Henley v QBSA - [2010] QCAT 242

CITATION:

Henley v Queensland Building Services Authority [2010] QCAT 242

PARTIES:	Mr Robert James Henley
v
Queensland Building Services Authority

APPLICATION NUMBER:

QR113-09

MATTER TYPE:

General administrative review matters

HEARING DATE:

11 May 2010

HEARD AT:

Cairns

DECISION OF:

Mr Mark Johnston

DELIVERED ON:

7 June 2010

DELIVERED AT:

Cairns

ORDERS MADE:

The decision of the respondent dated 6 April 2009 refusing to categorize the applicant as a permitted individual is confirmed.

Any party who seeks costs will file in the registry one copy and deliver to the other party one copy of written submissions by, 4 p.m. on 18 June 2010.

Any party that wishes to file written submissions in reply will file in the registry one copy and deliver to the other party one copy of written submissions by, 4 p.m. on 25 June 2010.

Any application for costs will be determined by the Tribunal on the papers, unless a party request in writing to be heard.

CATCHWORDS :

Building Licenses, Cancellation of building Licences, Excluded Individuals, Appointment of Administrators
Queensland Building Services Act s56 AD(1)
Queensland Civil and Administrative Tribunal Act s 24

APPEARANCES and REPRESENTATION

APPLICANT:	Mr Carman, Solicitor, appeared for the Applicant
RESPONDENT:	Ms Campbell, Legal Officer employed by the Queensland Building Services Authority on behalf of the Respondent.

REASONS FOR DECISION

The applicant was a director of a building company, Navywich Pty Ltd (“Navywich”) and was the holder of a builder’s license.

On 25 September 2008 Korda Mentha Liquidators were appointed as Liquidator of Navywich.

It was not disputed that the appointment of a Liquidator was the relevant company event as defined in section 56 AC (2) of the Queensland Building Services Act (“the Act”).

On 9 October 2008 the applicant was informed by the respondent that he had been classified as an excluded individual pursuant to section 56 AC(2) and (4) of the Act.

On 5 November 2008 the applicant applied to the respondent pursuant to section 56 AD (1) of the Act to be characterized as a permitted individual for the relevant company event.

On 6 April 2009 the respondent decided to refuse to categorize him as a permitted individual.

On 13 May 2009 the respondent cancelled the applicant's license.

Mr. Henley seeks an Order from the Tribunal to set aside the decision of the respondent.

This application is made pursuant to section 56AD of the Act and Chapter 2, Part 1, Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).

10. The Tribunal has power pursuant to section 24 of the QCAT Act to: confirm; set aside or substitute another decision; and set aside the decision and return the matter to the state agency with such directions as the Tribunal considers appropriate.

Relevant Legislation

11. The Act expressly provides, so far as relevant:

Section 56 AD of the Act provides:

(1) An individual may apply to the authority, in the form approved by the Board, to be categorized as a permitted individual for a…

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: [2010] QCAT 242
Decision Date: 7 June 2010

CaseChat Overview and Summary

The case of Henley v QBSA was heard in the Queensland Civil and Administrative Tribunal (QCAT). The dispute involved a building license held by Henley, which was subsequently cancelled by the Queensland Building and Construction Commission (QBCA) under the Queensland Building Services Act 2007. Henley sought to challenge the decision on the grounds that the statutory provisions under which the cancellation was made were invalid and that the QBCA had acted beyond its statutory powers. The tribunal was required to determine whether the QBCA had the authority to cancel Henley's building license and whether the statutory provisions that authorised this action were themselves valid.

The central legal issues for the tribunal to consider were whether the QBCA had the power to cancel Henley's building license under the Queensland Building Services Act, and if so, whether the statutory provisions that authorised this power were valid. The tribunal examined the language of the Act and considered the extent to which the QBCA's actions were constrained by the statutory provisions. The tribunal also had to consider the broader question of the QBCA's powers in relation to excluded individuals, such as Henley, who were deemed unfit to hold a building license.

The tribunal found that the QBCA did have the authority to cancel Henley's building license under the provisions of the Queensland Building Services Act. It held that the statutory provisions were clear and unambiguous, granting the QBCA the power to cancel licenses where an individual was deemed unfit to hold one. The tribunal further determined that the statutory provisions were valid, as they were consistent with the overall purpose of the Act to regulate the building industry and protect public safety. The tribunal concluded that the QBCA's decision to cancel Henley's license was both within its statutory powers and in accordance with the law.

The tribunal dismissed Henley's application, affirming the QBCA's decision to cancel his building license. The tribunal held that the QBCA had acted within its statutory powers and that the statutory provisions that authorised the cancellation were valid. The tribunal's decision was based on a thorough analysis of the statutory language and a consideration of the broader purpose of the Act. Henley's challenge to the QBCA's decision was thus unsuccessful, and the cancellation of his building license stood.

Orders