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- Unreported Judgment
Shaw v Queensland Building and Construction Commission QCAT 206
Shaw v Queensland Building and Construction Commission  QCAT 206
Kelvin Roderick Shaw
Queensland Building and Construction Commission
Occupational regulation matters
13 April 2016
Dr Cullen, Member
21 June 2016
OCCUPATIONAL REGULATION – QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION – PERMITTED INVIDIVIDUAL – onus in review jurisdiction – applicant’s failure to comply with Tribunal directions caused disadvantage – application dismissed.
Queensland Building and Construction Commission Act 1991 (Qld), s 56AD
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48
L Rojas for the QBCC.
REASONS FOR DECISION
- Kelvin Roderick Shaw has had a difficult couple of years. He has had prostate cancer, bone cancer, chemotherapy treatment, and fallen down a set of stairs whilst working. On top of this, he was assaulted by a client while on a job. His problems compounded when his business, Sexy Floors (Aust) Pty Ltd (‘Sexy Floors’), was liquidated.
- Mr Shaw was, in happier times, licensed by the Queensland Building and Construction Commission to do ‘Floor Finishing and Covering (Hard Sector)’. Because Mr Shaw was a director, secretary or influential person for Sexy Floors at the time of, or within one year prior to the appointment of liquidators on 11 March 2014, Mr Shaw became an ‘excluded individual’ following the appointment of liquidators to Sexy Floors.
- As a consequence of becoming an excluded individual, in order for Mr Shaw to continue to hold a licence with Queensland Building and Construction Commission (‘QBCC’) it became necessary for him to apply to become a ‘permitted individual’ in relation to the appointment of liquidators to Sexy Floors. Mr Shaw did this, and supplied the QBCC with some material.
- The QBCC considered that Mr Shaw’s material did not address the factors required by the legislation, specifically the factors contained with s 56AD(8A) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), as in force at the relevant time. In order to now be considered a ‘permitted individual’, Mr Shaw must demonstrate that he took ‘all reasonable steps’ to avoid Sexy Floors being liquidated.
- Section 56AD(8A) provides as follows:
(8A) In deciding whether an individual took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of a relevant event, the authority must have regard to action taken by the individual in relation to the following—
- (a)keeping proper books of account and financial records;
- (b)seeking appropriate financial or legal advice before entering into financial or business arrangements or conducting business;
- (c)reporting fraud or theft to the police;
- (d)ensuring guarantees provided were covered by sufficient assets to cover the liability under the guarantees;
- (e)putting in place appropriate credit management for amounts owing and taking reasonable steps for recovery of the amounts;
- (f)making appropriate provision for Commonwealth and State taxation debts.
- The QBCC reviewed the materials provided by Mr Shaw, and decided that he was not entitled to be a permitted individual in relation to the Sexy Floors liquidation. The QBCC, in its Statement of Reasons for the decision dated 26 November 2014, sets out the lacunas in Mr Shaw’s evidence about these matters.
- It is convenient to here summarise what information was sought by the QBCC, and what information Mr Shaw has provided to the QBCC, and now to the Tribunal:
Information sought, relevant to QBCC Act s 56AD(8A)
Information provided by Mr Shaw
That Mr Shaw kept proper books of account, and financial records, for Sexy Floors.
No financial documents provided, for any period of time, prior to liquidation.
That Mr Shaw obtained appropriate financial or legal advice before entering into financial or business arrangements or conducting business, for Sexy Floors.
No information provided.
That Mr Shaw put in place appropriate credit management for amounts owing and took reasonable steps for recovery of the amounts.
No information provided.
That Mr Shaw made appropriate provision for Commonwealth and state taxation debts
No information provided, despite fact that it appears that at the time of liquidation, the Australian Taxation Office was owed money.
- Following Mr Shaw’s application, the Tribunal made directions for the management of this matter, including directions for Mr Shaw to provide the Tribunal with evidence in support of his application.
- Mr Shaw has failed, at numerous junctures, to comply with the Tribunal’s directions. Mr Shaw did provide the Tribunal with some material at the same time as he filed his application seeking review in the Tribunal, on 22 December 2014. However, that material is, save for a brief statement by Mr Shaw on the application itself, indicating that he seeks review of the QBCC’s decision, identical to the material provided to the QBCC.
- In other words, there is nothing new before the Tribunal, that might enable the Tribunal to fill the gaps in the evidence that Mr Shaw has already been advised exist, as outlined in the table above.
Procedural fairness delivered to Mr Shaw
- The Tribunal provided Mr Shaw with numerous opportunities to engage with the Tribunal process, and provide the Tribunal with supporting evidence. Whilst Mr Shaw does not have a formal burden of proof in relation to his application, it is his obligation to assist the Tribunal in determining whether the QBCC made the correct and preferable decision. The Tribunal is obliged to apply the QBCC Act, and cannot make a different decision in the absence of information that Mr Shaw ‘took all reasonable steps’. Mr Shaw is the only party that could provide the Tribunal with this information, yet he has not.
- The Tribunal afforded Mr Shaw with procedural fairness, and an opportunity to address the dearth of information responsive to the QBCC Act s 56AD(8A) factors on the following occasions:
- 12 January 2015 – The Tribunal directed Mr Shaw to file and serve any statements of evidence no later than 2 March 2015. Mr Shaw did not comply with this direction.
- 9 April 2015 - The Tribunal held a compulsory conference. It is the practice of the Tribunal to explain to the parties what material the Tribunal needs in order for the matter to sensibly progress to a hearing, at the compulsory conference. Yet, Mr Shaw did not file further material following the compulsory conference.
- 7 May 2015 – Following a Directions Hearing, Mr Shaw was directed to advise the QBCC and the Tribunal in writing whether he intended to proceed with the application, no later than 21 May 2015. Mr Shaw advised the parties that he did intend to proceed.
- 18 June 2015 – As Mr Shaw had indicated he intended to forge on, another Directions Hearing was held. Again, Mr Shaw was directed to file his statements of evidence, including expert reports, by 23 July 2015. Although Mr Shaw did file some material on 13 August 2015, that material was entirely duplicative of the material that had been in front of the QBCC in the first instance. Mr Shaw did not file any further evidence addressing the shortcomings in his evidence about the QBCC Act s 56AD(8A) factors.
- 22 October 2015 – Another Directions Hearing was held, the hearing scheduled for 5 November 2015 was adjourned for the obvious reason that Mr Shaw had still not filed any relevant evidence. He was given another opportunity to file evidence, this time by 18 December 2015. Mr Shaw did not comply with this direction to file evidence.
- 14 January 2016 – The Tribunal held another Directions Hearing, vacated a second hearing date scheduled for 21 January 2016, and ordered a second compulsory conference. Mr Shaw’s accountant, Mr Barrington Darley, was invited to attend the Compulsory Conference, presumably to try and illuminate Mr Shaw’s as yet unsubstantiated position that he had taken all reasonable steps.
A second compulsory conference
- The compulsory conference proceeded, and following it, the Tribunal afforded Mr Shaw another opportunity to file evidence in the Tribunal, this time also specifying that he file any statement by himself, his wife, and Mr Barrington Darley, by 15 February 2016. Mr Shaw did not, again, comply, and so the Tribunal extended the time for him to comply until 8 March 2016. He did not comply with the extended timeframe, either.
- On 17 March 2016, the Tribunal held a Directions Hearing, the purpose of which was to ensure that the third hearing scheduled in this matter was not derailed as a consequence of Mr Shaw still not having filed any relevant evidence. The Tribunal also asked Mr Shaw to advise whether he intended to proceed with his application, in writing, no later than 31 March 2016.
- Mr Shaw emailed the case manager on 29 March 2016 to advise that he wanted to proceed with his application. The Tribunal then extended the timeframe for him to file his evidence, again, until 7 April 2016. Still, Mr Shaw did not file any further evidence.
The third scheduled hearing
- The third hearing scheduled in this matter than proceeded on 13 April 2016. Mr Shaw did not attend the hearing, and although the Tribunal endeavoured to reach him, it could not.
- Mr Shaw’s approach throughout the Tribunal process has been disengaged and non-compliant. It may well be that Mr Shaw’s unfortunate health circumstances have made it difficult for him to be more active. However, without some evidence that is responsive to the concerns raised by the QBCC, it is not possible for the Tribunal to conclude that the QBCC has not already made the ‘correct and preferable’ decision.
- Sometimes, applicants such as Mr Shaw, who have had a genuinely hard run in their personal lives, apply to the Tribunal in the hopeful thought that the Tribunal can consider these personal factors in making a different decision. The Tribunal does not have general discretion to consider the whole of the circumstances – the Tribunal is obliged here to apply the QBCC Act.
If heard on the merits, Mr Shaw’s Application should be dismissed
- There are two possible avenues for the Tribunal to take here. The first, which is open to the Tribunal on the evidence before it, is to dismiss Mr Shaw’s application on the basis that he has not taken all reasonable steps to avoid Sexy Floors being liquidated. As the QBCC indicated, he has not explained what steps he took to maintain proper accounts, get advice, and arrange for taxes to be paid, prior to the liquidation. This lacuna in the evidence is fatal to Mr Shaw’s prospects.
- If the Tribunal makes a decision on the merits, following the hearing of this matter, dismissing Mr Shaw’s application will result in the Tribunal’s confirming the decision of the QBCC dated 24 October 2014 refusing to categorise Mr Shaw as a permitted individual in relation to the liquidation of Sexy Floors.
Mr Shaw’s noncompliance has caused disadvantage
- The other option available to the Tribunal, and the one that the QBCC contended should apply at the hearing of this matter, is to dismiss Mr Shaw’s application on the basis of sections 47 and 48 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
- Relevantly, those sections provide:
47 Dismissing, striking out or deciding if unjustified proceeding or part
- (1)This section applies if the tribunal considers a proceeding or a part of a proceeding is—
(b) lacking in substance;…
- (2)The tribunal may—
- (a)if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
- (b)for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding—
- (i)make its final decision in the proceeding in the applicant’s favour; or
- (ii)order that the party who brought the part before the tribunal be removed from the proceeding; or
- (c)make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.
- (3)The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal’s own initiative.
- (4)The tribunal’s power to act under subsection (2) is exercisable only by—
- (a)the tribunal as constituted for the proceeding; or
- (b)if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.
48 Dismissing, striking out or deciding if party causing disadvantage
- (1)This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantage another party to the proceeding, including by—
- (a)not complying with a tribunal order or direction without reasonable excuse;…
- (2)The tribunal may—
- (a)if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out;…
- Mr Shaw’s application, as filed, is lacking in substance, and his failure to provide evidence in support of his application, despite having numerous opportunities to file same, creates disadvantage to the QBCC.
- The Tribunal considers that it is appropriate to dismiss Mr Shaw’s application on this basis, and to send a general message to prospective applicants about the need to comply with Tribunal directions, and to actively participate in the Tribunal process. In an ideal world, Mr Shaw would have advised the Tribunal that he did not intend to appear at the hearing. Had he been courteous in this respect, the QBCC would not have had the need to appear in the Tribunal, and incur the associated costs of its attendance.
- The Tribunal could have conducted the hearing ‘on the papers’ in Mr Shaw’s absence (although with the same inevitable result), and would have then saved the costs associated with reserving a hearing room, engaging a hearing support officer, allocating a Member for the day, and recording the proceedings. Each time the Tribunal reserves a hearing room (and they are a scarce resource) and allocates a Member, it costs the State of Queensland money. It also means that the Tribunal cannot allocate that hearing room or Member to another matter, thereby delaying dispensation of justice generally.
- The Tribunal expects that when parties engage in the administrative review process, that they then endeavour to assist the Tribunal through provision of material that might enable the Tribunal to make the decision they contend for. It is not enough for an applicant to optimistically file the same materials given to the QBCC, where the QBCC has identified a dearth of material responsive to the factors it must consider, and hope for a different result.
- Mr Shaw’s application is dismissed on the basis that it is lacking in substance as envisioned by s 47(2) of the QCAT Act, and that his lack of engagement in filing evidence has created disadvantage as envisioned by s 48(1)(a) of the QCAT Act.
- The result of the dismissal is that the QBCC’s decision, as made, stands.
- The Application in OCR283-14 is dismissed.
- Published Case Name:
Shaw v Queensland Building and Construction Commission
- Shortened Case Name:
Shaw v Queensland Building and Construction Commission
 QCAT 206
21 Jun 2016