Meyer v Queensland Building and Construction Commission
[2023] QCAT 24
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- Unreported Judgment
- Meyer v Queensland Building and Construction Commission[2023] QCAT 24
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Meyer v Queensland Building and Construction Commission[2023] QCAT 24
Meyer v Queensland Building and Construction Commission[2023] QCAT 24
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Meyer v Queensland Building and Construction Commission [2023] QCAT 24 |
PARTIES: | GREGORY MEYER (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | OCR201-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 17 January 2023 |
HEARING DATE: | 14 July 2022 |
DATE FINAL SUBMISSIONS RECEIVED: | 27 August 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Olding |
ORDERS: | The decision under review is confirmed. |
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – whether applicant satisfied experience requirements for Building Design Low Rise or Building Design Medium Rise licence – approach to requirement for two years’ experience of scope of works permitted by licence – nature of evidence required – where evidence and submissions insufficient to satisfy Tribunal experience requirements satisfied Queensland Building and Construction Commission Act 1991 (Qld), s 16(1)(b)(i), s 16(7), s 31(1)(b) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24(1) Queensland Building and Construction Commission Regulation 2018 (Qld), s 12(1), Schedule 2, Part 11, Part 12 Dreyer v Queensland Building and Construction Commission [2022] QCAT 276 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | S Plasto, Acting Senior Lawyer, Queensland Building and Construction Commission |
REASONS FOR DECISION
- [1]This is an application for review of the decision of the Queensland Building and Construction Commission (“QBCC”) of 23 June 2021 to refuse to issue a contractor’s licence in the class of Building Design – low rise (“BDLR licence”) or Building Design – medium rise (“BDMR licence”) to the applicant, Mr Meyer.
- [2]The sole area of contention is that QBCC does not accept Mr Meyer has had the required minimum of two years’ experience in the applicable scope of building work or equivalent experience for either class of licence. QBCC accepts Mr Meyer satisfies the other requirements for each class of licence including technical qualifications and financial requirements.
Statutory requirements
- [3]Under s 31(1)(b) of the Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”), it is a requirement for QBCC, and the Tribunal on review, to be satisfied an applicant for a contractor’s licence has “the experience required by regulation in relation to a licence of the relevant class”. In that regard, s 16(1)(b)(i) of the QBCC Act provides that an application for a licence must be accompanied by “the relevant documentary evidence” which is relevantly defined under s 16(7) as “documentary evidence, satisfactory to the commission, of . . . the applicant’s experience”.
- [4]Section 12(1) of the Queensland Building and Construction Commission Regulation 2018 (Qld) (“the Regulation”) provides that the experience requirements are as stated in Schedule 2 of the Regulation for the relevant class of licence.
- [5]The experience requirements are tied to the scope of work (“SOW”) for the class of licence.
- [6]The SOW for a BDLR licence is specified in Part 11 of Schedule 2 as:
2Scope of work
- (1)Prepare plans and specifications for class 1 and class 10 buildings.
- (2)Prepare plans and specifications for classes 2 to 9 buildings with a gross floor area of not more than 2000 sq m, but not including Type A and Type B construction.
- (3)Contract administration in relation to building work designed by the licensee.
- [7]The SOW for a BDMR licence is specified in Part 12 of Schedule 2 as:
2Scope of work
- (1)Prepare plans and specifications for buildings to a maximum of 3 storeys above a storey used for the parking of vehicles, but not including Type A construction other than class 2, 3 or 9 buildings.
- (2)Contract administration in relation to building work designed by the licensee.
- [8]“Type A” and “Type B” construction, and the classes of buildings extracted above, refer to the construction types and building classes defined in the Building Code of Australia.[1]
- [9]For both BDLR and BDMR licences, the experience requirements, specified in Parts 11 and 12 respectively of Schedule 2 to the Regulation, are:
Two years experience, that may include experience gained during an apprenticeship or other training, in –
- (a)the scope of work for the class; or
- (b)other work, if the commission considers experience in the other work is at least equivalent to experience in the scope of work for the class.
- [10]It follows that to be granted a licence an applicant must demonstrate to the satisfaction of QBCC, or the Tribunal on review, that the applicant has obtained two years’ experience across the scope of work for the particular class of licence.
- [11]In so saying, I do not suggest an applicant must demonstrate that he or she carried out all of the classes of work referred to in the SOWs during the whole of a two-year period. I accept, as QBCC submitted, the requirement must be viewed practically. It would be a practical impossibility for an applicant to work on all classes of work in the relevant SOW over every day in a two-year period. Rather, I take the view that the Tribunal must ask whether, viewed practically, the experience as a whole would be properly characterised as at least two years of experience across the entirety of the specified scope of work.
- [12]Most of the projects on which Mr Meyer relies to demonstrate his experience were carried out many years ago. For example, Mr Meyer referenced five months of work on Rainforest Cabins carried out in 1995; 12 months of work relating to the Tanah Merah Display Home Village in 1994; three months of work relating to an AV Jennings project in 2003; and 2-3 years of work for Ausco around 2005.
- [13]It may be implicit in the requirement for relevant experience for that experience to be sufficiently current to demonstrate competence in the SOW for the particular licence. However, this issue was not raised by QBCC and, even taking into account the evidence of these historical projects, for the reasons indicated below I would not be able to satisfied the experience requirements are met in this case. I therefore do not express any concluded view on the relevance of evidence that dates back over 20 years.
Role of the Tribunal
- [14]The role of the Tribunal is to make a fresh decision on the merits regarding whether Mr Meyers is entitled to either or both classes of licence.[2] In doing so, the Tribunal may confirm the decision refusing the licences or set aside the decision and substitute its own decision or return the matter to QBCC for reconsideration.[3]
- [15]Importantly, the Tribunal may only make its decision on the evidence before it. Especially in a case such as this, where the Tribunal may only make a decision favouring the applicant if satisfied that statutory requirements are met, it is in the interests of the applicant to put forward and explain evidence capable of satisfying the Tribunal those requirements have been met. Without such evidence and explanation, the Tribunal is unable to make the decision sought by the applicant.[4]
Consideration of the evidence
Mr Meyer’s credit
- [16]In its amended written submissions filed after the hearing, QBCC submitted:
The Applicant’s oral evidence under cross-examination demonstrated the Applicant was prepared to behave dishonestly and potentially unlawfully in order to obtain the relevant licences. For this reason, the Commission submits that the Tribunal should place limited weight on the written evidence filed by the Applicant in his Building Designer and Experience Form, which is the only detailed information in relation to the requirement for the BDLR SOW and BDLR licence.[5]
- [17]There is no elaboration on why this submission is made. I assume it is based on several matters that emerged in cross-examination.
- [18]The first relates to two of the referee reports submitted by Mr Meyer which were completed, signed and dated by Mr Meyer. In the part of the standard referee report form for the referee’s signature and date the words “by email” were inserted, with the date left blank. However, the details inserted in the form by Mr Meyer about his alleged experience were not provided by the referees, nor had they read the comments when Mr Meyer lodged the application for licence.
- [19]Objectively, the completion of the form in this way was capable of misleading QBCC into an incorrect belief that a referee report had been obtained with the referee’s signature provided “by email”. However, Mr Meyer explained to the Tribunal that his expectation was that QBCC would contact the referee, presumably “by email”, to verify the comments.
- [20]I would not, on the basis of this evidence alone, accept that Mr Meyer was not a truthful witness. Rather, his approach to the provision of references seems to be part of a broader misapprehension on the part of Mr Meyer that it was the responsibility of QBCC to make out his case for the licences, rather than Mr Meyer’s responsibility to provide information and evidence in an understandable form that established his satisfaction of the experience requirements. This misapprehension is illustrated by various correspondence between Mr Meyer and QBCC in which he registers his dissatisfaction with QBCC’s response to his licence application.
- [21]A second aspect concerned an inaccurate statement on Mr Meyer’s website that he is a QBCC licence holder. Mr Meyer appeared to be surprised when it was pointed out that this entry remained on his website. I have no reason to doubt his explanation that it had been included in anticipation of obtaining a licence and he had given instructions for it to be removed.
- [22]A related issue arose regarding whether Mr Meyer had undertaken design work in the early 2000s without a licence. Mr Meyer maintained that a licence was not required for such work at that time. QBCC did not pursue this further and, in particular, did not seek to establish with evidence or by reference to statutory provisions that a licence to carry out such work was required at that time.
- [23]A fourth aspect traversed in cross-examination related to a statutory declaration provided by Mr Meyer’s mother. An email trail in evidence indicated Mr Meyer asked his mother to sign a blank statutory declaration which he would then complete. That is plainly an inappropriate practice which Mrs Meyer declined to adopt.
- [24]However, although this is certainly a matter of concern, overall I did not gain the impression Mr Meyer was other than an honest witness. Rather, he seemed to have adopted a particular, albeit erroneous, stance regarding QBCC’s obligations. Nevertheless, it reinforces the conclusion I would have reached in any case that, given the protective nature of the regulatory regime, it would be reasonable to expect independent corroboration of claims in an application for a licence in at least sufficient detail to establish an approximation of the amount of experience gained across the specified classes of buildings.
Nature of the evidence provided by Mr Meyer
- [25]The difficulty with Mr Meyer’s evidence is not so much as to his credit. Rather, it arises from the failure to address the time he spent obtaining experience, in each of the specified classes of work, in sufficient detail to enable QBCC or the Tribunal to be satisfied he achieved the requisite two years of experience across the SOWs for either a BDLR or BDMR licence.
- [26]Mr Meyer was given the opportunity, in fact was directed by the Tribunal, to file statements or references by all witnesses upon whose evidence he intended to the rely at the hearing. Such directions are a standard practice of the Tribunal. They are designed to, amongst other purposes, ensure the other party is not taken by surprise at the hearing and allow the Tribunal member hearing a review to appropriately prepare for the hearing.
- [27]Mr Meyer did not file any witness statements in advance of the hearing. Nevertheless, with the consent of QBCC, I permitted him to give oral evidence at the hearing and agreed to his request to call one of his referees, Mr Bradley Drummond, to give evidence by telephone.
- [28]Further, to assist Mr Meyer, who was not legally represented, I made directions at the conclusion of the hearing allowing Mr Meyer to file further written submissions taking into account the evidence given at the hearing; for QBCC to update the written submissions it had filed previously; and for Mr Meyer to file a reply. Mr Meyer did not take up the opportunity to file written submissions but did file submissions in reply to the amended submissions filed by QBCC.
- [29]At the hearing, I endeavoured to explain to Mr Meyer that the Tribunal’s role is not to critique QBCC’s decision but to make a fresh decision on the merits. As such, as I explained, trawling over the way QBCC handled the matter would not be useful. The focus needed to be upon the evidence which Mr Meyer maintained would satisfy the statutory requirements.
- [30]However, Mr Meyer’s reply submissions were, regrettably, of little assistance to the Tribunal. Rather than addressing the evidence in detail, Mr Meyer’s submissions largely focussed upon what he considered to be poor treatment by QBCC, referencing the “International Covenant on Economic, Social and Cultural Rights” and the “International Covenant on Civil and Political Rights”; his good character, which is not in issue; and other matters.
- [31]It is regrettable that Mr Meyer’s focus appeared to remain predominantly upon criticising QBCC rather than providing clear and comprehensible evidence of his claimed experience at a sufficient level of detail to enable the Tribunal to be satisfied, as it must in order to rule in his favour, that he has the required two years of design and related experience across all the specified classes of buildings.
- [32]I am mindful of the practical difficulties faced by an unrepresented applicant, especially where reliance is sought to be placed upon historical experience many years ago, in producing evidence to satisfy the Tribunal. However, ultimately I may only decide the matter on the evidence that has been produced, considered against this context. I could only decide the matter in Mr Meyer’s favour if, so considered, the material and oral evidence before the Tribunal is sufficient to satisfy me the statutory requirements have been satisfied.
Evidence of experience relied upon
- [33]Mr Meyer primarily relied upon experience gained in the four projects referred to above and more recent work. He set out his claimed experience in summary form in his application for the licences. Unfortunately, as noted, Mr Meyer did not take the trouble to detail that experience in a witness statement. Mr Meyer seems to have taken exception to the need for witness statements being raised in a compulsory conference.[6]
- [34]The upshot is that, as evidence from Mr Meyer himself, I am largely left with the dot point claims of experience in these five contexts set out in the licence application; some subsequent correspondence with QBCC; some copies of plans and correspondence; and Mr Meyer’s limited oral evidence. Further, Mr Meyer has not identified, by reference to all of the classes of buildings referred to in the relevant SOWs, the classes of buildings he says he designed and an approximation of the time said to have been spent gaining experience for each of classes referred to in the SOWs.
- [35]The dot points set out in his licence application refer to a variety of activities said to have been undertaken for the relevant employers/contractors. However, even if accepted without independent corroboration, they would not allow me to establish even a broad estimate how much of Mr Meyer’s time was spent on design or other work for each of the classes of building listed in the relevant SOWs, and on other work not covered by the SOWs. Nor did Mr Meyer set out this detail in his submissions.
- [36]For example, in relation to the more recent work undertaken for Modinex Group, it seems from Mr Meyer’s oral evidence that his work primarily related to cladding systems and commercial fitout installed, for example, at Indooroopilly Shoppingtown, and included continuing professional development presentations for architects, builders and distributors.[7] I am unable to determine from that evidence the extent to which Mr Meyer’s work involved actual design work or related contract administration.
- [37]In short, I am simply unable to determine – from any written material completed by Mr Meyer himself to support his application for review (including statements in the licence application considered for that purpose) – whether he has in fact obtained two years of the required experience in relation to the classes of buildings referred to in the SOWs for a BDLR or BDMR licence.
- [38]Aside from Mr Drummond, whose evidence I refer to below, Mr Meyer did not make any other referees or representatives of the employers/contractors available for cross examination or provide witness statements for them. This is despite being advised QBCC would require the referees for cross examination if their reports were to be relied upon. Although raised by QBCC in the application and review process, it also remained unclear whether the referees were licensed building designers or otherwise qualified to attest to Mr Meyer’s experience in design or related work to the level required by the SOWs.
- [39]I accept there are practical difficulties for persons operating private businesses being called upon to give evidence in Tribunal proceedings. Challenges of this kind are dealt with by parties before the Tribunal on a daily basis. The Tribunal operates flexibly and may, for example, permit evidence to be provided by telephone, as indeed occurred for Mr Meyer and his other witness in this case. Acknowledging those challenges does not mean the Tribunal should allow licences designed to protect the public to be granted without proper evidence of the nature of an applicant’s experience.
- [40]In the circumstances, consistent with common practice of the Tribunal, but also having regard to some of the features of the documentary evidence that emerged in the course of the hearing as outlined above, I would give little weight to evidence that could not be tested in cross examination. In any case, this material, either alone or collectively, is not sufficiently detailed to demonstrate two years’ experience across all of the classes of buildings nominated in the SOWs for a BDLR or BDMR licence.
- [41]A referee report attached to Mr Meyer’s application for licence appeared to be provided by Mr Drummond. It emerged, though, that the report was in fact prepared by Mr Meyer and that it had not been seen by Mr Drummond before Mr Meyer lodged it with his application. However, Mr Drummond provided this advice to QBCC by email:
I confirm Greg worked at Ausco around about 2005 for circa 2-3 years. I wasn’t Greg’s manager. The role he was hired for was to lead the architectural design for some new residential products. Later he worked on a new non-residential product – primarily for offices, although ostensibly for schools, showrooms etc. His role was to help define national standards for these products as best possible to meet national as well as state or territory compliance variants. This required research of the BCA and state acts – eg building/planning acts, manufactured homes acts as may apply in varying circumstances to yield cost efficiencies. These products fell under a range of BCA classes (e.g 1, 5, 6, 9) and were primarily intended as single storey (e.g. BCA type C). The new products were used on a number of actual projects which Greg assisted the regional businesses with. Part of my role was to assist the development and application of these products in which I collaborated with Greg.
In my opinion, at the time Greg demonstrated comparable level of design drafting to others in his age/experience, and he was diligent to further his knowledge.[8]
- [42]I am unable to determine from the evidence of Mr Drummond and Mr Meyer the extent to which Mr Meyer obtained experience relating to all of the classes of buildings covered by the SOW for a BDLR licence. For example, the evidence does not describe how much, if any, of Mr Meyer’s time was spent on class 2 buildings that are not Type A or Type B construction. Mr Drummond appeared to restrict his endorsement of Mr Meyer’s experience to low rise and not medium rise work.[9]
Conclusion
- [43]It is clear that Mr Meyer has substantial design experience including experience in building design. It may be that he has the requisite experience to be granted a building design licence. However, on the approach Mr Meyer has taken, it is impossible for the Tribunal to be satisfied his experience amounts to two years’ experience across the classes of buildings referenced in the SOWs for a BDLR or BDMR licence.
- [44]In those circumstances, I have no choice but to confirm the decision under review.
Footnotes
[1] Regulation, Schedule 8 Dictionary.
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).
[4] Dreyer v Queensland Building and Construction Commission [2022] QCAT 276, citing Laidlaw v Queensland Building Services Authority [2010] QCAT 70.
[5] Amended written submissions of the Commission, 18 August 2022.
[6] Email, G Meyer to QBCC Legal Branch, 17 May 2022.
[7] Transcript of proceeding, 1-9, lines 22-34.
[8] Email, B Drummond to J Kerr, QBCC, 19 May 2021.
[9] Transcript of proceeding, 1-29, lines 19-27.