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Davenport v Adjudication Registrar[2015] QCAT 360

Davenport v Adjudication Registrar[2015] QCAT 360

CITATION:

Davenport v Adjudication Registrar [2015] QCAT 360

PARTIES:

Philip John Davenport

(Applicant)

 

v

 

Adjudication Registrar

(Respondent)

APPLICATION NUMBER:

OCR128-15; OCR130-15; OCR131-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

2 September 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

DELIVERED ON:

10 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The stay application is refused on the undertakings of the Respondent set out in paragraph 7of the reasons.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – application of stay pending review – where stay refused – where balance of convenience in favour of refused stay.

Building and Construction Industry Payments Act 2004 (Qld), s 7, s 8, s 32, s 65, s 67, s 77, s 78, s 108, s 120

Justices Act 1886 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22

Deputy Commissioner Stewart v Kennedy [2011]  QCATA 254

Quinn v Qld Law Society [2012] QCAT 274

APPEARANCES:

 

APPLICANT:

Mr Davenport

REPRESENTATIVES:

 

RESPONDENT:

represented by Ms Moody of Counsel

REASONS FOR DECISION

  1. [1]
    Philip Davenport has been an adjudicator of disputes under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) legislation since its commencement in 2004.
  2. [2]
    The objects of the BCIPA legislation are to ensure that a person who carries out construction work is entitled to receive and recover progress payments.[1] The objects are achieved by providing a procedure for making and responding to payment claims within statutory time frames and for disputed claims to be referred to an adjudicator for a decision.[2]
  3. [3]
    In 2012 – 2013 a review of the BCIPA legislation was undertaken and a report on the review provided (‘the Wallace Report’).[3] Legislative changes resulted. One change was the removal of the appointment of adjudicators to adjudicate disputes from the control of private authorised nominating authorities to the Adjudicator Registry established under BCIPA. The registry consists of the Respondent (the Adjudication Registrar - Mr Chesterman) and staff.
  4. [4]
    The Respondent made three decisions to impose the following conditions on the registration of adjudicators including Mr Davenport:
  1. A condition requiring Mr Davenport to fulfil certain continuing practice development (‘The CPD condition’) requirements.
  2. A condition requiring Mr Davenport to undertake mandatory transitionary training (‘The MTT decision’).
  3. General conditions as set out in the Registrars information notice on 10 June 2015.
  1. [5]
    Mr Davenport challenges the validity and appropriateness of the decisions to impose the conditions. He has sought three separate reviews of the decisions. He also applied for a stay of each decision pending the Tribunal’s review.
  2. [6]
    The stay applications raise similar issues and were heard together at an oral hearing.
  1. [7]
    The Respondent has offered the following undertakings to operate if the stays are refused:
    1. The CPD decision – He will not take any action against Mr Davenport with respect to his non-compliance with that condition pending the determination of the review.
    2. The MTT decision – He will not rely on Mr Davenport’s non-compliance with condition for the purpose of:
      1. (a)
        Cancelling or suspending Mr Davenport’s registration as an adjudicator pursuant to Division 6 of Part 4 of BCIPA
      2. (b)
        Issuing a show cause notice pursuant to s 78 of BCIPA: and/or
      3. (c)
        Issuing summary offence proceedings pursuant to s 108 of BCIPA
  2. [8]
    The Respondent has offered no undertakings and opposes a stay of the decision to impose the general conditions and maintains that they are necessary for the function of the registry and necessary for the protection of the public.

When will a stay be granted?

  1. [9]
    Under s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Tribunal can make an order to stay a decision pending review only if it considers it desirable having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made to the Tribunal made by the decision maker and having regard to the public interest.
  2. [10]
    It has been accepted previously in decisions of the Tribunal[4] and the Appeal Tribunal[5] that s 22 anticipates standard curial principles will apply in considering a stay application namely:
    1. Does the Applicant have an arguable case?
    2. Does the balance of convenience favour granting the stay?
  1. [11]
    The factors which will determine the balance of convenience and whether it is desirable to grant the stay include:
    • Whether or not the Appeal (or Review) may be rendered nugatory if the stay is not granted;
    • The impact of the stay on both parties and;
    • The public interest.

What are Mr Davenport’s prospects of success on the Review?

  1. [12]
    Mr Davenport’s principal argument regarding the three decisions is that the Respondent has gone outside of his power under BCIPA in imposing the conditions.
  2. [13]
    Section 65(2)(b) of BCIPA deals with the imposition of conditions on an adjudicators registration. It provides that the registration is subject to:
    • Reasonable conditions the registrar considers appropriate to give effect to the act.
    • In the case of a person who already holds an existing registration, conditions the registrar considers necessary to ensure that an adjudicator effectively performs his/her functions under the Act.
  3. [14]
    Mr Davenport says the conditions imposed on his registration are neither reasonable nor necessary. Accordingly he says they are void and that the decision to impose them should be set aside.
  4. [15]
    At this stage of the review without full consideration of the submissions and evidence it is not possible to come to a particular view as to Mr Davenport’s prospects of success.
  5. [16]
    The Respondent concedes that whilst the prospects of success are slim, they are not so remote such as they must be disregarded.
  6. [17]
    I accept the stay applications should not be refused on the basis that Mr Davenport has no prospects of success.

The balance of convenience

(a) The CPD condition

  1. [18]
    Mr Davenport says the balance of convenience lies in his favour.
  2. [19]
    He says without the operation of the decision being stayed he is in breach of the condition if he does not comply. He has indicated he does not intend to comply because it is not valid.
  3. [20]
    He says he is therefore open to the imposition of a penalty under the BCIPA for breach of the condition[6]; and he may be subject to suspension or termination of his registration[7] and he could be prosecuted under the Justices Act 1886 (Qld) for an offence under the BCIPA.[8]
  4. [21]
    Mr Davenport’s other concern is that if the decision is not stayed he will be denied the opportunity to be referred any adjudication disputes for determination.
  5. [22]
    The strength of these arguments is dissipated by the Respondent’s undertaking not to take any action for breach of the CPD condition. At the hearing the Respondent indicated this included an undertaking not to take into account the non-compliance when referring disputes for adjudication.
  6. [23]
    I am satisfied if the stay of the CPD condition is refused the undertakings offered alleviate any risk to Mr Davenport of adverse action being taken against him and of any impact on the prospects of referral of work to him if he does not comply with the condition.

(b) The MTT condition

  1. [24]
    The MTT training is a course approved by the Queensland Building and Construction Commission (‘QBCC’) and is to be undertaken by adjudicators at a cost to them of $650.00. It consists of training about the changes to the BCIPA and other general matters such as the rules of natural justice.
  2. [25]
    Mr Davenport says the balance of convenience supports a stay of the decision to impose this condition. He says as with the CPD condition, he is at risk of being penalised, prosecuted and losing his registration for non-compliance with the condition.
  3. [26]
    The Respondent has given an undertaking set out in paragraph 7(2) above not to take such action. Accordingly I’m satisfied that any concerns in this regard are alleviated by the undertaking.
  4. [27]
    However, unlike the compliance with the CPD condition, the Respondent has stated that he will take into account non-compliance with this condition when deciding whether to refer disputes. He said he will not refer any disputes to Mr Davenport if he has not completed the MTT.
  5. [28]
    Mr Davenport gave oral evidence (confirming his written submissions) that he estimated he earned about $100,000 per year adjudicating under BCIPA. As such he says he will suffer financial detriment if the imposition of the conditions are not stayed.
  6. [29]
    The Respondent says the refusal to refer work to an adjudicator until they have completed the MTT is an appropriate course to adopt when regard is had to the intention of the legislature in the changes it made to BCIPA following the review of the legislation. He also says the refusal of the stay is in the public interest.
  7. [30]
    As referred to earlier in these reasons, legislative amendments were made to the BCIPA legislation in 2014 following a review.
  8. [31]
    Some of the issues identified by the review were that stakeholders held concern about the quality of adjudication decisions; the competence of adjudicators; whether each adjudicator has the requisite skills and experience and qualifications to deal with complex adjudication claims.[9]
  9. [32]
    The Wallace Report made certain recommendations including:
    • Adjudicators should be required to satisfy mandatory continuing development rules
    • Adjudicators should be registered and appropriately graded according to their skills, experience and qualifications
  10. [33]
    The legislative amendments in December 2014 expressly provided for the Respondent to have power to impose a condition that requires the adjudicators to complete MTT prescribed by regulation and to pay the costs associated.[10]
  11. [34]
    In 2015 the BCIPA Regulation was amended and provided for the purposes of s 120(1) the MTT is the MTT approved by the Commission.
  12. [35]
    Mr Chesterman said in his evidence that the intention of imposing the MTT was to improve the quality of adjudication decisions and align the skills and training of existing adjudicators (such as Mr Davenport) with those of the new applicants, who will be required to complete the course.[11]
  13. [36]
    He also gave evidence that in October 2014 the QBCC board approved the adjudicator grading and referral policy which provides for the grading of adjudicators and provides that the Registrar will use the test following the training to determine the grade of adjudicator. He says if Mr Davenport does not do the test following the training he cannot be graded.[12]
  14. [37]
    He says even if the imposition of the condition is stayed then he will in any event be obliged (or at the very least entitled) to refuse to refer adjudication applications to Mr Davenport until he has completed the course and has been graded.
  15. [38]
    The result of the stance taken by Mr Chesterman is that a stay of the condition is not going to remove any potential detriment to Mr Davenport. Mr Davenport is not going to be entitled to be guaranteed referrals of disputes whether the imposition of the condition is stayed or not.
  16. [39]
    The Respondent says the balance of convenience with respect to the MTT is in favour of refusing a stay.
  17. [40]
    He says if a stay is granted Mr Davenport will be the only adjudicator to whom the 2015 mandatory training conditions do not apply (I note it is acknowledged that 2014 conditions imposed on another adjudicator have been stayed by consent of the parties).
  18. [41]
    The Respondent says that when one has regard to the public interest the balance is clearly in favour of the stay being refused. He said the general public and the users of BCIPA are entitled to have faith in the quality of adjudication decisions and to be satisfied that all adjudicators receive standard training particularly when the lack of training was identified by stakeholders in the review.
  19. [42]
    The refusal of a stay will not cause irredeemable harm to Mr Davenport. He has said he will not comply with the condition even if the stay is refused. That being the case there is no real risk that it will not be possible for his position to be restored if he is successful in the review.[13] He will not suffer the consequences of undertaking the course and paying the fee only to have the condition set aside on review. In all probability he will not be referred any adjudication work but in circumstances where he does not intend to do the training and the Respondent says he will not refer any work if the training is not done then the refusal of a stay does not in itself impose any financial detriment on Mr Davenport.
  20. [43]
    Conversely, the granting of the stay could weigh against public interest in maintaining confidence in the system which was introduced to address concerns regarding appropriate and adequate training of adjudicators.
  21. [44]
    I find the balance of convenience is against the granting of a stay of the decision to impose the MTT.

(c) The general conditions

  1. [45]
    Mr Davenport says the general conditions are imposed only to benefit the registry. He says they are onerous and the decision to impose them should be stayed.
  2. [46]
    The general conditions are detailed in the information notice dated 10 June 2015.[14] There are seventeen conditions. On an internal review the Respondent withdrew three conditions.
  3. [47]
    The Respondent says the conditions apply to all adjudicators, and are necessary to ensure that the registry facilitates the compliance with critical statutory timeframes. He concedes the conditions are for the benefit of the registry but say they also benefit adjudicators and the users of the legislation.
  4. [48]
    The conditions imposed can be summarised as:
    1. An adjudicator must at all times act in a professional and competent way
    2. An adjudicator may engage an agent in order to comply with the adjudicators responsibilities
    3. An adjudicator must provide a physical address for service of documents in Queensland
    4. An adjudicator applications will be delivered electronically via Objective Connect (a cloud based platform which enables the registry to share documents with third parties securely and effectively)[15] or if lodged a hard copy by courier
    5. An adjudicator is to return to the registry the ‘Adjudicators Application Intention to Refer Kit’ within one business day of receipt. The kit contains information about the Adjudication application and forms to be signed by the adjudicator.
    6. The adjudicator must issue notice of acceptance on the Claimant and Respondent within one business day of receiving confirmation of acceptance from the registry
    7. The adjudicator must advise within two business days the due date (and any change thereto) of the adjudication decision
    8. Within one business day of making the decision the adjudicator must complete and provide to the registry the ‘decision made’ form.
    9. The adjudicator must provide to the registry ‘notification of decision release’ form and a copy of the decision to the registry within two business days of the release of the decision to the parties (via objective connect)
    10. If the decision is corrected the adjudicator must provide a copy of the decision to the registry within two business days
    11. The adjudicator must advise the registry within five business days if they become aware of any court or legal action in respect of the adjudication
    12. The adjudicator must advise the registry of change of address and contact details within five business days
    13. The adjudicator must advise the registrar of any changes of details supplied in the application for registration within five business days (e.g. change in qualifications).
  5. [49]
    Mr Davenport says all of the conditions are too onerous. Apart from making a submission that he would be required to enter into an agreement with objective connect, he did not provide any evidence as to why any particular condition was onerous and where the balance of convenience lay with respect to each condition. He made oral submissions to the effect that it is not the registry’s role to dictate the process of dealing with an application for adjudication once it is referred. This goes to the issue of whether the conditions are reasonable and necessary and will be canvassed in the substantive review. The question here is whether the stay should be granted.
  6. [50]
    The Respondent gave evidence[16] that the conditions were imposed to ensure that timeframes mandated by the BCIPA legislation are met.
  7. [51]
    Mr Chesterman referred specifically to s 32 of BCIPA which gives the claimant the opportunity to withdraw and commence a fresh application if the claimant does not receive the adjudicators acceptance of the application in four days.
  8. [52]
    He said they have adopted processes in the registry (encompassed in the general conditions) that work backwards from the four days to ensure timeframes are met.
  9. [53]
    The Respondent also relied on the evidence of Jennifer Phillips (the registry’s Senior Adjudication Officer) who provided a lengthy affidavit describing in detail the internal processes of the registry and the tight timeframes within which the staff operate in order to comply with the registry’s statutory obligation ‘to refer the application as soon as practicable, to a person eligible to be an adjudicator.’[17]
  10. [54]
    Mr Chesterman’s evidence was that if the conditions were stayed it would create practical difficulties for the registry and put at risk registry’s ability to meet the timeframes in BCIPA.[18]
  11. [55]
    The Respondent submitted that it is not only important to have the conditions in place to ensure the registry meets statutory timeframes but it is also in the public interest. He says the public need to have confidence that the system is working effectively. The system also enables the Adjudication Registrar to ensure adjudicators workloads are managed effectively.
  12. [56]
    When regard is had to the individual conditions imposed it is apparent that they would facilitate a process which would assist the registry in meeting its obligations to ensure the application is referred as soon as practicable to adjudicators and that a claimant receives an acceptance within four days.
  13. [57]
    I accept the implementation of the system would enable the Respondent to maintain a process of dealing with Adjudication applications which would alleviate some concerns raised by stakeholders in the review process. The issue of whether the conditions are valid will be dealt with at the review.
  14. [58]
    In the absence of any evidence from Mr Davenport which establishes detriment to him by the application of the general conditions pending review, the balance of convenience is against granting of the stay of the decision to impose the general conditions.
  15. [59]
    I am not convinced that it is desirable to grant a stay of any of the decisions under review. The stay applications are refused on the basis of the undertakings given by the Respondent set out in paragraph seven of these reasons.

Footnotes

[1]BCIPA s 7.

[2]Ibid s 8.

[3]Submissions of Respondent para 18.

[4]Quinn v Qld Law Society [2012] QCAT 274.

[5]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254.

[6]BCIPA s 67.

[7]Ibid s 77(1) Div 6 Pt 4.

[8]Ibid s 108.

[9]Respondents submissions para 19.

[10]BCIPA s 120.

[11]Affidavit of Michael Hope Chesterman (28 August 2015), para 25.

[12]Ibid, para 44.

[13]The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Limited (1986) CLR 220.

[14]Affidavit of Michael Hope Chesterman (28 August 2015), Exhibit MHC2.

[15]Affidavit of Jennifer Anne Phillips (28 August 2015), para 12.

[16]Affidavit of Michael Hope Chesterman (28 August 2015), para 17.

[17]Affidavit of Jennifer Anne Phillips (28 August 2015), para 27.

[18]Affidavit of Michael Hope Chesterman (28 August 2015), paras 8-14.

Close

Editorial Notes

  • Published Case Name:

    Philip John Davenport v Adjudication Registrar

  • Shortened Case Name:

    Davenport v Adjudication Registrar

  • MNC:

    [2015] QCAT 360

  • Court:

    QCAT

  • Judge(s):

    Senior Member O'Callaghan

  • Date:

    10 Sep 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Commissioner of Taxation v Myer Emporium No. 1 (1986) 160 CLR 220
1 citation
Jump To
Cite 1 - (1986) 160 CLR 220
Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
2 citations
Jump To
Cite 1 - [2011] QCATA 254
Cite 2 - [2011] QCATA 254
Quinn v Queensland Law Society [2012] QCAT 274
2 citations
Jump To
Cite 1 - [2012] QCAT 274
Cite 2 - [2012] QCAT 274

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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