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JM Kelly Builders Pty Ltd v Queensland Building and Construction Commission[2018] QCAT 333

JM Kelly Builders Pty Ltd v Queensland Building and Construction Commission[2018] QCAT 333

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

JM Kelly Builders Pty Ltd & Ors v Queensland Building and Construction Commission [2018] QCAT 333

PARTIES:

JM KELLY BUILDERS PTY LTD

and

KAWANA JOINERY CO PTY LTD

and

BURNS AND TWIGG PTY LIMITED

BPM COWLRICK PTY LIMITED

(applicants)

v

QUEENSLAND BULDING AND CONSTRUCTION COMMISSSION

(respondent)

APPLICATION NO/S:

OCR099-16; OCR100-16; OCR101-16; OCR102-16; OCR103-16; OCR104-16; OCR105-16; OCR106-16; OCR107-16

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 October 2018

HEARING DATE:

26 February 2018 to 2 March 2018; 11 June 2018;
22 June 2018

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

  1. The decision of Queensland Building and Construction Commission dated 23 June 2016 to categorise JM Kelly Builders Pty Ltd as an excluded company is set aside.
  2. The decision of Queensland Building and Construction Commission dated 23 June 2016 to categorise Kawana Joinery Co Pty Ltd as an excluded company is set aside.
  3. The decision of Queensland Building and Construction Commission dated 23 June 2016 to categorise Burns and Twigg Pty Limited as an excluded company is set aside.
  4. The decision of Queensland Building and Construction Commission dated 23 June 2016 to categorise BPM Cowlrick Pty Limited as an excluded company is set aside.
  5. The decision of Queensland Building and Construction Commission dated 1 July 2016 to categorise John Geoffrey Murphy as an excluded individual is set aside.
  6. The decision of Queensland Building and Construction Commission dated 1 July 2016 to categorise JM Kelly Builders Pty Ltd as an excluded company is set aside.
  7. The decision of Queensland Building and Construction Commission dated 1 July 2016 to categorise Kawana Joinery Co Pty Ltd as an excluded company is set aside.
  8. The decision of Queensland Building and Construction Commission dated 1 July 2016 to categorise Burns and Twigg Pty Limited as an excluded company is set aside.
  9. The decision of Queensland Building and Construction Commission dated 1 July 2016 to categorise BPM Cowlrick Pty Limited as an excluded company is set aside.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – LICENSES AND REGISTRATION – OTHER MATTERS – where son in family business was entitled ‘General Manager’ but had no other formal position – whether excluded individual because he was influential – whether individual was influential person for other companies in group construction company – interpretation of words ‘control’ and ‘substantially influence’

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 3A, s 4AA, s 56AC

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24

Commissioner for Superannuation v Scott (1987) 71 ALR 408

Briginshaw v Briginshaw (1938) 60 CLR 336

Crocker v Queensland Building and Construction Commission [2015] QCAT 39

Hancock v Rinehart (2015) 106 ACSR 207

McClintock v Queensland Building Services Authority [2011] QCATA 310

Queensland Building and Construction Commission v Arthurs [2014] QCA 307

Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465

Williams v Queensland Building and Construction Commission [2015] QCATA 138

APPEARANCES & REPRESENTATION:

Applicant:

T Sullivan QC and E Goodwin, instructed by Cooper Grace Ward Lawyers

Respondent:

R Schulte and N Derrington, instructed by the Queensland Bulding and Construction Commisssion

REASONS FOR DECISION

History

  1. [1]
    Geoffrey Murphy was one of six children and grew up in straitened family circumstances in Toowoomba. After school he served a carpentry apprenticeship in the building industry. Towards the end of that apprenticeship, Geoff determined to improve his family circumstances and his future by going into business for himself.
  2. [2]
    Geoff worked with Jack Kelly in Toowoomba. He decided to drive to Rockhampton where he had heard work was available as a builder in the area had gone broke. Jack Kelly lent him 50 pounds and Geoff bought a car on hire purchase. Jack had some conditions to his loan: that he owned a percentage of any company Geoff set up and that it was called ‘JM Kelly’.[1]
  3. [3]
    Geoff was true to his word and on 5 August 1969, JM Kelly Builders Pty Ltd was incorporated. Geoff became a director and secretary of the new company on its incorporation. It was licenced by the Queensland Building Services Authority (now the Commission) in November 1972.
  4. [4]
    Burns and Twigg Pty Limited, an older company, had previously been incorporated on 31 July 1911. Geoff Murphy was appointed as a director and secretary of Burns and Twigg on 9 January 1979 and the company was licensed by the now Queensland Building and Construction Commission (‘the Commission’) on 21 January 1994.
  5. [5]
    On 6 April 1982, BPM Cowlrick Pty Limited was incorporated. Geoff Murphy was appointed as a director and secretary of BPM Cowlrick on 31 August 1987 and the company was licensed by the now Commission on 23 June 1993.
  6. [6]
    On 21 June 1979, Kawana Joinery Co Pty Ltd was incorporated. Geoff Murphy was appointed as a director and secretary of Kawana Joinery and the company was licensed by the now Commission on 21 January 1994.
  7. [7]
    Jack Kelly remained part of Geoff’s business until around the early 1990’s when Geoff bought his share out. In that same period, Geoff undertook a degree at the Harvard Business School.
  8. [8]
    On 28 July 1981 the company in the group the subject of this matter, JM Kelly (Project Builders) Pty Ltd was incorporated and on 22 February 1984, Geoff became a director and secretary. John Murphy, Geoff’s son and an applicant in these proceedings, was a director of Project Builders from 30 June 1992 to 27 April 2000.[2]
  9. [9]
    The parties agree all of these companies are ‘construction companies’ within the meaning given to that term by section 56AC(7) Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). I accept this joint submission.
  10. [10]
    As Geoff explained at the hearing of this matter when talking about JM Kelly (Project Builders) Pty Ltd:

I put all my heart and soul and everything I ever had into the company and that’s why I worked so hard and the long hours and why I protected every little bit of interest in that company, because it was all mine. My house was the only thing that was at risk, plus anything I owned. Nobody else had any skin in the game, for the want of a better word.

…

And I’m very proud of my family and my wife who has put up with me for 54 years.[3]

Events in 2016

  1. [11]
    In 2016 The JM Kelly Group was a large group of companies with building, manufacturing and building supply divisions.[4] It remains so to this day.
  2. [12]
    JM Kelly Builders Pty Ltd (hereafter ‘JM Kelly’) and JM Kelly (Project Builders) Pty Ltd (hereafter ‘Project Builders’) have carried out most of the large scale building operations within the Group.
  3. [13]
    The other companies the subject of this matter (Kawana Joinery Co Pty Ltd, Burns and Twigg Pty Limited, and BPM Cowlrick Pty Limited) provide other services within the Kelly Group but are not the main income earners for the whole.
  4. [14]
    Although a large enterprise, it remains at its heart, a family concern.
  5. [15]
    As well as John, the JM Kelly Group of companies now involves or has involved three other of Geoff’s five children and some extended family including his grandchildren and his brother. Geoff’s daughter Elizabeth Murphy is the financial controller for the Kelly Group.
  6. [16]
    In 2006, Project Builders commenced a legal action against Toga Developments No 31 Pty Ltd in relation to the ‘Swell’ project on the Gold Coast. Project Builders said it was owed around $30 million. These proceedings continued for 10 years until 2016.[5]
  7. [17]
    In this litigation, between 2013 and 2014, costs orders were made against Project Builders in excess of $3 million.[6] In September 2015, Project Builders agreed to pay Toga $170K per month for 12 months.[7]
  8. [18]
    Project Builders was also being pressed to pay substantial outstanding legal fees to its then solicitors and was in dispute with that firm concerning these fees.[8]
  9. [19]
    Five payments were made to Toga from October 2015. After that date, Geoff determined to cease paying under the costs agreement.[9]
  10. [20]
    On 16 February 2016, John Murphy obtained his Open Builder’s Licence. John had previously held an open licence from 1993 but had let it lapse in 1994.[10]
  11. [21]
    The result of the ongoing dispute with the solicitors is that on 20 April 2016, Project Builders filed a notice in the Supreme Court that a party was acting in person, advising the Court that the company was then acting through its officers.[11]
  12. [22]
    On 26 April 2016, John Murphy appeared before the Court on behalf of Project Builders in the Toga proceedings.[12] The Court noted that Project Builders had been non-compliant with previous directions and orders of the Court and if Project Builders continued not to comply with the orders, there would be a basis for Toga to apply to have the claim struck out for non-compliance.[13] On 28 April 2016, the Court further adjourned the hearing to 24 May 2016 to permit Project Builders to obtain legal representation.[14]
  13. [23]
    Around April to May 2016, Geoff Murphy started taking steps to get professional help and engaged KordaMentha Restructuring to assess Project Builders financial position and to develop strategies going forward.[15]
  14. [24]
    On the next mention of the matter on 24 May 2016, the Supreme Court ordered Project Builders to file and serve affidavits of evidence from witnesses and experts by 21 June 2016, with no further material to be filed after that without leave of the Court. If these affidavits were not filed, the action by Project Builders would be stayed.
  15. [25]
    On 31 May 2016, Geoff formally engaged KordaMentha Restructuring. They provided a report to Geoff dated 14 June 2016.
  16. [26]
    Project Builders changed its name to Collhart Investments Pty Ltd on 17 June 2016 but will continue to be called Project Builders in these reasons for clarity. Geoff said this was partly to try to preserve the goodwill of the name ‘Project Builders’.[16]
  17. [27]
    By 20 June 2016 (the day before a critical court deadline), Geoff Murphy says he had decided that it would be in the best interests of Project Builders to be placed into liquidation and he initiated the process on that day.[17]
  18. [28]
    On 26 June 2016, liquidators were appointed to Project Builders.
  19. [29]
    On 27 June 2016, John Murphy was appointed the sole director of JM Kelly Builders Pty Ltd, Burns and Twigg Pty Limited, BPM Cowlrick Pty Limited and Kawana Joinery Co Pty Ltd.

The effect of this liquidation

  1. [30]
    By notice dated 23 June 2016, the Commission informed Geoff Murphy that it proposed to cancel his QBCC licence on the basis that he was an ‘excluded individual’ under section 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) because of his role within Project Builders.
  2. [31]
    Geoff Murphy does not challenge this decision and accepts that from 23 June 2016 that he was an ‘excluded individual’ under section 56AC of the QBCC Act.
  3. [32]
    By notice dated 1 July 2016 the Commission informed John Murphy that it proposed to cancel his QBCC licence on the basis that he was also an ‘excluded individual’ under section 56AC of the QBCC Act  because of his role as General Manager.
  4. [33]
    At that time, and as a consequence of Geoff’s ongoing involvement in the Kelly Group as a consultant after his exclusion and John’s continuing management position, the Commission also considered Geoff and John to be an influential persons in JM Kelly Builders Pty Ltd, Kawana Joinery Co Pty Ltd, Burns and Twigg Pty Limited and BPM Cowlrick Pty Limited.
  5. [34]
    Because of the determinations against Geoff and John (discussed below), the other companies in the Group were also considered excluded companies. John and each of the companies sought a review of these decisions to this tribunal. There are in all nine decisions, two by each company (one for Geoff and one for John) and one by John himself. They all revolve around the same evidence concerning the actions of Geoff and John and all applications were heard together over a number of days in the tribunal.

Geoff Murphy

  1. [35]
    Four of the reviews relate to the period after exclusion that Geoff held a consultancy agreement with Kelly Builders. Under to the terms of that agreement, Geoff’s decision-making power was limited only by his lack of authority to sign documents on behalf of the company.[18] According to the terms of the agreement, it was asserted that Geoff provided ‘ad hoc’ advice when requested, which could be accepted or not by John as the sole director.[19] However, it appeared he remained an integral part of the Kelly Group.
  2. [36]
    On 12 May 2017, Geoff resigned as director of each company, his consultancy agreement was terminated and he was employed by JM Kelly Management Pty Ltd as the manager of JMK Pastoral Co Pty Ltd. He no longer works from the Group office and no longer provides consultancy services to the Group. His only involvement now is provide some factual information when requested.[20]
  3. [37]
    The previous corporate structure of the Group has also been changed and Geoff no longer holds ownership in the Group. His previous holding has now been transferred to his wife.
  4. [38]
    The Commission originally argued the change in ownership of the relevant companies was not, on its own, determinative of whether Geoff remained an influential person. The transfer of ownership and legal control of a building company to a spouse cannot be conclusive of someone’s lack of influence, because the statutory question is practical, and one of substance over form.
  5. [39]
    However, the Commission now accepts there is no evidence to suggest since his consultancy agreement was terminated, Geoff has continued to be involved with the affairs of the companies.
  6. [40]
    The Commission concludes there is no longer any clear basis upon which this Tribunal could decide that the companies are excluded companies purely because Geoff remains an excluded individual. This submission is supported by counsel for the companies.
  7. [41]
    I have no evidence before me to satisfy me that Geoff was an influential person in the companies after 12 May 2017.
  8. [42]
    I accept this submission and as I make this decision de novo, the four decisions relating to Geoff as an influential individual in the other companies of the Group will be set aside (OCR applications 100 – 103/16).

John Murphy

  1. [43]
    John joined the Kelly Group as an apprentice and rose up through the company in the roles of site manager, project manager, construction manager and finally general manager of J M Kelly and Project Builders.[21]
  2. [44]
    As noted above, on 1 July 2016, the Commission further determined, in accordance with s 56AC of the QBCC Act, that John Murphy was also an excluded individual. The Commission considered John to be an influential person in Project Builders and the other companies in the Kelly Group - JM Kelly Builders Pty Ltd, Kawana Joinery Co Pty Ltd, Burns and Twigg Pty Limited and BPM Cowlrick Pty Limited.
  3. [45]
    John and the four companies sought a review of these decisions in this tribunal, filing applications for review each on 26 July 2016.
  4. [46]
    Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) sets out the function of this tribunal on review. The tribunal may confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return the matter for reconsideration to the decision maker with directions if appropriate.[22]
  5. [47]
    The purpose of the review is to produce the correct and preferable decision and is heard and determined by way of a fresh hearing on the merits.[23]
  6. [48]
    The Tribunal’s process is inquisitorial and there is no onus of proof to be discharged by either party to the proceeding. Each party is to assist the Tribunal to come to the correct and preferable decision.[24] The Commission’s role is also that of model litigant.
  7. [49]
    What remains to be decided are the circumstances around John himself in relation to Project Builders now in liquidation and whether the other four companies are also excluded companies pursuant to section 56AC(6) of the QBCC Act by virtue of John Murphy being an ‘excluded individual’.
  8. [50]
    The outcome of this matter therefore rests on the position and involvement John had in Project Builders over the 2 years prior to 26 June 2016. Despite the position with Geoff, after consideration of the actions of John in relation to the companies, he and the companies may yet remain excluded.

Statutory framework

  1. [51]
    Before John’s position is considered, there are a number of questions to be answered concerning the law to be applied.
  2. [52]
    First, what is the applicable law? The starting point of this examination are the objects of the QBCC Act, contained in s 3, saying in particular, to ensure the maintenance of proper standards in the industry and to achieve a reasonable balance between the interests of building contractors and consumers.[25]
  3. [53]
    In pursuit of these objects, the QBCC Act outlines the circumstances in which a person becomes an ‘excluded individual’ and is unable to hold a license of a prescribed period. This applies where a construction company has a provisional liquidator, liquidator, administrator or controller appointed or is wound up, or ordered to be wound up, when 3 years have not elapsed since the event and where the individual was a director, secretary or influential person for the construction company 2 years immediately before the event.[26]
  4. [54]
    Geoff is well known in the building industry in Queensland. He had been involved in work for the Queensland Department of Health and for the Queensland Department of Education since starting the business in 1961.[27] He is known to other witnesses who appeared in this matter from Government and the Commission.
  5. [55]
    Geoff says he strongly believed the liquidation arose purely because of the one-off event being the Toga litigation and it was not indicative of any broader issues within the Kelly Group.[28]
  6. [56]
    Project Builders had three major ongoing projects as at the date of its liquidation.
  7. [57]
    John has never been part of the finance management of the Kelly Group. I accept the evidence from a number of witnesses that John’s sister Elizabeth has always handled this area.
  8. [58]
    John has never been a director or secretary of Project Builders. However during the 2 years prior to 26 June 2016 (the “event” when liquidators were appointed to Project Builders), the Commission alleges he was an influential person within the meaning of the QBCC Act.
  9. [59]
    In remaking this decision on review, John will be excluded unless he can satisfy this tribunal that either he wasn’t influential or at the time he ceased to be influential, Project Builders was solvent. John argues that he was never an influential person.
  10. [60]
    An ‘influential person’ for a company, is an individual, other than a director or secretary of the company, who is in a position to control or substantially influence the company’s conduct.[29]
  11. [61]
    Without limiting this definition, the Act explains a person may be an influential for a company if, for the purposes of this decision, the person is the general manager of the company, makes, or participates in making, decisions that affect the whole or a substantial part of the company’s business or financial standing or engages in conduct or makes representations that would cause someone else to reasonably believe the person controls, or substantially influences, the company’s business.[30]
  12. [62]
    What do the words ‘in a position to control or to… substantially influence’ a ‘company’s conduct’ mean in this context?
  13. [63]
    The applicants say that this tribunal:

…cannot establish (when making its initial decision) that someone is an influential person simply by satisfying itself that the person engaged in conduct or made representations that would cause someone else to reasonably believe the person controls, or substantially influences, the company’s business. It must still be established as an actual fact that the person in question was in a position to control or substantially influence the company.[31]

  1. [64]
    The applicants submit the tests of control or substantial influence are discrete in that a person theoretically could be in a position of substantial influence without being in a position of control. However, the proximity of the words means that the terms ‘control’ and ‘substantially influence’ should not be considered in isolation.[32] They submit the terms give each other context.
  2. [65]
    The Commission argues ‘control’ is:[33]

…understood as a concept wider than “legal” control of a company through voting rights at a general meeting or a meeting of the board, and was not to be taken to limit the scope of the section.[34] Put simply, “control” has both a legal and an “extra” legal dimension. For example, legal control comprises the control exercised by shareholder pursuant to the constitution of the company. Whereas, extra-legal control is the ability of that same shareholder to influence or dictate management policy of the company.[35] (citations in original)

  1. [66]
    In considering the meaning of the term ‘control’, I am guided by, and accept, the findings of Brereton J in Hancock v Rinehart[36] where his Honour said:

Control is concerned with decision-making, rather than proprietorship, and control, like ownership, can be indirect: there are circumstances in which those who have the ability to carry a resolution may become bound to act on the direction of another (for example, a mortgagee). The “control” requirement is directed to the ultimate power to decide how an entity acts, as distinct from beneficial ownership, and also as distinct from the delegated power of directors or officers. Although typically those who wholly own a company will control it, that is not necessarily so: it is not unknown for those entitled to exercise voting power to become bound or accustomed to exercise their voting rights in accordance with the direction of another (as would be the case, for example, if under her settlement with Mrs Rinehart, Hope were bound to vote in accordance with Mrs Rinehart’s direction). In such a case, that other person will “control” the company if he or she has a sufficient accumulation, directly or indirectly, of voting power to carry the general meeting… (emphasis added)

  1. [67]
    In my view, ‘substantial influence’ is a wider concept defined more in the actuality rather than the dissection of the words.
  2. [68]
    The Commission submits:[37]

…the additional term “substantially influence” was also, by its very definition, wider than the concept of “control”.[38] Accordingly, an influential person could include any “natural person with actual, implied, or ostensible authority and the ability thereby to affect the company’s legal relationships with others, or the ability to control or influence the conduct of the company’s affairs”. (citations in original)

  1. [69]
    The Commission further submits that it is unnecessary to prove specifically that control or substantial influence was exercised, if it could be shown that a person was in a position to substantially influence the company’s affairs if they chose to do so,[39] and that such an approach is consistent with the protective policy of Part 3A of the QBCC Act, because it ensured that persons in position of responsibility within a construction company who were in fact able to influence the conduct of the company’s affairs were not able to avoid the operation of s 56AC by contending that they did not discharge the responsibilities of their position.[40]
  2. [70]
    It is on this point that the parties differ.
  3. [71]
    The applicants submit that the mere fact someone has the actual or ostensible authority to enter into a contract for a company does not mean they are in a position to substantially influence the company’s conduct. For example, the fact that someone has authority to bind a company in a particular way does not answer whether the authority relates to the whole or a substantial part of the company’s business or to crucial decisions.[41]
  4. [72]
    They further say a person is not in a position to control or substantially influence the conduct of a company simply by virtue of having actual or ostensible authority to make day-to-day decisions that are not crucial to the company as a whole.[42]
  5. [73]
    Both parties agree that these are matters of fact – different in each case – and decided on that basis.
  6. [74]
    If I accept the view of the applicants, a person can hold themselves out to the world to be a person of substantial influence but still not in reality be in a position to substantially influence the company’s conduct.
  7. [75]
    Perhaps this is just two sides to the same question and, after all, the decision remains one of the fact and circumstance of the particular company for the two years prior to the defining event.

Matters of Credit

  1. [76]
    Having observed both the father and son for a lengthy period giving evidence, I am in a position to judge the credit of these two men. I am in no doubt that Geoff was the patriarchal head of the family and that he viewed this group of companies as his to control and the culmination of his life’s work. He confirmed this view to me in his own direct evidence,[43] and his son John corroborated this view describing his father as ‘tough but fair’ and saying ‘the company would not be – it would not have achieved the things it did over 55 years without his determination’.[44]
  2. [77]
    The anguish in having to surrender control after the liquidation was clear in Geoff’s demeanour as he gave his evidence.
  3. [78]
    John also displayed both loyalty to his father and to the family business in his answers.
  4. [79]
    Both men were clearly well versed in the circumstances and potential outcomes of the hearing. While I am satisfied that neither man sought to give evidence that was not in their view truthful, it was clear that both were endeavouring to put the events to me in a way that benefited the outcome they were seeking – that John was not an excluded individual.
  5. [80]
    By saying this, I am not implying that either man sought to give an untruthful account of events as they recalled them but rather, that they tried to answer in a way that was meant to show events or decisions in a particular light. Often the answers were either brief, vague or not directly addressing the question. It was sometimes only under direct questioning from the tribunal that it was possible to gauge the measure or personality of the man giving evidence.
  6. [81]
    For example, Geoff spent much of his evidence downplaying any decision making role of John – always in his view John acted on his instructions, except on very minor matters of daily business.
  7. [82]
    John spent much of his evidence, particularly when addressing diary notes, telling the tribunal how every decision was first run past Geoff and how he acted on his instructions, even when appearing in public arenas on behalf of Project Builders. This was so on his evidence even when it would have been reasonable for the audience to expect that he had authority to speak independently for the company, for example in the proceedings before the Supreme Court.
  8. [83]
    Whether by accident or design, the impression both men left after four days of evidence from them (two days each) was that they were both trying to present their facts in a particular way, almost in concert and almost to the point where John was portrayed as nothing other than a mouthpiece for Geoff with no independent ability to add value.
  9. [84]
    On any view of the complexity of the decisions involved in the running of a construction Group the size of the Kelly Group this is plainly not possible and downplays John’s personal abilities. The ongoing company matters were too complex and too numerous to allow Geoff to make all the decisions, even if he wanted to and delegation and independent oversight for aspects of the business by others was plainly required.
  10. [85]
    The question then becomes, did John, as General Manager make, or participate in making, decisions that affected the whole or a substantially part of the company’s business or financial standing or engage in conduct or made representations that would cause someone else to reasonably believe John controlled, or substantially influenced, Project Builder’s business.
  11. [86]
    It is necessary to look carefully at the role John undertook for the two years under examination in relation to Project Builders to determine this.
  12. [87]
    The standard of proof to be applied by this tribunal is acknowledged to be on the Briginshaw principle.[45] That is, given the serious consequences of an adverse finding the standard of proof rises as the issues become more serious and the consequences of an adverse finding more onerous.

The two years prior to the liquidation

  1. [88]
    By 2016 and under Geoff’s direction, the Kelly Group had grown into a construction company with an annual turnover of $100 million, employing or subcontracting hundreds of people in a highly competitive industry with tight profit margins. The group undertook major Government projects. JM Kelly and Project Builders were the main income earners and Project Builders held a Federal Safety Certification.
  2. [89]
    The submissions of the Commission clearly and succinctly describe the ongoing burden of this challenge for Project Builders – the challenge of making money and remaining profitable:[46]

PB’s ultimate aim was profitability and to remain in business.[47] To achieve that goal, it was required to keep its customers satisfied[48] and to maintain its reputation, its licence, and its relationship with the QBCC.[49]

Such a task was not easy. In order to have the capability and capacity to do so, PB was required to have ability to understand a client’s construction objectives, the scope of work, design intent, time frames for delivery, and effectively programme jobs to practical completion.[50] It had reputational benefits from having Geoffrey as managing director, and a good workforce,[51] but it nevertheless faced challenges with suppliers who were difficult, superintendents who were not reasonable or sufficiently skilled, and clients who would have problems with work, designs or prices.[52]

In order to maintain its business, it was also required to submit hundreds of tenders a year,[53] often looking to achieve a successful tender through price alone, but also through demonstrating the capability and capacity to complete the job to clients when non-price criteria were set out.[54] Submitting tenders was a time-consuming process that was often completed at the last minute,[55] requiring complicated estimates, including the use of consultants to programme jobs through to completion in a tender.[56]

In addition to these rigorous and difficult business requirements, PB was heavily burdened in the two years leading up to 20 June 2016 with the challenge of difficult litigation,[57] which was a drain on its financial and human resources.[58]

  1. [90]
    Geoff ran what he described as a flat organisation, this was evident when he stated: “I’ve always said that my company’s structure is as flat as you can get it. It’s just the one line. If I had my way, every chart we’d put out would just be a straight line.”[59]
  2. [91]
    One issue that arose by about 2008 was this organisational structure and inferentially, how the Group would function if Geoff were not at the helm. One major contract was lost after the expression of interest stage and the feedback from the government tenderers was that the Group was using outdated names and charts.
  3. [92]
    From this, an organisational chart was developed and used to describe the structure of Project Builders and JM Kelly (sometimes interchangeably) in the tender process.
  4. [93]
    This chart described John as the General Manager and placed him directly under Geoff and above Mick Drew as Construction Manager and then a layer of numerous project managers.[60]
  5. [94]
    It became apparent, as the men gave their evidence, that the chart did not actually reflect how the Project Builders specifically and the Kelly Group generally, was administered. In reality there was a “cabinet” arrangement where Geoff was the prime minister and John and Mick Drew were the portfolio ministers.[61] John described Mick as ‘probably more like my brother than my brother.’[62] Their offices were metres apart from Geoff and they ran an open door policy but Geoff was the final decision maker.[63] As well as these wider duties, both John and Mick ran specific projects.[64]
  6. [95]
    John gave evidence that he never aspired to be the head of the organisation or even general manager.[65] Geoff however saw him as his natural successor despite not having a succession plan - after all, this was a family business.[66] Geoff had trust and confidence in his son.[67] It was, for example, John who was the face of JM Kelly after the liquidation to negotiate the handover of existing contracts from Project Builders to JM Kelly, although I acknowledge this period was after the liquidation and outside the period to be examined in this matter.

John’s role as General Manager

  1. [96]
    John’s role as General Manager of Project Builders (prior to its liquidation) brings him within the circumstances identified by section 4AA(3) of the QBCC Act as potentially being an influential person in Project Builders. Other criteria in that subsection may also apply – that John participated in making decisions that affected the whole or a substantial part of the company’s business or financial standing or engaged in conduct or made representations that would cause someone else to reasonably believe the person controls, or substantially influences, the company’s business.
  2. [97]
    I have no doubt that John and Mick Drew participated in making some decisions in the daily life of Project Builders. The question is whether those decisions affected the whole or a substantial part of the company’s business or financial standing or engaged in conduct or made representations that would cause someone else to reasonably believe the person controls, or substantially influences, the company’s business.
  3. [98]
    The leading authority in relation to section 4AA(3)(e) of the QBCC Act is Shafron v Australian Securities and Investments Commission.[68] The High Court held:

…as the Court of Appeal rightly held, the idea of "participation" directs attention to the role that a person has in the ultimate act of making a decision, even if that final act is undertaken by some other person or persons. The notion of participation in making decisions presents a question of fact and degree in which the significance to be given to the role played by the person in question must be assessed.

…

Whether a person participates in making decisions of a particular character requires examination of what contribution that person makes to the making of a decision. As Mr Shafron submitted, again correctly, demonstrating that a person's contribution to a decision can properly be described as a "real contribution" would not be sufficient to show that the person concerned had participated in making the decision.

…

Participation in any decision of a corporation does not make a person an "officer" – the decisions in which the person participates must have the significance for the business of the corporation that the statute prescribes.

…

The conclusion that he participated in making the decision depends not only upon what he did but also upon identifying the relationship between his actions and the decision to adopt the proposal as "participation" in making the decision.”[69]

  1. [99]
    The applicants submit on the proper interpretation of subsection 4AA(3)(e) there be:[70]
    1. (a)
      more than one decision; and
    2. (b)
      that the decisions each affect the whole or a substantial part of the company’s business or financial standing.
  1. [100]
    The applicants further say this tribunal should not find this section is satisfied by:
    1. (a)
      aggregating lots of decisions that do not affect the whole or a substantial part of the company’s business or financial standing;
    2. (b)
      aggregating one decision that does affect whole or a substantial part of the company’s business or financial standing with one or more decisions that do not;
    3. (c)
      characterising everything done in the course of the business of Project Builders as a ‘decision’ of Project Builders; and finally
    4. (d)
      to ‘participate’ in the making of a decision of the relevant character, requires more than making a ‘real contribution’ to the decision.
  2. [101]
    The Commission submits the High Court relevantly held that for the purposes of this subsection, participation in making decisions of the requisite character does not require joint decision making relying on the passage quoted above. The Commission further submits the Court relevantly held in that case, that Mr Shafron, who was the company’s general-counsel and company secretary, was a person within the ambit of sub-s (b)(i) because:[71]
    1. (a)
      he was the second or third most senior executive in the company; and
    2. (b)
      he was responsible for formulating proposals for the separation of companies from the primary group of companies, presenting them to the Board, having decided what would go to the Board, and revising them upon their initial rejection by the Board; and
    3. (c)
      this was sufficient to constitute ‘participation in’ making the decision that the Board did, the Board’s decision being reactive to the proposals put up to it.
  3. [102]
    I am not convinced that either of these two opposing views of the Shafron decision are completely correct. Certainly, each supports the view put forward in submissions by the party concerned but I do not wholly accept either version. I do accept the High Court’s authority to bind me on the following analysis:
    1. (a)
      John’s role in the ultimate act of making a decision must be examined even if that final act is undertaken by some other person, as participation in making decisions is a question of fact and degree and requires examination of what contribution John made to the making of a decision.
    2. (b)
      The significance to be given to the role played by John must be assessed as demonstrating that John’s contribution to a decision can properly be described as a ‘real contribution’. It would not be sufficient to show that he had just participated in making the decision.
    3. (c)
      The decision in question must have significance for the business.
  4. [103]
    John had no power as a statutory officer or shareholder in Project Builders in the requisite period. He did not have authority to sign contracts for Project Builders.[72] He did not make a decision on the builder’s margins to be applied to tenders. He did control outgoings. He signed subcontracts on the projects he managed as long as they remained within budget.[73] Elizabeth was the financial controller for the Group and John was not involved in these matters in the main, job cost reports were access through his sister.[74] He was only really involved when his sister was away or on leave and them only on a temporary basis.[75]
  5. [104]
    Geoff made the final decision on hiring office staff and on staff salaries.[76]
  6. [105]
    Geoff had the authority over decisions concerning the Toga litigation, for example settlement decisions. I accept that John was involved in discussions concerning the Toga litigation both with the solicitors acting at the time and with the in-house counsel for the Kelly Group. There are ample examples of this in the evidence. But of itself, this is determinant only of John being the face for Project Builders on his father’s behalf. Legal professional privilege was claimed by John for much of these interactions and the diary entries redacted.
  7. [106]
    However, the large numbers of these entries indicated that John was actively involved in the conduct of the proceedings, gathering requested information it is assumed and finally appearing himself in the Supreme Court but he says, on the strict instruction of this father as director. John recounts:

I was instructed by Geoff to have carriage of the matter from around about – it ramped up from June 2015, and in those instances I was the primary contact, and I then for – and passed information back to Geoff and took instructions from Geoff, and then enacted them forward.[77]

  1. [107]
    Geoff wanted to distance himself from this litigation because of the emotional toll it was having on him. The Commission likens this as similar to the position of Mr Shafron by providing Geoff with more limited alternatives for Geoff to choose between.[78] But the direct evidence is that John did not have a free hand in the progress of this litigation. I do not assess this evidence as being similar to the Shafron circumstances. I do see Geoff buffering himself from the litigation by interceding John and can put it no higher than that.
  2. [108]
    Of all the decisions interrogated over the duration of this hearing, the decision to liquidate Project Builders stands out as one of vital significance to the business and one which, if John participated in and made a real contribution, would make him an influential person within the meaning of this legislation and later case law.
  3. [109]
    It must be viewed through the prism of the character of Geoff who, I am satisfied was the ultimate decision maker, this point however not being determinant of the matter.
  4. [110]
    The costs payments to Toga were ceased by Geoff about 15 February 2016.[79] On 16 February 2016 John obtained his Open Builder’s Licence which had been let in 1994.
  5. [111]
    On 20 April 2016, Project Builders filed a notice in the Supreme Court that a party was acting in person and on 26 April 2016 and John Murphy appeared before the Court on behalf of Project Builders in the Toga proceedings. Finally the matter was adjourned to 24 May 2016.
  6. [112]
    On 24 May the Court set a final deadline of 21 June 2016, with no further material to be filed after that without leave of the Court. If these affidavits were not filed, the action by Project Builders would be stayed. That order created a decision deadline.
  7. [113]
    Geoff sought the initial advice of KordaMentha Restructuring at this time and formally engaged them on 31 May 2016. KordaMentha Restructuring provided a report to Geoff dated 14 June 2016.
  8. [114]
    Project builders changed its name to Collhart Investments Pty Ltd on 17 June 2016.
  9. [115]
    On 20 June 2016 (the day before a critical court deadline), Geoff says he had decided that it would be in the best interests of Project Builders to be placed into liquidation and he initiated the process on that day. Liquidators were appointed to Project Builders on 26 June 2016 – the defining event. The next day John was appointed the sole director of JM Kelly Builders Pty Ltd, Burns and Twigg Pty Limited, BPM Cowlrick Pty Limited and Kawana Joinery Co Pty Ltd.
  10. [116]
    In the end, this matter comes down to my assessment of the extent and involvement of an intimate personal relationship between father and son played out in a business setting. I have had the advantage of seeing and assessing both of these men in a hearing under the stress of cross-examination.
  11. [117]
    Both men were trying to keep the family business alive and Geoff was fighting for his legacy.
  12. [118]
    The following exchange between Counsel for the Commission and Geoff on day two of his evidence is instructive:[80]

I see. So when the report from KordaMentha restructuring was provided, did you talk to John about that?‑‑‑I talked to the whole family, yes.

I see. So you talked to – when you say the whole family, who do you mean?‑‑‑I mean all my five children and my wife.

Okay. So it’s – you wouldn’t have ordinarily have spoken to them, would you?‑‑‑Well, I spoke to my family on a regular basis.

Not about ‑‑‑About what is happening. About your business decisions. About the decisions that you’re making in terms of Project Builders, for example?‑‑‑No. But I was struggling on what I was going to do in the future.

I see. And that was because you realised you were going to become an excluded person under the legislation?‑‑‑If I put it into liquidation, yes.

Now, so was it the case that there was no question really, was there, that John would have to take over Kelly Builders?‑‑‑If I put it in liquidation, that is correct.

I see. So you must have talked to John about transitioning from Project Builders to Kelly Builders?‑‑‑No. I’d only told John what I was thinking about doing and what the outcomes would be.

Okay. So did you – just so I understand it, are you saying that you told John that he would become a director of Project Builders – I beg your pardon, Kelly Builders?‑‑‑I was a little bit unclear on the directorship at the time. It was only when it was raised by the QBCC that I stood aside in both directorships.

So – I’m just trying to – so you must have had conversations with John that he was going to basically take over the construction business if you became an excluded individual. Do you agree with that?‑‑‑Yes. But that was very late in the piece. Yes.

So when we say late in the piece, when did that conversation occur?‑‑‑Well, it would have been early June when I was looking at what we were going to do going forward.

I see. And was it the case that you spoke to John about – so this is pre-20 June 2016 that you spoke to John about him becoming the general manager of a Group of companies?‑‑‑Yes.

And, I mean, he was the natural successor, wasn’t he?‑‑‑Yes.

And so just – did you sit down with John and talk to him about a plan, about what was going to happen?‑‑‑Yes.

And the reality was, wasn’t it, his role wasn’t really going to change all that much. He’d continue doing pretty much the same sort of thing, wouldn’t he?‑‑‑No.

And how would it be different?‑‑‑He had nothing to do with the financials of the company so he was going to have learn that. He had nothing to do with all of the other companies outside the building side.

I see?‑‑‑So he was going to have to deal with all of them.

I see. And he obviously had to agree to take that role on, didn’t he?‑‑‑Yes, he did.

And the reality was, wasn’t it, his role wasn’t really going to change all that much. He’d continue doing pretty much the same sort of thing, wouldn’t he?‑‑‑No.

And just so far as Project Builders is concerned, it was – so it was agreed with John that you would move the core business of Project Builders, which was these State Government contracts, across into Builders?‑‑‑I think I’ve already said that was not the core business but I certainly did say to John if I put it in liquidation I would like to move these contracts across.

Okay. And so you also discussed with him moving the plant and equipment that Project Builders had?‑‑‑I did mention to him that I believed that we would sell the plant and equipment from Project Builders to Builders.

  1. [119]
    Based on the patriarchal structure determined by Geoff and the formal control he held within the company structure, I am satisfied that Geoff was the final decision maker over the fate of Project Builders.
  2. [120]
    However, I am also satisfied on the balance of probabilities that the close personal familial relationship Geoff had with John also meant that he discussed his plan with John as early as 16 February 2016, I find this is evidenced by John obtaining his Open Builder’s Licence on 16 February 2016.
  3. [121]
    I do not place weight on the evidence of the other witnesses, most of which is in relation to a period of time outside the relevant 2 years, except for that of Mr White and Mr Lewkowicz. Mr White’s interaction with John was limited to specific projects and not in sufficient detail to comment usefully on the subject matter of this hearing.
  4. [122]
    Mr Lewkowicz, again a project manager gave evidence on his dealings specifically with Geoff and his observations of the running of the Group generally. He acknowledged Geoff as the head of the company. I accept this observation.

Findings of Fact

  1. [123]
    The following are facts agreed between the parties are accepted by this Tribunal in the absence of evidence to the contrary:
    1. (a)
      On 28 July 1981 JM Kelly (Project Builders) Pty Ltd was incorporated.
    2. (b)
      On 22 February 1984 Geoffrey Murphy was appointed as a director and secretary of Project Builders.
    3. (c)
      From 30 June 1992 until 27 April 2000 John Murphy was a director of Project Builders.
    4. (d)
      On 30 March 1993 John Murphy obtained a licence with the QBCC.
    5. (e)
      In the two years prior to and including 20 June 2016:
      1. Project Builders was a ‘construction company’ within the meaning given to that term by section 56AC(7) of the QBCC Act;
      2. Geoff Murphy was the sole director and secretary of Project Builders;
      3. John Murphy was the General Manager of Project Builders.
    6. (f)
      On 20 June 2016:
      1. Geoff Murphy, in his capacity as sole director and secretary of Project Builders, resolved to initiate the process of a creditor’s voluntary liquidation for Project Builders;
      2. liquidators were appointed to Project Builders.
    7. (g)
      By notice dated 23 June 2016 (received 28 June 2016) the QBCC informed Geoff Murphy that it proposed to cancel his QBCC licence on the basis that he was an ‘excluded individual’ under section 56AC of the QBCC Act by virtue of his role within Project Builders.
    8. (h)
      Geoff Murphy did not challenge the QBCC’s decision and accepts that from 23 June 2016 that he was an ‘excluded individual’ under section 56AC QBCC Act.
    9. (i)
      On 5 August 1969 JM Kelly Builders Pty Ltd was incorporated.
    10. (j)
      On 5 August 1969 Geoff Murphy was appointed as a director of JM Kelly Builders.
    11. (k)
      On 5 September 2003 Geoff Murphy was appointed secretary of JM Kelly Builders.
    12. (l)
      At all material times JM Kelly Builders was a ‘construction company’ within the meaning given to that term by section 56AC(7) QBCC Act.
    13. (m)
      On or about 27 November 1972 JM Kelly Builders obtained a licence with the QBCC.
    14. (n)
      By notice dated 23 June 2016 (received 28 June 2016) the QBCC notified JM Kelly Builders of its decision to categorise it as an ‘excluded company’ pursuant to section 56AC of the QBCC Act.
    15. (o)
      On 27 June 2016 John Murphy was appointed director of JM Kelly Builders.
    16. (p)
      On 21 June 1979 Kawana Joinery Co Pty Ltd was incorporated.
    17. (q)
      On 1 June 1987 Geoff Murphy was appointed as a director and secretary of Kawana Joinery.
    18. (r)
      On 23 June 1993 Kawana Joinery obtained a licence with the QBCC.
    19. (s)
      At all material times Kawana Joinery was a ‘construction company’ within the meaning given to that term by section 56AC(7) QBCC Act.
    20. (t)
      By notice dated 23 June 2016 (received 28 June 2016) the QBCC notified Kawana Joinery of its decision to categorise it as an ‘excluded company’ pursuant to section 56AC of the QBCC Act.
    21. (u)
      On 27 June 2016 John Murphy was appointed director of Kawana Joinery.
    22. (v)
      On 7 July 2016 John Murphy was appointed secretary of Kawana Joinery.
    23. (w)
      On 31 July 1911 Burns and Twigg Pty Limited was incorporated.
    24. (x)
      On 9 January 1979 Geoff Murphy was appointed as a director and secretary of Burns and Twigg.
    25. (y)
      On or about 21 January 1994 Burns and Twigg obtained a licence with the QBCC.
    26. (z)
      At all material times Burns and Twigg was a ‘construction company’ within the meaning given to that term by section 56AC(7) QBCC Act.
    27. (aa)
      By notice dated 23 June 2016 (received 28 June 2016) the QBCC notified Burns and Twigg of its decision to categorise it as an ‘excluded company’ pursuant to section 56AC of the QBCC Act.
    28. (ab)
      On 27 June 2016 John Murphy was appointed director of Burns and Twigg.
    29. (ac)
      On 7 July 2016 John Murphy was appointed secretary of Burns and Twigg.
    30. (ad)
      On 26 July 2016 Burns and Twigg applied for a review of the QBCC’s decision dated 23 June 2016 to categorise it as an ‘excluded company’.
    31. (ae)
      The current shareholders of Burns and Twigg are:
      1. GJ Murphy (a 50% shareholder holding 4000 ordinary shares as trustee);
      2. Anncorp (a 49% shareholder holding 3920 ordinary shares as trustee); and
      3. Anjuin (a 1% shareholder holding 80 ordinary shares).
    32. (af)
      From 30 June 1992 until 25 May 2017 Geoff Murphy was the sole director of Anncorp. On 29 May 2017, Geoff Murphy ceased to be a shareholder in Anncorp.
    33. (ag)
      From 18 July 1972 until 25 May 2017 Geoff Murphy was a director of GJ Murphy. On 29 May 2017, Geoff Murphy ceased to be a shareholder in GJ Murphy.
    34. (ah)
      Anjuin was placed into liquidation on 20 June 2016.
    35. (ai)
      On 6 April 1982 BPM Cowlrick Pty Limited was incorporated.
    36. (aj)
      On 31 August 1987 Geoff Murphy was appointed as a director and secretary of BPM Cowlrick.
    37. (ak)
      On 21 January 1994 BPM Cowlrick obtained a licence with the QBCC.
    38. (al)
      At all material times BPM Cowlrick was a ‘construction company’ within the meaning given to that term by section 56AC(7) QBCC Act.
    39. (am)
      By notice dated 23 June 2016 (received 28 June 2016) the QBCC notified BPM Cowlrick of its decision to categorise it as an ‘excluded company’ pursuant to section 56AC of the QBCC Act.
    40. (an)
      On 27 June 2016 John Murphy was appointed director of BPM Cowlrick.
    41. (ao)
      On 7 July 2016 John Murphy was appointed secretary of BPM Cowlrick.
    42. (ap)
      On 26 July 2016 BPM Cowlrick applied for a review of the QBCC’s decision dated 23 June 2016 to categorise it as an ‘excluded company’.
    43. (aq)
      The current shareholder of BPM Cowlrick is GJ Murphy Holdings.
    44. (ar)
      From 24 June 1992 until 25 May 2017 Geoff Murphy was the sole director and secretary of GJ Murphy Holdings. On 29 May 2017 Geoff Murphy ceased to be a shareholder in GJ Murphy Holdings.
    45. (as)
      On 16 February 2016 John Murphy obtained his Open Builder’s Licence.
    46. (at)
      Project builders changed its name to Collhart Investments Pty Ltd on 17 June 2016.

Conclusion

  1. [124]
    Having considered all of the evidence and on the balance of probabilities, I am satisfied that John Murphy was not in a position to control or substantially influence the fate of Project Builders and that those decisions were made solely by Geoff Murphy.
  2. [125]
    I accept that he did speak to John Murphy – and the other members of his family – about the decision but I have no evidence of sufficient cogency to be comfortably satisfied that the final decision to liquidate Project Builders was made by anyone other than Geoff.
  3. [126]
    However, I am satisfied that decision had been made by Geoff by 16 February 2016 although not actioned until 20 June 2016.
  4. [127]
    I am satisfied that the relationship within Project Builders was aptly described as a ‘benevolent dictatorship’ with Geoff keeping a tight rein on all the important decisions for the Kelly Group as a whole and Project Builders in particular.
  5. [128]
    I am satisfied that having weighed his options with the circumstances and pressures as they were in February 2016, Geoff embarked on a course of action designed to protect his group of companies and relieve the mounting liabilities, although it would be to his personal detriment.
  6. [129]
    I am satisfied that John Murphy was seen as Geoff’s natural successor in the family business but I am not satisfied that his participation materially affected Geoff’s decision other than to make the new structural outcome clearer for Geoff.
  7. [130]
    Then, understanding the consequences of his actions, the patriarch finally fell on his sword.
  8. [131]
    The decisions of the Commission in relation to John Murphy as an excluded person is set aside.
  9. [132]
    Geoff Murphy remains an excluded person and has not contested that decision.
  10. [133]
    I accept however there is no longer any clear basis for the companies JM Kelly Builders Pty Ltd, Kawana Joinery Co Pty Ltd, Burns and Twigg Pty Limited, BPM Cowlrick Pty Limited to be excluded on the basis of Geoff’s exclusion.
  11. [134]
    I am satisfied that the decision concerning John Murphy should be set aside and on that basis the decisions to exclude the companies JM Kelly Builders Pty Ltd, Kawana Joinery Co Pty Ltd, Burns and Twigg Pty Limited, BPM Cowlrick Pty Limited because of John’s current involvement in those companies are also set aside.

Footnotes

[1]Transcript 2-78, 35 onwards.

[2]Amended Statement of Agreed Facts and Issues, 4.

[3]Transcript 2-79, 3.

[4]Statutory declaration of Geoff Murphy dated 26 July 2016, para 8 onwards.

[5]Ibid para 42.

[6]Transcript 3-25, 42.

[7]Transcript 3-26, 2.

[8]Transcript 2-55, 5.

[9]Transcript 4-31, 32.

[10]Transcript 3-85, 25; Amended Statement of Agreed Facts and Issues, 5.

[11]Transcript 1-26, 5.

[12]Ibid 10.

[13]Transcript 1-26, 35.

[14]Transcript 1-27, 1.

[15]Ibid 10 onwards; SBOD-125, p 1852.

[16]Transcript 2-27, 25.

[17]Statutory declaration of Geoff Murphy dated 26 July 2016, para 46 onwards.

[18]FSBOD-178, p 2726, [3.2].

[19]Geoffrey Declaration, [6]-[7]; FSBOD-178, p 2726, [3.1].

[20]Geoffrey August 2017 Statement at [10]-[11].

[21]Transcript 3-16, 5.

[22]QCAT Act, s 24(1).

[23]Ibid s 20.

[24]Berthelsen v Queensland Building and Construction Commission [2016] QCAT 517, [6] applying SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [40] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) and McDonald v Director-General of Social Security (1984) 1 FCR 354, 356 (Woodward J). Overturned in Berthelsen v Queensland Building and Construction Commission [2017] QCATA 82, but not relevantly.

[25]QBCC Act, s 3(a).

[26]Ibid s 56AC.

[27]Transcript 2-79, 25-35.

[28]Ibid para 48.

[29]QBCC Act s 4AA.

[30]Ibid.

[31]Applicant’s final submissions, para 209.

[32]Commissioner for Superannuation v Scott (1987) 71 ALR 408, 412 (Fisher and Spender JJ).

[33]Commission’s final submissions, para 30.

[34]Queensland Building and Construction Commission v Arthurs [2014] QCA 307, [28] (McMeekin J, Holmes and Fraser JJA agreeing).

[35]Crocker v Queensland Building and Construction Commission [2015] QCAT 39, [10].

[36](2015) 106 ACSR 207, stated at [153]; cited with approval in Australian Securities and Investments Commission v Managed Investments Ltd (No. 9) (2016) 112 ACSR 138, [727] (Douglas J).

[37]Commission’s final submissions, para 30.

[38]c.f. TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496, 505 (Bowen CJ, Lockhart and Ellicott JJ).

[39]McClintock v Queensland Building Services Authority [2011] QCATA 310, [42]; Williams v Queensland Building and Construction Commission [2015] QCATA 138, [15].

[40]Commission’s final submissions, para 31.

[41]Applicant’s final submissions, para 235.

[42]Ibid para 239.

[43]Transcript 2-79, 3.

[44]Transcript 5-59, 15.

[45]Briginshaw v Briginshaw (1938) 60 CLR 336.

[46]Commission’s final submissions, paras 67-70.

[47]Transcript 3-17, 17-9 (John).

[48]Transcript 1-22, 27-8 (Geoffrey).

[49]Transcript 1-22, 39-40 (Geoffrey).

[50]Transcript 1-21, 10-35 (Geoffrey). 3-17, 41-45, 3-18, 1-40 (John).

[51]Transcript 3-17, 36-44 (John).

[52]Transcript 3-20 and l2-3-20, 3-6 (John).

[53]Transcript 1-70, 1-2 (Geoffrey).

[54]Transcript 1-21, 37-40 (Geoffrey); T3-18, 1-3; 3-19, 46-74-20, 1-6 (John).

[55]Transcript 3-67, 41 (John).

[56]Transcript 1-21, 37-40 (Geoffrey).

[57]Transcript 1-24, 8-10 (Geoffrey); T3-25, 8-9 (John).

[58]Transcript 3-26, 15-9, 29-34 (John).

[59]Transcript 2-87, 35.

[60]Exhibit 4,

[61]Transcript 1-57, 5 onwards.

[62]Transcript 5-55, 3.

[63]Transcript 5-52, 10 onwards; 5-55, 20.

[64]Transcript 5-55, 15.

[65]Transcript 5-59, 20.

[66]Transcript 1-38, 5.

[67]Ibid 12.

[68](2012) 247 CLR 465.

[69]Ibid para 26-31.

[70]For an analogous analysis see Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465, [27] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[71]Ibid 480-1, [28]-[31].

[72]Transcript 3-84, 25.

[73]Transcript 5-57, 40.

[74]Transcript 3-32, 5.

[75]Transcript 3-88, 40.

[76]Exhibit 1, paras 22-24, 26.

[77]Transcript 4-30, 30.

[78]Submissions of the Respondent, para 190.

[79]Transcript 4-31, 40.

[80]Transcript 2-37-38, 37 onwards.

Close

Editorial Notes

  • Published Case Name:

    JM Kelly Builders Pty Ltd & Ors v Queensland Building and Construction Commission

  • Shortened Case Name:

    JM Kelly Builders Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2018] QCAT 333

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    09 Oct 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Australian Securities and Investments Commission v Managed Investments Ltd (2016) 112 ACSR 138
1 citation
Jump To
Cite 1 - (2016) 112 ACSR 138
Berthelsen v Queensland Building and Construction Commission [2017] QCATA 82
1 citation
Jump To
Cite 1 - [2017] QCATA 82
Berthelsen v Queensland Building and Construction Commission [2016] QCAT 517
1 citation
Jump To
Cite 1 - [2016] QCAT 517
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
1 citation
Jump To
Cite 1 - [2014] QCATA 27
Commissioner for Superannuation v Scott (1987) 71 ALR 408
2 citations
Jump To
Cite 1 - (1987) 71 ALR 408
Cite 2 - (1987) 71 ALR 408
Crocker v Queensland Building and Construction Commission [2015] QCAT 39
2 citations
Jump To
Cite 1 - [2015] QCAT 39
Cite 2 - [2015] QCAT 39
Hancock v Rinehart (2015) 106 ACSR 207
2 citations
Jump To
Cite 1 - (2015) 106 ACSR 207
Cite 2 - (2015) 106 ACSR 207
McClintock v Queensland Building Services Authority [2011] QCATA 310
2 citations
Jump To
Cite 1 - [2011] QCATA 310
Cite 2 - [2011] QCATA 310
McDonald v Director-General of Social Security (1984) 1 FCR 354
1 citation
Jump To
Cite 1 - (1984) 1 FCR 354
Queensland Building and Construction Commission v Arthurs [2014] QCA 307
2 citations
Jump To
Cite 1 - [2014] QCA 307
Cite 2 - [2014] QCA 307
SBZEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
1 citation
Jump To
Cite 1 - (2006) 228 CLR 152
Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465
4 citations
Jump To
Cite 1 - (2012) 247 CLR 465
Cite 2 - (2012) 247 CLR 465
Cite 3 - (2012) 247 CLR 465
Cite 4 - (2012) 247 CLR 465
TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496
1 citation
Jump To
Cite 1 - (1982) 42 ALR 496
Williams v Queensland Building and Construction Commission [2015] QCATA 138
2 citations
Jump To
Cite 1 - [2015] QCATA 138
Cite 2 - [2015] QCATA 138

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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