McClintock v Queensland Building Services Authority - [2011] QCATA 310

CITATION:

McClintock v Queensland Building Services Authority [2011] QCATA 310

PARTIES:	Mr Peter Cyril McClintock (Applicant/Appellant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

APL094-11

MATTER TYPE:

Appeals

HEARING DATE:

26 August 2011

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member
Michelle Howard, A/Senior Member

DELIVERED ON:

18 October 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of the tribunal dated 21 February 2011 is confirmed.

CATCHWORDS:

Excluded individual – where applicant significant shareholder in the company – whether the applicant an influential person – procedural fairness – where documents produced after the conclusion of the hearing – where Tribunal relied on the produced document to find the applicant an excluded individual – where failure to allow the applicant to lead further evidence about the produced documents – whether failure resulted in denial of natural justice

Corporations Act 2001 (Cth), s 198A
Income Tax Assessment Act 1936, s 252

Queensland Building Services Authority Act1991, ss 56AC(2)(c), 56AC(4), 56AD(8), 56AF(3), Schedule 2
Queensland Civil and Administrative Tribunal Act 2009, ss 4(c), 33(3), 142, 142(3)(b), 146

Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Kioa v West (1985) 159 CLR 550
Applicant Veal of 2002 v Minister for Immigration & Multicultural Affairs (2005) 225 CLR 88

Maher v Adult Guardian & Anor [2011] QCA 225
Foss v Harbottle (1883) 67 ER 189
Nation v QBSA (2006) QCCTB 114

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Peter Cyril McClintock was represented by Mr Taylor of Counsel instructed by Hallett Legal
RESPONDENT:	Queensland Building Services Authority was represented by Mr Thomson of counsel instructed by Malcolm Robertson, Solicitor

REASONS FOR DECISION

Mr McClintock is a registered builder and was a former director and nominee builder of Crescent Couriers Pty Ltd. He resigned his directorship on 15 April 2007. Mr McClintock was at all times a substantial shareholder of the company. The company carried on the business of the manufacture of lattice, fencing and residential construction.

On 1 July 2008 an Administrator was appointed to the company. As a consequence of the Administrator being appointed, the Queensland Building Services Authority categorised Mr McClintock as an ‘excluded individual’[1] resulting in the cancellation of his builder’s license for a period of five years. To retain his builders license[2] Mr McClintock applied to the Authority to be categorised as a ‘permitted individual’.

[1] Queensland Building Services Authority Act1991, s 56AC(4).

[2] QBSA Act, s 56AF(3).

On 27 April 2009 the Authority refused to categorise Mr McClintock as a permitted individual because it was not satisfied that he, as an influential person of the company, took all reasonable steps to avoid the circumstances that lead to the appointment of the administrator[3] to the company. On 17 May 2009 Mr McClintock filed an application to review that decision.

[3] QBSA Act, s 56AD(8).

On 4 January 2010, well outside the time limit…

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: [2011] QCATA 310
Decision Date: 18 October 2011

CaseChat Overview and Summary

McClintock v Queensland Building Services Authority is a case that came before the court to challenge the tribunal's decision, dated 21 February 2011, that the applicant, McClintock, was an excluded individual for the purposes of the Building and Construction Industry (Security of Payment) Act 2002. McClintock, a significant shareholder in the company, contested the tribunal's ruling, asserting procedural unfairness due to the tribunal's reliance on documents produced post-hearing and the failure to allow further evidence regarding those documents. The tribunal had concluded that McClintock was an excluded individual, impacting his entitlement to the security of payment provisions under the Act.

The court was tasked with determining whether McClintock qualified as an "influential person" under the Act, a classification that would render him an "excluded individual." This classification was pivotal as it impacted his eligibility for the security of payment provisions. The court also had to assess if McClintock's procedural rights were upheld when the tribunal relied on documents presented after the hearing had concluded and did not permit additional evidence regarding those documents.

In its ruling, the court found that McClintock's position as a significant shareholder did not automatically classify him as an influential person, as he lacked the authority to direct the company's business. The tribunal's decision to rely on post-hearing documents was deemed appropriate, as these documents were pertinent to the case and the tribunal's findings were supported by substantial evidence. The court concluded that the tribunal's decision did not violate the principles of natural justice, as the tribunal had adequately considered all relevant evidence.

The court confirmed the tribunal's decision, dated 21 February 2011, that McClintock was an excluded individual under the Building and Construction Industry (Security of Payment) Act 2002. This decision affirmed that McClintock's procedural rights were not infringed upon, as the tribunal had correctly evaluated the evidence and made a fair and unbiased determination.

Orders

Orders of the court

The decision of the tribunal dated 21 February 2011 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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