Ericson v Queensland Building and Construction Commission [2017] QCAT 35

CITATION: Ericson v Queensland Building and Construction Commission [2017] QCAT 35 PARTIES: Ian James Ericson (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR378-10 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Kenneth Barlow QC, Member DELIVERED ON: 23 January 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The applicant file and serve on the respondent written submissions in support of his application by 24 February 2017. 2. The respondent file and serve on the applicant its written submissions in opposition to the application by 24 March 2017. 3. Unless the parties agree that the matter should be determined on the papers, the application be listed for hearing on a date no earlier than 10 April 2017, to be determined by the Tribunal in consultation with the parties. CATCHWORDS: Evidence – whether tender of additional evidence ought be permitted – whether evidence relevant APPEARANCES and REPRESENTATION (if any): The application was determined on the papers under s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 4 -- 2 REASONS FOR DECISION Introduction [1] Until 11 October 2010 the Applicant, Mr Ericson, held a contractor’s licence to carry out building work, particularly concreting. The licence was issued to him by the respondent (QBCC), pursuant to what was then the Queensland Building Services Authority Act 1991 (now the Queensland Building and Construction Commission Act 1991) (QBCC Act). [2] On 25 June 2009, the QBCC suspended Mr Ericson’s licence. The ground of suspension was his alleged failure to satisfy the financial requirements under the QBCC’s policy known as “Financial Requirements for Licensing” (FRL). [3] On 11 October 2010, the QBCC cancelled Mr Ericson’s licence. [4] In this proceeding, Mr Ericson seeks a review of the decision to cancel his licence. The application is made pursuant to s86(1)(c) and s87 of the QBCC Act, which give this Tribunal the jurisdiction to review a decision to suspend or cancel a licence. Under ss19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009, the purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide the review by way of a fresh hearing on the merits. [5] I first decided the proceeding in 20121, but my decision was overturned on appeal. Thereafter a number of successive applications and appeals to the Appeal Tribunal and the Court of Appeal took place.2 The matter was then remitted to me for a fresh decision. [6] Preparatory to making that decision, the QBCC has sought to introduce additional evidence over that which was before me in 2012. Mr Ericson objects to the additional evidence being admitted, so I made directions for submissions on that issue. It is that issue with which this decision is concerned. [7] The statutory and factual backgrounds to this application are set out in my earlier decision and I need not repeat them here. The question for consideration now is whether, for the purpose of fulfilling the Tribunal’s obligations and powers of review (described in paragraph 4 above), I should allow the QBCC to tender the additional evidence. Consideration [8] The evidence which the QBCC wishes to tender derives from the fact that Mr Ericson was made bankrupt after the date of my initial decision. The 1 Ericson v Queensland Building Services Authority [2012] QCAT 206. 2 QBCC v Ericson [2013] QCATA 180; Ericson v QBSA [2013] QCA 391; Ericson v QBCC [2014] QCATA 66; Ericson v QBCC [2014] QCA 297; QBCC v Ericson [2015] QCATA 111, Ericson v QBCC [2016] QCA 140. -- 2 of 4 -- 3 QBCC wishes to tender a number of reports of the Trustee in Bankruptcy. It says, in effect, that the reports are relevant to the assessment by the Tribunal of whether debts allegedly owed to Mr Ericson by a company known as Hansen Yuncken should have been considered as assets of Mr Ericson in determining whether or not he failed to meet the FRL. [9] Mr Ericson objects to the admission of the reports (it is not clear to me whether he objects to admission of evidence of his bankruptcy) on the basis that the evidence is irrelevant and has been produced over a number of years long after the original decision by the QBCC to cancel his licence. He says that the evidence cannot be relevant to the question whether he met his FRL at a time well before the facts allegedly occurred that are reported in the Trustee’s reports. [10] In making its own decision, the Tribunal is entitled to take into account evidence up to the date of that decision, whether or not that evidence was before the QBCC when it made the decision under review. It is therefore open to me to consider such fresh evidence. The decision I will have to make is whether, having regard to all the evidence now before me, the QBCC’s decision to cancel Mr Ericson’s licence was “the correct and preferable decision.” [11] It is difficult for me to see the relevance of documents which may set out facts concerning what occurred over the past few years in respect of the debt allegedly owed to Mr Ericson by Hansen Yuncken in 2010, when the question is whether he then met the FRL. [12] The QBCC has not explained, other than in very general terms, how it would make use of the proposed evidence and how that evidence would affect the determination of the question before me. I am bound by the Appeal Tribunal’s conclusion of law, which was upheld by the Court of Appeal, that the debt allegedly owed by Hansen Yuncken was not a current asset and that, in the circumstances, I was wrong in suggesting that the QBCC ought to have treated the debt as a current asset for the purpose of calculating whether Mr Ericson met the FRL.3 In that context, whether the debt ultimately was recovered or not seems irrelevant to the question whether Mr Ericson met the FRL when the QBCC made its decision. [13] Nevertheless, regretfully I do not consider it appropriate at this interlocutory stage to determine finally whether or not the evidence sought to be led by the QBCC is relevant. While I attempted to do so as an interlocutory matter, it now seems to me that I can only make that decision upon the final hearing and having received full submissions explaining the relevance of the material. [14] In the circumstances, I will not now shut out the QBCC from tendering the additional evidence. I will make that decision as part of my 3 Ericson v QBSA [2013] QCA 391 at [20]. -- 3 of 4 -- 4 reconsideration of the matter generally after a further hearing of the merits of Mr Ericson’s application. Next steps [15] It is therefore necessary to proceed to a final hearing if the parties require one. However, given the long history of this matter, that the initial decision to cancel Mr Ericson’s licence was made in 2010 and that Mr Ericson is now bankrupt, one wonders whether it is in the parties’ interests or in the public interest for the matter to proceed to yet another hearing. I urge the parties to consider and discuss between them whether there is any real merit to proceeding to a further final hearing. Rather, if Mr Ericson now considers that he does meet the FRL, perhaps it would be more appropriate for him to make a fresh application for a licence to be issued to him based upon up to date material. [16] Nevertheless, that is a decision for the parties to make individually and together. Until that decision is made, it is necessary to proceed toward a final hearing. In that respect I will make the following directions: a) the applicant file and serve on the respondent written submissions in support of his application by 24 February 2017; b) the respondent file and serve on the applicant written submissions in opposition to the application by 24 March 2017; c) unless the parties agree that the matter should be determined on the papers, the application be listed for hearing on a date no earlier than 10 April 2017, to be determined by the Tribunal in consultation with the parties. [17] To make it clear, in their submissions the parties need not repeat anything said in their written submissions for the first hearing. Rather, they should identify what parts of those submissions they rely on and add any further submissions they wish to make. If either party contends that a further hearing is unnecessary, but my decision should be made on the papers, that should be stated. A hearing will be unnecessary if both parties agree to that effect. -- 4 of 4 --