Herrador v Queensland Building Services Authority

[2013] QCAT 549

CITATION: Herrador v Queensland Building Services Authority  [2013] QCAT 549

PARTIES:	Angel Herrador (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: OCR220-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: 10 October 2013

HEARD AT: Brisbane

DECISION OF: Bevan Hughes, Member

DELIVERED ON: 9 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: The Application to stay the decision to refuse to categorise Angel Herrador as a permitted individual is dismissed.

CATCHWORDS:

Licensed builder – application to review decision refusing to categorise as permitted individual – application for stay – licence not cancelled

Queensland Building Services Authority Act 1991 ss 56AD and 56 AF
Queensland Civil and Administrative Tribunal Act 2009 s 22

Delonga v. Queensland Building Services Authority [2011] QCAT 206

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

What is this Application about?

1. Mr Angel Herrador is a licensed builder who ultimately wants the Tribunal to review a decision by the Queensland Building Services Authority’s to refuse to categorise him as a ‘permitted individual’.

2. Until the Tribunal reviews the Authority’s decision, Mr Herrador has applied to the Tribunal to stay the decision.

3. The Authority contends that there is no need to stay the decision because it does not affect Mr Herrador’s interests.

Is there a need to stay the decision?

1. On 9 August 2013, the Authority refused to categorise Mr Herrador as a ‘permitted individual’.[1] This cancels his licence unless he applies for review of the decision.[2]

   [1]        Queensland Building Services Authority Act 1991 s 56AD.

   [2] Ibid s 56AF.

2. On 30 August 2013, Mr Herrador applied to the Tribunal to review the Authority’s decision to refuse to categorise him as a ‘permitted individual’. This means that his licence is yet to be cancelled.

3. On 24 September 2013, the Authority wrote to Mr Herrador and the Tribunal stating that because Mr Herrador has applied for review of the decision within 28 days, it will not cancel his licence unless the Tribunal confirms the decision or he does not proceed with his application for review.[3]

   [3]        Letters Building Services Authority to QCAT and Gregg Lawyers Pty Ltd dated 24

   September 2013.

4. On 1 October 2013, the solicitors for Mr Herrador informed the Tribunal that he agrees to withdraw his application for a stay provided that the Authority will not cancel his licence unless the Tribunal confirms the decision or he does not proceed with the application for review.[4]  However, the solicitors for Mr Herrador add that:

   Perhaps in the circumstances it may be prudent to adjourn our client’s application generally to the Registry to be brought back on notice by either party.[5]

   [4]        Letter Gregg Lawyers to QCAT dated 1 October 2013.

   [5]        Letter Gregg Lawyers to QCAT dated 1 October 2013, final paragraph.

5. These words are contrary to Mr Herrador withdrawing his application for a stay. Rather, they suggest adjourning the application – evincing an intention that the application is continuing.

6. The effect of a stay is to postpone the operation or implementation of a decision pending a final determination.[6] The purpose of the stay would be to postpone the cancellation of Mr Herrador’s licence pending the determination of his application for review. The Authority has already given this assurance. There is therefore no need for the stay.

   [6]        Queensland Building Services Authority Act 1991 s 22.

7. If the Tribunal makes any orders resulting in his licence being cancelled, then he may consider applying for a stay at that time. There is no basis to adjourn the current application.

8. In any event, Mr Herrador claims that he requires his licence as a condition of employment and becoming unemployed would have “dire consequences” for him and his family. However, this is not a circumstance that makes his situation unusual or warrants the Tribunal’s exercise of discretion to grant a stay.[7]

   [7]        Delonga v. Queensland Building Services Authority [2011] QCAT 206 at [8].

What are the appropriate Orders?

1. The appropriate Order is that the Application to stay the decision to refuse to categorise Angel Herrador as a permitted individual is dismissed.