Sherred v Queensland Building Services Authority - [2013] QCAT 585

CITATION:

Sherred v Queensland Building Services Authority [2013] QCAT 585

PARTIES:	Frank Raymond Sherred (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

OCR066-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

5 September 2013

HEARD AT:

Brisbane

DECISION OF:

Susan M Burke, Member

DELIVERED ON:

25 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building Services Authority dated 6 February 2012 not to categorise the Applicant as a permitted individual for a relevant event be confirmed.

CATCHWORDS:

Permitted Individual – where licensee bankrupt – whether licensee took reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the bankruptcy

Queensland Civil and Administrative Tribunal Act 2009 ss 18, 19, 20, 24
Queensland Building Services Authority Act 1991 ss 56AC, 56AD(8), 56AD(8A), 56AD(8B)

Younan v Queensland Building Services Authority [2010] QDC 158
Rich v State of Queensland & Ors; Samin v State of Queensland & Ors [2001] QCA 295
Younan v Queensland Building Services Authority [2011] QCA 1

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Sherred in person

RESPONDENT:

represented by Ms De Luchi on behalf of Robinson Locke Litigations Lawyers

REASONS FOR DECISION

On 1 February 2012, the Applicant (Mr Sherred) applied to the Queensland Building Services Authority (the Authority) to be categorised as a permitted individual pursuant to s 56AD(1) of the Queensland Building Services Authority Act 1991 (QBSA Act).
On 6 February 2012, the Authority delivered its decision (the Authority’s decision) in which the Authority refused to categorise Mr Sherred as a permitted individual in relation to his bankruptcy on 23 November 2011.
This application[1] arises as a result of the Authority’s decision dated 6 February 2012.
[1]Application to review a decision dated 2 March 2012 as amended by order of the Tribunal on 14 May 2012.
This application seeks to review the Authority’s decision, being a reviewable decision pursuant to s 86(1)(J) of the QBSA Act.
The power of the Tribunal to exercise its review jurisdiction is triggered by an application to review a reviewable decision pursuant to s 87 of the QBSA Act and s 18(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
Sections 19 and 20 of the QCAT Act set out the powers conferred on the Tribunal in review proceedings including the requirement that the Tribunal must hear and decide the review of the reviewable decision by way of a fresh hearing on the merits.
Section 24(1) of the QCAT Act further sets out the functions of the Tribunal in a proceeding for a review of a reviewable decision:
24Functions for review jurisdiction
(1)In a proceeding for a review of a reviewable decision, the tribunal may –
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.”
Accordingly, the Tribunal must consider all the material before it and take…

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] QCAT 585
Decision Date

CaseChat Overview and Summary

The case of Sherred v Queensland Building Services Authority involved Frank Raymond Sherred, an applicant, and the Queensland Building Services Authority, the respondent. The matter revolved around the Authority's decision not to categorize Sherred as a permitted individual for a relevant event, specifically his bankruptcy on 23 November 2011. The legal issues to be determined were whether Sherred had taken all reasonable steps to avoid the circumstances that led to his bankruptcy, and if the Tribunal should exercise its discretion to classify him as a permitted individual. The primary legal framework included sections 56AC and 56AD of the Queensland Building Services Authority Act 1991, which detail the conditions under which an individual may be excluded or permitted following a relevant event such as bankruptcy.

The court found that Sherred had not taken all reasonable steps to avoid the circumstances leading to his bankruptcy. Specifically, he failed to dispute the Directions to Rectify issued by the Authority, did not challenge the debt claimed by the Authority, and did not take any steps to manage his finances or negotiate payment. The Authority's decision to refuse Sherred's application to become a permitted individual was based on these findings. The Tribunal concluded that Sherred did not provide sufficient evidence to support his claim that he had taken reasonable steps to avoid the circumstances leading to his bankruptcy, and therefore the decision of the Authority should be confirmed. The Tribunal did not find it necessary to exercise its discretion to categorize Sherred as a permitted individual, given his failure to meet the statutory criteria.

Orders