Queensland Building Services Authority v; Flea’s Concreting - [2013] QCATA 180

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
Financial Requirements for Licensing

Fox v Percy (2003) 214 CLR 118
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

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…

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: [2013] QCATA 180
Decision Date: 3 June 2013

CaseChat Overview and Summary

In the case of Queensland Building Services Authority v Flea’s Concreting, the dispute revolves around the cancellation of a contractor’s licence by the Queensland Building Services Authority (Authority). The contractor, Flea’s Concreting, represented by Mr Ericson, had his licence suspended and subsequently cancelled by the Authority. The Queensland Civil and Administrative Tribunal (Tribunal) had previously found the initial suspension to be harsh and determined it was a contributing factor to the contractor’s subsequent financial difficulties, which led to the cancellation of the licence. The Tribunal then reversed the Authority's decision to cancel the licence, prompting the Authority to seek leave to appeal this decision.

The primary legal issues before the court were whether the Authority had grounds to appeal the Tribunal’s decision and whether the Tribunal’s findings were legally sound. Specifically, the Authority questioned whether the Tribunal had the jurisdiction to reverse the cancellation of the licence and whether the Tribunal had applied the correct legal principles in making its decision. The court had to determine whether the Tribunal had erred in law and whether the Authority’s appeal was meritorious.

The court held that the Tribunal had indeed erred in law by reversing the Authority’s decision to cancel the licence. The court found that the Tribunal had misapplied the principles governing the review of administrative decisions and had not given sufficient weight to the Authority’s reasons for cancelling the licence. The court concluded that the Authority’s decision to cancel the licence was both lawful and justified based on the evidence presented. The Tribunal’s reversal of this decision was therefore set aside, and the Authority’s original decision to cancel the licence was confirmed.

The final orders of the court set aside the Tribunal’s order dated 22 May 2012 and confirmed the Authority’s decision to cancel Mr Ericson’s licence, dated 11 October 2011. This outcome underscores the importance of correctly applying legal principles in administrative reviews and highlights the limited scope of judicial review in such matters.

Orders

Orders of the court

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.

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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