Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCATA
  3. 2018
  4. Olin v Queensland Building and Construction Commission - [2018] QCATA 167

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Olin v Queensland Building and Construction Commission[2018] QCATA 167

Olin v Queensland Building and Construction Commission[2018] QCATA 167

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Olin v Queensland Building and Construction Commission [2018] QCATA 167

PARTIES:

PETER JAMES OLIN

(appellant)

 

v

 

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL314-17

ORIGINATING
APPLICATION NO/S:

OCR006-17

MATTER TYPE:

Appeals

DELIVERED ON:

9 November 2018

HEARING DATE:

13 April 2018

HEARD AT:

Brisbane

DECISION OF:

Member Browne, Presiding
Member Traves

ORDERS:

  1. The application for leave to appeal or appeal filed 29 September 2017 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – STATUTORY CONSTRUCTION – where applicant was a director, secretary or influential person of a company – where liquidator was appointed to the company – whether appointment of a liquidator was a relevant company event – whether applicant is an excluded individual by reason of the relevant company event – whether company was a ‘construction company’ within s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) – where Queensland Building and Construction Commission declared the applicant an excluded individual – where applicant applied for a review of the decision – where Tribunal confirmed the decision – where the applicant appeals the decision – whether error of law – whether leave required if appeal raises a question of mixed fact and law – whether error in the Tribunal’s decision – statutory interpretation – meaning of ‘carries out’ in s 56AC(7) of the QBCC Act

Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 32A

Building Industry Fairness (Security of Payment) Act 2017 (Qld)

Professional Engineers and Other Legislation Amendment Act 2014 (Qld)

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

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 56AC, s 56AE, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146, s 147

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26

Coal Developments (German Creek) Pty Limited ACN 009 974 896 v Commissioner of Taxation [2007] FCA 1324

Commission of State Revenue v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651

D’Arro v Queensland Building and Construction Commission [2018] 1 QdR 204

Ericson v Queensland Building and Construction Commission [2013] QCA 391

Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628

Grain Elevators Board (Vict.) v Dunmunkle Corporation [1946] 73 CLR 70

Hunter Resources Ltd v Melville (1988) 164 CLR 234

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Kelly v R (2004) 218 CLR 216

Olin v Queensland Building and Construction Commission [2017] QCAT 319

Pickering v McArthur [2005] QCA 294

Racing Queensland Limited v Dixon [2013] QCATA 172

SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936

Vetter v Lake Macquarie City Council [2001] 202 CLR 439

APPEARANCES
& REPRESENTATION:

 

Applicant:

P Hackett instructed by Colwell Wright Solicitors

Respondent:

S Moody instructed by Queensland Building and Construction Commission Legal Services

REASONS FOR DECISION

  1. [1]
    Peter Olin can no longer work as a licensed builder because he is an ‘excluded individual for a relevant event’ under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).[1]
  2. [2]
    The decision to declare Mr Olin ‘an excluded individual’ was made by the Queensland Building and Construction Commission (the Commission) after the appointment of a liquidator to Brisbane Joint Sealing Pty Ltd (‘BJS’).[2] The decision was made on the basis that Mr Olin was a director of BJS, which was a construction company to which a liquidator had been appointed.[3] The appointment of a liquidator to BJS was considered a ‘relevant company event’[4] and the Commission’s decision to declare Mr Olin an excluded individual followed.[5]
  3. [3]
    Mr Olin applied to the Tribunal for a review of the Commission’s decision. This required the Tribunal to address questions about the proper construction of s 56AC(2) and s 56AC(7) of the QBCC Act. In particular, it required the Tribunal to address whether BJS was a ‘construction company’ within s 56AC(7). A ‘construction company’ under s 56AC(7) ‘means a company that directly or indirectly carries out building work or building work services’ (emphasis added). The Tribunal adopted a broad interpretation of the words ‘carries out’ to include both the present and past tense within s 56AC(7). The Tribunal found that BJS was a ‘construction company’ and confirmed the Commission’s decision.[6] The Tribunal ultimately found that because Mr Olin was a Director of BJS when a liquidator was appointed and three years had not lapsed, that Mr Olin was an ‘excluded individual’.[7]
  4. [4]
    Mr Olin wants to appeal the Tribunal’s decision.[8] Mr Olin says that the learned Member’s interpretation of s 56AC(7) of the QBCC Act is wrong in law.[9] Mr Olin says that the words ‘carries out’ are in the present tense and are equivalent to ‘performs’.[10] Mr Olin submits that the definition attaches to a company that ‘carries out (performs) building work services at the relevant time’.[11] Mr Olin also says that amendments made to s 56AC after the Tribunal made its decision support his submission as to the pre-amendment construction.[12] Mr Olin’s ground of appeal is framed as follows:

The learned member erred in law in construing the expression “construction company” in section 56AC(7) of the [QBCC Act] in such a way as to include [BJS] as of 2 December 2016.[13]

  1. [5]
    Mr Olin applies to set aside the Tribunal’s decision and seeks a substituted decision declaring that Mr Olin is not an excluded individual by reason of the appointment of a liquidator to BJS.[14]
  2. [6]
    Mr Olin also seeks leave to appeal only if, contrary to his submissions, the appeal is found to be one raising a question of fact only or of mixed law and fact.[15] Mr Olin addresses the established principles that apply for granting leave such as, is there a ‘reasonable argument’ that there is an error in the decision below, and an appeal is necessary to correct a ‘substantial injustice’ to the applicant caused by the error.[16] Mr Olin says that if leave is necessary, then it should be granted because there is a reasonable argument that the Tribunal fell into error.[17] Further, that he would suffer substantial injustice if the error were not corrected, that the issue is, as conceded by the Commission, important to the administration of the QBCC Act, and that it would be unjust, having regard to the time, effort and costs incurred by the parties, to refuse leave at this stage.[18]
  3. [7]
    Appeals on a question of law do not require leave. They are dealt with in s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Under s 146, the Appeal Tribunal, if satisfied there has been error in the Tribunal’s decision on a question of law, may set that decision aside. In doing so, the Appeal Tribunal may either substitute its own decision or remit the matter to the Tribunal which made the appealed decision for further consideration.[19] However, the Appeal Tribunal will only be in a position to substitute its own decision if the determination of the question of law is capable of resolving the whole matter in the appellant’s favour.[20] An appeal on a question of fact, or mixed fact and law, on the other hand, may only proceed with leave.[21] If leave is granted the Appeal Tribunal must decide the appeal by way of a rehearing pursuant to s 147 of the QCAT Act.
  4. [8]
    At the oral hearing, the Appeal Tribunal directed Mr Olin to prepare and file written submissions addressing whether the ground of appeal raised a question or law or of mixed fact and law.[22] Because s 56AC of the QBCC Act was amended after the Tribunal published its reasons, Mr Olin was also directed to provide written submissions as to which version of the QBCC Act would apply were we to proceed under s 146 or 147 of the QCAT Act.[23]

Does the appeal raise a question of law or mixed fact and law?

  1. [9]
    The distinction between errors of law and fact and therefore whether leave to appeal is necessary, is not always clear. In Racing Queensland Limited v Dixon,[24] the Deputy President said that provided the relevant appeal ground is properly framed as a question of law, the appeal should proceed before the Appeal Tribunal as of right.[25] In considering the issue in the context of statutory construction, the High Court in Vetter v Lake Macquarie City Council[26] held:

Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law.[27]

  1. [10]
    We are satisfied that Mr Olin’s sole ground of appeal raises an error of law for which leave is not necessary.[28] Mr Olin identifies no error as to the factual findings made by the learned Member. The question that arises on appeal is whether the learned Member’s construction of s 56AC, in particular his construction of the meaning of ‘construction company’ for the purposes of s 56AC, was correct.
  2. [11]
    For completeness, we have also considered Mr Olin’s written submissions addressing the ground of the appeal, in the event that we are wrong about the nature of the appeal and whether it only raises a question of law. If in fact the appeal raises a question of mixed fact and law, we are satisfied that Mr Olin has met the established principles for granting leave.[29] The question of mixed law and fact might be whether the construction of s 56AC(2) was correct and was correctly applied to the facts and circumstances surrounding BJS. We consider that a question of general importance arises in the determination of the appeal as to the proper construction of s 56AC(2) and s 56AC(7) of the QBCC Act. Further, if there is an error in the learned Member’s construction and application of s 56AC of the QBCC Act, then Mr Olin would obtain substantive relief and an injustice would need to be corrected. Accordingly, leave to appeal is otherwise granted.

Overview of the relevant statutory framework

  1. [12]
    The QBCC Act provides a statutory regime to regulate the building industry for building contractors and homeowners and the licensing of contractors working in the building industry. The Commission is responsible for administering the Act and performs functions which include the issuing, renewal and cancellation of building licences.[30] The objects of the Act are set out in s 3 and include, amongst other things, to ensure the maintenance of proper standards in the building industry and to achieve a reasonable balance between the interests of building contractors and consumers.[31]
  2. [13]
    It is unlawful for a person to perform building work unless he or she holds a contractor’s licence of the appropriate class under the QBCC Act.[32] The Commission must not grant a person a licence if the person is an ‘excluded individual for a relevant event’.[33] A relevant event can be a relevant bankruptcy event or a relevant company event. An ‘excluded individual for a relevant company event’ is a person that comes within s 56AC(2).[34]
  3. [14]
    Section 56AC of the QBCC Act, at the date of the Tribunal’s decision, relevantly provided as follows:

56AC Excluded individuals and excluded companies

…

  1. This section also applies to an individual if—
  1. a construction company, for the benefit of a creditor—
  1. has a provisional liquidator, liquidator, administrator or controller appointed; or
  2. is wound up, or is ordered to be wound up; and
  1. 3 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (relevant company event) happened; and
  2. the individual—
  1. was, when the relevant company event happened, a director or secretary of, or an influential person for, the construction company; or
  2. was, within the period of 1 year immediately before the relevant company event happened, a director or secretary of, or an influential person for, the construction company.

…

  1. If this section applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event.

…

  1. In this section—

construction company means a company that directly or indirectly carries out building work or building work services.

  1. [15]
    Section 56AC of the QBCC Act has potentially serious ramifications for a building contractor who is considered to be an ‘excluded individual’ because the provision prevents such a person from re-applying for a licence for a period of three years from the ‘relevant company event’ (relevantly, here, the appointment of a liquidator to a ‘construction company’).
  2. [16]
    Under s 56AF of the QBCC Act, if the Commission considers that a person who holds a licence is an excluded individual for a relevant event then, after taking certain prescribed steps, the Commission must cancel the person’s licence. The Commission’s decision declaring a person to be ‘an excluded individual’, is a reviewable decision before QCAT[35] upon application by the person affected by the decision.[36] The Tribunal on review effectively ‘stands in the shoes’ of the decision-maker, here the Commission, exercising the same powers as the decision-maker under the QBCC Act.[37] The Tribunal on review conducts a fresh hearing on the merits to arrive at the correct and preferable decision.[38] The Tribunal must decide the review in accordance with the QCAT Act subject to any modifying provisions in the enabling Act, which in this case is the QBCC Act.[39]
  3. [17]
    The QBCC Act, and in particular s 56AC, has been amended a number of times since it was first introduced in 1999. This has given rise to difficult issues in excluded individual cases as to which version of the relevant provision applies.[40] In this case, the Tribunal below was required to, and did, apply the QBCC Act in force at the time it made its decision, that is, as at 18 September 2017. The amendments to s 56AC introduced by the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (‘BIF Act’) and assented to on 10 November 2017 were, therefore, not relevant.  
  4. [18]
    At the hearing we raised the issue as to which version of the QBCC Act should be applied on appeal, given the BIF amendments which had been enacted after the Tribunal decision but before our decision. For instance, in proceeding under s 146 of the QCAT Act (for a question of law) and ‘substituting’ our own decision, are we to apply the current version of the QBCC Act (as amended) or the version that existed when the Tribunal made its decision. Alternatively, in proceeding under s 147 of the QCAT Act (for a question of mixed fact and law) and deciding the appeal by way of a ‘rehearing’ do we apply the current version of the QBCC Act (as amended) or the version that existed when the Tribunal made its decision.
  5. [19]
    We find that the Appeal Tribunal in proceeding under s 146(b) of the QCAT Act on a question of law, to set aside and ‘substitute’ its own decision, would apply the law applied by the Tribunal at the time the Tribunal made its decision. In arriving at this position, we accept Mr Olin’s submissions that an appeal on a question of law is limited in nature because the Appeal Tribunal is confined by s 146 as to how it may deal with the appeal.[41] Section 146, in contrast with s 147, does not provide for a rehearing of the matter, whether on the evidence below or on fresh evidence. For these reasons, an appeal under s 146 has been regarded as an appeal ‘stricto sensu’.[42] It follows, as we have outlined earlier, that the Tribunal may substitute an order under s 146 where only one conclusion is open on the correct application of the law to the facts as found by the Tribunal below. If this was not the case, it would open the door to an appeal by way of rehearing.[43] Accordingly, as the issue in an appeal under s 146 is whether the decision in the Tribunal below was right on the material before it, we find that we are required to apply the version of the QBCC Act current at the time the Tribunal below made its decision.
  6. [20]
    Similarly, the Appeal Tribunal in proceeding under s 147 of the QCAT Act on a question of mixed fact and law would also apply the version of the QBCC Act that was applied by the Tribunal at the time it made its decision. This is because the Appeal Tribunal would decide the appeal under subsection 147(2) by way of a ‘rehearing’ with or without the hearing of additional evidence as decided by the Appeal Tribunal.[44] We do not consider that the reference to ‘rehearing’ in s 147 of the QCAT Act requires us to conduct a hearing de novo in the strict sense as conducted by the Tribunal below. In arriving at this position, we accept Mr Olin’s written submission that in an appeal by way of ‘rehearing’ the task of the Appeal Tribunal remains the correction of an error in the decision below, and that reliance on legislation amended after that decision would undermine that task.[45]

The decision of the Tribunal below

  1. [21]
    In this matter, the Commission considered Mr Olin was an ‘excluded individual’ because he was a director of BJS at the time of, or within one year of, a liquidator having been appointed to BJS.[46] The Commission determined that a liquidator was appointed to BJS on 2 December 2016.[47] The reviewable decision before the Tribunal was therefore whether Mr Olin was an ‘excluded individual’. This required a consideration of s 56AC even though the Commission exercised its power under s 56AF to make the decision that Mr Olin was an excluded individual. More importantly, it was necessary for the Tribunal on review to interpret the relevant subsections 56AC(2), (4) and (7) which dictate when a person is considered an excluded individual because of a relevant company event. In particular, the learned Member had to consider whether BJS was a ‘construction company’ within s 56AC(7) when the liquidator was appointed.
  2. [22]
    The learned Member applied the QBCC Act current at the time he made his decision. The learned Member’s reasons set out the agreed facts concerning BJS and its operations prior to and at the time of the appointment of a liquidator.[48] Those facts, set out below, are not challenged on appeal:
  1. On 2 December 2016, a liquidator was appointed to BJS;
  2. From 4 February 2011 to the date of liquidation Mr Olin was a director, secretary or influential person;
  3. Before March 2016, BJS carried out ‘building work’ or ‘building work services’ comprised of fire certification, joint sealing and concrete repair;
  4. In or around March 2016, BJS ceased taking on new work;
  5. On or around 5 April 2016, BJS performed minor additional work of sealing joints, gutters and flashing at a previous job site;
  6. 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
  1. 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.
  1. [23]
    The learned Member considered whether BJS was a ‘construction company’ within s 56AC at the time a liquidator was appointed and turned his mind to the construction of s 56AC(7) and the phrase ‘carries out’. In construing the words ‘carries out’ as they appear in s 56AC(7) the Tribunal applied s 14A of the Acts Interpretation Act 1955 (Qld). The Tribunal found that an interpretation that will best achieve the purpose of the Act is preferred. The Tribunal found that the expression ‘carries out building work’ has a meaning derived from the QBCC Act ‘as a whole’, and having regard to the objects of the Act set out in s 3.[49] The Tribunal adopted a broad interpretation of the words ‘carries out’ and applied a purposive interpretation to find that use of the present tense ‘carries out’ in s 56AC(7) includes both the present and past tense. The learned Member found that the phrase ‘carries out’ to extend to its past tense of ‘carried out’ is consistent with the objects of the QBCC Act.[50]
  2. [24]
    The learned Member said at paragraph [19] (footnotes omitted):

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 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. 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.

  1. [25]
    The Tribunal found that BJS was performing work associated with the construction or repairs to buildings or fire protection work up to and including six months before the appointment of a liquidator.[51] The learned Member was satisfied that BJS’ ‘substantial character and focus of its activities’ was ‘building work’. The learned Member was satisfied that for the purposes of s 56AC(7), BJS was a ‘construction company’. The relevant paragraphs [21] to [23], inclusive, of the Tribunal’s reasons are as follows (footnotes omitted):

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.

I am satisfied that BJS’ substantial character and focus of its activities was ‘building work’. I am satisfied this is sufficient for BJS to be a ‘company that directly or indirectly carries out building work or building work services’.

I therefore find that BJS is a ‘construction company’ within section 56AC of the Act.

  1. [26]
    The Tribunal ultimately found that because Mr Olin was a director of BJS when a liquidator was appointed, and three years had not elapsed, he was an ‘excluded individual’.[52] The Tribunal found that the correct and preferable decision was to confirm the Commission’s decision dated 5 December 2016 that Mr Olin was an excluded individual.[53]

The parties’ submissions

  1. [27]
    This case involves the proper interpretation of s 56AC and, in particular, whether s 56AC(2) only applies to a company that directly or indirectly ‘carries out’ building work or building work services on the date the relevant company event occurs or whether the section applies to a company that has the character of a construction company at that date, taking into consideration its activities up to and including that date.
  2. [28]
    The difficulty arises because of the use of the words ‘carries out’ in the definition of ‘construction company’. We turn now to outline the submissions of each party.

Mr Olin’s arguments

  1. [29]
    Mr Olin says that there is an error in the learned Member’s interpretation of that definition in s 56AC(7) of the QBCC Act.[54] Mr Olin invites the Appeal Tribunal to construe the words ‘carries out’ in s 56AC(7) in the present tense. Mr Olin says that the words ‘carries out’ are equivalent to ‘performs’. Mr Olin submits that his construction of s 56AC(7) and the words ‘carries out’ in the present tense is consistent with the objects of the QBCC Act and the principles of statutory construction.[55] Mr Olin submits that the definition attaches to a company that carries out building work or building work services at the relevant time. Mr Olin submits that the agreed facts established that BJS was not carrying out such work at the time of the liquidator’s appointment and had not done so for some time.[56]
  2. [30]
    Mr Olin contends that had the legislature wished to include within the definition of a construction company, one that formerly performed building work or building work services or ceased to perform building work services at the relevant time, the words ‘carried out’ would have been used.[57] Finally, Mr Olin says that the construction of s 56AC(7) found by the learned Member has a ‘penal effect’ on the persons and entities no longer performing building work or building work services and is beyond the objects of the QBCC Act.[58]
  3. [31]
    There is a further issue raised by Mr Olin’s supplementary submissions filed at the hearing. Mr Olin says that the amendment to s 56AC(7) that came into effect after the Tribunal published its decision (the BIF amendments referred to earlier) lends weight to his argument as to its pre-amendment construction, both as a matter of language and law.[59] Mr Olin relies on the Explanatory Notes at the third reading of the Bill that later became the Building Industry Fairness (Security of Payment) Act 2017 (Qld), that amended s 56AC(2)(c) and s 56AC (7) of the QBCC Act. In particular, Mr Olin refers us to the reference in the Explanatory Notes to the definition of construction company being amended - ‘so that it now includes a company that directly or indirectly carried out building work or building work services within 2 years before a relevant company event’.[60]
  4. [32]
    The relevant extract from the Explanatory Notes at the third reading of the Bill that became the Building Industry Fairness (Security of Payment) Act 2017 (Qld)[61] is as follows:

112 Clause 271 (Amendment of s 56AC (Excluded individuals and excluded companies))

Clause 271 is amended. This clause amends the excluded individuals and excluded companies provisions of the QBCC Act.

Section 56AC(4) of the QBCC Act has been amended so that a person will not be considered an excluded individual if they can satisfy the commissioner that at the time they ceased to be an influential person, director or secretary for the construction company, the company was solvent. This amendment has been made in response to industry concerns that the extended 2 year timeframe prescribed in 56AC(2)(c)(ii) may operate harshly on some directors, secretaries and influential persons who left a company in good financial health well before it started to suffer any financial difficulties.

The definition of construction company has also been amended so that it now includes a company that directly or indirectly carried out building work or building work services within 2 years before a relevant company event. The introduction of the 2 year timeframe will prevent situations arising where a company with debts from building work claims that it is not a ‘construction company’ because when liquidators were appointed, the company ceased to carry out building work.

  1. [33]
    Mr Olin submits that the interpretation given to the pre-amendment s 56AC(7) by the learned Member would:[62]
    1. (a)
      give the previous section the same construction as the amended section:
      1. without the additional words;
      2. contrary to its literal reading; and
      3. contrary to the clear intent of the amending legislation as revealed in the Explanatory Notes; and
    2. (b)
      deprive the amendment passed by parliament of any utility.
  2. [34]
    Mr Olin relies on relevant authorities that he says support his contention that an amendment can be used to assist in the interpretation of a pre-amendment provision,[63] including the decision of the High Court in Hunter Resources Ltd v Melville.[64] In Hunter’s case, Dawson J in considering the approach by Dixon J in Grain Elevators Board (Vict) v Dunmunkle Corporation[65] accepted that it is permissible to ascertain the intention of the legislature with regard to prior legislation by reference to amending legislation.
  3. [35]
    Further, in Commission of State Revenue v Pioneer Concrete (Vic) Pty Ltd,[66] Callinan J held:

That a legislature has subsequently made particular provision to cover relevant events or circumstances may provide an indication that the legislation as earlier enacted was not intended to cover those events or circumstances at an earlier time.[67]

Mr Olin further submits that the interpretation given to the pre-amendment s 56AC(7) by the learned Member is contrary to relevant authorities.

The Commission’s arguments

  1. [36]
    The Commission submits that the main issue is whether Mr Olin is an ‘excluded individual’ pursuant to subsections 56AC(2) and (4) of the QBCC Act. This involves questions of the proper construction of subsections 56AC(2) and (7). A subsidiary issue is whether BJS was a ‘construction company’ as defined in s 56AC(7). Also relevant is at what time this question is to be determined, having regard to (in particular) the language of subsections 56AC(2)(a), (2)(c)(i) and (2)(c)(ii) of the QBCC Act.[68]
  2. [37]
    The Commission argues that the words ‘carries out building work’ in s 56AC(7) should be interpreted according to the context in which the words appear and the objects of the Act. Further, that the words ‘building work’ also take on different meanings in different sections of the QBCC Act.[69]
  3. [38]
    The Commission submits that the approach of Mr Olin, that a company has to be carrying out building work or building work services at the time of liquidation, is wrong. This, it is submitted, mischaracterises the test of whether a company is a ‘construction company’ for the purposes of s 56AC(7). The test, it is submitted, is not whether, at a given time, a company is actively engaged in carrying out building work or services but is one of characterisation which focuses on the nature of activities engaged in by the company. As to when or over what time period that test is to be applied, is said to be a question of fact that will depend on the circumstances of each case.[70] The test, it is submitted, is not a qualitative one. In other words, it does not matter that the company performs (even predominantly) other activities. When the company last performed building work or services may be relevant, for example, where a company ceased performing building work or services more than 1 year before the relevant company event because it started operating a different sort of business entirely. Finally, it is submitted that the proper characterisation of BJS is that it was a company that carried out building work or services and was thus at all material times (including up to the time the liquidator was appointed) a ‘construction company’ for the purposes of s 56AC(7) of the QBCC Act.[71]

The proper approach to the construction of s 56AC(7) in the context of s 56AC

  1. [39]
    The issue is one of statutory construction, not just of s 56AC(7) but more broadly of s 56AC, in particular of s 56AC(2) which determines when a person will be considered an excluded individual. The definition in s 56AC(7) was inserted by the Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld). The appeal concerns the meaning of the definition which depends on the context and object of s 56AC(2).[72]
  2. [40]
    It is important at the outset to recognise the function of a definition provision in the overall context of what is a substantive provision. In Kelly v R,[73]  McHugh J said:

…the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment…[O]nce…the definition applies…the only proper…course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment…[74]

  1. [41]
    A definition is an aid to the construction of the provision as a whole. As the High Court held in Gibb v Federal Commissioner of Taxation:[75] 

The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way.[76]

  1. [42]
    Further, in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd[77] McHugh J observed:

Except in rare cases, definitions are not intended to enact substantive rules of law. Their function is to aid the construction of those substantive enactments that contain the defined term or terms. Moreover, the meaning of the definition depends on the context and object of the substantive enactment.

…

In this case, therefore, the definition of “injury” is to be read into and applied in respect of s 69(1) of the Act. When that is done, the subsection, with that term defined, must be construed in the context in which it appears and in light of the objects of that Part and the Act as a whole.[78]

  1. [43]
    These principles are reflected in s 32A of the Acts Interpretation Act 1954 (Qld) which provides:

Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires.

  1. [44]
    In this appeal, therefore, the definition of ‘construction company’ is to be read into and applied in respect of s 56AC(2). When that is done, the subsection, with the term defined, must be considered in the context in which it appears and in light of the objects of Part 3A and the Act as a whole.[79]
  2. [45]
    A fundamental principle of statutory construction is that a provision must be interpreted in a way that best achieves the purpose of the Act.  This is statutorily enshrined in s 14A of the Acts Interpretation Act 1954 (Qld) which provides:

In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

  1. [46]
    In SZTAL v Minister for Immigration and Border Protection[80] the High Court said that the starting point for interpreting a statutory provision is the text itself and its context and purpose. The High Court said that context should be regarded in its widest sense and the natural and ordinary meaning of a word is preferred. Its ordinary meaning must be rejected if it is not consistent with the statute’s purpose. Kiefel CJ, Nettle and Gordon JJ said (footnotes omitted):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statue, at the same time, regard is had to its context and purpose. Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of the word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

  1. [47]
    A similar approach was applied by Kirby J in Central Bayside General Practice Association Ltd v Commissioner of State Revenue.[81] There, the central question was whether an organisation ceased to be a charity because it became reliant on Commonwealth funding. At stake was a payroll tax exemption that applied to ‘charitable’ organisations. In interpreting what ‘charity’ meant in that context Kirby J held:

The starting point is the statute. This includes its language but also the context of the contested phrase; the given reasons for the introduction of the particular provision; the light thrown on its meaning by surrounding provisions; the general purpose and object of the statute viewed in its time; and the constitutional context of the enactment of a law imposing taxation by which a state government, proposing that law, is rendered accountable to the electors.[82]

  1. [48]
    Further, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[83] the High Court held:

The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

  1. [49]
    The objects of the QBCC Act include the maintenance of proper standards within the building industry and to achieve a reasonable balance between the interests of building contractors and consumers.[84]  To facilitate those objects the Commission is given power relating to the issuing, renewal and cancellation of licences.[85]
  2. [50]
    Further, in interpreting a provision s 14B of the Acts Interpretation Act 1954 (Qld) provides that it is permissible to consider extrinsic materials capable of assisting in the interpretation as follows:
  1. if the provision is ambiguous or obscure – to provide an interpretation of it; or
  2. if the ordinary meaning leads to a result that is manifestly absurd or is unreasonable – to provide an interpretation that avoids such a result; or
  3. in any other case – to confirm the interpretation conveyed by the ordinary meaning of the provision.[86]
  1. [51]
    The purpose of the introduction of Part 3A – Excluded and Permitted Individuals and Permitted Companies was explained in the Explanatory Notes to the Queensland Building Services Authority Amendment Bill 1999. There it was said:

A major deficiency with the existing regulatory structure has been the ability of defaulting contractors to restructure their corporate structure to re-emerge as a ‘phoenix’ company following cancellation of a licence. This new part is designed to remove individuals who have demonstrated their incapacity to manage finances from the building industry for a 5-year period.[87]

  1. [52]
    The focus was therefore on removing individuals who had shown an inability to properly manage finances, whether theirs or their company’s. Section 56AC should be read in a manner which is consistent with achieving that purpose.
  2. [53]
    Section 56AC applies, relevantly, by prohibiting a person who is a director of a construction company that has a liquidator appointed for the benefit of a creditor (the ‘relevant company event’) from holding a licence for a certain period in certain circumstances.  The section also extends to a person who was a director within 1 year of the relevant event happening.[88] A person caught by s 56AC(2) is an excluded individual pursuant to  s 56AC(4). ‘Construction company’ is defined in s 56AC(7) to mean a company that ‘directly or indirectly carries out building work or building work services’.
  3. [54]
    In broad terms therefore, s 56AC is aimed at excluding directors of construction companies which go into liquidation from being directors again for such companies for the prescribed period. Some such companies may continue actively trading until the relevant event; others may wind down. There is no logical reason that the legislative intent would be to distinguish between the two circumstances. In both instances, for the section to take effect, the relevant event must occur ‘for the benefit of a creditor.’
  4. [55]
    The definition of ‘construction company’ contained in s 56AC(7), in our view, is intended to describe the character of the company as one which carries out building work or building work services. The character of the company at the date of the relevant event (the relevant date) must be ‘construction company’. Whether a company is, at that time a ‘construction company’ is not however to be determined solely by reference to its activities at the relevant date. While we agree that the characterisation assessment is to occur on the relevant date, the assessment can take into account the activities of the company up to and including that date. To put it another way, the words in the definition were not, in our view, intended to be applied so that if the company was not carrying on business or business services on the relevant date that it could not be a construction company for the purposes of s 56AC. In other words, characterisation as a construction company was not intended to depend only on what the company was doing on the date of the relevant event.
  5. [56]
    In our view, to direct attention only to the activities of the company on the relevant date would not best achieve the mischief of Part 3A and, in particular of s 56AC.
  6. [57]
    It is conceivable, of course that a ‘construction company’ may lose that character. It may, for example, carry on work in a new and different line of business over a considerable period of time. But it will not, in our opinion, lose its character as a construction company simply because at a time proximate to the relevant company event it ceases taking new work and winds its business down.
  7. [58]
    We agree with the Commission and the learned Member’s approach which permits consideration of the company’s activities up to the relevant event rather than confining it to the day of the relevant event. Such an approach is, in our view, more consistent with the purpose of s 56AC and Part 3A and with the broader objects of the QBCC Act.
  8. [59]
    The legislative history of s 56AC lends further support, in our view, to this construction.
  9. [60]
    The legislative history of a provision may inform the meaning of a statutory provision, as amended.[89]  So too may a subsequent amendment.[90] However this is not a blanket rule and whether that is so and the use to be made of the amendments will depend upon the particular amendments and the mischief they sought to address.
  10. [61]
    An analysis of the legislative history of s 56AC shows that the provision in the form it was in both prior to and after the version under consideration, would have picked up the present circumstances. In our view, and contrary to Mr Olin’s contentions, the provision in the form under consideration was intended to have a meaning consistent in effect with the versions both before and after its enactment. We turn now to outline that legislative history and in that context to address Mr Olin’s supplementary submissions.[91]
  11. [62]
    The relevant provision, immediately before the version under consideration, reads as follows:

56AC (2) This section also applies to an individual if –

  1. after the commencement of this section, a company, for the benefit of a creditor 
  1. has a provisional liquidator, liquidator, administrator or controller appointed; or
  2. is wound up, or is ordered to be wound up; and
  1. 5 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (“relevant company event”) happened; and
  2. the individual –
  1. was, when the relevant company event happened, a director or secretary of, or an influential person for, the company; or
  2. was, at any time after the commencement of this section and within the period of 1 year immediately before the relevant company event happened, a director or secretary of, or an influential person for, the company.
  1. [63]
    It will be apparent that the section took effect whether or not the ‘company’ was carrying on business at the time a liquidator was appointed, or the company was wound up.
  2. [64]
    The section was then amended to the form under consideration, such that ‘company’ was replaced by ‘construction company’. The purpose of that amendment was described in the Explanatory Memorandum, as follows:

To provide clarity, the references to ‘company’ in section 56AC have been replaced with references to ‘construction company’, which has been defined.

Defining and including the term construction company ensures that a person will not be excluded if their insolvency event is the result of their being a director of a company unrelated to the construction industry.[92]

  1. [65]
    Thus, the broad purpose of the amendment was to confine the imposition of the section to directors of companies of a particular character, namely ‘construction companies’. There is no suggestion that the amendment was intended to require that the company be carrying out building work or building work services at the time a liquidator was appointed or the company wound up.
  2. [66]
    Since then, s 56AC has been amended, as outlined earlier, by amending s 56AC(2)(c)(ii) so that the period immediately before the relevant company event during which a person was a director of the company is now two years (not one year) and by amending s 56AC(7) to include a company that, within two years immediately before the relevant company event happened ‘carries out building work or building work services’.[93]
  3. [67]
    The Explanatory Notes accompanying this amendment provided:

The definition of construction company has also been amended so that it now includes a company that directly or indirectly carried out building work or building work services within 2 years before a relevant company event. The introduction of the 2 year timeframe will prevent situations arising where a company with debts from building work claims that it is not a “construction company” because when liquidators were appointed, the company ceased to carry out building work.[94]

  1. [68]
    We disagree, as we have said, with the arguments raised on behalf of Mr Olin as to the inference to be drawn from the fact and content of these amendments. The amendment to the definition, in our view, clarified that the definition was intended to be applied so as to determine the character of a company based on its activities over time rather than directing inquiry solely to the moment of the relevant event.
  2. [69]
    We take the view, contrary to the position adopted by Mr Olin, that the latest amendments support the construction applied by the learned Member. The purpose of the provision, both in its original form and after the latest amendments, is consistent. It makes sense, in our view, that an approach to the construction of the Act in the intervening period be adopted which is consistent with the clear approach both before and after the enactment of the relevant version of s 56AC. That is particularly so where the Explanatory Memorandum for the amendment to the Act as it applied here was intended more narrowly to describe the character of the company and not to direct inquiry to the time of the relevant event.
  3. [70]
    It follows, in our view, that ‘carries out’ does not require inquiry only as to the company’s activities on the day of liquidation.

Meaning of ‘carries out’ in s 56AC(7)

  1. [71]
    In our view, for the reasons above, the meaning of ‘carries out’ in the definition of ‘construction company’ in s 56AC(7) should be read in light of the overall context and purpose of s 56AC. Section 56AC(7) is a definition provision and should not be read in such a way as to supplant the meaning of the substantive provision, namely s 56AC(2). 
  2. [72]
    Although ‘carries out’ is expressed in the present tense, in our view, properly construed, the section does not require inquiry to be directed only to the date of liquidation. The section instead requires that a characterisation assessment be performed in the present, that is, at the date a liquidator is appointed, but permits reference to past activities up to and including that date when assessing the character of the company.
  3. [73]
    Further, in our view, the construction of ‘carries out’ which should be preferred is one consistent with the substantive provision. Subsection 56AC(2)(b)(ii) imposes a ‘relation back’ period whereby a director will be caught by the provision if he or she is a director within 1 year immediately before the relevant event. In other words, the provision is not limited to capturing individuals who are directors only at the time of liquidation. In our view, an interpretation which is similarly flexible in the case of the characterisation of a construction company, should also apply.
  4. [74]
    A consideration of the activities of the company leading up to the date of the appointment of a liquidator (the date of the relevant company event) is necessary in order to determine whether the company ‘directly or indirectly carries out building work or building work services’ as provided in s 56AC(7). This requires a proper enquiry of the company’s activities leading up to and including the date of the appointment of a liquidator.
  5. [75]
    In our opinion, therefore, a wider construction of s 56AC(7) is to be preferred to a narrow construction. Section 56AC(7) is a characterisation provision designed to confine the application of s 56AC to construction companies. Schedule 2 of the QBCC Act defines ‘building work’ and ‘building work services’. Relevantly ‘building work’ means, amongst other things, the renovation, alteration, extension, improvement or repair of a building or fire protection work. ‘Building work services’ means, amongst other things, one or more of the following for building work: administration services and management services and includes arranging payment of subcontractors. Whether a company engages in these activities such that it can be characterised as a construction company should not depend upon what it was doing on one day of its existence. This would be an artificial approach and one which, in our view, does not accord with the purpose of s 56AC or of Part 3A and the QBCC Act more generally.
  6. [76]
    The learned Member found that in determining whether a company was a construction company at the date of liquidation it was relevant to consider not only the activities of the company at that point in time but also before that time. To do so was to permit the character of the company at the relevant date to be determined. We agree with that approach. In so doing however, we wish to make it clear that the mere fact that the company ‘carried out’ construction work in the past would not necessarily of itself be sufficient to give it the character of a construction company at the relevant date. The issue of whether at the relevant date the company was a construction company depends upon a broader factual enquiry, of which the company’s past activities are a part. If, contrary to our view, the learned Member’s reasons when properly understood go so far as to hold that merely because a company carried out building work in the past it was a construction company for the purposes for s 56AC then that would, in our view, have been an error. As we have said, that is not the approach, in our view, which was adopted by the learned Member.

Is BJS a construction company for the purposes of s 56AC?

  1. [77]
    Section 56AC(2)(a) takes effect in respect of an individual if a construction company, for the benefit of a creditor, has a liquidator or administrator or controller appointed or is wound up. In this case a liquidator was appointed on 2 December 2016, and for the benefit of a creditor, namely the ATO.
  2. [78]
    Mr Olin’s submission that BJS was not carrying on any business when the liquidator was appointed is misconceived. In any event whether BJS was carrying on ‘business’ is not the test. Although BJS had ceased to take on new work some six months before the appointment of a liquidator and amongst other things, let its employees go, left its leased premises, sold its assets and took steps to pay out creditors, it still had when served with the winding up petition, an ATO debt of $250,000 and a nominal amount held in its savings account. It also still had a website. BJS was still capable of being issued a direction to rectify for work performed in April 2016 and it is uncontroversial that the ATO debt was incurred in relation to invoices rendered by BJS for work performed. In our view, BJS had and retained the character of construction company at the relevant date.
  3. [79]
    It is artificial to say that just because BJS stopped trading it ceased to be a construction company. BJS was a ‘construction company’ for the purposes of s 56AC(2) when a liquidator was appointed and this was a ‘relevant company event’ for the purposes of s 56AC.
  4. [80]
    Accordingly, we find that BJS was a construction company and that characterisation remained for the purposes of s 56AC(2)(a).

Is Mr Olin an ‘excluded individual’?

  1. [81]
    We find Mr Olin to be an excluded individual under s 56AC(4) based on the application of s 56AC(2) as follows:
    1. (a)
      For the purposes of s 56AC2(a)(i) – a construction company has a liquidator appointed; and
    2. (b)
      For the purposes of s 56AC2(b) – three years have not elapsed since the appointment of a liquidator to the construction company; and
    3. (c)
      For the purposes of s 56AC(2)(c)(i) – the person (Mr Olin) was, when the liquidator was appointed to the company (BJS), ‘a director…’ for the construction company; or
    4. (d)
      For the purpose of s 56AC(2)(c)(ii) – the person (Mr Olin) was, within one year immediately before the appointment of a liquidator to the company (BJS), ‘a director…’ of the construction company.
  2. [82]
    Clearly, the subprovisions of 56AC(2) are alternative provisions. Such that, in applying the particular circumstances of the matter to the whole of the section, s 56AC(2)(c)(i) does not operate to exclude subprovision (c)(ii). For example, if, in applying s 56AC(c)(i) to the relevant circumstances, the person was not a director of the construction company when the liquidator was appointed, the relevant subprovision under s 56AC(2)(c)(ii) still applies in the alternative. Namely the person may, on the other hand, satisfy subprovision (c)(ii) if the person was, within the period of one year immediately before the liquidator was appointed, a director of the company.
  3. [83]
    It is non-contentious that Mr Olin was a director of BJS when a liquidator was appointed on 2 December 2016.[95] It is also non-contentious that BJS was, prior to March 2016, performing building work or building work services. BJS continued to perform minor additional work up until early April 2016 and issued its final progress claim for work on 8 April 2016. Up until November 2016, BJS received income from the sale of various motor vehicles it owned and it paid expenses totalling $9.09 for bank charges.[96] On 16 November 2016, Mr Olin cancelled the licences held by BJS.[97]
  4. [84]
    The transcript shows that Mr Olin did not agree as part of the agreed statement of facts that BJS carried out building work or building work services after 8 April 2016.[98] This was a matter for cross-examination at the hearing. Mr Olin does not dispute, however, that he was a director of BJS within the period of one year before the liquidator was appointed and that BJS, prior to March 2016, carried out building work or building work services.
  5. [85]
    Applying a broad interpretation to the whole of s 56AC, BJS was a construction company for the purposes of s 56AC(2)(a) when a liquidator was appointed. Mr Olin’s circumstances therefore satisfy s 56AC(2)(c)(ii). Because Mr Olin was within the period of one year before the liquidator was appointed, a director of BJS which was at that time characterised as a construction company, he is an excluded individual.
  6. [86]
    The application for leave to appeal or appeal is dismissed.

 

Footnotes

[1]  Under s 56AE of the QBCC Act, the Queensland Building and Construction Commission must not grant a person a licence if the person is an ‘excluded individual for a relevant event’. A ‘relevant event’ under Schedule 2 of the QBCC Act means a relevant bankruptcy event or a relevant company event.

[2]  Decision made on 5 December 2016 under s 56AF of the QBCC Act.

[3]  QBCC Act, s 56AC(2); s 56AC(7).

[4]  QBCC Act, s 56AC(2)(b).

[5]  Decision of the QBCC dated 5 December 2016.

[6] Olin v Queensland Building and Construction Commission [2017] QCAT 319, [23].

[7]  Ibid, [24].

[8]  Application for leave to appeal or appeal filed on 29 September 2017.

[9]  Appellant’s further submissions filed on 26 April 2018, [9].

[10]  Appellant’s submissions filed 4 December 2018, [13].

[11]  Ibid.

[12]  Appellant’s supplementary submissions filed 13 April 2018.

[13]  Ibid.

[14]  Appellant’s supplementary submissions filed 13 April 2018. See also appellant’s submissions filed on 4 December 2017, appellant’s further submissions filed on 26 April 2018 and the Appeal Tribunal Directions dated 13 April 2018 and 12 June 2018.

[15]  Appellant’s further submissions filed on 26 April 2018.

[16] Pickering v McArthur [2005] QCA 294, [3].

[17]  Ibid.

[18]  Ibid.

[19]  QCAT Act, s 146(b)(c).

[20] Ericson v Queensland Building Services Authority [2013] QCA 392, [25].

[21]  QCAT Act, s 142(3)(b).

[22] Tribunal Directions dated 13 April 2018.

[23]  Ibid.

[24]  [2013] QCATA 172.

[25]Dixon, [9].

[26]  [2001] 202 CLR 439.

[27]  Ibid, [24] and see appellant’s further submissions filed 26 April 2018.

[28] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b).

[29] Pickering v McArthur [2005] QCA 294.

[30]  QBCC Act, s 7 and for the issuing and cancellation of licences see s 34, s 56AE.

[31]  Ibid, s 3.

[32]  Ibid, s 42.

[33]  Ibid, s 56AE(a).

[34]  QBCC Act, s 56AC(4).

[35]  QBCC Act, s 86(1)(k).

[36]  Ibid, s 87.

[37]  Ibid, s 19, see Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[38]  Ibid, s 20.

[39]  Ibid, s 17.

[40]  See for example D’Arro v Queensland Building and Construction Commission [2018] 1 QdR 204.

[41]  Appellant’s further submissions filed 26 April 2018, [16].

[42]  See comments in Robertson v Airstrike Industrial Pty Ltd [2016] QCA 104, [25]-[26].

[43] Ericson v Queensland Building and Construction Commission [2013] QCA 391, [25] and, in another but similar statutory context, Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320, [20].

[44]  QCAT Act, s 147(2).

[45]  Appellant’s further submissions filed 26 April 2018.

[46]  Notice of reasons for proposed cancellation of licence dated 5 December 2016, Appeal Book, p 14.

[47]  Ibid.

[48]  Reasons, [7].

[49]  Reasons, [15].

[50]  Ibid, [16].

[51]  Ibid, [21].

[52]  Reasons, [24].

[53]  Ibid, [25].

[54]  Appellant’s submission filed 4 December 2017.

[55]  Ibid, [13] and [15].

[56]  Ibid.

[57]  Ibid.

[58]  Ibid.

[59]  Appellant’s supplementary submission filed on 13 April 2018.

[60]  Ibid, [4].

[61]  Assented to 10 November 2017.

[62]  Appellant’s supplementary submission filed on 13 April 2018.

[63]  Appellant’s supplementary submission filed on 13 April 2018.

[64]  (1988) 164 CLR 234, 254-255.

[65]  (1946) 73 CLR 70.

[66]  (2002) 209 CLR 651.

[67]Commission of State Revenue v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651, 670. See appellant’s supplementary submissions filed on 13 April 2018, [6].

[68]  Respondent’s Opening Submission dated 10 August 2017, [29]-[32].

[69]  Ibid, [64].

[70]  Respondent’s Opening Submission dated 10 August 2017, [82].

[71]  Respondent’s Opening Submission dated 10 August 2017, [87].

[72] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26, [12] (McHugh J).

[73]  [2004] HCA 12; (2004) 218 CLR 216.

[74]  Ibid, [103].

[75]  (1966) 118 CLR 628.

[76]  Ibid, 635.

[77]  [2005] HCA 26.

[78] Allianz, [12]-[13] (McHugh J).

[79]  Ibid, [13].

[80]  (2017) 91 ALR 936.

[81]  (2006) 228 CLR 168.

[82] Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168, [91].

[83]  (2009) 239 CLR 27, 46-47.

[84]  QBCC Act, s 3.

[85]  Ibid, s 7, s 34, s 56AE.

[86]Acts Interpretation Act 1954 (Qld), s 14B.

[87]  Explanatory Notes, Queensland Building Services Authority Amendment Bill 1999, 18 (clause 27).

[88]  QBCC Act, s 56AC(2)(c)(ii).

[89] Commissioner of Taxation of the Commonwealth of Australia v Word Investments Limited [2008] HCA 55.

[90]  See Gantly Pty Ltd & Ors v Phoenix International Group Pty Ltd & Anor [2010] VSC 106; Meridien AB Pty Ltd v Anor v Jackson & Ors [2014] 1 QdR 142 and the Appellant’s Supplementary Submissions filed on 13 April 2018.

[91]  Appellant’s Supplementary Submissions filed on 13 April 2018.

[92] Queensland Building and Construction Commission and Other Legislation Amendment Bill 2014, Explanatory Notes, 9.

[93]Building Industry Fairness (Security of Payment) Act 2017 (Qld).

[94]Building Industry Fairness (Security of Payment) Bill 2017, Explanatory Notes, 112, clause 271 (Amendment of s 56AC Excluded individuals and excluded companies).

[95]  Agreed statement of facts and issues, Appeal Book, p 76.

[96]  Ibid.

[97]  Ibid.

[98]  Transcript, p1-11, L15.

Close

Editorial Notes

  • Published Case Name:

    Peter James Olin v Queensland Building and Construction Commission

  • Shortened Case Name:

    Olin v Queensland Building and Construction Commission

  • MNC:

    [2018] QCATA 167

  • Court:

    QCATA

  • Judge(s):

    Member Browne, Member Traves

  • Date:

    09 Nov 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
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
1 citation
Jump To
Cite 1 - (2009) 239 CLR 27
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26
5 citations
Jump To
Cite 1 - [2005] HCA 26
Cite 2 - [2005] HCA 26
Cite 3 - [2005] HCA 26
Cite 4 - [2005] HCA 26
Cite 5 - [2005] HCA 26
Bremer Waters Pty Ltd v Ipswich City Council [2013] QCA 392
1 citation
Jump To
Cite 1 - [2013] QCA 392
Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168
2 citations
Jump To
Cite 1 - (2006) 228 CLR 168
Cite 2 - (2006) 228 CLR 168
Coal Developments (German Creek) Pty Limited ACN 009 974 896 v Commissioner of Taxation [2007] FCA 1324
1 citation
Jump To
Cite 1 - [2007] FCA 1324
Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651
3 citations
Jump To
Cite 1 - (2002) 209 CLR 651
Cite 2 - (2002) 209 CLR 651
Cite 3 - (2002) 209 CLR 651
Commissioner of Taxation of the Commonwealth of Australia v Word Investments Limited [2008] HCA 55
1 citation
Jump To
Cite 1 - [2008] HCA 55
D'Arro v Queensland Building and Construction Commission[2018] 1 Qd R 204; [2017] QCA 90
2 citations
Jump To
Cite 1 - [2018] 1 Qd R 204
Cite 2 - [2018] 1 Qd R 204
Ericson v Queensland Building Services Authority [2013] QCA 391
2 citations
Jump To
Cite 1 - [2013] QCA 391
Cite 2 - [2013] QCA 391
Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106
1 citation
Jump To
Cite 1 - [2010] VSC 106
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628
3 citations
Jump To
Cite 1 - (1966) 118 CLR 628
Cite 2 - (1966) 118 CLR 628
Cite 3 - (1966) 118 CLR 628
Grain Elevators Board (Victoria) v Dunmunkle Corporation (1946) 73 CLR 70
2 citations
Jump To
Cite 1 - (1946) 73 CLR 70
Cite 2 - (1946) 73 CLR 70
Hunter Resources Ltd v Melville (1988) 164 CLR 234
2 citations
Jump To
Cite 1 - (1988) 164 CLR 234
Cite 2 - (1988) 164 CLR 234
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Kelly v The Queen (2004) 218 CLR 216
3 citations
Jump To
Cite 1 - (2004) 218 CLR 216
Cite 2 - (2004) 218 CLR 216
Cite 3 - (2004) 218 CLR 216
Kelly v The Queen [2004] HCA 12
1 citation
Jump To
Cite 1 - [2004] HCA 12
Meridien AB Pty Ltd v Jackson[2014] 1 Qd R 142; [2013] QCA 121
1 citation
Jump To
Cite 1 - [2014] 1 Qd R 142
Olin v Queensland Building and Construction Commission [2017] QCAT 319
3 citations
Jump To
Cite 1 - [2017] QCAT 319
Cite 2 - [2017] QCAT 319
Cite 3 - [2017] QCAT 319
Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320
1 citation
Jump To
Cite 1 - (2010) 241 CLR 320
Pickering v McArthur [2005] QCA 294
3 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Cite 3 - [2005] QCA 294
Racing Queensland Limited v Dixon [2013] QCATA 172
4 citations
Jump To
Cite 1 - [2013] QCATA 172
Cite 2 - [2013] QCATA 172
Cite 3 - [2013] QCATA 172
Cite 4 - [2013] QCATA 172
Robertson v Airstrike Industrial Pty Ltd [2016] QCA 104
1 citation
Jump To
Cite 1 - [2016] QCA 104
SZTAL v Minister for Immigration and Border Protection (2017) 91 ALR 936
1 citation
Jump To
Cite 1 - (2017) 91 ALR 936
SZTAL v Minister for Immigration and Water Protection (2017) 91 ALJR 936
1 citation
Jump To
Cite 1 - (2017) 91 ALJR 936
Vetter v Lake Macquarie CC (2001) 202 CLR 439
3 citations
Jump To
Cite 1 - (2001) 202 CLR 439
Cite 2 - (2001) 202 CLR 439
Cite 3 - (2001) 202 CLR 439

Cases Citing

Case NameFull CitationFrequency
Vukobratich v Queensland Building and Construction Commission [2020] QCAT 22 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.