This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

1. By letter dated 16 July 2008, the Authority determined that Mr McClintock was an excluded individual pursuant to section 56C of the Queensland Building Services Authority Act. By letter dated 22 December 2009, received by the tribunal on 4 January 2010, Mr McClintock filed an application for review of that decision.
2. Until 1 December 2009, any application for review of the decision had to be made to the Commercial and Consumer Tribunal. Section 102 of the Commercial and Consumer Tribunal Act stated that any application for review of a decision must be filed within 28 days of receiving written notice of that decision. Section 52 of that Act gave the tribunal power to waive compliance with procedural requirements and/or extend a time limit fixed by the Act for doing any thing.
3. The provisions of the Commercial and Consumer Tribunal Act are echoed in the Queensland Commercial and Administrative Tribunal Act; section 33(3) nominates a timeframe of 28 days and section 61 allows the tribunal to extend a time limit fixed for the start of a proceeding.
4. Whether under the Commercial and Consumer Tribunal Act or the Queensland Commercial and Administrative Tribunal Act, it is clear that Mr McClintock has not complied with the requirement to file his application within 28 days of receipt of the notice. He must ask the tribunal to exercise its discretion to extend the time in which to file the application.
5. Section 61(3) of the Queensland Commercial and Administrative Tribunal Act states that the tribunal cannot extend a time limit if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to the proceedings.
6. In deciding similar questions, the Commercial and Consumer Tribunal adopted the guidelines set out in Re Hunter Valley Developments Pty Limited[1]:

1. Special circumstances need not be shown but the tribunal will not grant the application unless positively satisfied that it is proper so to do. 2. The prescribed period is not to be ignored. It is a pre-condition to the exercise of discretion in his favour that Mr McClintock show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time.

1. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who has not "rested on his rights" and a case where the decision maker was allowed to believe that the matter was finally concluded.

1. The mere absence of prejudice is not enough to justify the grant of an extension; public considerations often intrude. In cases involving public administration, public interest may well dictate refusal of an extension even after only a short delay 2. The merits of the substantial application are properly to be taken into account.

1. Mr McClintock's explanation of the delay is twofold. Firstly, until recently, he has not had the benefit of legal representation. As this tribunal has often noted, although section 43 of the Queensland Civil and Administrative Tribunal Act expresses a preference that parties represent themselves, the Act does not purport to restrict parties from accessing legal advice which will assist them in making informed choices about proceedings. Mr McClintock's failure to obtain legal advice at an early stage cannot be a justifiable explanation of the delay.
2. The second reason advanced by Mr McClintock is that, until the Authority's statement of reasons dated 20 May 2010, he was not aware that the Authority was purporting to exclude him as an influential person of the company rather than as a director. He says he has not been given an opportunity to respond to this assertion, that the Authority changed its decision in light of documents that came into existence after the initial decision was made, and that Mr McClintock ought to be afforded the opportunity to respond to this allegation.
3. There are some flaws in this argument. The letter of 16 July 2008 clearly states that the basis for determining that Mr McClintock was an excluded individual was that he was a "director, secretary or influential person for the Company at the time of ..." the event. The information sheet that accompanied the Authority's letter sets out what "influential person for a company means..." The 28 day time frame started from the date Mr McClintock received notice of that decision. Mr McClintock knew that he had not been a director or secretary of the company within the relevant period. He also knew that he held 29996 of the 30000 issued shares in the company. It is not such a leap of logic to conclude that he might also be required to explain to the Authority why this did not make him an influential person.
4. Mr McClintock says that the "generic letter" of 16 July 2008 did not disclose the erroneous finding of fact that he was a director of the company and, therefore, the tribunal should determine that he was not advised of the decision the Authority now seeks to review until he received the second statement of reasons on 20 May 2010.
5. Mr McClintock has referred me to paragraph 57 of Mrs Spender's decision in Taylor -v- Queensland Building Services Authority[2] in which she said that, if inaccurate reasons are given, the decision-making process is flawed, the applicants could not exercise effectively their right to have the respondent's decision reviewed and they have been denied natural justice. That case is quite different from the present situation. The decision in Taylor was a calculation of a prepayment component used in assessing the insurance claim. The decision did not accurately state the methodology used. Clearly, the inaccurate information affected Taylor's ability to form a view about the decision.
6. As I have already determined, generic or otherwise, the Authority's letter of 16 July 2008 contained sufficient material to enable Mr McClintock to determine whether he should apply for a review of that decision. Any alleged inaccuracy occurred well after the 28 day period for lodging an application had expired and, in fact, occurred in response to an alternative application filed by Mr McClintock.
7. In July/August 2008, instead of filing an application to challenge the finding that he was an excluded individual, Mr McClintock chose to file an application to become a permitted individual. During the course of that proceeding, and with the benefit of legal advice, perhaps Mr McClintock realised that he file the wrong application. It is an explanation for the delay but I am not satisfied that it is an acceptable explanation.
8. I accept that Mr McClintock has not rested on his rights and that the Authority has been appraised of his arguments for some time but I am not persuaded that he has provided an acceptable explanation for the delay.

1. Both parties agree that the Authority will not suffer any prejudice by the delay. However, the Authority argues that this late application may defeat the operation of section 56AC, which provides for a 5 year exclusion from the date of the relevant event, which period cannot be extended by the tribunal.
2. Mr McClintock says that this is an irrelevant consideration. He says that if he is successful in challenging the finding that he was an excluded individual, then he was never an excluded individual; if he is unsuccessful, then his application to be a permitted individual proceeds. He says that, if that application is successful, it can only apply to the period in which Mr McClintock would otherwise be excluded - five years from the relevant event.
3. The important point though, is that the application to be a permitted individual has the effect of maintaining Mr McClintock's licence until the application has been determined. This application will delay the determination of the initial application and that will mean that Mr McClintock, even if unsuccessful in both applications, will have had the benefit of his licence for much if the 5 year exclusion period.
4. The objects of the Queensland Building Services Act, include, in section 3(a) "to ensure the maintenance of proper standards in the industry". The public interest is an important consideration. Adopting the principles in Re Hunter Valley Developments Pty Limited, the public interest is not served by allowing an extension of time in circumstances where there is no sufficient explanation for the delay. It is trite, but necessary, to state that this prejudice to the public interest cannot be remedied by an award of damages or costs.

1. Mr McClintock's arguments on the substantive application are these:

1. He was not a director of the company within the meaning of section 56AC of the Queensland Building Services Authority Act. The authority accepts that proposition and it is plainly correct. 2. He was not an influential person within the meaning of section 56AC of the Queensland Building Services Authority Act.

1. The administrator to the company was not appointed for the benefit of a creditor.
2. "Influential person" is defined in Schedule 2 of the Queensland Building Services Authority Act as "...an individual, other than a director or secretary of the company, who is in a position to control or substantially influence the conduct of a company's affairs, including, for example, a shareholder with a significant shareholding, a financier or a senior employee."
3. Mr McClintock admits that he was a substantial shareholder in the company but has provided a statement from the director at the time as evidence that he did not, in fact, influence the conduct of the company' affairs. That is not the point. The Act talks about a person in a position (my emphasis) to control the company. Whether or not the person actually exercised that control is irrelevant. I find that, because of his substantial shareholding, Mr McClintock was a person in a position to control the company and, therefore, was an "influential person" within the terms of the Act.
4. Mr McClintock and his accountant advisors give a convoluted explanation of why an administrator was appointed to the company but was not appointed for the benefit of a creditor. The nub of the explanation appears at paragraph 6 of Mr McClintock's statement dated 22 September 2009: "I had for many years drawn wages and entitlements at less than full market value...The accrual of these unpaid entitlements became a matter that I had to account for in the property settlement matters arising from my marriage breakdown."
5. Mr Ahrens, Mr McClintock's financial advisor, at paragraph 14 of his statement dated 22 September 2009, states that Mr McClintock had to account for his assets in the company, "which included related party loans and director's entitlements". The balance sheet for the company as at 30 June 2008 shows Mr McClintock as a creditor in the sum of $2,057,373.60. At paragraph 15 of his statement, Mr Ahrens says that the appointment of an administrator was for the benefit of the then current director as otherwise he could have been personally liable pursuant to Corporations Law.
6. In fact, Mr McClintock was a creditor of the company, the company avoided liquidation and Mr McClintock remains the majority shareholder of the company. Doubtless there were other motives for the appointment of an administrator, most of which were connected with the breakdown of the McClintock marriage, but the fact remains that a principal motivation was to protect Mr McClintock's inter party loans and director's entitlements. In other words, the appointment of an administrator was for the benefit of a creditor; the creditor was Mr McClintock.
7. Mr McClintock argues that the Queensland Building Services Authority Act is only concerned with protecting members of the public and the industry generally, not a director of a company who chooses to arrange his affairs to suit his own purposes. The legislation is not so proscribed.
8. As decisions of the Commercial and Consumer Tribunal have pointed out[3] the purpose of these provisions is "to prevent the re-emergence of the shonks through the device of 'phoenix companies' ... and they will have to prove that they could not have avoided the relevant financial catastrophe. This is intended to mean that the relevant event was entirely outside the responsibility of the individual concerned"[4] The way in which a director chooses to order his affairs, and the potential consequences for the industry as a whole, are at the heart of this legislation. A cursory examination of the financial records of the company raises questions that are not easily answered when considering the interests of the public at large.
9. On balance, I find that Mr McClintock's prospects of success on the substantive application are poor.

1. Mr McClintock has not satisfactorily explained the delay in filing his application for a review of the decision that he was an excluded person.
2. Although the Authority will not suffer any direct prejudice, the public is entitled to have matters such as these dealt with expeditiously so that any penalty imposed by the legislation has real effect.
3. Mr McClintock's prospects of success on the substantive application are poor.
4. I dismiss Mr McClintock's application.

[3] See, for example Dyson -v- QBSA [2009] QCCTB 87

[4] Second Reading Speech of Minister, 21 July 1999