Francis v Queensland Building and Construction Commission
[2016] QCAT 502
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- Unreported Judgment
- Francis v Queensland Building and Construction Commission[2016] QCAT 502
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Francis v Queensland Building and Construction Commission[2016] QCAT 502
Francis v Queensland Building and Construction Commission[2016] QCAT 502
CITATION: | Francis v Queensland Building and Construction Commission [2016] QCAT 502 |
PARTIES: | Jonathan Francis (Applicant) |
v | |
Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | OCR109-16 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 31 October 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – PERMITTED INDIVIDUAL – REVIEW APPLICATION - EXTENSION OF TIME – whether interests of justice to extend time – where disproportionate delay of three years – where no evidence to support explanation for delay – where application for review lacked merit Queensland Building Services Authority Act 1991 (Qld), s 56AD(8) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33, s 61, s 122, s 123 Aon Risk Services Aust. Ltd v. Australian National University (2009) 239 CLR 175 Benson v. Ware [2012] QCATA 24 Braunberger v. Assistant Commissioner Les Hopkins [2014] QCAT 34 Creek v. Raine & Horne Mossman [2011] QCATA 226 D’Arro v. Queensland Building and Construction Commission [2016] QCATA 76 Maxwell v. Murphy (1957) 96 CLR 261 McClintock v. Queensland Building Services Authority [2010] QCAT 68 Ren v. Poolworld Pty Ltd [2011] QCAT 706 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
What is this Application about?
- [1]
- [2]The Tribunal therefore directed Mr Francis to apply for an extension of time and provide supporting submissions. Having considered that application and submissions, the Tribunal refused to extend the time and dismissed the application for review.[3]
- [3]Mr Francis requested reasons for the Tribunal’s decision. The Tribunal is not required to comply with a request for reasons for a decision about extending time or compliance with a procedural requirement.[4]
- [4]However, in the interests of fairness to Mr Francis, the Tribunal provides its reasons for its decision.
What does the Tribunal consider?
- [5]
How long is the delay?
- [6]Mr Francis had 28 days from the Commission giving him its Statement of reasons to apply for review.[9] The Commission provided its Statement of Reasons to Mr Francis on 3 May 2013.[10] Mr Francis did not apply for review until 28 July 2016: three years after, and disproportionate to, the prescribed timeframe of 28 days.
Is there a reasonable explanation for the delay?
- [7]Mr Francis said that he did not apply to the Tribunal within the timeframe because of “life changing events” at the time, including loss of family home and tools of trade, relationship breakdown, diagnosis of acute adrenal gland fatigue and the need to obtain alternative employment.
- [8]Unfortunately, Mr Francis provided no evidence to support any of this.
- [9]Mr Francis did not provide any medical evidence to support his alleged condition, its severity and duration, his prognosis and how it affected his ability to participate in legal proceedings.
- [10]While the Tribunal can accept that the loss of his builder licence would have had a financial impact on him and his family, this does not make his case exceptional to warrant a three years extension of the timeframe. It is an unfortunate consequence of losing a licence, faced by all builders.
- [11]In these circumstances, the Tribunal cannot find a reasonable explanation for the delay.
Does the application for review have merit?
- [12]In deciding whether to extend time, the Tribunal also considered the merits of Mr Francis’ substantive application, within the context of proper case management and the proper use of public resources.[11]
- [13]To succeed in his review application, Mr Francis would need to demonstrate that he took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event.[12]
- [14]Mr Francis provided these grounds to support his application for review:
- His insolvency ceased in August 2016;
- The legislation has been amended to reduce the licence exclusion period from five years to three years; and
- He can show suitable financials for all licences to be reinstated.
Is the ceasing of insolvency a ground for review?
- [15]The ceasing of Mr Francis’ insolvency is not a ground to review the decision to not categorise him as a ‘permitted individual’: it happened after the event.
Is an amendment to the legislation a ground for review?
- [16]Legislation is presumed not to act retrospectively.[13] The legislative amendment is not expressed to operate retrospectively and it is not a ground for review.
Is there evidence to show Mr Francis took all reasonable steps?
- [17]Mr Francis said in his application for review that he “forwarded all documents pertaining to the reasons for the company failure”. His Profit & Loss Statements for the three years preceding the liquidation showed successive and increasing losses.[14] Mr Francis did not provide any evidence of financial or legal advice, credit management policies, provision for taxation debts, repayment arrangements to creditors, and contingencies for any downturn in business.[15]
- [18]Mr Francis has an obligation to act in his own best interests:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’.[16]
- [19]Liquidators were appointed to Mr Francis’ company on 28 February 2013.[17] Mr Francis was provided with an opportunity to provide his books of account and financial records. Mr Francis has not provided or identified any further evidence to determine whether he took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event – even after a lapse of three years.[18]
What are the appropriate Orders?
- [20]The appropriate Orders are that:
- The application to extend or shorten a time limit or for waiver of compliance with a procedural requirement is refused; and
- The application to review a decision is dismissed.
Footnotes
[1] QBSA Statement of Reasons for the Decision dated 3 May 2013.
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 33(3); Application to review a decision dated 28 July 2016.
[3] Decision dated 7 September 2016.
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61(1), s 122(4), s 123.
[5] Benson v. Ware [2012] QCATA 24 at [9].
[6] Braunberger v. Assistant Commissioner Les Hopkins [2014] QCAT 34 at [9].
[7] McClintock v. Queensland Building Services Authority [2010] QCAT 68 at [4].
[8] McClintock v. Queensland Building Services Authority [2010] QCAT 68 at [4]; Braunberger v. Assistant Commissioner Les Hopkins [2014] QCAT 34 at [9].
[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3).
[10] Application to review a decision dated 28 July 2016.
[11] Ren v. Poolworld Pty Ltd [2011] QCAT 706 at [8], citing with approval Aon Risk Services Aust Ltd v. Australian National University (2009) 239 CLR 175.
[12] Queensland Building Services Authority Act 1991 (Qld), s 56AD(8).
[13] D’Arro v. Queensland Building and Construction Commission [2016] QCATA 76 at [30], citing Maxwell v. Murphy (1957) 96 CLR 261.
[14] QBSA Statement of Reasons for the Decision dated 3 May 2013 at [3.26].
[15] QBSA Statement of Reasons for the Decision dated 3 May 2013 at [3.16] to [3.25].
[16] Creek v. Raine & Horne Mossman [2011] QCATA 226 at [13], citing with approval Aon Risk Services Australia Ltd v. Australian National University (20090 239 CLR 175, 217.
[17] QBSA Statement of Reasons for the Decision dated 3 May 2013 at [2.3].
[18] Queensland Building Services Authority Act 1991 (Qld), s 56AD(8).