King v Queensland Building and Construction Commission
[2020] QCAT 504
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- Unreported Judgment
- King v Queensland Building and Construction Commission[2020] QCAT 504
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King v Queensland Building and Construction Commission[2020] QCAT 504
King v Queensland Building and Construction Commission[2020] QCAT 504
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | King v Queensland Building and Construction Commission [2020] QCAT 504 |
PARTIES: | robert russell king |
(applicant) | |
v | |
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION | |
(respondent) | |
APPLICATION NO/S: | OCR272-19 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 16 December 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Browne |
ORDERS: | The application for review filed on 2 August 2019 is dismissed. |
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – where applicant was a director of a company within two years of a relevant event – where company was a construction company – where liquidator was appointed to the company – where applicant considered to be an excluded individual – where applicant applied for a review – where application to strike out the application to review – whether application is lacking in substance Queensland Building and Construction Commission Act 1991 (Qld), s 56AC, s 86(1)(k) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Gogolka v Queensland Building Services Authority [2013] QCAT 280 O'Rourke v Queensland Building and Construction Commission [2017] QCAT 140 Raptis v Queensland Building Services Authority [2013] QCAT 279 Samimi v Queensland Building Services Authority [2014] QCATA 120 |
REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Queensland Building and Construction Commission, in-house solicitor |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]Robert Russell King was the sole director of Russell’s Carpentry Service Pty Ltd (‘the company’) from its incorporation on 16 May 2005 until 5 July 2019.[1]
- [2]A liquidator was appointed to the company on 5 July 2019 in a court ordered winding up, on application by the Deputy Commissioner of Taxation.[2] Relevantly, the appointment of a liquidator was a ‘relevant company event’ pursuant to s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’).
- [3]On 8 July 2019, the Queensland Building and Construction Commission (‘the QBCC’) notified Mr King that it considered him to be an ‘excluded individual’ pursuant to s 56AC of the QBCC Act as he was a director, secretary or influential person for the company at the time of or within two years of the relevant company event. The QBCC advised Mr King that if he did not make a submission within the reply period the QBCC must cancel his licence pursuant to s 56AF of the QBCC Act.[3]
- [4]On 2 August 2019, Mr King applied to the Tribunal to review the QBCC’s decision to categorise him as an excluded individual for a relevant event.[4]
Application to strike out
- [5]On 7 November 2019, the Tribunal directed Mr King to file in the Tribunal any further material to be relied upon including evidence of payments of creditors and any application to set aside the liquidator by 4:00 pm on 31 January 2020.[5]
- [6]The Tribunal directed that if Mr King fails to comply with the direction to file any further material by 4:00 pm on 31 January 2020, the QBCC will file its application to strikeout Mr King’s application for review. Further to that, the Tribunal directed that the strikeout application will be determined by a member of the Tribunal on the papers, by written submissions from the parties and without an oral hearing on a date not before 4:00 pm on 28 February 2020.[6]
- [7]The QBCC’s application to strike out Mr King’s application for review was listed before me to be determined on the papers on 3 December 2020.[7] Relevantly, Mr King has failed to comply with the Tribunal’s directions dated 7 November 2019 in that he has not filed any further material in support of his application to review and has failed to file any written submissions responding to the QBCC’s strike out application.
QBCC’s submissions in support of the strike out application
- [8]In support of the strike out application, the QBCC contends that Mr King’s review application should be struck out as it is lacking in substance for three reasons now set out below as follows:
- (a)Irrelevant considerations;
- (b)No jurisdiction; and
- (c)Not open to determine solvency.[8]
- (a)
- [9]In respect of the first reason, irrelevant considerations, the QBCC submits that
s 56AC(4) of the QBCC Act operates automatically to categorise an individual as an ‘excluded individual’ if pursuant to s 56AC(2) the company is a construction company and for the benefit of a creditor the company has a provisional liquidator, liquidator, administrator or controller appointed; or is wound up, or is ordered to be wound up and three years has not elapsed since the event and the individual was when the relevant company event happened or was, within the period of two years immediately before the relevant event happened, a director or secretary of, or influential person for, the construction company. - [10]The QBCC submits that the requirements of s 56AC(2) of the QBCC Act were met by Mr King in respect of the relevant company event and s 56AC(4) operated to categorise him as an excluded individual. Further to that, the QBCC in relying upon an earlier decision of the Tribunal in O'Rourke v Queensland Building and Construction Commission[9] submits that Mr King’s application is ‘doomed to fail’ because he does not challenge the factual matters which satisfy s 56AC(2) of the Act.
- [11]In respect of the second reason, the issue of jurisdiction, the QBCC submits that the Tribunal previously determined in Gogolka v Queensland Building Services Authority,[10] that the Tribunal on review is not in a position to consider the validity or otherwise of the appointment of the receivers and managers to a company. In Gogolka, the Tribunal dismissed an application to extend the time to file an application to review primarily on the basis that the substantive application lacked merit.[11]
- [12]The QBCC relies on the Tribunal’s findings in Raptis v Queensland Building Services Authority[12] and the Appeal Tribunal’s decision in Samimi v Queensland Building Services Authority[13] that said the Tribunal on review does not have jurisdiction to examine the validity of the relevant company event in question.[14]
- [13]In the present matter the QBCC submits that Mr King’s review application is lacking in substance because the validity of the appointment of the liquidator is not a matter which the Tribunal has jurisdiction to consider.[15] Further, Mr King was allowed time to file or provide evidence that an application to set aside the appointment of the liquidator had been made. The QBCC submits that Mr King has not filed the evidence as directed by the Tribunal.
Discussion
- [14]It is noncontentious that Mr King was a director of the company from 16 May 2005 until 5 July 2019. Further, the company was a construction company that directly or indirectly carried out building work or building work services within the period of two years immediately before a liquidator was appointed to the company on 5 July 2019.[16]
- [15]The QBCC’s decision to categorise Mr King as an excluded individual was made by virtue of s 56AC of the QBCC Act and more importantly because a liquidator was appointed for the benefit of a creditor, the Deputy Commissioner of Taxation.
- [16]I accept the QBCC’s submission that the Tribunal in exercising its review jurisdiction standing in the shoes of the QBCC is not in a position to consider the validity or otherwise of the appointment of the liquidator.
- [17]In Samimi the Appeal Tribunal endorsed the proposition made in Raptis that it is not the Tribunal’s role, nor does it have jurisdiction, to examine the validity of the relevant event itself.[17]
- [18]In Raptis the Tribunal said and I agree that s 56AC of the QBCC Act does not permit an inquiry into or consideration of the lawfulness of the appointment for the purposes of s 56AC. In Raptis the Tribunal said:
Similarly, the Tribunal standing in the shoes of the Authority is not in a position to consider the validity or otherwise of the appointment. Section 56AC is mandatory in its terms, it does not permit an inquiry into or consideration of the lawfulness of the appointment. The section does not use the word “lawful” in subsection (2)(a)(i). The only criteria that needs to be satisfied by the decision maker is whether the appointment of the Receivers and Managers is for the “benefit of a creditor”. There is no challenge here to the appointment on that basis. It is difficult to envisage a situation where the Authority’s decision maker could undertake a consideration of whether the appointment of a receiver, or for that matter a liquidator, was lawful and therefore not categorise an individual who fell within s 56AC as an excluded individual. The applicant could not point me to any authority to support this proposition nor did my researches reveal any.[18]
- [19]Importantly, the relevant s 56AC of the QBCC Act has been amended since publication of the decisions in Samimi and Raptis. Notwithstanding, the effect of the amendments to the relevant subsection (2) of s 56AC as it applies to an individual such as Mr King in the present matter and whether there is a relevant company event does not change the proposition made in Raptis that was endorsed by the Appeal Tribunal in Samimi that said s 56AC of the QBCC Act does not permit an inquiry into or consideration of the lawfulness of the appointment for the purposes of s 56AC. Relevantly, s 56AC(2) and (4) of the QBCC Act as it applies to the present matter provides as follows:
56AC Excluded individuals and excluded companies
…
- (2)This section also applies to an individual if—
- (a)a construction company, for the benefit of a creditor—
- (i)has a provisional liquidator, liquidator, administrator or controller appointed; or
- (ii)is wound up, or is ordered to be wound up; and
- (b)3 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (relevant company event) happened; and
- (c)the individual—
- (i)was, when the relevant company event happened, a director or secretary of, or an influential person for, the construction company; or
- (ii)was, within the period of 2 years immediately before the relevant company event happened, a director or secretary of, or an influential person for, the construction company.
…
- (4)If this section applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event unless the individual can satisfy the commissioner that at the time the individual ceased to be an influential person, director or secretary for the construction company the company was solvent.
…
- [20]In the present matter, I agree with the QBCC’s submissions that Mr King’s application for review is lacking in substance. Mr King does not dispute the factual matters as contended by the QBCC but rather seeks to adduce evidence about the circumstances that led to the appointment of a liquidator on 5 July 2019.[19] As discussed above, in my view the circumstances that led to the appointment of a liquidator are not matters that the Tribunal on review can consider.
- [21]Mr King did not present further material upon which he intends to rely including evidence of payments of creditors and the application to set aside the liquidator.[20] Further to that, Mr King has failed to provide any written submissions responding to the QBCC’s strike out application.
- [22]The Tribunal has the discretionary power to dismiss or strike out Mr King’s application for review under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) if the Tribunal considers the proceeding or a part of the proceeding is frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process.
- [23]I accept the QBCC’s submission that Mr King’s application for review is misconceived or lacking in substance. In my view s 56AC of the QBCC Act does not permit the Tribunal to consider the lawfulness of the appointment of a liquidator. Further to that, Mr King has failed to file any further material relevant to his application.
- [24]As discussed above, the factual matters relevant to whether Mr King is an excluded individual for the relevant company event are not contested by Mr King. Mr King has failed to provide any further material relevant to his application. I have also considered the objects of the QCAT Act set out under s 3, which requires the Tribunal, amongst other things, to deal with matters in a way that is accessible, fair, just, economical, informal and quick. In my view it is appropriate to exercise my discretion in this matter under s 47 of the QCAT Act to dismiss Mr King’s application for review filed on 2 August 2019. I order accordingly.
Footnotes
[1]Affidavit of Russell Robert King filed 8 August 2019.
[2]Statement of reasons filed 8 October 2019 and ASIC Historical Extract, attachment “SOR3”.
[3]Ibid, decision of 8 July 2019, attachment “SOR4”.
[4]Application for review filed on 2 August 2019 and see s 86(1)(k) of the QBCC Act.
[5]Tribunal Directions made by Member C Roney dated 7 November 2019.
[6]Ibid.
[7]Proceeding listed on 3 December 2020 to be determined on the papers. See application for miscellaneous matters filed by the QBCC on 17 February 2020.
[8]Application for miscellaneous matters filed by the QBCC on 17 February 2020.
[9][2017] QCAT 140.
[10][2013] QCAT 280.
[11]Ibid, [25].
[12][2013] QCAT 279.
[13][2014] QCATA 120.
[14]Ibid, [16].
[15]Application for miscellaneous matters filed 17 February 2020.
[16]See QBCC licence search, attachment “SOR1” and ASIC Historical Extract, attachment “SOR3”. to the statement of reasons filed 8 October 2019.
[17]Samimi, [16].
[18]Raptis, [19].
[19]See affidavit of Russell Robert King filed 8 August 2019.
[20]See Tribunal’s directions dated 7 November 2019.