McNabb v Ivanoff

[2010] QCAT 692

CITATION: Cowley v Queensland Building Services Authority [2011] QCAT 98

PARTIES:	Mr John Wellesley Cowley
v
Queensland Building Services Authority

APPLICATION NUMBER:   OCR090-10   

MATTER TYPE: Occupational regulation matters

HEARING DATE:      On the papers

HEARD AT:    Brisbane

DECISION OF: Ms Peta Stilgoe, Member

DELIVERED ON: 21 March 2011

DELIVERED AT:       Brisbane

ORDERS MADE: Application to issue notice to produce is refused.

CATCHWORDS:  Notice to produce – where Authority refused application for permitted individual – where application that liquidator produce documents – where scope of documents sought very wide – where relevance of documents not established

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Cowley has applied for a review of the Authority’s decision to refuse to categorise him as a permitted individual.  He was a director of Secured Mortgage Management Limited, now in liquidation.

2. Mr Cowley has applied for a notice to be issued to the liquidator of Secured requiring the production of twenty classes of documents.

3. Section 63(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides:

   The tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document or other thing relevant to the proceeding to produce the document or thing.

4. In order to identify whether a document is relevant to the proceedings, it is necessary to look at the law relating to permitted individuals.  Section 56AD(8) of the Queensland Building Services Act 1991 provides that a person may be categorised as a permitted individual if the Authority (and, by implication, the tribunal) is satisfied that the individual took all reasonable steps to avoid the coming into existence of the relevant event.  The matters that the tribunal can consider when making that decision are set out in section 56AD(8A); what action a person took in:

a)Keeping proper books of account and financial records;

b)Seeking appropriate financial or legal advice before entering into the financial or business arrangements or conducting business;

c)Reporting fraud or theft to the police;

d)Ensuring guarantees provided were covered by sufficient assets;

e)Putting in place appropriate credit management;

f)Making appropriate provision for taxation debts.

1. The Authority’s decision to refuse Mr Cowley permitted individual status recites, at paragraph 30, that Mr Cowley’s submissions did not include evidence about a number of matters.  On 10 June 2010, the tribunal gave directions that allowed Mr Cowley access to extensive documentation relating to the twelve loans identified by the Authority.  Access to those documents should have addressed a number of the points raised by the Authority in paragraph 30.

2. I do not see how this request for production of documents addressed the balance of the Authority’s concerns.  It seems to me that, rather than seeking documents that address what action Mr Cowley took to prevent the liquidation of Secured, the request focuses on documents that may exculpate Mr Cowley from any management responsibility within the company.  It is a broad and wide ranging request – the word “fishing” comes to mind – and I am not satisfied that the request for documents addresses the issues to be determined by the tribunal pursuant to section 56AD.  Whether the request does, in fact, address section 56AD may be clearer when Mr Cowley files his submissions.  The application is premature; it should be refused.