Webb v Queensland Building Services Authority
[2012] QCAT 145
•11 April 2012
| CITATION: | Webb v Queensland Building Services Authority [2012] QCAT 145 |
| PARTIES: | Mr Adam Webb |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | OCR087-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 2 April 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 11 April 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application for review is dismissed. 2. Each of the parties are to file in the Tribunal and serve upon the other party any: a) submissions on costs generally (including reserved costs if any) on or before 4pm on 4 May 2012; and b) submissions in reply to such written submissions on or before 4pm on 18 May 2012. 3. Unless any party requests an oral hearing in relation to any application for costs such application shall be determined on the papers not before 18 May 2012. |
| CATCHWORDS: | REVIEW APPLICATION – decision to refuse a licence – application dismissed Queensland Building Services Authority Act 1991, ss 32AA, 86 Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 1) [2009] 1 Qd R 589 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Adam Webb (in person) |
| RESPONDENT: | Queensland Building Services Authority represented by Mr E Bird (in house legal officer) |
REASONS FOR DECISION
Background
Mr Webb applied to the Queensland Building Services Authority (QBSA) for a Medium Rise contractor’s licence and a Site Supervisor – Open licence.
The QBSA refused both licences in its decision dated 29 March 2011 on the grounds that Mr Webb did not meet the technical qualification and experience requirements.
Mr Webb applied to the Tribunal to review the decision to refuse both licences.[1]
[1] Section 86 QBSA Act 1991.
Central to Mr Webb’s case is that before he embarked on obtaining appropriate technical qualifications he made lengthy enquiries in 2008 as to appropriate technical qualifications, explained to the QBSA his proposal to seek these qualifications through the Royal Insititute of Chartered Surveyors (RICS) and received an email from the QBSA which represented that he ‘would need to hold a formal qualification as a Chartered Surveyor to meet the legislative technical requirement for Builder Open’.[2]
[2] Exhibit SOE4 to the Applicant’s Statement of Evidence filed 4 August 2011.
In reliance on this statement Mr Webb embarked upon a course of action to obtain the qualification as a Chartered Surveyor from RICS and thereby expended significant sums of money and hours of time.
It is not disputed that:
a) RICS is the only body from which Mr Webb could obtain the qualification as a Chartered Surveyor.
b) He obtained this qualification on 11 June 2010.[3]
c) Mr Webb expended significant sums of money in obtaining this qualification.
d) Neither the QBSA Act nor the Regulations define the term “formal” or “formal qualifications”.
[3] Exhibit SOE7 to the Applicant’s Statement of Evidence filed 4 August 2011.
As matters transpired the QBSA did not accept Mr Webb’s qualification as a Chartered Surveyor as meeting the technical requirements for either licence.
The QBSA accepts that:
a) the statement made in writing to Mr Webb in 2008 was misleading and ought not to have been made;
b) Mr Webb has acted to his detriment in reliance upon it.
The QBSA is unable to offer any explanatory evidence as the officer who made the misrepresentation is no longer employed by the QBSA and there is no contemporaneous file note to assist but contends that the misrepresentation cannot fetter the exercise of the statutory discretion to issue licences.
[10]In the week prior to the hearing Mr Webb indicated to the Tribunal and to the QBSA that he wished to withdraw his application for review.
[11]The QBSA persuaded Mr Webb to proceed with the hearing on the basis that he seek declarations arising out of the misrepresentation so that there would be some certainty in relation to the status of the misrepresentation and his technical qualifications because Mr Webb has foreshadowed future licence applications.
[12]At the hearing Mr Webb sought the following declarations:
a) A declaration that the term ‘formal qualification’ is not limited to qualifications or competencies only issued under Australian Quality Training Framework (AQTF) and/or Australian Qualification Framework (AQF).
b) A declaration that the term ‘formal qualification as a Chartered Surveyor’ means a Chartered Surveyor qualification issued by the Royal Institution of Chartered Surveyors.
c) A declaration that the QBSA statement “You would need to hold a formal qualification as a Chartered Surveyor to met the legislative technical requirement for Builder Open” means a Chartered Surveyor qualification issued by Royal Institute of Chartered Surveyors meets the legislative technical requirement for Builder Open and that the applicant has achieved a Chartered Surveyor qualification issued by the Royal Institution of Chartered Surveyors.
d) A declaration that the QBSA is to issue a Builder – Open; Site Supervision grade licence to the applicant as Technical Qualification is the only outstanding item as per Cameron Andrew Murphy Affidavit dated 10 February 2012.
[13]The Tribunal derives its powers in such review matters from the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and from relevant enabling acts in this case the Queensland Building Services Authority Act 1991 (QBSA Act).
[14]There is no power to make declarations given to the Tribunal by the QBSA Act and the QCAT Act powers to make declarations may only be exercised by judicial members.[4]
[4] Section 60 QCAT Act 2009.
[15]The Tribunal for the purposes of this matter had been constituted by a legally qualified but not a judicial member.
[16]Mr Bird who appeared on behalf of the QBSA admitted that at the time he suggested to Mr Webb that the matter proceed on the basis of seeking declarations he had not appreciated that only judicial members were empowered to grant such relief.
[17]The matter proceeded on the basis that the QBSA decision to refuse the Builder – Open; Site Supervisor grade licence was to be reviewed by the Tribunal to produce the correct and preferable decision by way of a fresh hearing on the merits.[5]
[5] Section 20 QCAT Act 2009.
[18]Mr Webb did not pursue a review of the refusal to grant the Builder – Medium Rise, Contractor grade licence.
Law
[19]A person is entitled to a site supervisor’s licence if the QBSA or the Tribunal standing in its place is satisfied that the applicant has the qualifications required by schedule 2 of the Regulation for the relevant class of licence.[6]
[6] Section 32AA QBSA Act 1991; Section 16A of the QBSA Regulation 2003.
[20]The required qualifications are set out in Schedule 2, Part 6, section 4 of the Regulation. These relate to technical qualifications. There are no relevant experience requirements.
[21]It is not disputed that Mr Webb has not:
a) successfully completed an Advanced Diploma of Building and Construction (Management) CPC60208;
b) obtained a recognition certificate[7] as a builder qualified to carry out the scope of work for the class;
[7] Defined in Schedule 3 to the Regulation.
c) obtained a qualification or statement of attainment of required competency issued by an approved authority;[8]
[8] Defined in Schedule 3 to the Regulation.
d) successfully completed the following competencies:
i)Apply building codes and standards to the construction process for large building projects CPCCBC6001A;
ii)Manage processes for and legal obligations of a building or construction contract CPCCBC6004A;
iii)Apply structural principles to the construction of large, high rise and complex buildings CPCCBC6014A;
iv)Assess construction faults in large building projects CPCCBC6016A.
[22]Schedule 2, Part 6, section 4(c) of the Regulation also provides for a technical qualification by successfully completing a course or competencies of a course the QBSA considers is at least equivalent to the competencies referred to above.
[23]It is not disputed that RICS is not an approved authority for the purposes of the Regulation.
Discussion and Decision
[24]Mr Webb gave evidence that:
a) In order to obtain the Chartered Surveyor qualification it is necessary to first obtain a bachelor degree.
b) He holds a Bachelor of Business majoring in Real Estate, which he obtained in 2007.
c) He then undertook an assessment of professional competence with RICS which included a minimum of 200 days relevant practical experience, assessment by a supervisor and an external counsellor, a final assessment critical analysis and 3 person panel interview.
d) In order to maintain the qualification it is necessary to undertake a minimum of 20 hours professional development each year and that in itself is a considerable expense.
e) The qualification is not necessary for his current employment and he would not have obtained it if the misrepresentation had not been made.
[25]Mr Webb contends that:
a) The RICS qualification whilst called a diploma is equivalent to an advanced diploma because of the prerequisite that the applicant hold a bachelor degree prior to commencement.
b) He meets the technical qualifications requirements because:
i)he did everything he could to ascertain what qualifications would be regarded as sufficient for the purposes of Schedule 2;
ii)he relied upon the advice he received from the QBSA;
iii)the QBSA should be held to account in the circumstances;
iv)alternatively, he should be regarded as having successfully completed the competencies;
v)he compared favourably the required competencies with the modules completed by him in his bachelor degree, the RICS qualification and other courses undertaken.[9]
[9] Webb letter to Tribunal dated 4 October 2011 last page.
[26]The QBSA contend that:
a) where the legislature creates legislation for a public purpose no party or authority may bind itself by estoppel to make a decision which the statute does not otherwise permit;
b) it has a duty to protect consumers by not permitting unqualified contractors to perform building work;
c) it has a duty of public safety to ensure contractors do not undertake work for which they are not qualified;
d) it is bound to exercise its discretion on the basis of the facts and is not limited by the estoppel;
e) allowing the estoppel subverts parliament’s intentions;
f) AQTF is not the only applicable equivalency but Mr Webb as applicant bears the onus of proving that an equivalency has been obtained;
g) it is necessary to compare the curriculum for the 4 relevant competencies[10] with the competencies obtained by Mr Webb at an advanced diploma or higher level qualification, which the QBSA contends is relevantly only Mr Webb’s bachelor degree;
[10] Affidavit Cameron Andrew Murphy dated 10 February 2012 at exhibit “CAM2”.
h) there is insufficient evidence to establish that Mr Webb has obtained these competencies even if regard is had to his bachelor degree and the RICS qualification;
i) even if one accepts Mr Webb’s evidence that the bachelor degree subjects and the RICS qualification modules dealt with some aspects of competencies curriculum this is insufficient to satisfy the QBSA and the Tribunal in its place that competencies have been achieved to advanced diploma level.
[27]Mr Webb did not produce evidence of the curriculum for each subject or module so that it could be compared with the curriculum for the relevant competencies. This is largely because he relies upon the misrepresentation.
[28]I accept Mr Webb’s evidence that there were elements which correspond but I find that there is insufficient evidence for me to find that he has obtained competencies at least equivalent to the 4 competencies in Schedule 2, Part 6, section 4(b).
[29]Mr Webb, as applicant, bears the onus of proof to establish the equivalency. I accept that such a task is a significant one but without evidence of the curriculum for each subject or module undertaken or some other evidence of equivalency Mr Webb’s application for review must fail unless he is entitled to rely upon the misrepresentation by the QBSA.
[30]The Court of Appeal[11] has considered the application of estoppel in the context of a statutory prohibition and recognised that it is necessary to consider the nature of the statutory obligation and whether allowing an estoppel would nullify it.
[11] Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 1) [2009] 1 Qd R 589.
[31]The Full Court of the Federal Court has also considered the application of estoppel in administrative law.[12] Gummow J in Kurtovic stated at page 208:
[12]Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303.
“Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers....by making representations beyond power, which they would then be estopped from denying......The generally accepted proposition is that:
“Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public”
(Halsbury’s Laws of England (4th ed) Vol 44, “Statutes”§949)”
[32]The QBSA Act and the associated Regulation set up a scheme for the licensing of builders for various types of building work. The legislation has a public purpose in protecting the public from unlicensed and unqualified builders.[13]
[13] Marshall v Marshall [1999] 1 Qd R 173.
[33]I therefore find that the misrepresentation cannot operate to prevent the QBSA or the Tribunal standing in its place from exercising the statutory discretion to be satisfied that the relevant technical qualifications requirements have been met.
[34]It is unfortunate that Mr Webb having acted prudently in making enquiries prior to undertaking a course of action has no satisfactory remedy in these review proceedings. He may have a remedy in other jurisdictions.
[35]The parties may wish to make submissions as to costs.
[36]I therefore direct that the parties are to file in the Tribunal and serve upon the other party:
a) any submissions on costs generally (including reserved costs if any) on or before 4pm on 4 May 2012; and
b) submissions in reply to such written submissions on or before 4pm on 18 May 2012.
Order
The application for review is dismissed.
Each of the parties are to file in the Tribunal and serve upon the other party:
a) any submissions on costs generally (including reserved costs if any) on or before 4pm on 4 May 2012; and
b) submissions in reply to such written submissions on or before 4pm on 18 May 2012.
Unless any party requests an oral hearing in relation to any application for costs such application shall be determined on the papers not before 18 May 2012.
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