Gauci v Queensland Building and Construction Commission
[2014] QCATA 154
•28 April 2014
| 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 |
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 Member:
a) failed to properly consider evidentiary matters which he placed before Tribunal.
b) took an ambit view concerning Mr Gauci’s obligations with his former solicitors regarding costs.
c) relied erroneously upon the submissions made by the solicitors for the QBSA.
d) indicated that prior to making her decision she would review further disclosure material from the Appellant’s former Solicitors, McCullough Robertson.
e) relied heavily on certain Costs Agreements.
f) failed to differentiate from the legal costs which had been incurred and had been paid by Mr Gauci.
g) relied upon the evidence submitted by the QBSA concerning Cost Agreements which related to prior proceedings and actions involving Mr Gauci and his group of companies.
h) focused on Client Agreements dated 18 October 2010 and 23 November 2010. Mr Gauci submitted to the learned Member that a detailed search of the Tribunal file has failed to reveal the existence of any Client Agreement which is dated 23 November 2010. Mr Gauci submits that his closing submissions raised the issue of the absence of such Agreement but the learned Member relied solely upon the written submissions of the QBSA.
In support of his appeal, Mr Gauci submitted:
a) that he never signed a Cost Agreement after he had become Bankrupt;
b) that the Cost Agreements breached of the Legal Professions Act 2007 (Qld);
c) that he paid all his solicitor’s fees upfront and, at the conclusion of the Planning and Environment Court proceedings, no further Client Agreements were prepared in responding to the Council’s appeal.
Generally Mr Gauci submits that he did not act inappropriately in the circumstances and such actions should not impact upon his standing as a “permitted individual”.
Mr Gauci’s appeal only raises questions of fact. Accordingly, he requires leave to appeal. Leave will only be granted on questions of fact if:
a) Is there a reasonably arguable case of error in the primary decision;[3]
b) Is there a reasonable prospect that the applicant will obtain substantive relief;[4]
c) Is leave necessary to correct a substantial injustice to the applicant caused by some error;[5] or
d) Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Cashia v Grech [2009] NSWCA 232 at [13].
[5]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389.
We have read the statements of evidence which were relied on by both parties and read the transcript of the proceedings. We are not persuaded that the learned Member has made any mistake in weighing up the factual issues.
The learned Member’s decision took into account all of the relevant issues which were in contest. Those issues included: the lead up to Mr Gauci’s bankruptcy; whether Mr Gauci took reasonable steps to avoid his bankruptcy; and how Mr Gauci managed the payment of the legal fees. The learned Member concluded, correctly in our view, that Mr Gauci, being a skilled business man, did not put sufficient evidence to the Tribunal with regard to whether he acted reasonably in the way he handled the legal fees liability.
We agree that Mr Gauci did not put sufficient evidence to the Tribunal to persuade the learned Member that he had taken reasonable steps to avoid the bankruptcy. In particular, we agree that he had failed to address those matters which are set out in s 56AD(8A) of the Act. The learned Member observed that Mr Gauci could have employed someone to assist him in dealing with the legal fees matter and the negotiations with his lawyers.
Similar to the Tribunal hearing, there is a lack of the specificity which is required to support this appeal. The only ground which provides some detail is that which relates to the Client Agreements.[7] On this issue, the learned Member on her own motion, sought clarification by requesting McCullough Robertson produce all their Client Agreements and some correspondence. Mr Gauci was afforded the opportunity to provide further submissions concerning these documents and chose not to. Mr Gauci now questions the way the learned Member dealt with this issue. We are satisfied that the learned Member dealt with this issue in a fair and reasonable way and fulfilled her obligations to provide parties procedure fairness in the conduct to the proceedings.[8]
[7]As summarised in para 8(e) to (h) hereof.
[8]QCAT Act, s 28 and s 29.
The thrust of the learned Member’s decision is that Mr Gauci failed to persuade her on the factual matters. Mr Gauci was unable to provide sufficient supporting evidence to set aside the QBSA’s decision. We agree with the learned Member’s conclusions and we therefore find that there is no reasonable prospect of obtaining substantive relief.
The QBSA has raised in its submission in this Appeal that the Member had made a clerical error relating to the dates of the Client agreements. This is correct however, this doesn’t impact on our decision that we find that there has been no error in the primary decision.
We cannot find any substantial injustice to Mr Gauci and there is no question of general importance that would be to the public advantage. It follows that leave to appeal must be refused.
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