Bourne v Queensland Building and Construction Commission

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SUPREME COURT OF QUEENSLAND

CITATION:

Bourne v Queensland Building and Construction Commission [2018] QSC 231

PARTIES:

KATRINA MARGARET BOURNE

(applicant)

v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

FILE NO/S:

BS No 11056 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2018

JUDGE:

Douglas J

ORDER:

1.    The respondent’s application, filed 25 January 2018, is granted.

2.    The applicant’s originating application, filed 23 October 2017, is dismissed.

3.    The parties will be heard as to costs. 

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – where the respondent paid money to a former client of the applicant’s company pursuant to a statutory insurance scheme – where the applicant owed that money as a debt to the respondent – where the respondent commenced proceedings to recover that debt – where the applicant sought judicial review of the respondent’s decision to commence those proceedings – where the respondent brought an application to have the applicant’s judicial review application dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld) – whether the decision to commence proceedings was judicially reviewable – whether the decision to commence proceedings was of an administrative character made under an enactment

Judicial Review Act 1991 (Qld), s 13, s 48
Queensland Building and Construction Commission Act 1991 (Qld), s 8, s 71, s 86F, s 93(1), 111C
Queensland Building Tribunal Bill 1999 (Qld)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, cited
Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562, explained
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, applied
Mahony v Queensland Building Services Authority [2013] QCA 323, considered
Queensland Building and Construction Commission v Turcinovic [2018] 1 Qd R 156; [2017] QCA 77, cited
Queensland Building and Construction Commission v Watkins [2014] QCA 172, cited
Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 189 FCR 189; [2010] FCA 538, considered
Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36; [2010] FCAFC 139, cited
Samimi v Queensland Building and Construction Commission [2015] QCA 106, cited

COUNSEL:

C Martin for the applicant

N Andreatidis for the respondent

SOLICITORS:

Michael Ohlson for the applicant

Rostron Carlyle Lawyers for the respondent

  1. The Queensland Building and Construction Commission (“QBCC”) commenced proceedings on 25 August 2017 claiming $200,000 from Ms Bourne and Mr Hart as moneys owed by them to QBCC pursuant to s 71(1), s 111C(3) and s 111C(6) of the Queensland Building and Construction Commission Act 1991 (“the Act”). Ms Bourne, by her application filed 23 October 2017, sought to review the decision to commence that proceeding pursuant to the Judicial Review Act 1991. QBCC then brought an application to dismiss Ms Bourne’s application pursuant to s 48 of the Judicial Review…

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Details
Case
[2018] QSC 231
Decision Date

CaseChat Overview and Summary

The case of Bourne v Queensland Building and Construction Commission involved a dispute between Ms Bourne and the Queensland Building and Construction Commission (QBCC) regarding the recovery of a debt. Ms Bourne, a former director of J & K Homes Pty Ltd, a building company, was liable for $200,000 owed to QBCC due to a statutory insurance scheme. QBCC initiated proceedings to recover the debt, and Ms Bourne sought judicial review of QBCC's decision to commence those proceedings. QBCC subsequently applied to dismiss Ms Bourne's judicial review application under section 48 of the Judicial Review Act 1991 (Qld).

The primary legal issue was whether the decision by QBCC to commence proceedings to recover the debt was judicially reviewable and whether it was an administrative decision made under an enactment. QBCC argued that its decision to claim the money from Ms Bourne was a procedural determination that did not confer, alter, or affect legal rights or obligations and, therefore, was not an administrative decision. The court had to determine whether the decision to institute proceedings was judicially reviewable under the Judicial Review Act.

The court examined the criteria for determining whether a decision is one of an administrative character made under an enactment, as established in Griffith University v Tang. The decision must be expressly or impliedly required or authorised by the enactment and must itself confer, alter, or otherwise affect legal rights or obligations. The court considered the submissions of both parties, including the argument that the decision to institute proceedings was not an "ultimate or operative determination" but rather procedural. The court found that the decision to institute proceedings was reviewable because it conferred a power not available under the general law and rendered lawful an act by QBCC that would otherwise be unlawful.

In conclusion, the court granted QBCC's application to dismiss Ms Bourne's judicial review application and dismissed Ms Bourne's originating application. The parties were to be heard regarding costs.

Orders

Orders of the court

1. The respondent’s application, filed 25 January 2018, is granted.

2. The applicant’s originating application, filed 23 October 2017, is dismissed.

3. The parties will be heard as to costs.

Background

Background to the litigation

The principal ground on which QBCC relies is an argument that its decision to claim the money from Ms Bourne was not a decision of an administrative character made under an enactment but a procedural determination that was not expressly or impliedly required or authorised by the Act and which did not, itself, confer, alter or otherwise affect legal rights or obligations of Ms Bourne. Factual background Ms Bourne was a director of J & K Homes Pty Ltd (“Kirra Homes”), a building company which undertook domestic building work pursuant to a written contract with Ms Joanna Lynton dated about 22 July 2013. On or about 4 November 2014, Ms Lynton terminated the building contract and then on 6 November 2014 lodged a claim with QBCC under the statutory insurance scheme. On 24 March 2015, QBCC approved the insurance claim made by Ms Lynton and paid out $5,000 on 10 April 2015 and $195,000 on 11 May 2015. Kirra Homes had been placed into liquidation on or about 21 April 2017. The $200,000 said to be owed by Ms Bourne to QBCC has not been paid. On 25 August 2017, QBCC filed its claim in the District Court. The defence to its claim challenges whether the payments were made in accordance with the statutory scheme and alleges an estoppel. The statutory context Section 71(1) of the Act allows QBCC to recover the amount of any payment on a claim under the statutory insurance scheme from the building contractor, in this case Kirra Homes, or from “any other person through whose fault the claim arose.” The words “building contractor” are defined inclusively in s 71(2) to include a variety of licensed contractors as well as a person who, for profit or reward, carried out the work. Section 71(2)(b) provides that a person through whose fault the claim arose is taken to include a person who performs services for the work if the services were performed without proper care and skill. Section 111C was, however, the principal source of liability relied on by QBCC against Ms Bourne. It extends liability for payment, where a company owes QBCC an amount because of a payment made by QBCC on a claim under the insurance scheme, to each individual who was a director of the company when building work the subject of the claim was or was to have been carried out: see s 111C(3) and s 111C(6)(a). Section 93(1) of the Act confers non-exclusive jurisdiction on QCAT in relation to a debt owed to QBCC under s 71(1) by providing that QBCC may recover a debt under s 71 by application to QCAT under that section. Such a decision is made not reviewable in QCAT by s 86F of the Act. In Mahony v Queensland Building Services Authority,[1] that led McMurdo P to observe, partly in reliance on explanatory notes to the Queensland Building Tribunal Bill 1999,[2] that the decision to recover an amount was judicially reviewable in the Supreme Court. QBCC submitted that observation was a dictum that should not determine this case because the proceedings did not depend on s 71 but rather on s 111C. I agree with that submission.[1] [2013] QCA 323 at [35].[2] See at p 32.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The question that arises here, therefore, is whether, when s 111C is the primary source of a director’s liability, rather than s 71, a decision made pursuant to s 111C should fall within the types of reviewable decision covered by the Judicial Review Act. It is also important to bear in mind that s 8 of the Act provides QBCC with all the powers of an individual. It was not contested that those powers would include the power to institute proceedings for the recovery of a debt, separately from the power in s 71.Was the decision to institute proceedings one of an administrative character made under an enactment? The leading authorities in the High Court of Australia on the topic of how to determine whether a decision is one of an administrative character made under an enactment are Australian Broadcasting Tribunal v Bond[3] and Griffith University v Tang.[4] For present purposes it is sufficient to refer principally to the passage in Griffith University v Tang where Gummow, Callinan and Heydon JJ said:[5]“89 The determination of whether a decision is ‘made ... under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘made ... under an enactment’ if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.”[3] [1990] HCA 33; (1990) 170 CLR 321.[4] [2005] HCA 7; (2005) 221 CLR 99.[5] [2005] HCA 7 at [89]; (2005) 221 CLR 99, 130-131 at [89] (emphasis in the original). Mr Andreatidis, for QBCC, submitted that the decision to commence proceedings was not an “ultimate or operative determination” to use Mason CJ’s language in Australian Broadcasting Tribunal v Bond.[6] Rather, it was procedural. Mr Martin’s submission, however, relied on decisions such as Deloitte Touche Tohmatsu v Australian Securities Commission.[7] That was a case where a review was sought of a decision that it was in the public interest for the then Australian Securities Commission to cause proceedings to be instituted against a company. The review would have exposed for consideration the reasons for that conclusion, that it was in the public interest to commence proceedings. Lindgren J concluded that such a decision was reviewable. It gave the Australian Securities Commission a power not available to it under the general law and rendered lawful an act by it which would otherwise be unlawful. That decision was criticised by Mr Andreatidis on the basis that it was decided before Griffith University v Tang introduced the requirement that the decision must itself confer, alter or otherwise affect legal rights or obligations. It seems to me, however, that it is consistent with the decision in Griffith University v Tang because of the special nature of the decision justifying the institution of proceedings. It is, however, for that reason at least, distinguishable from a decision simply to institute recovery of a debt said, by an Act, to be owed to a body such as QBCC.[6] (1990) 170 CLR 321, 338.[7] (1995) 54 FCR 562, 575-576.

Ratio Decidendi

Legal Principle Established

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