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[2020] QCA 245
In this significant case, the Court of Appeal was confronted with the question of how to interpret the general power to impose conditions on a builder’s licence granted to the appellant by s 36 of the Queensland Building and Construction Commission Act 1991. By majority, the Court found that the appellant could not impose conditions on a licence where to do so would be to get around the limitation on other more specific powers conferred by the Act which shared the same subject matter as the purported conditions.
Fraser and McMurdo JJA and Bradley J
10 November 2020
The respondent held a “builder – open” licence, which allowed it to undertake building work on all classes of buildings and generate revenue in the range of $12,000,001 to $30,000,000 per financial year. [33]. In April 2019, it was engaged to design and construct a residential apartment complex in Coolangatta. [34]. All of the work it was contracted to undertake was within the scope of its licence. [34]. Adjacent to this building site was another residential building called Kirra Vista. [35].
While the respondent was building its apartment complex, the Kirra Vista Body Corporate made a complaint to the Queensland Building and Construction Commission (QBCC). [36]. After carrying out an inspection of the Kirra Vista site, the QBCC issued to the respondent a notice to show cause why a stop work notice should not be issued. [37]. After receiving an initial response from the respondent, a stop work notice was issued to the respondent on 19 September 2019. [40]. On 23 September 2019, however, it withdrew the stop work notice and the respondent recommenced work at the site. [41]. After receiving another report regarding structural damage and subsidence to the Kirra Vista building, the QBCC issued a notice of immediate suspension of the respondent’s licence on 13 November 2019. [44].
On 18 November 2019, the QBCC imposed conditions on the respondent’s licence relating to its work at the Coolangatta site and lifted the suspension of its licence. [48]–[50]. These conditions relevantly included that it must engage a contractor to make safe the Kirra Vista building. [48]. While the respondent carried out such works between 19 and 22 November, on 27 November 2019, Kirra Vista gave the respondent notice that it was not to engage in further make safe works until a building consultant was engaged by the Kirra Vista Body Corporate’s insurer. [52]–[53]. As the respondent was prevented from undertaking the make safe works, it was prevented by the conditions imposed upon its licence from undertaking other work at the building site. [53].
Shortly thereafter, the respondent commenced proceedings in the Supreme Court, seeking a finding that the conditions imposed on its licence were void and an order either setting them aside or quashing them. [54]. This application was heard on and determined in the respondent’s favour within a fortnight; the learned primary judge declared that the decision to impose conditions on the respondent’s licence was void and of no effect. [57]. Dissatisfied with this result, the QBCC appealed from this decision. [57].
On appeal, the first question for the Court was whether the learned primary judge had erred in finding that the general power to impose conditions on a licence under s 36 of the Queensland Building and Construction Commission Act 1991 (the Act) was separate and discrete from the powers conferred by s 108AI and Pt 6 of the Act, which respectively empower the QBCC to compel a person to stop work and to direct a licensee to remedy consequential damage. [78]–[88].
In considering this issue, Bradley J, with whom Fraser JA agreed, observed that a general principle of construction had emerged from Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 and subsequent cases that “a statutory power, expressed in general form, is not to be construed so as to avoid any condition or limitation placed on the exercise of a specific power”. [94]–[98]. The consequence of the Anthony Hordern principle, as applied in this case, was that the general power to impose conditions on a licence under s 36 of the Act could not be used as a way around limitations on the powers in s 108AI and Pt 6 of the Act as they relate to defective building works and related remediation works. [100]. As the QBCC had acted as if the restrictions contained in s 108AI and Pt 6 did not exist, the primary judge did not err in finding that the QBCC lacked the power under s 36 to impose the conditions that it imposed. [100]–[101]. An alternative argument on this ground of appeal was unnecessary to consider. [104].
Bradley J then turned to the QBCC’s second ground of appeal, that the primary judge had erred in construing s 36 so as to limit the grant of power in that provision. [105]. His Honour considered that this ground “must fail for the same reasons as the first ground of appeal, unless there is some other compelling consideration”. [107]. While the QBCC pointed to two High Court authorities in support of its submission, Bradley J noted that they related to the conferral of a judicial power on a court. [109]. Accordingly, they did not lead to a different conclusion from that reached in relation to the first ground of appeal.
QBCC’s third ground of appeal was that the learned primary judge had erred by failing to consider each of the seven conditions imposed separately. [112]. Bradley J observed that the parties did not initially deal with the conditions individually before the primary judge. [113]. Further, when they were invited to, the parties only made submissions in relation to condition four. [113]. Conversely, on appeal, the QBCC treated conditions one to four together, and conditions five, six and seven separately. [114]–[115].
In considering this ground, Bradley J observed that a single set of reasons was given for imposing all the conditions, and that the reasons expressed a common underlying concern. [122]. Further, the QBCC indicated that the imposition of the conditions had predicated its decision to lift the suspension of the respondent’s licence. [123]. This again confirmed a common reason underlying all the conditions. [123]. Ultimately, his Honour found that all the conditions were imposed “as part of [a] single measure to prevent the respondent acting so as to give rise to a serious risk to the health and safety of a person”. [125]. Accordingly, all the conditions were beyond the power of the QBCC under s 36 of the Act. [127].
McMurdo JA took a different view, finding that in the instant case, as the conditions “did not have effect as directions with which the respondent must comply or else commit an offence” (emphasis in the original). [26]. Accordingly, the power to be exercised under s 36 was not of the same kind as that to be exercised under s 108AI or Part 6 of the Act. [26]. It followed that the Anthony Hordern principle does not apply in this case. [26]–[27]. In any event, the first six conditions did not relate to matters which would affect the respondent’s ability to undertake other work (i.e. work on other sites) under its licence. [28]. Accordingly, they were invalid as they were imposed for a purpose or purposes other than that to which the power of s 36 is aimed – “ensuring the requirements of character, competence and financial standing would be met”. [12], [28]. However, his Honour distinguished the seventh condition, which related to the respondent’s safety management system, and considered it to be within power. [29].
In the event, the appeal was dismissed with costs. [1], [128].
M Paterson