Versace v Cumner Contracting Pty Ltd
[2004] QDC 228
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- Unreported Judgment
- Versace v Cumner Contracting Pty Ltd[2004] QDC 228
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Versace v Cumner Contracting Pty Ltd[2004] QDC 228
Versace v Cumner Contracting Pty Ltd[2004] QDC 228
DISTRICT COURT OF QUEENSLAND
CITATION: | Versace v Cumner Contracting Pty Ltd [2004] QDC 228 |
PARTIES: | LAWRENCE IGNATIUS VERSACE Appellant/Defendant v CUMNER CONTRACTING PTY LTD Respondent/Plaintiff |
FILE NO/S: | Appeal 388/04; M15824/02 Brisbane |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 9 August 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 July 2004 |
JUDGE: | McGill DCJ |
ORDER: | Appeal dismissed with costs. |
CATCHWORDS: | BUILDING AND ENGINEERING CONTRACTS – Breach – Damages – action for in Magistrates Court – whether required to be begun again in Commercial and Consumer Tribunal INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – whether proceeding required to be started again in tribunal – whether a “domestic building dispute” – whether provision retrospective WORDS AND PHRASES – “building contractor”. Commercial and Consumer Tribunal Act 2003 s40(1). Queensland Building Services Authority Act 1991 s77(1); Schedule 2 “building dispute”, “building contractor”. Builders’ Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 – applied. Caplygin v Martin Fiebig Homes Pty Ltd & Ors [2003] QSC 382 – not followed. Hope v Bathurst City Council (1980) 144 CLR 1 – cited. Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 – applied. |
COUNSEL: | S J Armitage for the appellant S S W Couper QC for the respondent |
SOLICITORS: | Quinn & Scattini solicitors for the appellant Toogoods solicitors for the respondent. |
- [1]The Commercial and Consumer Tribunal Act 2003 (“the CCT Act”) commenced on 1 July 2003. Section 40(1) of the CCT Act provides: “If a proceeding is started in a court and the proceeding could be heard by the tribunal under this Act, the court must order the entity who started the proceeding to start the proceeding again before the tribunal under s31.” The appellant, the defendant in a proceeding in the Magistrates Court, applied to a magistrate for an order under this subsection, on the ground that the claim advanced in the proceeding was one which could be heard by the tribunal. However, the magistrate refused the application, hence this appeal.
- [2]The appellant submitted the order should have been made as sought. The respondent submitted that the order could not have been made under this section, for two reasons:
- (a)the proceeding was not one which could be heard by the tribunal; and
- (b)the proceeding had been started in the Magistrates Court prior to the commencement of the CCT Act, and s40(1) did not apply to such a proceeding.
Both of these points were fully argued, and in case it may be relevant elsewhere, I shall deal with both of them, although either would be a sufficient ground for dismissing the appeal.
Could the tribunal hear the proceeding?
- [3]The respondent’s claim in the proceeding in the Magistrates Court was for $13,711.50 as money due and payable by the appellant in respect of work done and labour and services provided, plus interest and costs. It was alleged in the statement of claim, and admitted in the defence, that the plaintiff carried on the business of earthmoving, and had provided a quotation to the defendant for bulk excavation works to be carried out at a particular address. It alleged that the defendant had accepted the quotation and requested the plaintiff to carry out the earthworks, which the plaintiff had done, as well as some additional work, but the defendant had not paid the plaintiff for the work except for one small amount for which credit was given, and the balance was claimed. The defendant disputed that the quote had been accepted but submitted that there was an agreement between the parties for work to be done on some other basis, as a result of which a smaller amount was payable. There was also a counter-claim for damages for breach of what was alleged to have been the true agreement between the parties, for an amount which still appears to be some $4,500 less than the amount admitted to be owing to the plaintiff.
- [4]Section 8(1) of the CCT Act provides that the tribunal has jurisdiction to deal with the matters it is empowered to deal with under that Act or an empowering Act. The appellant relied on the Queensland Building Services Authority Act 1991 (“the QBSA Act”) as the relevant empowering Act. Section 77(1) of the QBSA Act provides: “A person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute.” The relevant “tribunal” is that established by the CCT Act, and it seems to follow that if the dispute between the plaintiff and the defendant amounts to a “building dispute” for the purpose of that provision, the dispute could be heard by the tribunal under the CCT Act. The crucial question therefore becomes whether this is a “building dispute” for the purpose of that section.
- [5]The term “building dispute” is defined in the QBSA Act in schedule 2 as including, relevantly, a “domestic building dispute”. That term is also defined in schedule 2 of that Act, and the appellant relied on paragraph (b) of that definition, on the basis that this was: “A claim or dispute arising between two or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.” The term “reviewable domestic work” is also defined in schedule 2 as “domestic building work under the Domestic Building Contracts Act 2000 except that for applying s 8(8) of that Act, the definition ‘excluded building work’ in that Act is taken not to mean anything mentioned in paragraph (b), (c) or (d) of the definition.” The Domestic Building Contracts Act 2000 (“the DBC Act”) defines “domestic building work” in s8, as including the renovation alteration extension improvement or repair of a home: subsection (1)(b).[1] By subsection(3) “domestic building work” includes work associated with the renovation alteration extension improvement or repair of a home, and by subsection (4) associated work includes landscaping. There are some exclusions from domestic building work but none of them would exclude earthmoving or excavation. It was not disputed by Senior Counsel for the respondent that the work the subject of the claim was domestic building work within the definition of s 8 of the DBC Act, and therefore “reviewable domestic work” for the purposes of the QBSA Act.
- [6]The respondent submitted that the definition of “domestic building dispute” was not satisfied, however, because the claim or dispute was not “between two or more building contractors”. It was not disputed that the appellant was a building contractor for the purposes of this provision, but it was submitted that the respondent was not.
- [7]Unsurprisingly, the term “building contractor” is also defined in schedule 2 to the QBSA Act, as follows: “‘Building contractor’ means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor.” Senior Counsel for the respondent submitted that it was relevant to consider only the second part of this definition. However, I do not think that is correct. This definition does not appear to be dependent upon the circumstances of a particular case, at least in relation to the first part of the definition. The question is whether the person “carries on a business that consists of or includes carrying out building work”, and that definition is directed to the business carried on by the person, rather than what was being done by the person on the particular occasion which gave rise to the dispute.
- [8]The concept of carrying on a business involves an element of repetition and continuity, as well as the proposition that the work is being done for reward.[2] A person may do a particular piece of building work, which amounts to reviewable domestic work for the purposes of the definition of domestic building dispute, without necessarily being a building contractor, and conversely a person may be a building contractor even though what was being done in a particular case did not amount to “building work” for the purposes of the definition of “building contractor” in schedule 2 of the QBSA Act.
- [9]Part of the reason who this is so complicated is that the term “building work” in the QBSA Act is defined in a way which is different from the definition of “building work” in the DBC Act, which is picked up by the definition of “reviewable domestic work” in the QBSA Act, although there is some language which is to some extent similar. Significantly for present purposes, it is defined so as not to include “work of a kind excluded by regulation from the ambit of this definition.” The corresponding provision in the DBC Act, s 8(8) excludes particular type of work identified in the definition of “excluded building work” in schedule 2 of the DBC Act.
- [10]Senior Counsel for the respondent relied on regulation 5(1)(zb) of the Queensland Building Services Authority Regulation 2003, which provides that “work consisting of earthmoving and excavating” is not building work for the definition of “building work” in schedule 2 of the Act. However, that regulation commenced only on 1September 2003, and the dispute between the parties had occurred, the proceeding had been started, and the CCT Act had commenced before then. Prior to the 2003 regulation the relevant regulation was the Queensland Building Services Authority Regulation 1992, of which (from 1994) s 3A provided that certain work was excluded from the definition of “building work” in the Act, including “work consisting of earthmoving and excavating.”[3] It appears to follow that at all material times earthmoving and excavating work was excluded from the definition of “building work” for the purposes of the QBSA Act. On the other hand, it was not excluded from the definition of “building work” for the purposes of the DBC Act.
- [11]If therefore the respondent’s business consisted only of carrying on excavating and earthmoving work, that was not “building work” for the purpose of that term in the definition of “building contractor” in schedule 2 of the QBSA Act, so that the respondent was not a building contractor on that basis. In addition, a subcontractor who carried out excavation and earthmoving work for a building contractor is not included in the definition of “building contractor” by the second part of that definition. It follows that if one applies the definition of “building contractor” in schedule 2, and the definition of “building work” in schedule 2, of the QBSA Act, the respondent was not a building contractor simply because it carried on the business of earthmoving, and undertook bulk excavation works for the appellant.
- [12]It was submitted on behalf of the appellant that when interpreting the definition of “domestic building dispute” it is not appropriate to use a different definition of “building work” for determining whether the parties to the dispute were building contractors from the definition used to determine whether the dispute was one in relation to the performance of “reviewable domestic work”. I entirely agree that at first glance the notion that there would be different definitions of “building work” for the interpretation of these different parts of the one definition is a surprising outcome, but the difficulty is that the QBSA Act itself uses different chains of definitions for the term “building contractor” and the term “reviewable domestic work”, which lead away from each other rather than being consistent. Although both of them ultimately end up involving the expression “building work”, if one follows the chains specified in the definitions, one leads inexorably to the definition of that term in the QBSA Act, while the other leads just as inevitably to the definition of that term in the DBC Act. And those definitions are different.
- [13]No doubt there are reasons, possibly good reasons, for these differences. The functions of the Acts are different, and I expect when each is consulted in relation to a matter which is dealt with exhaustively within that particular Act the relevant definition is quite adequate and the Act works satisfactorily. The difficulty arises because of the way in which the jurisdiction of the tribunal under the CCT Act is set up, and the legislative history behind it. This is the third attempt in relatively recent years by the legislature to set up a tribunal to deal with building disputes in a way which is just, fair, informal, cost efficient and speedy.
- [14]Initially the Building Tribunal was set up under the QBSA Act, but in 2000 a separate Act, the Queensland Building Tribunal Act 2000, was passed dealing specifically with the Building Tribunal. That Act contained a definition of “building work” in s 7, and the explanatory notes for the Bill which became that Act said in relation to clause 7 (p.13): “The definition [of building work] reflects the definition in the existing [QBSA] Act, but has a more restricted list of exclusions. These exclusions are set out by regulation under the existing Act. The reason for the divergence in definitions between the Bill and the existing Act is that the definition of building work in the existing Act prescribes the work for which a licence must be obtained, whereas the definition here affects the jurisdiction of the tribunal to hear and decide building disputes. Disputes arising from some work for which a licence is not required – such as electrical work – are none the less appropriately dealt with by the tribunal.”
- [15]Electrical work under the Electricity Act 1994 was excluded from the definition “building work” in the QBSA Act by s 3A(1)(p) of the Queensland Building Services Authority Regulation 1992[4] but there was no corresponding exclusion in the list of things excluded from the definition “building work” in s 7(3) of the Queensland Building Tribunal Act 2000.
- [16]Unfortunately when the Queensland Building Tribunal Act was repealed and replaced with the CCT Act that Act did not deal in the same detail with this particular aspect of the tribunal’s jurisdiction, and it was necessary for provisions to be put back into the QBSA Act for that purpose. In that process the legislature appears to have lost track of the distinction drawn in that explanatory note, or perhaps merely failed to recognise that the definition of “domestic building dispute” picked up two separate and different definitions of “building work” under different statutes. It does appear, in short, that the legislation contains a drafting error, but it is not in my opinion a legitimate function of a court, under the guise of construction of legislation, to correct drafting errors. That is a legislative, not a judicial, function. The relevant parts of the Acts are not unclear or ambiguous, and effect must be given to their terms as enacted.
- [17]In any case, this is not a matter where I might be tempted to strain the language to do justice. There is something wrong with this whole process at a much more fundamental level. The determination of what is or is not building work, under either of the definitions, can be a very difficult factual issue, because of the extreme complexity of both definitions. There are a large number of inclusive provisions, and, particularly under the regulation, a large number of exclusionary provisions. The process of determining whether a person is a “building contractor” is thus potentially a very difficult one, as indeed is the process of determining whether in a particular case “reviewable domestic work” has occurred. No doubt there will be many cases where the outcome is obvious enough, or rather where, if one works through the difficult and complex provisions of the Acts and Regulation, the outcome coincides with what one would ordinarily expect, but there are obviously going to be considerable difficulties in deciding, in matters which lie near the boundaries of this definition, whether or not a particular dispute is or is not a “domestic building dispute”. I should add that this is only one part of the definition; I will not go on about them, but there are numerous other difficulties in relation to the other parts. How on earth a litigant in person who is caught up in a dispute of this nature is supposed to work out whether the matter ought to be in the court or the tribunal is simply beyond me.
- [18]The matter is particularly complicated if the application of the definition depends on matters which extend beyond the scope of the relationship which gives rise to the dispute. By this I mean particularly the question of what business a person does or does not carry on, so as to determine whether or not that person is a building contractor. Even leaving aside the extraordinary complexity of the definition of building work, there is no hard and fast rule to determine whether or not a person carries on a business which includes doing that kind of work. In circumstances where some degree of repetition and continuity is required, it may well be a matter of degree and judgment whether a particular individual, as part of that individual’s business, does something which is “building work” often enough for it to be said that that individual carries on a business which includes building work. Yet that may be a crucial fact which determines whether a matter can and therefore has to be heard by the tribunal, or whether the matter can remain with the courts.
- [19]There could easily be some real dispute as to whether or not a particular individual fell within the definition of building contractor, particularly in a case such as the present. If someone ordinarily carries on business doing work which is excluded from the definition of “building work” for the purposes of a definition of “building contractor” one would expect that person not to be a building contractor. But if in the course of that business from time to time the person does something which does fall within the definition of “building work”, it could be a very nice question whether the building work was done with sufficient frequency and regularity for it to be said that that person’s business included the doing of building work. It might be necessary to have something approaching a full trial, with oral evidence and disclosure of documents and all sorts of things, simply in order to determine whether or not the definition was satisfied so that the matter had to go to the tribunal rather than being heard and determined in a court. That is an extraordinarily inefficient way to go about doing things, and hopelessly unsatisfactory as a way to achieve the stated objective of having such disputes resolved in a way that is just, fair, informal, cost efficient and speedy.
- [20]The practical effect of s 40 of the CCT Act appears to be that in relation to matters where the tribunal has jurisdiction the tribunal’s jurisdiction is made exclusive. Section 40 itself is a bizarre provision; if a matter is started in a court and the court concludes that the tribunal has jurisdiction the plaintiff must be told to go away and start again in the tribunal. But the issue can then be ventilated again in the tribunal as shown by subsection (2), and the tribunal may come to the opposite conclusion, in which case the poor plaintiff gets told to go away and start again in the court. It may be cold comfort to a person in that unhappy position to know that the legislature has at least prevented the court from then deciding that it was right all along and the tribunal is wrong, although of course there could be an appeal from the tribunal’s decision that it did not have jurisdiction, with leave, to the District Court, or the decision could be the subject of review by the Supreme Court under the Judicial Review Act. As a means of adequately dealing with problems about matters started in the wrong place, s 40 leaves almost everything to be desired.
- [21]There is also the consideration that there is no particular time limit as to when this has to be decided. Courts do not hold enquiries in relation to any proceeding which is commenced in them in order to find out whether it might possibly be a matter within the jurisdiction of the tribunal under to CCT Act. What if it emerges in the course of a trial in a court that the matter is one which is within the jurisdiction of the tribunal? On the face of it the court has no choice but to make an order under s 40(1), and the whole proceedings in the court will have been wasted, and the poor plaintiff must start again in the tribunal. Although this will not give the defendant a limitation defence (s 40(5)), it is an absurd way to organise things.
- [22]I do not presume to suggest what method should be used in order to mark out what matters are to be dealt with by the tribunal and what matters by the court. But in my opinion the present process is unsatisfactory, and the whole question should be thoroughly reconsidered by the legislature. In the meantime, there will no doubt be numerous cases where individual litigants are put to considerable unnecessary difficulty and expense by the extraordinary complexity of these provisions, and the fact that s 40(1) is mandatory in its terms, and contains no time limit.
Fresh evidence
- [23]This is an appeal from an order of a Magistrates Court under s 45(1) of the Magistrates Courts Act 1921. This being an appeal from an interlocutory order, it is prima facie an appeal stricto sensu – UCPR r 765(2) – subject to the operation of s 47 of the Magistrates Court Act (which does not deal with fresh evidence) and the possibility of my deciding to hear the appeal by way of rehearing under r 765(4). Subject to that, the question is whether the decision of the magistrate was correct when given on the material then before him: Builders’ Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 at 619.
- [24]The appellant sought to put further evidence before me on appeal, with a view to showing that, notwithstanding the content of the pleadings, the respondent did satisfy the definition “building contractor” because it had contracted to do, and had done, as part of the work on this site, work other than earthmoving and excavation, namely the demolition and removal of a laundry. Assuming that that would be building work for the purposes of the definition of “building contractor”, the fact that the respondent was shown to have done “building work” on one occasion would certainly not be enough to show that it was carrying on a business that consisted of or included carrying out building work, although it might be some evidence in support of such a conclusion if other evidence were available. On the other hand, if the second part of the definition is concerned not with the ordinary business of the person in question, but with what the subcontractor carried out for the building contractor on the relevant occasion, it would be arguable at least that the fact that the respondent had carried out this work, which was building work, for the appellant on this occasion meant that the respondent was a building contractor.
- [25]I should say something more about the definition of “building contractor”. As I have indicated, the first part of the definition at least is concerned specifically with the business carried on by the person in question, and therefore looks to the ordinary or general activities of that person rather than what that person was doing on this particular occasion. The wording of the second part of the definition, the extension provided by the word “includes”, is less clear but at face value appears to be directed to a particular occasion when a person as a subcontractor carries out building work for a building contractor. That however is not the only meaning; the purposes of the second part of the definition could have been simply to make it clear that the definition extended to those who carried out building work as their business or part of their business as subcontractors as well as those who carried it out as principal contractors. It would be perhaps an odd formulation of the definition if a person who was otherwise not a building contractor became one by carrying out building work as a subcontractor for a building contractor on a particular occasion, but did not become one by carrying out building work for someone else on a particular occasion. Although it is not necessary for me to decide this question for present purposes, I incline to the view that the second part of the definition is there only to make it clear that the first part extends to those who carry out building work (as their business or part of their business) as subcontractors, as well as those who carry it out as principal contractors.
- [26]If this interpretation were adopted, it would be unhelpful to show merely that this particular work had been carried out on this occasion as a subcontractor; it would be necessary for the appellant to go further, and show that the respondent’s business as a subcontractor included carrying out something other than excavation and earthmoving work, something which was building work. However, the current material would not be sufficient to demonstrate that.
- [27]There is also the consideration that the current affidavit is contentious; that is to say Senior Counsel for the respondent did not accept the propositions of fact put forward in it. Accordingly if the evidence were admitted it would open up a factual dispute. Such a dispute could be heard and determined if necessary in the course of the hearing of the appeal, but it is not necessary and in my view not desirable to do so. Because this was an interlocutory application, an unsuccessful applicant can apply again, subject to the consideration that any further application should be on sufficient additional material to prevent it being characterised as an abuse of process of the court.[5] But all that was decided on this occasion by the magistrate was that on the material then before him the appellant had not established an entitlement to an order under s 40(1) of the CCT Act, and all I am deciding is whether that was correct. Senior Counsel for the respondent conceded, properly in my opinion, that if the appeal were dismissed and the appellant were later able to obtain evidence to show that the respondent’s business included carrying out building work, a fresh application could be made to the Magistrates Court under s 40(1)[6].
- [28]In those circumstances, there is no need in terms of the requirements of justice for me to embark on a rehearing, with the possibility of fresh evidence. Accordingly it is unnecessary to consider whether this further evidence ought to be admitted before me within the ordinary rules governing the admission of fresh evidence on appeal. I therefore reject the further evidence provided by the appellant, on the ground that it is irrelevant to the issues that I have to decide.
- [29]In my opinion on the evidence before the magistrate the respondent was not shown to be a “building contractor” within the terms of that definition in schedule 2 to the QBSA Act. Accordingly the current proceeding was not shown to be a claim or dispute arising between two or more building contractors, even if it was one relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work. It did not satisfy that part of the definition of “domestic building dispute” relied on on behalf of the appellant. It is not suggested that it satisfied any other part of the definition, and therefore it was not a “domestic building dispute”, and therefore not something which the tribunal had jurisdiction to decide. Accordingly no order under s 40(1) was appropriate.
Retrospectivity of s40
- [30]For this submission the appellant relies in particular on the decision in Caplygin v Martin Fiebig Homes Pty Ltd & Ors [2003] QSC 382, where Moynihan SJA held that s 40 did apply to proceedings otherwise within the jurisdiction of the tribunal commenced prior to the commencement of the CCT Act. His Honour’s reasons indicate that he reached this conclusion because the Queensland Building Tribunal Act contained in s 117 a provision to similar effect, so that if a party had applied from the time the proceeding had commenced the court would have been required to transfer the proceeding to the Queensland Building Tribunal, and as a result of the transitional provisions in the CCT Act, the proceeding (assuming it had not already been concluded in the Building Tribunal) would have continued and have been concluded in the tribunal under the CCT Act. His Honour regarded s 40 as the latest in a chain of provisions intended to have such disputes resolved by a tribunal and that if the section was not retrospective in its operation this left a gap in the operation of the provisions which was unlikely that the legislature had intended.[7] In addition, s 40(1) was procedural, so that there was no presumption against retrospectivity.
- [31]With respect, I find this reasoning unpersuasive, essentially for two reasons. The first is that it seems to me that it overlooks an important difference between s 117 of the Queensland Building Tribunal Act and s 40(1) of the CCT Act. By the former section, the court was required to transfer the proceeding only if one of the parties applied for such an order, whereas with the latter section transfer does not depend on the application of a party, and even if all parties wanted the matter to stay in the court, once a court became aware that the matter fell within s 40(1) it is obliged to make the order, even of its own motion. It may be that prior to the commencement of the CCT Act the parties to the action were quite content for the matter to stay in the Supreme Court.[8] And conversely, if one of the parties had wanted to have the matter transferred to the Queensland Building Tribunal under s 117, there had been plenty of opportunity to do that prior to the time when the earlier Act was repealed.
- [32]On the other hand, s 40(1) on its face applies regardless of the views of the parties and regardless of the stage which the litigation has reached. In theory a judge having heard a matter, after a trial which lasted some weeks, might have prepared a reserved judgment and been ready to deliver it on 2 July 2003. If his Honour’s interpretation of the Act is correct, that judge could not have delivered that judgment, and would have been obliged to tell the plaintiff that the whole thing had to be begun again in the tribunal. Although subsection (5) deals with the question of limitation periods, there is nothing in the Act to deal with the massive wastage of costs which would have occurred in such circumstances.
- [33]His Honour in Caplygin made the costs of the action costs in the proceeding before the tribunal. That is undoubtedly the best way to deal with them, although it is not immediately apparent to me how his Honour had power to make an order in those terms. But that does not deal with the question of wastage of costs because things had to be done again, or differently, in the tribunal. The wastage of costs would be aggravated by another difference between the two provisions; under s117 the existing proceeding was transferred, whereas under s 40(1) the plaintiff has to start again. Although it is not a formal presumption, it seems to me unlikely that the legislature would have intended that people engaged in existing litigation would be required to abandon the existing proceedings and start again. It seems to me that the gap with which his Honour was concerned was really a somewhat artificial one, bearing in mind this distinction between the two provisions, and that the potential injustice of the unrestricted retrospective operation of s 40(1) is far greater than any potential injustice from the creation of any such gap.
- [34]The other consideration is that the wording of s 40(1) seems to me to be clearly prospective. The expression “if a proceeding is started in a court” on its ordinary meaning refers to a proceeding started in a court after the commencement of the Act; the section does not say “if a proceeding has been started in a court”. The wording may be contrasted with that under s 158(1) which deals expressly with a proceeding which “was started in a former tribunal”. Although there is no presumption against retrospectivity in the case of procedural provisions, it does not necessarily follow that provisions which are procedural will operate retrospectively.[9] That depends on the wording of the section.
- [35]Although ordinarily I would follow a decision of a single Supreme Court judge which was on point, although not strictly bound by it, in the present case I find his Honour’s reasoning unpersuasive, and consider that there are compelling reasons why s 40(1) should not be given a retrospective operation. Accordingly in my opinion it does not apply to the present proceeding, and for that reason also the application ought to have failed before the magistrate.
- [36]For both of these reasons therefore the appeal is dismissed with costs.
Footnotes
[1]The term “home” is itself defined in s 13(1) as including any residential premises.
[2]Hope v Bathurst City Council (1980) 144 CLR 1 at 8-9 per Mason J.
[3]Section 3A(1)(x).
[4]And indeed electrical work under the Electrical Safety Act 2002 is now excluded from the definition by s 5(1)(q) of the Queensland Building Services Authority Regulation 2003.
[5]Licul v Corney (1976) 50 ALJR 439; Carr v Finance Corporation Ltd (1981) 147 CLR 246.
[6]Subject to the question of retrospective operation of that section, which I consider separately.
[7]At para 16; this followed from the repeal of the earlier Act, so that an application could no longer be made under s 117.
[8]I should think that many litigants, given the choice between a trial in the Supreme Court of Queensland and a trial before the Queensland Building Tribunal, would have expressed a preference for the former, on quality of justice grounds, but my view of that former tribunal may have been coloured by the number of appeals which I have allowed from its decisions over the years.
[9]Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 at 240. Note in particular the qualification “provided that no injustice is done” at the end of the quote from Mellish LJ in Costa Rica v Erlanger which concludes the passage quote from Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267, and statement (c) in the passage quoted from Dixon CJ at p.270.