O'Rourke v Queensland Building and Construction Commission
[2017] QCAT 140
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- Unreported Judgment
- O'Rourke v Queensland Building and Construction Commission[2017] QCAT 140
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O'Rourke v Queensland Building and Construction Commission[2017] QCAT 140
O'Rourke v Queensland Building and Construction Commission[2017] QCAT 140
CITATION: | O'Rourke v Queensland Building and Construction Commission [2017] QCAT 140 |
PARTIES: | Michael John O'Rourke (Applicant) v Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | OCR233-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr Cullen, Member |
DELIVERED ON: | 3 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – Permitted individual – where applicant categorised as excluded individual by QBCC – where QBCC applied to dismiss/strike out application to review decision – application dismissed on basis it is lacking in substance Queensland Building and Construction Commission Act 1991 (Qld), s 56AC, s 56AF Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 |
APPEARANCES: |
|
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).
REASONS FOR DECISION
Application to dismiss/strike out by the QBCC
- [1]The Queensland Building and Construction Commission (QBCC) has asked the Tribunal to dismiss and/or strike out Mr Michael John O'Rourke’s application to review the QBCC’s 10 October 2016 decision that Mr O'Rourke is an excluded individual pursuant to s 56AF of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
- [2]In its submissions in support of this application, the QBCC correctly points out that s 56AC of the QBCC Act provides that where a person was ‘within the period of 1 year immediately before the relevant company event happened, a director or secretary of, or an influential person for, the construction company’, they become an excluded individual.
- [3]It is not disputed that O'Rourke Constructions is a company within the meaning of s 56AC(7) of the QBCC Act.
- [4]On 13 July 2016, the QBCC received a request from O'Rourke Constructions Pty Ltd to surrender its contractor licence in the classes of concreting and steel fixing. The licence surrender request was signed by Mr O'Rourke, in his capacity as director. The licence cancellation request was given effect by the QBCC on 18 July 2016.
- [5]A liquidator was appointed to O'Rourke Constructions shortly after, on 7 October 2016. Mr O'Rourke admits that he was a director[1] of O'Rourke Constructions at the time of its liquidation.
- [6]Following the appointment of liquidators to O'Rourke Constructions, on 10 October 2016, the QBCC made the decision to exclude Mr O'Rourke, pursuant to s 56AF of the QBCC Act.
- [7]Essentially, the QBCC’s argument is that because Mr O'Rourke agrees that he was a director at the time O'Rourke Constructions was liquidated, he is unable to demonstrate an arguable case in the Tribunal that he should not be excluded.
- [8]Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that:
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—
- (a)frivolous, vexatious or misconceived; or
- (b)lacking in substance; or
- (c)otherwise an abuse of process.
- (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.
Note—
See section 108 for the tribunal’s power to order that the costs be paid before it continues with the proceeding.
- (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.
Mr O'Rourke’s application is misconceived, and doomed to fail
- [9]The Tribunal agrees with the QBCC that Mr O'Rourke’s application is misconceived and lacking in substance. Sometimes, in excluded individual review matters in the Tribunal, an applicant may seek to argue that they were not, in fact, a director or secretary of, or an influential person for, the company that has been liquidated. That is not the case here, rather Mr O'Rourke seeks to demonstrate that there were good reasons, outside of his control, and which result in manifest injustice to him, which led to O'Rourke Constructions liquidation.
- [10]Without question, Mr O'Rourke has found himself in very difficult and stressful circumstances as a consequence of O'Rourke Constructions’ liquidation.
- [11]Regardless of the merit of any of Mr O'Rourke’s arguments about the circumstances that led to liquidation, these are not matters that the Tribunal would be able to consider in an excluded individual review under s 56AC. There is no general discretion held by the Tribunal to make different decisions in matters where the legislative criteria apply, but the applicant asserts that the resulting outcome will be unfair to them.
- [12]If the Tribunal allowed this matter to progress, it would not be able to make a different decision in relation to Mr O'Rourke’s application. This is because he was, on his own evidence, a director of O'Rourke Constructions within the applicable one-year period of liquidation.
- [13]The QBCC raises two additional bases in support of its application to dismiss and/or strike out Mr O'Rourke’s application.
Mr O'Rourke’s application was filed late
- [14]Firstly, the QBCC asserts, that Mr O'Rourke did not file his application for review in a timely fashion, and has not explained the reason for delay. As such, the QBCC says that the Tribunal should not exercise its discretion to now allow Mr O'Rourke to file outside of time.
- [15]Mr O'Rourke’s application for review was not filed within 28 days of his receiving notice of the QBCC’s decision. The QBCC says that, as it made the decision on 10 October 2016, Mr O'Rourke should have received the decision on 12 October 2016. Yet, he did not file the review application until 5 December 2016. The Tribunal agrees with the QBCC that Mr O'Rourke’s application is late, and that he should have applied for an extension of time.
- [16]The delay in filing is reasonably brief. Although he has not specified a particular reason for his delay, Mr O'Rourke’s application does disclose that he is suffering a considerable amount of stress. Whilst he does not clearly articulate a reason for the delay, the Tribunal surmises that Mr O'Rourke is simply not coping following the loss of his licence. He says that:
I want my family back, I want my home back, I want my life back this whole situation has had a huge bearing on my personal and family’s wellbeing, please.
- [17]The distress that these circumstances have caused Mr O'Rourke, and by extension his family, are palpable. The Tribunal has genuine concerns about the impact that this has had on Mr O'Rourke’s mental health, and hopes that he is able to obtain appropriate assistance from his general practitioner, family and friends to help him manage through a very difficult period in his life.
- [18]Given the Tribunal’s concerns, if Mr O'Rourke had specifically explained that the reason for his delay in filing related to his mental health, it is likely that the Tribunal would grant an extension of time to file his application, in accordance with s 61 of the QCAT Act. Being a self-represented person, Mr O'Rourke has not managed to articulate the basis for his extension in quite those terms, but the Tribunal would not consider this to be a fair basis upon which his application could be dismissed.
Mr O'Rourke has failed to comply with Tribunal directions
- [19]The QBCC further asserts that Mr O'Rourke has failed to comply with the Tribunal’s directions that required him to provide a copy of his application for review to the QBCC by 31 January 2017.
- [20]Mr O'Rourke did not comply, and the QBCC had to obtain the application directly from the Tribunal. Whilst the Tribunal expects applicants to comply with its directions, the general tenor of Mr O'Rourke’s application materials indicates that he is a man teetering on the brink of personal collapse. He has young children, is trying to work to support them, and is very distressed. Again, the Tribunal considers that this noncompliance would not be a sufficient basis for the Tribunal to dismiss Mr O'Rourke’s application.
Mr O'Rourke’s 27 March 2017 Miscellaneous Application
- [21]Mr O'Rourke, following the filing of the QBCC’s application to dismiss and/or strike out, filed an application for miscellaneous matters in the Tribunal on 27 March 2017.
- [22]Although Mr O'Rourke has used an application form, the relief that he seeks is the same relief as that requested in his originating application.
- [23]The Tribunal has considered what Mr O'Rourke raises in his miscellaneous application. Mr O'Rourke makes submissions about the reasons he says the QBCC’s decision is unfair, and should be changed.
- [24]For the reasons articulated earlier, the Tribunal is unable to consider Mr O'Rourke’s arguments that relate to the cause of O'Rourke Constructions liquidation in the first instance. As difficult as these circumstances are for contractors like Mr O'Rourke, the legislation constrains the Tribunal’s review to a consideration to those factors contained in the QBCC Act.
- [25]Here, Mr O'Rourke agrees that he was a director of O'Rourke Constructions within the applicable one-year period. As a result, there is no point in Mr O'Rourke continuing with this review, as the Tribunal will be unable to make the decision he desires.
- [26]As such, the Tribunal dismisses both the 27 March 2017 Miscellaneous Application, along with the originating Application filed by Mr O'Rourke in the Tribunal on 5 December 2016.
Orders
- The 27 March 2017 Miscellaneous Application filed in the Tribunal by the Applicant is dismissed.
- The Application for Review in OCR233-16 is dismissed.
- The 10 October 2016 decision of the Respondent that the Applicant is an excluded individual in relation to the 7 October 2016 appointment of liquidators to O'Rourke Constructions Pty Ltd is confirmed.
- There will be no order as to costs.
Footnotes
[1]Letter sent by Mr O'Rourke to Mark Wilson of the QBCC, on 7 November 2016, annexed to the review application.