Vadasz v Queensland Building Services Authority

[2012] QCAT 672

CITATION: Vadasz v Queensland Building Services Authority [2012] QCAT 672

PARTIES:	Michael Christoper Vadasz
v
Queensland Building Services Authority

APPLICATION NUMBER: OCR087-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kate Buxton, Member

DELIVERED ON: 7 December 2012

DELIVERED AT: Brisbane

ORDERS MADE:

Upon Mr Vadasz undertaking in writing to the Tribunal that he is compliant with the Financial Requirements for Licencing under the Queensland Building Services Authority Act 1991 it is ordered:

1.     The Authority’s decision to cancel the license of Mr Vadasz, made 20 January 2012, is stayed pending determination of these proceedings or further order of this Tribunal.

CATCHWORDS: Licensed builder – Application to review licence cancellation – Application for stay – where applicant also seeking review of refusal to categorise as permitted individual – whether licence cancellation can be stayed – prospects of success – exercise of discretion

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Vadasz is a builder who, on 20 January 2012, was given notice that his license issued by the Queensland Building Services Authority (the Authority) and regulated Queensland Building Services Authority Act 1991 (Qld) (QBSA Act) had been cancelled. Prior to this, the Authority had, on 28 November 2011, refused to categorise Mr Vadasz as a ‘permitted individual’ having determined on 2 November 2011 that Mr Vadasz was an ‘excluded individual’ under the Act

2. By application OCR87-12, filed 8 March 2012, Mr Vadasz seeks review of the Authority’s decision to cancel his license.  He seeks a stay of that decision pending the Tribunal’s final determination of the review application.  This application was filed outside the statutory time period and this tribunal extended time for filing this application on 9 August 2012.

3. Separately, on 6 February 2012 Mr Vadasz filed application OCR44-12 in which he seeks review of the refusal by the Authority to categorise him as a permitted individual.  His application in that matter for a stay in that review proceeding was dismissed by the tribunal on 8 March 2012.

4. Mr Vadasz prepared and forwarded to QCAT an application to review the refusal to categorise him as a permitted individual on 20 December 2011.  Having been made aware of the relevant decision made on 28 November 2011, that application would have been made within the statutory time limits had it been received and processed by QCAT in a timely manner.  However, for reasons which are not entirely clear, the application was not received or processed by QCAT.  Mr Vadasz was therefore out of time and required an extension of time within which to seek review of that decision.  That extension of time was granted by the tribunal in application OCR44-12 on 8 March 2012.

5. The Authority resists the granting of stay on the basis that:

(a)The license cancellation is mandatory and does not involve the exercise of any discretion.  The Tribunal, therefore, does not have authority to reinstate or renew the applicant’s license;

(b)The application therefore has no prospects of success and a stay should not therefore be granted.

1. As the tribunal has now extended the time for filing of the application to review the permitted individual decision (OCR44-12) this is a factor relevant to the Applicant’s prospects of success in that review proceeding.  Success in that application will, as a matter of law and of practical reality, determine success in this application, as the licence was only cancelled by the Authority as a result of an unreviewed permitted individual decision.

1. The Authority submits the there is no prospect of succeeding in the review application as filed as the licence cancellation was mandatory and therefore the Tribunal has no discretion to change the license cancellation

1. Section 56AF provides the statutory mechanism for license cancellation if the licensee is an excluded individual.  The Authority must cancel the license if the Authority refuses to categorise a licensee as a permitted individual and the period for review of that refusal has ended.  However, the legislation does not provide a mechanism for automatic cancellation.  Section 56AF empowers the Authority to make that decision (rather than it being made by operation of legislation).  The Authority must be satisfied that the necessary pre-requisites for the decision exist.  It must then actually cancel the licence.[1]  Section 86(1) then clearly provides that that decision to cancel the license is reviewable.  It is not a decision excluded from the review process by the expressed provisions of section 86(2).

   [1]        Australian Postal Corp v Forgie & Anor (2003) 130 FCR 279 at [80].

1. When an administrative body is tasked with making a decision it is still an administrative, capable of review, notwithstanding that the statutory mechanism may not leave room for the exercise of a discretion.  Indeed, if decisions under section 86AF could not be reviewed because of a lack of discretion to ‘renew or reinstate, as submitted by the Authority, then there would be no point in reviewing any decision to refuse to categorise a licensee as a permitted individual if the application to review that decision is out of time.

1. Such a fetter upon the practical rights of licensees such as Mr Vadasz cannot be inferred from the combined operation of sections 56AF and 86(1).  Here, the applicant is seeking review of both the permitted individual decision and for the license cancellation decision.  He seeks a stay of the license cancellation decision.  The Tribunal has jurisdiction to grant such a stay.  It is relevant that both decisions are being reviewed because if the Applicant succeeded in reviewing the permitted individual decision his victory would pyrrhic unless he also successfully reviewed the license cancellation decision.  It is unlikely that the legislature intended someone in the applicant’s position to generate a separate and later application to review license cancellation in circumstances where an individual decision has been successfully reviewed.  It is also not apparent from the legislation that the licence cancellation decision would simply “fall away” or cease retrospectively if the permitted individual decision was successfully reviewed.  The application does, therefore, appear to be necessary.

1. In circumstances where both the decisions are sought to be reviewed at the same time the plain words of section 56AF do not prevent the decision either from being reviewed by this Tribunal or from being stayed on an interim basis pending determination of the review process.

2. Mr Vadasz submits that the Tribunal’s discretion to stay the license cancellation decision ought be exercised because:

(a)He took all reasonable steps to avoid the bankruptcy event which lead to his exclusion;

(b)Mr Vadasz has demonstrated technical competence for over 40 years;

(c)Mr Vadasz wishes to continue to tender for work and work on ongoing projects; and

(d)No person would be adversely affected if his licence cancellation is stayed pending final determination of the review proceeding.

1. The Authority accepts that the balance of convenience favours the stay if Mr Vadasz is able to demonstrate that he can comply with the Authority’s Financial Requirements for Licencing.

1. The Tribunal, in exercising its discretion under section 22 of the QCAT Act is required to take into account the interests of any person affected, any submissions made by the decision maker and the public interest. The merits of the application itself must also be born in mind.[2]

   [2]        JM Kelly (Project Builders) Pty Ltd v QBSA (2011) QCAT 60.

2. Having regard to the issues raised by the applicant and response by the Authority as to the balance of convenience, the application of the factors in section 22 favours that applicant’s application for a stay of the licence cancellation decision, subject to his ability to prove that he can comply with the relevant financial requirements. It is therefore the proper exercise of this Tribunal’s discretion to stay the license cancellation decision on that condition.

ORDER

1. Upon Mr Vadasz undertaking in writing to the Tribunal that he is compliant with the Financial Requirements for Licencing under the Queensland Building Services Authority Act 1991 it is ordered:

a.     The Authority’s decision to cancel the license of Mr Vadasz, made 20 January 2012, is stayed pending determination of these proceedings or further order of this Tribunal.