Mair v Queensland Building and Construction Commission - [2014] QCAT 566

CITATION:

Mair v Queensland Building and Construction Commission [2014] QCAT 566

PARTIES:	Jeffrey Allan Mair (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR219-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

26 August 2014

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

4 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building and Construction Commission to refuse to categorise Jeffrey Allan Mair as a permitted individual pursuant to s 56 of the Queensland Building and Construction Commission Act is confirmed.

CATCHWORDS:

BUILDER – PERMITTED INDIVIDUAL – where a builder applied to be categorised as a permitted individual under the QBCC Act – where the builder was the Director of a company which operated a Hardware Store and was placed into liquidation – where amounts were owing to the Australian Taxation Office – where the builder failed to properly oversee the business as a Director

Queensland Building and Construction Commission Act 1991 (Qld) ss 56AC, 56AD
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(c), 20, 24

Jones v Dunkel [1959] 101 CLR 298
Meredith v Queensland Building Services Authority [2012] QCAT 146
Re Property Force Consultancy Pty Ltd (in liq) [1995] QSC 102

APPEARANCES:

APPLICANT:

Mr M Drysdale of Counsel instructed by Gadens Lawyers brisbane

RESPONDENT:

Mr M Robinson of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

Mr Mair is a builder. He was the director of a company called Techmech Group Pty Ltd (the company) which operated a hardware store and which went into liquidation within one year of his being a Director. As a result the Queensland Building and Construction Commission (QBCC) considered him to be an “excluded individual” pursuant to s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act).
He applied to the QBCC to be declare a “permitted individual” pursuant to s 56AD of the QBCC Act. The QBCC refused his application on 26 July 2013.
He has now applied to the Tribunal, by an application filed on 28 August 2013, for a Review of the decision of the QBCC. The application was heard by an oral hearing on 26 August 2014.
The Tribunal has jurisdiction to review the decision of the Commission not to categorise an individual as a permitted individual for a relevant event.[1] On review, the Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision; or set aside the decision and return the matter to the decision-maker.[2]
[1]QBCC Act s 86(1)(j).
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 24.
The Tribunal has all the functions of the decision-maker for the reviewable decision.[3] The purpose of the review is to produce the correct and preferable decision, following a fresh hearing on the merits.[4] The Tribunal stands in the shoes of the decision-maker and makes the decision afresh.
[3]QCAT Act s 19(c).
[4]QCAT Act s 20.
The Commission stated in its Statement of Reasons for the decision that…

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: [2014] QCAT 566
Decision Date: 4 November 2014

CaseChat Overview and Summary

The applicant, Jeffrey Allan Mair, sought to be recognised as a permitted individual under the Queensland Building and Construction Commission Act. The Commission refused this application, citing Mair's history of business management and financial oversight issues. Mair sought judicial review of the Commission's decision, arguing the refusal was unreasonable and that the Commission had not correctly applied the relevant statutory criteria. The central legal issue was whether the Commission's refusal was lawful and whether the statutory criteria for categorising a person as a permitted individual were appropriately applied.

The court examined the statutory criteria for being recognised as a permitted individual and found that Mair had failed to demonstrate the requisite standards of honesty, competence, and reliability. Mair's involvement with a hardware store that was placed into liquidation, coupled with his failure to properly oversee the business as a Director and outstanding debts to the Australian Taxation Office, were significant factors in the Commission's decision. The court found that the Commission had correctly applied the statutory criteria and that Mair's history of business mismanagement and financial irresponsibility justified the refusal to categorise him as a permitted individual. The decision was consistent with the legislative intent to protect the public from incompetent or dishonest building practitioners.

The court confirmed the Commission's decision, holding that Mair's application to be recognised as a permitted individual was properly refused. The court found no error in the Commission's application of the statutory criteria, and thus upheld the refusal. The orders made by the court included confirming the decision of the Queensland Building and Construction Commission to refuse Mair's application, with no further orders for costs or other relief.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission to refuse to categorise Jeffrey Allan Mair as a permitted individual pursuant to s 56 of the Queensland Building and Construction Commission Act is confirmed.

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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