Dreyer v Queensland Building and Construction Commission [2022] QCAT 276

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dreyer v Queensland Building and Construction Commission [2022] QCAT 276 PARTIES: DEAN JASON DREYER (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: OCR016-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 19 July 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The decision under review is confirmed. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – where decision of Queensland Building and Construction Commission to refuse a building licence – where contents of written references not verified during reference checks – where applicant has not provided any further evidence – whether applicant has required experience Queensland Building and Construction Commission Act 1991 (Qld), s 31, s 33 Queensland Building and Construction Commission Regulation 2018 (Qld), Schedule 2 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] On 14 April 2020, Mr Dreyer lodged an application for a ‘Builder – Low rise’ and ‘Builder – Medium rise’ licence with the Queensland Building and Construction Commisssion (‘QBCC’). -- 1 of 5 -- 2 [2] On 17 July 2020, the QBCC refused Mr Dreyer’s application for a licence on the basis that he had failed to provide requested information. [3] On 30 September 2020, Mr Dreyer lodged an application for review with the Tribunal. [4] I note at the outset that while Mr Dreyer has lodged submissions with the Tribunal on 31 January 2022 and 7 March 2022, he has lodged no further evidence. History [5] Following the lodgement of Mr Dreyer’s licence application, the QBCC wrote to him on 15 May 2020. Mr Dreyer was asked to provide the following information within 21 days: You must demonstrate a minimum of four (4) years’ experience for the class of licence you are applying for. The experience submitted on your previous application does not provide sufficient details to meet QBCC’s licensing requirements at the present time. Please provide specifics into your own roles and responsibilities as the site supervisor on each project. You will need to provide details on how you supervised and coordinated the various trades and disciplines on the building site from the set out to completion. You should include a clear outline of what was being built, dates and time taken on the job, classifications, floor area and your specific roles and responsibilities with particular emphasis on the contractors and the other disciplines being supervised and coordinated on=site. Please format this additional experience on a job-by-job basis and forward it to QVCC in order for your application to proceed. Do not provide examples of work that was performed or undertaken prior to obtaining the technical qualification for this licence class, unless it was performed as an employee for an employer with the appropriate licence class. Please refer to the enclosed factsheet Builder Medium Rise Experience Requirements. In addition to the above, you must supply three (3) completed Referee Reports. These Reports must support your documented experience. The Referee should hold a licence/accreditation at the same or higher level than the class being applied for. [6] Notwithstanding the final paragraph of this letter, Mr Dreyer had provided a number of written references in support of his licence application. [7] One of the references was a written reference from Rod Soppe of Tru-Built dated 19 October 2015. When contacted by email by the QBCC for the purposes of a reference check on 26 June 2020, Mr Soppe responded: I think Dean Dreyer was a contractor I used many years ago. In this instance I would be uncomfortable being a referee. [8] Another written reference was provided from Daniel Casemento of Forefront Commercial Industry dated 22 October 2015. When contacted by email by the QBCC for the purposes of a reference check on 30 June 2020, Mr Casemento responded: I am not sure what this email is about, could you please clarify? Who is Dean Dreyer and where is he from? -- 2 of 5 -- 3 [9] The QBCC requested further information again from Mr Dreyer on 2 July 2020, 7 July 2020 and 8 July 2020. In each of these requests, Mr Dreyer was asked (among other things) to provide three reference reports from individuals at the same or higher level than the class being applied for. The QBCC noted that two of the three referees nominated by Mr Dreyer were unable to verify the information provided in the application. Relevant legislation [10] Section 31 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) provides that a person is entitled to a licence if the QBCC is satisfied of the matters set out in subsection (1). These matters are: (a) the applicant is a fit and proper person to hold the licence; and (b) the applicant has the qualifications and experience required by regulation in relation to a licence of the relevant class; and (c) the applicant satisfies the minimum financial requirements for the licence; and (d) the applicant can lawfully work in Queensland; and (e) the applicant is not an excluded individual for a relevant event or a permanently excluded individual; and (f) the applicant is not a disqualified individual; and (g) the applicant is not a banned individual; and (h) the applicant does not have an unpaid judgment debt for an amount the commission may recover under section 71. [11] For the purposes of section 31(1)(b) of the QBCC Act, Parts 4 and 5 of Schedule 2 to the Queensland Building and Construction Commission Regulation 2018 (Qld) (‘QBCC Regulation’) set out the experience requirements for the ‘Builder – Low rise’ and ‘Builder – Medium rise’ classes of licence applied for by Mr Dreyer. In each case, an applicant is required to demonstrate at least two or four years’ experience (depending upon their technical qualifications) within the scope of work for the class. [12] Section 33 of the QBCC Act relevantly provides: (2) An applicant for a licence must at the request of the commission provide any further information or evidence that the commission may require to decide the application. (3) In deciding whether to give a licence, the commission may make inquiries and investigations that are reasonable and appropriate in the circumstances, including for example by— (a) seeking confirmation about the experience of applicants through site inspections and referee checks; … Mr Dreyer’s submissions [13] In his submissions, Mr Dreyer has claimed that the reference checks conducted by the QBCC were ‘fundamentally flawed’. He went on to state: The manner in which the reference checks was done was not professional or in accordance with accepted best practice. In essence, the QBCC simply emailed -- 3 of 5 -- 4 the referees stating that they had been listed as references in support of a new licence application and if they could please complete the attached form. What should have been done was that the referees should have been provided with a copy of their original statement, and asked to confirm that a) the statement was on their letterhead, b) that the signature was theirs, and c) that the content of the statement was original and unmodified. None of this occurred. I am sure that the referees provided many similar referee statements in the years since they originally did mine, so that to expect a large company to recall every case off the top of their head is absurd. Please note also that I did not request the QBCC to obtain any new statements from my original referees, this was done solely by the QBCC for some reason known only to themselves. The insinuation that I somehow manipulated or falsified these documents is slanderous and derogatory, and I will reserve my options in this regard. If the QBCC suspects that any fraudulent activity occurred, then if should report it to the Police. Consideration [14] As set out is section 31(1)(b) of the QBCC Act, the Tribunal is required to be satisfied that Mr Dreyer has the experience required by the QBCC Regulation for the classes of licence he has applied for. [15] Section 33(3)(a) expressly permits the use of reference checks to confirm experience claimed by an applicant. It is an entirely legitimate exercise for the QBCC to check written references provided by an applicant. [16] In the present case, two of the three referees relied upon by Mr Dreyer either were not comfortable acting as a referee or did not know who he was. [17] While I note Mr Dreyer’s submissions as to the manner in which the referee checks were conducted, it remains the case that he could have addressed these issues before the Tribunal by: (a) obtaining written statements from Mr Soppe and Mr Casemento in which they provided an explanation for their responses to the QBCC, and confirmed their earlier references; or (b) obtaining alternative references from two other suitably qualified persons. [18] Mr Dreyer took neither of these steps. [19] In circumstances where two out of the three referees provided by Mr Dreyer did not verify the contents of their written references, and where alternative references were not provided, I am not satisfied that Mr Dreyer meets the requirements of section 31(1)(b) of the QBCC Act. [20] If there was an innocent explanation for the failure of the referees to confirm their written references, then Mr Dreyer has not provided any evidence of it to the Tribunal. As the Tribunal stated in Laidlaw v Queensland Building Services Authority [2010] QCAT 70 at [23]: [P]ractically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. -- 4 of 5 -- 5 [21] For completeness, I make no findings as to the authenticity of the written references from Mr Soppe and Mr Casemento, only that in the absence of verification of their contents I am unable to be satisfied in relation to Mr Dreyer’s experience. Disposition [22] The decision under review is confirmed. -- 5 of 5 --