Gagliano & Anor v Queensland Building and Construction Commission
[2014] QCAT 504
•16 September 2014
| CITATION: | Gagliano & Anor v Queensland Building and Construction Commission [2014] QCAT 504 |
| PARTIES: | Ralph Peter Gagliano (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR042-14; OCR149-14 |
| PARTIES: | Joseph Patrick Cummings (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR041-14; OCR151-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 18 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howard |
| DELIVERED ON: | 16 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE IN EACH PROCEEDING: | 1. The strike out application is dismissed. 2. The application is listed for a directions hearing at Brisbane on 30 October 2014 at 2.30pm. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – EXCLUDED INDIVIDUAL – STRIKE OUT APPLICATION – where review applicant does not hold a licence issued by the Commission – where the review applicant was issued with a decision/notice that he is an excluded individual pursuant to s 56AC – whether notice/decision is a decision – whether the decision was made under s 56AC – whether the decision is reviewable OCCUPATIONAL REGULATION – EXCLUDED INDIVIDUAL – STATUTORY CONSTRUCTION – operation of Part 3A – whether s 86(1)(k)(1) intended to refer to s 56AG and s 56AF Acts Interpretation Act 1954 (Qld), s 14A Administrative Appeals Tribunal Act 1975 (Cth), s 44 Armstrong v Queensland Building and Construction Commission [2014] QCAT 145 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr M Long of Counsel, instructed by TressCox Lawyers appeared for Mr Gagliano and Mr Cummings |
| RESPONDENT: | Ms R De Luchi, Solicitor of Robertson Locke Lawyers represented the Queensland Building and Construction Commission |
REASONS FOR DECISION
Following the liquidation of St Hilliers Construction Pty Ltd (‘Construction’), St Hilliers Ararat Pty Ltd (‘Ararat’) and St Hilliers Pty Ltd (‘SHPL’) the Queensland Building and Construction Commission (‘QBCC’) advised both Mr Ralph Peter Gagliano and Mr Joseph Patrick Cummings that they were excluded individuals due to the appointment of administrators to Construction and SHPL (the first and third events respectively) and the liquidators to Ararat (the second event). The basis for this was that in each case they were the directors of the companies within the 12 month period prior to the liquidation and administrations.
Neither Mr Gagliano nor Mr Cummings has held a licence issued by the QBCC pursuant to the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’). Mr Gagliano and Mr Cummings have applied to the Tribunal for review of the decisions that they are excluded individuals for the first, second and third events.
QBCC has applied to strike out their review applications. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that an application may be struck out, inter alia, if it is misconceived. QBCC submits in essence that Mr Gagliano and Mr Cummings have no right of review, and that their applications are misconceived. The strike out applications are the only applications before me for determination.
The strike out applications, as filed, assert in effect that decisions were made that Mr Gagliano and Mr Cummings are excluded individuals pursuant to s 56AC, not under s56AF or 56AG. Therefore, it says, under s 86(1)(k), the decisions are not reviewable.
QBCC submitted at hearing that s 56AC is a definition section only, and that the decision by the QBCC that a licensee is an excluded individual is given by notice pursuant to s 56AF(2). However, it argues, s 56AF only applies where the QBCC considers a person who is a licensee is an excluded individual. It submitted that because neither Mr Gagliano nor Mr Cummings is a licensee, neither is entitled to review the decision about their status as an excluded individual because, under s 86(1)(k) of the QBCC Act, neither is entitled to do so.
Belatedly, in reply to oral submissions of Mr Gagliano and Mr Cummings, the QBCC appears to assert that no decision has been made that they were excluded individuals, rather that the classification was conferred by operation of s 56AC.
There are also tribunal review applications concerning a Mr Casey who was a director of the three companies at the relevant times, but who was a licensee under the QBCC Act. The proceedings for Mr Casey were listed concurrently before me, with the strike out applications relating to Mr Gagliano and Mr Cummings, but for directions only.
The relevant provisions of the QBCC Act
It is useful to set out s 56AC and s 56AF in full:
56AC Excluded individuals and excluded companies
(1)This section applies to an individual if—
(a)after the commencement of this section, the individual takes advantage of the laws of bankruptcy or becomes bankrupt (relevant bankruptcy event); and
(b)5 years have not elapsed since the relevant bankruptcy event happened.
(2)This section also applies to an individual if—
(a)after the commencement of this section, a company, for the benefit of a creditor—
(i)has a provisional liquidator, liquidator, administrator or controller appointed; or
(ii)is wound up, or is ordered to be wound up; and
(b)5 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (relevant company event) happened; and
(c)the individual—
(i)was, when the relevant company event happened, a director or secretary of, or an influential person for, the company; or
(ii)was, at any time after the commencement of this section and within the period of 1 year immediately before the relevant company event happened, a director or secretary of, or an influential person for, the company.
(3)If this section applies to an individual because of subsection (1), the individual is an excluded individual for the relevant bankruptcy event.
(4)If this section applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event.
(5)An excluded individual for a relevant bankruptcy event (the first event) does not also become an excluded individual for another relevant bankruptcy event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the individual.
(6)An excluded individual for a relevant company event (the first event) does not also become an excluded individual for another relevant company event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the company.
(7)A company is an excluded company if an individual who is a director or secretary of, or an influential person for, the company is an excluded individual for a relevant event.
56AF Procedure if licensee is excluded individual
(1)This section applies if the commission considers that an individual who is a licensee[1] is an excluded individual for a relevant event.
[1]Emphasis added.
(2)The commission must give the individual a written notice identifying the relevant event and stating the following—
(a)why the commission considers the individual is an excluded individual for the relevant event;
(b)the individual may apply to the commission to be categorised as a permitted individual for the relevant event if the individual has not already done so;
(c)the circumstances, stated in subsection (3), in which the commission must cancel the individual's licence.
(3)The commission must cancel the individual's licence by written notice given to the individual if—
(a)the individual has not already applied to be categorised as a permitted individual for the relevant event, and the individual does not apply for the categorisation within 28 days after the commission gives the individual the written notice under subsection (2); or
(b)the individual has already applied to be categorised as a permitted individual for the relevant event, or the individual applies for the categorisation within the 28 days mentioned in paragraph (a), but—
(i)the commission refuses the application; and
(ii)either of the following applies—
(A) the period for applying for a review of the decision to refuse has ended and no application for review has been made;
(B) an application for review has been made and the commission's decision is confirmed, or the application is not proceeded with.
(4)Section 49 does not apply to a cancellation under subsection (3).
Accordingly, under s 56AF, if a person is a licensee and an excluded individual, the person must be advised of their status as an excluded person and their license must be cancelled unless the person successfully applies for permitted individual status under the QBCC Act. Section 56AG makes provision for notification to licensees that are excluded companies. In particular, they must be notified of the particulars of the relevant (excluded) individual and the relevant event.[2] Within 28 days, the relevant individual must cease its association with the company or apply for permitted individual status.[3] If this does not occur or permitted individual status is not obtained, the licence must be cancelled.[4]
[2]QBCC Act s 56AG(2)(a) and(b). See also s 56AC(7).
[3]QBCC Act s 56AG(2)(c).
[4]QBCC Act s 56AG(3)(4) & (5).
Section 56AD provides for a person to apply for categorisation as a permitted individual if they become aware that the QBCC regards them as an excluded individual for the relevant event (whether or not QBCC advised them).[5] A person may only be so categorised if the individual took all reasonable steps to avoid the coming into existence of the circumstances which led to the happening of the relevant event.[6] If a person is categorised as a permitted individual for a relevant event, the individual is taken not to be an excluded individual for a relevant event.[7] While the test for determining whether an individual may be categorised as a permitted individual has been interpreted as containing a subjective element,[8] it provides no opportunity to consider whether the person is an excluded individual, and whether, s 56AC(6) applies in respect of multiple events flowing from one set of circumstances.
[5]QBCC Act s 56AD(1).
[6]QBCC Act s 56AD(8), also see (8A) and (8B).
[7]QBCC Act s 56AD(8).
[8]Younan v Queensland Building Services Authority [2010] QDC 158.
Part 3B provides for permanently excluded individuals. A permanently excluded individual[9] is a person who has been twice excluded for a relevant event;[10] who for each relevant event has been given written notice by the QBCC of the excluded individual status and its reasons;[11] and that the individual may apply to be a permitted individual within 28 days of the notice,[12] but who has not been categorised as a permitted individual (either because no application was made or because the application was refused).[13] The consequences are serious. The QBCC must not grant a license to a person who is a permanently excluded individual[14] and a permanently excluded individual is deemed not to be a fit and proper person for licensing purposes.
[9]QBCC Act s 58.
[10]QBCC Act s 58(1)(a).
[11]QBCC Act s 58(1)(b)(i) and (ii).
[12]QBCC Act s 58(1)(iii).
[13]QBCC Act s 58(1)(c).
[14]QBCC Act s 59.
Section 86(1)(k)(i) of the QBCC Act then relevantly provides that the Tribunal may review a decision ‘under s 56AF or 56AG’ that a person is an excluded individual or excluded company. Separate provision is made for review of a decision to refuse to categorise the individual as a permitted individual: s 86(1)(j).
It is common ground that a person who is a licensee is entitled to review a decision made that he or she is an excluded individual (which necessarily includes whether s 56AC(6) applies in the circumstances) and a decision to refuse to categorise the individual as a permitted individual.
The issues raised on the strike out applications
The QBCC submits that the decision of the Appeal Tribunal in Queensland Building Services Authority v Plotkin[15] is on point and should be followed by the Tribunal. In essence, the Appeal Tribunal considered that Mr Plotkin, who was also a non-licensee, had no right of review under s 86(1)(k) in respect of a decision that he was an excluded individual.
[15][2013] QCATA 219.
Despite asserting in its strike-out applications that the decisions were made under s 56AC, QBCC now says that s 56AC is a definition section only. It submits that s 56AF(2) does not apply because Mr Gagliano and Mr Cummings are not licensees. No alternative basis for giving the notices to them of their status of excluded individual is offered. Both assertions are incongruent to some extent with Plotkin, which QBCC urges me to apply.
In Plotkin, the Appeal Tribunal, suggests that s 56AC, while not containing express provision for QBCC to make a decision about whether a person is an excluded individual, ‘simply confers’ that status in the circumstances prescribed,[16] notice of which must then be given to licensees under s 56AF or s 56AG.[17] These are apparently obiter comments (assuming for the moment that the doctrine of precedent applies to them) given that the Appeal Tribunal ultimately forms its conclusions about construction of the legislation based on other considerations, relating to the ability of a person in Mr Plotkin’s position to seek permitted individual status.[18] On that view, a decision is never made: status is automatically conferred.
[16][2013] QCATA 219, [18].
[17][2013] QCATA 219, [19].
[18][2013] QCATA 219, [29] – [32].
It appears to me that the concept of simple conferral is problematic. Conclusions must be drawn about whether the status applies. In some cases, this will be as straightforward (although still not without room for error) as considering the date at which liquidation or administration occurred and a person’s status as a director at that time or within the previous 12 months. However, in other circumstances, a view will need to be formed (based on all of the relevant circumstances) about whether a person is an ‘influential person’ for the company. The latter will often require a significantly complex assessment.
QBCC submits that excluded individual status does not affect a non-licensee, unless the person applies for a licence. Somewhat unsatisfactorily given the construction upon which it relies, the QBCC’s representative was unable to say why non-licensees are issued with notices, but suggested that if a person (in the position of Mr Gagliano or Mr Cummings) applied for a license, QBCC may not be able to refuse to allow the person to review the excluded individual status. How this assertion is to be reconciled with the requirements that a review be filed within 28 days after the day a person is notified of a decision under the QCAT Act[19] or that steps to be taken to be categorised as a permitted individual within 28 days after receiving a notice under s 56AF, s 56AG or s 58, is not apparent. Further, how is simple conferral to be reconciled with the right provided by s 86(1)(k)(i), to review a decision under s 56AF or s 56AG that a person is an excluded individual?
[19]QCAT Act s 33(3) and (4).
QBCC appeared to concede that only persons who were involved in the building industry would receive notices of excluded individual status, notwithstanding that s 56AC is broadly cast so that excluded individual status could be attributed to an individual irrespective of any association of the relevant event with the building industry.
Mr Gagliano and Mr Cummings argue that the Plotkin decision is not binding on the Tribunal as the doctrine of precedent does not apply to decisions of tribunals. Therefore, they submit tribunals are not bound to follow previous Tribunal decisions, including those of the Appeal Tribunal. They argue this is so because the Tribunal was exercising an administrative function, rather than making a judicial determination.
In any event, they argue that even if Plotkin was generally binding on the Tribunal, it is distinguishable because it does not involve like facts.[20] They argue that it brings into play sections which were not considered by the Appeal Tribunal in the Plotkin decision in respect of permanently excluded individuals. They argue that because the decision of Plotkin was made before the decision in Dinsey v Queensland Building Services Authority,[21] (and the issue did not arise in Plotkin), it did not contemplate the significant detriment that arises when s 56AC(6) is not applied where there are multiple company events (and an individual is considered a permanently excluded individual for their lifetime). Further, they argue that circumstances are different because Mr Plotkin sought to argue that he was not an influential person which is not the case for Mr Gagliano and Mr Cummings.
[20]Reliance is placed by them on Paisner v Goodrich [1955] 2QB 353 at 358 (Denning LJ).
[21][2013] QCATA 225 (Judicial Member Thomas).
Essentially, they argue that if the relevant sections of the QBCC Act in Part 3A and s 86(1)(k)(i) are properly construed, that Mr Gagliano and Mr Cummings have a right to review the decisions in the Tribunal under the QBCC Act.
I have the benefit of written submissions as well as oral submissions in respect of the matters concerned.
There are essentially three issues which I must address in determining the strike out applications. These issues are:
a) Does the doctrine of precedent apply to Tribunal decisions in administrative review proceedings?
b) Is Plotkin on point?
c) What is the proper construction of Parts 3A and 3B and s 86(1)(k)?
Does the doctrine of precedent apply in administrative review proceedings?
Both parties submit that the doctrine of precedent does not apply to Tribunal decisions. They both submit however that previous decisions are nevertheless highly persuasive because consistency is desirable.
The QBCC did not provide any detailed submissions regarding its submission, or refer me to any relevant authorities in support of these views. The QBCC argues that the decision in Plotkin is on point.
In submitting that the doctrine of precedent does not apply, Mr Gagliano and Mr Cummings refer me to decisions with respect to the Administrative Appeals Tribunal (AAT).[22] Courts have consistently held that the Administrative Appeals Tribunal, which performs merits review of Commonwealth government decisions, exercises administrative power only in making decisions. However, because of constraints in the Commonwealth Constitution relating to the strict separation of powers, the AAT cannot be invested with judicial power. Only (Commonwealth) courts can exercise judicial power.
[22]Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 647 per Deane J; Re Littlejohn and Secretary, Department of Social Security (1989) 17 ALD 482 at 486 (Deputy President Thomson); Re Ganchov and Comcare (1990) 19 ALD 541 at 542-3 (Deputy President Todd).
The same constitutional constraints do not apply in Queensland, and did not apply in respect of the establishment of the Queensland Civil and Administrative Tribunal which has civil and administrative power. The Queensland Court of Appeal in Owen v Menzies[23] determined that QCAT is a court of a State within the purview of Chapter III of the Commonwealth Constitution. As the then Chief Justice observed, State legislatures may confer judicial and non-judicial, administrative functions on State courts as the Queensland Parliament has done in Queensland, and not only in respect of QCAT.[24]
[23]Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170.
[24]Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170 at [53].
If QCAT is a court, then it is reasonable to postulate that the doctrine of precedent may apply, at least when the Tribunal exercises judicial functions. The Court of Appeal was considering a proceeding in the Tribunal’s original jurisdiction, rather than its (administrative) review jurisdiction. In review proceedings, the Tribunal effectively stands in the shoes of the executive government decision-maker whose decision is reviewed. It is not an appeal. QCAT’s function is to make the correct and preferable decision and makes the decision afresh or anew on its merits. This is plainly an administrative function akin to the review function of the AAT.
Synonymously with the AAT’s position, when QCAT exercises administrative functions in its review jurisdiction, the doctrine of precedent may not apply, although previous decisions have persuasive value. That said, in review proceedings, decisions will usually be made by a single Member of the Tribunal. Even if the doctrine of precedent applied generally to them, they would not be binding on other single Members.
That said, as I raised at the hearing, the Appeal Tribunal decision in Plotkin of the then President and Senior Member Stilgoe was made in the Tribunal’s appeals jurisdiction, rather than its review jurisdiction. Whether this affects the question of whether doctrine of precedent applies was the subject of very limited submissions.
I note that Senior Member Oliver in Armstrong v Queensland Building and Construction Commission[25] appears to have considered himself bound by Plotkin, although whether the doctrine of precedent applied was not raised in the proceedings before him.
[25][2014] QCAT 145 at paragraph [9].
Appeal from the AAT is to the Federal Court on a question of law only.[26] The Federal Court may make any order it considers appropriate.[27] However, it may make findings of fact.[28] The doctrine of precedent applies in respect of those appeal decisions which are binding on the AAT.
[26]Administrative Appeals Tribunal Act 1975 (Cth) s 44(1).
[27]Administrative Appeals Tribunal Act 1975 (Cth) s 44(4).
[28]Administrative Appeals Tribunal Act 1975 (Cth) s 44(7).
In QCAT, appeals against final decisions made in the original and review jurisdictions may generally be made at first instance to the Appeals Tribunal, without leave, on a question of law, and with the Tribunal’s leave, on mixed questions of fact and law.[29] Subsequent appeal is generally, with leave, to the Court of Appeal.[30] Does the doctrine of precedent apply to Appeals Tribunal decisions of QCAT?
[29]QCAT Act s 142.
[30]QCAT Act s 149, s 150.
Mr Gagliano and Mr Cummings submit that they are unable to locate any decisions of assistance from the Victorian Civil and Administrative Tribunal or other State tribunal which, like QCAT, has an internal appeal regime in which similar questions may have arisen. They submit that in proceedings of this nature, made in the review jurisdiction, the purpose on appeal is in any event still to make the correct and preferable decision. They argue that if the question becomes whether the QCAT Appeals Tribunal is acting as a Court, there are no authorities.
They submit that in the absence of a body of law suggesting that the decision is binding at first instance, then the general proposition should be adopted, that is, that a tribunal is not bound by the doctrine of precedent when performing an administrative function. They submit then that an Appeal Tribunal decision cannot be said to be binding on me. Nevertheless, they concede that an Appeals Tribunal decision if on point should be considered persuasive, but argue that if it is clearly wrong that it is open to me to depart from it.
Arguably, the QCAT Appeals Tribunal is in a substantially similar position when exercising QCAT’s appeals jurisdiction to the Federal Court vis-á-vis appeals from the AAT. Admittedly, the appeals jurisdiction in QCAT allows appeals from review proceedings, with leave, more broadly than on matters of law alone. However, it is not apparent, nor the subject of detailed submissions, whether the Appeals Tribunal exercises judicial or administrative power in determining an appeal from review proceedings.
These are important and interesting questions. However, I have reached the conclusion that, even if QCAT Appeals Tribunal decisions are subject to the doctrine of precedent and therefore generally binding on me, Plotkin is distinguishable. Therefore, I do not need to decide whether the doctrine of precedent applies.
Is Plotkin on point?
The circumstances in the Plotkin case were different to the current circumstances in several important respects.
Following appointment 12 days earlier, Mr Plotkin was the director of a company which was the sole shareholder in four building companies (which held licenses under the QBCC Act) when those four building companies went into liquidation. Mr Plotkin was not a licensee. The QBSA (now the QBCC) notified him by four separate letters that he was an excluded individual in respect of each of the building company events. He was, it seems, considered an influential person[31] because he was, as director of the sole shareholder in each case, in a position to control or substantially influence the conduct of the companies’ affairs. There were two separate letters to two (other) companies, notifying them that they were excluded companies, because Mr Plotkin was a director of them.
[31]QBCC Act, Schedule 2, ‘influential person’.
Mr Plotkin applied for review of the decisions that he was an excluded individual. The two companies applied to review the decisions that they were excluded companies because Mr Plotkin, a director, was an excluded individual. QBCC successfully applied to have the applications of Mr Plotkin personally struck out. They did not challenge the right of the two companies to review the decisions that they were excluded companies because he was a director. It appears the latter was not challenged because the decisions were considered to be made under s 56AG, and therefore it appears to have been acknowledged that a right of review existed under s 86(1)(k)(i).[32]
[32][2013] QCATA 219, [22] – [24].
The Appeal Tribunal noted an argument that the ‘nonsensical outcome’ may be that the building companies could succeed in their applications for review (if the Tribunal decided Mr Plotkin was not an excluded individual) but that Mr Plotkin had no right to obtain the same outcome on his own behalf. It observed that while it appeared the QBCC Act deprived Mr Plotkin of a right to review, it did ‘not leave him without a remedy,’[33] because s 56AG(2) gave him power to apply, to become a permitted individual as set out in s 56AD. It considered this fitted Mr Plotkin’s circumstances precisely. Therefore, it concluded that the legislature had not overlooked a person in Mr Plotkin’s position. It provided a mechanism for Mr Plotkin to change the effects and outcome of the notice each of the companies received. As discussed earlier, it also considered, albeit in what would strictly be obiter comments, that s 56AC conferred status as an excluded individual and that a decision to attribute that status was not made at any time.
[33][2013] QCATA 219, [30].
Here the circumstances are different. There are no relevant notices under s 56AG to any company, which might provide the window of opportunity to challenge the excluded individual status of Mr Gagliano and Mr Cummings.
Another point of difference is that the operation of Part 3B was not raised in Plotkin. Mr Gagliano and Mr Cummings have received three notifications of their excluded individual status culminating in notices informing both of them that if categorised for the third event they will be permanently excluded individuals. They are advised in the notices for the third event that if they accept they are excluded individuals, they should each consider whether to apply for permitted individual status. If they do not accept they are excluded individuals, they are advised to obtain advice on their right of review now as later attempts to challenge it will likely be strongly opposed by the QBCC.[34] QBCC advises that if application is made to be categorised as a permitted individual, it considers it an acknowledgement that the person accepts they are an excluded individual.
[34]Letters to Mr Gagliano and Mr Cummings dated 16 June 2014 attached to applications OCR149-14 and OCR151-14 respectively.
Notices from the QBCC to Construction and SHPL[35] advise them that they are considered excluded companies following appointments of administrators because Mr Casey is an excluded individual for the event and is a director, secretary or influential person. Mr Casey was notified that he was considered an excluded individual for the third event and advising him that any application for review of his excluded individual status must be made within 28 days, and that if he accepts it, he should consider whether to apply to be a permitted individual.[36]
[35]Exhibit 6.
[36]Exhibit 8.
The Appeal Tribunal decision in Dinsey v Queensland Building Services Authority[37] (which was decided subsequent to Plotkin) regarding the construction of s 56AC(6), concluded that s 56AC can have application where the first event relates to one company and the other event or events relates to a different company or companies. If the reasoning in Dinsey is correct (and if it is binding noting the issues raised earlier), multiple events involving multiple companies may be classified as one event under s 56AC(6). Consequently, multiple events arising out of the one set of circumstances may not lead to permanent exclusion under s 58.
[37][2013] QCATA 225.
If there is only one event, then it may be that Mr Gagliano and Mr Cummings should not be classified as permanently excluded individuals, which they have been advised that they will be under Part 3B of the QBCC Act unless they can obtain permitted individual status.[38]
[38]Letters dated 16 June 2014 from QBCC to Mr Cummings and QBCC to Mr Gagliano attached respectively to OCR151-14 and OCR149-14.
The application of s 56AC(6) does not arise on any application for categorisation as a permitted individual. That determination is concerned with whether the individual took all reasonable steps to avoid the circumstances that resulted in the happening of the relevant event. If there are multiple events arising from the one set of circumstances, when s 56AC(6) is applied, this may result in one excluded individual notification or decision even though there may potentially otherwise have been in excess of 3 relevant events. Then even if the excluded individual is found to have failed to take all such reasonable steps and categorisation as a permitted individual is refused under s 56AD, this will not result in permanent exclusion under s 58.
It is difficult to reconcile the decisions in Plotkin and Dinsey. If the observations in Plotkin are correct, there would no opportunity for persons in the position of Mr Gagliano or Mr Cummings to seek a declaration that multiple events flowed from what is in substance one set of circumstances applying to the companies concerned and that they are therefore excluded individuals in respect of only one set of circumstances.
There are essentially three points of difference between Plotkin and the circumstances before me. Firstly, s 58 and Part 3B were not raised in Plotkin. Secondly here, there is no excluded company notification by which means the excluded person status of Mr Gagliano and Mr Cummings might be challenged by the excluded company, unlike there was in Plotkin. Thirdly, Mr Plotkin sought to challenge his status as an influential person as the basis for his status as an excluded individual.
I conclude that Plotkin is distinguishable.
The proper construction of Part 3A and s 86(1)(k)(i)
General principles of statutory interpretation apply. A purposive construction which will best achieve the purpose of the Act is to be preferred to any other interpretation.[39] The purpose of the QBCC Act is to regulate the building industry including by ensuring maintenance of proper standards in the industry.[40] An Act must be read as a whole. Headings to chapters, parts and divisions and subdivisions of Acts are part of an Act.[41]
[39]Acts Interpretation Act 1954 (Qld) s 14A(1).
[40]QBCC Act s 3.
[41]Acts Interpretation Act 1954 (Qld) s 14.
Part 3 is entitled ‘Licensing’ and is about licensing of those in the building industry. Part 3A is entitled ‘Excluded and permitted individuals and excluded companies.’ Division 1 of Part 3A containing s 56AC is entitled ‘Preliminary’. Division 2 is ‘Categorisation as a permitted individual’. Division 3 containing s 56AF and s 56AG is entitled ‘License exclusion and cancellation’. Part 3B is entitled ‘Permanently excluded individuals.’ Section 86 appears in Part 7, ‘Jurisdiction of tribunal.’
Mr Gagliano and Mr Cummings submit that the QBCC Act is ambiguous. They say that, relevantly, s 86(1)(k) provides for review of ‘a decision under s 56AF or s 56AG’ that a person is an excluded individual or excluded company, yet the power to decide that a person is an excluded individual or excluded company is impliedly conferred by s 56AC (not s 56AF or s 56AG). They argue that it is not, as the QBCC’s written submissions contend, a definition section or simply an automatic classification or conferral of the status.
The Tribunal’s review power is not at large. It has power to review decisions in respect of which it has been conferred jurisdiction to review.[42] Section 86(1)(k)(i) clearly contemplates that a decision is made by the QBCC that a person is an excluded individual or an excluded company. A person may not apply to QCAT for review unless a decision is made, enlivening the power to review. Consistently, as discussed earlier, an element of judgment must be exercised to form a conclusion that person is an excluded individual. Sometimes this assessment will be limited, in other cases, more extensive. Therefore, I am not attracted to the submission that s 56AC automatically confers status as an excluded individual.
[42]QCAT Act s 6(4).
Sections 56AF and s 56AG apply if the QBCC ‘considers’ that an individual who is a licensee is an excluded individual or that a company that is a licensee is an excluded company respectively. Neither contains express power to decide that a person is an excluded individual or excluded company. Consistently, the heading to Division 3 in Part 3A in which they appear is about ‘License exclusion and cancellation,’ rather than excluded status.
I have concluded that implied power to make a decision that an individual is an excluded individual (or an excluded company) resides in s 56AC. I make the observation that in Plotkin, the Appeal Tribunal did not consider whether implied, rather than express power existed. Section 56AC appears in Division 1 of Part 3A about excluded and permitted individuals and excluded companies. Although, unhelpfully, Division 1 is entitled only ‘Preliminary’, s 56AC itself is entitled ‘Excluded individuals and excluded companies’. On the other hand, Division 3 of Part 3A is entitled and directed to ‘License exclusion and cancellation’, rather than excluded individual and excluded company decisions, which are the precursor to license exclusion and cancellation.
I am fortified in this view, because of the construction placed on s 56AC(6) in Dinsey, with which I agree and adopt (and would follow whether or not it was not strictly binding on me). To be meaningful in operation, whether s 56AC(6) applies must be considered at the time the decision is made about the status of a person as an excluded individual or excluded company. Sections 56AF and s 56AG only set out the steps which must be taken once a decision has been made that a person who is a licensee is excluded. They do not contain the power to make the decision about exclusion. They set out a procedure to be followed which is predicated upon a decision having been made affecting a licensee. This construction is consistent with s 58, which provides that a permanently excluded individual is an individual who, firstly, has twice been excluded for a relevant event; and secondly, who for each relevant event has been given written notice by the QBCC as required.
The opportunity for review must logically have been intended by Parliament to arise when a decision about status as an excluded individual is made. Otherwise, a person who is not a licensee (such as Mr Gagliano or Mr Cummings) can find themselves a permanently excluded individual and not a fit and proper person to hold a licence ever again without being afforded the opportunity to review their status as an excluded individual. Despite QBCC’s belated observations that it may not then be able to refuse to allow a person to review the decision at a later time, this does not sit comfortably with the 28 day time frames for steps to be taken to apply for categorisation as a permitted individual or to review a decision generally.
Mr Gagliano and Mr Cummings say that where there is an error in a cross-reference to a section of legislation, it may be read in its correct form.[43] They submit that the references in s 86(1)(k)(i) to s 56AF and s 56AG is an error in the drafting of the legislation. They argue that I should interpret s 86(1)(k)(i) as a reference to ‘a decision under s 56AC that …a person is an excluded individual or excluded company’. Although the QBCC argues against that construction, they do not submit that an error in drafting may not be read in its correct form.
[43]See for example, Lindner v Wright (1976) 14 ALR 105; State of Qld & Anor v Envy Trading & Ors [1998] 1 Qd R 413 at 417.
Of course, legislative error should not be lightly assumed. However, I note the comments made about the tangled and unsatisfactory nature of the provisions concerned here in Plotkin[44] and Armstrong.[45] I am satisfied that the relevant legislative provisions are manifestly uncertain and ambiguous: no decision is provided for in s 56AF or s 56AG, and yet the right of review in s 86(1)(k)(i) is predicated upon a decision having been made.
[44][2013] QCATA 219 at [1].
[45][2014] QCAT 145 at [9].
Having regard to the conclusions I have reached, I am satisfied that there is an error in s 86(1)(k)(i). I do read it in the manner for which Mr Gagliano and Mr Cummings contend.
Therefore, the strike out applications must fail. I make orders dismissing each strike out application. I also make directions listing each of the proceedings concerning Mr Gagliano, Mr Cummings and Mr Casey for a further directions hearing after the expiry of the appeal period for my decision.
Observations
In case I am wrong about the construction of s 86(1)(k)(i) and if Plotkin is correct and considered to be on point, I make the observation that in that case there would be no apparent statutory basis for QBCC to give notices to non-licensees that they are excluded individuals. If the status of excluded individual is merely conferred on a person by the operation of the section, there is no provision which authorises the giving of notice about the status to non-licensees. If notice is not given, then a person in Mr Gagliano or Mr Cummings position who later applies for a licence would no doubt be told that he or she will not be granted a licence because QBCC considers them to be an excluded individual. The decision about the license application would then be reviewable under s 86(1)(a) (and thereby issues about excluded individual status may be ventilated) at that time.
Of course, if I am wrong about implied power in s 56AC to make decisions about excluded individual status, there is no statutory basis for giving of notices or decisions that the person who is not a licensee is an excluded individual. This raises issues concerning the validity of the notices given to Mr Gagliano and Mr Cummings.
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