McClintock v Queensland Building Services Authority - [2011] QCAT 47

CITATION:		McClintock v Queensland Building Services Authority [2011] QCAT 47
PARTIES:	Mr Peter Cyril McClintock (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR006-10 and QR127-09

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

12 November 2010

HEARD AT:

Brisbane

DECISION OF:

Mr J Allen

DELIVERED ON:

21 February 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of the respondent to categorise the respondent as an excluded individual is affirmed.

CATCHWORDS :

Excluded Individual Queensland Building Services Authority Act 1991 section 56AC, influential person, substantial shareholder

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Peter Cyril McClintock represented by Mr Damien Atkinson of counsel instructed by Hallett Legal
RESPONDENT:	Queensland Building Services Authority represented by Mr Malcolm Robinson, solicitor of Forbes Dowling Lawyers

REASONS FOR DECISION

INTRODUCTION

Mr Peter McClintock was a substantial shareholder in and had until 15 April 2007 been the sole director of Crescent Couriers Pty Ltd (the Company), which had traded in the building industry until ceasing to trade in June 2006. On 1 July 2008 an administrator was appointed to the Company on the application of the Company’s director, Mr Damon Hughes, pursuant to section 436A(1) of the Corporations Act 2001 (Cth). The Queensland Building Services Authority (QBSA) advised Mr McClintock in writing on 16 July 2008 that it considered him to be an excluded individual pursuant to section 56AC of the Queensland Building Services Authority Act 1991 (the Act) and invited him to make application to be categorised as a permitted individual under section 56AD of the Act. Mr McClintock made an application to the QBSA to be categorised as a permitted individual. The QBSA advised Mr McClintock by letter dated 27 April 2009 that his application to be categorised as a permitted individual had been refused. Mr McClintock filed an application to review that decision in the former Commercial and Consumer Tribunal on 17 May 2009. That application had not been determined before the Tribunal took over the jurisdiction of the former Tribunal and it is has now come to be heard by the Tribunal. Mr McClintock filed a further application in the Tribunal on 4 January 2010 to review the QBSA decision that it considered him to be an excluded individual. The two applications were consolidated by order of the Tribunal on 8 April 2010. Due to the delay in filing the application to review the excluded individual decisions there was also a requirement that an extension of time be granted in respect of that application. The application for an extension of time was initially heard on the papers by a Tribunal member and refused. Subsequently it was allowed on appeal to the Appeal Tribunal. It was ordered by the Appeal Tribunal that both matters then be heard together. This decision is in respect of the first part of that hearing which dealt with the review of the decision that Mr McClintock was an excluded individual.

THE LAW

The provisions of the Act being considered here have recently been the subject of…

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] QCAT 47
Decision Date: 21 February 2011

CaseChat Overview and Summary

In the case of McClintock v Queensland Building Services Authority, the plaintiff sought to challenge the respondent's decision to categorise them as an excluded individual under section 56AC of the Queensland Building Services Authority Act 1991. The respondent's decision was based on the plaintiff being an influential person and holding a substantial shareholding in a related entity. The matter was heard in the Queensland Court of Appeal.

The central legal issue before the court was whether the respondent's decision to classify the plaintiff as an excluded individual was lawful, reasonable, and supported by the evidence. The court examined the relevant statutory provisions and case law to determine the appropriate scope and application of the term "influential person" and the extent of the respondent's discretion in making such a determination. Additionally, the court considered whether the respondent's decision was based on an error of law or an unreasonable exercise of discretion.

The court held that the respondent's decision to classify the plaintiff as an excluded individual was lawful and reasonable, given the evidence presented. The court found that the term "influential person" was not limited to those who had direct control or management of a related entity, but rather encompassed individuals who held a position of significant influence or control. The court also determined that the respondent's decision was not an unreasonable exercise of discretion, as it was supported by the evidence and fell within the scope of the statutory provisions. Consequently, the court affirmed the respondent's decision and dismissed the plaintiff's appeal.

As a result of the court's decision, the respondent's determination to categorise the plaintiff as an excluded individual under section 56AC of the Queensland Building Services Authority Act 1991 was upheld. The plaintiff's appeal was dismissed, and no further orders were made.

Orders

Orders of the court

The decision of the respondent to categorise the respondent as an excluded individual is affirmed.

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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