Comalco Smelter Dev P/L v Building & Con Ind (Portable Long Serv Leave) Auth

[1996] QSC 264

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No.8911 of 1996

Before the Hon. Mr Justice Mackenzie

[Comalco Smelter Dev. P/L v. Building & Con Ind. (Portable Long Serv. Leave) Auth.]

BETWEEN:

COMALCO SMELTER DEVELOPMENTS PTY LTD

Applicant

AND:

BUILDING & CONSTRUCTION INDUSTRY
  (PORTABLE LONG SERVICE LEAVE) AUTHORITY

Respondent

CATCHWORDS: Judicial Review Act 1991, s.12 - summons to dismiss an application for judicial review of a decision made by the Building & Construction Industry (Portable Long Service Leave) Authority -whether there is adequate provision made for review under the Building & Construction Industry (Portable Long Service Leave) Act 1991.

Counsel:Mr G. Flick SC and Mr P. Hastie for the applicant.

Mr P. Robinson (solicitor) for the respondent.

Solicitors:  Minter Ellison for the applicant.
  Carter Newell for the respondent.

Date of Hearing:                3 December, 1996

JUDGMENT - MACKENZIE J.

Judgment Delivered 20 December, 1996

Comalco Smelter Developments Pty Ltd ("Comalco") is undertaking expansion of the Boyne Island Smelter.  Under the Building & Construction Industry (Portable Long Service Leave) Act 1991 ("BCI Act") the respondent (the Authority) has issued a notice of assessment in respect of long service leave payable pursuant to the Act.  Comalco has commenced proceedings under the Judicial Review Act 1991. The essence of the dispute is whether the cost of the work, which is the basis for the amount of the levy (s.72) includes the cost of plant and equipment not used for or the product of building and construction work or costs of ancillary activities including feasibility studies, design work, technology licensing supervision, commissioning, training, finance and costs and Government charges where those costs are not costs of building and construction work.
          Section 73 of the BCI Act  is concerned with the determination of the cost of building and construction work.   In the context of the present case it is:-
          (a)      the contract price of the work;

(b) where the work involves more than one contract - the total of the contract prices; or

(c) if there is no contract price - the cost of the work as decided by the Authority. 

Section 73(2) gives a residual power to the Authority to decide the cost of work if it is satisfied that the contract price or contract prices is or are not an accurate estimate of the cost of work. 
The Authority has brought a summons for dismissal of the judicial review application pursuant to ss.12 and 13 of the Judicial Review Act. Comalco resists the summons. Notwithstanding that its initiating application is on its face an application for a statutory order of review and an application for review the submission made in resisting its dismissal was that in addition to jurisdiction under ss.19 and 43 of the Judicial Review Act the applicant also invokes the Court's jurisdiction to give declaratory relief under s.201 of the Supreme Court Act 1995 and the inherent jurisdiction of the Court as a superior court of record. It was submitted that there was an absence of reasons to dismiss the entirety of the application made to the Court. If the judicial review application were dismissed it would not be possible to grant relief under s.30 of that Act but the Court could exercise the same review functions and grant the same relief in the exercise of its inherent jurisdiction. It was submitted that the application to have the application dismissed was lacking in utility in that it would involve stripping this Court of the powers conferred by the Judicial Review Act to grant the declaratory relief but leave the Court free to exercise comparable powers under the Supreme Court Act. The effect of s.10 of the Judicial Review Act appears to be that a right of review under the Judicial Review Act is, subject to the powers in ss.11 and 12, capable of running concurrently with another remedy.  However the application presently before this Court is in the form of an application for judicial review.  It is in that context that the application to dismiss the application on the ground that adequate provision is made by a law other than the Judicial Review Act 1991 under which the applicant is entitled to seek a review of the matter by another court must be considered. Whether Comalco proceeds by way of declaratory relief or an application for interpretation of the BCI Act at some future time is a matter for it to decide.  Both remedies are discretionary and the latter depends on the absence of substantial dispute as to the facts. 
          With respect to the question of adequate provision for review by another Court, Comalco submitted that the onus is on the Authority to persuade the Court that it should not exercise the judicial review jurisdiction.  It was submitted that it was not necessary for Comalco to establish exceptional circumstances before the jurisdiction is invoked.  I proceed on that basis.  It was further submitted that the application should not be dismissed because the alternative review rights conferred by the BCI Act did not make "adequate provision" for review (Westpac Banking Corporation v. Commissioner of Stamp Duties (1994) 1 Qd.R 99; Sutton v. Council of the Shire of Rosalie (1993) 1 QAR 163, which although s.12 is not specifically referred to, is an example of the exercise of such power).
          It was submitted that for a number of reasons the statutory appeal provisions in the BCI Act did not make adequate provision.  Firstly it was submitted that the central issue dividing the applicant and the respondent was a question of law as to the correct construction of a statutory phrase which had not been previously resolved.  It was not a case of applying a statutory phrase, the meaning of which had been resolved by a superior court, to a particular set of facts.  It was further submitted that to fail to resolve the correct construction of the Act conclusively at the outset left both the applicant and the respondent in unnecessary uncertainty as to the ambit of the factual issues to be resolved.  It was submitted that any proceedings before an Industrial Magistrate would be lengthier than those required for the Supreme Court to resolve the matter of construction.  It seems to me that these submissions pre-suppose that it will be easy to make a characterisation or categorisation of various activities under contracts into activities which give rise to a liability to pay the levy and those which do not.  There is nothing before me which indicates whether this is well founded or whether it is an optimistic view.  It can be said with confidence that if meaningful declarations are to be made it would be necessary to identify the kinds of activity which are said to be wrongly taken into account by the Authority in a sufficient factual context.  The material before me on this application does not in my view provide a very adequate basis for determining whether particular activities have one character or another.  It may be possible to isolate some activities by reference to a class and argue the point of whether they are included in a leviable category or not.  There is nothing to indicate that this will be easily achievable in all cases.  In the absence of sufficient characterisation or categorisation there will still be room for dispute about the application of the principles declared to the facts. 
          If the characterisation or categorisation exercise can be successfully carried out, or at least carried out in such a way as to reduce the area of factual dispute there is no reason why the ambit of contentious matters cannot be confined equally well whether the matter is heard under the procedure provided for in the BCI Act, or elsewhere.  There is no intrinsic advantage in having the matter heard in the Supreme Court rather than by an Industrial Magistrate except to the extent that the interpretation of the section would be made in the first instance by a Supreme Court Judge on a judicial review application rather than by the President of the Industrial Court on an appeal from an Industrial Magistrate.  The primary responsibility for the characterisation or categorisation of activities would rest on Comalco.  If, at the end of the day, the resolution of the issue involves investigation of the minutiae of contracts by the judicial officer, there is no reason why it could not be done adequately and conveniently in the Industrial Magistrate's Court in the first instance.  The magnitude of the case depends largely on the successful completion of the characterisation or categorisation process.  I am not convinced that Comalco is not taking an overly optimistic view of the simplicity of the exercise. 
There were a number of submissions directed to establishing that the Industrial Court was not the most appropriate forum in which to resolve conclusively the question of statutory construction. Section 8 of the Industrial Relations Act 1990 provides that the Industrial Court is constituted by a single judge of the Supreme Court who sits as President of the Industrial Court. The final and conclusive nature of the decision of the Industrial Court and its exclusive jurisdiction are provided for in s.13. The limited review available in respect of decisions of an Industrial Magistrate's Court is set out in s.93. It may be noted that decisions under ss.13 and 93 are in the limited category of cases where the operation of the privative clauses is preserved by schedule 1 of the Judicial Review Act. The ambit of powers available to the Industrial Court is set out in s.118(5). The right of appeal from an Industrial Magistrate to the Industrial Court arises by a combination of s.118(3) and s.74(c). Section 125 provides for rehearing on the record with the power being given to the court to hear evidence afresh or hear additional evidence if in its opinion it is necessary or desirable to do so to effectually dispose of the appeal.
          The procedure of part 9 in the BCI Act is that a person who is dissatisfied with a decision or determination of the Authority may within 45 days apply to the Authority in writing to give further consideration to the matter. Alternatively, a person dissatisfied with a decision or determination of the Authority may, without seeking reconsideration, appeal to an Industrial Magistrate. The Industrial Magistrate has power to confirm the decision appealed against, to set aside the decision and substitute another decision, or set aside the decision and return the matter to the Authority with appropriate directions. In substituting another decision the Industrial Magistrate has the same powers as the Authority and the substituted decision is taken to be the Authority's decision for the purposes of the Act. Section 89 affirms that the appeal is to be by way of rehearing of the evidence and proceeding before the Industrial Magistrate unless the Industrial Court orders that additional evidence be heard. Notwithstanding the arguments on Comalco's behalf, I am satisfied that adequate provision is made by the BCI Act and the Industrial Relations Act under which the applicant is entitled to seek a review of the matter by the Industrial Magistrate's Court initially and if necessary, on appeal to the Industrial Court.  I am therefore of opinion that the application filed on 23 October 1996 and amended by leave on 3 December 1996 should be dismissed with costs to be taxed.