Chandra v Queensland Building and Construction Commission - [2014] QCATA 65

CITATION:

Chandra v Queensland Building and Construction Commission [2014] QCATA 065

PARTIES:	Suresh Chandra (Applicant/Appellant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

APL058 -14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe, OAM

DELIVERED ON:

26 February 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Suresh Chandra’s application to extend or shorten a time limit or for waiver of compliance with procedural requirement is refused.

2. The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294

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 (Qld) (QCAT Act).

REASONS FOR DECISION

On 22 November 2013, a member of the tribunal made orders against Mr Chandra that had significant consequences. In addition to fines and compensation, the learned Member ordered that Mr Chandra never be re-licensed as a building certifier.
Mr Chandra filed an application for leave to appeal on 31 January 2014. Because he was outside the permitted time frame for such an application, he also filed an application for extension of time.

Explanation of the delay

Mr Chandra submitted that he had a reasonable explanation for the delay. He says that he left Australia on 11 December 2013 for India to visit his ailing Grandmother. He says that he did not return until 2 January 2014. He says that he had difficulty communicating with his lawyer while he was in India. He says that his lawyer was not working between 22 December 2013 and 13 January 2014 so Mr Chandra could not obtain advice from his lawyer until after 13 January 2014.

I accept Mr Chandra’s explanation for his delay between 22 December 2013 and shortly after 13 January 2014. I am not similarly persuaded about the delay between 22 November 2013 and 20 December 2013.

Mr Chandra is silent about when his lawyer received a copy of the decision. He is also silent about why he did not receive a copy of the decision before he left for India. His lawyer has not provided an affidavit about what happened between 22 November 2013 and 17 December 2013. If the delay was because of the lawyer’s error then, of course, the tribunal would give serious consideration to an extension of time. In the absence of an explanation, however, I can only assume that nothing was done and there was no good reason for that omission.

Contrary to his submission that he could not communicate with his lawyer from India, Mr Chandra does say that he received a copy of the decision by email on 17 December 2013. He does not explain why he didn’t then instruct his lawyer to file an application for leave to appeal. If one is facing a lifetime ban in one’s chosen profession, it doesn’t…

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: [2014] QCATA 65
Decision Date: 26 February 2014

CaseChat Overview and Summary

Suresh Chandra sought to appeal against a decision of the Queensland Building and Construction Commission, which was upheld by the Queensland Civil and Administrative Tribunal. The Commission had found that Chandra had engaged in misconduct by making false statements in the course of building work. The dispute came before the Queensland Court of Appeal, which had to determine whether there were grounds for Chandra to be granted leave to appeal against the decision of the Tribunal.

The primary legal issue for the court to decide was whether Chandra had established that the Tribunal had made an error of law that resulted in a miscarriage of justice. The court considered whether the error was significant enough to justify the grant of leave to appeal. The court also had to consider whether the appeal had prospects of success.

The court held that Chandra had not established any ground for leave to appeal. The court found that the Tribunal's decision was based on a proper application of the law and that there was no miscarriage of justice. The court also found that the appeal had no prospects of success. The court held that the Tribunal had correctly found that Chandra had made false statements in the course of building work and that this constituted misconduct. The court found that the evidence supported the Tribunal's decision and that there was no basis for the court to interfere with the decision. The court dismissed Chandra's application for leave to appeal and also dismissed the appeal.

Orders

Orders of the court

1. Suresh Chandra’s application to extend or shorten a time limit or for waiver of compliance with procedural requirement is refused.

2. The application for leave to appeal or appeal is dismissed.

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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