Sims v Queensland Building Services Authority - [2012] QCAT 209

CITATION:

Cameron v Queensland Building Services Authority [2012] QCAT 209

PARTIES:	Clifford Gary Cameron
v
Queensland Building Services Authority

APPLICATION NUMBER:

OCR278-10

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

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.

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

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.

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…

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: [2012] QCAT 209
Decision Date: 22 May 2012

CaseChat Overview and Summary

Sims v Queensland Building Services Authority involved a dispute between the applicant, Sims, and the Queensland Building Services Authority (QBSA). The applicant sought to be recognised as a permitted individual following a relevant company event. The QBSA had refused to categorise the applicant in this way, leading to this challenge in the court. The legal issues in the case centred on the interpretation of the statutory provisions governing the circumstances under which an applicant could be considered a permitted individual following a relevant company event. Specifically, the court had to determine whether the applicant had satisfied the requirement that they took all reasonable steps to avoid the circumstances that led to the relevant event. The QBSA argued that the applicant had not taken all reasonable steps, while the applicant contended that they had acted reasonably.

The court examined the statutory framework and found that the statutory language imposed a clear obligation on the applicant to take all reasonable steps to prevent the circumstances that led to the relevant event. The court held that the applicant had not demonstrated that they had taken all reasonable steps to avoid the event. The court noted that the statutory language was unequivocal and that there was no room for interpretation that would allow the applicant to avoid this requirement. The court was satisfied that the QBSA's decision was based on a proper understanding of the statutory provisions and the evidence before it. The court found that the QBSA's decision to refuse to categorise the applicant as a permitted individual was correct.

In light of the court's findings, the decision of the QBSA made on 23 September 2010 was confirmed, and the applicant's application was dismissed. The court's decision emphasised the importance of strictly adhering to the statutory requirements when determining whether an applicant qualifies as a permitted individual following a relevant company event. The court's ruling provides clarity for future applicants and regulatory authorities on the standards required to satisfy the statutory criteria.

Orders

Orders of the court

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.

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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