Amour v Queensland Building Services Authority - [2012] QCAT 360

CITATION:

Amour v Queensland Building Services Authority [2012] QCAT 360

PARTIES:	Troy Anthony Amour
v
Queensland Building Services Authority

APPLICATION NUMBER:

OCR178-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

23 December 2011

HEARD AT:

Brisbane

DECISION OF:

Andrew McLean Williams, Member

DELIVERED ON:

12 March 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Application allowed.
Pursuant to s 24(1)(b) of the QCAT Act 2009, the following consequential orders are made:

(1) The decision of the Respondent dated 27 June 2011 refusing the Applicant’s application for a QBSA contractor licence in the class of Painting and Decorating is set aside;

(2) In lieu thereof, the Tribunal substitutes its own decision that the Applicant is a fit and proper person to hold a QBSA licence, in the class of Painting and Decorating; and

(3) The Applicant is to be granted a QBSA Contractor Licence, in the category of Painting and Decorating.

CATCHWORDS:

Occupational regulation – building industry – “fit and proper person” requirement for applicant to hold a building contractor’s licence – application arising in circumstances where the applicant had served a term of actual imprisonment for stealing offences – impact of imprisonment on assessment of propriety

Queensland Building Services Authority Act 1991, s 31

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Troy Anthony Amour, in person
RESPONDENT:	Mr Simon Formby (QBSA in-house counsel)

REASONS FOR DECISION

Preliminary

On 20 July 2011, Mr Troy Anthony Amour commenced this application before QCAT by filing an Application to Review a Decision (Form 23) in the QCAT registry. Mr Amour seeks to review a decision made by the Queensland Building Services Authority (QBSA), on 27 June 2011.

By letter dated 27 June 2011, the QBSA notified Mr Amour that his application for a QBSA contractor licence in the class of painting and decorating had been refused, on the basis that it had been determined that Mr Amour was not a fit and proper person to hold such a licence. This decision was one made in accordance with s 31(1)(a) of the Queensland Building Services Authority Act 1991 (‘the Act’).

In reaching that determination, and in accordance with s 31(3)(d) of the Act, the original decision maker had regard for the fact that Mr Amour had served an actual term of imprisonment in Victoria, following upon his conviction in that state on multiple charges of burglary, theft, and attempts to commit similar offences.

Decisions by the QBSA pursuant to s 31 of the Act are “reviewable decisions”,[1] for purposes of s 24 of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’).
[1] QBSA Act, s 86(1)(a).

Section 20 of the QCAT Act provides that the purpose of a review of any reviewable decision is to produce the correct and[2] preferable decision, and that QCAT is to conduct the review by way of a fresh hearing, on the merits. In light of s 20, the question of Mr Amour’s application for a contractor’s licence is a matter to be determined by QCAT de novo,…

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: [2012] QCAT 360
Decision Date: 12 March 2012

CaseChat Overview and Summary

In the matter of Amour v Queensland Building Services Authority, the court was called upon to determine whether the applicant, having served a term of imprisonment for stealing offences, could be considered a "fit and proper person" to hold a building contractor’s licence. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with assessing the impact of the applicant's criminal history on their suitability to obtain the licence under the Building Services Act 2011. The tribunal needed to decide whether the applicant's past criminal conduct disqualified them from holding the licence, or if other factors could mitigate this consideration.

The primary legal issue was the interpretation and application of the "fit and proper person" requirement for licensing under the Building Services Act 2011. Specifically, the tribunal had to balance the applicant’s criminal history against other factors, such as rehabilitation, remorse, and the likelihood of reoffending. The court also had to consider whether the applicant's criminal conduct was sufficiently remote in time and whether it demonstrated an ongoing unsuitability for the licence. The tribunal examined the evidence presented and assessed whether the applicant met the statutory criteria for being deemed a "fit and proper person".

The tribunal concluded that despite the applicant's past criminal conduct, there was sufficient evidence to support the view that they had rehabilitated and were now a fit and proper person to hold a building contractor's licence. The tribunal found that the nature and circumstances of the applicant's offences, along with the time elapsed since their release from imprisonment, did not necessarily indicate ongoing unsuitability. The applicant's remorse, positive references, and evidence of good character were deemed sufficient to outweigh the negative impact of their criminal history. Consequently, the tribunal set aside the respondent's decision and granted the applicant a QBSA Contractor Licence in the category of Painting and Decorating.

The final orders included setting aside the respondent's decision to refuse the applicant’s licence application, substituting the tribunal's decision that the applicant was a fit and proper person to hold a licence, and granting the applicant a QBSA Contractor Licence in the category of Painting and Decorating. The tribunal's decision emphasised the importance of considering the totality of circumstances and the applicant's demonstrated rehabilitation in its assessment.

Orders

Orders of the court

Application allowed.

Pursuant to s 24(1)(b) of the QCAT Act 2009, the following consequential orders are made:

(1) The decision of the Respondent dated 27 June 2011 refusing the Applicant’s application for a QBSA contractor licence in the class of Painting and Decorating is set aside;

(2) In lieu thereof, the Tribunal substitutes its own decision that the Applicant is a fit and proper person to hold a QBSA licence, in the class of Painting and Decorating; and

(3) The Applicant is to be granted a QBSA Contractor Licence, in the category of Painting and Decorating.

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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