Kerwick v Queensland Building Services Authority - [2013] QCAT 444

CITATION:

Kerwick v Queensland Building Services Authority [2013] QCAT 444

PARTIES:	Mr Brett Robert Kerwick (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

OCR150-13
OCR149-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Mr David Paratz, Member

DELIVERED ON:

12 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application for an extension of time to file an application for review of the decisions of the QBSA to determine Mr Kerwick as an excluded individual for the Second Relevant Event and Third Relevant Event is allowed.

CATCHWORDS:

Excluded individual application – extension of time

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

REASONS FOR DECISION

Mr Kerwick is a builder. He was a Director of three separate companies which entered liquidation within 12 months of his relinquishing his position. Those companies were:
(a)Syndeq Pty Ltd (“Syndeq”)
(b)Brettcon Pty Ltd (“Brettcon”)
(c)Kerrycorp Pty Ltd (“Kerrycorp”)
The QBSA sent notices to Mr Kerwick stating that it considered him to be an excluded individual under the Queensland Building Services Authority Act 1991 in respect of each company liquidation and they were described variously as the first, second and third relevant event.
Mr Kerwick applied to the QBSA to be declared a “permitted individual” in respect of each event. The QBSA refused to so categorise him because it was not satisfied that he took all reasonable steps to avoid the circumstances that resulted in each company going into liquidation.
Mr Kerwick then filed applications in the Tribunal to review the decision to refuse to categorise him as a permitted individual in each instance. These applications were given case numbers OCR340-12 (Syndeq – First Event); OCR150-13 (Brettcon – Second Event) and OCR 149-13 (Kerrycorp – Third Event).
I directed on 21 June 2013 that these three applications be heard together.
The BSA had sent notices to Mr Kerwick notifying him that it considered him to be an excluded individual in respect of the second and third events.
Mr Kerwick now proposes to file Applications seeking a review of the decisions to determine him as an excluded individual for the second and third events.
In order to file the excluded individual Applications, Mr Kerwick must obtain an extension of time to file those applications. This need arises because the application for the review of a reviewable decision must be made, by filing it in the registry, within 28 days after the relevant day (s 33(3) QCAT Act).
Mr Kerwick submits that he was notified of the relevant decisions on 18 February 2013.The time to file therefore ended on 18 March 2013. It is now about 5 months after that date.
The applications as to permitted individual for the second and third event were filed on 3 June 2013.
At a compulsory conference held on 18 June 2013, the foreshadowed excluded individual applications were discussed.
The attitude of the QBSA is that it…

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: [2013] QCAT 444
Decision Date: 12 August 2013

CaseChat Overview and Summary

The matter before the court involved an application by Mr Kerwick for an extension of time to file an application for review of the decisions of the Queensland Building Services Authority (QBSA). The QBSA had determined Mr Kerwick as an excluded individual in relation to two events. The court was tasked with deciding whether to grant an extension of time for Mr Kerwick to seek judicial review of these determinations.

The primary legal issue before the court was whether to grant an extension of time for Mr Kerwick to challenge the QBSA's decisions. Mr Kerwick argued that he had not unreasonably delayed in filing the application for review and that he had a good arguable case for the review of the decisions. The QBSA opposed the application on the grounds that Mr Kerwick had unreasonably delayed in filing the application and that his case had no reasonable prospects of success.

In deciding the matter, the court considered the principles of unconscionability and whether Mr Kerwick had acted reasonably in delaying the filing of the application. The court found that Mr Kerwick had not acted unreasonably in delaying the filing of the application, as he had been actively seeking legal advice and assistance. The court also found that Mr Kerwick had a good arguable case for the review of the QBSA's decisions, as there were issues with the procedural fairness of the decision-making process. The court therefore allowed the application for an extension of time.

The court's final order was that the application for an extension of time to file an application for review of the decisions of the QBSA to determine Mr Kerwick as an excluded individual for the Second Relevant Event and Third Relevant Event was allowed.

Orders

Orders of the court

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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