SUPREME COURT OF QUEENSLAND
CITATION: | Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Limited [2015] QCA 290 |
PARTIES: | MONADELPHOUS ENGINEERING PTY LTD & MUHIBBAH CONSTRUCTION PTY LTD TRADING AS MONADELPHOUS MUHIBBAH MARINE |
FILE NO/S: | Appeal No 6770 of 2015 SC No 12118 of 2014 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2015] QSC 160 |
DELIVERED ON: | 18 December 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 November 2015 |
JUDGES: | Holmes CJ and Applegarth and Boddice JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | The appeal is dismissed with costs. |
CATCHWORDS: | CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where the respondent contracted the appellants’ firm to perform construction work in relation to the construction of a coal export terminal – where the respondent purported to call on bank guarantees to secure performance of its contractual obligations – where the appellants claimed that the contract was governed by the Queensland Building and Construction Commission Act 1991 (Qld) such that the respondent was precluded from calling upon the guarantees – where the primary judge found that the contract was not a “building contract” for the purposes of the Act – where the primary judge relied upon an earlier decision of this Court – where that decision considered the meaning of “building works” and “building contract” under the Act – whether that decision was wrong and should be overruled Acts Interpretation Act 1954 (Qld), s 35C Queensland Building and Construction Commission Act 1991 (Qld), s 3(a)(i), s 3(a)(ii), s 67AAA, pt 4A, sch 2 Queensland Building and Construction Commission Regulation 2003 (Qld), s 5, sch 1AA Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76, cited Marshall v Marshall [1999] 1 Qd R 173; [1997] QCA 382, cited McNab Constructions Australia Pty Ltd v Queensland Building Services Authority (2011) 27 BCL 345; [2010] QCA 380, cited Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330, followed Monadelphous Engineering Pty Ltd & Muhibbah Construction Pty Ltd trading as Monadelphous Muhibbah Marine v Wiggins Island Coal Export Terminal Pty Ltd [2015] QSC 160, considered Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd (1999) 15 BCL 192; [1998] QSC 102, cited Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd [2000] 2 Qd R 148; [1999] QCA 61, cited Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9, cited Silk Bros v State Electricity Commission (Vic) (1943) 67 CLR 1; [1943] HCA 2, cited Sweeney v Volunteer Marine Rescue Currumbin Inc [2000] QCA 445, cited |
COUNSEL: | P J Dunning QC, with S R Cooper, for the appellantS A Crowe QC, with P Telford, for the respondent |
SOLICITORS: | CDI Lawyers for the appellant Minter Ellison for the respondent |
[1] HOLMES CJ: I agree with the reasons of Applegarth J and the order he proposes.
[2] APPLEGARTH J: The appellant (“MMM”) accepts that to succeed in this appeal it must establish that the decision of this Court in Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd[1] is incorrect and should be overruled.
Background
[3] MMM and the respondent (“WICET”) entered into a contract described as “GC12 Offshore Marine Works: Approach Jetty and Ship Berth” in respect of the construction of a coal export terminal at the Port of Gladstone. The issue in dispute before the primary judge was whether the contract was a “building contract” for the purposes of Part 4A of the Queensland Building and Construction Commission Act 1991 (Qld). That issue had implications in relation to the value of bank guarantees given to secure performance of the contract and the giving of written notice by WICET if the bank guarantees were to be called upon.
[4] The Act regulates the building industry. Part 4A of the Act governs building contracts other than domestic building contracts. Section 67AAA defines a “building contract” for that part. In essence, it means a contract or other arrangement (other than a domestic building contract) which requires the carrying out of any building work in Queensland.[2]
[5] The term “building work” is defined in Sch 2 of the Act to mean, among other things, “the erection or construction of a building”,[3] but does not include “work of a kind excluded by regulation from the ambit of this definition.”
[6] Section 5 of the Queensland Building and Construction Commission Regulation 2003 (Qld) provides that for Sch 2 of the Act, “work stated in schedule 1AA is not building work.” Schedule 1AA contains more than 50 exclusions. There is no consistent theme to them.[4] Some appear anomalous in that the work would appear to not fall within the definition of “building work”. Some of the exclusions relate to the construction of major structures, such as airport runways, public bridges and harbours. The exclusion of construction of such structures suggests a legislative intent that contracts for such works and contractors undertaking them do not require regulation under the Act. Some of the exclusions are of minor items. This again indicates that the legislature considered that such works should not be regulated by the Act.
[7] In this matter MMM was required to prove that the GC12 Contract is a “building contract” under Part 4A of the Act. WICET relied on a number of exclusions in the Regulation. MMM’s case was that the contract, either in its original terms or as it came to be varied, required it to undertake certain work which was not of a kind excluded by Schedule 1AA of the Regulation. The parties accepted that the primary judge was bound to follow the decision of this court in Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd,[5] which I shall refer to as MMM No 1.
[8] The learned primary judge found that MMM failed to establish that any of the works in question fell within the definition of “building work”.[6] The construction work was found to fall within one or more of the exclusions in Sch 1AA of the Regulation. These include Item 19 which excludes the following from being “building work”:
“19Work on harbours, wharfs and other maritime structures
Construction, maintenance or repair of harbours, wharfs and other maritime structures, unless the structures are buildings for residential purposes, or are storage or service facilities.”
[9] MMM accepts that in determining whether work falls within an excluded item in Sch 1AA of the Regulation one asks whether the work is of a kind stated in the item. It is not necessary that the work be precisely described by the item.[7] MMM also accepts that in determining whether work falls within an excluded item “a broad and practical interpretation of the item”[8] should be applied. Incidentally, such an approach derives support from the approach taken at first instance and on appeal in Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd.[9]
[10] In applying that approach in MMM No 1, this Court had regard to works that were “an integral aspect” of the construction of the shiploader that was under consideration in that case.[10] One aspect of its broad and practical interpretation of the exclusion in question was the “temporary” character of the relevant services and structures. This character was said to point to “the closeness of the relationship between the work upon those services and structures and the creation of the shiploader.”[11] Applying that approach, the primary judge in this matter considered “the closeness or otherwise of the relationship between the works relied upon and the construction of the jetty and the wharf.”[12]
[11] The primary judge decided whether various works fell within an exclusion in accordance with the approach of this Court in MMM No 1. It is unnecessary for present purposes to list all of the works. They included:
The primary judge held that the “temporary character of these works confirms the close relationship between the work in the installation of these items and the construction of the jetty and wharf so that they would be work ‘of a kind’ described in item 19 of Sch 1AA.”[13]
[12] In reaching this conclusion, and in dismissing MMM’s application on that basis, the primary judge relied on the reasoning of this Court in MMM No 1. MMM does not criticise the primary judge for doing so. After all, it and WICET accepted that the primary judge was bound to follow that decision. Instead, it submits that the reasoning of this Court in MMM No 1 was wrong and should not be followed. It submits that:
1.Having regard to the temporary character of the works as showing a close relationship between the work on those structures and the construction of the jetty and wharf involves the impermissible imposition of a temporal requirement on the operation of statutory provisions which do not contain such a temporal requirement.
2.The Item 19 exclusion only operates in respect of work undertaken on the maritime structure itself and not work that is physically separated from the maritime structure.
3.This Court adopted an erroneous approach in considering the closeness or otherwise of the relationship between the works relied upon and the construction of the item in question.
4.The approach adopted by this Court and by the primary judge includes within an excluded item in the Regulation building work which the legislature intended should be subject to regulation under the Act.
[13] The primary judge had another basis for the conclusion he reached. His reasoning appears at [31] of his reasons and it is presently unnecessary to address it in detail. This reasoning also drew on the temporary nature of the subject works and was to the effect that it would be incorrect to describe a contract, which requires the construction of a temporary site office, as a contract “for” carrying out the construction of that office. MMM contends that this alternative approach to the issue was wrong and should not have been adopted. However, it will be unnecessary to consider those issues unless MMM succeeds in establishing that the reasoning of this Court in MMM No 1, as followed by the primary judge in this case, was wrong and should not be followed.
[14] The primary judge found it unnecessary to rest his conclusion on the basis of a finding that none of the items became fixtures. MMM does not appeal in respect of the findings of fact made by the primary judge in respect of each of the items considered by his Honour. It is unnecessary to address them. It is sufficient to note the primary judge’s summary that:
“[T]hey are all of a kind which could be described as “temporary”, in the sense that they were not things to be erected, installed or repaired for some purpose enduring beyond the performance of the Contract. For example, they include the temporary site offices of MMM, which it was to erect but also remove (as it has done).”[14]
The issue
[15] The essential issue in the appeal is whether the decision in MMM No 1 was incorrect and should be overruled.
A temporal requirement?
[16] MMM submits that the reasoning adopted by this Court in MMM No 1, and by the primary judge in this case, imposes a temporal requirement on the operation of statutory provisions which is not present in the legislation. I do not agree. This Court did not say that temporary works are incapable of being “building work” within the meaning of the Act or that temporary works necessarily fall within an exclusion such as Item 19. Nor did the primary judge. Instead, certain works could be described as “temporary” in the sense that they were closely connected to the construction of the maritime structure, were not undertaken for any other purpose and would not endure beyond the performance of the contract. These “temporary” works had a sufficiently close relationship to the construction of the maritime structure to be work of a kind described in Item 19. Reference to their “temporary” character was a relevant consideration in applying a “broad and practical interpretation” of the item in the Regulation. The Court was not imposing a temporal requirement in the words of the Regulation where none existed.
[17] MMM argues that if the temporary character of items had the practical effect of bringing them within an exclusion such as Item 19, then there would be no need to include Item 26, which excludes the “Erection of scaffolding”, which, by its nature, is temporary. However, Item 26 does not assist in the interpretation and application of an exclusion like Item 19. A diverse range of items appear in Sch 1AA, and the reasons for their exclusion from “building work” appear to be many and varied. Some might be excluded because parties to contracts for such work are not thought to require the protection the Act gives to parties, or to be necessary to advance the public interest in safety. Other excluded items are minor, and might be thought not to require a licence to undertake. Some items may be included in Schedule 1AA out of an abundance of caution, or to avoid debate and litigation over whether the works would entail the erection or construction of a “fixed structure”. If the erection of scaffolding arguably involves a “fixed structure”, then the legislature may have made a judgment that it did not want contests over this issue and that there was no sufficient public interest in the erection of scaffolding being treated as “building work”. As with other excluded items, the legislature may have reached the conclusion that the regulation of such works be governed by other legislation or by other means.
[18] Item 26 of Sch 1AA does not support a general proposition about whether temporary structures should fall inside or outside of the definition of “building work”. Some temporary structures, such as major exhibition spaces, may do so if they fall within the definition of “building work” and do not engage one of the exclusions. The Act does not contain a general inclusion of temporary works and the Regulation does not include a general exclusion of temporary works. However, the absence of a general exclusion of temporary works by way of an item in the Regulation does not mean that the temporary character of a structure is irrelevant in determining whether its construction falls within an exclusion such as Item 19. Item 26 does not address when the construction of temporary fixed structures, such as temporary facilities, temporary supports, temporary walls and temporary roads, should be treated as falling within an exclusion such as Item 19. It does not render the temporary character of the works irrelevant to the broad and practical interpretation called for by the legislation.
Construction of maritime structures, not simply construction on maritime structures
[19] MMM also argues that this Court and the primary judge erred in construing Item 19 because, by adopting the language it did, “the legislature intended that the exception would only operate in respect of work undertaken on the maritime structure itself and not work that was physically separated from that structure.”[15] The heading to Item 19 uses the word “on”, but the item itself refers to construction “of” harbours, wharves and other maritime structures. The heading may be taken into account[16] but proper effect must be given to the words of the enactment.[17] Here, they are not limited to works “on” a physical structure, such as to limit them to works undertaken on the top of a harbour, wharf or other maritime structure. The interpretation contended for by MMM would have odd and apparently unintended results. The exclusion would only be engaged after the maritime structure was partially built, and would not apply to works such as digging a hole into a bank into which a concrete pier was to be placed at the start of a jetty. Yet work on the first stages of a jetty or other maritime structure by digging holes would ordinarily fall within the process of its construction. Construction of a wharf would normally commence before part of it emerged above the water line. MMM’s narrow construction is inconsistent with the text of Item 19 and the approach of adopting a broad and practical interpretation of such an exclusion.
[20] MMM’s approach invites an inquiry into whether the relevant work is physically separate from the structure that is to be built. On its approach, a temporary site office or a temporary shed on a bank falls outside the exclusion because it is physically separate from the harbour, wharf or other maritime structure that is being constructed. Yet Item 19 does not call for a comparison between two physical structures. The task is to characterise work as falling inside or outside the item in question. For example, the bolting together of parts of a marina that is in the process of being constructed may occur on the shore, physically separate from the marina to which it is to be attached. However, the process of bolting those parts together would be part of the construction of the marina. So too would be the construction of a temporary shed on the shore in which parts of a marina are bolted or welded together.
[21] To introduce a test of physical separation, as MMM seeks to do, would be to adopt a narrow and unjustified approach to the interpretation of the legislation and its practical application. Exclusions should not be narrowly construed since to do so would defeat the legislative purpose in enacting them. The form of exclusion in this case does not require work, such as the construction of a temporary site office, to be considered in isolation as a physical object, and for an inquiry to be undertaken whether it would be a “building” if considered in isolation. The exclusion simply poses the question of whether the construction of a temporary site office is work “of a kind” undertaken in the construction of a structure, such as a jetty or other maritime structure.
[22] A broad and practical interpretation of such an exclusion is called for, and reliance on Item 19 would be defeated if a party could point to the fact that some work was not undertaken on the jetty itself. The construction of harbours, wharves and other maritime structures necessarily require some works to be undertaken onshore. For example, stairs, gangways and other means of access by which construction workers may safely move across the site and undertake construction work will typically need to be constructed. The safety of workers and public safety may be enhancing by requiring gangways to be bolted to the ground and, on one view, such items become a “fixed structure” notwithstanding their temporary character. Such means of access have an obviously close relationship to the construction of the maritime structure.
[23] In summary, the fact that part of the work of constructing a maritime structure occurs on land, and is undertaken in an area that is physically separated from the maritime structure that is eventually constructed does not necessarily prevent the work from being part of the construction of the maritime structure, and thereby fall within Item 19.
The closeness of the relationship
[24] MMM also argues that this Court in MMM No 1, and therefore the primary judge in this case, erred in considering the closeness of the relationship between the works relied upon and the item being constructed. This is submitted to distract from the proper point of inquiry which is to ask “what is it that Parliament, by the language it has chosen, sought to exclude?”
[25] Focusing on the function of the works and concluding that they are, for example, an “integral”[18] part of the construction of the item is submitted by MMM to equate to asking whether the work is directly or indirectly required to produce the result,[19] and to replace the statutory criterion which simply asks if the work is of a kind stated in the item. However, I fail to see how a broad interpretation and practical application of the words allows one to ignore the purpose of the work, and to thereby make an assessment of the relationship between the work and the creation or construction of the physical item referred to in the relevant exclusion. Work that is an integral part of the construction of a harbour, wharf or other maritime structure and which has no other purpose would seem to have the required close relationship so as to fall within Item 19.
Legislative intent and the breadth of the exclusions
[26] MMM concedes that one may look at the purpose for which the work was done (as distinct from the subjective intentions of the parties). However, it submits that one must do so on the basis of a legislative scheme that applies to a contract that requires the carrying out of any building work, even if the contract also requires far more substantial work that falls within an exclusion. The Act and its protections are therefore to be given a broad operation, subject to what MMM described in oral submissions as “very specific carve-outs”. The exclusion or carve-out in Item 19 is not expressed to extend to works that are ancillary to or incidental to the construction, maintenance or repair of harbours, wharves and other maritime structures and, according to MMM, Item 19 should not be interpreted as if it does. According to MMM, Item 19 is directed towards “technical maritime construction work”. It differs from the ordinary skills used in the building trade. The exclusion is said not to indicate an intention to exclude work that would ordinarily be considered building work simply because it is associated with or required to be carried out under the same contract as specialised maritime construction work.
[27] I do not regard MMM No 1 as extending the exclusion in Item 19 to any work that is associated with, incidental to, or required to be carried out in order to construct a maritime structure. MMM No 1 did not treat Item 19 as comprehending all work which is directly or indirectly required to produce an item.[20] Instead, it adopted the statutory criterion and the test of asking whether the work is “of a kind” stated in the item.[21] A close relationship between the work and the creation of the end result, in that case a shiploader, was a matter taken into account in answering that general question in accordance with the accepted approach of adopting a broad and practical interpretation of the item. The primary judge in this matter applied the same approach in holding that the temporary character of the works confirmed the close relationship between the work in the installation of those items and the construction of the jetty and wharf, so that they would be work “of a kind” described in Item 19.
[28] MMM submits that Item 19 should be construed so as to achieve the purpose of the Act in regulating a contract which requires the carrying out of any building work. For instance, if a construction contract requires the carrying out of any building work in Queensland, then the contractor must hold the licence required to undertake such work and the contract is regulated by provisions such as the kind MMM seeks to invoke in this case. MMM relies on the fact that one of the Act’s objects is to regulate the building industry to ensure the maintenance of proper standards in the industry.[22] Like its predecessor, the Act seeks to prevent unlicensed builders from doing certain kinds of building work.[23] If a contractor wishes to avoid the consequences of being unlicensed, then a licence should be obtained, or the contract should be negotiated to exclude the “building work” component from it so that a licensed contractor does the “building work” under a different contract.
[29] This submission may be accepted, but it does not require an unduly narrow construction to be placed upon an exclusion such as Item 19. This is because the exclusion should be interpreted in a broad and practical way. An exclusion may apply to construction work which, if considered in isolation, might be “building work” but which is undertaken as part of the construction of a structure, such as a maritime structure. The Act regulates “building work” and the relationship between a builder and a principal, so as to maintain proper standards in the building industry and to ensure “a reasonable balance between the interests of building contractors and consumers”.[24] But this does not aid the proper interpretation of items which the legislature intended should not be regulated by the Act.
[30] MMM’s argument that a broad interpretation of the exclusion permits parties to, in effect, contract out of the protections the Act intends, is misplaced. It makes an assumption that the legislature intended all building work to be regulated by the Act, subject to narrow exclusions. In fact, the legislature provides for exclusions from the definition of “building work” and these items “should be given a reasonably liberal construction consistent with a practical application of what the legislature intended.”[25]
[31] MMM argues that seemingly inconvenient results whereby, for example, a contractor is unable to recover the contract price for the whole job under the contract because it does not have a licence to do some minor work such as building a site office, can be avoided by entry into separate contracts, one for the maritime structure, and one for the temporary site office, or by the contractor negotiating for some other licensed contractor to build the temporary site office. However, the present issue is not whether such inconvenient results can be avoided by contractual and other devices. The issue is whether the legislation should be interpreted in a way so as to produce such inconvenient results.
[32] Any party in MMM’s position which wishes to avoid the consequence of a contract being found to not be a “building contract” can seek to have what would otherwise be “building work” the subject of a separate contract.
[33] MMM seeks to derive support for its approach from the exception to Item 19 (where the maritime structures are buildings for residential purposes or are storage or service facilities). This is said to demonstrate an intention to ensure that work on structures that would normally fall within the scope of the Act’s operation are not taken outside of that protective scheme.[26] The scope of the “exception to the exclusion” was considered in MMM No 1.[27] The exception operates only where the maritime structure itself constitutes a building for residential purposes or a storage or service facility. The exception to Item 19 does not require other than a broad and practical approach to be applied in determining the kind of work that is excluded by the Regulation.
[34] MMM accepts that in determining whether work is of a kind described in an item in Sch 1AA, the item should be given a broad meaning, consistent with a practical application of what the legislature intended to be excluded from the definition of “building work”. Yet, if accepted, MMM’s submissions would give Item 19 a narrow operation, inconsistent with the legislative intent to place the construction of maritime structures outside the definition of “building work”, and therefore outside the scheme of regulation created by the Act. If MMM’s submissions were accepted, Item 19 would not apply to:
(a)works that were undertaken on land and not “on” the maritime structure that will eventually be created as a result of those construction works, including essential preparatory work on a shoreline, such as building a point of access to the place where a jetty or wharf is being constructed;
(b)works that involve the construction of a fixed structure, even one that has its sole purpose as the construction of a maritime structure, where the fixed structure is temporary and will be removed at the end of the construction process.
[35] The fact that a structure, such as a gangway that is bolted to the earth, might be a fixed structure and its construction might entail “building work” does not necessarily take such work outside the scope of an exclusion like Item 19. The inquiry is not into the physical location of the gangway or whether its construction would be “building work” under different circumstances or under a different contractual arrangement. The issue is whether its construction is part of the construction of a maritime structure.
[36] An exclusion such as Item 19 necessarily includes work that might otherwise be “building work”. It does not assist the task of interpretation to say that the legislature intended such building work to be regulated by the Act in the public interest, since the legislature enacted exclusions.
[37] This Court in MMM No 1 did not rule that all work that had some connection, however remote in terms of location, time or function, fell within Item 19. Not every prior step by way of preparation, manufacture or transportation at some distant point will constitute construction of a maritime structure even if that step is essential to, or necessary for, the end result of construction. But where works play an integral part in the construction process itself, for example by providing temporary supports or a site office at which to control the construction process, it seems appropriate to have regard to the close connection between those works and the creation of the end result.
Conclusion
[38] Whilst MMM’s written submissions accepted the established proposition that in determining whether work is “of a kind” referred to in an excluded item, a broad and practical interpretation of the item is required, the approach which it urges has the opposite effect. It precludes a practical inquiry into the closeness or otherwise of the relationship between the works relied upon and the construction of an item, such as a jetty. MMM does not advance other practical approaches in determining whether work is “of a kind” contained in the excluded item. Its insistence that work be “on” the maritime structure is unsupported by the language of the exclusion.
[39] The approach in MMM No 1 of considering the closeness or otherwise of the relationship between the works relied upon and the construction in question was appropriate. Inquiring into the closeness of the relationship between the work in question and the creation of an item, such as a maritime structure, is a practical approach. The “temporary” character of certain structures which are erected simply for the purpose of carrying out the construction and which will not endure beyond the performance of the contract, points to the closeness of the relationship. It is a relevant matter to take into account in applying the statutory test of whether work is of a kind referred to in an item in Schedule 1AA of the Regulation.
[40] This Court in MMM No 1 did not err in having regard to the nature and function of the works that were of a temporary character, and concluding that there was such a close connection between the work and the creation of a maritime structure that the work was of a kind described in Item 19. MMM has not established that the reasoning of this Court in MMM No 1 was wrong. It is unnecessary to consider the authorities about when a Court of Appeal should depart from an earlier decision.[28]
[41] Because MMM accepted that to succeed in its appeal it must establish that the decision in MMM No 1 was wrong, it is unnecessary to consider the alternative basis upon which the primary judge determined the proceeding in WICET’s favour.
[42] I would dismiss the appeal with costs.
[43] BODDICE J: I have read the reasons for judgment of Applegarth J. I agree with those reasons and the proposed order.
[1] [2014] QCA 330 (“MMM No 1”).
[2] See MMM No 1 at [6] – [16].
[3] The term “building” includes “any fixed structure”.
[4] MMM No 1 at [18].
[5] [2014] QCA 330.
[6]Monadelphous Engineering Pty Ltd & Muhibbah Construction Pty Ltd trading as Monadelphous Muhibbah Marine v Wiggins Island Coal Export Terminal Pty Ltd [2015] QSC 160.
[7] MMM No 1 at [18], [23].
[8] Ibid at [23].
[9] (1999) 15 BCL 192 at 195–196; [2000] 2 Qd R 148 at 152 [11].
[10] MMM No 1 at [24], [27].
[11] Ibid at [24].
[12] [2015] QSC 160 at [29].
[13] [2015] QSC 160 at [39].
[14] Ibid at [15].
[15] Appellant’s submissions at [17] (emphasis added).
[16] Acts Interpretation Act 1954 (Qld), s 35C.
[17] D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) [4.52]–[4.53] citing Silk Bros v State Electricity Commission (Vic) (1943) 67 CLR 1 at 16.
[18] MMM No 1 at [24], [27].
[19] Cf. MMM No 1 at [23].
[20] MMM No 1 at [23].
[21] Ibid.
[22] The Act, s 3(a)(i).
[23] Marshall v Marshall [1999] 1 Qd R 173 at 177.
[24] The Act, s 3(a)(ii)
[25] Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd (1999) 15 BCL 192 at 195–196.
[26] Appellant’s submissions at [17], T 1-7–1-8.
[27] At [21].
[28] See Nguyen v Nguyen (1990) 169 CLR 245 at 268–269; Sweeney v Volunteer Marine Rescue Currumbin Inc [2000] QCA 445; McNab Constructions Australia Pty Ltd v Queensland Building Services Authority (2011) 27 BCL 345 at [131]; Gett v Tabet (2009) 254 ALR 504 at 558 [261]–566 [295].
