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  • Unreported Judgment

Vukobratich v Queensland Building and Construction Commission

 

[2020] QCAT 2

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Vukobratich v Queensland Building and Construction Commission [2020] QCAT 2

PARTIES:

Mark Vukobratich

 

(applicant)

 

v

 

Queensland building and construction Commission

 

(respondent)

APPLICATION NO/S:

OCR265-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 January 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

ORDERS:

  1. It is determined that the giving of notice that the Commission considers an individual is an excluded individual for a relevant event, pursuant to section 56AF(2) of the Queensland Building and Construction Commission Act 1991 (Qld), is a reviewable decision.
  2. The costs of this determination are reserved.
  3. OCR 265-18 and OCR 331-18 are to be set for a Directions Hearing at a time and date to be advised by the Tribunal.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the giving of a notice by the Queensland Building and Construction Commission that it considers an individual is an excluded individual under s 56AF(2) is a reviewable decision – where there was consideration of previous cases where alternate submissions were made

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – REFERENCE TO FRAMEWORK OF ACT – where the meaning of a ‘reviewable decision’ was discussed

Queensland Building and Construction Commission Act 1991 (Qld), s 56AF(1), s 56AF(2), s 56AF(3), s 56AH

Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 231

Butler v QBCC (QCAT) OCR254-17 (5 December 2017)

Butler v QBCC [2018] QCAT 30

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

Ezra Constructions Pty Ltd & Ors v Queensland Building and Construction Commission [2019] QSC 47

Olin v QBCC [2018] QCATA 167

APPEARANCES &

REPRESENTATION:

 

Applicant:

Robinson Locke Litigation Lawyers

Respondent:

Dowd & Co

REASONS FOR DECISION

  1. [1]
    Mark Vukobratich (‘the builder’) was the holder of a licence issued by the Queensland Building and Construction Commission (‘the QBCC’).
  2. [2]
    On 3 August 2018, the QBCC gave notice to the builder pursuant to section 56AF(2) of the Queensland Building and Construction Commission Act 1991 (‘the Act’) that it considered he was an excluded individual, and stated the circumstances in which his licence would be cancelled (‘the first decision’).
  3. [3]
    On 10 September 2018, the QBCC gave notice to the builder of the cancellation of his licence (‘the second decision’), pursuant to section 56AF(3) of the Act, for the following reason:

Todd William Kelly of BDO (Nth Qld) was appointed liquidator of Vukobratich Enterprises Pty Ltd on 2 August 2018. Mark Vukobratich was a director, secretary or influential person at the time of, or within two years of, liquidators being appointed.

  1. [4]
    The builder filed an Application to Review the second decision on 8 October 2018, which was assigned Case Code OCR265-18.
  2. [5]
    The builder filed an Application to stay the second decision in OCR 265-18 on
    8 October 2018.
  3. [6]
    The builder filed an Application to Review the first decision on 28 December 2018, which was assigned Case Code OCR331-18.
  4. [7]
    The Tribunal gave Directions in relation to both OCR265-18 and OCR331-18 on
    2 January 2019 as follows:

1. Application OCR 265-18 and Application OCR 331-18 will remain separate applications but will be heard together.

2. The application to stay a decision filed in OCR 265-18 is listed for hearing in Brisbane at 9:30 am on 7 February 2019.

  1. [8]
    At the oral hearing on 7 February 2019, a Member of the Tribunal:
    1. (a)
      Dismissed the application dated 8 October 2018 to stay the decision of the QBCC, and
    2. (b)
      Gave directions as to the issue of jurisdiction of the Tribunal to review the QBCC’s first decision of 3 August 2018 (OCR 331-18), and directed that the parties file submissions in relation to the issue, and that the issue would be determined on the papers.
  1. [9]
    The QBCC filed submissions in relation to jurisdiction on 18 February 2019. The builder filed submissions on 1 March 2019.

Submissions of the QBCC

  1. [10]
    The QBCC noted that events in the proceeding were as follows:[1]
  1. on 3 August 2018 QBCC delivered a notice pursuant to s. 56AF(2)
  2. thereafter 28 days expired without submission changing QBCC’s consideration of the matter, and no review was commenced; and
  3. on 10 September 2018 QBCC cancelled the applicant’s licence pursuant to s.56AF(3)
  1. [11]
    The provisions as to an excluded individual in s 56AF were amended as at 1 July 2015, when the ability to apply to become a ‘permitted individual’ was removed.
  2. [12]
    Prior to 1 July 2015, s 56AF(2) read as follows:[2]
  1. (2)
    The commission must give the individual a written notice identifying the relevant event and stating the following:
  1. (a)
    why the commission considers the individual is an excluded individual for the relevant event;
  1. (b)
    the individual may apply to the commission to be categorised as a permitted individual for the relevant event if the individual has not already done so
  1. (c)
    the circumstances, stated in subsection (3), in which the commission must cancel individual’s licence
  1. [13]
    After 1 July 2015, s 56AF(2) was amended by changing s 56AF(2)(b). The other provisions of s 56AF(2) were unchanged. Section 56AF(2) then read as follows:[3]
  1. (2)
    The commission must give the individual a written notice identifying the relevant event and stating the following:
  1. (a)
    why the commission considers the individual is an excluded individual for the relevant event;
  1. (b)
    the individual may make submission to the commission about the relevant event within the reply period
  1. (c)
    the circumstances, stated in subsection (3), in which the commission must cancel individual’s licence
  1. [14]
    The commission submits that the changes in s 56AF(2) did not alter the ability to review the notice under that section:[4]

6. It is submitted:

  1. (a)
    That the change of words does not change the s56AF(2) notice to a mere show cause notice that is not reviewable;
  1. (b)
    The wording in both versions of s56AF(2) is triggered when ‘QBCC considers’ the person is an excluded individual; and
  1. (c)
    Prior to 1 July 2015 there was no concept of making and considering submissions regarding the excluded individual notice. However, of course, that could still occur.
  1. [15]
    Prior to 1 July 2015, s 56AF(3) read as follows:[5]
  1. (3)
    The commission must cancel the individuals licence by written notice given to the individual if
  1. (a)
    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. (b)
    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:

(i)  the commission refuses the application; and

(ii)  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 has not proceeded with
  1. [16]
    After 1 July 2015, s 56AF(3) reads as follows:[6]
  1. (3)
    The commission must cancel individuals licence by written notice given to the individual if -
  1. (a)
    after considering any submission about the notice made by the individual within the reply period, the commission still considers the individual is an excluded individual for a relevant event; or
  1. (b)
    the individual does not make a submission about the notice within the reply period.
  1. [17]
    The commission submits that the changes in s 56AF(3) do not affect the substance of the subsection:[7]

9. It is to be noted that:

  1. (a)
    S56AF(3) provides for a licence cancellation decision;
  1. (b)
    The wording in the current version is triggered ‘if the commission still considers…’;
  1. (c)
    Under both versions, it must surely have always been the case that, if after the expiration of 28 days, QBCC no longer considered the person to be an excluded individual, then no licence cancellation could occur; and
  1. (d)
    Hence, notwithstanding the new words, there does not seem to be a change in substance.
  1. [18]
    The Commission submits that an excluded individual notice pursuant to s 56AF(2) is a reviewable decision within s 86(1)(k)[8] which provides as follows:

86 Reviewable Decisions

  1. (1)
    Each of the following decisions of the Commission under this Act is a reviewable decision

…..

(k) a decision under section 56AF or 56AG that –

  1. (i)
    a person is an excluded individual or excluded company; or
  1. (ii)
    ….
  1. [19]
    The QBCC submits that the cancellation of a licence under section 56AF(3) is also a reviewable decision, by virtue of s 86(1)(c).[9] That section provides as follows:

86 Reviewable Decisions

  1. (1)
    Each of the following decisions of the Commission under this Act is a reviewable decision

  1. (c)
    a decision to impose or vary a condition of a licence
  1. [20]
    The QBCC referred to the recent decision of the Tribunal in Butler v QBCC,[10] and made comments as to that decision as follows:
  1. The recent decision in Butler v QBCC [2018] QCAT 30 struck out an application to review an excluded individual decision which had been made pursuant to s.56AF(2), and which was reviewable under s. 86 (1)(k) on the basis ‘no decision had been made’.
  2. As a matter of administrative law, for there to be a reviewable decision, there must in fact have been a decision made, as apart from a show cause notice.
  3. It is wrong in concept to say an applicant has no review rights until the cancellation decision pursuant to s.56AF(3), and such would be inconsistent with:
  1. The structure of the legislation – notwithstanding the changes to the legislation. That is, there would be no practical review right prior to cancellation;
  1. the wording of s.86(1)(k) – which would have no practical work to do if Butler is correct; and
  1. S.56AH(2) which comprehends a person pursuing review of a decision that a person considers falls within that section.
  1. [21]
    The QBCC referred to numerous appellate decisions regarding s 56AF(2) notices, which were the subject of review, and which were based upon review of decisions under the old version of the Act, including decisions after 2015.
  2. [22]
    Specifically, the QBCC referred to the recent Appeal Tribunal decision in Olin v QBCC,[11] which related to events since 2015 and included the following:

[16] Under s56AF of the QBCC act, if the Commission considers that a person who holds a licence is an excluded individual for a relevant event then, after taking certain prescribed steps, the Commission must cancel the person’s licence. The Commission’s decision declaring a person to be ‘an excluded individual’, is a reviewable decision before QCAT (QBCC Act, s86(1)(k)) upon application by the person affected by the decision (QBCC Act, s87).

Hence no consideration was given to the difference between the notice issued pursuant to s56AF(2) as apart from any later event under s56AF(3). However, there is no mention of licence cancellation, indicating that no separate cancellation occurred under s56AF(3).

  1. [23]
    The QBCC referred to three decisions of the Tribunal which decided reviews based on s 56AF(2) notices since 2015, and submitted that if Butler was correct, each of those decisions must have been made without jurisdiction:
    1. (a)
      O’Rourke v QBCC [2017] QCAT 140;
    2. (b)
      Buchanan v QBCC  [2018] QCAT 129; and
    3. (c)
      Olin v QBCC [2017] QCAT 319.
  2. [24]
    The QBCC submitted that there would be dire consequences if it was accepted that no decision was made until the licence was cancelled:[12]

27. If contrary to the above, it was assumed that no decision was made until the expiration of the 28 days period, namely in tandem with cancelling the licence, then:

  1. (a)
    In practice there can be no opportunity for a licensee to seek review of the finding that they are an excluded individual prior to cancellation;
  1. (b)
    When making an excluded individual decision there would also be the mandatory licence cancellation; and
  1. (c)
    That would cause calamity to affected licensees, with no right of review until after the event.

28. Hence, even if it is said there after multiple possible analysis available for this issue, the far preferable interpretation allows review of the s.56AF(2) notice.

  1. [25]
    The QBCC’s concluding submission was that the notice issued pursuant to s 56AF(2) is a reviewable decision within s 86(1)(k), and that this remains the case notwithstanding changes to the legislation in 2015.[13]

The builder’s submissions

  1. [26]
    The builder submits that s 56AH is ‘clearly drafted with the intention of preventing injustice to an impacted party’,[14] and refers to a s 56AF(2) notice as a ‘show cause’ notice rather than a decision.[15]
  2. [27]
    The builder submits that the Act is worded specifically in order to allow review of the ‘show cause’ notice of s 56AF(2) rather than a decision that may not otherwise be reviewable, and refers to the heading of s 56AH being ‘Review by tribunal of commission’s opinion’.[16]
  3. [28]
    The builder submits that it is erroneous of the QBCC to submit that the QBCC is required to make a decision to cancel a licence after issue of a s 56AF(2) notice, as the cancellation of the notice is a separate decision:[17]

11. The respondent has submitted that, ‘the current version (of s56AF(3)) does not provide for a new notice to be sent, nor for a fresh decision to be made. It required decision regarding cancellation be made (sic)’.

12. Respectfully, this submission is erroneous. The wording of s56AF(3) plainly states: ‘(3) The Commission must cancel the individual’s licence by written notice given to the individual if…’ The statute contemplates that the QBCC will, after either considering submissions and being unpersuaded by them, or otherwise by failing to receive any such submissions, to follow its previous consideration of a party being an excluded individual, and decide to cancel the licence. It is conceded this decision is mandatory in those circumstances, but it is nevertheless, clearly a distinct decision, and separate from the first.

13. The second decision, it is agreed is a mandatory one. But it is still a decision, and it is brought into effect by way of a separate written notice issued by the Commission. The wording of s56AF(3) states: ‘(3) the Commission must cancel the individuals licence by written notice given to the individual if…’. The second decision is the operative one, prior to that second decision being made, and the impacted party being notified by way of a new written notice, no decision of any finality has been made, at best the first decision simply shows the QBCC ‘considers’ a party to be an excluded individual. This on its own is of little significance, until the operation of the second decision, namely the cancellation of the building licence.

  1. [29]
    The builder submits that the Act contemplates review of the first decision, as evidenced by s 56AH, and that either the first or the second decision may be reviewed; and that it is the QBCC who wish to ventilate the issue as to whether the first decision may be reviewed:[18]

15. It is submitted that the Act contemplates review of the first decision, as evidenced by s56AH, and likewise it is appropriate for review of the second decision, being the final and operative decision to remove a licence. The applicant sought to review the second decision in this matter, given no submissions were made to the QBCC during the reply period, and therefore the QBCC’s opinion as to the Applicant’s status as an excluded individual was formed, and the mandatory second decision was made. The second decision was, in this case, the appropriate decision to review.

16. Finally, it is submitted that, respectfully, the QBCC had an opportunity to appeal the Butler decision in order to clarify what it purports is an unsound finding. That it chose not to do so is a matter that should not prejudice the applicant here. Indeed, the applicant sought to accommodate the hearing of this matter by way of filing a second application, that sought review of the first decision, at the behest of the QBCC.

17. The applicant submits that it is open to the tribunal to review both decisions, or to simply choose to review one of the two decisions and dismiss the other. It is noted that the applicant sought to discontinue one of the two applications at the hearing on 7 February 2019, but the QBCC refused in order to have the Butler issue ventilated further.

18. It is further submitted that the QBCC appear to intend to pursue this matter as a ‘test case’ the applicant’s costs should be addressed in those circumstances.

Discussion

  1. [30]
    The question of jurisdiction in this matter is whether the giving of a notice that the Commissioner considers an individual to be an excluded individual under s 56AF(2) is a reviewable decision.
  2. [31]
    The decision of the Supreme Court of Queensland in Ezra Constructions Pty Ltd & Ors v Queensland Building and Construction Commission[19] was delivered on 12 March 2019, after the submissions were filed in this matter by the parties.
  3. [32]
    In Ezra, Boddice J referred to a submission of the builder in that matter, that a decision had not been made by the Commission:[20]

[21] Finally, the applicant submits the respondents have not yet made a decision, as required by s 56AF(3)(a), that it still considers the third applicant is an excluded individual. The respondents purported to undertake a review that was not available in the absence of such a decision. Its purported determinations are of no effect. Licenses cannot be cancelled until those obligations have been met by the first respondent.

  1. [33]
    Ezra considered the situation of application of an earlier version of the Act, which the Commission had complied with, and Boddice J considered in that circumstance that a decision had been made:[21]

[36] As the requirements of the non-amended s56AC were met in respect of the third applicant, subsequent reliance on that regime by the first respondent directly affects the right the third applicant had under that regime to apply to be categorised as a permitted individual. As Fraser JA (with whom Philippides JA and Mullins J agreed) in D’arro[22], the disadvantage arising from the statutory description of an applicant as an excluded individual could not be regarded as an accrued liability or a completed transaction until an event such as cancellation of a licence or refusal of an application for a licence. Here an event has occurred which triggered that disadvantage. The first respondent issued notices pursuant to the pre-amendments 56AC, advising the third applicant that it considered him to be an excluded individual.

  1. [34]
    The builder referred to the comments of Mason CJ in Australian Broadcasting Tribunal v Bond & Ors[23] as constituting a ‘well-established pillar of administrative law, that the final and operative decision is the reviewable decision’:[24]

That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact fully for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless a statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

  1. [35]
    The comments of Mason CJ raised the possibility that a statute may provide for the making of a finding, which although an intermediate and not a final finding, might accurately be described as ‘a decision under an enactment’.
  2. [36]
    Section 56AF(1) provides as follows:

56 AF Procedure if licensee is excluded individual

  1. (1)
    This section applies if the Commission considers that an individual who is a licensee is an excluded individual for a relevant event.
  1. [37]
    Section 56AF(2) provides as follows:

(2) The Commission must give the individual a written notice identifying the relevant event and stating the following –

  1. (a)
    why the Commission considers the individual is an excluded individual for the relevant event;
  1. (b)
    that the individual may make a submission to the Commission about the relevant event within the reply period;
  1. (c)
    the circumstances, stated in subsection (3), in which the Commission must cancel the individual’s licence.
  1. [38]
    Section 56AF(3) provides as follows:
  1. (3)
    The Commission must cancel the individual’s licence, by written notice given to the individual if –
  1. (a)
    after considering any submission about the notice made by the individual within the reply period, the Commission still considers the individual is an excluded individual for a relevant event; or
  1. (b)
    the individual does not make a submission about the notice within the reply period.
  1. [39]
    Section 56AH provides as follows:

56AH review by tribunal of Commission’s opinion

(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.

(2) 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. [40]
    Section 56AH(1) provides that section 56AH applies if the Commission considers under s 56AF that a person is an excluded individual. This must be a reference to s 56AF(1) which refers to the Commission having that consideration.
  2. [41]
    Section 56AH(2) goes on to provide for ‘a review of the Commission’s decision’. As s 56AH(2) follows on from s 56AH(1), and is the active provision to give effect to s 56AF(1), the two subparagraphs are to be read together.
  3. [42]
    The logical consequence is that s 56AH anticipates that a review of the Commissioner’s forming a consideration under s 6AF(1) is available.
  4. [43]
    Section 56AH can therefore be seen as the type of provision in a statute which Mason CJ was referring to, as accurately being described as ‘a decision in an enactment’, even though it is an intermediate and not a final decision.
  5. [44]
    The opinion of the Commissioner expressed under s 56AF(2), that a person is an excluded individual, is clearly not a final finding as to whether a person is an excluded individual, and cancellation of a licence does not automatically occur upon it. The effect of s 56AF(2) is to establish a process which gives an opportunity for submission by the builder.
  6. [45]
    Boddice J in Ezra referred to ‘an event that triggered a disadvantage’:

Here an event has occurred which triggered that disadvantage. The first respondent issued notices pursuant to the pre-amendments 56AC, advising the third applicant that it considered him to be an excluded individual.

  1. [46]
    The opinion of the Commissioner expressed under s 56AF(2) can similarly be seen to be an event that triggered a disadvantage.
  2. [47]
    The effect of the decisions in Australian Broadcasting Tribunal v Bond and Ezra is that the opinion of the Commissioner expressed under s 56AF(2) is a reviewable decision.
  3. [48]
    It may also be argued that the Commissioner is in fact making a decision in deciding that a notice under s 56AF(2) should be issued.
  4. [49]
    I accept the submissions of the QBCC and the builder, which are consistent with each other, in saying that the giving of a notice under section 56AF(2) is a reviewable decision under the Act; and that the cancellation of a licence under section 56 AF(3) is also a reviewable decision.
  5. [50]
    What then is to be done about the apparent dichotomy as to the decision in Butler which did not accept that a notice under section 56AF(2) is a reviewable decision?
  6. [51]
    It is confounding that the QBCC took a completely opposite position in Butler, and made completely opposite submissions to those which it has made in this matter.
  7. [52]
    The stay decision in Butler, given on 5 December 2017, notes that the submissions of the QBCC in that matter were as follows:[25]

3. The QBCC has submitted that the stay application is premature as it has not yet made a decision in relation to Mr Butler’s building licence.

4. It is apparent that the QBCC is yet to make a decision as to the licence. The notice received by Mr Butler against which he has filed both his review and his stay application is a notice concerning a decision to categorise him as an excluded individual and seeking his response. This notice is part of the requirements of section 56AF – not a decision about his licence which remains in place while the review process is undertaken.

5. Section 56 AF states: …

6. On 22 November 2017 the Commission provided submissions to the Tribunal addressing Mr Butler’s application for a stay submitting that Mr Butler is not affected by a decision that he can review to QCAT under section 87 of the Queensland Building and Construction Commission Act 1991 (Qld) because a decision about his licence has not been made.

  1. [53]
    The QBCC then went on to make an application in Butler to dismiss the Application to Review of the builder in that matter. The grounds of its application were stated as follows:[26]

4. The QBCC seeks that the review application be dismissed as:

(a) The Notice was not a decision but rather a proposed decision, and therefore is not a reviewable decision pursuant to section 86 of the Queensland Building and Construction Commission Act 1991 (‘QBCC Act’);

(b) Pursuant to section 87 of the QBCC act, the applicant is not affected by a reviewable decision and is therefore precluded from applying to the tribunal for a review of that decision; and

(c) In the alternative, the Application there are no proper grounds upon which the Tribunal could set aside the decision of the QBCC.

5. The QBCC repeats and relies on the QBCC submissions in response to the stay application filed on 22 November 2017 (‘Stay Submissions’).

  1. [54]
    The question that the builder poses as to why the QBCC did not appeal the decision in Butler, if that decision did not accurately reflect submissions in that matter, is a reasonable one, and is simply answered, as the decision did reflect the submissions of the QBCC in that matter.
  2. [55]
    The submissions of the QBCC in Butler (in both the Stay application, and the Strike-out application), and the decision in Butler,[27] do not refer to section 56AH of the Act.
  3. [56]
    I am not bound by, and do not follow the decision in Butler, which took into account completely opposite submissions by the QBCC, and did not consider the interrelationship between s 56AF and s 56AH of the Act.
  4. [57]
    I am satisfied that the giving of a notice under s 56AF(2), even though it is not a final decision, is intended by the Act to be a reviewable decision.
  5. [58]
    I find that the decision of the QBCC made on 3 August 2018 is a reviewable decision.
  6. [59]
    I consider that the safest course is for the matter to proceed upon the basis of the first decision and the second decision both being reviewed. I am wary that, were I to arbitrarily dismiss one or the other, this might, depending upon the evidence that is subsequently brought forward, be to the detriment of the matter if the wrong decision was struck out. The matters are currently being heard together, so there is no added cost in that continuing, and I consider that to be the safest course in the circumstances.
  7. [60]
    Both matters should now proceed to a Directions Hearing for the making of directions for further conduct of these matters.
  8. [61]
    I note by way of comment that the relevant provisions of the Act are convoluted and obviously confusing, to the point where the QBCC itself has adopted different positions in different matters.
  9. [62]
    It may be appropriate for the QBCC to review the efficacy of the Act in this respect, and, having regard to its function to advise the Minister on issues affecting the administration of the Act (s 11(e)(ii)), to consider making submissions as to appropriate amendments to the Minister.

Costs

  1. [63]
    The builder has sought its costs of this determination as to jurisdiction, and points to the request for it to be determined as a ‘test case’ by the QBCC.
  2. [64]
    The QBCC has not made submissions as to costs. It is therefore not appropriate for me to decide that issue of costs on the present material. As the matter is proceeding, it is more appropriate to reserve those costs, rather than seek to determine them.
  3. [65]
    I do observe however that, given:
    1. (a)
      the contrary submissions of the QBCC in Butler;
    2. (b)
      the readiness of the builder to agree to have whichever application was seen as necessary be struck out in an event to minimise costs; and
    3. (c)
      the desire of the QBCC to have this question of jurisdiction determined;

there appear to be strong grounds for the builder to be awarded costs in his favour in respect to this jurisdiction question.

  1. [66]
    I would urge the parties to have meaningful discussions as to the costs of this jurisdiction question in an effort to avoid incurring even further costs in relation to those costs.

Footnotes

[1]  Submissions of QBCC filed 18 February 2019, [2].

[2]  Ibid [5].

[3]  Ibid [4].

[4]  Ibid [6].

[5]  Ibid [8].

[6]  Ibid [7].

[7]  Ibid [9].

[8]  Submissions of the QBCC filed 18 February 2019, [19].

[9]  Ibid [14].

[10]  [2018] QCAT 30.

[11]  [2018] QCATA 167.

[12]  Ibid [27].

[13]  Ibid [30].

[14]  Submissions of Mark Vukobratich, [7].

[15]  Ibid [9].

[16]  Ibid [9].

[17]  Ibid [12].

[18]  Ibid [15]-[18].

[19]  [2019] QSC 47.

[20]  Ibid [21].

[21]  Ibid [36].

[22]  D’Arro v Queensland Building and Construction Commission [2017] QCA 90, [30].

[23]  (1990) 170 CLR 231, 32.

[24]  Submissions of Mark Vukobratich, [14].

[25]  OCR254-17, 5 December 2017, [3]-[6].

[26]  OCR 254–17 Application for Miscellaneous Matters, filed 6 December 2017, para C3 ‘attached submissions in support’.

[27]  [2018] QCAT 30.

Close

Editorial Notes

  • Published Case Name:

    Vukobratich v Queensland Building and Construction Commission

  • Shortened Case Name:

    Vukobratich v Queensland Building and Construction Commission

  • MNC:

    [2020] QCAT 2

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    03 Jan 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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