West v Queensland Building and Construction Commission

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

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

PARTIES: AMY-ROSE WEST

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR284-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

22 August 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Matter GAR284-18 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant complained about a private certifier – where the respondent investigated the complaint – where the applicant sought external review of the decision of the respondent that the certifier had not engaged in unsatisfactory conduct or professional misconduct in the Tribunal – where the respondent applied to strike out the proceedings on the basis of lack of standing to bring an application for review in the Tribunal – where alternatively the respondent claimed the application should be struck out on the basis that the complaints lacked substance

Acts Interpretation Act 1954 (Qld), s 14(4)

Building Act 1975 (Qld), s 136(1), s 179(3)(d), s 180(a),
s 190(1), s 194, s 204(1), s 204(2)
Queensland Building and Construction Commission Act 1991 (Qld), s 86A, s 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Building Regulation 2006 (Qld), s 30(2)(a), s 31(1), s 31(2)

Allan v Transurban City Link Limited [2001] HCA 58

Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd [1994] FCA 996
Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50
Control Investments Pty Ltd & Ors v Australian Broadcasting Tribunal [1980] AATA 78

McCrystal v QBCC [2018] QCAT 207

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented by D McNulty, Solicitor

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

  1. On 9 March 2017 a development approval was issued by a building certifier, Mr Dunn, authorising construction of an in-ground fibreglass swimming pool and pool fence at a property at Coolum Beach.

  2. On 17 July 2017 another certifier, Mr Wibrow, was engaged to conduct a final inspection of the pool and fence. Mr Wibrow issued a form 17 final inspection certificate approving the pool and fence.

  3. Ms West owns land next door. On 10 November 2017 she complained to the respondent (‘QBCC’) about the pool and fence and both certifiers.

  4. QBCC dismissed the complaint against Mr Dunn.

  5. In relation to Mr Wibrow, QBCC investigators determined that the certifier had not engaged in unsatisfactory conduct or professional misconduct.

  6. Ms West sought internal review of that decision by review officers of QBCC. On 25 July 2018 QBCC made an internal review decision again concluding that the building certifier had not engaged in either unsatisfactory conduct or professional misconduct.

  7. Ms West filed an application in the Tribunal seeking review of the QBCC internal review decision. QBCC has now brought an application asking that Ms West’s application to the Tribunal be dismissed or struck out pursuant…

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Details
Case
[2019] QCAT 237
Decision Date

CaseChat Overview and Summary

In the matter of West v Queensland Building and Construction Commission, the applicant, Ms West, contested the Queensland Building and Construction Commission’s (QBCC) internal review decision that a private certifier did not engage in unsatisfactory conduct or professional misconduct. Ms West sought external review of the internal review decision in the Queensland Civil and Administrative Tribunal (QCAT). The QBCC applied to strike out Ms West’s application on the grounds of lack of standing and, alternatively, that the complaints lacked substance.

The legal issues before the court were whether Ms West had standing to bring an application for review in QCAT and, if so, whether the complaints had sufficient substance. Standing to bring an application for review in QCAT requires that the applicant be affected by a reviewable decision. This contrasts with the internal review process, where standing is based on being given or entitled to be given notice of a reviewable decision. The court considered the distinction between standing to challenge an administrative decision through judicial review and standing to bring proceedings in the course of administrative review. The court examined whether Ms West had an interest in the internal review decision that was above any other member of the public. The court held that Ms West did not have standing to bring the application in QCAT as she was not affected by the internal review decision. The court further found that the complaints lacked substance.

The court dismissed Ms West’s application for review. The court held that Ms West did not have standing to bring the application in QCAT as she was not affected by the internal review decision. The court held that the complaints lacked substance. The matter GAR284-18 was dismissed.

Orders

Orders of the court

Matter GAR284-18 is dismissed.

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

Section 204:Decision after investigation or audit completed(1) After investigating a complaint or conducting an audit, QBCC must decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct.(2) QBCC must give the building certifier and the complainant (if any) an information notice about the decision taken under subsection (1).Note—For reviews of the decision, see the QBCC Act, part 7, division 3. Part 7 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) deals with the jurisdiction of the Tribunal. Division 3 concerns proceedings for review. Subdivision 1 deals with internal reviews by QBCC and subdivision 2 external reviews in the Tribunal. Section 86A of the QBCC Act, which falls within Subdivision 1, provides:Who may apply for internal review(1) A person who is given, or is entitled to be given, notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed.(2) However, subsection (1) does not apply if the person has applied to the tribunal for a review of the reviewable decision under subdivision 2.(3) Also, if—(a) the person applies for an internal review of the reviewable decision; and(b) before the application is decided, the person applies to the tribunal for review of the reviewable decision under subdivision 2; the application for internal review of the decision lapses. Section 87 of the QBCC Act, which falls within Subdivision 2, provides:A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the Tribunal for a review of the decision. The QBCC submits as follows. Ms West is not a person affected by the internal review decision and therefore she has no standing to bring the application in the Tribunal regardless that she had standing to ask for internal review of the original QBCC decision. She has no interest in the internal review decision above any other member of the public. Mere physical proximity to the relevant development does not confer the requisite standing on her to review the QBCC’s conclusion about the professional conduct of a certifier. Whilst the threshold qualification entitling a person to seek internal review of a QBCC decision is that the person be given or be entitled to be given notice of a reviewable decision, the threshold qualification for external review in the Tribunal is different. For external review, a person must be affected by a reviewable decision. In Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd,[1] Davies J pointed out and explained the distinction between cases concerning a person’s standing to challenge an administrative decision through judicial review, and standing (or as more appropriately expressed, entitlement) to bring proceedings in the course of administrative review:In US Tobacco at 529 the Court said:‘The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review.’This must be so with respect to the phrase "interests are affected", when used in a statute which provides for the administrative review of an administrative decision. In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. The term "aggrieved", when used in the context of judicial review, may have a different connotation, for the object of judicial review is to ensure that the law is observed.[2][1][1994] FCA 996.[2]Ibid [37].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.