Plotkin v Queensland Building Services Authority
[2012] QCAT 432
•11 September 2012
| 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 another relevant company 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 company.
(7)A company is an excluded company if an individual who is a director or secretary of, or an influential person for, the company is an excluded individual for a relevant event.
The appointment of administrators was a relevant company event pursuant to s 56AC(2) of the Queensland Building Services Authority Act 1991 [“the Act”]. The shares in the administered companies, I understand, were held by Global Technology Services Pty Ltd, of which Mr Plotkin was the sole director. Mr Plotkin is a director of both corporate applicants and both corporate applicants are licensed under the Act.
QBSA, by letter dated 16 March 2012, advised Mr Plotkin that he was an excluded individual for a relevant event. The relevant event was the appointment of administrators to the four licensed building companies referred to above.
Section 56AC of the Act has the effect of rendering a person in Mr Plotkin’s position an excluded individual if he is a director, secretary or influential person for a company that has a relevant company event. There is no requirement that the company or the individual be licensed under the Act.
An “influential person” for a company means ― “an individual, other than a director or secretary of the company, who is in a position to control or substantially influence the conduct of the company’s affairs, including, for example a shareholder with a significant shareholding, a financier or senior employee”[1].
[1] See QBSA Act Schedule 2, Dictionary.
QBSA gave a written notice to Mr Plotkin advising him of the effect of being an excluded individual and that he could apply to become a permitted individual. That notice purportedly was given under Part 3A of the Act. However, s 56AF of the Act applies to individuals who are licensed under the Act. The parties agree that Mr Plotkin does not hold a licence under the Act. I am not aware that he has ever held a licence. There is no other provision in the Act or obligation on the part of the QBSA to notify a non-licensed person that he is an excluded person.
Section 56AF states as follows:
56AF Procedure if licensee is excluded individual
(1)This section applies if the authority considers that an individual who is a licensee is an excluded individual for a relevant event.
(2)The authority must give the individual a written notice identifying the relevant event and stating the following—
(a)why the authority considers the individual is an excluded individual for the relevant event;
(b)the individual may apply to the authority to be categorised as a permitted individual for the relevant event if the individual has not already done so;
(c)the circumstances, stated in subsection (3), in which the authority must cancel the individual’s licence.
(3)The authority must cancel the individual’s licence by written notice given to the individual if—
(a)the individual has not already applied to be categorised as a permitted individual for the relevant event, and the individual does not apply for the categorisation within 28 days after the authority gives the individual the written notice under subsection (2); or
(b)the individual has already applied to be categorised as a permitted individual for the relevant event, or the individual applies for the categorisation within the 28 days mentioned in paragraph (a), but—
(i)the authority refuses the application; and
(ii)either of the following applies—
(A) the period for applying for a review of the decision to refuse has ended and no application for review has been made;
(B) an application for review has been made and the authority’s decision is confirmed, or the application is not proceeded with.
(4) Section 49 does not apply to a cancellation under subsection (3).
[10]The substantial application seeks to review the decision that Mr Plotkin is an excluded person and that the corporate applicants are excluded companies. By way of relief they seek to set aside “the decisions”.
[11]In respect to Mr Plotkin’s application the QBSA responded that he had no entitlement to do so as he was not a licensed person and, therefore, s 56AF had no application. However, it does not apply to strike out the corporate applicants.
[12]Mr Plotkin and the corporate applicants criticise the QBSA for issuing letters of advice in respect of the 4 excluded companies advising him of his rights under s 56AF as he was not a licensed individual. In that regard their contention is correct as s 56AF has no apparent application to someone who is not licensed.
[13]Mr Plotkin and the corporate applicants submit that implicit in the letters to the corporate applicants is a decision under s 56AG of the Act that Mr Plotkin is an excluded individual.
[14]Mr Plotkin can apply to become a permitted individual under s 56AD of the Act. That section, however, does not permit the individual to challenge his categorisation as an excluded individual. Indeed, there is no provision in the Act that does so. That may occur indirectly in the licence cancelling process provided for in s 56AF. I say “indirectly” because one of the considerations in s 56AF(2) was that the Authority was to notify why it considered the individual an excluded person. That might involve an enquiry as to why the individual was considered an influential person for the company.
[15]Mr Plotkin and the corporate applicants, in their submissions in response to the strike-out application, state that the QBSA has decided that Mr Plotkin was an excluded individual. Had Mr Plotkin been a director or secretary of a company that has a relevant company event the consequences are fairly clear, in those circumstances, the QBSA would notify the individual of the fact that he/she has been categorised as an excluded individual. It would involve no decision by the QBSA. However, where an individual, not a director or secretary of the company who arguably appears to exercise control or influence over the company that has a relevant company event then the consequences are not so clear. The latter situation would require a decision by the QBSA as to whether the individual was an influential person. In the former situation the QBSA has made no decision but has merely notified the individual of the fact that s 56AC has rendered him/her an excluded individual. In the latter it has clearly made a decision.
[16]On the submissions of the QBSA Mr Plotkin cannot review that decision, indeed he cannot challenge it in any way under the Act. He can apply under s 56AD (1) to be categorised as a permitted individual for a relevant event “… if the individual has been advised by the authority, or has otherwise been made aware…” However, such a hearing will proceed on an assumption that he is an excluded individual.
[17]It is the gravamen of Mr Plotkin’s case that he was not an “influential person” in respect of the excluded companies such as to render him an excluded individual. The principal decision that the QBSA makes under s 56AF is the decision to cancel the individual’s licence. The decision under s 56AG is a decision to cancel the licence of an excluded company. Both require the Authority to give written notice identifying, in the first case the relevant event, and in the second case the relevant individual, and both implicitly require an explanation as to why the Authority considers the individual is an excluded individual for the relevant event. That would involve, in this case, an enquiry as to why the individual was considered an influential person. Although the purpose of the procedure is to cancel the licence, it requires the QBSA to determine whether an individual is an excluded individual. The QBSA says that is not reviewable.
[18]It is submitted by Mr Plotkin, in the alternative, that he is entitled to a review under section 87 of the QBSA Act as he is a person affected by a reviewable decision, namely, the decisions of the QBSA in respect of the corporate applicants. In my opinion, there is merit in the argument as, otherwise, Mr Plotkin is deprived of the right to challenge the finding by the QBSA that he is an influential person.[2]
[2]Such a finding is reviewable in the case of a licensed person, see McClintock v QBSA [2011] QCATA 310.
[19]Section 86 of the QBSA Act provides:
Reviewable decisions
(1) The tribunal may review the following decisions of the authority—
(k) a decision under section 56AF or 56AG that—
(i)a person is an excluded individual or excluded company; or
(ii)an individual is still a director or secretary of, or an influential person for, a company;
[20]The Act is not the most elegantly drafted piece of legislation, the review powers in s 86(1)(k) suggest that a decision under s 56AF or s 56AG is a decision that a person may be, inter alia, an excluded individual. Although, as a consequence of the happening of certain events provided for in s 56AC a person may be rendered an excluded individual, in some cases that necessitates a finding, or a decision, by the QBSA that an individual is an influential person.
[21]The Tribunal has power to strike out a proceeding under s 47 Queensland Civil and Administration Tribunal Act 2009 if the Tribunal considers the proceeding is, inter alia
(a) frivolous, vexatious or misconceived; or
(b) lacking in substance; or
(c) otherwise an abuse of process.
[22]In cases such as this one should always have in the forefront of one’s mind the words of Dixon J (as he then was) in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at p 91 where his Honour said "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. …once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." In General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 at 130 Barwick CJ referred to the above passage and said, “in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.”
[23]I am not satisfied that the construction placed on s 56AF by the QBSA, is as clear as it submits. Indeed, the QBSA, despite its submissions now made to the contrary, thought it was necessary to notify Mr Plotkin under s 56AF even though he was not licensed. To find that there was no right to review under s 86(1)(k) of the Act would render the section nugatory. A decision to cancel a licence can be reviewed under s 86(1)(c) of the Act so that the review under s 86(1)(k) of the Act must be more than a review to cancel a licence under ss 56AF and 56AG.
[24]For the reasons stated above I am not prepared to strike out the application by Mr Plotkin to review his categorisation as an excluded individual.
[25]The order of the Tribunal is that the application by the QBSA to strike out the application for review by the Applicant Mr Plotkin is dismissed.
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