Palmer v Queensland Building Services Authority - [2012] QCATA 158

CITATION:

Palmer v Queensland Building Services Authority [2012] QCATA 158

PARTIES:	Lloyd Wayne Palmer (Applicant/Appellant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

APL072-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

29 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Application for leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – where matter was commenced in Consumer and Commercial Tribunal and dismissed by QCAT – excessive amount of time lapsed – where appeal filed out of time– no extension of time sought by appellant – question of medical capacity to participate in proceedings raised – where Senior Member exercised discretion – application without merit

Queensland Building Services Authority Act 1991, s 31(1)(a), (c)

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 143 (5), 61(1), 123(2)

GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Mr Palmer applied to the QBSA in late 2006 for a licence to work as a contractor in the areas of refrigeration and air-conditioning. Dissatisfied with the QBSA’s response, he began proceedings in QCAT’s predecessor the Commercial Consumer Tribunal (CCT) in 2007.
Those proceedings were still on foot when QCAT took over from the CCT on 1 December 2009 and, eventually, were dismissed by a QCAT Senior Member on 7 April 2010. On 2 September 2011, almost seventeen months later, Mr Palmer filed an application in QCAT seeking leave to appeal that decision.
He says, in short, that he sought an adjournment of the final hearing of the matter listed before the Senior Member on 7 April 2010 because he was medically unfit to proceed on that day; that the Member was wrong not to grant him that adjournment; and, was also wrong to proceed to dismiss his application altogether.
The reasons given by the learned Senior Member for refusing the adjournment and, also, for dismissing Mr Palmer’s application altogether make it clear he gave significant weight to a number of matters, including lengthy delays in the original licence application process between Mr Palmer and QBSA; Mr Palmer’s proceedings in the CCT; and, what had occurred in QCAT.
That history is set out in an affidavit from a QBSA officer, and is uncontentious[1]. Mr Palmer’s original licence application, lodged in November 2006, was refused because he persistently failed or refused to provide the Authority with sufficient information to satisfy what are called the “experience requirements” despite, as the affidavit also shows, repeated attempts by QBSA to obtain the relevant information from him.
[1] Affidavit Cameron Murphy sworn 25 March 2010.
Indeed, rather than provide that information Mr Palmer instead brought review proceedings in the CCT in June 2007.
His CCT application proceeded at a very stately pace. The last time the matter came to the attention of a CCT Member, on 28 April 2008, it was listed for a one day hearing at a time and date to be advised by the CCT registry. According to the order made on that day:
“…the parties agree the matter is ready for hearing”.
Nevertheless, for reasons which are not clear from the CCT file, it was never given a hearing date. There is, however, nothing on the file to suggest Mr Palmer pressed for one.
QCAT conducted a compulsory conference in January 2010 and the presiding Member directed, in particular, that by 3 February 2010 Mr Palmer file and serve a statement containing details of his financial position and showing that he was a fit and proper person to be issued with a licence, and providing more information about his experience in the past. The matter was then listed for a hearing on 7 April 2010.
It was only after that conference that Mr Palmer provided information about his past experience which, the evidence otherwise shows, the QBSA had been seeking from him since 2006. The QBSA’s submissions in the present application claim that, had that information been provided with the original application in November 2006, Mr Palmer would have been issued with a licence.
However, because a period of more than three years had passed since the licence application had been lodged, the QBSA also sought a declaration from Mr Palmer that he satisfied certain provisions in the QBSA Act, described in short form as the:
“financial and fit and proper person provisions of the licence application”[2].
[2] Queensland Building Services Authority Act 1991, s 31(1)(a)(c).
The QBSA then took steps to assist Mr Palmer to meet this requirement by providing him with a simplified licence application form which dealt specifically with those provisions. Despite that, and the QCAT directions after the compulsory conference, Mr Palmer did not provide the declaration.
On 1 April 2010, shortly before the hearing date of 7 April, the matter came back to QCAT for a directions hearing before a Member. Mr Palmer appeared by telephone. In the course of that hearing the QBSA representative reminded him that if he provided the material it required, it could proceed to issue the licence he sought. Mr Palmer did not suggest he was unwell, or unable to proceed with the hearing listed for 7 April.
On 6 April, however, he applied to adjourn the hearing and produced a medical certificate. The learned QCAT Senior Member commenced the hearing on 7 April and there is a transcript of the proceedings, which lasted about half an hour. Mr Palmer attended in person. His application to adjourn was refused and, indeed, the learned Senior Member struck out his application to review altogether.
Mr Palmer’s application for leave to appeal (and his appeal, if leave is granted) is well out of time. The Senior Member’s decision of 7 April 2010 was sent out to him on that day and, upon receipt, he had 28 days to file his application for leave to appeal[3]. He did not do so until 2 September 2011 and claims, now, that he did not receive the decision until August 2011, ie some sixteen months after it was handed down.
[3] Queensland Civil and Administrative Tribunal Act 2009, s 143.
There is, however, a record on the QCAT file showing that he contacted the Registry in early May 2010 enquiring about his appeal rights and the Registry wrote to him on 5 May 2010 explaining his options. He has not attempted to explain the delay, or sought and extension of time under s 61(1) of the QCAT Act.
Some confusion, it must be said, surrounds the matter. The QCAT Act provides that the time for an application for leave to appeal, or appeal, commences on the day the person is given written reasons for the decision[4] and “written reasons” may be constituted either by a transcript, or an audio recording[5]. Other QCAT records suggest Mr Palmer sought the audio recording and it was not sent to him until 1 October 2010, with the result that the appeal period may not have expired until around the end of October 2010.
[4] Section 143(5).
[5] Section 123(2).
Even so, the appeal was still almost one year out of time. This unexplained circumstance is, by itself, sufficient reason to conclude that the application for leave to appeal ought to be refused.
In light of the uncertainty mentioned above it is appropriate, nevertheless, to proceed to consider Mr Palmer’s application. That exercise shows that, even if he received the benefit of an extension of time, he is not entitled to a grant of leave and his appeal would be futile.
The only evidence Mr Palmer adduced before the Senior Member on 7 April was a report from a general medical practitioner of 6 April 2010 which said:
“In my opinion, he is under significant stress at the moment and will be unfit for attending the court on 07.04.10”.
In his application for leave to appeal Mr Palmer has presented a report from a psychologist dated 10 May 2012 which says he is a current client of the psychologist, Mr Boardman, and has been a patient of the practice in which he works since approximately mid 2010, but that his treatment has been principally provided by another psychologist in the practise, Ms Wood. She reports that Mr Palmer is experiencing significant psychological distress and has been diagnosed with a depressive disorder. Mr Boardman observes that the hearing in 2010 coincided with the commencement of treatment for this and other psychological problems.
Putting aside the question whether or not this recent evidence from another psychologist ought be allowed in the current appeal proceedings it does not, on its face, support Mr Palmer’s assertion that he was medically unfit to attend the hearing and, indeed, contradicts his submissions to the learned Senior Member on 7 April 2010 that he had in fact been receiving counselling treatment for twelve to eighteen months before that time.
In the course of his oral Reasons the learned Senior Member observed that, not withstanding the very terse report from the GP upon which the application for an adjournment was advanced, he might have been inclined to grant it but for the long and, in his view, unnecessary delays in the proceedings which, he concluded, had been caused by Mr Palmer’s “previous obstructive conduct”.
The transcript shows that the Senior Member concluded, in the course of the hearing, that Mr Palmer was in fact feigning the act of going to sleep at the bar table in the hearing room; noted that he could not tell the Senior Member what medication he was taking; could not give any information about the nature of his mental health problems; and, had not produced any report from the psychologist who, he claimed, had been treating him for twelve to eighteen months.
The learned Senior Member said:
“there was no suggestion at any time in the past that he would not be fit by reason of any psychological condition to continue with the litigation, and the very fact that he wrote letters…would suggest that he is capable of conducting the hearing...In my opinion this is another attempt to prolong this matter which is entirely unfair to the respondent”.
The learned Senior Member then went on to refer to the unfortunate history of the matter and the long delays, and said that he intended to proceed. He then asked Mr Palmer if he was ready to proceed with the hearing and Mr Palmer is recorded as replying “It’s in your hands”.
The QBSA was ready to proceed. It appears, from the transcript, that Mr Palmer then, again, rested his head on the table in the hearing room, an activity the learned Senior Member described as, again, “feigning sleep”.
At that point the learned Senior Member concluded that Mr Palmer did not intend to “…engage in the proceeding today” and acceded to QBSA’s application to have the entire proceedings dismissed.
In both respects – that is, in refusing the adjournment and, then, dismissing Mr Palmer’s application altogether – the learned Senior Member was exercising a discretionary power. An Appeal Tribunal will not readily move to interfere with orders of that kind unless it can be shown that the discretion has been exercised on a wrong principle, or resulted in a serious injustice[6].
[6] GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710.
Naturally, care must be taken when a party claims that injustice has arisen without fault on their part, and because of some mental infirmity; but, the conduct of Mr Palmer throughout the proceedings, his very late application for an adjournment, the paucity of medical evidence advanced to support his claim for the adjournment, and his conduct at the hearing (which the learned Senior Member was in the best position to observe) all provided reasonable grounds justifying the exercise of the learned Senior Member’s discretion to refuse the adjournment, and dismiss the proceeding.
It cannot be said that the discretion miscarried, or was unjustly exercised.
It is not inappropriate to observe, too, that the delays which surround the current application for leave are of the same kind as those which eventually led the learned Senior Member to, in effect, lose patience with Mr Palmer. It is inescapable that he has, from 2006, had a remedy readily to hand – simply providing the QBSA with the information it sought, and which it fairly attempted to assist him to provide.
The application for leave to appeal is without merit, and must be refused.