Thomson v Queensland Building and Construction Commission
[2017] QCAT 329
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- Unreported Judgment
- Thomson v Queensland Building and Construction Commission[2017] QCAT 329
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Thomson v Queensland Building and Construction Commission[2017] QCAT 329
Thomson v Queensland Building and Construction Commission[2017] QCAT 329
CITATION: | Carolyn Mary Thomson v Queensland Building and Construction Commission [2017] QCAT 329 |
PARTIES: | Carolyn Mary Thomson (Applicant) |
v | |
Queensland Building and Construction Commission (Respondent) | |
APPLICATION NUMBER: | OCR045-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Olding |
DELIVERED ON: | 10 April 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – whether to grant an adjournment – where concurrent proceedings in another forum – where no prejudice to other party identified Queensland Building and Construction Commission Act 1991 (Qld), s 56AC, s 56AC Foxworth Pty Ltd t/a Mango 4 Office Technology v Belz [2016] QCATA 194 |
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: | Unrepresented |
RESPONDENT: | represented by Mr E Tan, Senior Lawyer, Queensland Building and Construction Commission |
REASONS FOR DECISION
- [1]On 28 February 2017, the applicant, Mrs Thomson, sought an adjournment of this proceeding pending the outcome of proceedings in the Supreme Court of Queensland to which she is a party.
- [2]The respondent Commission opposes the adjournment.
- [3]I have decided to grant the adjournment.
- [4]My reasons for that decision follow.
The Application for Review
- [5]By notice dated 4 August 2015, the Commission notified Mrs Thomson that, in accordance with s 56AC of the Queensland Building and Construction Commission Act 1991(Qld),[1] the Commission considered her to be an “excluded individual” in relation to a relevant event.
- [6]The relevant event was the appointment of liquidators to Kadoe Pty Ltd, in which Mrs Thomson held a 50% shareholding and of which her husband, Mr Wayne Thomson, was the sole director.
- [7]That determination by the Commission is not reviewable by the Tribunal.[2]
- [8]Mrs Thomson applied to the Commission under the then s 56AD to be categorised as a “permitted individual” in relation to the appointment of the liquidators.
- [9]The Commission notified Mrs Thomson by letter dated 30 November 2015 of its decision to refuse to categorise Mrs Thomson as a “permitted individual”. It is that decision which is the subject of Mrs Thomson’s application for review.
- [10]In order to explain the factors weighing in favour of and against adjourning this proceeding, it is necessary to elaborate upon the statutory framework for the Commission’s decision.
The statutory framework
- [11]Under the Act, an “excluded individual” for an event is forbidden to undertake certain activities in relation to construction companies.
- [12]An individual is, by force of the statute – that is to say, without any decision by the Commission - an “excluded individual” for an event if s 56AC applies.
- [13]Section 56AC applies to an individual for an event if:
- the company, for the benefit of a creditor, has a liquidator appointed; and
- the individual was an “influential person” for the company when the liquidator was appointed or within 1 year before the appointment.
- [14]An “influential person” is defined in Schedule 2 as “an individual, other than a director or secretary of the company, who is in a position to control or substantially influence the conduct of the company’s affairs, including, for example, a shareholder with a significant shareholding, a financier or a senior employee.”
- [15]An excluded individual could apply to the Commission under the then
s 56AD to be categorised as a “permitted person for the relevant event”. If so categorised, the individual is taken not to be an excluded individual for the event: s 56AD(9). - [16]In accordance with s 56AD(8)(b), the Commission may only categorise a person as a permitted person for an event if it is satisfied that the person “took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event”.
- [17]In deciding whether the person took all such reasonable steps, regard must be had to various factors listed in s 56AD(8A) but nothing in s 56AD(8A) prevents the Commission from having regard to other matters (s 56AD(9)).
- [18]It appears to be common ground that consideration of whether Mrs Thomson “took all reasonable steps” to avoid the appointment of the liquidators must include consideration of her influence over the activities of the company. That is obviously relevant to the reasonableness of any steps that might have been taken or not taken to avoid the appointment.
- [19]The Commission refers to various actions taken by Mrs Thomson in support of its conclusion that her influence was at the level of a director. Various actions of Mrs Thomson on behalf of the company are also alleged in the Supreme Court proceedings.
The Supreme Court proceedings
- [20]Mrs Thomson is the defendant in the Supreme Court proceedings.
- [21]The Statement of Claim indicates that the plaintiff seeks to recover against Mrs Thomson personally a debt alleged to have been incurred by Kadoe Pty Ltd.
- [22]Central to the claim is an allegation that Mrs Thomson was a “director” of Kadoe Pty Ltd as that term is defined in the Corporations Act 2001 (Cth), either because she acted in the position of a director or because her husband, who was a director, was accustomed to act in accordance with her instructions or wishes.
- [23]By consent order dated 10 March 2017, the Court made various directions for the management of the case. These include that the case be placed on the list of cases awaiting trial dates and be allocated dates for a 5-day trial on a date to be advised after 30 August 2017.
Company, trust or sole trader?
- [24]Mrs Thomson alleges that it was intended that Kadoe Pty Ltd would act only as trustee of a trust but that the proposed deed for the trust was not executed.
- [25]There is a suggestion that, as a consequence of the problem with the trust deed, Kadoe Pty Ltd did not trade at all and that the true characterisation of what has occurred is that Mrs Thomson’s husband conducted the business as a sole trader. It is not clear to me why this would be so and, in particular why, if the trust was not created, the position would not be that the Kadoe Pty Ltd carried on the business in its own right.
- [26]The proposition that the business may have been conducted by Mr Thomson as a sole trader appears to have its source in a view expressed by the Australian Taxation Office. Any such view would, of course, not be binding on the Court or the Tribunal.
- [27]However, a belief by Mrs Thomson from a particular date that the business was conducted by Mr Thomson as a sole trader, if proven, may be relevant to what steps it might have been reasonable for her to take to avoid liquidators being appointed to Kadoe Pty Ltd. Evidence of the accountants may be relevant to this.
- [28]Apart from the existence of the allegations and suggestions mentioned above, I make no findings in relation to these matters for the purposes of the current application for adjournment of the proceedings.
Mrs Thompson’s submissions
- [29]Mrs Thomson submits that the issues to be determined in the Tribunal proceedings and the Supreme Court proceedings are “identical”. She says this is because the Commission’s decision-maker stated in his reasons for decision that her level of influence over Kadoe Pty Ltd was the level of a director and made his decision on that basis. Of course, the Tribunal is not bound by that characterisation and would reach its own view after the hearing of the application for review.
- [30]Mrs Thomson also identifies various other issues that she says overlap between the two proceedings, including whether the trust was created, whether the business was conducted by Mr Thomson as a sole trader and the significance of the accountants’ actions.
- [31]She says that it is not in the best interests of justice for parties to be forced to spend money arguing the same sets of facts and issues in two forums. Further, if this results in decisions that are at odds with each other costly appeals are likely.
- [32]Finally, Mrs Thomson notes that she has not previously sought an adjournment.
The Commission’s submissions
- [33]The Commission concedes that evidence relating to whether Mrs Thomson was a “director” for Corporations Act purposes may be somewhat relevant to her level of influence over Kadoe Pty Ltd, but notes that the legal issues to be determined are “fundamentally different”.
- [34]Additionally, the Commission relies on the decision of Carmody J, sitting as the Appeals Tribunal, in Foxworth Pty Ltd t/a Mango 4 Office Technology v Belz [2016] QCATA 194. In particular, the Commission refers to his Honour’s observation that, even if the issues in a case in another forum are substantially the same, the Tribunal would not be bound by its findings.[3]
- [35]The Commission also notes that the Supreme Court proceedings are not well advanced and that there is no certainty as to the timing of any hearing of those proceedings. The consent orders referenced above had not been made at the time the Commission’s submissions were made.
- [36]Ultimately, the Commission cites Carmody J’s comment in the Foxworth that “parties are entitled to expect that a hearing will proceed at the place and on the day appointed” and submits that it is entitled to proceed to a hearing.
Consideration
- [37]As Carmody J noted in Foxworth, and the Commission emphasised, the paramount duty of the Tribunal is to deal with matters “in a way that is accessible, fair, just, economical, informal and quick”.[4]
- [38]Allowing an adjournment would undoubtedly act against the statutory duty to deal with matters in a “quick” way, in the sense that hearing of the matter is likely to be delayed for at least 6 months if an adjournment is granted.
- [39]But that is not the only statutory objective. The Tribunal is also commanded to “encourage the early and economical resolution of disputes”; to “ensure proceedings are conducted in an informal way that minimises costs to parties” and to “ensure the tribunal is accessible and responsive to the diverse needs of persons who use the tribunal”.
- [40]I do not read Carmody J’s comments as indicating that the existence of proceedings in another forum is never a reason for adjourning proceedings in the Tribunal. His Honour posed the question for consideration in Foxworth as “whether the fact that the same parties are embroiled in other outstanding legal proceedings is relevant to the adjournment discretion” and answered that question: “not aways”. As his Honour notes, the procedure for a proceeding is at the discretion of the Tribunal, subject only to the QCAT Act and Rules.[5]
- [41]I take it to be uncontroversial that every decision must be made in its context having regard to the particular circumstances of the case.
- [42]Foxworth was a minor civil dispute about a sum said to be owed to an employer where the Tribunal of its own initiative adjourned the proceeding in the belief that concurrent Anti-Discrimination Commission proceedings were more appropriately disposed of first. The parties were ready and willing to proceed with the Tribunal hearing.
- [43]There is considerable difference between those circumstances and the current matter.
- [44]Here, the applicant has sought the adjournment. It is the first occasion on which she has done so.
- [45]This is a review of an administrative decision, rather than a dispute which private parties wish to have resolved. The Commission has not identified any prejudice to the Commission or risk to the public that would ensue if the hearing is adjourned.
- [46]Assuming the Commission is correct in its view that she is an “excluded individual”, Mrs Thomson is and will remain an excluded individual unless or until the Tribunal decides to categorise her as a “permitted person”. If the proceeding is adjourned, all the restrictions that apply to excluded persons will continue to apply.
- [47]But that is not sufficient to warrant granting an adjournment. Although the Commission has not raised the issue, there is inevitably some cost when a matter that is or should be ready for hearing is delayed.
- [48]If an adjournment is granted, the Commission’s officers will need to spend time and resources refreshing themselves on the matter when it is eventually set down again for hearing (if that occurs) and in considering further evidence that may emerge, either from the Supreme Court proceedings or otherwise, in the meantime.
- [49]It is also relevant that adjournments come at a cost to the efficient operation of the Tribunal and therefore to other litigants.[6]
- [50]On the other hand, Mrs Thomson is unrepresented in a matter that seems likely to involve considerable evidentiary complexity. With the accountants and others joined as parties to the Supreme Court proceedings, and that matter to be set down for a 5 day hearing, further relevant information regarding the difficult issues identified above may emerge, which might not otherwise be available for the benefit of the Tribunal.
- [51]It is also conceivable that a decision in the Supreme Court proceeding might result in either the Commission or Mrs Thomson reviewing their position in this matter, and thus enabling it to be settled without a hearing.
- [52]Thus there are some considerations in terms of economy and responsiveness to the needs of an unrepresented litigant, in the context of review of an administrative decision, that point in favour of adjourning the matter.
- [53]The prospect of a considerable delay in the resolution of the matter is a powerful consideration against adjourning the matter, especially since there is inevitably uncertainty regarding whether the Supreme Court proceedings will in fact proceed in accordance with the current directions. Against that, there is no substantial prejudice to the Commission and no risk to the public in allowing the adjournment and the prospect of a more economical and just, albeit delayed, resolution of the matter.
- [54]On balance, I consider that the adjournment sought should be granted.
- [55]However, this does not mean that the matter may languish indefinitely if, contrary to current indications, the Supreme Court matter does not proceed to hearing with reasonable expedition. The orders that accompany this decision require Mrs Thomson to keep the Commission informed of progress of the Supreme Court proceedings. If there are delays or other reasons for doing so, the Commission will be free to apply to have the order adjourning the hearing withdrawn and the matter set down for hearing.
Footnotes
[1] All legislative references are to the Queensland Building and Construction Commission Act 1991 (Qld) at the relevant time, unless otherwise indicated.
[2] Queensland Building and Construction Commission v Cummings and Gagliano [2015] QCATA 130.
[3] Foxworth Pty Ltd t/a Mango 4 Office Technology v Belz [2016] QCATA 194, [11].
[4] Ibid, [7].
[5] Ibid, [7], [11].
[6] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.