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Ericson v Queensland Building Services Authority

Ericson v Queensland Building Services Authority

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Case Copied 20 December 2013 19 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Ericson v Queensland Building Services Authority [2013] QCA 391

PARTIES:

IAN JAMES ERICSON
(applicant)
v
QUEENSLAND BUILDING SERVICES AUTHORITY
(respondent)

FILE NO/S:

Appeal No 6138 of 2013
QCAT No 180 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2013

JUDGES:

Holmes and Fraser JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed and the matter is remitted to the appeal tribunal of the Queensland Civil and Administrative Tribunal for reconsideration in accordance with these reasons.

3.   The respondent pay the applicant’s filing fees on this application.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent suspended and then cancelled the applicant’s contractor’s licence on the basis that he had contravened one of its conditions by failing to satisfy the relevant financial requirements – where on application for review of the cancellation decision, both that decision and the decision to suspend the licence were set aside by a member of the Queensland Civil and Administrative Tribunal (QCAT) – where the appeal tribunal of QCAT set aside the decision of the member and confirmed the respondent’s decision to cancel the licence – where the applicant applies for leave to appeal from the appeal tribunal’s decision – where the appeal tribunal characterised the appeal to it as one on questions of law concerning the member’s jurisdiction to set aside the suspension and his construction of the financial requirements – where, notwithstanding that it was an appeal on questions of law, the appeal tribunal received fresh evidence – where the appeal tribunal’s powers on an appeal on questions of law were those conferred by s 146 of the Queensland Civil and Administrative Tribunal Act – where, having decided the questions of law, the appeal tribunal did not remit the matter to the member for a fresh exercise of discretion in accordance with its decision – where the appeal tribunal did not purport to conduct any rehearing under s 147 – whether the appeal tribunal misapprehended the nature of its jurisdiction

Building and Construction Industry Payments Act 2004 (Qld), s 29
Queensland Building Services Authority Act 1991 (Qld), s 35, s 48
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 136, s 137, s 138, s 142, s 146, s 147, s 150

Queensland Building Services Authority v Flea’s Concreting [2013] QCATA 180, related

COUNSEL:

The applicant appeared on his own behalf
G I Thomson for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Queensland Building Services Authority Legal Division for the respondent

HOLMES JA: The applicant seeks leave to appeal against a decision of the appeal tribunal of the…

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: [2013] QCA 391
Decision Date: 20 December 2013

CaseChat Overview and Summary

The case of Ericson v Queensland Building Services Authority involves a dispute between a contractor, Ericson, and the Queensland Building Services Authority (QBSA). The contractor's licence was initially suspended and subsequently cancelled by the QBSA, based on the contractor's failure to meet financial requirements. Ericson applied for review of the cancellation decision, which led to a member of the Queensland Civil and Administrative Tribunal (QCAT) setting aside both the cancellation and suspension decisions. This decision was subsequently appealed by the QBSA, and the QCAT appeal tribunal overturned the member's decision, confirming the cancellation of Ericson's licence. Ericson then applied for leave to appeal the appeal tribunal's decision, arguing that the tribunal misapprehended its jurisdiction and incorrectly received fresh evidence.

The central legal issue in this case was whether the QCAT appeal tribunal correctly exercised its jurisdiction in setting aside the decision of the QCAT member and whether it misapprehended its jurisdiction by receiving fresh evidence and not remitting the matter to the member for reconsideration. The appeal tribunal characterised the appeal as one on questions of law concerning the member's jurisdiction and interpretation of the financial requirements. The appeal tribunal's jurisdiction in such appeals is governed by section 146 of the Queensland Civil and Administrative Tribunal Act. Despite the appeal being on questions of law, the tribunal received fresh evidence, which is not permitted under section 146. Moreover, the tribunal did not remit the matter back to the member for reconsideration according to its decision, nor did it conduct a rehearing under section 147.

The court found that the appeal tribunal misapprehended its jurisdiction in several respects. Firstly, it incorrectly received fresh evidence, which is not permissible under section 146. Secondly, the tribunal failed to remit the matter to the QCAT member for reconsideration in light of its decision on the questions of law. The court determined that these errors meant the appeal tribunal did not properly exercise its jurisdiction. Consequently, the court granted Ericson's application for leave to appeal and allowed the appeal, remitting the matter back to the QCAT appeal tribunal for reconsideration in accordance with the court's reasons. Additionally, the court ordered the QBSA to pay Ericson's filing fees for this application.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed and the matter is remitted to the appeal tribunal of the Queensland Civil and Administrative Tribunal for reconsideration in accordance with these reasons.

3. The respondent pay the applicant’s filing fees on this 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:	Ericson v Queensland Building Services Authority [2013] QCA 391
PARTIES:	IAN JAMES ERICSON (applicant) v QUEENSLAND BUILDING SERVICES AUTHORITY (respondent)
FILE NO/S:	Appeal No 6138 of 2013 QCAT No 180 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal
DELIVERED ON:	20 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	13 November 2013
JUDGES:	Holmes and Fraser JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is granted. 2. The appeal is allowed and the matter is remitted to the appeal tribunal of the Queensland Civil and Administrative Tribunal for reconsideration in accordance with these reasons. 3. The respondent pay the applicant’s filing fees on this application.
CATCHWORDS:	PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent suspended and then cancelled the applicant’s contractor’s licence on the basis that he had contravened one of its conditions by failing to satisfy the relevant financial requirements – where on application for review of the cancellation decision, both that decision and the decision to suspend the licence were set aside by a member of the Queensland Civil and Administrative Tribunal (QCAT) – where the appeal tribunal of QCAT set aside the decision of the member and confirmed the respondent’s decision to cancel the licence – where the applicant applies for leave to appeal from the appeal tribunal’s decision – where the appeal tribunal characterised the appeal to it as one on questions of law concerning the member’s jurisdiction to set aside the suspension and his construction of the financial requirements – where, notwithstanding that it was an appeal on questions of law, the appeal tribunal received fresh evidence – where the appeal tribunal’s powers on an appeal on questions of law were those conferred by s 146 of the Queensland Civil and Administrative Tribunal Act – where, having decided the questions of law, the appeal tribunal did not remit the matter to the member for a fresh exercise of discretion in accordance with its decision – where the appeal tribunal did not purport to conduct any rehearing under s 147 – whether the appeal tribunal misapprehended the nature of its jurisdiction Building and Construction Industry Payments Act 2004 (Qld), s 29 Queensland Building Services Authority Act 1991 (Qld), s 35, s 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 136, s 137, s 138, s 142, s 146, s 147, s 150 Queensland Building Services Authority v Flea’s Concreting [2013] QCATA 180, related
COUNSEL:	The applicant appeared on his own behalf G I Thomson for the respondent
SOLICITORS:	The applicant appeared on his own behalf Queensland Building Services Authority Legal Division for the respondent