Chandra v Queensland Building and Construction Commission - [2017] QCA 4

SUPREME COURT OF QUEENSLAND

CITATION:

Chandra v Queensland Building and Construction Commission [2017] QCA 4

PARTIES:

SURESH CHANDRA
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)

FILE NO:

Appeal No 2885 of 2016
QCATA No 58 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – Unreported, 22 February 2016

DELIVERED ON:

3 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2016

JUDGES:

Margaret McMurdo P and Fraser JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   In relation to the application for leave to appeal by Suresh Chandra:

a.   Grant leave to appeal.

b.   Allow the appeal.

c.   Set aside so much of Order No 1 made on 22 February 2016 by the Appeal Tribunal of the Queensland Civil and Administrative Tribunal as confirmed Order No 1 made on 22 November 2013 by the Queensland Civil and Administrative Tribunal.

d.   Order No 1 made on 22 November 2013 by the Queensland Civil and Administrative Tribunal is set aside and it is ordered instead that Suresh Chandra is not permitted to apply to be licensed or re-licensed by Queensland Building and Construction Commission before 21 November 2018.

e.   Order that the Queensland Building and Construction Commission pay the applicant’s costs of the application for leave to appeal and the appeal.

2.   In relation to the application for leave to appeal by the Queensland Building and Construction Commission:

a.   Grant leave to appeal.

b.   Allow the appeal.

c.   Set aside Order No 2 made on 22 February 2016 in the Queensland Civil and Administrative Tribunal Appeal Tribunal.

d.   Order Suresh Chandra pay the costs of the application for leave to appeal and the cross-appeal by the Queensland Building and Construction Commission.

e.   Refuse the application by the Queensland Building and Construction Commission to adduce evidence in its application.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent had previously made findings of unsatisfactory conduct against the applicant – where the respondent determined that the applicant had also engaged in professional misconduct because of his repeated unsatisfactory conduct – where the Queensland Civil and Administrative Tribunal ordered that the applicant’s licence as a building certifier under the Building Act 1975 (Qld) be cancelled – where the Tribunal ordered that the applicant never be re-licensed and imposed a pecuniary penalty – where the applicant appealed against the decision that he never be re-licensed and challenged the pecuniary penalty – where the Appeal Tribunal affirmed the decision but vacated the pecuniary penalty order – where the applicant applied to the Court of Appeal challenging the decision to affirm the licensing prohibition – where the respondent applied for leave to cross-appeal against the Appeal Tribunal’s decision to vacate the pecuniary penalty order – whether a prohibition on re-licensing for a specified period of time sufficiently and appropriately…

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: [2017] QCA 4
Decision Date: 3 February 2017

CaseChat Overview and Summary

Suresh Chandra appealed against a decision by the Queensland Civil and Administrative Tribunal (QCAT) that prohibited him from being re-licensed as a building certifier in Queensland. Chandra's licence had been cancelled by QCAT due to his repeated unsatisfactory conduct and professional misconduct. The QCAT Appeal Tribunal upheld the decision but vacated a pecuniary penalty imposed on Chandra. Chandra sought leave to appeal against the prohibition on being re-licensed, while the Queensland Building and Construction Commission applied for leave to cross-appeal against the Appeal Tribunal's decision to vacate the penalty. The court had to determine whether the prohibition on re-licensing for a specified period adequately protected the public, whether it was appropriate for the Appeal Tribunal to vacate the penalty, and whether the appeals should be allowed.

The court considered whether the prohibition on re-licensing was an appropriate response to the risk of future misconduct by Chandra. It found that the prohibition was not sufficiently tailored to the risk of future misconduct, as it was indefinite and did not consider the circumstances leading to Chandra's conduct or his efforts to rectify the situation. The court held that a time-limited prohibition would have been more appropriate. Regarding the penalty, the court found that it was open to the Appeal Tribunal to set aside the penalty as it was disproportionate to the misconduct. However, the court held that the Appeal Tribunal did not adequately consider the relevant factors in making its decision.

The court allowed Chandra's appeal, setting aside the indefinite prohibition on re-licensing and ordering instead that he could not apply for re-licensing before 21 November 2018. The court also allowed the Building and Construction Commission's cross-appeal, setting aside the Appeal Tribunal's decision to vacate the penalty and ordering Chandra to pay the Commission's costs. The court granted leave to both parties to appeal, with Chandra to pay the costs of the Commission's application for leave to appeal and the cross-appeal. The Commission's application to adduce further evidence was refused.

Orders

Orders of the court

1. In relation to the application for leave to appeal by Suresh Chandra:

a. Grant leave to appeal.

b. Allow the appeal.

c. Set aside so much of Order No 1 made on 22 February 2016 by the Appeal Tribunal of the Queensland Civil and Administrative Tribunal as confirmed Order No 1 made on 22 November 2013 by the Queensland Civil and Administrative Tribunal.

d. Order No 1 made on 22 November 2013 by the Queensland Civil and Administrative Tribunal is set aside and it is ordered instead that Suresh Chandra is not permitted to apply to be licensed or re-licensed by Queensland Building and Construction Commission before 21 November 2018.

e. Order that the Queensland Building and Construction Commission pay the applicant’s costs of the application for leave to appeal and the appeal.

2. In relation to the application for leave to appeal by the Queensland Building and Construction Commission:

a. Grant leave to appeal.

b. Allow the appeal.

c. Set aside Order No 2 made on 22 February 2016 in the Queensland Civil and Administrative Tribunal Appeal Tribunal.

d. Order Suresh Chandra pay the costs of the application for leave to appeal and the cross-appeal by the Queensland Building and Construction Commission.

e. Refuse the application by the Queensland Building and Construction Commission to adduce evidence in its application.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Chandra v Queensland Building and Construction Commission [2017] QCA 4
PARTIES:	SURESH CHANDRA (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
FILE NO:	Appeal No 2885 of 2016 QCATA No 58 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane – Unreported, 22 February 2016
DELIVERED ON:	3 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2016
JUDGES:	Margaret McMurdo P and Fraser JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. In relation to the application for leave to appeal by Suresh Chandra: a. Grant leave to appeal. b. Allow the appeal. c. Set aside so much of Order No 1 made on 22 February 2016 by the Appeal Tribunal of the Queensland Civil and Administrative Tribunal as confirmed Order No 1 made on 22 November 2013 by the Queensland Civil and Administrative Tribunal. d. Order No 1 made on 22 November 2013 by the Queensland Civil and Administrative Tribunal is set aside and it is ordered instead that Suresh Chandra is not permitted to apply to be licensed or re-licensed by Queensland Building and Construction Commission before 21 November 2018. e. Order that the Queensland Building and Construction Commission pay the applicant’s costs of the application for leave to appeal and the appeal. 2. In relation to the application for leave to appeal by the Queensland Building and Construction Commission: a. Grant leave to appeal. b. Allow the appeal. c. Set aside Order No 2 made on 22 February 2016 in the Queensland Civil and Administrative Tribunal Appeal Tribunal. d. Order Suresh Chandra pay the costs of the application for leave to appeal and the cross-appeal by the Queensland Building and Construction Commission. e. Refuse the application by the Queensland Building and Construction Commission to adduce evidence in its application.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent had previously made findings of unsatisfactory conduct against the applicant – where the respondent determined that the applicant had also engaged in professional misconduct because of his repeated unsatisfactory conduct – where the Queensland Civil and Administrative Tribunal ordered that the applicant’s licence as a building certifier under the Building Act 1975 (Qld) be cancelled – where the Tribunal ordered that the applicant never be re-licensed and imposed a pecuniary penalty – where the applicant appealed against the decision that he never be re-licensed and challenged the pecuniary penalty – where the Appeal Tribunal affirmed the decision but vacated the pecuniary penalty order – where the applicant applied to the Court of Appeal challenging the decision to affirm the licensing prohibition – where the respondent applied for leave to cross-appeal against the Appeal Tribunal’s decision to vacate the pecuniary penalty order – whether a prohibition on re-licensing for a specified period of time sufficiently and appropriately…