Olin v Queensland Building and Construction Commission
[2017] QCAT 319
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- Unreported Judgment
- Olin v Queensland Building and Construction Commission[2017] QCAT 319
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Olin v Queensland Building and Construction Commission[2017] QCAT 319
Olin v Queensland Building and Construction Commission[2017] QCAT 319
CITATION: | Olin v Queensland Building and Construction Commission [2017] QCAT 319 |
PARTIES: | Peter James Olin (Appellant) |
v | |
Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | OCR006-17 |
MATTER TYPE: | Occupational regulation |
HEARING DATE: | 31 August 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 18 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – whether excluded individual – whether individual was director, secretary or influential person for a ‘construction company’ – where company performed building work up to six months before appointment of liquidator – where company’s only other activities were to cancel building licences and wind down company – whether company was a company that ‘directly or indirectly carries out building work or building work services’ – whether ‘carries out’ requires a company to perform building work or building work services at the time of the ‘relevant event’ – where broad interpretation of ‘carries out’ to extend to past tense of ‘carried out’ is consistent with objects of Act – where provision is protective and should be given widest possible scope – where focus is on nature of company’s activities – where company’s substantial character and focus of its activities was ‘building work’ – where company was ‘construction company’ Acts Interpretation Act 1954 (Qld), s 14A Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 56AC, Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Buckman (HC) & Son Pty Ltd v Flanagan (1974) 133 CLR 422 CIC Insurances Ltd v Bankstown Football Club Ltd (1987) 187 CLR 384 Day and Dent Constructions Pty Ltd (In Liq) v North Australian Properties Pty Ltd (1982) 150 CLR 85 Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 Harley v Department of Justice and Attorney-General [2012] QCAT 620 Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 494 Mills v Meeking (1990) 169 CLR 214 O'Brien v Gladstone Regional Council [2015] QCATA 82 PJS Development Pty Ltd v Tong [2003] QSC 337 Re Secretary, Department of Social Security and Diepenbroeck (1992) ALD 142 Secretary, Department of Social Security v Lowe (1999) 92 FCR 26 The King v Central Reference Board & Ors; ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 Uniting Church in Australia Property Trust (NSW) v Takacs [2008] NSWCA 141 Waterford v The Commonwealth (1987) 163 CLR 54 Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 Zappala Family Co. Pty Ltd v Brisbane City Council [2014] QCA 147 |
APPEARANCES:
APPLICANT: Mr P W Hackett of Counsel instructed by Colwell Wright Solicitors for Mr Peter Olin
RESPONDENT: Ms S Moody of Counsel instructed by Ms Angela Duracher, Solicitor for the Queensland Building and Construction Commission
REASONS FOR DECISION
What is this application about?
- [1]On 5 December 2016, the Queensland Building and Construction Commission classified Peter Olin as an ‘Excluded Individual’ because he was a Director, secretary or ‘influential person’ within one year of a liquidator being appointed to his company, Brisbane Joint Sealing Pty Ltd.
- [2]Because this means that Mr Olin can no longer work as a licensed builder, he has applied to the Tribunal to review the Commission’s decision.
What does the Tribunal do?
- [3]In a review application, the Tribunal’s purpose is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1] Mr Olin does not need to prove any error by the Commission in its decision – the Commission’s decision is not presumed correct.[2] The Tribunal effectively ‘stands in the shoes’ of the Commission and makes its own decision.[3]
- [4]The Tribunal may therefore confirm or amend the decision, set aside the decision and substitute its own decision or return the matter for reconsideration by the Commission.[4]
How does a person become an ‘excluded individual’?
- [5]The Commission must not grant a licence if a person is an excluded individual for a relevant event.[5]
- [6]An individual relevantly becomes excluded if a director, secretary or influential person for a construction company, within one year immediately before a ‘relevant company event’.[6]
What was the ‘relevant company event’ that led to Mr Olin being an ‘excluded individual’?
- [7]It was not disputed that:
- On or about 2 December 2016, a liquidator was appointed to BJS;
- Mr Olin was a director, secretary or influential person at the time;
- Before March 2016, BJS carried out ‘building work’ or ‘building work services’ comprised of fire certification, joint sealing and concrete repair;
- In or around March 2016, BJS ceased taking on new work;
- On or around 5 April 2016, BJS performed minor additional work of sealing joints, gutters and flashing at a previous job site;
- On or around 8 April 2016, BJS performed minor additional work and issued its final progress claim for work at another previous job site; and
- Apart from Mr Olin cancelling BJS’ building licences in November 2016, from April 2016 until appointment of the liquidator, BJS’ only activities were to sell assets and pay administrative expenses.[7]
- [8]The ‘relevant event’ here was the appointment of a liquidator to BJS.
- [9]However, Mr Olin says that because BJS did not carry out building work or building work services when the liquidator was appointed, it was not a ‘construction company’ and therefore he cannot be an ‘excluded individual’.
Is BJS a ‘construction company’ within s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld)?
- [10]A ‘construction company’ means a company that directly or indirectly carries out building work or building work services.[8]
- [11]Mr Olin submitted that BJS was not a construction company when a liquidator was appointed on 2 December 2016 because:
- It ceased carrying out building work on or around 8 April 2016; and
- It did not hold a licence after 16 November and therefore could not lawfully carry out building work or building work services.
- [12]Mr Olin submitted that the phrase ‘carries out’ is in the present tense, requiring the company to perform building work or building work services at the relevant time. He submitted that had Parliament intended to include a construction company that had formerly performed work or had ceased to perform work, it would have used the words ‘carried out’.
- [13]
At the same time it must be borne in mind that the “modern approach to statutory interpretation … (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense …”[11]
- [14]The Court of Appeal held that the fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.[12]
- [15]Although the Court of Appeal was interpreting planning documents, the same approach applies to an Act of Parliament. The interpretation that will best achieve the purpose of an Act is preferred.[13] The expression ‘carries out building work’ has a meaning derived from the Act as a whole, and having regard to the objects of the Act set out in section 3:[14]
- Objects of Act
The objects of this Act are –
- (a)to regulate the building industry –
- (i)to ensure the maintenance of proper standards in the industry; and
- (ii)to achieve a reasonable balance between the interests of building contractors and consumers; and
- (b)to provide remedies for defective building work; and
- (c)to provide support, education and advice for those who undertake building work and consumers.[15]
- [16]I am satisfied that a broad interpretation of ‘carries out’ to extend to its past tense of ‘carried out’ is consistent with these objects, whereas Mr Olin’s literal approach to confine it to its present tense does not advance them.[16] The literal rule of construction must give way to a statutory injunction to prefer a construction that would promote the purpose of an Act to one that does not, particularly where that purpose is set out in the Act.[17]
- [17]If the provision were limited to a company actively engaged in carrying out building work or building services, then a building company could easily defeat the objects of the Act and the application of the provision by winding down its operations before being liquidated. It would not matter that the company ceased building work only the day before the appointment of a liquidator, so long as it was not actively carrying out building work or building services on the actual day.[18] Builders could easily arrange their affairs to avoid the operation of the provision, rendering it otiose. That cannot be Parliament’s intent.
- [18]The provision is a protective provision: its purpose is to protect consumers, suppliers and the integrity of the industry as a whole from builders who may not be able meet their contractual and financial obligations. It is therefore reasonable to impute that the provision should be given the widest possible scope.[19]
- [19]Consistent with this purposive interpretation, I am satisfied that use of the present tense ‘carries out’ - without also expressly referring to the past tense ‘or carried out’ - merely reflects current plain English drafting[20] to use a more active tone and avoid unnecessary verbiage. An implication of this style is that a temporal limitation should not be read in to the use of the present tense.[21] It would be laborious and verbose to also have to add the past tense when Parliament’s intent is clear. Drafting in the present tense does not mean a narrow construction, but is just simpler to read.
- [20]The provision falls within Part 3A of the Act. Part 3A was designed to prevent builders unable to manage their finances from using a ‘phoenix’ company to re-emerge.[22] The provision was later amended to replace references to ‘company’ with ‘construction company’, to ensure that a builder will not be excluded if their insolvency event is the result of being a director of a company unrelated to the construction industry.[23] This suggests the focus is on the nature of the company’s activities.
- [21]The nature of BJS’ activities since its formation and up to and including some six months before the appointment of a liquidator, comprised work associated with construction or repairs to buildings or fire protection work. Other than the orderly winding down of the business, BJS never engaged in any activities other than this. BJS continued to hold its licence and could have been issued with a ‘Direction To Rectify’ throughout its existence.
- [22]
- [23]I therefore find that BJS is a ‘construction company’ within section 56AC of the Act.
What is the ‘correct and preferable’ decision?
- [24]Because Mr Olin was a Director of BJS when a liquidator was appointed, and three years have not lapsed, he is an ‘excluded individual’.[27]
- [25]The correct and preferable decision is to confirm the decision of the Queensland Building and Construction Commission dated 5 December 2016 that Peter James Olin is an excluded individual.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[2] Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8], citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
[3] O'Brien v Gladstone Regional Council [2015] QCATA 82, [18].
[4] QCAT Act, s 24.
[5] Queensland Building and Construction Commission Act 1991 (Qld), s 56AE(2).
[6] QBCC Act, s 56AC(2).
[7] Agreed Statement of Facts and Issues filed 14 July 2017.
[8] QBCC Act, s 56AC(7).
[9] [2014] QCA 147.
[10] Ibid, [55].
[11] Ibid, [55], citing CIC Insurances Ltd v Bankstown Football Club Ltd (1987) 187 CLR 384.
[12] Ibid, [56], citing Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 and Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 494.
[13] Acts Interpretation Act 1954 (Qld), s 14A.
[14] PJS Development Pty Ltd v Tong [2003] QSC 337, [5] and [8] (McMurdo J, as Her Honour then was).
[15] QBCC Act, s 3.
[16] PJS Development Pty Ltd v Tong [2003] QSC 337, [8] (McMurdo J, as Her Honour then was).
[17] Mills v Meeking (1990) 169 CLR 214 at 235; Buckman (HC) & Son Pty Ltd v Flanagan (1974) 133 CLR 422, [11].
[18] Commission’s Opening Submission dated 10 August 2017, [76] - [77].
[19] Day and Dent Constructions Pty Ltd (In Liq) v North Australian Properties Pty Ltd (1982) 150 CLR 85; Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32.
[20] Re Secretary, Department of Social Security and Diepenbroeck (1992) ALD 142, 145; Secretary, Department of Social Security v Lowe (1999) 92 FCR 26.
[21] Ibid.
[22] Explanatory Notes, Queensland Building Services Authority Amendment Bill 1999, 18.
[23] Explanatory Notes, Queensland Building and Construction Commission and Other Legislation Amendment Bill 2014, 9.
[24] The King v Central Reference Board & Ors; ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123.
[25] Uniting Church in Australia Property Trust (NSW) v Takacs [2008] NSWCA 141, [102].
[26] QBCC Act, Schedule 2, definition of ‘building work’.
[27] QBCC Act, s 56AC.