Olin v Queensland Building and Construction Commission - [2018] QCATA 167

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Olin v Queensland Building and Construction Commission [2018] QCATA 167

PARTIES:

PETER JAMES OLIN
(appellant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL314-17

ORIGINATING APPLICATION NO/S:

OCR006-17

MATTER TYPE:

Appeals

DELIVERED ON:

9 November 2018

HEARING DATE:

13 April 2018

HEARD AT:

Brisbane

DECISION OF:

Member Browne, Presiding
Member Traves

ORDERS:

1. The application for leave to appeal or appeal filed 29 September 2017 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – STATUTORY CONSTRUCTION – where applicant was a director, secretary or influential person of a company – where liquidator was appointed to the company – whether appointment of a liquidator was a relevant company event – whether applicant is an excluded individual by reason of the relevant company event – whether company was a ‘construction company’ within s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) – where Queensland Building and Construction Commission declared the applicant an excluded individual – where applicant applied for a review of the decision – where Tribunal confirmed the decision – where the applicant appeals the decision – whether error of law – whether leave required if appeal raises a question of mixed fact and law – whether error in the Tribunal’s decision – statutory interpretation – meaning of ‘carries out’ in s 56AC(7) of the QBCC Act

Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 32A
Building Industry Fairness (Security of Payment) Act 2017 (Qld)
Professional Engineers and Other Legislation Amendment Act 2014 (Qld)
Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 56AC, s 56AE, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, 146, 147

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26
Coal Developments (German Creek) Pty Limited ACN 009 974 896 v Commissioner of Taxation [2007] FCA 1324
Commission of State Revenue v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651
D’Arro v Queensland Building and Construction Commission [2018] 1 QdR 204
Ericson v Queensland Building and Construction Commission [2013] QCA 391
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628
Grain Elevators Board (Vict.) v Dunmunkle Corporation [1946] 73 CLR 70
Hunter Resources Ltd v Melville (1988) 164 CLR 234
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
Kelly v R (2004) 218 CLR 216
Olin v Queensland Building and Construction Commission [2017] QCAT 319
Pickering v McArthur [2005] QCA 294
Racing Queensland Limited v Dixon [2013] QCATA 172
SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936
Vetter v Lake Macquarie City Council [2001] 202 CLR 439

APPEARANCES & REPRESENTATION:

Applicant:

P Hackett instructed by Colwell Wright Solicitors

Respondent:

S Moody instructed by Queensland Building and Construction Commission Legal Services

REASONS FOR DECISION

Peter Olin can no longer work as a licensed builder because…

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: [2018] QCATA 167
Decision Date: 9 November 2018

CaseChat Overview and Summary

The case of Olin v Queensland Building and Construction Commission involved Mr Olin, a director and influential person of BJS, challenging the Queensland Building and Construction Commission's (Commission) decision to declare him an 'excluded individual'. The Commission had determined that Mr Olin was an excluded individual due to his role in BJS at the time of a liquidator's appointment, which affected his eligibility for a building licence. The dispute centred on the interpretation of the Queensland Building and Construction Commission Act 1991 (Qld) and whether BJS qualified as a 'construction company' when the liquidator was appointed.

The central legal issues in the case were whether the appointment of a liquidator to BJS constituted a 'relevant company event' under the Act, and if so, whether this event made Mr Olin an excluded individual. Additionally, the court had to interpret the term 'carries out' in section 56AC(7) of the Act to determine if BJS was a 'construction company' when the liquidator was appointed. The case also examined the statutory construction of the Act, particularly the impact of legislative amendments on the Tribunal's decision.

The Queensland Civil and Administrative Tribunal (QCAT) upheld the Commission's decision, confirming that Mr Olin was indeed an excluded individual due to the relevant company event. The Tribunal found that BJS had been carrying out construction activities until shortly before the liquidator's appointment, which qualified it as a 'construction company' under the Act. The Tribunal applied the version of the Act in force at the time it made its decision, and the Appeal Tribunal agreed that it should do the same in its review of the case. The Appeal Tribunal found no error in the Tribunal's interpretation of the Act and dismissed Mr Olin's appeal.

The Appeal Tribunal concluded that the Tribunal's decision was correct and there was no error of law. Therefore, the appeal was dismissed, and the Commission's declaration of Mr Olin as an excluded individual was upheld.

Orders

Orders of the court

1. The application for leave to appeal or appeal filed 29 September 2017 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Similarly, the Appeal Tribunal in proceeding under s 147 of the QCAT Act on a question of mixed fact and law would also apply the version of the QBCC Act that was applied by the Tribunal at the time it made its decision. This is because the Appeal Tribunal would decide the appeal under subsection 147(2) by way of a ‘rehearing’ with or without the hearing of additional evidence as decided by the Appeal Tribunal.[44] We do not consider that the reference to ‘rehearing’ in s 147 of the QCAT Act requires us to conduct a hearing de novo in the strict sense as conducted by the Tribunal below. In arriving at this position, we accept Mr Olin’s written submission that in an appeal by way of ‘rehearing’ the task of the Appeal Tribunal remains the correction of an error in the decision below, and that reliance on legislation amended after that decision would undermine that task.[45][44]QCAT Act, s 147(2).[45]Appellant’s further submissions filed 26 April 2018.The decision of the Tribunal below In this matter, the Commission considered Mr Olin was an ‘excluded individual’ because he was a director of BJS at the time of, or within one year of, a liquidator having been appointed to BJS.[46] The Commission determined that a liquidator was appointed to BJS on 2 December 2016.[47] The reviewable decision before the Tribunal was therefore whether Mr Olin was an ‘excluded individual’. This required a consideration of s 56AC even though the Commission exercised its power under s 56AF to make the decision that Mr Olin was an excluded individual. More importantly, it was necessary for the Tribunal on review to interpret the relevant subsections 56AC(2), (4) and (7) which dictate when a person is considered an excluded individual because of a relevant company event. In particular, the learned Member had to consider whether BJS was a ‘construction company’ within s 56AC(7) when the liquidator was appointed.[46]Notice of reasons for proposed cancellation of licence dated 5 December 2016, Appeal Book, p 14.[47]Ibid. The learned Member applied the QBCC Act current at the time he made his decision. The learned Member’s reasons set out the agreed facts concerning BJS and its operations prior to and at the time of the appointment of a liquidator.[48] Those facts, set out below, are not challenged on appeal:a) On 2 December 2016, a liquidator was appointed to BJS;b) From 4 February 2011 to the date of liquidation Mr Olin was a director, secretary or influential person;c) Before March 2016, BJS carried out ‘building work’ or ‘building work services’ comprised of fire certification, joint sealing and concrete repair;d) In or around March 2016, BJS ceased taking on new work;e) On or around 5 April 2016, BJS performed minor additional work of sealing joints, gutters and flashing at a previous job site;f) On or around 8 April 2016, BJS performed minor additional work and issued its final progress claim for work at another previous job site;andg) Apart from Mr Olin cancelling BJS’ building licences in November 2016, from April 2016 until appointment of the liquidator, BJS’ only activities were to sell assets and pay administrative expenses.[48]Reasons, [7].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Olin v Queensland Building and Construction Commission [2018] QCATA 167
PARTIES:	PETER JAMES OLIN (appellant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	APL314-17
ORIGINATING APPLICATION NO/S:	OCR006-17
MATTER TYPE:	Appeals
DELIVERED ON:	9 November 2018
HEARING DATE:	13 April 2018
HEARD AT:	Brisbane
DECISION OF:	Member Browne, Presiding Member Traves
ORDERS:	1. The application for leave to appeal or appeal filed 29 September 2017 is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – STATUTORY CONSTRUCTION – where applicant was a director, secretary or influential person of a company – where liquidator was appointed to the company – whether appointment of a liquidator was a relevant company event – whether applicant is an excluded individual by reason of the relevant company event – whether company was a ‘construction company’ within s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) – where Queensland Building and Construction Commission declared the applicant an excluded individual – where applicant applied for a review of the decision – where Tribunal confirmed the decision – where the applicant appeals the decision – whether error of law – whether leave required if appeal raises a question of mixed fact and law – whether error in the Tribunal’s decision – statutory interpretation – meaning of ‘carries out’ in s 56AC(7) of the QBCC Act Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 32A Building Industry Fairness (Security of Payment) Act 2017 (Qld) Professional Engineers and Other Legislation Amendment Act 2014 (Qld) Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld) Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 56AC, s 56AE, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, 146, 147 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 Coal Developments (German Creek) Pty Limited ACN 009 974 896 v Commissioner of Taxation [2007] FCA 1324 Commission of State Revenue v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651 D’Arro v Queensland Building and Construction Commission [2018] 1 QdR 204 Ericson v Queensland Building and Construction Commission [2013] QCA 391 Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 Grain Elevators Board (Vict.) v Dunmunkle Corporation [1946] 73 CLR 70 Hunter Resources Ltd v Melville (1988) 164 CLR 234 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Kelly v R (2004) 218 CLR 216 Olin v Queensland Building and Construction Commission [2017] QCAT 319 Pickering v McArthur [2005] QCA 294 Racing Queensland Limited v Dixon [2013] QCATA 172 SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 Vetter v Lake Macquarie City Council [2001] 202 CLR 439
APPEARANCES & REPRESENTATION:
Applicant:	P Hackett instructed by Colwell Wright Solicitors
Respondent:	S Moody instructed by Queensland Building and Construction Commission Legal Services