Jensen v Queensland Building Services Authority

[2012] QCAT 508

CITATION: Jensen v Queensland Building Services Authority [2012] QCAT 508

PARTIES:	Jan Boss Jensen (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: OCR161-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 11 October 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.     Application to transfer a proceeding to the Supreme Court is dismissed.

CATCHWORDS:

Transfer of proceedings – review of administrative decision – whether Supreme Court appropriate forum to decide a review application – where QCAT is a specialist Tribunal with different processes and functions in conducting a review application and the preferable forum

Queensland Civil and Administrative Tribunal Act 2009, ss 3, 20, 21, 52

Queensland Building Services Authority Act 1991, ss 56AC, 56AD

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 (QCAT Act).

REASONS FOR DECISION

1. Mr Jensen holds a Site Supervisor's license in the class of Builder – Low Rise. In 2010 he was a director of a company, JAD Building and Constructions Pty Ltd. On 4 May 2010, a liquidator was appointed to the company and by the operation of s 56AC of the Queensland Building Services Authority Act 1991 Mr Jensen was automatically categorised as an excluded individual. This meant that his Site Supervisor's license was cancelled unless the Authority decided to categorise him as a permitted individual under s 56AD of the Act.

2. Mr Jensen applied to be categorised as a permitted individual within the required time and on 16 June 2011, the Authority made a decision not to categorise him as a permitted individual.  On 22 July 2011, Mr Jensen filed an application in the Tribunal to review the decision of the Authority not to categorise him as a permitted individual.  The function of the Tribunal in a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1]

   [1] QCAT Act, s 20.

3. Subsequent to filing the application, on 24 August 2012, Mr Jensen filed an application for an order that the review application be transferred to the Supreme Court under section 52 of the QCAT Act. The basis for this application is that there are current proceedings on foot between Mr Jensen and the Authority in which Mr Jensen is claiming damages for misfeasance in public office together with other relief.

4. The statement of claim filed in the Supreme Court,[2] discloses alleged conflict between Mr Jensen and the Authority spanning a number of years commencing in March 2008 through to July 2011.  A complaint is made about the conduct of a Building Services Authority officer in his treatment of Mr Jensen, allegations of fraudulent conduct on Mr Jensen’s part, cancellation of his license in 2008, refusal to categorise him as a permitted individual in 2008, success on a review application before the Commercial and Consumer Tribunal in 2009 and then, circumstances surrounding the incorporation of JAD Building and Constructions Pty Ltd and the appointment of a liquidator to it.  The facts pleaded are relied on to establish that the conduct of the Authority in its dealings with Mr Jensen went beyond its administration of the Act and amounted to specific tortuous conduct which if made out, could result in an award of damages to Mr Jensen.

   [2]        Affidavit of Peter John Hamilton, exhibit “PJH1”.

5. The question for determination on this application is whether if would be more appropriate that the Supreme Court decide if Mr Jensen should be categorised as a permitted individual having regard to the criteria set out in section 56AD(8) of the Act. That is, whether he took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event being, the appointment of a liquidator to JAD Building and Construction Pty Ltd.

6. Mr Jensen contends that the Supreme Court proceedings involve the same facts and circumstances that would be considered by the Tribunal on the review application.  He also submits that the balance of convenience favours all matters being heard in one proceeding to avoid unnecessary cost and delay.  He says there would be no real prejudice to the Authority because it is already involved in the proceeding in the Supreme Court.  Further, there will be no obstacle to the relaxation of the rules of evidence in the Tribunal as opposed to the application of the formal rules of evidence in the Supreme Court.  This is simply a matter the applicant would have to contend with, and he is content to do this.

7. I disagree with the contentions of the applicant.  I do so for the following reasons. 

8. The Tribunal’s review of the Authority’s decision not to categorise Mr Jensen as a permitted individual will relate only to the circumstances which gave rise to the appointment of the liquidator to the company.  Mr Jensen must satisfy the Tribunal on the review application that he did take all reasonable steps to avoid the coming to existence of the circumstances that resulted in the company event.  It does not involve a consideration of either the Authority’s conduct prior to the appointment of a liquidator or the interaction/friction between Mr Jensen and officers from the Authority.  It will be quite a discrete issue from those the subject of the Supreme Court proceedings.

9. Another consideration is that because Mr Jensen filed his review application in time, he has the benefit of retaining his licence until the review application is decided.  It is likely that the application will be decided well before the Supreme Court proceedings.  It is in the public interest that a decision about his licence be made sooner rather than later to give effect to the objects of the QBSA Act.

[10]The functions of the Supreme Court and the Tribunal are distinctly different in a merits review of an administrative decision.  The Tribunal is a specialist Tribunal designed to conduct merits based reviews of administrative decisions by standing in the shoes of the decision maker and consider the matter afresh and arrive at the correct and preferable decision.[3]  That function is undertaken without regard to the strict rules of evidence, with little formality and technicality as is possible in the circumstances of the case and the Tribunal may inform itself in a way it considers appropriate.

[3] QCAT Act, s 20.

[11]Also, the Authority has a statutory obligation in the review process to help the Tribunal.[4]

[4] QCAT Act, s 21.

[12]The Tribunal has an obligation to deal with matters in a way that is fair, just, economical, informal and quick[5] and a transfer to the Supreme Court would, in my view, not achieve these objects.

[5] QCAT Act, s 3.

[13]I have come to the conclusion that it would not be more appropriate for the Supreme Court to deal with this matter and therefore the application for transfer is refused.