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Paddon v Queensland Building and Construction Commission[2018] QCAT 100

Paddon v Queensland Building and Construction Commission[2018] QCAT 100

CITATION:

Paddon v Queensland Building and Construction Commission [2018] QCAT 100

PARTIES:

Scott Raymond Paddon

(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

OCR102-17

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

13 December 2017

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

5 April 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The Application to Extend Time filed on 18 October 2017 is dismissed.
  1. The Application to Review a Decision filed on 30 May 2017 is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – where a plumber had been considered an excluded individual for both a bankruptcy event and a company event prior to amendments to the relevant legislation in 2014 – where the plumber was considered by the QBCC to be a permanently excluded individual – whether the amending legislation has retrospective effect

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where leave to extend time was required to proceed with an application to review a decision to refuse to categorise  the plumber as a permitted individual

Professional Engineers and Other Legislation Amendment Act 2014 (Qld)

Queensland Building and Construction Commission and other Legislation Amendment Act 2014 (Qld)

D’Arro v Queensland Building and Construction Commission [2017] QCA 90

Jensen v Queensland Building and Construction Commission [2017] QCAT 232

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

Smith v Queensland Building Services Authority [2012] QCAT 58

APPEARANCES:

APPLICANT:

Ms M Campbell of Crouch and Lyndon Solicitors

RESPONDENT:

Mr M Robinson of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

  1. [1]
    Scott Raymond Paddon (‘Mr Paddon’) was a licensed plumber. The Queensland Building and Construction Commission (‘QBCC’) made two separate decisions dated 6 July 2010 and 4 October 2010 categorising him as an excluded individual.
  2. [2]
    The effect of the two categorisations as an excluded individual was that Mr Paddon was permanently excluded from holding a licence as a contractor or nominee supervisor; or being a director, secretary, influential person or nominee of a company holding a contractor grade of licence; or being in partnership with a licensed contractor.
  3. [3]
    Mr Paddon filed an Application to review a decision in the Tribunal on 30 May 2017 seeking orders that an Internal Review decision of the QBCC made on 3 May 2017, which confirmed a decision of the QBCC made on 17 January 2017 to refuse to categorise Mr Paddon as a permitted individual, be set aside.
  4. [4]
    Directions were given on 5 September 2017 which substituted the decision to be reviewed in this proceeding to be a decision of the QBCC dated 6 July 2010 (which was a decision that the QBCC considered Mr Paddon to be an excluded individual because of a Bankruptcy event); and required Mr Paddon to file an Application to extend Time to bring that Review Application.
  5. [5]
    Mr Paddon filed an Application to Extend Time in the Tribunal on 18 October 2017. He sought that the time period for him to file an Application to review decisions of the QBCC dated 6 July 2010 and 4 October 2010 both be extended to 31 May 2017.
  6. [6]
    The Application to Extend Time was heard before me by submissions in an oral hearing on 13 December 2017. This is the decision as to that application.

Submissions on behalf of Mr Paddon

  1. [7]
    Mr Paddon was the Director and Secretary of a company called Freestone & Associates Pty Ltd. The company operated a plumbing business which operated as ‘A1 Metro Plumbing’. In 2009, administrators were appointed to the company.
  2. [8]
    The two decisions of the QBCC to categorise Mr Paddon as an excluded individual for an insolvency event were as follows:[1]
    1. One decision is dated 6 July 2010 and purports to categorise the Applicant as an excluded individual because “…On or about 20 May 2010 (the applicant) entered into bankruptcy under the Bankruptcy Act 1996’ (‘the first relevant event’) and
    2. The other decision is dated 4 October 2010 and purports to categorise the Applicant as an excluded individual because ‘… On or about 3 August 2009, Jordan Paul McLeod of McLeod & Partners was appointed administrator of the company, Freestone & Associates Pty Ltd’ and ‘ (the Applicant was) a director, secretary or influential person for the company at the time of, or within one year of, the Event’ (the second relevant event).
  3. [9]
    Mr Paddon sought that, should the tribunal exercise its discretion to extend time for him to apply for a review of both decisions, that a declaration be made that the first relevant event and the second relevant event have arisen from what was, in substance, the one set of circumstances.
  4. [10]
    Mr Paddon was prepared to concede that he should be categorised as an excluded individual for one relevant insolvency event. The effect of such a ruling, it was submitted, would be that the relevant exclusion period expired either:[2]
    1. On 3 August 2014 or 20 May 2015, being five (5) years from the date of the relevant insolvency event, applying the legislation that applied at the time of the insolvency events; or
    2. On 3 August 2012 or 20 May 2013, being three (3) years from the date of the relevant insolvency event, applying the legislation that applies today.
  5. [11]
    He submitted that the effect of a permanent exclusion was as follows:[3]
  1. The Applicant believes his status as a permanently excluded individual has negatively impacted the Applicant’s prospects of being promoted in his current job and he wants to have the option of holding a contractor or nominee supervisor grade of licence subject to meeting any other current statutory requirements for holding a licence. 
  1. [12]
    The submission indicates that Mr Paddon filed a debtors petition appointing a trustee in bankruptcy due to personal guarantees provided for the company.
  2. [13]
    The QBCC wrote to Mr Paddon on 8 November 2010 advising him that the QBCC considered him to be a permanently excluded individual.
  3. [14]
    There was some correspondence between them in February 2014 when Mr Paddon raised the issue of the two insolvency events arising from what was in substance the same set of circumstances.
  4. [15]
    A significant development was the amendment of Section 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) from 1 July 2015  by the Professional Engineers and Other Legislation Amendment Act 2014 (Qld) (‘the PEOLA ACT’) which introduced provisions that an excluded person for a relevant event did not also become an excluded individual for another relevant event if the QBCC is satisfied that both events are consequences flowing from what was, in substance, the one set of circumstances.
  5. [16]
    Mr Paddon then applied to the QBCC on 14 November 2016 to be categorised as a permitted individual for the first relevant event. That application set off the current chain of applications and reviews.
  6. [17]
    He made the following submissions as to the length of the delay and reason for it:[4]
  1. On the issue of the length of the delay, the Applicant requires an extension of more than seven (7) years for the exclusion decisions to be reviewed by QCAT. The Applicant concedes this is a lengthy extension, but submits that over the years he has been consistent in –
  1. (a)
    highlighting that the consequences of the first relevant event and the second relevant event flowed from what was, in substance, the one set of circumstances; and
  1. (b)
    protesting the effect of categorising the Applicant as an excluded individual for the first relevant event and the second relevant event, being his categorisation as a permanently excluded individual.
  1. On the issue of whether there is a satisfactory explanation or a good reason for the delay in making the review application, the Applicant submits he has been actively seeking advice and information from various lawyers, accountants and the QBCC over the years to try and understand his options and to work out what he needs to do to have the ‘permanent exclusion’ status removed from his licence record. He has found it difficult to understand the effect of the legislation and has followed the advice of his lawyers, accountants and the QBCC.
  1. [18]
    He submits that the current ‘one set of circumstances’ provisions should apply:[5]
  1. Since the exclusion decisions were originally made, the legislation has changed. The Applicant submits it is relevant for QCAT to consider which version of the legislation applies today in exercising the discretion to extend time. It was a factor which was considered by Member Traves in Jensen v Queensland Building and Construction Commission [2017] QCAT 232.
  1. Based on the reasoning in Jensen v Queensland Building and Construction Commission [2017] QCAT 232 and D’Arro v Queensland Building and Construction Commission [2017] QCA 90, it seems the current version of the legislation could apply.
  1. [19]
    In his submissions in reply he disputes paragraphs 43 and 44 of the QBCC submissions that a legal basis for ‘company-individual’ and ‘individual-company’ events to be considered to have flowed from the one set of circumstances only came into force with the 2014 amendments, and says that such an option was open to him before the amendments came into force:[6]

... the matter of Smith v Queensland Building Services Authority [2012] QCAT 58 is precedent for the determination of a company event and a personal event can be considered as a single event, despite the legislation at the time not providing for such a circumstance. The applicant submits that, had he received different legal advice at the time, he may have taken different steps in order to challenge the categorisation. It is mere coincidence that the relevant provisions of the QBCC Act have now been amended to rely on precedent, not new law; ...

Submissions on behalf of the QBCC

  1. [20]
    The QBCC opposes the Application to Extend Time to commence a review of the decision made on 6 July 2010, and opposes the Applicant seeking to review the ‘Second Decision’ which was made on 4 October 2010.
  2. [21]
    It says that the Tribunal does not have jurisdiction to review the Second Decision, as:

(a) no application has been filed; and

(b) it is not a reviewable decision as at the time the decision was made, the Applicant was not a licensee (the Applicant’s licence having been cancelled on 9 August 2010 following the making of the decision).[7]

  1. [22]
    It submits that there is nothing exceptional in the Applicant’s explanation that might warrant a time extension of seven years being granted,[8] and that the delay is significant and ‘weighs heavily against the granting of an extension of time’.
  2. [23]
    It submits the Applicant does not provide details to support its contention that the two events were in substance the one relevant insolvency event flowing from the same set of circumstances; and that it will be difficult for the Tribunal to find that the strength of the Applicant’s case justifies allowing an extension of time.
  3. [24]
    The QBCC submits that if a review was to be undertaken by the Tribunal, that two possible approaches are open:[9]
  1. The test set out in schedule 1, section 57 would strictly be applied. That is, the meaning of section 56AC to be applied would be that in force immediately prior to the Queensland Building and Construction Commission and other Legislation Amendment Act 2014.
  2. Alternatively, the section 56AC test in force at the time of making the decision, and subsequently cancelling the Applicant’s licence on 9 August 2010, which did not include any option to allow consideration of ‘company-individual’ and ‘individual – company’ events to have flowed from the one set of circumstances.
  1. [25]
    It concludes by making an overall submission as to the course sought by Mr Paddon that it is not in the interests of justice:
  1. It is not in the interests of justice for the Applicant (or indeed others in similar circumstances) to have an opportunity to seek to selectively take advantage of legislative amendments by commencing a review well out of time.
  1. [26]
    In further submissions it re-iterated those arguments:[10]
  1. Here, the Applicant has no prospect whatsoever of overturning the section 56AF(2) notices given in 2010. That would infringe the retrospectivity issue raised in D’Arro and if old matters were now allowed to be reopened, that would leave the licencing system into disarray.
  1. QBCC would be prejudiced if the basis for past decisions was changed retrospectively. Also, it would open a ‘flood gates’ whereby any person thought to be permanently excluded would be open to re-opening their old matters. That cannot possibly be correct. It would create prejudice to the licencing system that could not be tolerated.

Discussion

  1. [27]
    It was submitted for Mr Paddon that the decision of the Tribunal in Smith[11] had the same effect as the subsequent 2104 PEOLA amendments, and that it was not necessary to show that those amendments operated retrospectively, as a principle was already established allowing dissimilar events to be treated as one event.
  2. [28]
    In Smith,[12] the Member noted that the legislation at the time did not specifically provide as to two dissimilar events being treated as one event:

[25] ...Counsel for Mr Smith has submitted that he has fallen in a lacuna between the legislation because whilst both events may well flow from what is in substance the one set of circumstances. Section 56(5) and (6) only applies to two bankruptcy events or two company events not a mixed event.

[26] This has been considered in the matter of Anderson by Senior Member O'Callaghan where she says, “I accept the Authority’s submission that subsection 5 refers to bankruptcy matters and subsection (6) to company matters. There is no section which refers to a mixed event.” With respect to Counsel it is not a lacuna indeed each matter must be judged upon its individual circumstances.

  1. [29]
    The member then went on in Smith[13] to find that the builder had taken all required reasonable steps in relation to the relevant event:[14]

[30] Mr Smith finds himself post September 2009, essentially powerless to take any steps to prevent his creditors applying for his bankruptcy. It is an event which flowed from the winding up of his company in circumstances where he could not contribute further funds to satisfy his creditors. He took no steps at all to prevent these circumstances arising because indeed there was none he could take. Having identified the circumstances and the reasonable steps I find that upon a consideration of all the evidence the applicant took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event and therefore the applicant should for that event be categorised as a permitted individual.

  1. [30]
    The Member in Smith[15] was not finding that two dissimilar events could simply be considered as consequences flowing from the one set of circumstances, as submitted by Mr Paddon, but rather assessed each separate event as to whether the relevant test of taking ‘all reasonable steps’ was made out.
  2. [31]
    I do not accept that the effect of Smith[16] was materially the same as the 2014 PEOLA amendments, as has been submitted by Mr Paddon.
  3. [32]
    The question of retrospectivity of the PEOLA amendments was addressed in D’Arro v Queensland Building and Construction Commission.[17] The Court of Appeal noted that:[18]

[28] The applicant relied upon the observation by Brennan J in Esber that “Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time.’ That is applicable here. The respondent did not contend to the contrary. The question is whether the amendments made by the PEOLA Act do not form part of that law because the PEOLA Act does not operate retrospectively.

  1. [33]
    Fraser JA referred to a sentence of Windeyer J in Ogden Industries Pty Ltd v Lucas[19] as to disadvantage as to a past event saying ‘That to my mind describes a liability having become complete by past events rather than a situation in which some future event must occur to make the effect of past events create a completed liability’, and went on to say:

[34] The last sentence describes the distinction I regard as applicable in this case. Some support for that approach may be found in Chesterman JA’s judgment in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority. The majority (McMurdo P and Holmes JA, as the Chief Justice then was) resolved the issue in that case in a way that did not require any decision whether the amending legislation operated retrospectively. Chesterman JA preferred a different analysis, which required his Honour to consider whether the amending legislation had such an operation. His Honour held that it did not. In reasoning to that conclusion Chesterman JA distinguished a category of cases concerning statutes imposing a liability or disqualification on a member of a profession or an officer by reference to circumstances, such as misconduct or suspected ineptitude, in which it had been held that the existence of the circumstances was enough to give rise to the disqualification even if the circumstances pre-dated legislation which authorised the disqualification. (citations omitted).

  1. [34]
    Fraser JA then went on to say[20] that he would reject the respondent’s argument that the application of the amendments in the Tribunal would attribute a retrospective operation to the PEOLA Act. Philippides JA and Mullins J agreed with the reasons of Fraser JA.
  2. [35]
    The legislature were aware in 2014 of the difficulties that builders had faced under the previous legislation, where there was no explicit provision available to argue that a later dissimilar event should be treated as effectively the same event as an earlier event. It was obviously felt that the absence of such a provision was unfair and did not achieve the desired policy outcome, and the legislation was amended accordingly.
  3. [36]
    The amending legislation introduced in 2014 addressed the situation of dissimilar events. The Minister’s second reading speech explained the purpose of the amendments:[21]

Finally, the bill also amends the Queensland Building and Construction Commission Act to more clearly identify that a licensee ought not to be categorised as a permanently excluded individual merely as a result of a relevant bankruptcy event and a relevant company act arising out of the same incident. This amendment stems from a recommendation in the Transport, Housing and Local Government Committee’s report tabled on 30 November 2012 that the QBCC Act be amended to provide that where an individual’s relevant bankruptcy event and a relevant company event stem from the same financial incident they may be deemed one event for the purpose of penalties. This recommendation came about as a result of criticism from witnesses who submitted that bankruptcy and company insolvency events arising from the same circumstances should be treated as a single event because to do otherwise is unfair. The government supported this recommendation by the parliamentary committee and, as a result, this bill addresses the issue.

  1. [37]
    The legislature could have provided that matters decided prior to the introduction of the 2014 amendments were to be open to be re-considered in light of the new provision as to treating separate events.
  2. [38]
    However, there were many years of previous decisions that had been decided on ‘the old basis’, which had the effect of permanently excluding a licensee, and perhaps the legislature was wary of ‘opening the floodgates’ as submitted by the QBCC, and accordingly did not provide to make previous cases re-justiciable on the new basis.
  3. [39]
    I accept that it would make the licencing system unstable if builders were to be now able to readily re-open matters from before 2015, many of which were many years old, when witnesses may have become unavailable, or memories may have faded, or documents may have been lost, and prejudice may conceivably readily arise to the QBCC from the delay.
  4. [40]
    On an application for extension of time, an applicant must show the following elements, as discussed in Jensen v Queensland Building and Construction Commission:[22]
    1. Whether a satisfactory explanation (or “good reason”) is shown to account for the delay.
    2. The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).
    3. Prejudice to adverse parties.
    4. Length of the delay, noting a short delay is usually easier to excuse than a lengthy one.
    5. Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.  
  5. [41]
    The QBCC submit that Mr Paddon has not put forward material indicating what steps he took to avoid the circumstances that resulted in the happening of each of the relevant events coming about:[23]
  1. No further details were provided by the Applicant to support this contention, such as:
  1. (a)
    what the circumstances were;
  1. (b)
    how the events flowed from the circumstances;
  1. (c)
    what evidence or information he can provide in support of his case.
  1. [42]
    Mr Paddon takes issue with that submission, and submits:
  1. (c)
    In any event, ‘BOD-13’ of the respondents Bundle of Documents attaches the Applicant’s permitted individual application which addresses the relevant tests and includes the necessary evidence demonstrating the strength of his case. The Applicant rejects that he has not provided sufficient information or evidence.
  1. [43]
    That bundle of documents (BOD-13) runs from pages 76 to 840.
  2. [44]
    The decision of the QBCC made on 6 July 2010, which is the subject of this application as amended, was that the QBCC considered Mr Paddon to be an excluded individual because of the following event:

On or about 20 May 2010 you entered into bankruptcy under the Bankruptcy Act 1966 (Qld 2795/10/8).

  1. [45]
    The decision  of the QBCC made on 4 October 2010, which Mr Paddon now seeks to be also the subject of an extension of time to review, was that the BSA considered Mr Paddon to be an excluded individual for a second event that:

On or about 3 August 2009, Jonathon Paul McLeod of McLeod & Partners was appointed administrator of the company, Freestone & Associates Pty Ltd (the Company).

  1. [46]
    Mr Paddon is seeking a legal ruling in this application that the two events have arisen as consequences flowing from what was one set of circumstances.
  2. [47]
    I do not consider that it is open to the Tribunal to now consider whether those two events  flowed from one set of circumstances, as:
    1. I do not consider that Smith has that consequence;
    2. I do not consider that the 2014 PEOLA amendments (which would have such an effect) apply retrospectively; and
    3. I do not consider that the Court of Appeal decision in D’Arro supports such a treatment.
  3. [48]
    The material in BOD-13 is directed towards showing that all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of a relevant event were taken.
  4. [49]
    Mr Paddon concedes that he should be declared as an excluded individual for one event. There is no material to distinguish his submissions between the two events, therefore the concession as to one event must logically flow to the second also, once they are treated as two separate events.
  5. [50]
    I have to exercise discretion as to whether to grant an extension of time.
  6. [51]
    In relation to giving a  satisfactory explanation, or giving a good reason for the delay in bringing the application, Mr Paddon submits that he has found it difficult to understand the effect of the legislation, and has followed the advice of his lawyers, accountants and the QBCC.
  7. [52]
    The legislation and law in this area is complex, as is acknowledged by all parties. Mr Paddon has however had the benefit of legal advice, and mere complexity alone would not sufficiently explain the delay.
  8. [53]
    I am not satisfied that the very lengthy delay in bringing the extension of time has been satisfactorily explained.
  9. [54]
    Mr Paddon would need to show that he has reasonable prospects of success in the review application. Once the events are treated as two separate events, as I have found; and once the concession which has been made as to being categorised as an excluded individual is extended to each event, as I have found it would be; there can be no prospects of success for Mr Paddon in the Review Application.
  10. [55]
    The Application for an Extension of Time is therefore dismissed.
  11. [56]
    The Application to Review filed on 30 May 2017, which sought to review the decision of 6 July 2010, was out of time, and time not having been extended, cannot proceed. The Application to Review is therefore also dismissed.

Footnotes

[1]Applicants submissions filed 6 October 2017, [2].

[2]Ibid, [9].

[3]Ibid, [10].

[4]Applicants submissions filed 6 October 2017, [23]; [24].

[5]Ibid, [35]; [36].

[6]Applicants submissions in reply dated 29 November 2017, [2].

[7]QBCC submissions filed 3 November 2017, [23]-[25].

[8]Ibid, [32].

[9]Ibid, [47].

[10]Supplementary submissions filed 22 November 2017, [20]; [21].

[11][2012] QCAT 58.

[12]Ibid, [25]; [26].

[13]Ibid.

[14]Ibid, [30].

[15]Ibid.

[16]Ibid.

[17][2017] QCAT 232. 

[18]Ibid, [28].

[19](1967) 116 CLR 537, 584.

[20][2010] QCA 380, [35].

[21]Quoted in D’Arro v Queensland Building and Construction Commission [2017] QCA 90, [17].

[22]Ibid, [68].

[23]Ibid, [35].

Close

Editorial Notes

  • Published Case Name:

    Scott Raymond Paddon v Queensland Building and Construction Commission

  • Shortened Case Name:

    Paddon v Queensland Building and Construction Commission

  • MNC:

    [2018] QCAT 100

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    05 Apr 2018

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
D'Arro v Queensland Building and Construction Commission[2018] 1 Qd R 204; [2017] QCA 90
5 citations
Jump To
Cite 1 - [2017] QCA 90
Cite 2 - [2017] QCA 90
Cite 3 - [2017] QCA 90
Cite 4 - [2017] QCA 90
Cite 5 - [2017] QCA 90
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
5 citations
Jump To
Cite 1 - [2017] QCAT 232
Cite 2 - [2017] QCAT 232
Cite 3 - [2017] QCAT 232
Cite 4 - [2017] QCAT 232
Cite 5 - [2017] QCAT 232
McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380
1 citation
Jump To
Cite 1 - [2010] QCA 380
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
2 citations
Jump To
Cite 1 - (1967) 116 CLR 537
Cite 2 - (1967) 116 CLR 537
Smith v Queensland Building Services Authority [2012] QCAT 58
5 citations
Jump To
Cite 1 - [2012] QCAT 58
Cite 2 - [2012] QCAT 58
Cite 3 - [2012] QCAT 58
Cite 4 - [2012] QCAT 58
Cite 5 - [2012] QCAT 58

Cases Citing

Case NameFull CitationFrequency
Buchanan v Queensland Building and Construction Commission [2019] QCAT 3542 citations
Jensen v Queensland Building and Construction Commission [2019] QCATA 112 citations
Priest v Queensland Building and Construction Commission [2018] QCAT 2432 citations
1

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