Gauci v Queensland Building and Construction Commission - [2014] QCATA 154

CITATION:

Gauci v Queensland Building and Construction Commission [2014] QCATA 154

PARTIES:	Mr George Gauci (Applicant/Appellant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

APL391-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Presiding Senior Member Stilgoe, OAM
Member White

DELIVERED ON:

28 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to Appeal dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – OCCUPATIONAL REGULATION – application to review decision by the Queensland Building and Construction Commission not to categorise the applicant as a permitted individual – conduct of director – decisions set aside by Tribunal

Queensland Building and Construction Commission Act 1991 (Qld), s 56AD

Chambers v Jobling (1986) 7 NSWLR 1

Cashia v Grech [2009] NSWCA 232
Fox v Percy (2003) 214 CLR 118
Germanos v Cosgrove & Anor [2013] QCATA 203
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Queensland Building & Construction Commission v Meredith [2014] QCA 62
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION
Senior Member Stilgoe

In this matter the Appeal Tribunal consisted of Mr White, QCAT Member and me. I have had the benefit of reading Mr White’s reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.

Member White
The issues

Mr George Gauci is aged in his 70’s and he has been a master builder of large multi-million dollar building projects most of his working life. He was the Managing Director of his family company, Gauci Group Pty Ltd for ten years prior to these proceedings.

On 28 October 2010, Mr Gauci was bankrupted by his former solicitors, McCullough Robertson Lawyers as a result of failing to pay legal costs associated with legal proceedings in the Planning and Environment Court. McCullough Robertson had obtained a default judgment against Mr Gauci for $107,614.51.

Pursuant to s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the Act’), the bankruptcy is a “relevant event” and the Queensland Building and Construction Commission (‘QBSA’) considered him an “excluded individual”.

On 20 December 2011, Mr Gauci applied to the QBSA to be a “permitted individual”. On 17 January 2012, the QBSA refused his application.

On 13 February 2012, Mr Gauci applied to QCAT to review the QBSA decision and after a hearing conducted on 23 October 2012 and 18 February 2013, QCAT refused Mr Gauci’s application on 6 August 2013.

It is QCAT’s decision of 6 August 2013 which Mr Gauci appeals.

The Appeal

QCAT allows appeals on a question of law[1] but if the appeal is on a question of fact or mixed law and fact,[2] leave of the Appeal Tribunal is required.
[1]QCAT Act s 142.
[2]Ibid, s 142(3)(b).

Mr Gauci’s grounds of appeal are that the learned…

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: [2014] QCATA 154
Decision Date: 28 April 2014

CaseChat Overview and Summary

In Gauci v Queensland Building and Construction Commission, the applicant sought to appeal a decision of the Queensland Building and Construction Commission not to categorise him as a permitted individual. The Commission's decision was set aside by the Administrative Appeals Tribunal, leading to the applicant's appeal to the court. The central dispute involved the interpretation and application of occupational regulations and the procedural fairness of the Commission's decision-making process.

The primary legal issues addressed by the court were whether the Tribunal's decision to set aside the Commission's decision was legally sound and whether the applicant's appeal should be granted. The applicant argued that the Tribunal had erred in law by failing to consider the relevant criteria for categorising a permitted individual and that the Commission's decision was procedurally unfair. The Commission contended that the Tribunal's decision was correct and that the appeal should be dismissed.

The court examined the grounds for review set out in the Judicial Review Act and assessed whether the Tribunal's decision was legally sound. It found that the Tribunal had correctly identified that the Commission had failed to properly consider the relevant criteria and that the decision was therefore legally flawed. However, the court held that the applicant had not demonstrated that the Tribunal had erred in its review of the Commission's decision, and thus the appeal was without merit. Consequently, the court dismissed the application for leave to appeal, affirming the Tribunal's decision.

Orders

Orders of the court

1. Leave to Appeal dismissed.

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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