Longhurst v Queensland Building and Construction Commission - [2017] QCAT 215

CITATION:

Longhurst v Queensland Building and Construction Commission [2017] QCAT 215

PARTIES:	John Longhurst (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR006-17

MATTER TYPE:	General administrative review matters
HEARD AT:	On the papers
DECISION OF:	Member Traves

DELIVERED ON:	16 June 2017
DELIVERED AT:	Brisbane

ORDERS MADE:

1. The application to strike out application GAR006-17 is allowed.

CATCHWORDS:

ADMINISTRATIVE LAW – GROUNDS OF REVIEW – JURISIDICTIONAL MATTERS – APPLICATION TO STRIKE OUT UNDER S 47 OF QCAT ACT – where application for mutual recognition of builder’s licence made under the Mutual Recognition Act 1992 (Cth) – where decision made that applicant was a permanently excluded individual and that the mutual recognition principle did not apply – where refusal to grant licence – whether decision made or taken to have been made under the Mutual Recognition Act 1992 (Cth) – whether decision was reviewable in QCAT or the AAT.

Administrative Appeals Tribunal Act 1975 (Cth) Mutual Recognition Act 1992 (Cth), s 16, s 17, s 19, s 20, s 21, s 23, s 34
Queensland Building and Construction Commission Act 1991 (Qld), s 56AC, s 58
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 47

D’Arro v Queensland Building and Construction Commission [2017] QCA 90
Re Petroulias [2004] QCA 261
Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123; (1996) 40 ALD 1
Shaboodien and Dental Board of Western Australia [2008] WASAT 102

APPEARANCES:

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

REPRESENTATIVES:

APPLICANT:

Becker Watt Lawyers

RESPONDENT:

Robinson Locke Litigation Lawyers

REASONS FOR DECISION

This is an application brought by the Queensland Building and Construction Commission (QBCC) to strike out an application for review of a decision on the basis this Tribunal lacks jurisdiction. Mr Longhurst applied to the QBCC for a licence on the basis that because he was already registered in Western Australia, he was entitled to be registered here, in Queensland. This argument is based on the application of the mutual recognition principle which applies to the registration of builders interstate by virtue of the application of the Mutual Recognition Act 1992 (Cth).
The QBCC is responsible for the licensing of builders in Queensland. If the QBCC makes a decision to refuse a license based on the application of provisions of the Queensland Building and Construction Commission Act 1991 (Qld), that decision is reviewable in the Queensland Civil and Administrative Authority (QCAT). The issue that arises here is whether a decision to refuse an application for registration in Queensland based on the Mutual Recognition Act (Cth) is reviewable in QCAT.
The applicant made an application for a licence to the Queensland Building and Construction Commission (QBCC) on a document headed “Licence Application Form – MUTUAL RECOGNITION” on 10 August 2016.[1] Following that application, a Mutual Recognition Form 6 setting out details of the applicant’s licence in Western Australia was forwarded to…

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: [2017] QCAT 215
Decision Date: 16 June 2017

CaseChat Overview and Summary

Longhurst v Queensland Building and Construction Commission involves the applicant, Longhurst, contesting a decision made by the Queensland Building and Construction Commission. This decision rejected the applicant's application for the mutual recognition of a building practitioner's licence under the Mutual Recognition Act 1992 (Cth). The applicant was deemed a permanently excluded individual, resulting in the denial of his application for the recognition of his licence in Queensland. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing the decision made by the Commission.

The primary legal issue before the court was whether the decision made by the Commission was reviewable by QCAT under section 47 of the QCAT Act or whether it should be considered for review by the Administrative Appeals Tribunal (AAT). The court had to determine whether the decision was made or taken to have been made under the Mutual Recognition Act 1992 (Cth) and, consequently, whether it was subject to QCAT's jurisdiction or that of the AAT.

In reaching its decision, the court considered the nature of the decision-making process and the statutory framework within which it occurred. The court concluded that the decision was indeed made under the Mutual Recognition Act 1992 (Cth). However, it found that the decision was not a decision of QCAT, and thus not subject to QCAT's jurisdiction. Instead, the decision was subject to review by the AAT. Consequently, the application to strike out the application was allowed, as the correct forum for review was the AAT, not QCAT.

Orders

Orders of the court

1. The application to strike out application GAR006-17 is allowed.

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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