Kerwick v Queensland Building Services Authority
[2013] QCAT 444
•12 August 2013
| 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 has no objection to Mr Kerwick’s extension of time application, but that it is unable to consent to the application as relief from procedural requirements is a matter of discretion for the Tribunal.
In considering an application for extension of time under s 61 of the QCAT Act, the Tribunal has regard to an explanation for the delay, any prejudice caused to the Respondent, the merits of the substantial application and considerations of fairness.[1]
[1] Cavalier Homes Brisbane Pty Ltd v QBSA [2012] QCAT 6.
Mr Kerwick submits that all three companies were related, and that all three relevant events occurred as a result of the 2011 Brisbane River Flood which affected the companies and Mr Kerwick’s ability to raise capital to cover their debts.
Mr Kerwick through his Solicitors advised the authority on 3 July 2013 that he intended to make the application for extension of time.
Mr Kerwick does not explicitly address the reasons for the delay in making the excluded individual application. I note however that this particular legislation is highly technical, and it is understandable that it would take some time for an applicant and his Solicitor to work through the processes in consultation with the Authority, and that they have been doing so.
I am satisfied that Mr Kerwick has demonstrated an arguable case on his excluded individual applications. There is no suggestion of any prejudice that the authority may suffer as a result of the delay. I consider it is fair that he should be able to make the applications, and that time be extended accordingly.
I draw the attention of both parties to the recent decision of the Appeal Tribunal in Dinsey v Queensland Building Services Authority [2013] QCATA 225 which may have application in this matter. That is a decision of Hon J B Thomas AM QC, Judicial Member delivered on 22 July 2013.
In that decision, His Honour found that the answer to the question “Can section 56AC(6) of the QBSA Act 1991 have application where the first event relates to one company and the other event or events relates to a different company or companies” is “Yes”.
The application for an extension of time in each case is allowed.
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