Queensland Building Services Authority v Plotkin - [2013] QCATA 219

CITATION:

Queensland Building Services Authority v Plotkin [2013] QCATA 219

PARTIES:	Queensland Building Services Authority (Applicant/Appellant)
v
Kym Anthony Plotkin (Respondent)

APPLICATION NUMBER:

APL318-12

MATTER TYPE:

Appeals

HEARING DATE:

27 May 2013

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Peta Stilgoe OAM, Senior Member

DELIVERED ON:

26 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. Application to review a decision filed 11 April 2012 is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – INTERIM ORDER – OCCUPATIONAL REGULATION MATTER – where respondent categorised as ‘excluded individual’ by QBSA – where respondent sought to have that decision reviewed by the Tribunal – where QBSA applied to strike out application to review – where QBSA contended categorisation of respondent as ‘excluded individual’ is not a reviewable decision under s 86 of the Queensland Building Services Authority Act 1991 – where Tribunal held that the categorisation was reviewable and dismissed strike out application – where QBSA seeks leave to appeal that decision – whether categorisation is reviewable decision

Acts Interpretation Act 1954 (Qld), s 14A(1)
Queensland Building Services Authority Act 1991 (Qld), s 3(a), s 17(1), s 56AC(2)(c), s 56AD(1), s 56AE, s 56AF, s 56AG, s 86(1)(k), s 86(1)(j), s 87, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(1)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr G Thomson of Counsel instructed by Robinson Locke Litigation Lawyers

RESPONDENT:

Ms M H Hindman of Counsel instructed by Adamson Bernays Kyle & Jones Lawyers

REASONS FOR DECISION

The tangled provisions of the Queensland Building Services Authority Act 1991 (Qld) (‘QBSA Act’) are difficult enough for an experienced practitioner to navigate. It is therefore understandable that when Mr Plotkin was faced with (as will be seen) his unusual problem, his solution was to cut a new path through the undergrowth. For the reasons that follow, though, Mr Plotkin’s innovative and (it must be conceded) seemingly practical approach must fail.
That is what happened to Mr Plotkin: on 14 March 2012 administrators were appointed to four building companies which held licences under the QBSA Act.[1] All the shares in the four companies were held by Global Technology Services Pty Ltd. Mr Plotkin had been appointed the sole director of that company only 12 days before the four companies went into administration.
[1]StyleBuilt Homes Pty Ltd; Universal Steel Framing Systems Pty Ltd; Cavalier Homes Brisbane Pty Ltd; and Steelbuilt Kit Homes Australia-Wide Pty Ltd.
The Queensland Building Services Authority (‘QBSA’) sent him four letters (one for each of the four administered companies) which said:
TAKE NOTICE pursuant to Section 56AC of the Queensland Building Services Authority Act 1991 … BSA considers you to be an excluded individual for the following reason:
· You were a director, secretary or influential person for the Company at the time of, or within one year of, the event.
Each letter went on to say:
If you do not accept that you are an excluded individual, it is important…

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 219
Decision Date: 26 July 2013

CaseChat Overview and Summary

The case of Queensland Building Services Authority v Plotkin involved the respondent, Mr Plotkin, who was categorised by the Queensland Building Services Authority (QBSA) as an 'excluded individual' under the Queensland Building Services Authority Act 1991. Mr Plotkin sought to have this decision reviewed by the Tribunal, while QBSA applied to strike out the application for review, arguing that the categorisation of Mr Plotkin as an 'excluded individual' was not a reviewable decision under section 86 of the Act. The Tribunal held that the categorisation was reviewable and dismissed QBSA's strike out application. QBSA sought leave to appeal this decision.

The primary legal issue for the court was whether the categorisation of Mr Plotkin as an 'excluded individual' under section 56AF of the Act was a reviewable decision. The court had to determine if section 86(1)(k) of the Act provided a right of review to a person who is unlicensed but has been categorised as an 'excluded individual'. The objects of the Act are to regulate the building industry, to ensure the maintenance of proper standards in that industry, and to achieve a reasonable balance between the interests of building contractors and consumers. The QBSA has power to issue licences relevant to the building industry. Importantly, it is unlawful for a person to carry out building work in Queensland without the necessary licence(s). The Act defines 'influential person' as an individual other than a director or secretary of a company who '… is in a position to control or substantially influence the conduct of the company’s affairs…'. The effect of section 56AC is that, if Mr Plotkin was an ‘influential person’ in respect of the companies which went into administration, he attracts the status of ‘excluded individual’.

The court found that the categorisation of Mr Plotkin as an 'excluded individual' was not a reviewable decision under section 86(1)(k) of the Act, as the section only refers to decisions under sections 56AF or 56AG, which apply to licensees. Since Mr Plotkin is not a licensee, section 56AF has no application. The court granted leave to appeal and allowed the appeal, dismissing the application to review a decision filed on 11 April 2012.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. Application to review a decision filed 11 April 2012 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 86(1)(k) says, however:86Reviewable 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. It is said, for Mr Plotkin, that s 86(1)(k) is inherently ambiguous, and that the ambiguity should be resolved in his favour. The QBSA says that the Act provides no right of review to a person who is unlicensed but has been categorised as an excluded individual under s 56AF. The dispute requires a close reading of the QBSA Act. The objects of the Act are to regulate the building industry, to ensure the maintenance of proper standards in that industry, and to achieve a reasonable balance between the interests of building contractors and consumers.[9] [9]Ibid s 3(a). The QBSA has power to issue licences relevant to the building industry.[10] A person is not entitled a licence if that person is an ‘excluded individual’.[11] [10]Ibid ss 33-34.[11]Ibid ss 31–32A. Importantly, it is unlawful for a person to carry out building work in Queensland without the necessary licence(s): s 42 (with some minor exceptions, for owner-builders). Under s 56AC, a person becomes an ‘excluded individual’ if they go into bankruptcy or, if that individual is a director or secretary or ‘influential person for’ a company, and the company goes into liquidation. The Act defines ‘influential person’[12] as an individual other than a director or secretary of a company who ‘… is in a position to control or substantially influence the conduct of the company’s affairs… ‘.[12]Ibid Schedule 2. The effect of s 56AC is that, if Mr Plotkin was an ‘influential person’ in respect of the companies which went into administration, he attracts the status of ‘excluded individual’. The section does not, however, contain any express provision for the QBSA to make a decision about that matter. Rather, on its face, the section simply confers that status if a company has a provisional liquidator, liquidator, administrator or controller appointed, or is ordered to be wound up. Under s 56AF, if the QBSA considers that an individual who is a licensee is an excluded individual, it must give that person a written notice. Under s 56AG it must, similarly, give a notice to a company which is a licensee if it considers that the company is an excluded company. Accepting the somewhat surprising notion that a person could be categorised in this way but have no right of review under the Act, QBSA points out that under s 56AD(1) a person who has been advised by QBSA that it considers him or her to be an excluded individual may apply to be categorised as a permitted individual. It is argued for Mr Plotkin that s 86(1)(k) is ambiguous because it only refers to decisions under ss 56AF or 56AG. Because Mr Plotkin is not a licensee, s 56AF has no application.

Ratio Decidendi

Legal Principle Established

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