Olin v Queensland Building and Construction Commission - [2017] QCAT 319

CITATION:

Olin v Queensland Building and Construction Commission [2017] QCAT 319

PARTIES:	Peter James Olin (Appellant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR006-17

MATTER TYPE:

Occupational regulation

HEARING DATE:

31 August 2017

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

18 September 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building and Construction Commission dated
5 December 2016 that Peter James Olin is an excluded individual is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – whether excluded individual – whether individual was director, secretary or influential person for a ‘construction company’ – where company performed building work up to six months before appointment of liquidator – where company’s only other activities were to cancel building licences and wind down company – whether company was a company that ‘directly or indirectly carries out building work or building work services’ – whether ‘carries out’ requires a company to perform building work or building work services at the time of the ‘relevant event’ – where broad interpretation of ‘carries out’ to extend to past tense of ‘carried out’ is consistent with objects of Act – where provision is protective and should be given widest possible scope – where focus is on nature of company’s activities – where company’s substantial character and focus of its activities was ‘building work’ – where company was ‘construction company’

Acts Interpretation Act 1954 (Qld), s 14A
Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 56AC,
s 56AE, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Buckman (HC) & Son Pty Ltd v Flanagan (1974) 133 CLR 422
CIC Insurances Ltd v Bankstown Football Club Ltd (1987) 187 CLR 384
Day and Dent Constructions Pty Ltd (In Liq) v North Australian Properties Pty Ltd (1982) 150 CLR 85
Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32
Harley v Department of Justice and Attorney-General [2012] QCAT 620
Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 494
Mills v Meeking (1990) 169 CLR 214
O’Brien v Gladstone Regional Council [2015] QCATA 82
PJS Development Pty Ltd v Tong [2003] QSC 337
Re Secretary, Department of Social Security and Diepenbroeck (1992) ALD 142
Secretary, Department of Social Security v Lowe (1999) 92 FCR 26
The King v Central Reference Board & Ors; ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123
Uniting Church in Australia Property Trust (NSW) v Takacs [2008] NSWCA 141
Waterford v The Commonwealth (1987) 163 CLR 54
Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337
Zappala Family Co. Pty Ltd v Brisbane City Council [2014] QCA 147

APPEARANCES:

APPLICANT: Mr P W Hackett of Counsel instructed by Colwell Wright Solicitors for Mr Peter Olin
RESPONDENT: Ms S Moody of Counsel instructed by Ms Angela Duracher, Solicitor for the Queensland Building and Construction Commission

REASONS FOR DECISION

What is this application about?

On 5 December…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QCAT 319
Decision Date: 18 September 2017

CaseChat Overview and Summary

In the case of Olin v Queensland Building and Construction Commission, the primary dispute revolves around whether Peter James Olin, the applicant, was an excluded individual within the meaning of the Building and Construction Industry Security of Payment Act 2002 (Qld). The case was heard and determined by the Queensland Supreme Court. The court was tasked with interpreting the statutory provision to ascertain if Mr. Olin's former company, which had performed building work up until six months prior to the appointment of a liquidator, qualified as a 'construction company'.

The central legal issues before the court included the interpretation of the term 'carries out' in the context of the Act, and whether the company could be considered a 'construction company' if its primary focus and activities had been building work, even if it ceased such activities before the relevant event. The court had to determine whether the provision should be interpreted to require the company to perform building work at the time of the relevant event, or if a broader interpretation that encompasses past activities was consistent with the objects of the Act. Given that the provision was protective in nature, the court aimed to give it the widest possible scope, focusing on the substantial character and focus of the company's activities.

The Supreme Court of Queensland found that the term 'carries out' should be interpreted broadly to include past activities of the company. The court held that the company's substantial character and focus of its activities had been building work, thereby classifying it as a 'construction company'. Consequently, Mr. Olin was deemed an excluded individual under the Act. The court's decision affirmed the Queensland Building and Construction Commission's determination dated 5 December 2016 that Mr. Olin was an excluded individual.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission dated

5 December 2016 that Peter James Olin is an excluded individual is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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