Catchwords

Suspension and cancellation of a builder's licence – Queensland Civil and Administrative Tribunal (QCAT) – procedure for remitted actions – appeal on questions of fact and law

Significance

The QCAT Appeal Tribunal (Appeal Tribunal) can only consider mixed questions of fact and law if leave has been granted under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Any appeal that is decided on a question of fact (without leave) will be remitted for reconsideration.

Facts

Mr Ericson (applicant) was a licensed builder. The Queensland Building and Construction Commission (respondent) first suspended and then cancelled the applicant's builder's licence (licence) because the applicant did not meet the necessary financial requirements for holding a licence.

The applicant applied to QCAT for review of the respondent's decision to cancel the applicant's licence. QCAT reversed the respondent's decision.

The respondent appealed to the Appeal Tribunal for review of the QCAT decision.  Based on fresh evidence, the Appeal Tribunal reversed QCAT's decision, confirming the respondent's original decision to cancel the applicant's licence.

The applicant then appealed to the Supreme Court, arguing the Appeal Tribunal had reached its decision by considering questions of fact and law.  The QCAT Act only permits the Appeal Tribunal to decide a question of law on appeal.

The court held that the Appeal Tribunal had considered questions of fact and law to review QCAT's decision. The court remitted the matter to the Appeal Tribunal for reconsideration.

Instead of remitting the matter to QCAT for a re-hearing on questions of fact and law, the Appeal Tribunal again set aside QCAT's decision and confirmed the respondent's decision to cancel the applicant's licence. The Appeal Tribunal reached its decision by following an almost identical line of reasoning as the Appeal Tribunal's first decision.

The applicant appealed to the Court of Appeal.

Decision

The Court of Appeal set aside the Appeal Tribunal's decision and, given the lengthy history of the  matter, ordered the matter be remitted to a differently constituted Appeal Tribunal for reconsideration.

Holmes JA held that the Appeal Tribunal had again considered questions of fact and law in reaching its decision. Her Honour stated that, pursuant to the QCAT Act, the Appeal Tribunal cannot 'conduct a re- hearing [of the matter] so as to reach its own conclusion on the evidence'.

Her Honour recognised the QCAT Act allowed the Appeal Tribunal to consider mixed questions of fact and law if leave had been granted.  No such leave was granted in this case.