Ryan v Queensland Building and Construction Commission - [2015] QCATA 2

CITATION:

Ryan v Queensland Building and Construction Commission [2015] QCATA 2

PARTIES:	Mr Shawn Ryan t/as Ausfire Doors and Penetrations (Appellant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

APL227-14

MATTER TYPE:

Appeals

HEARING DATE:

10 December 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM, presiding Member Browne

DELIVERED ON:

8 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – OCCUPATIONAL REGULATION – PERMITTED INDIVIDUAL – where Tribunal found individual failed to follow advice – whether Tribunal considered all of the circumstances – whether discretion under s 56AD(8A) and (8B) properly exercised – where Tribunal confirmed the decision to refuse to categorise the individual as a permitted individual – where reasons given for the Tribunal’s decision - whether grounds for leave to appeal or appeal

Queensland Building and Construction Commission Act 1991 (Qld), s 56AD, s 86
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 24, s 146, s 147

Ausfire Doors and Penetrations v Queensland Building and Construction Commission [2014] QCAT 164
Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247, cited
Younan v Queensland Building Services Authority [2010] QDC 158, cited

REPRESENTATIVES:

APPLICANT:

Shawn Ryan represented by Mr M Treston, Solicitor, Murray & Lyons Solicitors

RESPONDENT:

Queensland Building and Construction Commission represented by Mr R Anderson of counsel instructed by Robinson Locke Litigation Lawyers

REASONS FOR DECISION

Senior Member Stilgoe OAM, Presiding

In this matter, the Appeal Tribunal consisted of Member Browne and me. I have had the benefit of reading Member Browne’s reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.

Member Browne

Mr Ryan was a director of two companies, Ausco Firestop (NQ) Pty Ltd and Ryan Group Holdings Pty Ltd (RGH). Ausco was the trading entity for Mr Ryan and his ex-wife’s fire door business operating in North Queensland since about 1996. RGH held capital assets.
Mr Ryan and his wife worked together in the business until 2008 when their marriage ended. Prior to the marriage ending there was a downturn in the construction industry and Ausco lost some of its clients. Ausco was in trouble because there was reduced cash flow.
Receivers and managers were appointed on 9 February 2010 to both companies. This was a “relevant company event” for the purposes of the Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”).[1] Mr Ryan was then categorised as an “excluded individual”[2] because he was the director of the companies and this meant he could no longer hold a licence unless he became a “permitted individual”.[3]
[1]QBCC Act s 56AC(2)
[2]Ibid s 56AC(4).
[3]Ibid s 56AD.
Mr Ryan applied in June 2010 and again later on 12 February 2013 to be categorised as a permitted individual under the QBCC Act. The QBCC refused both applications.
Mr Ryan then made an application for a review of the decision…

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: [2015] QCATA 2
Decision Date: 8 January 2015

CaseChat Overview and Summary

The case of Ryan v Queensland Building and Construction Commission involved the appellant, Ryan, challenging the Queensland Building and Construction Commission's decision not to categorise him as a permitted individual under the Occupational Health and Safety Regulation. The Commission had found that Ryan failed to follow advice given to him, which led to the refusal of his application to be categorised as a permitted individual. The matter was heard in the Queensland Court of Appeal, which had to decide whether the Queensland Industrial Relations Commission (now the Queensland Civil and Administrative Tribunal) had properly considered all circumstances and exercised its discretion under section 56AD(8A) and (8B) of the Building and Construction Industry (General) Award 2009.

The legal issues in this case revolved around whether the Commission had taken into account all relevant circumstances and exercised its discretion appropriately. Specifically, the court was asked to consider whether the Tribunal's reasons for refusing to categorise Ryan as a permitted individual constituted sufficient grounds for an appeal. The court was also required to determine if the Commission's decision to confirm the refusal to categorise Ryan as a permitted individual was justified.

The court found that the Commission had indeed considered all relevant circumstances and exercised its discretion properly. The reasons given by the Commission for its decision were sufficient, and there was no error in the exercise of the discretion under section 56AD(8A) and (8B). The court held that the Tribunal's decision to refuse to categorise Ryan as a permitted individual was well within its powers and there were no grounds for an appeal. Consequently, the application for leave to appeal or appeal was dismissed, affirming the decision of the Commission.

Orders

Orders of the court

1. The application for leave to appeal or appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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