Buchanan v Queensland Building and Construction Commission [2018] QCAT 129

CITATION: Buchanan v Queensland Building and Construction Commission [2018] QCAT 129 PARTIES: Casey Buchanan (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: OCR121-17 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell DELIVERED ON: 4 May 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for miscellaneous matters filed on 10 April 2018 is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where evidence has yet to be filed Queensland Building and Construction Commission Act 1991 (Qld), s 56AC Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] On 10 April 2018, the Queensland Building and Construction Commission (QBCC) lodged an application for miscellaneous matters, seeking the dismissal of this proceeding. [2] The proceeding was commenced by an application to review a decision filed by Mr Buchanan on 15 June 2017. Mr Buchanan sought review of a decision made by the QBCC on 16 May 2017 to consider him an excluded -- 1 of 3 -- 2 individual pursuant to s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). That decision was based on Mr Buchanan having been a director and secretary of Qube North Pty Ltd within one year of that company going into liquidation. [3] Mr Buchanan’s grounds for bringing the application were stated to be: The QBCC have not received enough information in relation to the matter of Qube North Pty Ltd, including the fraudulent activity of the current director and accountant (whom is the same person). I was not in control of the companies [sic] affairs and was misled by the Director whilst I was a nominee for the company. [4] In separate proceedings (OCR215-17) filed on 26 September 2017, Mr Buchanan sought review of a decision made by the QBCC on 1 September 2017 to consider him an excluded individual pursuant to s 56AC of the QBCC Act. That decision was based on Mr Buchanan having been a secretary of Qube Projects Pty Ltd within one year of that company going into liquidation. [5] Mr Buchanan’s grounds for bringing the second application were stated to be: I CEASED BEING A DIRECTOR OR AN INFLUENTIAL PERSON OF QUBE PROJECTS PTY LTD ON THE 13.01.2016. THE COMPANY WENT INTO LIQUIDATION ON THE 24.05.2017. [6] The QBCC’s submissions in support of the application for miscellaneous matters relevantly state: In the Applicant’s materials filed in the reviews to date (being multiple miscellaneous documents filed in early March 2018), the Applicant indicates that he seeks to pursue an argument that the liquidation of Qube Projects Pty Ltd is connected to the liquidation of Qube North Pty Ltd. … The Applicant’s position is also clear that he does not seek to review his excluded individual status in respect of Qube North Pty Ltd – only for Qube Projects Pty Ltd – as stated on the Tribunal’s record at the directions hearing on 15 March 2018. On 8 March 2018, the Applicant filed various materials. Amongst those materials, the Applicant stated, “I am more than happy to be disqualified for 3 years for the (1 event)”. We take this to mean the first event, involving Qube North Pty Ltd. [footnote omitted] [7] I have not been provided with a transcript of the directions hearing on 15 March 2018. -- 2 of 3 -- 3 [8] In relation to the materials filed on 8 March 2018, Mr Buchanan provided copies of correspondence with the Australian Securities and Investments Commission (ASIC) in which he has sought to have the record that he was re-appointed as secretary of Qube Projects Pty Ltd on 17 November 2016 corrected. He included the following annotation on this documentation: THIS IS A CURRENT MATTER WITH ASIC AS PER MY CONVERSATIONS WITH MELANIE HANLON, REGARDING THE ILLEGAL APPOINTMENT OF MYSELF BACK ON AS SECRETARY ON THE 17TH NOVEMBER 2016. I CEASED BEING A DIRECTOR ON THE 13.01.2016. I CEASED BEING A SECRETARY ON THE 19.08.2015. BECAUSE IT HAS TAKEN SO LONG WITH ASIC TO INVESTIGATE, I HAVE HAD TO COMPLY WITH QCAT TO HAVE BOTH MATTERS HEARD, EVEN THOUGH I AM HAPPY TO DO SO BECAUSE THEY ARE RELATED COMPANIES. AS DISCUSSED WITH MELANIE, I AM MORE THAN HAPPY TO BE DISQUALIFIED FOR 3 YEARS FOR THE (1 EVENT). [9] I note that the material filed by the QBCC describes Melanie Hanlon as a Senior Principal Lawyer. [10] When Mr Buchanan’s comments are read in context, it appears to me that he is challenging both decisions of the QBCC in the hope that success in one of them will lead to him avoiding becoming a permanently excluded individual. There is nothing in his statement to indicate that, in the absence of a correction of the records by ASIC, he wishes to abandon the present proceeding. [11] Mr Buchanan’s prospects of success in the present proceeding are limited by the absence of a discretion in s 56AC of the QBCC Act. However, pursuant to directions made on 15 March 2018 he has until 4 pm on 18 May 2018 to file the evidence upon which he wishes to rely. Until Mr Buchanan’s opportunity to file evidence is exhausted, it is premature to conclude that his application is so devoid of the prospects of success that the proceeding should be dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [12] Accordingly, I dismiss the application for miscellaneous matters filed by the QBCC on 10 April 2018. -- 3 of 3 --