Ericson v Queensland Building Services Authority - [2012] QCAT 206

CITATION:

Ericson v Queensland Building Services Authority [2012] QCAT 206

PARTIES:	Ian James Ericson (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR378-10

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Kenneth Barlow SC, Member

DELIVERED ON:

22 May 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the respondent to cancel the applicant’s licence be set aside.

2. In substitution for that decision, the suspension of the applicant’s licence be terminated.

3. It be a condition of the applicant’s licence, for a period of 15 months from the date of this decision, that he provide to the QBSA an independent review report in accordance with the Financial Requirements for Licensing:

a) by no later than 31 July 2012, in respect of the period from now to 30 June 2012;

b) by no later than 30 October 2012, in respect of the 12 month period and the 3 month period ending on 30 September 2012;

c) by no later than 14 February 2013, in respect of the 12 month period and the 3 month period ending on 31 December 2012;

d) by no later than 30 April 2013, in respect of the 12 month period and the 3 month period ending on 31 March 2013; and

e) by no later than 31 July 2013, in respect of the 12 month period ending on 30 June 2013.

CATCHWORDS:

Building licence – review of cancellation – non-compliance with Financial Requirements for Licensing

Queensland Building Services Authority Act1991, ss 29, 35, 48

APPEARANCES and REPRESENTATION (if any):

The proceeding was determined on the papers under s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Introduction

Until 11 October 2010 the Applicant, Mr Ericson, held a contractor’s licence to carry out building work, particularly concreting. The licence was issued to him by the respondent (QBSA), pursuant to the Queensland Building Services Authority Act1991 (QBSA Act).
On 25 June 2009, QBSA suspended Mr Ericson’s licence. The ground of suspension was his alleged failure to satisfy the financial requirements under the QBSA’s policy known as “Financial Requirements for Licensing”.
On 11 October 2010, QBSA cancelled Mr Ericson’s licence.
In this application, Mr Ericson seeks a review of the decision to cancel his licence. The application is made pursuant to s 86(1)(c) and s 87 of the QBSA Act, which give this Tribunal the jurisdiction to review a decision to suspend or cancel a licence. Under ss 19 and 20 of the Queensland Civil and Administrative Tribunal Act2009 (QCAT Act), the purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide the review by way of a fresh hearing on the merits.

Statutory background

Section 35 of the QBSA Act relevantly provides that a contractor’s licence is subject to the condition that the licensee’s financial circumstances must at all times satisfy the relevant financial requirements stated in the policies…

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: [2012] QCAT 206
Decision Date: 22 May 2012

CaseChat Overview and Summary

The matter of Ericson v Queensland Building Services Authority involved the applicant, a building contractor, challenging the decision of the respondent, the Queensland Building Services Authority, to cancel his building licence. The dispute centred around the respondent's assertion that the applicant had failed to comply with the Financial Requirements for Licensing, specifically by not providing the required independent review reports within the stipulated timeframes. The case was heard and determined in the Queensland Supreme Court.

The primary legal issues before the court were whether the respondent was justified in cancelling the applicant’s licence for non-compliance with the Financial Requirements for Licensing and whether the applicant's failure to meet the reporting deadlines warranted such a severe penalty. The court was required to consider the statutory provisions governing the issuance and cancellation of building licences, the specific requirements for financial reporting, and the principles of administrative law that govern the exercise of discretionary powers by statutory authorities.

The court found that while the applicant had indeed failed to meet the deadlines for submitting the independent review reports, the respondent's decision to cancel the licence was not proportionate to the breach. The court held that the statutory provisions did not explicitly mandate licence cancellation for non-compliance with the reporting requirements. Moreover, the respondent had not adequately considered the principles of natural justice and proportionality in reaching its decision. Consequently, the court set aside the respondent's decision to cancel the licence and ordered that the suspension of the licence be terminated instead. The court also imposed conditions on the applicant’s licence, requiring the submission of independent review reports within specific timeframes over the following 15 months.

The court's orders included setting aside the decision to cancel the applicant’s building licence, terminating the suspension of the licence, and imposing conditions for the submission of independent review reports within specified deadlines over the next 15 months. These conditions were designed to ensure compliance with the Financial Requirements for Licensing while providing the applicant an opportunity to rectify the non-compliance without the extreme penalty of licence cancellation.

Orders

Orders of the court

1. The decision of the respondent to cancel the applicant’s licence be set aside.

2. In substitution for that decision, the suspension of the applicant’s licence be terminated.

a) by no later than 31 July 2012, in respect of the period from now to 30 June 2012;

b) by no later than 30 October 2012, in respect of the 12 month period and the 3 month period ending on 30 September 2012;

c) by no later than 14 February 2013, in respect of the 12 month period and the 3 month period ending on 31 December 2012;

d) by no later than 30 April 2013, in respect of the 12 month period and the 3 month period ending on 31 March 2013; and

e) by no later than 31 July 2013, in respect of the 12 month period ending on 30 June 2013.

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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