Daniel v Queensland Building and Construction Commission [2018] QCAT 109

CITATION: Daniel v Queensland Building and Construction Commission [2018] QCAT 109 PARTIES: Sizar Daniel (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: OCR005-18 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: A/Senior Member Browne DELIVERED ON: 16 April 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to stay the Queensland Building and Construction Commission’s decision of 14 December 2017 is refused. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant applied for a stay of the decision – whether desirable to grant a stay PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – QUALIFICATIONS – where applicant granted licence where applicant supplied incorrect information – where applicant supplied incorrect information – applicant’s licence cancelled Mutual Recognition (Queensland) Act 1992 (Qld), s 33 Queensland Building and Construction Commission Act 1991 (Qld), s 31, s 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22, s 32 -- 1 of 6 -- 2 Deputy Commissioner Steward v Kennedy [2011] QCATA 254 APPEARANCES: 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] Sizar Daniel has applied to the Tribunal to review a decision made by the Queensland Building and Construction Commission (‘the QBCC’) to cancel his low rise builder’s licence.1 He has also applied to stay the decision.2 [2] On 27 February 2018 I refused Mr Daniel’s application to stay the QBCC’s decision of 14 December 2017. Mr Daniel has requested reasons for my decision that are now set out below. Background to the reviewable decision [3] Under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), a person is entitled to a contractor’s licence only if the QBCC is satisfied as to certain matters set out under s 31. This includes, amongst other things, that the applicant is fit and proper to hold the licence, has the qualifications and experience required by regulation, satisfies the relevant financial requirements and can lawfully work in Queensland.3 [4] The QBCC may suspend or cancel a licensee’s licence in certain circumstances including, for example, if the licence was obtained on the basis of incorrect information supplied to the QBCC, whether or not the fraud was intended, and the licence was obtained by fraud or other improper means.4 [5] In this case, Mr Daniel was granted a licence on 10 September 2014 based on the information provided by him in the licence application given to the QBCC. That application included details of Mr Daniel’s work experience at nine separate site addresses located in Victoria. [6] The QBCC cancelled Mr Daniel’s licence on 14 December 2017 after giving him a Notice of Reasons for Proposed Cancellation or Suspension (‘Notice’) and inviting him to make written representations about the matter. The QBCC identified in the Notice that it had cross-referenced the 1 Decision made on 14 December 2017 under s 48 of the Queensland Building and Construction Commission Act 1991 (‘QBCC Act’); Application to review a decision filed 4 January 2018. 2 Application to stay a decision filed 4 January 2018. 3 QBCC Act, s 31. 4 Ibid, s 48. -- 2 of 6 -- 3 information provided by Mr Daniel with information provided by the Victorian Building Authority (‘VBA’). The QBCC stated that it had identified information regarding the work history and experience provided by Mr Daniel in his application that may be ‘incorrect, improper or fraudulent’.5 Because Mr Daniel failed to respond to the QBCC’s Notice the QBCC cancelled his licence. Application to stay and supporting submissions [7] Mr Daniel wants to stay the QBCC’s decision to cancel his licence. Mr Daniel says that his only source of income is building and he cannot trade or earn income without his licence.6 In his sworn affidavit Mr Daniel states that he has 8 open contracts for residential homes and renovations and the work on these jobs has stopped as a result of the cancellation.7 Mr Daniel states that he employs 48 tradesmen and they are demanding payment and contacting him daily.8 Mr Daniel states that he supports a family and is the only income earner.9 Mr Daniel states that the VBA cancelled his registration (in Victoria) because of the QBCC’s decision to cancel his licence in Queensland.10 [8] Mr Daniel accepts that he did not respond to the QBCC’s Notice before the cancellation decision and that ‘certain information’, in particular, dates of work in his licence application form dated 22 August 2014 was incorrect.11 Mr Daniel, in responding to one of the five examples of work experience set out in his application to the QBCC, accepts that there are errors in the start and end dates. Mr Daniel also accepts that another example provided by him in the application identified the incorrect year.12 Mr Daniel says, however, that a reference (from his previous employer) was provided by him in support of his application. Mr Daniel says that the fact that incorrect dates were provided was unfortunate but did not affect the obtaining of the licence. Mr Daniel says that he always had over 4 years of relevant experience over the periods claimed.13 [9] In further written submissions filed, Mr Daniel submits that the reference (from his previous employer) provided by him in support of his application lists work experience not included in the application. Mr Daniel says that his listed work history totals 53 hours of relevant experience and at the time of filing the application he had more than the required relevant experience required by the Regulations for his licence class.14 5 Statement of Reasons for Decision, SOR-9. 6 Applicant’s written submission in support of a stay filed 23 January 2018, [9]. 7 Affidavit of Sizar Daniel sworn 22 January 2018, [13]. 8 Ibid, [14]. 9 Ibid, [12]. 10 Ibid, [17]. 11 Applicant’s written submission in support of a stay filed 23 January 2018, [11]. 12 Ibid. 13 Ibid. 14 Applicant’s written submission in support of a stay filed on 21 February 2018. -- 3 of 6 -- 4 [10] The QBCC submits that the application to stay should be refused. The QBCC submits that the application to review has poor prospects of success in circumstances where Mr Daniel’s licence was obtained on the basis of incorrect information, or Mr Daniel is not a fit and proper person.15 The QBCC submits that it is not in the public interest, or the interests of the building industry generally, for Mr Daniel to be permitted to continue to hold a licence obtained on the basis of incorrect information and he (Mr Daniel) has failed to demonstrate any factors which compel the Tribunal to grant a stay of the decision.16 [11] The QBCC says that Mr Daniel resides and works in Victoria and he has never performed building work in the State of Queensland.17 The QBCC says that Mr Daniel relied upon his Queensland licence to apply under the Mutual Recognition Act 1992 (Cth) to obtain a Victorian building licence.18 [12] The QBCC says that after Mr Daniel was issued his licence it subsequently became aware of an unusually large number of licence applications from individuals residing in Victoria and took steps to investigate these applications more closely.19 The QBCC says that as part of the investigation process it received documents from the VBA which detailed building permit information for each of the sites Mr Daniel listed in his work history for his licence application. The QBCC says that Mr Daniel had provided incorrect, false or misleading information in relation to this work history at 7 of the 9 locations provided in the licence application.20 The QBCC says it invited Mr Daniel to make submissions as to why his licence should not be cancelled. The QBCC later determined to cancel Mr Daniel’s licence pursuant to s 48 of the QBCC Act.21 [13] In responding to Mr Daniel’s further submissions and information about his experience that was provided in support of the application to stay the decision, the QBCC says that there remains multiple matters of concern that are not satisfactorily dealt with in Mr Daniel’s material filed to date.22 The QBCC says that it cannot determine the extent of Mr Daniel’s actual experience with accuracy.23 What is the Tribunal’s power to grant a stay [14] The Tribunal may grant a stay only if it considers the order is desirable having regard to certain matters set out in s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), such as the interests of any person whose interests may be affected by the making of 15 Submissions on behalf of the respondent filed on 9 February 2018, [3]. 16 Ibid. 17 Ibid, [11]. 18 Ibid, [17]. 19 Ibid, [19]. 20 Ibid, [21]. 21 See Statement of Reasons for Decision, SOR-10. 22 Further submissions in reply on behalf of the respondent filed on 23 February 2018. 23 Ibid. -- 4 of 6 -- 5 the order or the order not being made, any submissions made to the Tribunal by the decision-maker (the QBCC) for the reviewable decision, and the public interest.24 [15] In addition to the matters set out in s 22 of the QCAT Act, the Tribunal in exercising its broad discretionary power in granting or refusing a stay, may consider the general principles such as whether Mr Daniel has an arguable case and whether the balance of convenience favours the granting of a stay.25 [16] In this case, I am not satisfied a stay is desirable. I have considered Mr Daniel’s written submissions and supporting material including his sworn affidavit. I accept that the decision to cancel Mr Daniel’s Queensland licence has resulted in some financial hardship to him. I accept Mr Daniel’s sworn evidence that he lost his licence in Victoria by reason of the QBCC’s cancellation decision and has been unable to continue to work in the building industry in Victoria. It is, of course, open to Mr Daniel as a resident of Victoria to apply for a building licence with the relevant building authority in Victoria, the VBA. Mr Daniel is also entitled, as he has done in this case, to exercise his review rights in Queensland under the QCAT Act. [17] I accept the QBCC’s submission that it is not in the public interest or the interests of the building industry generally for Mr Daniel to be permitted to continue to hold a licence that was obtained on the basis of incorrect information. [18] Mr Daniel accepts that he provided incorrect information in his application to the QBCC. That application required Mr Daniel to ‘declare’ at the time of completing the application that the statements contained in the application are true and correct, by virtue of the provisions of the Oaths Act 1867 (Qld). Mr Daniel was given an opportunity by the QBCC to respond to the inaccuracies identified in the licence application prior to cancelling his licence. Mr Daniel did not respond to the QBCC’s Notice prior to his licence being cancelled. Mr Daniel only provided some further information, in support of his application to stay the decision, responding to some of the inaccuracies of information in the licence application identified by the QBCC. [19] Mr Daniel says that it is highly unlikely that the Tribunal will find against him because the supply of incorrect information was inadvertent. Mr Daniel further says that his application nonetheless demonstrated that he had sufficient experience. I accept the QBCC’s submission that there remains some matters of concern regarding the further information provided by Mr Daniel in regards to the licence application and that, based on the material provided to date by Mr Daniel, the QBCC cannot determine the extent of his actual work experience with accuracy. Some 24 QCAT Act, s 22 25 Deputy Commissioner Steward v Kennedy [2011] QCATA 254. -- 5 of 6 -- 6 of the matters of concern, as identified by the QBCC in its written submissions, relate to the dates that Mr Daniel says that he worked at particular sites and a lack of supporting documentation to support Mr Daniel’s relevant work experience for the particular sites, including relevant VBA building permits and employer references.26 [20] Mr Daniel will have an opportunity in the review proceedings to present further evidence and material relevant to the reviewable decision, including the issues and discrepancies identified by the QBCC in relation to the dates and other information provided by Mr Daniel in the licence application. The Tribunal on review standing in the shoes of the QBCC decision-maker and exercising the same powers under the QBCC Act will conduct a fresh hearing on the merits, having regard to all of the relevant evidence and material, to arrive at the correct and preferable decision. [21] I am not satisfied that the balance of convenience favours the granting of a stay. I accept the QBCC’s submission that the stay should not be granted. I order that the application to stay the Queensland Building and Construction Commission’s decision of 14 December 2017 is refused. 26 See further submissions in reply on behalf of the respondent filed on 23 February 2018. -- 6 of 6 --