Pop v Queensland Building Services Authority - [2012] QCAT 388

CITATION:

Pop v Queensland Building Services Authority [2012] QCAT 388

PARTIES:	Corneliu Pop (Applicant/Appellant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR062-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

1 December 2011

HEARD AT:

Brisbane

DECISION OF:

Gerald T Byrne, Member

DELIVERED ON:

23 August 2012

DELIVERED AT:

Rockhampton

ORDERS MADE:

The application for review is allowed. Pursuant to s 24(1)(b) of the QCAT Act 2009, the following consequential orders are made:

(1) The decision of the Respondent dated 25 February 2011 refusing the Applicant’s application for a QBSA Contractor Licence in the classes of Carpentry and Painting and Decorating is set aside;

(2) In lieu thereof, the Tribunal substitutes its own decision that the Applicant is a fit and proper person to hold a QBSA licence in the classes of Carpentry and Painting and Decorating; and

(3) The Applicant is to be granted a QBSA Contractor Licence, in the classes of Carpentry and Painting and Decorating.

CATCHWORDS:

Occupational Regulation – building industry – “fit and proper person” requirement for Applicant to hold a licence in Carpentry and Painting and Decorating – where the Applicant had a long criminal history spanning 15 years – where the Applicant had over 70 convictions including indictable offences – where the Applicant served a number of terms in prison – where the Applicant had history of mental illness – where the Applicant had long history of illicit drug use

Queensland Building Services Authority Act 1991, ss 31(1) and (3), 35

Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 considered

Australian Broadcasting Tribunal v Bond [1990] HCA 33 (1990) 170 CLR considered

Weedon v Builders' Licencing Board (NSW) Unreported, Dist Ct NSW, 6 September 1976 considered

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Corneliu Pop, in person

RESPONDENT:

Ms Dilhari Mahiepala (QBSA in-house solicitor)

REASONS FOR DECISION

Preliminary

On 17 March July 2011, Mr Corneliu Pop commenced this application before the Queensland Civil and Administrative Tribunal (QCAT) by filing an Application for Leave to Appeal or Appeal (Form 39) amended in pen to become an Application to Review a Decision in the registry QCAT. The amended form has been accepted by QCAT. Mr Pop sought to review a decision made by the Queensland Building Services Authority (QBSA).
By letter dated 25 February 2011, the QBSA notified Mr Pop that his application for a QBSA contractor licence in the classes of Carpentry and Painting and Decorating had been refused, on the basis that it had been determined that Mr Pop was not a fit and proper person to hold such a licence and that he had not provided sufficient information to show he had 2 years experience.
The issue of experience was not before me as it was conceded by the QBSA[1].
[1] Transcript of proceedings of 1 December 2011 P-14 lines 21-25.
The decision on fit and proper person was one made in accordance with s 31(1) of the Queensland Building Services Authority Act

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 388
Decision Date: 23 August 2012

CaseChat Overview and Summary

The case of Pop v Queensland Building Services Authority was heard before the Queensland Civil and Administrative Tribunal (QCAT). The applicant, Mr Pop, sought a review of the Queensland Building Services Authority’s (QBSA) decision to refuse his application for a contractor licence in the classes of Carpentry and Painting and Decorating. The QBSA had denied Mr Pop’s application on the grounds that he was not a fit and proper person to hold a licence due to his extensive criminal history and mental health issues.

The central legal issue was whether Mr Pop was a fit and proper person to hold a licence in the specified classes, given his criminal history, mental health issues, and substance abuse. The court had to consider the statutory criteria for determining fitness and propriety, as well as the broader public interest in regulating the building industry. Specifically, the court needed to balance the potential risks posed by Mr Pop’s past behaviour against his personal circumstances and any evidence of rehabilitation.

The Tribunal found that while Mr Pop had a significant criminal history and had been incarcerated multiple times, this alone did not disqualify him from holding a licence. The court emphasised that the “fit and proper person” test is not solely based on past conduct but also takes into account an individual’s current circumstances, including efforts towards rehabilitation and the likelihood of future misconduct. The Tribunal noted Mr Pop's stability over the past three years, his active engagement in community service, and his commitment to abstaining from drugs and alcohol. These factors, combined with the absence of any recent criminal activity, led the Tribunal to conclude that Mr Pop had demonstrated sufficient personal transformation and was now a fit and proper person to hold a licence.

Consequently, the Tribunal allowed the application for review and set aside the QBSA’s decision. In its place, the Tribunal determined that Mr Pop was a fit and proper person to hold a licence in the classes of Carpentry and Painting and Decorating. The Tribunal ordered that Mr Pop be granted the licence, subject to compliance with any conditions the QBSA may impose.

Orders

Orders of the court

The application for review is allowed. Pursuant to s 24(1)(b) of the QCAT Act 2009, the following consequential orders are made:

(1) The decision of the Respondent dated 25 February 2011 refusing the Applicant’s application for a QBSA Contractor Licence in the classes of Carpentry and Painting and Decorating is set aside;

(2) In lieu thereof, the Tribunal substitutes its own decision that the Applicant is a fit and proper person to hold a QBSA licence in the classes of Carpentry and Painting and Decorating; and

(3) The Applicant is to be granted a QBSA Contractor Licence, in the classes of Carpentry and Painting and Decorating.

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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