Earlier this year, we discussed the recent amendments to the Act and noted the unfortunate fact that 'excluded individuals' could no longer apply for categorisation as a 'permitted individual' for a particular event.
The impact upon non-licensees (which many influential persons for construction companies are) has been underlined by the recent Queensland Civil and Administrative Tribunal decision of Queensland Building and Construction Commission v Cummings & Gagliano  QCATA 130.
Pursuant to Part 3A of the Queensland Building and Construction Commission Act 1991 (Qld) (Act) an individual will become an 'excluded individual' if (in summary):
- They become bankrupt and 3 years have not passed since that occurred; or
- A construction company has an administrator or liquidator appointed to it and the individual was (either at the date of that event or within one year prior to the event), a director, secretary or influential person for the company and 3 years have not passed since the event occurred.
Liquidators were appointed to St Hillier's Ararat Pty Ltd and administrators were appointed to each of St Hillier's Construction Pty Ltd and St Hillier's Pty Ltd. Mr Gagliano and Mr Cummings were directors of all three companies within the 12 month period prior to those events occurring. Neither of Mr Gagliano and Mr Cummings were licensed. Despite that fact, the Commission gave each man a notice in relation to each of the company events. Each notice stated that the Commission considered each man to be an 'excluded individual' in relation to each of the company events.
Both Mr Gagliano and Mr Cummings unsuccessfully applied to the Commission to be categorised as a 'permitted individual' in relation to each of the company events.
Both Mr Gagliano and Mr Cummings both sought to review the Commission's decision to not categorise them as a 'permitted individual' in relation to each of the company events and the Commission's decision that they were both 'excluded individuals'.
The Commission applied to strike out each review to the extent that it sought to review the Commission's decision that Mr Gagliano and Mr Cummings were both 'excluded individuals'. The Commission argued that a 'non-licensee' was not entitled to review such a decision and that the Tribunal had no jurisdiction to entertain that part of the review.
At first instance, Member Howard dismissed the strike out Application; Gagliano & Anor v Queensland Building and Construction Commission  QCAT 504, holding that a 'non-licensee' could review a decision to categorise them as an 'excluded individual'.
On appeal, the Tribunal accepted the Commission's argument that the Act does not permit a 'non-licensee' to review a decision to categorise them as an 'excluded individual'.
This is consistent with previous case law in the form of Queensland Building Services Authority v Plotkin  QCATA 219.
In its reasons, the Tribunal emphasised the fact that the Tribunal's jurisdiction is limited by its constituting legislation, that section 86(1)(k) provides for a review of:
(k) a decision under section 56AF or 56AG that—
- a person is an excluded individual or excluded company; or
- an individual is still a director or secretary of, or an influential person for, a company;
and that section 56AF and section 56AG relate to decisions made by the Commission if the Commission 'considers that an individual who is a licensee is an excluded individual...' or if the Commission 'considers that a company that is a licensee is an excluded company...' and not to persons more generally.
The Tribunal was at pains to reiterate the point that questions of fairness in this context are matters for Parliament and that such considerations do not justify the Tribunal effectively rewriting the terms of the legislation.
The Tribunal struck out each review to the extent that it sought to review the Commission's decision that Mr Gagliano and Mr Cummings were both 'excluded individuals'.
In light of this decision, individuals in the circumstances of Mr Gagliano or Mr Cummings (who were both directors of failed construction companies within the statutory, 12 month, time period) face the prospect of being excluded from involvement in the construction industry for a period of 3 years.
A person who is considered to be a 'excluded individual' by virtue of their having been an 'influential person' for a construction company (whilst having no right to review the decision in the Tribunal) could apply to the Supreme Court of Queensland for:
- A declaration that they were not an 'influential person' and therefore they are not an 'excluded individual'; and/or
- A statutory Order of review (under the Judicial Review Act 1991 (Qld)).
If either succeeded, the decision would be sufficient to dispose of the decision.
This is equally true of a person who the Commission (due to an error in applying the definition of 'excluded individual') determines to be an 'excluded individual'.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.