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D'Arro v Queensland Building and Construction Commission

 

[2017] QCA 90

Reported at [2018] 1 Qd R 204
 

SUPREME COURT OF QUEENSLAND

 

CITATION:

D’Arro v Queensland Building and Construction Commission [2017] QCA 90

PARTIES:

ORAZIO SALVATORE D’ARRO
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)

FILE NO:

Appeal No 6191 of 2016

QCATA No 185 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal Appeal Tribunal at Brisbane – [2016] QCATA 76

DELIVERED ON:

12 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2016

JUDGES:

Fraser and Philippides JJA and Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. Grant the application for leave to appeal with costs.
  2. Allow the appeal with costs.
  3. Set aside the orders made in the Queensland Civil and Administrative Tribunal Appeal Tribunal on 20 May 2016.
  4. Order that the appellant’s applications for review of the respondent’s decision made on 3 July 2009 that the appellant is an excluded individual by reason of the appointment of a liquidator to Innovare Developments Pty Ltd on 22 May 2009 and the respondent’s decision made on 2 October 2012 to refuse to categorise the appellant as a permitted individual be returned to the Queensland Civil and Administrative Tribunal for reconsideration by a member of the Tribunal according to law.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where liquidators were appointed to each of a group of companies associated with the applicant – where the applicant was made bankrupt – where the respondent decided that the applicant was an excluded individual – where the applicant applied to the respondent to be categorised as a permitted individual for each of those five relevant events – where the respondent refused those applications – where that decision was subject to a review hearing – where after the hearing in the Tribunal but before the Tribunal made its decision the Professional Engineers and Other Legislation Amendment Act amended the Queensland Building and Constructions Commission Act – whether the amendments to the Queensland Building and Constructions Commission Act made by the Professional Engineers and Other Legislation Amendment Act apply retrospectively

Acts Interpretation Act 1954 (Qld), s 20(2)(b), s 20(2)(c)

Professional Engineers and Other Legislation Amendment Act 2014 (Qld), s 60, s 61

Queensland Building and Construction Commission Act 1991 (Qld), s 31(1), s 31(2), s 42, s 56AC, s 56AD, s 56AE, s 56AH, s 57AF, s 58(1)(a), s 59, s 60, s 61, s 86

Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c), s 20

Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; [2012] HCA 19, cited

D’Arro v Queensland Building and Construction Commission [2016] QCATA 76, related

Esber v The Commonwealth (1992) 174 CLR 430; [1992] HCA 20, considered

Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, cited

McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380, considered

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537; [1967] HCA 30, cited

Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; [1979] AATA 184, cited

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31, cited

COUNSEL:

P Tucker for the applicant

N Andreatidis for the respondent

SOLICITORS:

Nicholsons Solicitors for the applicant

Robinson Locke for the respondent

  1. FRASER JA:  The applicant seeks leave to appeal against a decision of the Queensland Civil and Administrative Tribunal Appeal Tribunal (“the Appeal Tribunal”) dated 20 May 2016.  In accordance with the Court’s usual practice in matters of this kind the Court heard argument upon the proposed appeal together with the application.
  1. The question raised by the application is whether the Appeal Tribunal erred in affirming the decision of the Queensland Civil and Administrative Tribunal (“the Tribunal”) that the amendments made by the Professional Engineers and Other Legislation Amendment Act 2014 (Qld) (“the PEOLA Act”) to the Queensland Building and Construction Commission Act 1991 (Qld) (“the QBCC Act”[1]) were inapplicable on the ground that to apply those amendments would retrospectively change the previous operation of the QBCC Act.
  1. Leave to appeal was opposed only upon the basis of the respondent’s argument that there was no error in the Appeal Tribunal’s decision.  Leave should be granted because there is a reasonable argument that the Appeal Tribunal erred in law, correction of the error is necessary to avoid substantial injustice to the applicant, and the question raised by the application is a question of law which may have significance in some other cases.

Background

  1. Four companies associated with the applicant together operated a design and construction business: Innovare Pty Ltd (“Innovare”), Innovare Developments Pty Ltd (“Developments”), Innovare Holdings Pty Ltd (“Holdings”), and Line Design Studio Pty Ltd (“Line Design”). Innovare held a building licence under the QBCC Act. On 22 May 2009 liquidators were appointed to each of the companies and on 1 July 2010 the applicant was made bankrupt.  Those five events had significant consequences for the applicant under provisions of the QBCC Act relating to the licensing of contractors.  Such a licence is generally required before a person can lawfully undertake to carry out building work: s 42.  In division 2 of Pt 3, s 31(1) provides that a person, not being a company, is entitled to a contractor’s licence “if the commission is, on application by that person, satisfied” of various matters, including “(a) the applicant is a fit and proper person to hold the licence” and “(e) the applicant is not an excluded individual for a relevant event or a permanently excluded individual”.  The QBCC Act contains analogous licensing provisions for companies, including the provision in s 31(2) requiring the commission to be satisfied that “(a) the directors, secretary and influential persons for the company are fit and proper persons to exercise control or influence over a company that holds a contractor’s licence” and “(d) the company is not an excluded company”.  It is not in issue that the applicant was the director or secretary of or an influential person for each of the companies.
  1. Pt 3A (ss 56AB – 56AH, headed “Excluded and permitted individuals and excluded companies”) and Pt 3B (ss 57 – 61, headed “Permanently excluded individuals”) also concern licensing. Section 56AE prohibits the respondent from granting a person a licence if the person is “(a) an excluded individual for a relevant event …”.  Subject to various conditions, s 56AF obliges the respondent to cancel the licence of an individual if it “considers that an individual who is a licensee is an excluded individual for a relevant event”.  Section 59 prohibits the respondent from granting a licence to a person who is a permanently excluded individual and s 60 provides that a permanently excluded individual is “taken not to be a fit and proper person for part 3, division 2”.  The elements of the definition of “permanently excluded individual” include that the individual “has twice been an excluded individual for a relevant event”: s 58(1)(a).
  1. Section 56AF(3) should be set out in full. It provides:

“(3) The commission must cancel the individual’s licence by written notice given to the individual if –

  1. the individual has not already applied to be categorised as a permitted individual for the relevant event, and the individual does not apply for the categorisation within 28 days after the commission gives the individual the written notice under subsection (2); or
  1. the individual has already applied to be categorised as a permitted individual for the relevant event, or the individual applies for the categorisation within the 28 days mentioned in paragraph (a), but –
  1. the commission refuses the application; and
  1. either of the following applies –
  1. (A)
     the period for applying for a review of the decision to refuse has ended and no application for review has been made;
  1. (B)
     an application for review has been made and the commission’s decision is confirmed, or the application is not proceeded with.”
  1. The meaning of the term “excluded individual” is explained in s 56AC. That section applies if an individual took advantage of the laws of bankruptcy or became bankrupt (a “relevant bankruptcy event”) and five years have not elapsed since the relevant bankruptcy event. The section also applies to an individual if a company for the benefit of a creditor had a provisional liquidator, liquidator, administrator or controller appointed or was wound up or ordered to be wound up (a “relevant company event’), five years have not elapsed since the relevant company event, and the individual was (amongst other matters) when the relevant company event happened, a director or a secretary of, or an influential person for, the company.
  1. Sections 56AC(3) and (4) are important in this application. They provide:

“(3) If this section applies to an individual because of subsection (1), the individual is an excluded individual for the relevant bankruptcy event.

  1.  If this section applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event.”
  1. Sections 56AC(5) and (6) are two of the three provisions that were subsequently amended by the PEOLA Act. In their unamended form they provided:

“(5) An excluded individual for a relevant bankruptcy event (the first event) does not also become an excluded individual for another relevant bankruptcy event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the individual.

  1.  An excluded individual for a relevant company event (the first event) does not also become an excluded individual for another relevant company event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the company.”
  1. Section 56AD(9) provides that, “If an individual is categorised as a permitted individual for a relevant event, the individual is taken not to be an excluded individual for the relevant event.” Section 56AD(1) empowers an individual to apply to the respondent “to be categorised as a permitted individual for a relevant event if the individual has been advised by the commission, or has otherwise been made aware, that the commission considers the individual to be an excluded individual for the relevant event.” Content is given to the term “permitted individual” by s 56AD(8). This is the third provision that was subsequently amended by the PEOLA Act. In its unamended form it provided that the commission may categorise the individual as a permitted individual for the relevant event “only if the commission is satisfied … that the individual took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event.”  Matters which the respondent is obliged to take into account in making that decision are listed, but the respondent is entitled to have regard to other matters: ss 56AD(8) and (8B).
  1. The respondent decided on 3 July 2009 that the applicant was an excluded individual for the appointments of liquidators to the four companies. The applicant was given notice of those decisions and of the respondent’s subsequent decision that the applicant was an excluded individual for his bankruptcy. The applicant applied to the respondent to be categorised as a permitted individual for each of those five relevant events. The respondent refused the applications on 2 October 2012. The applicant applied in the Tribunal to review the respondent’s decisions.
  1. Section 56AH of the QBCC Act provides:

“(1) This section applies if the commission considers under section 56AF or 56AG (the relevant section) that a person is an excluded individual or excluded company, or that an individual is still a director or secretary of, or an influential person for, a company.

  1.  If a person applies for a review of the commission’s decision, the application for review does not affect anything already done or in force under the relevant section, but periods of time mentioned in the relevant section are taken to stop running until the review is finished.”
  1. Section 86 of the QBCC Act confers jurisdiction upon the Queensland Civil and Administrative Tribunal to review decisions of the respondent not to categorise an individual as a permitted individual for a relevant event (s 86(1)(j)) and a decision under s 56AF or s 56AG that a person is an excluded individual or an excluded company (s 86(1)(k)). Section 19(c) of the Queensland Civil and Administrative Tribunal Act 2009 confers upon the tribunal “all the functions of the decision-maker for the reviewable decision being reviewed”.  Section 20 of the same Act describes the purpose of the review as being “to produce the correct and preferable decision” and obliges the tribunal to “hear and decide a review of a reviewable decision by way of a fresh hearing on the merits”.
  1. Under s 61 of the QBCC Act, if the Tribunal reverses or annuls “the commission’s decision not to categorise the individual as a permitted individual for the relevant event” or “the commission’s decision under section 56AF that a person is an excluded individual” the relevant event must not be counted in deciding “whether an individual is, or continues to be, a permanently excluded individual”.
  1. The review hearing proceeded in the Tribunal only in relation to two of the respondent’s decisions, the decision that the applicant was an excluded individual for Developments and the decision to refuse to categorise the applicant as a permitted individual for his bankruptcy.[2]  On 30 March 2015 the Tribunal confirmed both decisions.
  1. After the hearing in the Tribunal but before the Tribunal made its decision the PEOLA Act amended the QBCC Act. The amendments commenced on 10 November 2014. Sections 60 and 61 of the PEOLA Act amended the QBCC Act by:
  1. Omitting ss 56AC(5) and (6) and inserting a new s 56AC(5):

“An excluded individual for a relevant event does not also become an excluded individual for another relevant event if the commission is satisfied that both events are consequences flowing from what is, in substance, the one set of circumstances.”

  1. Omitting part of the text of s 56AD(8) and inserting other text, so that the subsection provides (with the inserted text italicised):

“The commission may categorise the individual as a permitted individual for the relevant event only if the commission is satisfied, on the basis of the application, that –

(a) section 56AC(5) applies to the individual for the relevant event; or

(b) the individual took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event.

  1. The Minister’s second reading speech explained the purpose of the amendments in the following passage:

Finally, the bill also amends the Queensland Building and Construction Commission Act to more clearly identify that a licensee ought not to be categorised as a permanently excluded individual merely as a result of a relevant bankruptcy event and a relevant company act arising out of the same incident.  This amendment stems from a recommendation in the Transport, Housing and Local Government Committee’s report tabled on 30 November 2012 that the QBCC Act be amended to provide that where an individual’s relevant bankruptcy event and a relevant company event stem from the same financial incident they may be deemed one event for the purpose of penalties.  This recommendation came about as a result of criticism from witnesses who submitted that bankruptcy and company insolvency events arising from the same circumstances should be treated as a single event because to do otherwise is unfair.  The government supported this recommendation by the parliamentary committee and, as a result, this bill addresses the issue.”

  1. If the amendments were applicable in the Tribunal and if, as the applicant contended, in terms of the new s 56AC(5) the applicant’s bankruptcy and the appointment of liquidators to the companies were all consequences flowing from what was, in substance, the one set of circumstances, then s 56AD(8)(a) supplied an additional ground enlivening the power to categorise the applicant as a permitted individual for relevant events. Another possible result of applying the amendments is that, if each relevant event flowed from what was in substance the one set of circumstances, under the amended s 56AC(5) the applicant would be an excluded individual for only one relevant event, the appointment of a liquidator to Innovare;[3] if so, he should not be treated as a permanently excluded individual whether or not he succeeded in his application to be categorised as a permitted individual.
  1. The applicant appealed to the Appeal Tribunal against the Tribunal’s decisions.
  1. The Appeal Tribunal held that the Tribunal did not err in finding that the appointment of a liquidator to Developments was a relevant company event but, as the respondent conceded, the Tribunal did err in not deciding whether the applicant was an excluded individual for that relevant company event, which might save the applicant from being declared a permanently excluded individual by reason of a second relevant event. The Appeal Tribunal also held, as the respondent again conceded, that the member did not properly exercise his discretion under s 56AD(8) in finding that he could not be satisfied that the applicant took all reasonable steps to avoid the relevant bankruptcy event. For those reasons the Appeal Tribunal remitted the applications to the Tribunal for reconsideration according to law. The findings upon which that order was founded are not in issue in this Court.
  1. The issue arises in relation to the Appeal Tribunal’s rejection of the applicant’s remaining ground of appeal, which raised the question whether the Tribunal erred in law by failing to apply the amendments made by the PEOLA Act. Upon that question, the Appeal Tribunal referred to the relevant legislative provisions and many judicial pronouncements concerning the retrospective application of legislation. The Appeal Tribunal quoted Dixon CJ’s well-known statement in Maxwell v Murphy[4] of the “general rule of the common law … that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.”  The Appeal Tribunal observed in a passage, part of which is quoted in (c) of the following paragraph, that, “As found by the Court of Appeal in [McNab Constructions Australia Pty Ltd v Queensland Building Services Authority[5]], the PEOLA amendments would seem to fall within Dixon CJ’s formulation ‘applying to facts … that have already occurred in such a way as to … impose or otherwise affect … liabilities’. … As stated by the Court of Appeal in McNab’s case, unless the language of the amendment clearly indicates it is to have [that] operation, it should be construed as speaking to the future only”.[6]
  1. The nub of the Appeal Tribunal’s reasons for deciding that the Tribunal did not err by failing to apply the PEOLA amendments is expressed in a passage of the appeal tribunal’s reasons,[7] which may be summarised as follows:
  1. Section 56AC of the QBCC Act applied upon the appointment of liquidators to Innovare and Developments on 22 May 2009 to deem the applicant to be an excluded individual for a relevant company event,[8] s 56AC applied for a second time on 1 July 2010 to deem the applicant an excluded individual for his bankruptcy, and by reason of each event the applicant is “an excluded individual and can therefore no longer hold a licence.”[9]
  1. Under the QBCC Act the applicant “is an excluded individual for both events unless he is declared a permitted individual”.[10]
  1. If s 56AC(5) of the QBCC Act as amended by the PEOLA Act applied to produce the result that the applicant was an excluded individual only for one relevant event (if each of the relevant bankruptcy event and the relevant company event flowed from what was, in substance, the one set of circumstances), the PEOLA Act would then be understood as “applying to facts … that have already occurred in such a way as to … impose or otherwise affect … liabilities” because the appointment of liquidators to the companies and the applicant’s bankruptcy had previously “triggered the effect of s 56AC under the QBCC Act (before amendment) and [the applicant] is deemed an excluded individual for both relevant events”.[11]
  1. Because the PEOLA Act contains no indication that the amendments were to apply retrospectively it should be construed as having only a prospective operation.

The parties’ arguments

  1. The applicant argued that: the presumption against retrospective operation of statutes was not offended by the application of a statute making amendments which had future consequences in respect of past facts; decisions as to whether a person was an “excluded individual” or a “permitted individual” were concerned with the question whether the person was entitled to hold, or to be associated with the holder of, a building licence; and at least in relation to an application to become a permitted individual, the question was whether the applicant was entitled to the grant or continuation of a grant of a right or privilege such that, by application of Brennan J’s  dissenting judgment in Esber v The Commonwealth[12] approving Re Costello and Secretary, Department of Transport,[13] the amendments to the underlying legislation should be considered by a merits review tribunal.  The applicant argued that the only relevant effect of the QBCC Act derived from decisions by the respondent to consider the applicant an excluded individual and not to categorise the applicant as a permitted individual, those were administrative decisions subject to merits review in the Tribunal, and Shi v Migration Agents Registration Authority[14] decided that the law to be applied in such a case was the law in force at the time of the new administrative decision.  The PEOLA Act did not evince a legislative intention that the Tribunal should apply the unamended form of s 56AC as s 56AD of the QBCC Act, rather than the legislation then currently in force.  The applicant argued that the presumption against the retrospective operation of statutes was in any event rebutted and that the Appeal Tribunal erroneously adopted the dissenting judgment of Chesterman JA in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority as though it were the judgment of the Court of Appeal.
  1. The respondent framed its argument in support of the Appeal Tribunal’s decision with reference to the provisions in s 20(2)(b) and (c) of the Acts Interpretation Act 1954 (Qld) that an amendment of an Act does not affect “the previous operation of the Act or anything suffered, done or begun under the Act” or “a right, privilege or liability acquired, accrued or incurred under the Act”, although the respondent acknowledged that s 20 “states in effect the common law principle, using some economy of words to do so”.[15]  The respondent argued that the application of the PEOLA Act in the Tribunal would attribute to it a retrospective operation because, without any decision by the respondent, s 56AC(3) and s 56AC(4) operated upon the date of each relevant event to categorise the applicant as an excluded individual for five years in respect of each such event, thereby creating a liability in the applicant, or at least producing the result that the applicant suffered under the QBCC Act, as follows:
  1. By s 31(1)(e) of the QBCC Act, the applicant was no longer entitled to hold a licence.
  1. By s 56AE the respondent was obliged to not grant the applicant a licence.
  1. By s 56AF(3), the respondent was obliged to cancel the applicant’s licence if the applicant did not apply to be categorised as a permitted individual for the relevant company event after the respondent gave the applicant the written notice required by s 56AF(2).
  1. The respondent argued that those liabilities or adverse effects were substantive rather than merely procedural and that the PEOLA Act does not evince an intention that the amendments to the QBCC Act were to apply retrospectively.
  1. The respondent accepted that the Appeal Tribunal mistakenly referred to the dissenting judgment of Chesterman JA in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority[16] as the judgment of the Court of Appeal but argued that nothing turned upon that mistake.

Consideration

  1. The respondent did not seek to rely upon the majority decision in Esber v The Commonwealth that the appellant in that case had a right to have his claim to redeem weekly payments payable to him under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) determined in his favour if the decision-maker had wrongly refused the claim, and that such a right, although “inchoate or contingent”, was a substantive right protected by a section of the Acts Interpretation Act 1901 (Cth)  (which is similar to s 20(2) of the Acts Interpretation Act 1954.)[17]  That decision is distinguishable on the ground that the legislation in issue created a conditional right to an immediate payment whereas the relevant legislative provisions in issue in this case merely state the bases upon which a licence may or must in the future not be granted or must be cancelled.
  1. The applicant relied upon the observation by Brennan J[18] in Esber that, “Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time.”  That is applicable here.  The respondent did not contend to the contrary.  The question is whether the amendments made by the PEOLA Act do not form part of that law because the PEOLA Act does not operate retrospectively.  Esber does not answer that question.  For much the same reason Shi v Migration Agents Registration Authority[19] does not assist in the resolution of the issue in this application.
  1. In order to consider whether the PEOLA Act would operate retrospectively if the amendments were applied in the Tribunal it is necessary first to consider the relevant liability or other consequence of the operation of the QBCC Act that would be affected. The respondent submitted that three provisions of the QBCC Act required sections 56AC(3) and (4) to be regarded as creating a relevant liability or other effect under s 20 of the Acts Interpretation Act immediately upon the occurrence of a relevant event.  As to that submission:
  1. Section 31(1)(e) of the QBCC Act does not have an automatic or immediate effect that upon an individual falling within one of the descriptions in section 56AC(3) and (4) the individual is no longer entitled to hold a contractor’s licence. More accurately, s 31(1)(e) would operate only if the individual subsequently applied for a licence, in which event its effect would be to disentitle the individual to the licence if at that time the commission considered that the individual was an excluded individual.
  1. Section 56AE could have an operative effect only if the applicant applied for a contractor’s licence; the respondent in any event could not lawfully grant such a licence in the absence of the application required by the introductory words of s 31(1). Although s 56AE does not in terms refer to a decision by the respondent that the individual is an excluded individual for a relevant event, such a decision would be required. It hardly could be otherwise when sections 56AC(5) and (6) introduce evaluative factors into the question whether an individual is an excluded individual.
  1. In the circumstances and subject to the conditions expressed in s 56AF, s 56AF(3) obliges the respondent to cancel any licence held by an individual once the respondent considers that the individual is an excluded individual. Section 56AF(1) makes it clear that any such consequence is not automatically attracted by the operation of s 56AC(3) or s 56AC(4); it may occur only after a decision by the respondent that a licensee is an excluded individual for a relevant event. So much is also consistent with sections 56AH and 61.
  1. The circumstance that an evaluative decision that an individual is an excluded individual is required before those sections operate in a way that affects the individual’s licence status, together with the possibility that before the individual’s licence status is affected the individual may be categorised under sections 56AD(8) and (9) as a permitted individual rather than an excluded individual, make it difficult to accept the respondent’s argument that s 56AC(3) and s 56AC(4) themselves operate upon the date of a relevant event to create a liability or other adverse consequence that would fall within s 20 of the Acts Interpretation Act.  The better view is that sections 56AC(3) and 56AC(4) merely use the expression “excluded individual” as a shorthand description of an individual who, within the preceding five years, took advantage of the bankruptcy laws or became bankrupt in accordance with s 56AC(1) or has the specified relationship with a company to which a liquidator was appointed or was affected by other specified actions in accordance with s 56AC(2).  Any relevant liability or thing suffered is instead created by a subsequent cancellation of a licence or refusal of an application for a licence consequent upon a decision by the respondent that an individual is an excluded individual.
  1. The application of the amendments made by the PEOLA Act would operate retrospectively if they changed the applicant’s licence status as it was at a time before that Act was enacted. For example, the PEOLA Act would operate retrospectively if the QBCC Act as amended entitled the applicant or one of his companies to be regarded as having held a licence in a period before the commencement of the amendments even though in that period the respondent had duly refused an application for the licence or duly cancelled the licence under s 31(1)(e) or s 56AE of the QBCC Act or had duly cancelled the licence under s 56AF(3) of the QBCC Act.  The respondent did not argue that the PEOLA Act would have any such effect if those amendments were applied by the Tribunal in the review of the relevant decisions.  The possible consequences that after the PEOLA Act had commenced any application by the applicant for a licence could not lawfully be refused in reliance upon s 31(1)(e) or s 56AE and the respondent could not lawfully cancel the applicant’s licence in reliance upon s 56AF(3) would not attribute a retrospective application to the PEOLA Act; although the PEOLA Act would apply with reference to events that had occurred before its enactment, it would not apply “in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events”.[20]
  1. In the same case Dixon CJ observed that:[21]

“The rule or rules governing the presumption against the operation of new laws upon rights that have already accrued or immunities that have already been established or acquired must be reconciled or accommodated with the rule that the repeal of a provision makes it as if it had never been enacted.  It is to this that the exceptions, already described, of the former rule and directed.  In … Butcher v Henderson[22]… this is clearly put by Blackburn J as follows: ‘ … though when a statute is repealed, it is as to new matters as though it had never existed, yet as to transactions already completed under it, it is still has full effect.’”

  1. It might be said that the statutory description of the applicant as an excluded individual disadvantaged the applicant in the sense that any licence he held might be cancelled and any application for a licence he might make would be refused, but until such an event occurred the disadvantage should not be regarded as an accrued liability or a completed transaction.  In Ogden Industries Pty Ltd v Lucas,[23] Windeyer J discussed a provision which was relevantly in the same form as s 20(2) of the Acts Interpretation Act and observed:

“It seems to me that without descending to too much refinement there are at least three main senses in which lawyers speak of a liability or liabilities.  The first, a legal obligation or duty: the second the consequence of such a breach of such an obligation or duty: the third a situation in which a duty or obligation can arise as the result of the occurrence of some act or event.  It is in the third sense that s. 5(1) [of the Workers’ Compensation Act 1958 (Vic)][24] speaks of an employer as liable to pay compensation in accordance with the Act.  But I do not think it is the sense in which it is said that an amending Act does not disturb existing liabilities arising out of past transactions.  That to my mind describes a liability having become complete by past events rather than a situation in which some future event must occur to make the effect of past events create a completed liability.”

  1. The last sentence describes the distinction I regard as applicable in this case. Some support for that approach may be found in Chesterman JA’s judgment in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority.[25]  The majority (McMurdo P and Holmes JA, as the Chief Justice then was) resolved the issue in that case in a way that did not require any decision whether the amending legislation operated retrospectively.  Chesterman JA preferred a different analysis, which required his Honour to consider whether the amending legislation had such an operation.  His Honour held that it did not.  In reasoning to that conclusion Chesterman JA distinguished a category of cases concerning statutes imposing a liability or disqualification on a member of a profession or an officer by reference to circumstances, such as misconduct or suspected ineptitude, in which it had been held that the existence of the circumstances was enough to give rise to the disqualification even if the circumstances pre-dated legislation which authorised the disqualification.  His Honour continued:

“Kaye J explained the limitation on the application of the presumption against retrospectivity.  Not every statute which operates by reference to preceding events is relevantly ‘retrospective’.  His Honour said [Nicholas v Commissioner for Corporate Affairs [1988] VR 289 at 296]:

The common law rule of construction concerning retrospectivity is subject to a qualification that ‘a statute is not retrospective merely because it affects existing rights; nor is it retrospective because a part of the requisites to its action is drawn from a time antecedent to it passing’: Halsbury, 4th Ed., vol. 44, ‘Statutes’, para. 921.’

The distinction between statutes which are retrospective and those which are not was noted by Goddard LCJ in Re a Solicitor’s Clerk [1957] 1 WLR 1219.  The clerk in question was a thief, but had not stolen from his employer.  The legislation did not permit the Law Society to prohibit his employment as a solicitor’s clerk because the theft was not of his employer’s money.  An amendment allowed the Law Society to make such an order in all cases of theft.  In upholding the validity of an order that the clerk not be employed the Lord Chief Justice said (1222-1223):

“It enables an order to be made disqualifying a person from acting as a solicitor’s clerk in the future and what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect.  It would be retrospective if the Act provided that anything done before the Act came into force … should be void or voidable, or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force … This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past.”

Nicholas was a case of the same kind.  Section 562A of the Companies (Victoria) Code allowed the Commission for Corporate Affairs to prohibit a person from being a director of a company if he or she has been a director of a failed company within a specified prior period.  It was held that the power to issue the prohibition could be exercised with reference to involvement in a failed company prior to the enactment of s 652A.  Kaye J referred to a number of cases, including Re a Solicitor’s Clerk and noted (297) that there was:

“… a line of authority (which) establishes that a statute, the object of which is to protect the public interest by disqualification based on conduct antecedent to the enactment, does not fall within the principle of retrospectivity. (297)

His Honour also said (299):

The provisions of s. 562A … do not affect or change the legal character or the consequences of past events.  The object of the section is clearly to protect the public’s interest by preventing persons, who by past conduct are unfit, from directing promoting or managing the affairs of a corporation.  Furthermore, the provisions do not impose penalties for conduct antecedent to the enactment of the section.”[26]

The provisions in issue in this case are analogous with the legislation considered in Nicholas v Commissioner for Corporate Affairs and othercases discussed by Chesterman JA.

  1. I would reject the respondent’s argument that the application of the amendments in the Tribunal would attribute a retrospective operation to the PEOLA Act.
  1. Three other matters should be mentioned.
  1. First, in the Appeal Tribunal the respondent argued that s 24(2) of the Queensland Civil and Administrative Tribunal Act 2009 supported its argument that the amendments made by the PEOLA Act would be given a retrospective operation if they were applied in the reviews.  Sections 24(1) and (2) provide:

“(1) In a proceeding for a review of a reviewable decision, the tribunal may—

  1.  confirm or amend the decision; or
  1.  set aside the decision and substitute its own decision; or
  1.  set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
  1.  The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision—
  1.  is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and
  1.  subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.”
  1. The Court was informed that the respondent cancelled a licence under s 56AF(3) when the applicant failed to make an application within a time limited under that subsection.  If a Tribunal decision favourable to the applicant took effect from the date when the respondent’s reviewable decisions were made it might be contended that the Tribunal decision established that the respondent’s cancellation of the licence was ineffective.  However the respondent did not rely upon s 24 in this Court, perhaps because the Tribunal’s power to make a “contrary order” under s 24(2) appears to enable it to ensure that the application of amending legislation introduced after a reviewable decision will not give such legislation a retrospective effect which is unwarranted.  It is therefore unnecessary to say anything further about the point.
  1. Secondly, the applicant submitted that the presence of transitional provisions in the Queensland Building and Construction Commission Amendment Act 2014 (Qld) (an Act that amended the QBCC Act contemporaneously with the amendments made by the PEOLA Act) supported a view that the absence of transitional provisions in the PEOLA Act indicated that it was to operate retrospectively.  The respondent made a submission to the contrary but it did not contend that anything in the Queensland Building and Construction Commission Amendment Act 2014 (Qld) supported its case.  Because I do not accept the respondent’s argument that application of the amendments in the Tribunal would give the PEOLA Act a retrospective effect in relation to sections 56AC(3) and (4) it is not necessary to consider whether or not the presumption against retrospectivity is rebutted in the way advocated by the applicant or otherwise.
  1. Thirdly, the provisions of the QBCC Act as amended by the PEOLA Act have since been amended in substantial ways, but both parties argued the appeal upon the basis that the reviews in the Tribunal should proceed without regard to those subsequent amendments.[27]

Disposition and orders

  1. The applicant sought an order that the applications for review of the respondent’s decisions should be returned to the Tribunal for reconsideration according to law by a member of the Tribunal other than the member who determined those applications at first instance. The latter part of the order was submitted to be justified by the proposition that the member had erred in relation to the permitted individual application by considering matters that were acknowledged by the respondent not to raise an issue.  The argument did not explain how that supported the further proposition that the member thereby failed to afford the applicant procedural fairness.  I am not persuaded that there is any reasonable basis for an apprehension that the member may not bring an unbiased mind to the remitted applications or any sufficient justification for the order sought by the applicant.
  1. The application for leave to appeal and notice of appeal sought the costs of the application and the appeal.  No application was made in either document or in argument in relation to the costs of the proceedings in the Appeal Tribunal or the Tribunal.  In the event that the applicant succeeded in both matters the respondent did not argue against the costs orders sought by the applicant.  Those costs should follow the event.
  1. In these circumstances the appropriate orders are as follows:
  1. Grant the application for leave to appeal with costs.
  1. Allow the appeal with costs.
  1. Set aside the orders made in the Queensland Civil and Administrative Tribunal Appeal Tribunal on 20 May 2016.
  1. Order that the appellant’s applications for review of the respondent’s decision made on 3 July 2009 that the appellant is an excluded individual by reason of the appointment of a liquidator to Innovare Developments Pty Ltd on 22 May 2009 and the respondent’s decision made on 2 October 2012 to refuse to categorise the appellant as a permitted individual be returned to the Queensland Civil and Administrative Tribunal for reconsideration by a member of the Tribunal according to law.
  1. PHILIPPIDES JA:  I have had the considerable benefit of reading the reasons of Fraser JA.  I agree with those reasons and with the orders proposed.
  1. MULLINS J:  I agree with Fraser JA.

Footnotes

[1]  References to the QBCC Act are to that Act as in force on 27 October 2014, before it was amended by the PEOLA Act on 10 November 2014. Differences between that version of the QBCC Act and earlier versions in force between 2009 and 2014 were not submitted to be material for the disposition of this application.

[2] D’Arro v Queensland Building and Construction Commission [2016] QCATA 76 at [5].

[3]  The Appeal Tribunal found that a liquidator was appointed to Innovare before a liquidator was appointed to the other companies.

[4]  (1957) 96 CLR 261 at 267.

[5]  [2010] QCA 380.

[6]  [2016] QCATA 76 at [49]-[50].

[7]  [2016] QCATA 76 at [46]-[50].

[8]  Although two relevant company events thereby occurred, s 56AC(6) operated to require the conclusion that the applicant was an excluded individual for only one of those events.

[9]  [2016] QCATA 76 at [46].

[10]  [2016] QCATA 76 at [47].

[11]  [2016] QCATA 76 at [49].

[12]  (1992) 174 CLR 430 at 448-449.

[13]  (1979) 2 ALD 934 at 944.

[14]  (2008) 235 CLR 286.

[15] Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 at [24] (French CJ, Crennan and Kiefel JJ), quoting Windeyer J in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 584.

[16]  [2010] QCA 380.

[17]  (1992) 174 CLR 430 at 440.

[18]  (1992) 174 CLR 430 at 448.

[19]  (2008) 235 CLR 286.

[20] Maxwell v Murphy (1957) 96 CLR 261 at 267 (Dixon CJ).

[21]  (1957) 96 CLR 261 at 268.

[22]  (1868) LR 3 QB 335 at 338.

[23]  (1967) 116 CLR 537 at 584.

[24]  Section 5(1) provided “If in any employment personal injury arising out of or in the course of the employment is caused to a worker his employer shall subject as hereinafter mentioned be liable to pay compensation in accordance with the provisions of this Act”.

[25]  [2010] QCA 380.

[26]  [2010] QCA 380 at [113]-[115].

[27]  See ss 20-24 Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld), which did not come into effect until 1 July 2015.

Close

Editorial Notes

  • Published Case Name:

    D'Arro v Queensland Building and Construction Commission

  • Shortened Case Name:

    D'Arro v Queensland Building and Construction Commission

  • Reported Citation:

    [2018] 1 Qd R 204

  • MNC:

    [2017] QCA 90

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Philippides JA, Mullins J

  • Date:

    12 May 2017

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
Primary Judgment [2015] QCAT 100 30 Mar 2015 -
Primary Judgment [2016] QCATA 76 20 May 2016 Appeal from [2015] QCAT 100: Appeal allowed.
Notice of Appeal Filed File Number: Appeal 6191/16 22 Jun 2016 -
Appeal Determined (QCA) [2017] QCA 90 [2018] 1 Qd R 204 12 May 2017 Appeal allowed: Fraser and Philippides JJA and Mullins J.

Appeal Status

{solid} Appeal Determined (QCA)