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REOPENING – where the primary proceeding was withdrawn by the applicant – whether the primary proceeding had been “heard and determined” by the tribunal – whether a reopening ground established.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 On 14 May 2013 the Tribunal made an order that the application be withdrawn and there be no order as to costs.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…

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 437
Decision Date

CaseChat Overview and Summary

In the case of Kratzmann v Queensland Building Services Authority, the applicant, Mr Terence Roy Kratzmann, sought to reopen a proceeding which had previously been withdrawn. The dispute centred on Mr Kratzmann's application to be categorised as a permitted individual by the Queensland Building Services Authority, a status he lost due to his directorship of a company that entered into a deed of company arrangement. The matter was ultimately heard and decided by the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the court were whether the primary proceeding had been "heard and determined" by the tribunal and whether a ground for reopening had been established under the Queensland Civil and Administrative Tribunal Act 2009. Specifically, the court examined whether the proceeding met the criteria outlined in section 137 of the Act, which allows for reopening on grounds such as absence of the party with reasonable excuse or the emergence of significant new evidence not reasonably available at the time of the original hearing.

The court found that the proceeding had not been "heard and determined" by the tribunal since the decision to permit withdrawal was not made after the matter was heard or decided. Furthermore, no reopening ground was established as there was no reasonable excuse for Mr Kratzmann's absence or significant new evidence that had arisen. Consequently, the application to reopen was dismissed. The court concluded that Mr Kratzmann's only recourse was to commence a new review application, subject to obtaining the tribunal’s leave under section 46(2) of the QCAT Act.

The tribunal dismissed the application to reopen the proceeding, leaving Mr Kratzmann to pursue a fresh application for review, subject to the necessary permissions.

Orders