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Jensen v Queensland Building and Construction Commission

Jensen v Queensland Building and Construction Commission

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Case Copied 22 June 2017 38 min read

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CITATION:

Jensen v Queensland Building and Construction Commission [2017] QCAT 232

PARTIES:	Timothy Peter Jensen (Applicant)
v
Queensland Building And Construction Commission (Respondent)

APPLICATION NUMBER:

GAR091-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

DELIVERED ON:

22 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for leave to make a further application for review pursuant to s 46 of the QCAT Act is refused.

2. The application for an extension of time under s 61 of the QCAT Act is refused.

CATCHWORDS:

ADMINISTRATIVE LAW - APPLICATION FOR LEAVE TO MAKE A FURTHER APPLICATION FOR REVIEW – APPLICATION FOR AN EXTENSION OF TIME - where original application for review of decision to refuse to categorise the applicant as a “permitted individual” under s 56AD of the Queensland Building Services Authority Act 1991 (Qld) withdrawn – where enabling Act amended since the time of original decision – which version of the enabling Act applies at the time of review – whether leave should be given under s 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether an extension of time to make a further application for review under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) should be given

Acts Interpretation Act 1954 (Qld), s 20
Professional Engineers and Other Legislation Amendment Act 2014 (Qld), s 60, s 61
Queensland Building and Construction Commission Act 1991 (Qld), s 31, s 56AC, s 56AD, s 56AE, s 56AH, s 57AF, s58, s 59, s 60, s 61, s 86
Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld)
Queensland Building Services Authority Act 1991 (Qld), s 56AD
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 33, s 46(3), s 61

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Builders Licensing Board (NSW) v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62
Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37
Coppens v Water Wise Design Pty Ltd [2014] QCATA 309
Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229
D’Arro v Queensland Building and Construction Commission [2017] QCA 90
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Dreamstarter Pty Ltd v Lyons [2012] QCAT 65
Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513
O’Reilly v Mackman [1983] 2 AC 237
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; [1979] AATA 184
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

APPEARANCES:

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).

REPRESENTATIVES:

APPLICANT:

Construct Law Group

RESPONDENT:

Active Lawyer & Consultants

REASONS FOR DECISION

On 14 April 2016…

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: [2017] QCAT 232
Decision Date: 22 June 2017

CaseChat Overview and Summary

Jensen sought to challenge a decision of the Queensland Building and Construction Commission (QBCC) that refused to categorise him as a “permitted individual” under the Queensland Building Services Authority Act 1991. The application for review was initially made but subsequently withdrawn. After the enabling Act was amended, Jensen sought leave to make a further application for review and an extension of time to do so, which was opposed by the QBCC. The Queensland Civil and Administrative Tribunal (QCAT) was asked to determine whether it should grant leave for the further application under section 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 and an extension of time under section 61 of the same Act.

The primary legal issues before the QCAT were whether it should grant leave to make a further application for review under section 46(3) of the QCAT Act, and whether it should grant an extension of time to make a further application for review under section 61 of the QCAT Act. Additionally, the Tribunal needed to consider which version of the enabling Act applied at the time of the review, given that the Act had been amended since the original decision.

The QCAT held that it should not grant leave to make a further application for review as the application did not meet the criteria for leave under section 46(3) of the QCAT Act. The Tribunal found that there were no new or significantly different matters to be considered that would justify the making of a further application. Furthermore, the QCAT determined that an extension of time should not be granted under section 61 of the QCAT Act, as Jensen had not demonstrated any sufficient reason for the delay in making the application. The Tribunal also found that the version of the enabling Act in force at the time of the original decision applied to the review of that decision.

In light of the above, the QCAT refused Jensen’s application for leave to make a further application for review and his application for an extension of time. The orders made by the QCAT were that the application for leave to make a further application for review pursuant to section 46 of the QCAT Act was refused, and the application for an extension of time under section 61 of the QCAT Act was also refused.

Orders

Orders of the court

1. The application for leave to make a further application for review pursuant to s 46 of the QCAT Act is refused.

2. The application for an extension of time under s 61 of the QCAT Act is refused.

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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