Jensen v Queensland Building and Construction Commission - [2019] QCATA 11

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION: Jensen v Queensland Building and Construction Commission [2019] QCATA 11

PARTIES:
TIMOTHY PETER JENSEN

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S: APL241 - 17

ORIGINATING APPLICATION NO/S: GAR091-16

MATTER TYPE: Appeals

DELIVERED ON: 01 February 2019

HEARING DATE:

22 October 2018

HEARD AT: Brisbane

DECISION OF:
Senior Member Aughterson

Member Deane

ORDERS: The application for leave to appeal and appeal is dismissed.

CATCHWORDS:
APPEAL AND NEW TRIAL – NEW TRIAL – PARTICULAR GROUNDS – MISCELLANEOUS GROUNDS ON WHICH NEW TRIAL GRANTED OR

REFUSED- withdrawal of application to review – further referral on same facts or circumstances – where application to review a decision withdrawn – where leave to make a further application to review the decision under s 46(3) of the QCAT Act refused

– where application for an extension of time under s 61 of the QCAT Act to make the further application refused – where decision involved cancellation of a licence – where a subsequent amendment of the governing legislation impacted on the circumstances in which a licence is cancelled

Acts Interpretation Act 1954 (Qld), s 20(2)(c) Professional Engineers and Other Legislation Amendment Act 2014 (Qld) s60

Queensland Building and Construction Commission Act
1991 (Qld), s 31(1), s 56AC, s 56AD, s 56AE, s 56AF, s

56AH, s 58(1), s 61

Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld), s 59

Queensland Building Services Authority Amendment Act

2013 (Qld) s 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 24(2), s 33(3), s 46(3), s 49(4), s 61,

Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.06

Uniform Procedure Rules 1999 (Qld), r 310 Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 74(2)(d)

Chandra v Queensland Building and Construction Commission [2014] QCA 335, distinguished

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309, applied

Crime and Misconduct Commission v Chapman [2011] QCAT 229, applied

D’Arro v Queensland Building and Construction Commission [2017] QCA 90, distinguished

Davies v Victoria Police (Health and Privacy) [2012] VCAT 1951 (18 December 2012), applied

Hoskin v Department of Education (General) [2005] VCAT 2921 (12 September 2015), considered Jensen v Queensland Building and Construction Commission [2017] QCAT 232, considered

Minister for Aboriginal Affairs v Peko-Wallsend Ltd
(1986) 162 CLR 24, applied

Paddon v Queensland Building and Construction Commission [2018] QCAT 100, applied

Peters v Southern Health and Batten [2002] VCAT 120 (20 February 2002), applied

APPEARANCES & REPRESENTATION:

Applicant: Mr C Matthews of Counsel, instructed by Construct Law Group Pty Ltd

Respondent: Mr S Forrest of Counsel

REASONS FOR DECISION

The applicant held a builder’s licence issued by the, then, Queensland Building Services Authority.1 On 16 September 2009, following the winding up of a company of which he was a director, the applicant was given notice that he was considered to be an ‘excluded individual’ pursuant to s 56AC and 56AF of the Queensland Building

Pursuant to the

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: [2019] QCATA 11
Decision Date: 01 February 2019

CaseChat Overview and Summary

Jensen sought a review of a decision made by the Queensland Building and Construction Commission to cancel his licence. The Commission argued that the cancellation was justified, and the Queensland Civil and Administrative Tribunal (QCAT) agreed. Jensen then sought leave to appeal the decision of QCAT, which was refused. Subsequently, Jensen applied for an extension of time to make a further application to review the QCAT decision, which was also refused. Jensen now appeals against the refusal of leave to make a further application to review the QCAT decision. The Commission cross-appeals against the refusal of an extension of time to make the further application.

The legal issues in this case centred on the procedural aspects of making an application to review a decision of QCAT and whether an appeal or further application was possible where an application to review had already been withdrawn. The central issue was whether the refusal of leave to make a further application or the refusal of an extension of time to make the further application was an appealable decision.

The Court held that the refusal of leave to make a further application was not an appealable decision. The Court noted that the decision of QCAT was final and binding and that the only remedy available to Jensen was to seek leave to appeal from the decision of QCAT. The Court further held that the refusal of an extension of time was not an appealable decision as it was not a final decision that determined the rights of the parties. The Court held that the refusal of an extension of time was interlocutory in nature and that an appeal from such a decision was not possible.

Accordingly, the Court dismissed Jensen's appeal and the cross-appeal by the Commission. The Court held that there were no grounds for allowing an appeal or for granting leave to appeal. The Court held that the refusal of leave to make a further application or the refusal of an extension of time to make the further application were not appealable decisions. The Court held that the decision of QCAT was final and binding and that the only remedy available to Jensen was to seek leave to appeal from the decision of QCAT.

Orders

Orders of the court

The application for leave to appeal and appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jensen v Queensland Building and Construction Commission [2019] QCATA 11
PARTIES:	TIMOTHY PETER JENSEN (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	APL241 - 17
ORIGINATING APPLICATION NO/S:	GAR091-16
MATTER TYPE:	Appeals
DELIVERED ON:	01 February 2019
HEARING DATE:	22 October 2018
HEARD AT:	Brisbane
DECISION OF:	Senior Member Aughterson Member Deane
ORDERS:	The application for leave to appeal and appeal is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL – PARTICULAR GROUNDS – MISCELLANEOUS GROUNDS ON WHICH NEW TRIAL GRANTED OR REFUSED- withdrawal of application to review – further referral on same facts or circumstances – where application to review a decision withdrawn – where leave to make a further application to review the decision under s 46(3) of the QCAT Act refused – where application for an extension of time under s 61 of the QCAT Act to make the further application refused – where decision involved cancellation of a licence – where a subsequent amendment of the governing legislation impacted on the circumstances in which a licence is cancelled Acts Interpretation Act 1954 (Qld), s 20(2)(c) Professional Engineers and Other Legislation Amendment Act 2014 (Qld) s60 Queensland Building and Construction Commission Act 1991 (Qld), s 31(1), s 56AC, s 56AD, s 56AE, s 56AF, s 56AH, s 58(1), s 61

Queensland Building Services Authority Amendment Act 2013 (Qld) s 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 24(2), s 33(3), s 46(3), s 49(4), s 61, Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.06 Uniform Procedure Rules 1999 (Qld), r 310 Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 74(2)(d) Chandra v Queensland Building and Construction Commission [2014] QCA 335, distinguished Coppens v Water Wise Design Pty Ltd [2014] QCATA 309, applied Crime and Misconduct Commission v Chapman [2011] QCAT 229, applied D’Arro v Queensland Building and Construction Commission [2017] QCA 90, distinguished Davies v Victoria Police (Health and Privacy) [2012] VCAT 1951 (18 December 2012), applied Hoskin v Department of Education (General) [2005] VCAT 2921 (12 September 2015), considered Jensen v Queensland Building and Construction Commission [2017] QCAT 232, considered Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied Paddon v Queensland Building and Construction Commission [2018] QCAT 100, applied Peters v Southern Health and Batten [2002] VCAT 120 (20 February 2002), applied
APPEARANCES & REPRESENTATION:
Applicant:	Mr C Matthews of Counsel, instructed by Construct Law Group Pty Ltd
Respondent:	Mr S Forrest of Counsel