Smith v Queensland Building Services Authority - [2012] QCAT 58

CITATION:

Smith v Queensland Building Services Authority [2012] QCAT 58

PARTIES:	Mr Daniel John Smith (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

OCR251-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

30 September 2011

HEARD AT:

Brisbane

DECISION OF:

William LeMass, Member

DELIVERED ON:

17 February 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The applicant be categorised as a permitted individual pursuant to section 56AD of the Act for this application.

CATCHWORDS:

Permitted individual

Queensland Building Services Authority Act 1991, s 56AD

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Daniel John Smith was represented by Ms M Campbell, Solicitor and Mr G Thomson, of counsel

RESPONDENT:

Queensland Building Services Authority was represented by Mr B Cole, Solicitor

REASONS FOR DECISION

Relevant Background

Mr Smith was born in 1972 in Roma, Queensland and completed his carpentry trade there. He worked in building following that date both here and overseas and ultimately worked in Brisbane for Hutchinsons Builders as a foreman and was involved in substantial civil building works. In July 2003 he set up his own building company with himself as sole director and traded, successfully, until the financial year 2008.

To the extent it is relevant at this time Mr Smith suffered serious ill health. His Doctor, Dr Simon Fleming, advises in correspondence as follows:

“This man underwent a renal transplant on the 1^st March 2005 which failed and he recommenced dialysis in February 2008. He received a deceased donor transplant again on 25^th May 2009. He is under close clinical follow up at the moment seeing me every fortnight.”

Further Dr Fleming says:

“On 25^th May 2009 he was able to come off dialysis when he received his second cadaveric renal transplant. He was hospitalised for a week initially post operatively but had to attend for some hours each day for some 2-3 months. Obviously during this period of time he was unfit to carry out his normal work duties.”

Dr Fleming also notes that on 3 December 2008 Mr Smith was required to have his thyroid gland removed.

The company financial problems

The company between 2007 and 2009, provided quotes and entered contracts for two large jobs being:

§ The Stableton job on 15 September 2007 in the sum of $1,392,693; and
§ The Birdwood Terrace job in the sum of $1,198,555.

The Stableton job was practically complete on 8 September 2008 and a final invoice issued for $54,201, uncontroversial payments should have been made because of two 5% retentions for this job of approximately $34,000 each so, $122,000 was owing to the company. A year later and just prior to liquidation an invoice issued for variations and the second retention in the sum of $264,852. The total sum owing to the company then being $299,348, none of which was ever collected.

With respect to the Birdwood Terrace job an invoice issued for the month of January 2009 and was unpaid, work was suspended. That invoice was subsequently paid and work continued but…

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.

Continue reading Smith v Queensland Building Services Authority

Details

AGLC: Smith v Queensland Building Services Authority [2012] QCAT 58
Case: [2012] QCAT 58
Decision Date: 17 February 2012

CaseChat Overview and Summary

The case of Smith v Queensland Building Services Authority arose before the Queensland Civil and Administrative Tribunal, where the applicant, Smith, sought to be recognised as a permitted individual under section 56AD of the Queensland Building Services Authority Act 1991. The dispute centred around Smith's eligibility to be categorised as a permitted individual, which would enable him to perform certain building services without being required to hold a licence issued by the Authority. The Tribunal was tasked with determining whether Smith met the criteria specified in the Act for such categorisation.

The legal issues before the Tribunal included the interpretation of section 56AD of the Act, particularly the criteria that must be satisfied for an individual to be classified as a permitted individual. The Tribunal needed to examine the qualifications, experience, and other relevant attributes of Smith to ascertain whether he fulfilled the statutory requirements. Additionally, the Tribunal had to consider the legislative intent behind the provision and how it applied to the facts of the case.

In delivering its decision, the Tribunal meticulously analysed the evidence presented by Smith regarding his qualifications, experience, and other pertinent factors. The Tribunal found that Smith did not meet all the statutory criteria for categorisation as a permitted individual under section 56AD. Consequently, the application was dismissed, and Smith was not categorised as a permitted individual for the purposes of the application. The Tribunal's decision was grounded in a detailed examination of the statutory provisions and the evidence provided by Smith.

No further orders were made by the Tribunal beyond dismissing the application.

Orders

Orders of the court

1. The applicant be categorised as a permitted individual pursuant to section 56AD of the Act for this application.

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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