D'Arro v Queensland Building and Construction Commission - [2016] QCATA 76

CITATION:

D’Arro v Queensland Building and Construction Commission [2016] QCATA 76

PARTIES:	Orazio Salvatore D’Arro (Applicant/Appellant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

APL185-15

MATTER TYPE:

Appeals

HEARING DATE:

15 February 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan
Member Browne

DELIVERED ON:

20 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Appeal on Grounds 1 and 2 is allowed and the decision of the Tribunal made on 30 March 2015 is set aside.

2. The following applications to review are to be returned to the Tribunal for reconsideration according to law and the findings disclosed in these reasons for judgment:

(a) The original decision made on 3 July 2009 that Orazio Salvatore D’Arro is an excluded individual by reason of the appointment of a liquidator to Innovare Developments Pty Ltd on 22 May 2009; and

(b) The decision to refuse to categorise Orazio Salvatore D’Arro as a permitted individual made on 2 October 2012.

3. Any application for leave to rely on additional evidence at the fresh hearing of the application referred to in paragraph 2(a) of this order, must be filed in the Appeal Tribunal and given to the other party by:

4:00 pm on 7 June 2016.

4. Any written submissions in response to any application to rely on additional evidence at the fresh hearing must be filed in the Appeal Tribunal and given to the other party by:

4:00 pm on 28 June 2016.

5. Unless otherwise ordered by the Appeal Tribunal and in the absence of a request for an oral hearing, any application for leave to rely on additional evidence at the fresh hearing of the application referred to in paragraph 2(a) of this order will be determined by the Appeal Tribunal on the papers and without an oral hearing on a date not before 28 June 2016.

CATCHWORDS:

APPEALS – OCCUPATIONAL REGULATION – EXCLUDED INDIVIDUAL – PERMITTED INDIVIDUAL – RETROSPECTIVITY OF LEGISLATIVE AMENDMENTS – where Tribunal considered on review two decisions made by the QBCC – where Tribunal found applicant to be an excluded individual – whether the Tribunal properly considered ameliorative effect of s 56AC(6) – whether the Tribunal should have applied legislative amendments to the Queensland Building and Construction Commission Act 1991 (Qld) effective 10 November 2014 – where Tribunal confirmed decision to refuse to categorise applicant as permitted individual – where Tribunal was not satisfied applicant took all reasonable steps to avoid the relevant bankruptcy event – whether Tribunal properly exercised discretion under s 56AD

Acts Interpretation Act 1954 (Qld) ss 20, 32C
Legislative Standards Act 1992 (Qld) s 4
Professional Engineers and Other Legislation Amendment Act 2014 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld) ss 3, 56AC, 56AD, 58
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19-20, 146

Attudawage v Medical Board of Australia (No 3) [2011] QCAT 606; cited
Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Limited [1998] QCA 430; cited
D’Arro v Queensland Building and Construction Commission

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: [2016] QCATA 76
Decision Date: 20 May 2016

CaseChat Overview and Summary

In the case of D'Arro v Queensland Building and Construction Commission, the applicant, Orazio Salvatore D’Arro, sought review of decisions made by the Queensland Building and Construction Commission (QBCC) regarding his status as an excluded or permitted individual under the Queensland Building and Construction Commission Act 1991 (Qld). The dispute centred on whether the Administrative Appeals Tribunal (Tribunal) correctly interpreted and applied legislative amendments that came into effect on 10 November 2014 when assessing D’Arro's eligibility for categorisation as a permitted individual.

The primary legal issues before the court involved the retrospective application of legislative amendments and the Tribunal's consideration of D’Arro’s compliance with the requirements to avoid the relevant bankruptcy event. Specifically, the court needed to determine if the Tribunal properly accounted for the ameliorative effect of section 56AC(6) and whether it should have applied the legislative amendments retroactively. Additionally, the court examined whether the Tribunal correctly exercised its discretion under section 56AD when it decided that D’Arro had not taken all reasonable steps to avoid the bankruptcy event.

The court found that the Tribunal did not properly consider the ameliorative effect of section 56AC(6) and failed to apply the legislative amendments retroactively where appropriate. The court held that the Tribunal's decision to refuse to categorise D’Arro as a permitted individual was flawed because it did not take into account the legislative changes. Consequently, the appeal on the specified grounds was allowed, and the Tribunal's decision was set aside. The court ordered that the applications for review be returned to the Tribunal for reconsideration in light of the court's findings. The court also set specific timelines for the submission of additional evidence and related submissions in connection with the reconsideration process.

Orders

Orders of the court

1. Appeal on Grounds 1 and 2 is allowed and the decision of the Tribunal made on 30 March 2015 is set aside.

2. The following applications to review are to be returned to the Tribunal for reconsideration according to law and the findings disclosed in these reasons for judgment:

(b) The decision to refuse to categorise Orazio Salvatore D’Arro as a permitted individual made on 2 October 2012.

4:00 pm on 7 June 2016.

4. Any written submissions in response to any application to rely on additional evidence at the fresh hearing must be filed in the Appeal Tribunal and given to the other party by:

4:00 pm on 28 June 2016.

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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