Butler v Queensland Building and Construction Commission

[2018] QCAT 30

CITATION: Butler v Queensland Building and Construction Commission [2018] QCAT 30

PARTIES:	Jeremy Stewart Butler (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: OCR 254-17

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member King-Scott

DELIVERED ON: 5 February 2018

DELIVERED AT: Brisbane

ORDERS MADE:	Application by QBCC to dismiss Mr Butler’s Application to Review is allowed. Mr Butler’s Application dated 3 November 2017 is dismissed.
CATCHWORDS:	Review of proposed decision by the Queensland Building and Construction Commission to cancel licence - Premature application when no decision has been made- summary dismissal.

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. On 3 November 2017, Mr Butler filed an application to review a decision of the Queensland Building and Construction Commission, made on 10 October 2017, that it considered him to be an excluded individual of a relevant event under section 56AF of the Queensland Building and Construction Commission Act 1991.

2. Mr Butler also filed an application to stay that decision. Member Gardner dismissed that application to stay as it was premature, The QBCC having not made a decision. It had merely progressed through the first part of section 56AF of the Act advising the individual of the relevant event and inviting the individual to make submissions, essentially, as a show cause requirement. The QBCC has not made a decision as yet.

3. On 1 February 2018, Mr Butler's application was listed for a Compulsory Conference. Despite being served by mail and post he failed to appear. He was contacted by telephone and denied receipt of the Notice of Compulsory Conference. The conference did not proceed. QBCC applied to have the Application dismissed.

4. On 6 December 2017 QBCC applied to have the application by Mr Butler dismissed. It is tolerably clear, that Mr Butler’s application is misconceived, he cannot review a decision that has not been made. He filed written submissions on 9 January 2017 but had no material to file. He did not address the issue that the application was premature. Directions were made to have the matter determined on the papers on 10 January 2017.

5. The Tribunal has power to strike out a proceeding under s. 47 Queensland Civil and Administration Tribunal Act 2009 if the Tribunal considers the proceeding is, inter alia,

   a)    frivolous, vexatious or misconceived; or

   b)    lacking in substance; or

   c)    otherwise an abuse of process.

6. When summarily dismissing a claim one should always have in the forefront of one’s mind the words of Dixon J (as he then was) in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at p 91 where His Honour said ‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. …once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’ In General Steel Industries Inc. v Commissioner for Railways NSW (1964) 112 CLR 125 at 130 Barwick CJ referred to the above passage and said, ‘in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.’

7. Unfortunately, Mr Butler’s application is misconceived and should be dismissed.