Armstrong v Queensland Building and Construction Commission

[2014] QCAT 145

CITATION: Armstrong v Queensland Building and Construction Commission [2014] QCAT 145

PARTIES:	Gary Armstrong (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: OCR291-13

MATTER TYPE: Building matters

HEARING DATE: 20 March 2014

HEARD AT: Brisbane

DECISION OF: Senior Member Oliver

DELIVERED ON: 11 April 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application for review filed 25 November 2013 is struck out.

CATCHWORDS:

STRIKE OUT – RIGHT OF REVIEW – where application categorised as an excluded individual – where applicant did not hold a licence at the time of the application – whether applicant has a right to review a decision to categorise him as an excluded individual.

Queensland Building and Construction Commission Act 1991 (Qld) ss 56AD, 56AF, 86

Queensland Building Services Authority v Plotkin [2013] QCATA 219

APPEARANCES and REPRESENTATION (if any):

RESPONDENT/APPLICANT: Ms Stroud, solicitor of the Queensland Building and Construction Commisson

RESPONDEN/APPPLICANT In person

REASONS FOR DECISION

1. Mr Armstrong is a plumber by trade. He held a licence with the Queensland Building and Construction Commission. The licence was cancelled because Mr Armstrong was categorised as an excluded person under s 56AD of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) after entering into bankruptcy on 17 February 2011. He applied to be categorised as a permitted individual, which would allow him to retain his licence, but Commission rejected that application on 19 December 2011. Mr Armstrong did not apply to review that decision and therefore his licence was cancelled.

2. Then, on 1 May 2013 Mr Armstrong was again categorised as an excluded individual because the Commission decided that he was an influential person of a company which went into liquidation, PBV Pty Ltd.  It operated a plumbing business. Mr Armstrong did not review the decision this decision categorising him as an excluded individual. Therefore, because of the two events he became permanently excluded for life.

3. Mr Armstrong then, on 25 November 2013 applied to review this last decision to permanently exclude Mr Armstrong from holding a licence with identifying a decision, in his application, he received on 6 June 2013. In effect what Mr Armstrong is really reviewing, and this is accepted, is the decision to exclude him because he was allegedly an influential person for PBV Pty Ltd that is, the second excluded individual decision. At the time the Commission made that decision, which is a reviewable decision, Mr Armstrong did not hold a licence with the Commission because of the earlier exclusion.

4. Subsequent to the filing of the review application the Commission filed an application to strike out the application because it says that Mr Armstrong cannot review that decision because it is not a reviewable decision within the meaning of s 86 of the QBCC Act. Section 86(1)(k) sets out decisions that are reviewable:

   a decision under section 56AF or 56AG that—

   (i)a person is an excluded individual or excluded company; or

   (ii)an individual is still a director or secretary of, or an influential person for, a company.

5. The difficulty for Mr Armstrong is that decisions made under s 56AF or s 56AG are only reviewable by licensees. There is no provision in s 86 which permits non-licensees to review decisions made to categorise them as excluded individuals.

6. Section 56AF provides:

   Procedure if licensee is excluded individual

   (1)This section applies if the commission considers that an individual who is a licensee is an excluded individual for a relevant event.

7. Similarly, if the excluded person is a company, then s 56AG applies.

8. Although it does seem odd that a non-licensee who is categorised as an excluded individual has no right to review that decision, this approach has been endorsed by the Queensland Civil and Administrative Tribunal Appeals Tribunal in Queensland Building Services Authority v Plotkin.[1] In that decision the Appeal Tribunal said:

   [18]The effect of s 56AC is that, if Mr Plotkin was an ‘influential person’ in respect of the companies which went into administration, he attracts the status of ‘excluded individual’. The section does not, however, contain any express provision for the QBSA to make a decision about that matter. Rather, on its face, the section simply confers that status if a company has a provisional liquidator, liquidator, administrator or controller appointed, or is ordered to be wound up.

   [19]Under s 56AF, if the QBSA considers that an individual who is a licensee is an excluded individual, it must give that person a written notice. Under s 56AG it must, similarly, give a notice to a company which is a licensee if it considers that the company is an excluded company.

   [20]Accepting the somewhat surprising notion that a person could be categorised in this way but have no right of review under the Act, QBSA points out that under s 56AD(1) a person who has been advised by QBSA that it considers him or her to be an excluded individual may apply to be categorised as a permitted individual.

   [1][2013] QCATA 219.

9. The circumstances of this case are on all fours with Plotkin. Therefore, despite the unsatisfactory consequences of the legislation, I have no alternative but to allow the Commission’s application to strike out Mr Armstrong’s application for review.

10. As was identified in Plotkin, Mr Armstrong does have a remedy to avoid being permanently excluded from holding a licence. He can still apply to the Commission to be categorised as a permitted individual and if that application is refused he can apply to the Tribunal to review that decision. This is the proper course for him to take and this would ensure that he is not without a remedy should he get an unfavourable decision from the Commission.

11. In the circumstances it would be futile to continue with this application and therefore I must order that it be struck out.