Plotkin v Queensland Building Services Authority - [2012] QCAT 432

CITATION:

Plotkin and Ors v Queensland Building Services Authority [2012] QCAT 432

PARTIES:	Kym Anthony Plotkin Blade Pile Contracting Pty Ltd Cavalier Construction Group Pty Ltd
v
Queensland Building Services Authority

APPLICATION NUMBER:

OCR117-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

R F King-Scott, Member

DELIVERED ON:

11 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] The application by the QBSA to strike out the application for review by the Applicant is dismissed.

CATCHWORDS:

Categorisation of excluded individual as an influential person a decision of the Queensland Building Service Authority – right of review by a non-licensed individual

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

This is an application by the respondent, Queensland Building Services Authority [“QBSA”], to strike out part of the application to review the purported decision of the QBSA to categorise Mr Plotkin as an “excluded individual”.
On 14 March 2012, administrators were appointed to four licensed building companies, namely:
a.    Stylebuilt Homes Australia Pty Ltd;
b.    Universal Steel Framing Systems Pty Ltd;
c.    Cavalier Homes Brisbane Pty Ltd; and
d.    Steelbuilt Kit Homes Australia-Wide Pty Ltd.
Section 56AC of the QBSA Act provides:
Excluded individuals and excluded companies
(1)This section applies to an individual if--
(a)after the commencement of this section, the individual takes advantage of the laws of bankruptcy or becomes bankrupt (relevant bankruptcy event); and
(b)5 years have not elapsed since the relevant bankruptcy event happened.
(2)This section also applies to an individual if--
(a)after the commencement of this section, a company, for the benefit of a creditor--
(i)has a provisional liquidator, liquidator, administrator or controller appointed; or
(ii)is wound up, or is ordered to be wound up; and
(b)5 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (relevant company event) happened; and
(c)the individual--
(i)was, when the relevant company event happened, a director or secretary of, or an influential person for, the company; or
(ii)was, at any time after the commencement of this section and within the period of 1 year immediately before the relevant company event happened, a director or secretary of, or an influential person for, the company.
(3)If this section applies to an individual because of subsection (1), the individual is an excluded individual for the relevant bankruptcy event.
(4)If this section applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event.
(5)An excluded individual for a relevant bankruptcy event (the first event) does not also become an excluded individual for another relevant bankruptcy event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the individual.
(6)An excluded individual for a relevant company event (the first event) does not also become an excluded individual for…

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: [2012] QCAT 432
Decision Date: 11 September 2012

CaseChat Overview and Summary

The parties involved in this case are Plotkin, the applicant, and the Queensland Building Services Authority (QBSA), the respondent. The dispute pertains to the classification of an individual as an influential person by the QBSA and the right of review available to a non-licensed individual. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The central legal issue before the tribunal was whether Plotkin, a non-licensed individual, had the right to seek judicial review of the QBSA's decision to categorise an individual as influential. The QBSA argued that Plotkin's application for review should be struck out, as it was not a person who was aggrieved by the QBSA's decision.

The tribunal considered the statutory framework governing the QBSA's decision-making process and the potential for a non-licensed individual to be aggrieved by a decision concerning an influential person. It was determined that the QBSA's argument that only a licensed individual could be aggrieved by such a decision was too narrow. The tribunal held that the QBSA's interpretation of the relevant legislation was incorrect and that the plain language of the statute indicated that a non-licensed individual could indeed be aggrieved by a decision concerning an influential person. Consequently, the tribunal found that Plotkin had standing to seek judicial review of the QBSA's decision and dismissed the QBSA's application to strike out the review application. The tribunal further found that the QBSA's decision to categorise the individual as influential was not in accordance with the relevant legislation and ordered the QBSA to review its decision.

Orders

Orders of the court

[1] The application by the QBSA to strike out the application for review by the Applicant is dismissed.

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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