Andrew v Queensland Building Services Authority

[2012] QCAT 676

CITATION: Andrew v Queensland Building Services Authority [2012] QCAT 676

PARTIES:	Nathan Andrew
v
Queensland Building Services Authority

APPLICATION NUMBER: OCR294-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: 18 October 2012

HEARD AT: Brisbane

DECISION OF: Kate Buxton, Member

DELIVERED ON: 7 December 2012

DELIVERED AT: Brisbane

ORDERS MADE:

Upon Mr Andrew undertaking in writing to the Tribunal that he is compliant with the Financial Requirements for Licencing under the Queensland Building Services Authority Act it is ordered:

[1]     The Authority’s decision to cancel the license of Mr Andrew, made 24 August 2012, is stayed pending determination of these proceedings or further order of this Tribunal.

CATCHWORDS: Licenced builder – Application to review licence cancellation – Application for stay – where applicant also seeking review of refusal to categorise as permitted individual – whether licence cancellation can be stayed – prospects of success – exercise of discretion

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Mr Andrew is a builder who, on 24 August 2012, received notice that his license issued by the Queensland Building Services Authority (the Authority) and regulated Queensland Building Services Authority Act 1991 (QBSA Act) had been cancelled.  The Authority had, on 13 July 2012, refused to categorise Mr Andrew as a permitted individual having determined on 19 June 2012 that Mr Andrew was an ‘excluded individual’ following a bankruptcy event.

2. In his applications, both filed 7 September 2012 (and dealt with together as OCR294-12) Mr Andrew seeks:

   (a)Review of the Authority’s decision to cancel his license (made 24 August 2012); and

   (b)Review of the Authority’s decision not categorise him as a permitted individual (made 13 July 2012).

3. The Tribunal is now asked to consider Mr Andrew’s interim application to stay the cancellation of his license pending determination of this review application.

4. The Authority resists the granting of stay on the basis that:

(a)Mr Andrew has not sought review of the license cancellation decision;

(b)No application has been made to extend time for filing of the application to review either:

i.The permitted individual decision;

ii.The license cancellation decision.

(c)The license cancellation is mandatory and does not involve the exercise of any discretion.  The Tribunal, therefore, does not have authority to reinstate or renew the applicant’s license.

1. Dealing with these issues in turn, the Authority’s submission that there is no application to review the license cancellation decision is factually incorrect.  Two applications were filed together on 7 September 2012.  Plainly, one seeks review of the license cancellation decision.

2. The second point is that no application to extend time has been made in relation to the permitted individual decision.  Unhelpfully, the Authority has not expressed any views in its submission as to whether, if such an application to extend time was filed, it would consent or oppose such relief.  This goes to the prospects of success in the review proceeding which is a discretionary factor for the Tribunal to take into account in determining the application for a stay.  If the Authority would not oppose such an application then the extension is likely to be granted by the Tribunal if sought and Mr Andrew’s prospects of success would be unaffected by the failure to file within time.

1. I will assume that Mr Andrew will file an application for an extension of time within which to file the review application for the permitted individual decision and that the Tribunal will deal with that issue in due course.  I note that the extension needed would be about twenty five (25) days and that Mr Andrew has provided some explanation for the delay by stating that he posted his application to the Authority rather than the Tribunal within the prescribed period.

1. As to the final submission that the cancellation is mandatory and therefore the Tribunal has no discretion to change the license cancellation decision this does not, in my view, properly characterise an over simplification of the combined effect of the relevant statutory provisions.

1. Section 56AF provides the statutory mechanism for license cancellation if the licensee is an excluded individual.  The Authority must cancel the license if the Authority refuses to categorise a licensee as a permitted individual and the period for review of that refusal has ended.  However, the legislation does not provide a mechanism for automatic cancellation.  Section 56AF empowers the Authority to make that decision (rather than it being made by operation of legislation).  The Authority must be satisfied that the necessary pre-requisites for the decision exist.  It must then actually cancel the licence.[1]  

   [1]        Australian Postal Corp v Forgie Anor (2003) 130 FCR 279 at [80].

1. Section 86(i) then clearly provides that that decision to cancel the license is reviewable.  It is not a decision excluded from the review process by the express provisions of section 86(2).  The Authority itself informed Mr Andrew of his review rights in the letter informing him of the license cancellation decision.

1. When an administrative body is tasked with making a decision it is still an administrative, capable of review, notwithstanding that the statutory mechanism may not leave room for the exercise of a discretion.  Indeed, if decisions under section 56AF could not be reviewed because of a lack discretion to ‘renew or reinstate, as submitted by the Authority, then there would be no point in reviewing any decision to refuse to categorise a licensee as a permitted individual if the application to review that decision is out of time.

1. I do not accept that such a fetter upon the practical rights of licensees such as Mr Andrew was intended or can be inferred from the combined operation of sections 56AF and 86(1).

1. Here, the applicant is seeking review of both the permitted individual decision and the license cancellation decision.  He seeks a stay of the license cancellation decision.  The Tribunal has jurisdiction to grant such a stay.  It is relevant that both decisions are being reviewed because if Mr Andrew is successful in reviewing the permitted individual decision his victory would pyrrhic unless he also successfully reviewed the license cancellation decision.  It is unlikely that the legislature intended someone in Mr Andrew’s position to generate a separate and later application to review license cancellation in circumstances where a permitted individual decision has been successfully reviewed.  In circumstances where both the decisions are sought to be reviewed at the same time the plain words of section 56AF do not prevent the decision either from being reviewed by this Tribunal or from being stayed on an interim basis pending determination of the review process.

2. No substantive submissions have been made by the Authority in relation to the discretionary factors relevant to the stay, despite having been given the opportunity to do so.  In the event that Mr Andrews' licence is reinstated the Authority would need to ensure that the financial requirements for licencing were met by Mr Andrew.

1. Mr Andrew submits that the Tribunal’s discretion to stay the license cancellation decision ought be exercised because:

(a)The interests of contractors have not been affected by the relevant bankruptcy event;

(b)Mr Andrew attempted to honour his debts by entering into a bankruptcy arrangement rather than having himself declared bankrupt;

(c)The debts related to the bankruptcy event were tax and credit debts rather than trading debts; and

(d)Mr Andrew is the sole income earner and has had three children diagnosed with epilepsy in the past three years.

1. The Tribunal, in exercising its discretion under section 22 of the QCAT Act is required to take into account the interests of any person affected, any submissions made by the decision maker and the public interest. The merits of the application itself must also be born in mind.[2]

   [2]        JM Kelly (Project Builders) Pty Ltd v QBSA (2011) QCAT 60.

2. Having regard to the issues raised by the applicant and the lack of consideration of the parties substantive submissions in response by the Authority, as required in s 22 favours the application for a stay of the license cancellation decision. It is therefore the proper exercise of this Tribunal’s discretion to stay the licence cancellation decision. It is also proper to require Mr Andrew to comply with the financial requirements for licencing before the stay is put into effect.

ORDER

1. Upon Mr Andrew undertaking in writing to the Tribunal that he is compliant with the Financial Requirements for Licencing under the Queensland Building Services Authority Act 1991 it is ordered:

a.The Authority’s decision to cancel the license of Mr Andrew, made 24 August 2012, is stayed pending determination of these proceedings or further order of this Tribunal.