Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2016
  4. Uysal v Queensland Building And Construction Commission - [2016] QCAT 367

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Uysal v Queensland Building And Construction Commission[2016] QCAT 367

Uysal v Queensland Building And Construction Commission[2016] QCAT 367

CITATION:

Uysal v Queensland Building And Construction Commission [2016] QCAT 367

PARTIES:

Cesur Uysal

(Applicant)

v

Queensland Building And Construction Commission

(Respondent)

APPLICATION NUMBER:

OCR116-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

DELIVERED ON:

7 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application to stay the decision of the Queensland Building and Construction Commission of 4 July 2016 is refused.

CATCHWORDS:

APPLICATION FOR STAY – DECISION OF QBCC TO CANCEL BUILDING LICENCE – whether it is desirable to stay the decision until the review is determined

Administrative Appeals Tribunal Act 1975 (Cth), s 41.

Mutual Recognition Act 1992 (Cth).

Queensland Building and Construction Commission Act 1991 (Qld), s 48

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

Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306

Cook’s Construction v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254;

Munt v Queensland Law Society Incorporated [2015] QCAT 451

Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380 

Re Liddle and Commissioner for Superannuation (1991) 14 AAR 456

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 (Qld) (QCAT Act).

REPRESENTATIVES:

APPLICANT:

James Gray, Just Law

RESPONDENT:

Nicole Drew, QBCC

REASONS FOR DECISION

  1. [1]
    This matter concerns an application for a stay of a decision by the Queensland Building and Construction Commission (QBCC) to cancel the applicant’s licence pursuant to s 48 of the Queensland Building and Construction Commission Act 1991 (Qld)(QBCC Act).
  2. [2]
    The QBCC notified the applicant of its reasons for proposing to cancel the applicant’s licence by letter dated 30 May 2016 and, by letter dated 4 July 2016, of its decision to cancel his licence immediately.
  3. [3]
    On 2 August 2016 the applicant filed an application to review the decision and an application to stay the decision. The QBCC opposes the stay application.
  4. [4]
    The ultimate role of the tribunal will be to review the decision to cancel Mr Uysal’s building licence. Pending that review, the tribunal must consider whether it is desirable to stay that decision.

Relevant law

  1. [5]
    An application for a stay can be made once a proceeding for review has commenced.[1] The power of the tribunal to make an order granting a stay is governed by s 22 of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act). Section 22 relevantly provides:

(3) The tribunal may, on application of a party or on its own initiative, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started under this Act.

(4) The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following—

  1. (a)
    the interests of any person whose interests may be affected by the making of the order or the order not being made;
  1. (b)
    any submission made to the tribunal by the decision-maker for the reviewable decision;
  1. (c)
    the public interest.
  1. [6]
    It has been held that s 22(4) does not exclude the application of standard curial principles and procedures.[2] The matters to be considered include prospects of success in the review proceedings, the effect of any stay upon them, and whether irremediable harm might be suffered by the applicant if a stay is not granted.[3] Regarding prospects of success, the applicant must demonstrate that there is an arguable case.[4] The focus of the tribunal is to make a preliminary assessment of the strength of the case given that the proceedings are at an early stage and it is not possible to undertake a detailed assessment of prospects.[5]
  2. [7]
    The Tribunal should only order a stay if it considers that this is desirable. The word “desirable” has been held in the context of a similar stay provision in the Administrative Appeals Act 1975 (Cth)[6] to connote a “positive aspiration” and something that is “worthy of achievement” rather than “merely advisable”.[7]
  3. [8]
    It must be desirable after having taking into account the interests of any person who may be affected by the order, the public interest and any submissions made by the decision-maker.

Is a stay desirable

  1. [9]
    In order to assess whether a stay is desirable it is relevant to consider the basis for the cancellation of licence decision. The circumstances behind the decision to cancel the applicant’s licence may indicate that it is not in the public interest to order a stay.
  2. [10]
    Conversely, it is also necessary to consider the impact on the applicant if a stay is not granted and his licence remains cancelled.
  3. [11]
    The applicant lives and works in Victoria. There is no record of the applicant having ever carried out residential construction work in Queensland. In short, the applicant applied for and was granted a building licence in Queensland, allegedly on improper grounds, and then proceeded to apply for a building licence in Victoria on a mutual recognition basis.[8]
  4. [12]
    The applicant applied for a licence in Queensland on 25 February 2015.  In compliance with licensing requirements under the QBCC Act, the applicant included with his application a copy of a “Certificate IV in Building and Construction” purportedly issued by Thoan Pty Ltd ACN 17 009 983 993 trading as the Australian Management Academy. The applicant also listed details of work experience at eight separate site addresses in Victoria.
  5. [13]
    The QBCC approved his application on 13 March 2015.
  6. [14]
    In June 2015 the applicant used his Queensland licence to apply for a Victorian building licence under the Mutual Recognition Act 1992 (Cth).
  7. [15]
    In July 2015 the QBCC became aware of an unusually large number of licence applications from individuals residing in Victoria and began to investigate the applications more closely. As part of those investigations, the QBCC made enquiries with the Australian Skills Quality Authority (ASQA) to determine whether qualifications represented to have been issued from organisations in Victoria, were genuine.
  8. [16]
    The Victorian licence application was declined on the basis of character pursuant to s 170(1)(c) of the Building Act 1993 (Vic). The reason for the decision was that the details of the work experience contained in his application was inconsistent with the Victorian building and occupancy permits issued for the works.
  9. [17]
    The QBCC received correspondence from the ASQA on 24 March 2016 advising that Thoan Pty Ltd denied issuing qualifications to 28 individuals named by QBCC, including the applicant. The letter was written by the Manager of Regulatory Operations of the ASQA and provided:

ASQA Enforcement and Investigations Manager, Mr Gary Tuckwood, will be in contact with your organisation and the Victorian Building Authority in respect of the 59 certificates that Thoan Pty Ltd and Kontea Pty Ltd have denied issuing with a view to assisting both QBCC and VBA in presentation of material to the Victoria Police.

  1. [18]
    A compliance monitoring audit was subsequently conducted by Mr David Scott, Principal Regulatory Officer at ASQA, on 20 May 2016. It was conducted at the registered office of Thoan Pty Ltd and involved cross-checking the names and then the certificate numbers on the relevant certificates with the records held by Thoan Pty Ltd in its “Credential Register”.  Mr Scott reported that the cross-checks indicated that 28 of the 29 individuals identified by QBCC had not been issued with the relevant qualification from Thoan Pty Ltd.[9]
  2. [19]
    In conducting the audit, the certificates were also shown to the Chief Executive Officer of Thoan Pty Ltd (the CEO). The CEO observed irregularities about the certificates, namely that the certificate numbers were not correct and that they had been signed by an Administration Manager. The CEO stated that his signature and title should be on all certificates. The person who had purportedly signed the certificates was then questioned. She said she had not signed the certificates, had never held the position of Administration Manager (the title that appeared under her name on the certificates) and had been absent when the certificates were issued.[10]
  3. [20]
    On 30 May 2016, the QBCC sent a letter to the applicant inviting him to make written submissions as to why his licence should not be cancelled. The Notice proposed to cancel his licence on the grounds he had provided information which was incorrect and fraudulent in his application and that he may not be a fit and proper person to hold a contractor’s licence.
  4. [21]
    The applicant’s licence was cancelled on 4 July 2016.
  5. [22]
    The QBCC has no record of receiving submissions in response by the applicant to the Notice of Cancellation.  The QBCC maintain it became aware of the applicant’s submissions in response dated 6 July 2016 only upon receiving them as part of the applicant’s documents filed in support of the application to stay.
  6. [23]
    In the submissions of 6 July 2016, the applicant states that his application is correct in relation to the technical references and addresses provided but admits that some dates on the working history did not relate to the building permit (start Date) and occupancy permit (finish date).
  7. [24]
    In relation to the certificate, he states:

"I received the certificate IV in Building and Construction (Building) CPC40110 from Thoan Pty Ltd trading as Australian Management Academy. I enrolled in the course on the 21st of October 2014. I paid $2 500 for the application and was asked to produce two complete project folders (low rise) and complete the AMA RPL Kit. My referee Halil Bozdogan provided AMA with a detailed third party referee statement whilst two projects were used for the RPL process; 5 Roy Street, Glenroy and 41 Katsura Retreat, Roxburgh Park. Ramon McLoskey interviewed me on 19 November 2014 regarding my RPL and information provided to AMA. My Certificate IV was issued on 20th December 2014. How have I obtained my Certificate fraudulently? Why hasn’t ASQA sent me notification?"

  1. [25]
    The QBCC submit that the applicant’s response does not explain the discrepancy between the details of the work history in the applicant’s resume and the building permit records in Victoria. The discrepancies are described as “significant” and are said to include: incorrect description of works, no building permit history on sites where the applicant claims to have completed building work and the wrong builder being listed on multiple sites.[11]
  2. [26]
    In relation to the certificate, the QBCC submit that the response failed to adduce evidence to confirm he had paid $2 500 to Thoan Pty Ltd, that his enrolment was confirmed or that he in fact attended a course and if so, over what time period.

The interests of the applicant

  1. [27]
    The applicant submits that it is desirable, having regard to his interests, to grant a stay.  This is because:
    1. a stay will assist in his application for review of the decision by the Victorian Building Practitioners Board (the Victorian Board) to refuse his licence for the reason that, if he has a licence in Queensland, he will be able to rely on the mutual recognition laws as a basis for being granted a licence in Victoria;
    2. a stay avoids the need of having to run two cases on the same issues;
    3. the balance of convenience supports the granting of a stay since, “once the AAT proceeding is determined, the factual findings will likely mean there is no need for the QCAT case to occur”;
    4. there is no prejudice to the community or the QBCC in granting the stay as the applicant is not presently undertaking any building projects;
    5. the prejudice to him will be significant because it means his rights to proceed at the AAT will be compromised and, practically, the dispute is better dealt with in Melbourne rather than Brisbane because the applicant, his witnesses and his lawyer are all based in Melbourne.[12]

The submissions made by the decision-maker of the reviewable decision  

  1. [28]
    The QBCC oppose the granting of a stay. It submits that in addressing the issue, it is appropriate for the tribunal to consider the statutory and factual context in which the decision under review was made and the nature and effect of the decision.[13]  In this context it is relevant to consider the objects of the QBCC Act, and, in particular, the need to uphold building standards.
  2. [29]
    The QBCC submit that the incorrect information in the application and the reliance on a qualification that, it says, was not genuinely issued by Thoan Pty Ltd, are sufficient grounds to cancel a licence.
  3. [30]
    Further, the QBCC submits, that even if the applicant has prospects of success in the review proceedings the tribunal must consider the effect of a stay on these proceedings and whether irremediable harm may be suffered if a stay is not granted. The QBCC referred to Munt v Queensland Law Society Incorporated where President Justice Thomas J, while acknowledging the applicant had an arguable case and prospects of success in the review proceedings, refused to grant a stay. There, the applicant’s argument that he would no longer be able to derive an income as a lawyer and that his clients would be disadvantaged was held to be outweighed by other factors including:
    1. the seriousness of the misconduct;
    2. the likely prejudice to public confidence in the integrity of the disciplinary process;
    3. the reputation of the profession if the practitioner is granted a stay;
    4. the means available to mitigate that prejudice; and
    5. the expedition with which the review can be heard.
  4. [31]
    The QBCC argue the same reasoning applies to cases involving the cancellation of building licences.  A licence allows the applicant the right to continue to contract and deal with the public in Queensland as a Queensland licensee. Granting a stay in the current circumstances, the QBCC submit, may undermine the building industry and the community’s confidence in the integrity of the builder-licensing regime in Queensland.[14]
  5. [32]
    Also relevant, the QBCC submits, is that the applicant resides in Victoria and has no construction notifications registered to him to build in Queensland. The applicant can apply for a licence in Victoria without first applying for one here. He can also work as an employee for an appropriately licensed person and as such derive an income. Whether he is prejudiced by being unable to rely on the mutual recognition laws is, the QBCC submits, irrelevant.[15]
  6. [33]
    In assessing the balance of convenience, the QBCC submit that the applicant has not provided evidence that his work prospects will be prejudiced by cancelling his licence. On the other hand, the maintenance of the integrity of the builder’s licensing regime in Queensland and the protection of consumers could be prejudiced by granting a stay in these circumstances.
  7. [34]
    Finally, there is no reason why the applicant’s review proceedings would be affected by a refusal to grant a stay.

Public Interest

  1. [35]
    The objects of the QBCC Act include to regulate the building industry to ensure the maintenance of proper standards in the industry and to achieve a reasonable balance between the interests of building contractors and consumers.[16]
  2. [36]
    Kirby J in Bryant v Commonwealth of Australia[17] considered the public interest, in considering whether to grant a stay in the context of occupational licensing, particularly important. In His Honour’s view, a stay in the operation of laws designed to protect the public, such as deregistration of a professional lawyer, are in a different class from cases involving no more than the suspension of the operation of orders affecting two private litigants.
  3. [37]
    The public interest lies in the maintenance of proper standards in the building industry of which licensing of its participants is an integral part. The submissions above of the QBCC concerning the integrity of the licensing regime are relevant here.

Consideration 

  1. [38]
    The power conferred by s 22 of the QCAT Act is a power to make an order staying the operation of a reviewable decision. It is a power that enables the tribunal to preserve the status quo pending the hearing and determination of the application for review where the tribunal considers that this is “desirable”. In deciding whether it is desirable the tribunal must consider the interests of any person who may be affected by the order (which here would include the applicant and the QBCC), any submission made by the decision-maker for the reviewable decision, and the public interest.
  2. [39]
    In my view, it is not desirable, in these circumstances, to grant a stay of the QBCC’s decision to cancel Mr Uysal’s licence. In coming to that decision I have taken into account factors including the object of the builders-licensing regime, the role of the QBCC, the QBCC’s reasons for cancelling Mr Uysal’s licence, Mr Uysal’s response, the submissions made by the QBCC against granting a stay and Mr Uysal’s submissions in favour of a stay and the restoration of his Queensland licence.
  3. [40]
    The licence was obtained on the basis of incorrect information as to work history. There were significant discrepancies in the work history provided and the building permit records in Victoria which, at this point in time, have not been satisfactorily explained by the applicant. 
  4. [41]
    The institution from which the applicant claimed to have received a certificate denies having issued it.  The validity of the certificate was the subject of an audit conducted at the registered office of that institution. The person responsible for conducting the audit concluded that the certificate had not been genuinely issued.
  5. [42]
    The primary motivation for seeking the stay appears to be to assist the applicant in arguing his licence review case in Victoria. As the applicant points out, if he is successful in having his Queensland licence restored, he will be able to take advantage of the mutual recognition laws in his application for a review of the decision to refuse his licence in Victoria.
  6. [43]
    In circumstances where the applicant has never carried out building work in Queensland, resides and works in Victoria and has no apparent intention of moving to or working in Queensland, the application for a licence here appears to be an attempt to undermine the builders-licensing system in both States.
  7. [44]
    The applicant, irrespective of the decision in this tribunal, is still able to contest the decision to refuse his licence in Victoria.
  8. [45]
    It is not, in my view, in the public interest, for the applicant to be granted a stay to “shore up” his prospects of being successful in his review of the decision to refuse his application for a licence in Victoria. This is particularly the case where his application for a Queensland licence contains incorrect information and where there is considerable doubt as to whether the qualification upon which he relies, is genuine.
  9. [46]
    There was no other relevant prejudice raised by the applicant. His ability to earn an income is not prejudiced. He has never had a licence in Queensland, prior to the application to which this matter relates, and there is nothing to prevent him continuing to carry out building work in Victoria.
  10. [47]
    In conclusion, in all the circumstances, even assuming for present purposes  Mr Uysal had a sufficiently arguable case on review, I am not satisfied that there are sufficiently cogent and compelling factors which would make an order for a stay, desirable.

Footnotes

[1]QCAT Act s 22(3).

[2]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254; Munt v Queensland Law Society Incorporated [2015] QCAT 451 at [29].

[3]Cook’s Construction v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453.

[4]Munt at [31].

[5]Ibid.

[6]Administrative Appeals Tribunal Act 1975 (Cth) s 41.

[7]Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380 at [47]; Re Liddle and Commissioner for Superannuation (1991) 14 AAR 456.

[8]Mutual Recognition Act 1992 (Cth).

[9]Statement of David Scott dated 20 May 2016 at [22].

[10]Ibid at [27].

[11]Respondent’s Submissions on Stay Application dated 18 August 2016 at [51].

[12]Statement of Cesur Uysal dated 11 August 2016.

[13]Respondents Submissions on Stay Application dated 18 August 2016.

[14]Ibid at [60].

[15]Ibid at [63] – [64].

[16]QBCC Act s 3.

[17](1996) 70 ALJR 306.

Close

Editorial Notes

  • Published Case Name:

    Uysal v Queensland Building And Construction Commission

  • Shortened Case Name:

    Uysal v Queensland Building And Construction Commission

  • MNC:

    [2016] QCAT 367

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    07 Oct 2016

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
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
2 citations
Jump To
Cite 1 - (1996) 70 ALJR 306
Cite 2 - (1996) 70 ALJR 306
Cook's Construction Pty Ltd v Stork Food Systems Aust Pty Ltd[2008] 2 Qd R 453; [2008] QCA 322
2 citations
Jump To
Cite 1 - [2008] 2 Qd R 453
Cite 2 - [2008] 2 Qd R 453
Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
2 citations
Jump To
Cite 1 - [2011] QCATA 254
Cite 2 - [2011] QCATA 254
Griffiths Grif-Air Helicopters Pty Ltd v Civil Aviation Authority (1993) 31 ALD 380
2 citations
Jump To
Cite 1 - (1993) 31 ALD 380
Cite 2 - (1993) 31 ALD 380
Munt v Queensland Law Society Inc [2015] QCAT 451
2 citations
Jump To
Cite 1 - [2015] QCAT 451
Cite 2 - [2015] QCAT 451
Re Liddle and Commissioner for Superannuation (1991) 14 AAR 456
2 citations
Jump To
Cite 1 - (1991) 14 AAR 456
Cite 2 - (1991) 14 AAR 456

Cases Citing

Case NameFull CitationFrequency
AAA Mechanic & Roadworthy Pty Ltd & Anor v Department of Transport and Main Roads [2020] QCAT 842 citations
Gerhardt v Queensland Building and Construction Commission [2020] QCAT 3702 citations
Home Run Projects Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 602 citations
Nadimi v Queensland Building and Construction Commission [2017] QCAT 3632 citations
Ozzimo v Queensland Building and Construction Commission [2017] QCAT 3642 citations
The Licensee v Queensland Building and Construction Commission [2019] QCAT 312 citations
Willmott v Carless [2021] QCATA 1321 citation
Yatras & Anor v Queensland Police Service - Weapons Licensing [2019] QCAT 62 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.