Kratzmann v Queensland Building Services Authority
[2013] QCAT 437
| CITATION: | Kratzmann v Queensland Building Services Authority [2013] QCAT 437 |
| PARTIES: | Mr Terence Roy Kratzmann (Applicant) |
| V | |
| Queensland Building Services Authority (Respondents) |
| APPLICATION NUMBER: | REO008-13 |
| MATTER TYPE: | Reopening |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 1 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application dismissed. |
| CATCHWORDS: | REOPENING – where the primary proceeding was withdrawn by the applicant – whether the primary proceeding had been “heard and determined” by the tribunal – whether a reopening ground established. Queensland Civil and Administrative Tribunal Act 2009 ss 46, 137, 138 Queensland Building Services Authority v Queensland Civil and Administrative Tribunal [2013] QSC 167; Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417 |
APPEARANCES and REPRESENTATION (if any):
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 Kratzmann was the applicant in an application to review a decision by the Queensland Building Services Authority refusing to categorise him as a permitted individual[1]. The application to the Authority to be categorised as a permitted individual occurred after Mr Kratzmann became an excluded individual by the operation of section 56AC of the Queensland Building Services Authority Act 1991 because he was a director of a company that was the subject of a deed of company arrangement. That company was Inhabit Pty Ltd.
[1] Proceeding GAR042-10.
In the usual way, the review application proceeded to a compulsory conference. Subsequent to that compulsory conference, and presumably as result of the discussions had at the conference, an application was filed by Mr Kratzmann seeking to withdraw his application for review. On 14 May 2013 the Tribunal made an order that the application be withdrawn and there be no order as to costs.
Subsequent to that, Mr Kratzmann has reconsidered his position and now asks the Tribunal to reopen that proceeding. In his application to reopen filed on 29 May 2013 he simply asks that the application be reopened and heard by another Tribunal Member. In submissions in support of the application Mr Kratzmann contends that one of the reasons he withdrew the application is because he was told by a representative of the Authority that there would be nothing recorded on his building license, after the expiration of the 5 years, which would indicate that his license had been cancelled, and that he had been bankrupt. In effect what he is saying is that he was induced into withdrawing his review application on the basis of a representation made by the representative of the Authority that his license would not note that he had been a bankrupt.
The Authority, through their solicitors, Robinson Locke, do not oppose the application leaving it for the Tribunal to make a decision on the material filed by Mr Kratzmann.
The Queensland Civil and Administrative Tribunal Act 2009 allows the Tribunal to reopen a proceeding after the proceeding has been heard and determined by the Tribunal in certain circumstances. Section 137 of the Act sets out what is referred to as a “reopening ground”. A reopening ground is one of the following:-
(a)The party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
(b)The party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
There are also specific provisions about withdrawing an application. Section 46 of the Act permits an applicant to withdraw an application before the matter is heard and decided by the Tribunal. Subsection 2 provides that an applicant can not make a further application or referral relating to the same facts or circumstances without the leave of the Tribunal.
Although the Tribunal made a decision permitting the applicant to withdrawn the review application that decision was not as a consequence of the matter being heard or decided by the Tribunal[2].
[2]Queensland Building Services Authority v Queensland Civil and Administrative Tribunal [2013] QSC 167; also see Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417.
It follows therefore, that when one has regard to the reopening provisions this is not a proceeding that has been “heard and decided by the Tribunal”. Furthermore, there is no reopening ground established because this is not a case where the applicant had a reasonable excuse for not attending the hearing or significant new evidence has arisen since the proceeding was first heard and decided.
Therefore that the application to reopen must fail because it does not fall within Division 7 of the QCAT Act. The only course open for Mr Kratzmann is to commence a new review application and obtain the Tribunal’s leave under section 46(2) of the QCAT Act. The application to reopen is dismissed.
1
2
0