Ozzimo v Queensland Building and Construction Commission
[2017] QCAT 364
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- Unreported Judgment
- Ozzimo v Queensland Building and Construction Commission[2017] QCAT 364
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Ozzimo v Queensland Building and Construction Commission[2017] QCAT 364
Ozzimo v Queensland Building and Construction Commission[2017] QCAT 364
CITATION: | Ozzimo v Queensland Building and Construction Commission [2017] QCAT 364 |
PARTIES: | Anthony Ozzimo (Applicant) v Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | OCR184-17 |
MATTER TYPE: | Occupational regulation matters |
DATE ORDER MADE: | 5 October 2017 |
HEARD AT: | On the papers decision |
DECISION OF: | Member Olding |
WRITTEN REASONS DELIVERED ON: | 24 October 2017 |
DELIVERED AT: | Brisbane |
ORDER MADE: | The application to stay a decision is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether desirable to make a stay order in respect of a decision to cancel a builder’s licence Mutual Recognition Act 1982 (Cth), s 33 Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), 22 Uysal v Queensland Building and Construction Commission [2016] QCAT 367 |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REPRESENTATIVES: |
|
APPLICANT: | represented by McInnes Wilson Lawyers |
RESPONDENT: | represented by Holding Redlich Lawyers |
REASONS FOR DECISION
- [1]Mr Ozzimo has applied to the Tribunal for review of the decision of the Respondent Commission on 26 July 2017 to cancel his builder’s licence and also applied for a stay of that decision.
- [2]On 5 October 2017, I dismissed the application for a stay. Mr Ozzimo sought reasons for the dismissal. My reasons follow.
Background
- [3]To obtain his builder’s licence, Mr Ozzimo was required to demonstrate at least 4 years of relevant experience.[1] His licence application set out his purported experience and on that basis the Commission granted the licence.
- [4]Although he obtained a Queensland building licence, Mr Ozzimo does not reside in and has never pursued his occupation in Queensland. Rather, having obtained the Queensland licence, he relied on mutual recognition provisions to obtain a builder’s licence in Victoria, where his business is carried on.
- [5]Upon subsequent investigation, the Commission found that the account of Mr Ozzimo’s experience in his licence application contained a number of inaccuracies and decided to cancel the licence. As a consequence, the Victorian authority cancelled Mr Ozzimo’s Victorian licence.[2]
- [6]Mr Ozzimo does not deny that his application contained inaccuracies but says they were inadvertent and made against the background of occupational pressures at the time he completed the application.
Statutory framework
- [7]The Commission “may” cancel a licence if the licence was obtained “on the basis of incorrect information supplied to the commission, whether or not fraud was intended” or “by fraud or other improper means”; or it “becomes aware of the existence of facts that . . . would allow the commission to refuse to issue the licence if it were now being applied for . . . or would have allowed the commission to refuse to issue the licence originally”.[3]
- [8]As Mr Ozzimo does not deny the inaccuracies in his application, it is likely that the Commission is correct in determining that the cancellation power was enlivened, but whether to exercise it is a matter of discretion having regard to all relevant circumstances. The issue for determination at the hearing of the application for review will be whether cancellation is the correct and preferable decision.[4]
- [9]The Tribunal may make an order staying the cancellation decision “only if it considers the order is desirable after having regard to the following:
(a) the interests of any person whose interests may be affected by the making of the order or the order not being made;
(b) any submissions made to the tribunal by the decision-maker for the reviewable decision;
(c) the public interest”.[5]
- [10]The Tribunal, in considering stay applications, also takes into account whether there is an arguable case and the balance of convenience.[6]
Consideration
- [11]Mr Ozzimo is the only person identified whose interests the making or declining to make a stay order would affect. There is a serious, immediate impact as a consequence of not being able to carry on his building business because of the cancellation of the Victorian licence consequent upon the cancellation of the Queensland licence.
- [12]However, although the process would take some time, the cancellation of his Queensland licence does not stop Mr Ozzimo from applying for a licence in Victoria where he resides and carries on his business. Further, the Mutual Recognition Act 1982 (Cth), s 33(2), explicitly empowers the Victorian authority to reinstate the Victorian licence “if it thinks it appropriate in the circumstances”.
- [13]The Commission submits that Mr Ozzimo’s prospects of success in the application for review are poor. On the other hand, Mr Ozzimo submits that the errors in his application were inadvertent and should not lead to cancellation of his licence. It is, of course, impossible to make a detailed assessment of the merits of the application in advance of hearing relevant evidence and submissions.
- [14]However, Mr Ozzimo does not seem to dispute the alleged discrepancies between his application and the Commission’s review of the relevant building permits. The review indicates that Mr Ozzimo’s statements in relation 6 out of the 9 projects, in which his experience was said to be obtained, were inaccurate. Furthermore, the inaccuracies are not insignificant, as the following table indicates:
Project no. | Stated experience | Building permit issued | Final inspection date/occupancy permit issued |
October 2012 to October 2013 | 30 September 2009 | 18 October 2010 | |
July 2012 to November 2012 | 21 July 2011 | 29 February 2012 | |
December 2011 to May 2012 | 17 August 2012 | Not stated | |
March 2011 to November 2011 | 4 April 2012 | Not stated | |
August 2010 to March 2011 | 10 September 2010 | 1 June 2011 | |
April 2010 to August 2010 | 28 July 2011 | 21 February 2012 |
- [15]There were also other inaccuracies, such as incorrect description of works and the wrong builder being listed.
- [16]I cannot determine that Mr Ozzimo does not have an arguable case. He may put forward further evidence relevant to the exercise of the discretion. However, based on the material put to the Tribunal by Mr Ozzimo to date, including in submissions regarding the stay, I accept the Commission’s submission that Mr Ozzimo’s prospects of success in the application for review are poor.
- [17]There is a clear public interest in maintenance of the integrity of the building regulation system in Queensland, in which the licensing regime plays a central role, which must be balanced against the legitimate interests of building contractors.[7] Apart from consumers, properly licensed builders also have an interest in the integrity of the licensing system.
- [18]Here, the application for a licence contained multiple inaccuracies, which are not of an insignificant nature and go to the very basis of the entitlement to be granted a licence. Further, Mr Ozzimo does not require and never has required a Queensland licence to carry on his business.
- [19]While the consequent cancellation of his Victorian licence will have a substantial, adverse impact on Mr Ozzimo, he is able to seek reinstatement of the licence in Victoria, the only place in which he seeks to carry on business. In those circumstances, it is my view that the balance of convenience favours maintaining the integrity of the Queensland licensing system.
- [20]Accordingly, it is not desirable to make a stay order.
Footnotes
[1] Queensland Building and Construction Commission Regulation 2003 (Qld), Schedule 2, Part 4.
[2] Mutual Recognition Act 1982 (Cth), s 33(1).
[3] Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), s 48.
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(1).
[5] QCAT Act, s 22.
[6] See Uysal v Queensland Building and Construction Commission [2016] QCAT 367 at [5] to [8] for further discussion of the principles applicable to stay applications in the context of a review of a decision to cancel a builder’s licence.
[7] 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: s 3.