Sims v Queensland Building Services Authority

CITATION: Sims v Queensland Building Services Authority [2012] QCAT 210

PARTIES:	Tracey Anne Sims
v
Queensland Building Services Authority

APPLICATION NUMBER: OCR277-10

MATTER TYPE: Occupational regulation matters

HEARING DATE:     16 December 2011

HEARD AT:  Brisbane

DECISION OF: Mr Andrew McLean Williams, Member

DELIVERED ON: 22 May 2012

DELIVERED AT:      Brisbane

ORDERS MADE: 1.    The decision of the QBSA made on 23 September 2010 to refuse to categorise the applicant as a permitted individual for the relevant event is confirmed.

CATCHWORDS:

Becoming a “permitted individual” after a relevant company event – Requirement for satisfaction that the applicant took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event

Queensland Building Services Authority Act 1991, ss 56AC, 56AD

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	In person
RESPONDENT:	Mr Malcolm Robinson, solicitor (Robinson Locke Solicitors)

REASONS FOR DECISION

1. QCAT matters OCR277-10 and OCR278-10 are, in all material respects, identical.  Each matter comprises an Application for Review,[1] brought before QCAT pursuant to s 86 of the Queensland Building Services Authority Act 1991 (‘QBSA Act’).

   [1]        Each application to review was filed in the QCAT Registry on 22 October 2010.

1. By their application, each Applicant seeks to review separate (yet identical) decisions of the Queensland Building Services Authority (‘QBSA’), made on 23 September 2010,[2] refusing to categorise each of them as “permitted individuals”[3] for the “relevant event”[4] which, in each case, was the appointment on 28 April 2010 of liquidators to Cliff Cameron Constructions Pty Ltd (“the company”), by way of a creditors voluntary winding up.  At all relevant times, each Applicant was a director of the company.

   [2]Reasons for the Decision dated 23 September 2010 were provided by the QBSA decision-maker on 24 November 2010.

   [3] QBSA Act, s 56AD.

   [4] QBSA Act, ss 56AC(2), 56AC(4).

The Law

1. The relevant provisions are to be found in Part 3A of the QBSA Act. Section 56AC(2) provides that a director, or secretary of, or an influential person for, a company that has a provisional liquidator, liquidator, administrator or controller appointed; or that is wound up, or ordered to be wound up (each of which event is termed in the section to be a “relevant company event”), thereby becomes – by reason of the operation of s 56AC(4) – an “excluded individual” for a period of five years after the occurrence of the relevant company event. The day-to-day effect of that is that the excluded individual thereby becomes ineligible to hold a QBSA licence,[5] and is unable to participate in the Queensland building industry in any licence holding capacity.

   [5] QBSA Act, s 56AE.

1. The very next section in Part 3A of the QBSA Act is s 56AD. It provides a mechanism by which an excluded individual may still apply to the QBSA to become a “permitted individual”, notwithstanding the fact of the occurrence of a relevant event. In circumstances where such an application is made, the QBSA must then determine the application in…