McGee v Queensland Building and Construction Commission

CITATION: McGee v Queensland Building and Construction Commission [2016] QCAT 207

PARTIES:	Daniel Michael McGee (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: OCR258-14

MATTER TYPE:	Occupational regulation matter
HEARING DATE:	26 November 2015

HEARD AT: Brisbane

DECISION OF: Member Hanly

DELIVERED ON: 15 June 2016

DELIVERED AT: Brisbane

ORDERS MADE:

1. The decision of the Queensland Building and Construction Commission dated 17 October 2014 to refuse to categorise Daniel Michael McGee as a “permitted individual” under s 56AD(8) of the Queensland Building and Construction Commission Act 1991 is set aside;

2. Daniel Michael McGee is categorised as a “permitted individual” under s 56AD(8) of the Queensland Building and Construction Commission Act 1991.

CATCHWORDS:

ADMINISTRATIVE REVIEW – OCCUPATIONAL REGULATION – PERMITTED INDIVIDUAL – relevant event – whether applicant took all reasonable steps to avoid circumstances leading to relevant event

Queensland Building and Construction Commission Act 1991 (Qld) ss 56AC, 56AD
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s20

Younan v Queensland Building Services Authority [2010] QDC 158
Younan v Queensland Building Services Authority [2011] QCA 1

APPEARANCES:

APPLICANT: Mr Lindsay Bowden of Counsel, for the applicant

RESPONDENT: Ms Maire Guiney, in-house solicitor, for the respondent

REPRESENTATIVES:

APPLICANT:

RESPONDENT:

represented by QBM Lawyers

represented by in-house solicitor

REASONS FOR DECISION

1. Mr McGee was a director of Total Concept Glass Pty Ltd, formerly Total Concept Group Pty Ltd, (TCG), to which voluntary administrators were appointed on 21 August 2014. Consequently, Mr McGee became an excluded individual.[1]

   [1]Queensland Building and Construction Commission Act 1991 (QBCC Act), s56AC(3).

2. Mr McGee then made application to the Queensland Building and Construction Commission (QBCC) to be categorised as a permitted individual.[2]

   [2]Ibid s56AD.

3. On 17 October 2014, QBCC refused that application on the basis that it was not satisfied that Mr McGee had taken all reasonable steps to avoid the circumstances that resulted in the relevant event.

4. Mr McGee sought review of that decision by the Tribunal.[3] The Tribunal is required to consider the matter afresh, and to determine it on its merits. In doing so, the Tribunal is required to make “the correct and preferable decision”.[4]

   [3]Ibid s86(1)(j); Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 9(1).

   [4]Section 20 (QCAT Act).

5. The Tribunal may categorise Mr McGee as a permitted individual only if it is satisfied that he “took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event.”[5] The “relevant event” referred to in section 56AD(8) refers to the relevant event set out in section 56AC.

   [5]Section 56AD(8) QBCC Act.

6. It is necessary, therefore, for the Tribunal to decide the following issues:

   a)    What is the “relevant event”?

   b)    What were the circumstances that resulted in the happening of the relevant event?

   c)    Did Mr MCGee take all reasonable steps to avoid the coming into existence of those circumstances?

   d)    If the threshold issue is satisfied, should the Tribunal exercise its discretion to classify Mr McGee as a…