Queensland Building Services Authority v J M Kelly (Project Builders) Pty Ltd

This case concerned the validity of certain directions made by the appellant under the Queensland Building Services Authority Act 1991. The directions under the Act requiring the respondent to rectify building work “within 28 days from the date of the notice” had been given in notices sent by the Authority. The notice was sent to the respondent through the mail with the result that the notice in that form was invalid as it did not afford the respondent the time required by the Act. However, the notice had also been sent by email to the respondent on the day that it issued. The question before the Court was as to the identity of the date when the notice was given. That would determine when the direction was made and whether or not the respondent had been afforded 28 days to comply as required by the Act. The Court of Appeal disagreed with the trial judge and held that the notice had been given on the day that it was sent by email.  The following matters arose from the decision of Fraser JA (with whom the other members of the Court agreed):

• That under the Act, the appellant would have effectively directed the respondent to rectify the building work if the appellant had communicated that direction to the respondent in any way which led to the respondent actually being informed of the contents of the direction on 17 December 2010.
• The Act by its terms does not require that the document containing the notice be “served” on a person or “delivered”, “given”, “notified” or “sent” or that the manner of making the direction needs to be in a manner which was ejusdem generis with “serve”;
• If the Act requires that the respondent be actually informed of the contents of the direction that will have occurred if the electronic direction attached to the email was received and opened by an employee who was authorised by the respondent to receive the direction on its behalf.
• As the respondent was the party which bore the onus in seeking the declaration that the notice was void it bore the onus of proving the facts necessary to justify that conclusion.  That meant that it had to establish that the electronic direction attached to the email was not received and opened by an employee of the respondent acting within the scope of their employment.
• On the evidence available the inference to the above effect could not be made.

The case also provides a most interesting discussion and analysis of the sufficiency of evidence required to enable a Court to draw inferences from practices in an organization. In summary, mere generalizations about the operation of a business will not suffice. The particular inference to be drawn has to be identified and precise evidence concerning that issue has to be adduced.