Chandra v Queensland Building and Construction Commission [2014] QCATA 65

CITATION: Chandra v Queensland Building and Construction Commission [2014] QCATA 065 PARTIES: Suresh Chandra (Applicant/Appellant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: APL058 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 26 February 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Suresh Chandra’s application to extend or shorten a time limit or for waiver of compliance with procedural requirement is refused. 2. The application for leave to appeal or appeal is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): 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 22 November 2013, a member of the tribunal made orders against Mr Chandra that had significant consequences. In addition to fines and compensation, the learned Member ordered that Mr Chandra never be re- licensed as a building certifier. -- 1 of 4 -- 2 [2] Mr Chandra filed an application for leave to appeal on 31 January 2014. Because he was outside the permitted time frame for such an application, he also filed an application for extension of time. Explanation of the delay [3] Mr Chandra submitted that he had a reasonable explanation for the delay. He says that he left Australia on 11 December 2013 for India to visit his ailing Grandmother. He says that he did not return until 2 January 2014. He says that he had difficulty communicating with his lawyer while he was in India. He says that his lawyer was not working between 22 December 2013 and 13 January 2014 so Mr Chandra could not obtain advice from his lawyer until after 13 January 2014. [4] I accept Mr Chandra’s explanation for his delay between 22 December 2013 and shortly after 13 January 2014. I am not similarly persuaded about the delay between 22 November 2013 and 20 December 2013. [5] Mr Chandra is silent about when his lawyer received a copy of the decision. He is also silent about why he did not receive a copy of the decision before he left for India. His lawyer has not provided an affidavit about what happened between 22 November 2013 and 17 December 2013. If the delay was because of the lawyer’s error then, of course, the tribunal would give serious consideration to an extension of time. In the absence of an explanation, however, I can only assume that nothing was done and there was no good reason for that omission. [6] Contrary to his submission that he could not communicate with his lawyer from India, Mr Chandra does say that he received a copy of the decision by email on 17 December 2013. He does not explain why he didn’t then instruct his lawyer to file an application for leave to appeal. If one is facing a lifetime ban in one’s chosen profession, it doesn’t seem too difficult a decision to challenge that lifetime ban by filing an application for leave to appeal. [7] Mr Chandra has previously filed an application for leave to appeal a tribunal decision1. He is not a stranger to the tribunal’s procedure. He should have been aware of the need to move quickly. Mr Chandra’s explanation of the delay is not compelling. The substantive application [8] Mr Chandra says there was a breach of natural justice. He says the learned Member did not consider or address Mr Chandra’s argument about penalty. He says the learned Member did not consider his history in sufficient detail. He says that the decision was an improper exercise of the learned Member’s power by reference to the standard judicial review tests. He says that the decision involved an error of law “whether or not the error appears on the record of the decision”. He says there was no evidence or 1 Queensland Building Services Authority v Chandra & Anor [2013] QCAT 628 at [62]. -- 2 of 4 -- 3 justifiable precedent to cancel his licence absolutely. He says the learned Member demonstrated apprehended bias. [9] Mr Chandra’s grounds for leave to appeal are cast in general terms. Although parties generally have to opportunity to expand on their grounds for leave to appeal, one would expect some detail in the initial grounds for the application. For example, what is the basis for submitting there has been a denial of natural justice? What was the alleged error by the learned Member? Where is the evidence of bias? The submissions as framed have the flavour of a scattergun approach. [10] The learned Member’s reasons for decision record2 that Mr Chandra did not seriously contest the substance of the allegations against him. He did not give oral evidence but he did provide written submissions. It is difficult to see how, in those circumstances, there could be a denial of natural justice. [11] The learned Member detailed Mr Chandra’s history of misconduct3. The Authority (as it then was) provided the learned Member with authorities to support a submission that the primary purpose of a penalty was to protect the public. The learned Member found that fines had little effect on Mr Chandra and the best way to protect the public was to prevent him from ever holding a licence again4. [12] While I cannot say that Mr Chandra’s application has no merit, I am not persuaded that Mr Chandra’s application has prospects of success. Prejudice [13] The Commission concedes that it will not be prejudiced by an extension of time. [14] Mr Chandra is already unlicensed. He has not worked as a certifier since 2009. If he is to return to certifying, he will have to satisfy a number of requirements, both financial and personal. This is not a case where, if the appeal is unsuccessful, a person will be deprived of the occupation in which he had engaged until the primary decision. [15] There is a third consideration in the issue of prejudice. The facts giving rise to this application occurred in 2006. The homeowner suffered damage in 2008. The homeowner lodged a complaint with the Authority in 2009. The homeowner is entitled to finality. Allowing an extension of time will deprive the homeowner of the right to recover compensation for an event that occurred over five years ago. 2 Supra at [35]. 3 Supra at [54] to [58]. 4 Supra at [64]. -- 3 of 4 -- 4 Conclusion [16] Mr Chandra submits that an extension of time is necessary to see that justice is done. The tribunal will not deprive a person of their ability to earn income without providing a proper opportunity for that person to canvas the issues and make submissions on any application that may before the tribunal. [17] However, the tribunal requires parties to take proceedings seriously and not assume that “informal”5 means “casual”. Mr Chandra had the knowledge, means and the time to protect his interests. He failed to do so and he has not explained his failure to my satisfaction. The application to extend time should be refused. The application for leave to appeal or appeal should be dismissed. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 4 of 4 --