Queensland Building Services Authority v; Flea’s Concreting
[2013] QCATA 180
•3 June 2013
| CITATION: | Queensland Building Services Authority v Flea’s Concreting [2013] QCATA 180 |
| PARTIES: | Queensland Building Services Authority (Appellant) |
| v | |
| Ian James Ericson trading as Flea’s Concreting (Respondent) |
| APPLICATION NUMBER: | APL180-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 22 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 3 June 2013 |
| 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 11 October 2011 to cancel Mr Ericson’s licence is confirmed. |
| CATCHWORDS: | BUILDING – 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 47, 48, 213 Queensland Building Services Authority Act 1999 s 50C Fox v Percy (2003) 214 CLR 118 Newton v Department of Justice and Attorney-General Industry Licensing Unit [2011]QCAT 670 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr G I Thomson, counsel instructed by the Queensland Building Services Authority |
| RESPONDENT: | In person |
REASONS FOR DECISION
Mr Ericson is a concreter in North Queensland. On 11 October 2010, the Queensland Building Services Authority cancelled his licence to carry out building work (particularly concreting).
Prior to this, on 25 June 2009, the Authority had suspended Mr Ericson’s licence. This suspension was the result of a compliance audit[1] of Mr Ericson’s financial circumstances. Any audit must satisfy the financial requirement of the governing policy under the Queensland Building Services Authority Act 1991 at the time. The Authority found Mr Ericson was in a net negative tangible asset position because of two large debts owing to Mr Ericson (which the Authority did not treat as current assets).
[1] Queensland Building Services Authority Act 1999 s 50C.
Mr Ericson applied for a review of the decision to cancel his licence. On 22 May 2012, the learned member 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.
In making this decision, the learned member addressed the earlier suspension of Mr Ericson’s licence, determining that this suspension had a substantially detrimental effect on Mr Ericson’s circumstances. In the learned member‘s view, this detrimental effect - and because the current ratio at the time of the cancellation was not substantially below the required 1:1 - made the cancellation decision “harsh”. The learned member found that the circumstance of the suspension of Mr Ericson’s licence in 2009 (where a debt was not acknowledged as current asset because the debtor continued to dispute it, despite an adjudication in the favour of Mr Ericson) was also “harsh”.
After the decision was handed down, the Authority re-instated Mr Ericson’s licence but on 4 June 2012, the Authority began the process to cancel his licence again.
Preliminary matters
Strike out application
Shortly before the hearing, Mr Ericson filed an application to strike out the Authority’s application for leave to appeal. Mr Ericson says that the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) states[2] that a person must not, without reasonable excuse, contravene a decision of the tribunal. He says that the application is an abuse of process[3]. He also says that the Authority is unnecessarily disadvantaging him by not complying with a tribunal order without reasonable excuse[4] and not complying with the QCAT Act or an enabling Act[5].
[2] Section 213.
[3] QCAT Act s47(1)(c).
[4] QCAT Act s48(1)(a).
[5] QCAT Act s48(1)b).
Mr Ericson complains that the Authority did not issue him with a new licence. The Authority has filed material to show that it did issue a new licence and sent it to Mr Ericson at the address on his email signature.
Mr Ericson complains that there was a gap of about a week between the learned Member’s decision and the Authority’s action. The learned Member made his decision on 22 May 2012. The Authority received the decision on Thursday 24 May 2012, in the ordinary course of the post. The Authority complied with the orders on Monday 28 May 2012. We do not regard the “delay” of a week to be unreasonable.
Mr Ericson says that, because he did not respond to letters from the Authority, it decided, once again, to cancel his licence and that this is an abuse of process. The tribunal’s power under to strike out for an abuse of process concerns only an abuse of the tribunal’s process. Whatever the character of the Authority’s actions, there is no basis for an argument that it is an abuse of the tribunal’s process.
Mr Ericson says that the Authority tried to fix its mistakes (in not providing a licence and deciding to cancel his licence on other grounds without notice) by filing this application for leave to appeal. There is simply no justification for this submission. The Authority has an obligation to administer the scheme under the Queensland Building Services Authority Act 1999. It was entitled to appeal a decision it thought was made in error. As the following reasons show, the Authority was justified in its decision to appeal. There is no evidence to suggest that the Authority’s actions were frivolous or vexatious. They were certainly not misconceived.
Mr Ericson’s application to strike out the Application for leave to appeal must fail.
Fresh Evidence
Both parties filed material fresh evidence in the appeal. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[6]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[7]
[6] QCAT Act ss 137, 138.
[7] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Both parties agreed that one fact would assist this Tribunal in this matter: that in the period between lodging the review and the learned member’s decision, Mr Ericson’s financial position became dire and he was declared bankrupt on 1 March 2012. Both parties also agreed that the evidence was fresh evidence as the event occurred after the determination of the decision under appeal.
We accept the relevance of this evidence and admit it as fresh evidence in these proceedings. This evidence was not available at the time of the original decision but may have an impact on the outcome of this appeal.
The appeal
Under the QCAT Act, an appeal can only be brought directly if it is on a question of law[8]. We are satisfied that this appeal a question of law and that leave is not required. The duty of this Appeal Tribunal is to determine whether there is an error in the primary decision.
[8] QCAT Act s142.
The main grounds for the Authority’s appeal are:
a) The learned member was not entitled to have regard to the Authority’s decision to suspend Mr Ericson as that decision was not the subject of the application before the Tribunal;
b) The learned member’s interpretation of aspects of the suspension decision (in particular findings of fact concerning the Financial Requirements for Licensing) was incorrect.
The Authority argues that the learned member’s task was to review the cancellation decision only and that he had no power to review the suspension. The Authority argues the review jurisdiction under the QBSA Act confines the review to the cancellation of Mr Ericson’s licence.
The Authority submits that the learned member’s order[9] terminating the suspension of Mr Ericson’s licence was, in fact, a review of the suspension decision. The Authority makes the point that if every review application permitted “by a side wind” the “de facto” review of all prior decisions concerning the same licensee, then:
“...disorder and confusion would follow”. The effectuality of decisions not called into question could not safely be assumed, even where time limits had long since expired, and the ground would shift constantly under the feet of those charged with administering the legislation, as well as consumer and other industry stakeholders” [10].
[9] Reasons for decision at [2].
[10] Newton v Department of Justice and Attorney-General Industry Licensing Unit
[2011] QCAT 670 at [11].
While this dystopian view of the future might be a little exaggerated, we do agree that the appeal process allows an examination of the decision in question only and that it was not open to the learned member to examine and review the suspension decision.
The Authority characterised the Hansen and Yuncken debt to Mr Ericson as not being a current asset as it was unlikely to be realised in the relevant operation cycle or within 12 months of the reporting date. The learned member accepted this.
However the Authority says the learned member then fell into error by construing the Financial Requirements for Licensing in accordance with the objects of the Requirements as subordinate to those objects (in particular the object “to promote more financially viable businesses”) but ignoring the other object of the Requirements (“to foster more professional business practices in the building industry”).
In essence, the Authority says the learned member should have taken the mandated requirements on their plain reading and his recourse to the objects (and then to only one of those objects), meant the learned member fell into error.
The Financial Requirements for Licensing is a statutory instrument. Where there are conflicting interpretations open, the interpretation that best achieves the purpose of the instrument is to be preferred[11].
[11] Acts Interpretation Act 1954 s14A(1).
The objects of the Requirements, while giving guidance to the meaning as a whole, cannot override the specific financial requirements. We are satisfied that the Authority’s characterisation of the Hansen and Yuncken debt as not a current asset is correct. In seeking that guidance from the objects, the learned member should have considered both objects. The learned member misdirected himself in his further characterisation of the debt by considering only one of the objects.
Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[12] We are satisfied that we have sufficient evidence in the documents filed and on the basis of accepted fresh evidence to set aside the decision of the learned member and substitute our own.
[12] See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
The Authority cancelled Mr Ericson’s licence because:
a) The report lodged with the Authority by Mr Ericson’s own accountant showed he had a then ratio of current assets to current liabilities of 0.93:1 (lower than the required 1:1 of the applicable Financial Requirements for Licensing);
b) He owed the Australian Taxation Office over $3.3 million and superannuation contributions of approximately $891,000;
c) His turnover had dropped to about $313,000 for the year;
d) His income included profits from the sale of property, plant and equipment and his expenses included large amounts of interest to the ATO.
We are satisfied that, by the time of the licence cancellation, Mr Ericson’s business did not meet the licensing financial requirements.
The decision of the Authority of 11 October 2011 to cancel Mr Ericson’s licence is confirmed.
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