Queensland Building and Construction Commission v Ian James Ericson trading as Flea's Concreting
[2014] QCATA 66
•9 April 2014
| CITATION: | Queensland Building and Construction Commission v Ian James Ericson trading as Flea’s Concreting [2014] QCATA 66 |
| PARTIES: | Queensland Building and Construction Commission (Applicant/Appellant) |
| V | |
| Ian James Ericson trading as Flea’s Concreting (Respondent) |
| APPLICATION NUMBER: | APL180-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM Member Gardiner |
| DELIVERED ON: | 9 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The order of the Tribunal dated 22 May 2012 is set aside. 2. The decision of the Authority of |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL –OCCUPATIONAL REGULATION – BUILDING LICENCE - where contractor’s licence suspended – where licence then cancelled – where tribunal found suspension harsh – where contractor had net negative tangible asset position – where tribunal found suspension an cause of situation leading to cancellation – where tribunal reversed Authority’s decision to cancel – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 ss 146, 147 Queensland Building Services Authority Act 1991 (Qld) s 48 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
As this appeals tribunal has already observed, Mr Ericson is a concreter in North Queensland.
On 25 June 2009, the Authority (as it then was) suspended Mr Ericson’s licence. The Authority found Mr Ericson was in breach of the financial requirements because he had a net negative tangible asset position. Mr Ericson had two large debts owing to him which he had recorded as current assets. The Authority did not agree with that characterisation.
On 11 October 2010, the Authority cancelled Mr Ericson’s licence to carry out building work. Mr Ericson applied for a review of the cancellation. On 22 May 2012, the tribunal set aside the Authority’s decision to cancel Mr Ericson’s licence and placed a reporting condition on the licence for a period of 15 months.
The Authority appealed that decision. We granted the appeal and confirmed the Authority’s original decision. Mr Ericson appealed that decision to the Court of Appeal. The Court of Appeal allowed Mr Ericson’s appeal, in part, and remitted the proceeding to us for reconsideration[1].
[1] Ericson v Queensland Building Services Authority [2013] QCA 391.
The central question – whether the learned Member at first instance was entitled to consider the earlier suspension – has been resolved. The proceeding was remitted to us because it was not apparent from the reasons for decision whether we confirmed the Authority’s decision under s 146 or s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). In either case, the reasons why we confirmed the Authority’s decision were not apparent on the face of our reasons.
We had determined, and the Court of Appeal confirmed, that there was an error in the primary decision. The Authority argued, and we accepted, that the error was an error of law, for which no leave was required.
Section 146
Section 146 permits an appeals tribunal to confirm or amend the primary decision, set aside a decision and substitute its own decision, set aside the decision and return it to the original decision or make any other order it considers appropriate.
The Court of Appeal pointed out[2] that we can only substitute our own decision if the determination of the question of law is capable of resolving the matter as a whole in the appellant’s favour.
[2] Supra at [25].
The learned Member found[3] that the characterisation of the debt “became superfluous” when Mr Ericson’s account lodged an independent review report that confirmed he did not meet the financial requirements.
[3] Ericson v Queensland Building Services Authority [2012] QCAT 206.
He also found[4] that there were four relevant factors in the exercise of his discretion: the earlier suspension of the licence; that the proportion by which Mr Ericson failed to meet the financial requirements was not large; his assets included substantial trade debtors but his liabilities included almost $4M owed to the Australian Taxation Office; and Mr Ericson’s then poor trading position.
[4] Supra at [31] to [35].
The pervading theme of the learned Member’s decision was that he thought the 2009 suspension was harsh, that the suspension contributed to Mr Ericson’s financial position and that he should not be penalised for that. If, as has been confirmed, the learned Member was not entitled to consider the suspension, then the learned Member was left with an undisputed failure to meet the financial requirements[5] and no mitigating circumstances. The fact that the learned Member imposed strict conditions on Mr Ericson’s licence:
…to enable Mr Ericson to re-establish his business under the close financial supervision of the QBSA. If it becomes obvious (whether sooner or later) that it is no longer a viable business, QBSA will be entitled to make a fresh decision whether to suspend or cancel the licence.
is, in our view, a clear acknowledgement that, absent the earlier suspension, the learned Member should have exercised his discretion to confirm the Authority’s decision.
[5] Supra at [30].
For that reason, we find that the question of law is capable of resolving the matter as a whole in the Authority’s favour. We therefore set aside the learned Member’s decision and substitute our own decision; that the Authority’s decision is confirmed.
Section 147
If the application to the appeals tribunal is an appeal on mixed fact and law, and we decided the learned Member has been in error, we must decide the appeal by way of rehearing. That means that we must exercise the discretion provided by s 48 of the Queensland Building Services Authority Act 1991 (Qld) afresh.
Mr Ericson has favoured us with submissions on this issue. He says that we should ignore the fresh evidence of his bankruptcy. He still submits that we should consider the effect of the earlier suspension. He says that we should categorise the trade debt as an asset because he had a favourable decision under the BCIPA legislation[6] and that the debtor successfully obtained an injunction because of the Authority’s decision to suspend Mr Ericson’s licence. Mr Ericson says he constantly updated the Authority about the progress of recovering that debt.
[6] Building and Construction Industry Payments Act 2004 (Qld).
We must ignore the earlier suspension of the licence. Even if we ignore Mr Ericson’s bankruptcy, we are left with facts that compel the exercise of the discretion to cancel Mr Ericson’s licence. He has substantial debts to the Australian Taxation Office. His income at the time of the learned Member’s decision included the sale of assets, which cannot be, and were not, replicated in subsequent years.
His assets exceed his liabilities only if trade debtors are included as current assets. Without the trade debtors, Mr Ericson’s liabilities exceed his assets. To date, Mr Ericson has not demonstrated that a debt owed in 2008 has been recovered.
Mr Ericson cannot meet the financial requirements of his licence. The Authority’s decision of
11 October 201111 October 2010 to cancel Mr Ericson’s licence is confirmed.
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