory conduct - penalty

Building Act 1975 (Qld) s 14, s 26, s 30, s 36, s 68, s 136.

Kay v Queensland Building and Construction Commission [2014] QCAT 421

APPEARANCES & REPRESENTATION:
Applicant:	S Nean, lawyer with the appellant.
Respondent:	Self-represented

REASONS FOR DECISION

1. This is an appeal and application for leave to appeal from a decision of a Member of the Tribunal who on 18 December 2020 set aside on review a decision of the appellant that the respondent, a building certifier, was guilty of unsatisfactory conduct for the purposes of the Building Act 1975 (Qld) (“the Act”), and ordered the appellant to pay the costs of the respondent.[1] 

   [1][2020] QCAT 520. I will refer to the Commission as the appellant, and Mr Meads as the respondent.

2. Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142 the appellant has a right to appeal from the decision of the Member on a question of law, but requires the leave of the Tribunal to appeal on a question of fact, or of mixed fact and law. So far as the appeal is on a question of law, it is to be decided as an appeal in the strict sense, and the powers of the Appeal Tribunal are limited.[2] If leave is granted to appeal, the appeal is to be decided by way of rehearing: the QCAT Act s 147. In that event, the Appeal Tribunal has to make up its own mind as to the matters in dispute, having due regard to the advantages of the Member in having presided at the hearing, particularly in relation to issues of credibility.[3]  It is appropriate in the present case to deal first with the matters relied on as questions of law.

   [2]The QCAT Act s 146; Pivovarova v Michelsen (2019) 2 QR 508 at [9].

   [3]See also Harrison v Meehan